Jarvis v. Taylor et al (JOINT ASSIGN)(MAG2)
MEMORANDUM OPINION AND ORDER. Signed by Honorable Judge Andrew L. Brasher on 1/7/2021. (bes, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
TAYLORCHANDLER, LLC, T.
BRITT TAYLOR, NORMAN
CHANDLER, and JAMES R.
Case No. 2:17-cv-00396-ALB
MEMORANDUM OPINION AND ORDER
This order resolves the issue of attorneys’ fees in this case. The Court entered
an opinion and order resolving the competing claims in this case on August 19, 2020.
See Doc. 228. As part of that opinion and order, the parties were directed to file
statements of attorneys’ fees and costs. On September 16, 2020, Plaintiff and
Defendants filed their statements of costs. See Docs. 231 and 232. On September
28, 2020, Plaintiff and Defendants filed their objections to each other’s statements
of costs. See Docs. 236 and 237. On October 30, 2020, Plaintiff and Defendants
filed responses to each other’s objections to statements of costs. See Docs. 244 and
Plaintiff has requested $618,947.08 in fees and has supported that request with
substantial documentation. As explained in the previous opinion and order, Plaintiff
has the right to attorneys’ fees as the prevailing party under his contract with
Defendants. Alabama law governs that contract. See Doc 1-4 (“This [a]greement
shall be governed by and construed in accordance with the laws of the State of
Alabama.”) Because Alabama law governs the contract, Alabama law governs
Plaintiff’s right to attorneys’ fees under that contract.1 See Trans Coastal Roofing
Co. v. David Boland, Inc., 309 F.3d 758, 759 (11th Cir. 2002) (holding that where a
claim for attorneys’ fees sounds in a case that is present in federal court under
diversity jurisdiction, the appropriate law is state law). In Alabama, the fee must be
reasonable and whether a requested fee is reasonable is within the sound discretion
of the trial court. Beal Bank, SSB v. Schilleci, 896 So. 2d 395, 400 (Ala. 2004). The
evaluative, but not exhaustive, list of criteria for a court to consider in making this
determination is as follows: (1) the nature and value of the subject matter of the
employment; (2) the learning, skill, and labor requisite to its proper discharge; (3)
the time consumed; (4) the professional experience and reputation of the attorney;
(5) the weight of his responsibilities; (6) the measure of success achieved; (7) the
Defendants argue that the fee calculation is governed by federal law. See Doc. 237 at 5-6. As
noted above, Defendants are wrong. But, even if they were correct, there is no meaningful
difference between the fees that federal law and state law would allow in this case.
reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the nature
and length of a professional relationship; (10) the fee customarily charged in the
locality for similar legal services; (11) the likelihood that a particular employment
may preclude other employment; and (12) the time limitations imposed by the client
or by the circumstances. Id.
Defendants make numerous arguments for the reduction of Plaintiff’s
requested fees. Each is addressed below. In addition to multiple briefs, Defendants
submitted edited versions of Plaintiff’s invoices that bear seventeen different shades
of highlighting; only two of which are dealt with in their briefs. As little has been
done to clearly define the arguments that are tied to the colored highlights, the Court
will attempt to interpret the implicit arguments from the clues in the color legend.
1. Conclusory Statements
First, Defendants argue that Plaintiff makes conclusory statements about the
fees he is due without presenting evidence. Specifically, Defendants argue that
“there were no invoices for Cleveland Terrazas PLLC prior to…July 31, 2019,” and
“object to the amount claimed because Plaintiff’s submitted invoices come nowhere
close to this amount.” See Doc. 237 at 4. This objection was resolved by Plaintiff’s
supplemental filing with additional invoices. See Doc. 242-1.
2. Reasonableness of Lawyer Rates
Plaintiff asks for rates of compensation ranging from $230 per hour for an
attorney with 2 years of experience, to $365 per hour for an attorney with 14 years
of experience. See Doc. 244 at 6. Defendants argue that these hourly rates are
unreasonable. They are not. The Court takes the 12 non-exhaustive factors from
Beal Bank in turn.
The first factor, complexity of the case, weighs in favor of Plaintiff. Although
at first blush a simple contract dispute, the controversy expanded to litigation about
Jarvis’s activities as an employee, his marketing of a novel financial product, the
valuation of new clients, discovery-related misconduct, and Defendants’ multimillion-dollar counterclaim for fraud.
The second factor, the learning and labor required to properly litigate the case,
also weighs in favor of Plaintiff. This was not the typical employment action. The
trial was brief, and the discovery was not particularly complicated. But the case
involved complex financial arrangements, a very complicated employment
agreement, and multiple expert witnesses on both sides. Only lawyers who
specialized in financial and business litigation would be able to handle this case.
The third factor, the time spent, weighs heavily in favor of Plaintiff. Plaintiff
spent 2,417.65 hours litigating this case. See Doc. 244 at 10. Tim Cleveland and
Marcus Maples, the lead attorneys for Plaintiff, claim 703 and 321 hours
respectively. That is a substantial investment of time. But it is small enough to
establish that Plaintiff’s lawyers handled the case economically and efficiently.
Especially considering Defendants’ multi-million-dollar counterclaim, this case
could have justified a much greater investment of lawyer time.
The fourth factor is the professional experience and quality of the attorneys
involved. This factor also favors Plaintiff. Plaintiff did not hire attorneys with many
decades of experience, but he did hire accomplished ones. After graduating from the
University of Texas School of Law with honors, Tim Cleveland practiced civil
litigation for eleven years before beginning this case. He is one of the founding
partners of the law firm Cleveland Terrazas LLP. Marcus Maples is a shareholder
at Baker Donelson, one of the biggest law firms in Alabama. Further, their cocounsel Murrell, Krist, and Arbuckle are all highly qualified attorneys. The Court
was impressed with the trial performance and briefs of all counsel, including
The fifth factor is the weight of the responsibilities. This factor weighs in
favor of Plaintiff. The entire case was handled by one small team of attorneys from
beginning to end over a period of three years. This small team handled every facet
of the litigation including discovery, motions practice, and trial. This case saw
voluminous filings, including substantial spoliation motions and a flurry of
evidentiary filings prior to trial. The weight of the responsibilities on Plaintiff’s
attorneys was significant.
The sixth factor is the measure of success achieved and it weighs in favor of
Plaintiff. Plaintiff’s counsel successfully argued that Defendants’ counterclaims
were without merit and prosecuted the case against Defendants for breaching their
contract with Jarvis. Although Plaintiff’s counsel did not successfully recover any
severance damages, they did obtain deferred salary payments and the balance of the
promissory note for their client.
The seventh factor is the degree to which Plaintiff’s counsel incurred expenses
in their representation. This factor also weighs in Plaintiff’s favor. This matter was
litigated for three years and, although the trial was over in a matter of days, Plaintiff’s
counsel incurred great expense in preparation. Plaintiff’s counsel retained the
services of expert Gary Bowers at the cost of $300 per hour. See Doc. 145-2 at 2. At
this rate, Gary Bowers prepared an expert report, attended his deposition, and
traveled some distance to be present for a trial at which he testified. Plaintiff’s
counsel also compensated court reporters for multiple depositions in portions
ranging up to nearly $7,000. See Doc. 231-4 at 21. This trial was not a cheap affair
for Plaintiff’s counsel.
The eighth factor, whether the fee is contingent or set, also weighs in favor of
Plaintiff. In instances where a plaintiff has been given a substantial trial award and
the plaintiff’s attorney has a contingent fee agreement, it sometimes makes sense to
reduce the rate at which the attorney is compensated by an independent award of
attorney’s fees. See, e.g., Rothenbecker v. Astrue, 764 F. Supp. 2d 697, 698 (M.D.
Pa. 2011)(holding that an attorney’s fee award in a successful litigation would be
reduced because the attorney was already due to receive an amount under the
contingent fee agreement that worked out to twice his normal hourly rate). In this
case, there is no contingent fee agreement.
The ninth factor is the length of the attorney-client relationship and, once
again, this factor favors Plaintiff. This litigation was not short. The original action
was filed in June of 2017 and the attorneys were still filing objections and responses
as recently as one month ago. The case found its way to multiple judges and motions
were filed at every stage of the litigation. The average length of civil cases in federal
district courts across the United States is 10 months. See IN RE: COVID-19 Business
Interruption Protection Insurance Litigation, MDL-No.-2942, Doc. 457 at 16. This
case lasted 56 months and Plaintiff’s attorneys were at their client’s side the entire
time. See Docs. 1 and 277.
The tenth factor is the amount of money customarily charged in the locality
for similar legal services. The hourly rates requested here are well within the range
of rates that have been approved in this district before. See United States ex rel.
Foley v. Mitchell, 2019 WL 6134159, at 2–3 (M.D. Ala. 2019) (approving rates up
to $650 per hour); Shultz v. Aetna Life Ins. Co., 398 F. Supp. 3d 1188, 1195–1196
(M.D. Ala. 2019) (approving rates of $350 per hour); Hayden v. Vance, 2016 WL
4157362, at *3 (M.D. Ala. June 28, 2016), report and recommendation adopted,
2016 WL 4180971 (M.D. Ala. Aug. 4, 2016), aff'd, 708 F. App'x 976 (11th Cir.
2017) (approving $200 per hour for an attorney with 6 years of experience to $400
per hour for an attorney with 36 years of experience).
The eleventh and twelfth factors, the extent to which this representation
precluded others and any time restrictions Plaintiff put on representation, favor
Defendants. Although the representation continued for three years, there is no
evidence that the time commitment of Plaintiff’s counsel was so extensive at any
time that they were precluded from taking on other matters. Similarly, there is no
evidence that Plaintiff put any time restrictions on representation by counsel.
Nearly all these factors favor the conclusion that the rates requested by
Plaintiff are reasonable.
While the section of Defendants’ brief dealing with
unreasonable rates mentions all of Plaintiff’s counsel, the light green highlights on
the invoices, meant to indicate unreasonable rates, focus their attention almost
entirely on Jade Sipes. The Court will assume that this is meant as a more focused
attack on the reasonability of her rates. More than a dozen of Sipes’ time entries are
highlighted. Jade Sipes is an eighth-year associate attorney at Baker Donelson. In
2012, she graduated summa cum laude from the University of Alabama School of
Law as a member of the Order of the Coif, a Hugo Black Scholar, and a Senior Editor
of the Alabama Law Review. She then clerked for the Honorable Emmett Ripley
Cox, Senior Judge of the United States Court of Appeals for the Eleventh Circuit.
Since then she has built a practice that focuses on financial matters stemming from
complex federal statutes. It is the opinion of this Court that the rates requested by
Ms. Sipes, as well as the rest of Plaintiff’s counsel, are reasonable.
3. Reasonableness of Paralegal Rates
There are three controversies regarding the rates of paralegals.
Defendants argue that the $200-230 hourly rate sought by Baker Donelson for its
paralegals is unreasonable. Second, Defendants argue that the compensation of the
younger Cleveland Terrazas attorneys, who did not obtain pro hac vice admission to
practice in the Middle District, should be set at paralegal rates. Third, Defendants
argue that Plaintiff may not charge for work done by clerks.
Defendants’ point concerning the paralegals of Baker Donelson is well made.
The attached affidavit of Doe Dorsey, the Director for Region II of the Alabama
Association of Paralegals, affirming that $90-100 is a reasonable rate for paralegals
in the Montgomery legal market, seems as authoritative a source as any. See Doc.
237-4 at 3. Plaintiff, on the other hand, makes no attempt to point to any affidavits
of his own. Plaintiff merely states that, if the Court is inclined to agree with
Defendants, then the reduction should only be to the $125 hourly rate agreed to in
Shultz v. Aetna Life Ins. Co.. See Doc. 244 at 10. What Plaintiff fails to acknowledge
is that the paralegal rate agreed to in Shultz was not contested and the court undertook
no analysis of the question. The parties agreed to the rate of $125 per hour
beforehand and the court merely chose not to disturb this agreement. See Shultz, 398
F. Supp. 3d at 1195–1196 (M.D. Ala. 2019) (noting that “the parties agree that
Claudette Fowler, a paralegal, is entitled to a rate of $125 per hour”). Doe Dorsey’s
affidavit is the Court’s only source of information on the question of paralegal rates
and therefore the Court holds that the rate of compensation for Baker Donelson’s
paralegals will be reduced to $100 per hour.
Although neither party mentions the names of the Baker Donelson paralegals
at issue, the only name from the Baker Donelson invoices that was omitted from the
attorney rate argument is Debbie Caitlin. The Baker Donelson firm website lists
Debbie Caitlin as a paralegal.2 During this litigation, Ms. Caitlin’s time was billed
at no fewer than four different rates. Her time was billed at $205 per hour, $210 per
hour, $220 per hour, and $0 per hour, among others. In order to bring these various
rates into conformity with the $100 rate, charges connected to Ms. Caitlin are due to
be reduced by a total of $2,054.
The second question relating to paralegals is Defendants’ position that three
young associates employed by the Cleveland Terrazas law firm ought to be
Professionals – Debbie Caitlin, https://www.bakerdonelson.com/debra-g-catlin (last visited December 22, 2020).
compensated at paralegal rates because they were not admitted pro hac vice to the
bar of the Middle District of Alabama. See Doc. 243 at 2. Plaintiff responds that all
of Defendants’ cases are federal, and consequently inapposite, but has failed to cite
any cases from the state of Alabama. See Doc. 244 at 8.
The six federal cases cited by Defendants are inapposite. In four of them, the
federal court is attempting to interpret the Equal Access to Justice Act, a federal
statute relating to Social Security. See Callaway v. Acting Comm’r of Soc. Sec., 802
Fed. Appx. 533 (11th Cir. 2020); Zech v. Comm’r of Soc. Sec., 680 F. Appx. 858
(11th Cir. 2017); Burton v. Berryhill, 2017 U.S. Dist. LEXIS 157032, 8-9 (S. D. Ala.
2017); Flournah v. Comm’r of Soc. Sec., 2017 U.S. Dist. LEXIS 81601, 3-5 (M.D.
Fla. 2017). In one, a federal court is interpreting a different federal statute but cites
only cases where federal courts were interpreting the EAJA. See Senn. Bros. v.
Heavenly Produce Palace LLC, 2020 U.S. Dist. LEXIS 78257 (S. D. Ga. 2020). In
the last case, the attorney in question had not been admitted to any bar at all. See
Laube v. Allen, 506 F. Supp. 2d 969, 988 (M.D. Ala. 2007).
In any event, the Court is not convinced that federal caselaw is controlling as
to Plaintiff’s right to fees under Alabama law. As the Eleventh Circuit explained in
Trans Coastal Roofing Co. v. David Boland, Inc., 309 F.3d 758, 760 (11th Cir.
2002), when a claim for attorneys’ fees sounds in state law, the substantive law of
the forum state must be applied. Here, the claim for attorneys’ fees sounds in state
law as it is part of a contract. And there is nothing about the Alabama test for the
reasonableness of an attorney’s fees that would require the attorney to be a
member—pro hac vice or otherwise—of the bar of the court where the litigation took
place. The work performed by Krist, Arbuckle, and Murrell is the type of work that
is customarily performed by associate attorneys. And the Court finds that the rates
requested for Krist, Arbuckle, and Murrell are reasonable and appropriate.
The third and final cotroversy seems to be a terminological misunderstanding.
Although Defendants argue that Plaintiff’s counsel, specifically Cleveland Terrazas,
cannot recover for work done by office clerks, Plaintiff has clarified that this firm
uses their clerks as paralegals and that they complete work normally assigned to
paralegals, such as intensive discovery review. See Doc. 244 at 9–10. Because
Cleveland Terrazas seeks only $85 per hour for this paralegal work, the rate is
acceptable. See Doc. 231-4 at 34.
4. Reasonableness of the Number of Hours Spent
In Defendants’ brief, they ask for reductions in Plaintiff’s billed hours because
they were spent unsuccessfully disputing motions to compel, were recorded in block
billing, lack sufficient detail, or were for some reason unnecessary. Other arguments
about the reasonableness of Plaintiff’s hours that are included solely in Defendants’
highlights are their objections to time spent on non-required tasks (lavender), zero
fees (mauve), impossible tasks (tan), excessive time (light peach), unreasonable time
(brown), withdrawn claims (teal), time billed but never used (hunter green), time
spent on spoliation (red), and time acquired after trial (orange).
a. Motions to Compel
Defendants object to time billed by Plaintiff’s attorneys in the course of
resisting Defendants’ motions to compel. See Doc. 237 at 9. They cite Laube for
the proposition that attorneys’ fees incurred resisting motions to compel that were
eventually granted are not “directly and reasonably incurred in proving any rights
violation or in securing any form of court-ordered relief.” Laube, 506 F. Supp. 2d
at 983. Plaintiff responds that the fees were reasonable and necessary, and in any
event the employment agreement, which authorizes the fees in the first place,
mentions no limit for motions to compel. See Doc. 244 at 12.
The Court finds Defendants’ argument on this point unconvincing. First, in
Laube, the court disallowed recovery of fees incurred in filing a motion to compel,
not responding to one. Defendants’ argument that plaintiffs should not be permitted
to recover for “inflating hours by not properly responding” is much more relevant to
the holding in Laube than what the Court confronts here. The filing of motions to
compel may be frivolous because the information sought may be irrelevant. A flurry
of such motions could truly inflate billed hours. Responding to a motion to compel
on the other hand, is never inherently frivolous because some response is required
even if the motion has merit. And it does not appear to the Court that the basis for
Plaintiff’s resistance to the motions to compel was entirely frivolous. It also seems
that a principle underlying Defendants’ argument here is that the reimbursement of
time spent on a motion to compel depends upon its success. This is not true.
Reimbursement under the contract depends only upon success on the merits, and
b. Block Billing Is Compensable in Alabama
Defendants argue that block billing is not permissible, again citing Laube.
Plaintiff replies again that Defendants may not overcome his fee requests using
federal law when state law governs this case. Plaintiff’s block billing is
unproblematic in the state of Alabama as long as Plaintiff has provided enough detail
for a court to assess the fees. See Harris v. Capell & Howard, P.C., 280 So. 3d 419,
427 (Ala. Civ. App. 2019)(holding that, even in an instance where a contract
specifically called for detailed billing, block billing was permissible as long as there
was sufficient detail for assessment by a trial court). In this case, Plaintiff provided
a great deal of detail for each block billing entry. Even in the block billing entries
cited by Defendants, presumably the most vulnerable ones, Plaintiff goes into detail
discussing research for a Daubert motion and which section of a summary judgment
motion was being revised. See Doc. 237 at 12–13. These entries are compensable.
c. Entries Lacking Sufficient Detail
Defendants make two arguments that some of Plaintiff’s time entries are
impermissibly vague. First, Defendants argue that Plaintiff has excessively redacted
his time entries such that the Court cannot properly determine if the time is properly
compensable. Second, Defendants argue that there are unredacted entries which
provide too little detail for the Court to properly assess their merit. See Doc. 237 at
11–12. Plaintiff responds that none of his billing is vague and that redactions were
necessary to protect attorney-client privilege. See Doc. 244 at 11–12.
In order to decide the matter, the Court ordered Plaintiff to submit all his
invoices directly to the Court for in camera review. See Doc. 247. After a thorough
review of all redacted entries, the Court concludes that all but one entry are
sufficiently detailed to be compensable. On March 6, 2019, Marcus Maples spent
12 minutes on correspondence that does not appear related to this case. Therefore,
a corresponding reduction of $70 is appropriate.
Defendants attack many non-redacted entries on the grounds that they do not
provide requisite detail. Most of Defendants’ attacks miss the mark. There are six
entries, however, that will be justifiably subtracted. Four of these entries merely
record attorneys paying attention to things. On September 16, 2019; January 7,
2020; February 9, 2020; and March 17, 2020 Plaintiff’s counsel charged a total of
$315 dollars for paying attention to things. These include “attention to discovery
issues,” “attention to case issues,” and “attention to pretrial issues.” These entries
are not detailed enough to understand. Accordingly, Plaintiff’s fees will be reduced
Defendants also highlight a number of Plaintiff’s entries that state only that
counsel was preparing for trial. Trial preparation is an inherently compensable
activity. The Court could not reasonably expect a billing record to identify every
rehearsed line, every strategic contingency, and every reread document. See, e.g.,
Lenihan v. City of New York, 640 F. Supp. 822, 826 (S.D.N.Y. 1986)(holding that,
given the context added by nearby entries that show what was being prepared for,
entries including “preparation for trial” are compensable); see also Royal
Bahamian Ass'n, Inc. v. QBE Ins. Corp., 2011 WL 13220459, at *10 n.8 (S.D. Fla.
May 18, 2011), report and recommendation adopted, 2011 WL 13220497 (S.D.
Fla. June 20, 2011) (suggesting that the court would be inclined to sustain the
compensability of entries including “trial preparation” based on cases including
Another two entries will be struck because they involve no attorney or
activity. They say only “Arsenal matter: other.” These two entries, one with no date
but presumably December 31, 2019, and one with a date range between September
1 and 30, 2019, will be struck for a reduction of $132.29.
d. Work on Withdrawn Claims
Defendants argue in their briefs that time spent preparing a response in
opposition to their motion for summary judgment was unnecessary because Plaintiff
did not file a response in opposition. See Doc. 237 at 14. Because Plaintiff has not
chosen to contest this argument, it is deemed conceded. See generally Doc. 244.
The five related entries totaling $6,000 that were mentioned in Defendants’ brief
will be deducted from Plaintiff’s recovery.
Defendants’ highlighting expands this argument substantially. There are nine
total entries that are highlighted in teal, the color associated with the withdrawn
claims. Of these nine, Defendants specified only five in their brief. One of the
remaining four is very similar to the first five; Matthew Murrell is found billing time
for research and analysis to prepare a summary judgment response that was never
filed. Although this entry was not specified by Defendants in their brief, the Court
finds that Plaintiff’s concession of time entries that involve work on an unfiled
response in opposition ought to extend to this one. This results in an additional
reduction of $1,150.
The final three teal highlights also relate to withdrawn claims but in a different
context. On December 20, 2019, and January 2, 2020, Plaintiff’s counsel worked
on a motion to nonsuit the claims mentioned in Defendants’ motion for summary
judgment, and then reviewed the Court’s order granting that motion. Because this
motion was filed, the attorneys’ fees incurred in its preparation are recoverable.
Although the Court assumes Defendants’ implicit highlight argument is that
anything related to those claims should be struck because the claims themselves were
not meritorious, the motion to nonsuit claims appears to the Court more like a
strategic concession than an admission of frivolity.
The final teal highlight is found on March 3, 2020. This was for time spent
reviewing a court order granting a joint motion for the dismissal of counts brought
by both parties. Whatever logic there might have been in arguing that Plaintiff’s
withdrawal of claims can be equated to an admission of frivolity is certainly less
present in a context where the motion is a joint one and the filing was prompted by
e. Fees Relating to Spoliation
Both parties agree in their briefs that it is not appropriate for Plaintiff to
recover fees incurred defending against spoliation or the final deposition of Julia
Stuart. See Doc. 237 at 4 & Doc. 231 at 1–2. Plaintiff estimates that he incurred
charges of $35,930.53 in connection with the spoliation issue and writes in his costs
submission that he has already subtracted that sum from his requested attorneys’
fees. However, the invoices from Baker Donelson and Cleveland Terrazas still
included some charges related to spoliation. Defendants highlighted these charges
in red for the benefit of the Court. They are the same amount—$35,000—that
Plaintiff has conceded is due to be subtracted from the amount due and has not
included in his total demand.
f. Excessive Time Spent
The next category of implied argument from the highlighted invoices is
excessive time. Entries that Defendants believe are excessive received light peach
highlights. There are seven total entries that are highlighted in light peach but only
one is due to be reduced for excessive time.
On September 22, 2017, Debbie Caitlin spent 36 minutes reviewing two
orders and emailing one of them to Tim Cleveland. As the orders are a combined
eleven lines of text, see Docs. 20 and 21, 36 minutes is too long to spend reading
them and emailing one of them to someone. This entry will be reduced to 24
minutes. After taking the reduction in Caitlin’s paralegal rate into account, this entry
will be reduced by $75.
On August 29 and 30, 2017, Caitlin spent 30 minutes checking the court
docket and drafting a notice of appearance for Marcus Maples. This is an acceptable
period of time to review a docket and draft a court filing; even the simplest filings
require the consultation of local rules and the location of a template. On January 31,
2020, Marcus Maples logged three entries totaling 30 minutes for the review of
correspondence, two filings, and a court order. This is an acceptable duration for
those tasks. Finally, on September 20, 2019, Marcus Maples billed 12 minutes for
the receipt and review of a notice of appearance. This is an acceptable amount of
time in which to review a court filing.
g. Impossible Entries
On November 14, 2019 Marcus Maples billed time for analyzing whether to
make a jury demand. This entry was given its own section in Defendants’ brief and
is the only one that has been highlighted in tan for impossibility. Rule 38(b)(1) of
the Federal Rules of Civil Procedure provides that a party may demand a jury no
later than 14 days after the last pleading is served. In this case, all pleadings had
been served well over 14 days before November 14. Therefore, Maples’ analysis
was futile and will be discounted for a reduction of $70.
h. The Purple Entries
There are three shades of purple on Defendants’ table of highlights: mauve,
lavender, and a faded periwinkle. According to the color legend provided by
Defendants, the mauve stands for zero fees, the lavender for time not required in the
case, and the faded periwinkle for time billed but attributable to another case.
However, the only shade of purple that appears in Plaintiff’s invoices is decidedly
The Court begins with entries related to another case, which should appear
highlighted in faded periwinkle.
Defendant has pointed to, and Plaintiff has
conceded, two such entries. However, these two entries are highlighted in blue. See
Doc. 231-5 at 121. As Defendants have not provided the Court with any other
concrete examples of entries related to a different case, and there are no entries
highlighted in faded periwinkle, the final reduction for this category is $2,485.
Now come two additional layers of complexity. First, as the Court was unable
to pinpoint entries highlighted in lavender, it will test all entries highlighted in mauve
for reductions based on both “zero fees” and “time not required.” Second, it is
unclear what is meant by either of these categories. While “time not required” is
presumably meant to refer to time that is not required, this does not tell the Court
why it isn’t required; this is the point of objecting to attorneys’ fees. The Court
therefore turns to the content of the highlighted entries to derive the purpose of the
Nearly every single one of the mauve highlights relates to the same activity:
Marcus Maples’ drafting of an expert report where he attests to the appropriate level
of attorneys’ fees for this case. The peculiar thing about these entries is that they
occurred well before Plaintiff was awarded any attorneys’ fees. Under Defendants’
“zero fees” category, the objection might be that this work was done at a time when
zero fees had been awarded, thus rendering it unnecessary. This same argument
works for the “time not required” category. In either case, the Court disagrees. The
fact is that Plaintiff has now been awarded attorneys’ fees as a consequence of
prevailing on the merits. It was necessary for him to support his request for fees
with a report by someone familiar with rates in this locality. Marcus Maples’ report
completes that requirement. When he wrote it is of little import.
i. Time Billed but Never Used
While it is unclear what is meant by the phrase “time billed but never used,”
and the hunter green shade is difficult to differentiate from the wintergreen shade
used for “improper rate” on the invoices, there does appear to be one entry that
qualifies. On August 6, 2019, Marcus Maples logged that he received and reviewed
correspondence from Tim Cleveland and drafted a response. However, the entry
reflects that he billed zero minutes for this work and thus charged zero dollars.
Defendants could not have intended this entry to fall under the “improper rate”
category because there was no time to be billed at any rate. The objection seems to
be that Maples created a billing entry but never actually entered time in it. To the
extent that Defendants object to being charged zero dollars, and it appears they do,
their objection is denied as moot.
j. After Trial Acquired Time
According to Defendants’ color legend, entries that log “time acquired after
trial” are highlighted in burnt orange. Once again, determining precisely which
highlights fall into this category is complicated by the fact that one color might mean
one thing on the color legend and another thing on the invoices and the invoices may
even disagree with each other. According to the color legend, red connotes entries
that are related to spoliation and burnt orange connotes “time acquired after trial.”
Both colors appear on the Cleveland Terrazas invoices in contexts that match the
objections specified by the color legend. However, on the Baker Donelson invoices,
there are no red highlights and the burnt orange highlights, instead of connoting time
acquired after trial, appear on dozens of entries relating to spoliation. Only four of
the burnt orange entries from the Baker Donelson invoice were logged after the
conclusion of the trial, and therefore would qualify for time acquired after trial.
However, as these are all related to defending Julia Stuart’s second deposition, and
have therefore been conceded by Plaintiff and subtracted by the Court, the Court
turns its attention exclusively to those highlights appearing in the Cleveland Terrazas
A further complication is that, even within the five highlighted entries in the
Cleveland Terrazas invoice that qualify for this category by the context of their
narratives, there are two competing shades of orange. One is the same burnt orange
that appears in the Baker Donelson invoices and on the color legend, and the other
is a light marigold color. However, unlike the different shades of green and purple,
there are no other shades of orange provided on the color legend, and all entries
related to spoliation in the Cleveland Terrazas invoices are correctly colored red.
Therefore, although some entries are a different shade of orange, there is nothing
else they could be.
The first two, both highlighted marigold, were logged on February 22 and 23,
2020, and they have the same narrative: prepare for trial. By highlighting these,
Defendants seem to imply that Plaintiff logged time for trial preparation after the
trial had completed. However, while most of the trial had concluded by February
22, its last day was February 26. As the Court has discussed above, “prepare for
trial” is sufficient narrative detail and such an entry is permissible until the last day
of trial has concluded– there was a great deal to prepare for on the last day, including
Of the other three, all highlighted burnt orange, two occurred on August 21
and a third on August 25, 2020. After the Court issued its opinion in this case,
Cleveland Terrazas logged a total of four hours and thirty-six minutes over eight
entries analyzing the opinion and conversing with Plaintiff about it. Only three of
these entries were highlighted. These three entries amount to one hour spent by
Cleveland Terrazas attorneys analyzing the Court’s decision and discussing it with
their client. The implication seems to be that Plaintiff’s counsel should only have
needed three hours and thirty-six minutes to discuss the order with their client. The
Court finds that, considering the length and complexity of the opinion and order,
four hours and thirty-six minutes is a reasonable amount of time. The final three
entries are acceptable.
k. PACER and Westlaw Expenses
Defendants argue, citing Hayden, that PACER and Westlaw research fees are
not compensable. See Doc. 237 at 16–17. Plaintiff responds that Hayden is a federal
case and that no such limitation on Plaintiff’s attorneys’ fees ought to exist. See
Doc. 244 at 13.
As explained above, the governing law in this case is state law. There is no
Alabama case that this Court could find that limits internet research in this way.
Indeed, on at least one occasion, the Alabama Supreme Court has refused to limit it
so. See Perdue v. Green, 127 So. 3d 343, 400 (Ala. 2012) (holding that, in spite of
Appellant’s claim that Appellees’ itemized Westlaw searches included topics
unrelated to the case, such search activity was reimbursable). The Court finds that
expenses incurred by Plaintiff on Westlaw and PACER were reasonable.
l. Plaintiff’s Overall Number of Hours Is Reasonable
Defendants decry Plaintiff’s hours spent on the litigation as excessive and
unreasonable. See Doc. 237 at 9. This argument is borderline frivolous. Plaintiff
spent a total of 2,417.65 hours litigating this complicated business dispute, which
garnered him over a million dollars in compensatory damages. By contrast,
Defendants claim to have spent 600 hours litigating spoliation alone. Moreover,
Plaintiff’s lawyers were not only seeking damages for their client; they were also
engaged in a lengthy defense against Defendants’ vigorously litigated multi-milliondollar counterclaim accusing Plaintiff of fraud.
Two of Defendants’ points have been explicitly conceded by Plaintiff. First,
Defendants argue that the interest accrued on salary, bonuses, and the promissory
note is to be calculated using simple interest and not compound interest. They argue
that, in total, the interest owed to Jarvis on all payments is a sum of $184,825.24.
See Doc. 237 at 19–20. Plaintiff concedes both that simple interest should be used
and that the current owed amount is $184,825.24. See Doc. 244 at 13.
Second, Defendants argue that a reduction is warranted because attorney
Marcus Maples included two charges that appear related to a different case. See
Doc. 237 at 15. Plaintiff concedes that this is true and that the charges should be
struck. See Doc. 244 at 12–13.
The Court awarded Defendants their fees and costs associated with addressing
Plaintiff’s spoliation of certain evidence. Defendants seek $179,800.78 in attorneys’
fees related to spoliation. See Doc. 236 at 1.
Plaintiff makes two arguments for reducing the fees claimed by Defendants.
First, Plaintiff argues that Defendants spent an unreasonable amount of time
litigating the matter of spoliation. Second, Plaintiff enumerates entries that do not
sufficiently relate to spoliation for them to be awarded to Defendants.
1. Unreasonable Amount of Time Spent on Spoliation
Plaintiff argues that 633 hours is an unreasonable amount of time for
Defendants to have spent on spoliation. Plaintiff argues that this is facially
unreasonable because the bill for these hours is nearly 30% of the total amount
Plaintiff is billing for a litigation that stretched over three and a half years. See Doc.
236 at 2. Plaintiff argues further that the number is unreasonable given that
Defendants spent no meaningful time on the issue outside of their initial motion for
sanctions; they did not file a reply brief to Plaintiff’s response to their motion for
sanctions and they spent “less than an hour of their day-and-a-half long cross
examination of Plaintiff exploring the spoliation issue.” Id.
The Court will reduce the number of compensable hours by 20%. See Mock
v. Bell Helicopter Textron, Inc., 456 F. App'x 799, 802 (11th Cir. 2012)(holding
that a district court had not abused its discretion where it reduced fees by 20% after
finding a “significant amount of redundancy and duplication…and indivisible
block billing [that left it] with a strong and abiding sense that the time and cost
claimed is simply too large.”). The Court acknowledges that the spoliation issue in
this case was a protracted one that required the hiring of a forensic specialist and
the expenditure of a great deal of time. And Defendants’ expenditure of time on
this issue was, in many ways, Plaintiff’s own fault. As the Court explained in its
memorandum opinion, Plaintiff provided shifting and inconsistent testimony about
why documents were destroyed that left this issue unresolved up until, and even
after, the trial. That said, however, Plaintiff is correct that 633 hours is not a
reasonable number of hours for a lawyer to spend on a single, non-dispositive
discovery issue. See Doc. 91. See e.g. Campos v. City of Blue Springs, Mo., 289
F.3d 546, 553 (8th Cir. 2002) (holding that “in our view, it should not take four
experienced, highly paid attorneys 480 hours to prepare one summary judgment
motion and to prepare for and conduct a four-day trial”). Six hundred and thirtythree hours is almost 16 weeks or 4 months of fulltime work: it is a facially
unreasonable number of hours to spend on an issue like this. See, e.g., Keegan v.
Am. Honda Motor Co, Inc., 2014 WL 12551213, at *25 (C.D. Cal. Jan. 21, 2014)
(holding that “the legal issues simply could not have been so challenging” that
class counsel needed to spend 944.6 hours on a class certification motion). The
Court holds that the final fee for spoliation related activities will be reduced by
2. Individual Activities in Relation to Spoliation
Plaintiff puts forth a number of examples from Defendants’ list of charges and
argues that they are not sufficiently related to spoliation to warrant inclusion. The
Court agrees in part.
Although block billing is permitted, an entire block may not be compensated
where only spoliation work is recoverable. Plaintiff argues that the February 21,
2019 entry should be reduced because it includes “review of spreadsheets.”
Defendants agree and concede that it should be reduced by 2 hours ($599.25). See
Doc. 245 at 2. Plaintiff argues that the block on February 27, 2019 should be reduced
as the narrative contains the phrase “prepare motion for summary judgement.” Doc.
232-2 at 2. Defendants agree that the February 27 entry should be reduced by 3
hours ($899). See Doc. 245 at 2. As the first deposition of Julia Stuart was not
focused exclusively on issues of spoliation, the April 4, 2019 travel bill for her
deposition will be reduced by a third ($900). See id. As spoliation was not the
central focus of Stephanie Matlock’s deposition, the May 3 and May 6, 2019 bills
for defending her deposition will be reduced by half ($1,515). Id. at 3. The June 11,
2019 bill including time spent on the preparation of conversion claims will be
reduced by a third ($620) as conversion is unrelated to spoliation. Id. at 6. The June
12, 2019 bill including time spent drafting a motion for summary judgment will be
reduced by half ($975). Id. The July 29, 2019 bill that includes the drafting and
filing of a motion for leave to file an amended counterclaim will be reduced by half
($640). Id. at 9. The January 31, 2020 bill involving the preparation of pleadings
and disclosures for trial will be reduced by half ($260). Id. at 13. Finally, Plaintiff
argues that the February 3, 2020 bill that included time spent on replies to objections
to the exhibit and witness lists, as well as reviewing the expert disclosure of John
Mastin, should be reduced. Defendants agree that this entry should be reduced by 8
hours ($2,399). Id.
In total, Defendants are due to have their original request of $179,800.78
reduced by $8,807.25 from bills that are unrelated to spoliation. The subsequent
total of $170,993.53 is due to be reduced by an additional 20% ($34,198.06) to bring
the charged time into line with a reasonable amount of hours expended litigating a
non-dispositive discovery issue. In total, Defendants are due $136,794.93 for their
time spent litigating the issue of spoliation.
In summary, Plaintiff and Defendants are awarded offsetting attorneys’ fees.
Plaintiff’s hours and rates are reasonable, with the exception of the rate for
paralegals, which will be reduced to $100 per hour. The final number will also be
reduced by $12,351.29 to account for the unreasonableness of various charges and
comes to a total of $606,595.79. After offsetting the amounts owed to Defendants
for activities relating to spoliation, Plaintiff is owed a total of $469,800.86 in
attorneys’ fees. When added to the prejudgment interest of $184,825.24, Plaintiff is
owed a total of $654,626.10 in addition to other payments specified in the Court’s
memorandum opinion. This figure will be included in the final judgment.
DONE and ORDERED this day January 7, 2021.
/s/ Andrew L. Brasher
ANDREW L. BRASHER
UNITED STATES CIRCUIT JUDGE
(Sitting by designation)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?