Hart v. Guardian Credit Union

Filing 54

MEMORANDUM OPINION AND ORDER directing as follows: (1) plaintiff's 40 motion is GRANTED in the amount of $19,000.00; (2) plaintiff's 40 motion for payment of plaintiff Incentive Award is GRANTED; (3) the 36 Joint Motion for Final Approval of Class Settlement is GRANTED to the extent as set out in order; (4) any other outstanding motions are DENIED as moot. Signed by Honorable Judge W. Harold Albritton, III on 6/29/12. (Attachments: # 1 Appendix A, # 2 civil appeals checklist)(djy, )

APPENDIX A

Case 2:10-cv-00725-MHT-SRW Document 51 Filed 06/01/12 Page 1 of 18

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
DANIELLE MARIE GAYLOR,

individually and on

behalf of all others
similarly situated,
Plaintiff,
me

COMALA CREDIT UNION,
Defendant.

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CIVIL ACTION NO.
2: 10cv725-MHT
(WO)

OPINION AND ORDER
Plaintiff Danielle Marie Gaylor, individually and

on behalf of all others similarly situated, filed this
lawsuit against defendant Comala Credit Union claiming
violations of the Electronic Funds Transfer Act
("EFTA"), 15 U.S.C. § 1693 et seq. The parties have
settled this case and Gaylor now moves for attorney's
fees. Comala objects to the requested amount, arguing
that $ 107,746 is an unreasonable fee award because
Gaylor's attorneys used recycled and boilerplate

Case 2:10-cv-00725-MHT-SRW Document 51 Filed 06/01/12 Page 2 of 18

briefs. For the reasons that follow, Gaylor's motion
for attorney's fees will be granted to the extent that
$ 20,000 will be awarded.

I. STANDARD FOR ATTORNEY'S FEES
When awarding attorney's fees, this court must
first calculate the "lodestar" fee: the product of the
number of hours reasonably expended to litigate the
case and the reasonable hourly rate for work performed
by similarly situated attorneys in the community.
Norman v. Housing Authority of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988). After determining the
lodestar, the court then addresses whether the award
should be adjusted upwards or downwards. Pennsylvania
v. Delaware Valley Citizens' Council for Clean Air,
478 U.S. 546, 565-66 (1986)
In conducting this inquiry, the court is guided by
the twelve factors set out in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.

Case 2:10-cv-.00725-MHT-SRW Document 51 Filed 06/01/12 Page 3 of 18

1974) .' See also Hensley v. Eckerhart, 461 U.S. 424,
429-30 (1983) (endorsing the Johnson factors) . These
twelve factors are:
"(1) the time and labor required;
(2) the novelty and difficulty of
the questions; (3) the skill
requisite to perform the legal
service properly; (4) the preclusion
of employment by the attorney due to
acceptance of the case; (5) the
customary fee; (6) whether the fee
is fixed or contingent; (7) time
limitations imposed by the client or
the circumstances; (8) the amount
involved and the results obtained;
(9) the experience, reputation, and
ability of the attorneys; (10) the
"undesirability" of the case; (11)
the nature and length of the
professional relationship with the
client; and (12) awards in similar
cases."
Hensley, 461 U.S. at 430 n.3.

1. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all of the decisions of
the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
3

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The fee applicant bears the burden of
"establishing entitlement and documenting the
appropriate hours and hourly rates." Norman, 836 F.2d
at 1303. This burden requires "specific and detailed
evidence from which the court can determine the
reasonable hourly rate[,] ... records to show the time
spent on the different claims, and the general subject
matter of the time expenditures." ACLU v. Barnes, 168
F.3d 423, 427 (11th Cir. 1999) . A fee applicant must
also exercise "billing judgment" and exclude hours
that are "excessive, redundant, or otherwise
unnecessary." Hensley, 461 U.S. at 434.

II. BACKGROUND
The EFTA prohibits owners and operators of ATMs
from imposing transaction fees without notice. Gaylor
filed suit alleging that Comala operated four
Montgomery metropolitan-area ATMs that lacked external
signs notifying customers that they may incur
4

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surcharges. She was represented by the following
attorneys: Eric G. Calhoun of Travis & Calhoun, P.C.;
B.J. Wade of Skouteris & McGee, PLLC; Nicholas Hughes;
and Matthew Alfreds. She then filed an unopposed
motion for class certification. Shortly thereafter,
the parties negotiated a class settlement, which was
submitted to this court.
The settlement agreement created a fund in the
amount of $ 42,896.73 to be distributed on a pro-rata
basis to every participating class member who
submitted a claim; a class member's claim, however,
was capped at $ 100. Gaylor received an incentive
payment of $ 2,500. The settlement provided that any
unclaimed funds would be donated to the Public Safety
Insurance Fund of Montgomery, Alabama, a charity that
provides life-insurance policies to firefighters and
police officers. The parties further stipulated that
attorney's fees and costs would be awarded separately
from the settlement fund.
5

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After preliminarily approving the class and
settlement agreement, this court held a fairness
hearing. No objections or opt-outs to the class
settlement were received. At the hearing, Gaylor's
counsel Wade informed the court that approximately ten
individuals had filed claims with the settlement fund.
Comala, however, disputed this figure and has
submitted an email sent by Gaylor's counsel Calhoun
stating that no claims were submitted prior to the
claim deadline. Gaylor has not offered any proof that
the ten claimants mentioned at the fairness hearing
exist and, therefore, the court assumes that only
Gaylor received money from the settlement fund.

6

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III. DISCUSSION
After taking into consideration the supplemental
and corrected filings, 2 Gaylor's counsel requests the
following fee award:
Attorneys

Hours

Rate

Total

Hughes

67.55

$ 375

$ 25,331.25

Alfreds

48.00

$ 375

18,000.00

Wade

35.05

$ 550

19,277.50

Calhoun

78.40

$ 550

43,120.00

Paralegal

11.45

$ 145

1,660.25

N/A

N/A

357.00

Court Costs
TOTAL

$ 107,746.00

As an initial matter, the court notes that
Gaylor's counsel never add up the total amount of
requested fees. In light of the inflated hourly rates
and alleged redundant counting discussed below, the

2. Comala moves to strike the supplemental
filings as untimely. Because these filings correct
the record and update the fee request for services
rendered at the fairness hearing, the court will take
Gaylor's supplemental filings into account when
calculating the fee award.
7

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court is suspicious that the $ 107,746 figure is
purposefully omitted from Gaylor's briefing in an
attempt to obscure the total-fee award sought.

A. Reasonable Hourly Rates
"The rate of attorney's fees is that of the place
where the case is filed." Cullens v. Georgia Dep't of
Transp., 29 F.3d 1489, 1494 (11th Cir. 1994). This
case was filed in Montgomery, Alabama, and "the
court's determination of attorney's fees must also be
guided by the prevailing market rate." Simpleville
Music v. Mizell, 511 F. Supp. 2d 1158, 1163 (M.D. Ala.
2007) (Thompson, J.).
Gaylor has submitted a declaration from Pamela B.
Slate, a local attorney, stating that she is "familiar
with fees charged to clients for non-contingent
litigation-related work at rates ranging from $ 350.00
to $ 550.00 per hour for skilled attorneys and $ 85.00
to $ 150.00 for skilled paralegals."
8

Slate

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Declaration (Doc. No. 42-5) at 3. In light of the
attorneys' experience, Slate concludes that an hourly
rate of $ 375 is appropriate for Hughes and Alf reds
and a $ 550 hourly rate is reasonable for Wade and
Calhoun. Both Hughes and Alfreds have practiced law
for under seven years. By contrast, Wade and Calhoun
have over 20 years of experience.
Comala argues that these rates are unreasonable by
the standards of the legal community in Montgomery.
Comala points to other attorney's fees cases decided
in this district to ascertain a reasonable hourly
rate. One example provides: "In this market, the
Court has found the range of $ 300.00 to $ 375.00
applicable for attorneys with over 20 years of
experience. It also has found the applicable range for
attorneys with 10 years of experience at $ 200.00 to
$ 250.00, and the applicable range for an attorney one
to two years of experience at $ 160.00 to $ 185.00."
Alfa Corp. v. Alfa Mortgage, Inc., 560 F. Supp. 2d

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1166, 1180 (M.D. Ala. 2008) (Watkins, J.) . See also
Simpleville Music, 511 F. Supp. 2d at 1163 (using the
same fee structure).
The court concludes that Gaylor's fee structure is
unreasonable given Montgomery's market rates. Slate's
declaration is conclusory and fails to provide
different rate structures for newly minted attorneys
and seasoned advocates. Slate's declaration also
stands in stark contrast to reasonable rates approved
by this court: Hughes's and Alfred's rates fall within
the range set by this court for an attorney with over
20 years of experience. Although opinion testimony
can satisfy the plaintiff's burden to prove reasonable
hourly rates, "where there is a lack of documentation,
a district court may make an independent judgment
based on its own experience and knowledge concerning
the rates charges by lawyers of similar skill in
similar lawsuits in the same market area." Miller v.
Kenworth of Dothan, Inc., 117 F. Supp. 2d 1247, 1254
10

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(M.D. Ala. 2000) (DeMent, J.). Thus, the court

reduces Hughes's and Alfreds's hourly rates to $ 200
and Wade's and Calhoun's hourly rates to $ 300. The
court also adjusts Gaylor's requested hourly rate for
paralegal services to $ 85, the bottom end of the
range provided in Slate's declaration.

B. Reasonable Hours
Comala provides numerous examples of alleged
double counting by Gaylor's counsel. For example,
Comala criticizes Calhoun and Hughes for charging 15.3
and 6.0 hours respectively for drafting the classcertification motion and brief, despite the fact that
these documents are boilerplate and have been used in
prior litigation. Comala further notes that Gaylor's
counsel charge for clerical tasks, such as Hughes's
0.75 hours for filing the complaint. The court
declines to engage in an entry-by-entry revision of
Gaylor's counsel's timesheets and speculation as to
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the amount of time it takes to edit a document.
Rather, the court will address the inflated hours and
double counting when it considers the Johnson factors.
Nevertheless, the court will reduce Gaylor's
counsel's hours for two entries. First, Wade has
filed a notice of correction stating that the 17
hours, charged on September 6, 2011, for a pretrial
conference was in error because no pretrial conference
took place that day. But rather than fully confess
error, Wade responds that he did not charge for
approximately 12 hours traveling to and attending the
fairness hearing on April 4, 2012. Because two local
attorneys also attended the fairness hearing and
Wade's trip from Memphis was superfluous, the court
will deduct 17 hours from Wade's fee request.
Moreover, the error undermines the credibility of all
the hourly entries.
Second, Calhoun has estimated that it will take 20
hours to administer the settlement fund. Given that
12

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there were no objections, opt-outs, or claims (other
than Gaylor' s), the court finds it incredulous that it
will take 20 hours to administer the settlement fund.

C. The Johnson Factors
After adjusting for local hourly rates and
subtracting from Wade's and Calhoun's hours, the
lodestar figure is calculated as follows:
Hours

Hughes

67.55

$ 200 $ 13,510.00

Alfreds

48.00

$ 200

9,600.00

Wade

18.05

$ 300

5,415.00

Calhoun

58.40

$ 300

17,520.00

Paralegal

11.45

$ 85

973.25

N/A

N/A

357.00

Court Costs

Rate

Total

Attorney

$ 47,374.25

Total

The court, therefore, will use $ 47,374.25 as the
benchmark for determining the fee award. The court
finds five of the Johnson factors useful in
calculating attorneys fees.
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The first two Johnson factors look to the time and
labor required and the novelty and difficulty of the
questions involved. The court finds it compelling
that Gaylor's counsel have recycled filings used in
other litigation. Comala has provided numerous
complaints and class-certification briefs that are
nearly identical to those filed in this case. This
court also notes that Gaylor's counsel have recycled
briefs in this district. See, e.g., Complaint,
Kirkland v. ServisFirst Bank, No. 2:10cv713 (M.D. Ala.
Aug. 20, 2010) (Thompson, J.); Plaintiff's Motion for
Attorney's Fees, Hart v. Guardian Credit Union, No.
2:10cv855 (M.D. Ala. Apr. 9, 2012) (Albritton, J.)
"An attorney is not entitled to be paid in a case for
the work he or another attorney did in some other
case." Barnes, 168 F.3d at 430. By continuously
charging for factual revisions to boilerplate briefs,
Gaylor's counsel are not exercising "billing
judgment."

This court will therefore take into
14

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account that many of Gaylor's counsel's hours are
"excessive, redundant, or otherwise unnecessary."
Hensley, 461 U.S. at 434.
The third Johnson factor examines the skill needed
to perform the legal services provided. The court is
well aware that class actions are, by definition,
complex. But, while the first draft of a complaint or
class-certification motion may be time consuming and
complex, the revision of these documents for factual
differences does not require the same level of legal
experience. Additionally, some of the charged hours
are for clerical tasks--such as Hughes's filing of the
complaint- - that need not be handled personally by an
attorney. See Surge v. Massanari, 155 F. Supp. 2d
1301, 1305 (M.D. Ala. 2001) (McPherson, M.J.) (noting
"disapprov[al] of the billing at a professional hourly
rate for services reasonably performed by support
staff, whose salaries are included in the lawyer's

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office overhead"). Thus, the third Johnson factor
militates in favor of a reduction in the fee award.
The eighth Johnson factor evaluates an attorney's
performance based on the amount involved and the
result obtained. Here, the parties settled the
dispute quickly, and Comala did not object to class
certification. While the settlement fund is sizeable,
the court finds it troubling that no class claimant
came forward. Other than the incentive payment to
Gaylor, the entire settlement fund will be donated to
a local charity.

The eighth Johnson factor,

therefore, suggests a reduction in attorney's fees.
The final Johnson factor compares a fee award to
similar cases to determine its reasonableness. Comala
has provided a useful example: in Arthur v. Vaiwood
Park Federal Credit Union, Calhoun and another
attorney handled a nearly identical EFTA case. In
that case, the defendant agreed to pay $ 20,000 in
attorney's fees. To be clear, the court recognizes
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that this example involves an unopposed fee award in
another jurisdiction--the Northern District of Texas.
The court, however, notes that Arthur demonstrates
that EFTA cases can be litigated successfully by two
attorneys, not the duplicitous and redundant efforts
marshaled by four lawyers in this case. A comparison
to other cases reveals that the $ 47,374.25 lodestar
fee is most excessive.
The court finds that the five Johnson factors
discussed above favor a reduction in the lodestar fee.
The court further concludes that none of the other
Johnson factors points toward an enhancement of the
fee award.

The court, therefore, reduces the

$ 47,374.25 lodestar to $ 20,000.

* * *

Accordingly, it is ORDERED that plaintiff Danielle
Marie Gaylor's motion for attorney's fees (Doc. No.
17

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42) is granted and that plaintiff Gaylor have and
recover from defendant Comala Credit Union the sum of

$ 20,000 in attorney's fees and costs are awarded.
DONE, this the 1st day of June, 2012.

Is!

Myron H. Thompson
UNITED STATES DISTRICT JUDGE