BP Products North America Inc v. Merritt Oil Company, Inc. et al

Filing 48

ORDER granting in part 46 Motion for Attorney Fees. BP Products is awarded a total of $26,219.30, which is the sum of reasonable attorneys' fees in the amount of $26,213.50 and expenses in the amount of $5.80. Signed by Judge Kristi K. DuBose on 10/14/2011. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BP PRODUCTS NORTH AMERICA INC., )
Plaintiff,
)
)
v.
)
)
MERRITT OIL CO., INC. et al.,
)
Defendants.
)

CIVIL ACTION NO. 10-00625-KD-N

ORDER
This matter is before the Court on Plaintiff BP Products North America Inc.’s Motion for
Attorneys’ Fees and Expenses (Doc. 46) and brief and evidentiary materials in support (Doc. 47).
Upon consideration, and for the reasons set forth herein, Plaintiff’s motion is due to be GRANTED
in part.
I.

Background
On September 8, 2011, the Court granted partial summary judgment in favor of Plaintiff BP

Products North America Inc. (“BP Products”) and against Defendants Merritt Oil Co., Inc. (“Merritt
Oil”) and R. Fred Walding (“Walding”) on BP Products’ breach of contract and guaranty claims.1
On September 22, 2011, with leave of the Court, BP Products filed the instant motion for attorneys’
fees and expenses. As of the date of this Order, Defendants have not responded to BP Products’
motion.2
BP Products’ motion does not identify the quantum of fees that it seeks to recover. Instead,

1

BP Products did not seek summary judgment against Defendants Richard Merritt or Richard
Blow, as this case has been stayed against them as a consequence of their having filed petitions for
bankruptcy relief. (Docs. 16, 19, 29 & 30).
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Pursuant to the Court’s partial summary judgment order, Defendants’ responses were due to be
filed by September 29, 2011. (Doc. 43 at 14).

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BP Products moves the Court for an order awarding “reasonable attorneys’ fees and expenses.”
(Doc. 46 at 1). In support of its motion, BP Products has filed a short memorandum that neither cites
the relevant law nor presents any analysis. (Doc. 47). Attached as exhibits to the memorandum are
1) an affidavit of Michelle M. Drake, Esq., an attorney at the St. Louis, Missouri law firm of
Greensfelder, Hemker & Gale, P.C. (“Greensfelder”), which represents BP Products in this matter
(Doc. 47-1); 2) biographical information for each of the attorney timekeepers at the Greensfelder
firm (Docs. 47-2 to 47-5); 3) a “Transaction Report” itemizing the services provided and time
expended by attorneys and paralegals at the Greensfelder firm (Doc. 47-6); 4) an itemized list of
services provided and time expended by Sandy G. Robinson, Esq. of the Mobile, Alabama firm of
Cabaniss, Johnston, Gardener, Dumas & O’Neal LLP, which serves as BP Products’ local counsel in
this matter (Doc. 47-7); and 5) a “Costs Report” generated by the Greensfelder firm (Doc. 47-8).
II.

Discussion
As the Court noted in its partial summary judgment order, Merritt Oil and Walding do not

challenge BP Products’ right to recover its attorneys’ fees and expenses. (Doc. 43 at 13). However,
under the terms of the various contracts between the parties, BP Products may recover only those
fees and expenses that are “reasonable.” (Id.). Accordingly, before fashioning any award, the Court
must first assess the reasonableness of BP Products’ request.
In this Circuit, courts generally apply the “lodestar” method — multiplying the hours
reasonably expended by a reasonable hourly rate — to make such an assessment. Norman v. Hous.
Auth., 836 F.2d 1292, 1299 (11th Cir. 1988). The 12 factors identified by the Court of Appeals in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), may aid the Court in
determining a reasonable hourly rate and thereby affect the lodestar analysis. (Id.). Those factors
include:

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(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.
Ass’n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359, n.1 (11th Cir. 2006) (citing
Johnson, 488 F.2d at 717-19).
Additionally, whereas this action is before the Court on the basis of diversity jurisdiction,
any fee award must be consonant with Alabama law. Under Alabama law, the factors to be
considered include:
(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 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.
Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala. 1988) (citing Peebles v. Miley, 439
So. 2d 137 (Ala. 1983)). Not all of these criteria must be met or brought into play. Graddick v. First
Farmers & Merchants Nat’l Bank of Troy, 453 So. 2d 1305, 1311 (Ala. 1984).
A.

Reasonable Rate

As the party requesting fees, BP Products has the burden of supplying the Court with specific
and detailed evidence from which the Court can determine the reasonable hourly rate for the work
performed by its attorneys and paralegals. Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d
423, 427 (11th Cir. 1999) (citing Norman, 836 F.2d at 1303). The Eleventh Circuit has instructed
that a reasonable hourly rate is “the prevailing market rate in the relevant legal community for

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similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman,
836 F.2d at 1299. In this case, the relevant legal community is Mobile, Alabama. See Barnes, 168
F.3d at 437 (“[T]he ‘relevant market’ for purposes of determining the reasonable hourly rate for an
attorney’s services is the place where the case is filed.” (citation omitted)).
Though BP Products has offered evidence of its attorneys’ educational backgrounds and
professional experience, its fee application inadequately addresses the fundamental question of
whether the hourly rates charged by its attorneys are reasonable in the Mobile market. BP Products
has not put before the Court any evidence of rates customarily charged by Mobile area attorneys in
similar cases. Instead, BP Products has offered only the conclusory opinion of a St. Louis-based
attorney who has never been admitted to practice before this Court — on a pro hac vice basis or
otherwise — that her hourly rate and those of her attorney and non-attorney colleagues “are
comparable to the rates charged by law firms for similar services in the Mobile, Alabama area.”
(Doc. 47-1 at 5, ¶ 12). However, the Court, which is familiar with the prevailing rates in the local
market, may act as its own expert and rely on its “knowledge and experience” to determine the
reasonableness and propriety of the requested fees. Loranger v. Stierheim, 10 F.3d 776, 781 (11th
Cir. 1994).
BP Products claims that the five attorneys who performed services in connection with this
case are entitled to hourly rates ranging from $160 to $280. Specifically, BP Products seeks
reimbursement at the rate of $280/hour for Sandy G. Robinson, Esq., a partner at the Cabaniss firm
with 27 years of experience; $260/hour for Cherie K Macdonald, Esq., an officer and group manager
at the Greensfelder firm with 21 years of experience; $225/hour for Michelle M. Drake, Esq., an
officer at the Greensfelder firm with 14 years of experience; $220/hour for Julia M. Voss, Esq., an
associate at the Greensfelder firm with eight years of experience; and $160/hour for Heather M.

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Mehta, Esq., a newly admitted attorney at the Greensfelder firm with no experience. (Doc. 47-1 at
2-4, ¶ 8; Docs. 47-2 to 47-5). The Court will address each attorney’s rate individually.
Relative to judicially determined rates in other cases litigated in this district, Ms. Robinson’s
stated rate of $280/hour is reasonable. Indeed, only a few months ago, another district judge
expressly held that a rate of $285/hour — $5 more per hour than Ms. Robinson’s stated rate here —
was reasonable for services that Ms. Robinson provided in a case that was similarly decided on
summary judgment. See Gulf Coast Asphalt Co. v. Chevron U.S.A., Inc., No. 09-0187-CG-M, 2011
WL 612737, at *1-2 (S.D. Ala. Feb. 11, 2011) (Granade, J.).
With the exception of Ms. Mehta’s, the Greensfelder attorneys’ rates are also reasonable
when compared to awards in other cases decided in this district. Earlier this year, in a breach of
contract case that was disposed of on the plaintiff’s unopposed motion for summary judgment (as
was the case at bar), the Court found $250/hour to be a reasonable rate for an attorney with 15 years
of experience as a law firm partner, $225/hour to be a reasonable rate for a “senior associate” with
an indeterminate amount of experience, and $150/hour to be a reasonable rate for a “junior
associate” with an indeterminate amount of experience. See Vision Bank v. Anderson, No. 10-0372KD-M, 2011 WL 2142786, at *3 (S.D. Ala. May 31, 2011) (DuBose, J.). Ms. Macdonald, Ms.
Drake, and Ms. Voss’ stated rates are similar to or less than the rates allowed in Mitchell Co. and
Vision Bank for attorneys of comparable experience, and the Court finds them to be reasonable in
this case.
However, Ms. Mehta’s rate of $160/hour is unreasonable inasmuch as it exceeds the rates
that the undersigned and other judges in the Southern District of Alabama have found to be
reasonable for junior attorneys significantly more experienced than Ms. Mehta. See, e.g., Denny
Mfg. Co. v. Drops & Props, Inc., No. 09-0214-KD-M, 2011 WL 2180358, at *3-5 (S.D. Ala. June 1,

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2011) (DuBose, J.) (finding $150/hour to be a reasonable rate for second-year associate who was
Order of the Coif, served on the Law Review of his law school, and clerked for an Eleventh Circuit
judge); Gulf Coast Asphalt, 2011 WL 612737, at *4 (finding $145/hour to be a reasonable rate for
second-year associate); Adams v. Austal, U.S.A., L.L.C., No. 08-0155-KD-N, 2010 WL 2496396, at
*6 (S.D. Ala. June 16, 2010) (Nelson, Mag. J.) (finding $150/hour to be a reasonable rate for thirdyear associate). The Court finds that, in the absence of any evidence of the attorney’s extraordinary
expertise or relevant non-legal experience, $125/hour is a reasonable rate for an associate who has
only recently graduated from law school.
Finally, the Court rejects as unreasonable the stated rate of $135/hour for Greensfelder
paralegals Michelle Byers and Mary Illig. In several recent cases, this Court has found $75/hour to
be a reasonable rate for paralegal work. See, e.g., Denny Mfg., 2011 WL 2180358, at *5; Zuffa,
LLC v. Al-Shaikh, No. 10-00085-KD-C, 2011 WL 1539878, at *9 (S.D. Ala. Apr. 21, 2011)
(DuBose, J.); Wells Fargo Bank, N.A. v. Williamson, No. 09-00557-KD-C, 2011 WL 382799, at *5
(S.D. Ala. Feb. 3, 2011) (DuBose, J.).

Whereas BP Products has not demonstrated that

Greensfelder’s paralegals possess qualifications that might merit a rate 80% greater than that which
the Court has approved consistently within the past year for other paralegals in other cases, all
paralegal time allowed in this case will be reimbursed at $75/hour.
B.

Recoverable Time

In determining whether the number of hours expended are reasonable, the Court should not
include any hours which are “excessive, redundant, or otherwise unnecessary.” Norman, 836 F.2d at
1301. When awarding an attorney’s fee, the “[c]ourts are not authorized to be generous with the
money of others, and it is as much the duty of courts to see that excessive fees and expenses are not
awarded as it is to see that an adequate amount is awarded.” Barnes, 168 F.3d at 428. The Court

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will not permit a party to recover fees for hours that are excessive, redundant, or unnecessary, i.e.,
hours “that would be unreasonable to bill to a client and therefore to one’s adversary irrespective of
the skill, reputation or experience of counsel.” Norman, 836 F.2d at 1301 (emphasis omitted).
The Court finds that the time expended by BP Products’ attorneys and paralegals was
reasonable and is recoverable. Accordingly, the Court will award BP Products a total of $26,213.503
for the following hours billed at the following rates by the following timekeepers:
Name

Reasonable Hourly Rate

Recoverable Hours

Sandy G. Robinson, Esq.

$280.00

13.0

Fee
$3,640.00

Cherie K. Macdonald, Esq. $260.00

0.4

Michelle M. Drake, Esq.

$225.00

12.3

$2,767.50

Julia M. Voss, Esq.

$220.00

88.1

$19,382.00

Heather M. Mehta, Esq.

$125.00

1.9

$237.50

Michelle Byers

$75.00

0.6

$45.00

Mary Illig

$75.00

0.5

$37.50

TOTAL

C.

$104.00

$26,213.50

Expenses

BP Products claims to have incurred expenses of $55.80 in prosecuting this action. (Doc. 471 at 6, ¶ 16; Doc. 47-8). Of that figure, $5.80 is attributed to photocopies, and the remaining $50.00
is attributed to the fee for Ms. Voss’ pro hac vice application. The pro hac vice admission fee will
be disallowed See Thompson v. Equifax Credit Info. Servs., Inc., No. 00-A-1468-S, 2003 WL
1579757, at *7 (M.D. Ala. Mar. 3, 2003) (disallowing claim for pro hac vice admission fee). The
Court approves expenses in the total amount of $5.80.

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Though counsel for BP Products has averred (without any evidentiary support) that BP Products
has paid Greensfelder a flat fee of $30,000 in lieu of paying that firm’s fees based on hourly rates,
the Court’s calculation of reasonable attorneys’ fees relies on the lodestar method because, in
Alabama, a contractual fee arrangement between an attorney and his or her client is not conclusive
evidence of a reasonable fee. Lanier v. Moore-Handley, Inc., 575 So. 2d 83, 87 (Ala. 1991).

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III.

Conclusion
In accordance with the foregoing, it is ORDERED that Plaintiff BP Products’ Motion

for Attorneys’ Fees and Expenses (Doc. 46) is GRANTED in part. BP Products is awarded a total
of $26,219.30, which is the sum of reasonable attorneys’ fees in the amount of $26,213.50 and
expenses in the amount of $5.80.
DONE and ORDERED this the 14th day of October 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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