Vision Bank v. FP Management, LLC et al

Filing 45

ORDER granting in part plaintiff's 43 Motion for Attorney Fees, and awarding attorneys' fees in the amount of $13,317.00 and costs in the amount of $350.00, for a total award of $13,667.00. Signed by Judge Callie V. S. Granade on 1/25/2012. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VISION BANK,
Plaintiff,
v.
FP MANAGEMENT, LLC; JOHN F.
CAMPBELL; MOBILE MIDTOWN
PROPERTY MANAGEMENT, LLC;
WB PROPERTY MANAGEMENT, LLC;
and MOBILE PROVIDENCE
PROPERTY MANAGEMENT, LLC,
Defendants.

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CASE NO. 1:11-cv-00003-CG-N

ORDER
This matter is before the court on plaintiff Vision Bank’s (“Vision’s”)
uncontested motion for attorneys’ fees and costs.1 (Doc. 43).
I.

FACTUAL BACKGROUND

On December 13, 2011, this court granted Vision’s motion for partial
summary judgment as to its breach of contract claims. (Doc. 39). Subsequently, on
December 23, 2011, the court granted Vision’s motion to dismiss Count Three
(Accounting and Inspection) of its amended complaint. (Doc. 42). Vision then filed
an unopposed motion for attorneys’ fees and costs on January 11, 2012. (Doc. 43).

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The defendants’ response to Vision’s motion for attorneys’ fees was due January 18,
2012. As of the date of this order, no response has been filed with the court.

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Vision seeks $13,379.50 in attorneys’ fees and $546.14 in costs. Id. Per the
terms of the promissory note executed between Vision and the defendants, Vision is
entitled to “reasonable” attorneys’ fees and costs. (Doc. 31-2, p. 8). In support of its
motion, Vision has submitted the affidavit of Frederick G. Helmsing, Jr., an
attorney at the Mobile, Alabama, law firm of McDowell Knight Roedder and Sledge,
LLC (“McDowell Knight”), and one of the attorneys of record for Vision. (Doc. 43-1,
pp. 1-3). Vision has also submitted a detailed summary report of the time spent, the
rates charged, and the specific work performed in connection with Vision’s efforts to
collect amounts due under the promissory note at issue in the case (the “summary
report”). (Doc. 43-1, pp. 4-14).
II.

COSTS

Vision seeks costs in the amount of $546.14, and has submitted an itemized
list of costs in support of its motion. (Doc. 43, p. 1), see also Doc. 43-1, pp. 12-13.
“In the exercise of sound discretion, trial courts are accorded great latitude in
ascertaining taxable costs.” Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519,
1526 (11th Cir. 1985) (citing United States v. Kolesar, 313 F.2d 835 (5th Cir. 1963)).
However, in exercising its discretion to tax costs, absent other explicit statutory
authorization, federal courts are limited to those costs specifically enumerated in 28
U.S.C. § 1920. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987).
The word “costs” is not synonymous with “expense.” Eagle Insurance Co. v.
Johnson, 982 F.Supp. 1456, 1458 (M.D. Ala. 1997). “[E]xpense includes all the
expenditures actually made by a litigant in connection with the lawsuit.” Id.

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(citations omitted). “Whereas the costs that the district court may award under Rule
54(d)(1) are listed in 28 U.S.C.A. § 1920, a district court may not award other costs
or exceed the amounts provided in § 1920 without explicit authorization in another
statutory provision.” Id. (citations omitted). Thus, the costs will almost always be
less than the total expenses associated with the litigation. Id. (citations omitted).
The court's power to tax costs is grounded in part in Rule 54(d)(1) of the
Federal Rules of Civil Procedure, which states: “Unless a federal statute, these
rules, or a court order provides otherwise, costs - other than attorney's fees - should
be allowed to the prevailing party.” Fed.R.Civ.P. 54(d)(1). Rule 54(d) gives rise to a
presumption that costs will be awarded, and the party opposing the award must
overcome this presumption. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639
(11th Cir. 1991); see also Monelus v. Tocodrian, Inc., 609 F.Supp.2d 1328, 1333
(S.D. Fla. 2009) (“When challenging whether costs are taxable, the losing party
bears the burden of demonstrating that a cost is not taxable[.]”). Section 1920 of
Title 28 authorizes a judge or clerk of court to tax six items as costs:
(1)

Fees of the clerk and marshal;

(2)

Fees for printed or electronically recorded transcripts
necessarily obtained for use in the case;

(3)

Fees and disbursements for printing and witnesses;

(4)

Fees for exemplification and costs of making copies of any
materials where the copies are necessarily obtained for
use in the case;

(5)

Docket fees under section 1923 of this title;

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(6)

Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of this
title.

28 U.S.C. § 1920. A court may not award costs that exceed those permitted by §
1920. See Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575 (11th Cir. 1988).
Upon review of Vision’s itemized list of costs, the finds that the only cost
which is taxable under § 1920 is the item marked “COURT COST 1/4/11,” which,
based upon the date, appears to be the $350.00 filing fee Vision paid when it filed
its complaint on January 4, 2011. (See Doc. 43-1, p. 12). Accordingly, Vision’s
motion is GRANTED, with respect to costs, in the amount of $350.00.

III.

ATTORNEYS’ FEES

The starting point in setting any attorney's fee is determining the “lodestar”
figure — that is, the product of the number of hours reasonably expended to
prosecute the lawsuit multiplied by a reasonable hourly rate for work performed by
similarly-situated attorneys in the community. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); see also, Norman v. Housing Authority of the City of Montgomery, 836
F.2d 1292, 1299 (11th Cir. 1988). The fee applicant bears the burden of
“establishing entitlement and documenting the appropriate hours and hourly rates.”
Norman, 836 F.2d at 1303. After calculating the lodestar fee, the court should then
proceed with an analysis of whether any portion of this fee should be adjusted
upwards or downwards. See Pennsylvania v. Delaware Valley Citizens' Council for

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Clean Air, 478 U.S. 546, 565–66 (1986); see also Pennsylvania v. Delaware Valley
Citizens' Council for Clean Air, 483 U.S. 711 (1987); Hensley, 461 U.S. at 433–34.
Where the rates or hours claimed seem excessive or lack the appropriate
documentation, a court may calculate the award based on its own experience,
knowledge, and observations. Norman, 836 F.2d at 1299.
In making the above determinations, the court is guided by the 12 factors set
out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.
1974). See Blanchard v. Bergeron, 489 U.S. 87, 91–92 (1989); Hensley, 461 U.S. at
434 n. 9. These factors are: (1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill required to perform the legal services
properly; (4) the preclusion of other employment by the attorney due to acceptance
of the case; (5) the customary fee in the community; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or 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. These Johnson factors may “be considered in terms of their influence on the
lodestar amount.” Norman, 836 F.2d at 1299.
(1)

Reasonable Rate

As the party requesting fees, Vision 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.

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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
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 and quotation marks omitted)).
Vision has submitted an affidavit from its lead counsel, Frederick G.
Helmsing, Jr., which sets forth the hourly rate for law firm partners ($220) and
associates ($175) working on the case. (Doc. 43-1, p. 2). Vision has also submitted a
detailed summary report of hours worked, featuring detailed descriptions of the
work performed. (Doc. 43-1, pp. 5-12). However, Helmsing has not identified which
partners and which associates worked on the case, and has not provided the court
with any information regarding each attorney’s experience.2 The court thus has no
way of knowing whether an associate billing at $175 per hour is in his or her first
year of practice, or instead has several years of litigation experience under his or
her belt. Furthermore, the billing rates that appear on Vision’s summary report

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Working backwards from the hourly rates listed on the summary report, the court
concludes that the partners (identified by initials only) are “JSH,” “FGH” (presumably
Helmsing), and “ATR” (presumably Archibald T. Reeves). The court also concludes that the
associates (again, identified by initials only) are “RBM” and “JML.”

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indicate that associates were billed at $185 per hour, and not $175 per hour, as
indicated in Helmsing’s affidavit. Id.
Based on the court’s experience, knowledge, and observations, as well as a
review of prior awards, the court finds that the $220 hourly rate for the partners is
reasonable, but finds that the $175 hourly rate for the associates is unreasonable,
given the lack of information regarding their experience, and accordingly sets the
associate rate at $150.00 per hour. Compare Wells Fargo Bank, N.A. v. Williamson,
2011 WL 382799, *4 (S.D. Ala. Feb. 3, 2011) (finding that a rate of $225 per hour is
reasonable for a law firm partner with an indeterminate amount of experience); see
also Vision Bank v. Anderson, No. 10-0372-KD-M, 2011 WL 2142786, *3 (S.D. Ala.,
May 31, 2011) (DuBose, J.) (finding $150.00 to be a reasonable rate for a “junior
associate” with an indeterminate amount of experience).
Additionally, five other individuals, “RAN,” “DCC,” LCK,” “ALB,” and “PCH”
also billed fees in this matter, each at a rate of $110 per hour. (Doc. 43-1, pp. 5-12).
No information has been given about these individuals or in what capacity they
performed. The court presumes that these people are paralegals, based upon their
hourly rate and the description of their work contained in the summary report. See
(Doc. 43-1, pp. 5-12). The court notes that Helmsing’s affidavit should have
provided more information regarding the paralegals and their relative experience.
Nevertheless, the court finds that an hourly rate of $110 is a reasonable rate for a
paralegal. Transmontaigne Product Servs., Inc. v. Clark, 2010 WL 3171656, *1

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(S.D. Ala. Aug. 10, 2010) (Granade, J.) (finding an hourly rate of between $120.00
and $130.00 was a reasonable hourly rate for a paralegal).
(2)

Hours Reasonably Expended

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 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).
Vision seeks to recover for 65.40 hours of time from September 2010 through
December 2011. (Doc. 43-1, p.. 5-12). These hours appear to be, based upon the
detailed descriptions provided in the summary report and the court’s experience,
knowledge and observation, reasonable for the amount of work involved in
prosecuting a breach of contract action through summary judgment, and are
therefore allowed.
C.

LODESTAR CALCULATION

The lodestar calculation for the McDowell Knight partners is 54.1 hours x
$220 per hour = $11,902.00. For the McDowell Knight associates, the lodestar

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calculation is 4.3 hours x $150 per hour = $645.00. For the paralegals, the lodestar
calculation is 7 hours x $110 per hour = $770.00. The total lodestar amount is
$13,317.00.
CONCLUSION
For the reasons stated above, the court finds that Vision is entitled to an
award of attorneys’ fees in the amount of $13,317.00 and costs in the amount of
$350.00, for a total award of $13,667.00.
DONE and ORDERED this 25th day of January 2012.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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