Wells Fargo Bank, N.A. v. Friday Construction Company, Inc. et al
ORDER granting in part and denying in part  Motion for Attorney Fees; granting in part and denying in part  Motion for Reconsideration. Plaintiff is awarded $12,490.00 in attorneys' fees and $733.56 in expenses and costs against defendant, Friday and post-judgment interest shall accrue at the contractual rate of plaintiff's "prime rate" plus 5% as set out in promissory note. Signed by Judge Kristi K. DuBose on 10/31/2012. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WELLS FARGO BANK, N.A.,
FRIDAY CONSTRUCTION COMPANY,
INC., and C. THURMON BELL,
CIVIL ACTION NO. 11-00231-KD-N
This action is before the Court on Plaintiff Wells Fargo Bank, N.A.’s “(I) Revised
Motion for Award of Attorneys Fees and (II) Motion to Reconsider Denial of Post Judgment
Interest and Incorporated Memorandum of Law” (Doc. 24).
While Defendant Friday
Construction Company, Inc. (“Friday”) was given the opportunity to file a Response thereto,
(Doc. 23 at 10), no Response has been filed to date.1 For the reasons stated herein, the Court
finds that Plaintiff’s motion is due to be GRANTED in part and DENIED in part.
On March 5, 2012, the Court ruled partly in favor of Plaintiff with regard to its motion
for summary judgment against one (1) of the Defendants in this case, Defendant Friday
Construction Co., Inc., for breach of contract. (Doc. 23). In so doing, the Court specified as
follows with regard to Plaintiff’s simultaneous request for attorneys’ fees and costs:
…Plaintiff’s motion for summary judgment is only as to Defendant Friday, given
that this case has been stayed as to Defendant Bell due to his bankruptcy status.
However, Plaintiff’s attorneys’ fees and costs request does not delineate as such.
Rather, as evidenced by the Woodard Affidavit, Plaintiff seeks attorneys’ fees and
costs for the entire litigation (including work for the claims against Defendant
Defendant C. Thurmon Bell (“Bell”) is in bankruptcy and thus, this action is stayed as to him.
Bell). Additionally, Plaintiff has failed to submit any documentation in support of
the fees and costs requested in the Woodard Affidavit and motion for summary
judgment (i.e., no billing records, no information about any individuals who
worked on the case, no itemized statements, no invoices, no information as to
hourly rates of attorneys, etc.) or even assert how such fees and costs are
recoverable and under which state’s law based on the terms of the loan
documents. The Woodard Affidavit also fails to identify the names and titles of
the individuals who rendered service to Plaintiff in connection with this litigation,
or any information regarding their respective skill and experience levels. Nor does
the Affidavit contain records listing the amount of time spent on each of the tasks
with respect to which the claimed fees were incurred. Plaintiff has also failed to
address any of the reasonableness factors provided for under Alabama law. [FN6]
In sum, Plaintiff has failed to provide proper necessary documentation in support
of its request, such that the Court lacks sufficient information to conclude that the
attorneys’ fees and costs requested are reasonable. As such, that portion of
Plaintiff’s motion for summary judgment requesting fees and expenses is
Plaintiff, however, is GRANTED LEAVE to file a revised motion for attorneys’
fees and costs by March 9, 2012, attaching detailed records in support of a
reasonable attorneys’ fees and related expenses/costs award, consonant with the
applicable law in this case. Any response by Defendant Friday shall be filed no
later than March 16, 2012.
FN6:Whereas this action is before the Court on the basis of diversity jurisdiction,
any fee award must be consonant with Alabama law. The determination of
whether an attorney fee is reasonable is within the sound discretion of the trial
court and its determination on such an issue will not be disturbed on appeal unless
in awarding the fee the trial court exceeded that discretion. See, e.g., State Bd. of
Educ. v. Waldrop, 840 So.2d 893, 896 (Ala. 2002); City of Birmingham v. Horn,
810 So.2d 667, 681-682 (Ala. 2001); Ex parte Edwards, 601 So.2d 82, 85 (Ala.
1992). See also Varner v. Century Fin. Co., 738 F.2d 1143 (11th Cir. 1984). 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)).
(Doc. 23 at 9-10).
The Court also denied Plaintiff’s requested post-judgment interest rate, finding no
contractual basis to justify imposing a rate other than that provided for in 28 U.S.C. § 1961(a).
(Id. at 11). The motion at issue was subsequently filed on March 9, 2012. (Doc. 24).
a. Attorneys’ Fees & Expenses
The March 9, 2009 Promissory Note (“the Note”) provides for recovery by Plaintiff of
“reasonable expenses actually incurred to enforce or collect” on the Note, “including . . .
paralegals’, attorneys’ and experts’ fees and expenses, whether incurred without the
commencement of a suit[ or] in any trial . . . proceeding.” (Doc. 13 at 7, at “ATTORNEYS’
FEES AND OTHER COLLECTION COSTS”). Under Alabama law, it is well settled that
provisions relating to the payment of attorneys’ fees are enforceable. See, e.g., Subway Rests.,
Inc. v. Madison Square Assoc., Ltd., 613 So. 2d 1255, 1257 (Ala. 1993) (holding that “[i]n
Alabama, in state law causes of action, attorney fees are recoverable as part of the costs of the
action...when provided in a contract”); Knight v. Hired Hand Green, Inc., 775 So. 2d 218, 222
(Ala. Civ. App. 1999) (finding the plaintiff “was necessarily entitled to...attorney fee for
collection…pursuant to the clear terms of the contract”). See also, e.g., Smith v. Combustion
Res. Eng’g, Inc., 431 So. 2d 1249, 1252 (Ala. 1983); Lewis v. Haleyville Mobile Home Supply,
Inc., 447 So. 2d 691, 692-93 (Ala. 1984); Chilton Warehouse & Mfg. Co. v. Lewis, 57 So. 100,
101 (Ala. App. 1911).
Plaintiff seeks $27,665.00 in attorneys’ fees and $1,413.68 in expenses incurred in
collecting the amounts due under the Loan based on the terms set forth in the Note. In support of
this request, Plaintiff has submitted itemized billing records (Doc. 24 at 20-37) and two (2)
Affidavits of Jason Woodard (the first dated 10/10/11 (Doc. 13 at 43-45); the second, 3/9/12
(Doc. 24 at 14-18)),2 a partner with the law firm of Burr & Forman, LLP, attesting to these
amounts as reasonable for 121 hours of work performed not just in this case, but “as far back as
2009.” (Doc. 13 at 43-45; Doc. 24 at 14-37).
In particular, Plaintiff seeks recovery of all of the fees and expenses it has incurred not
only in this case but also in what it refers to as the “Previous Lawsuit” – Wells Fargo Bank, N.A.
v. Bell, L.L.C., Friday Construction Co. Inc., and C. Thurmon Bell, Case No. 1:10-cv-00177KD-N (S.D. Ala.). (Doc. 24 at 6-8, 15-17). This is not permissible. For one thing, that case also
involved Bell, L.L.C, an entity that is not a defendant in this case. Additionally, in that action,
Plaintiff voluntarily dismissed all of its claims against all of the defendants without prejudice,
with each party to bear its own costs. (Case No. 1:10-cv-00177-KD-N, Docs. 9 & 10). In other
words, Plaintiff had the opportunity to seek recovery of fees and expenses incurred before and
during the Previous Lawsuit but chose not to do so (i.e., Plaintiff could have included such in the
voluntary dismissal). Plaintiff filed its notice of dismissal in the Previous Lawsuit on June 11,
2010, and the Court entered an Order of dismissal on June 14, 2010. (Id.). All billing entries for
those days indicate that the work done related only to the dismissal of the Previous Lawsuit.
(Doc. 24 at 24). Thus, with regard to that portion of Plaintiff’s motion that seeks recovery of
attorneys’ fees and expenses incurred on or before June 14, 2010, the motion is due to be
The Court will now turn to that portion of Plaintiff’s motion concerning recovery of
attorneys’ fees and costs incurred after the dismissal of the Previous Lawsuit. Plaintiff seeks to
recover all of its attorneys’ fees and costs incurred in enforcing the Note against both defendants
in this case, but solely from Defendant Friday (the only defendant against whom summary
Mr. Woodard is an attorney with over 10 years of work experience. (Doc. 24 at 14, ¶ 1).
judgment has been granted). Relying on the Note, Plaintiff contends that both Defendant Friday
and Defendant Bell are jointly and severally liable for all indebtedness, evidenced by their status
as Borrowers on the Note -- including all of the attorneys’ fees and expenses incurred in
collecting the amounts due. See (Doc. 13 at 7 (“The term ‘Obligations’, as used in this Note and
the other Loan Documents, refers to any and all indebtedness and other obligations under this
Note . . .”), 10 (“Joint and Several Obligations. If there is more than one Borrower, each is
jointly and severally obligated together with all other parties obligated for the Obligations).
Plaintiff attests that “efforts have been made to include only those fees which relate to the Loan
at issue, for which both Bell and [Friday] are jointly and severally liable.” (Doc. 24 at 8). The
Court finds that a sufficient basis exists for entering such a judgment of attorneys’ fees and
expenses solely against Defendant Friday in this action.
Though given the opportunity to do so, Defendant Friday has not challenged Plaintiff’s
right to recover its attorneys’ fees and expenses. However, under the terms of the Note, Plaintiff
may recover only those fees and expenses that are “reasonable.” See supra. Accordingly, before
fashioning any award, the Court must first assess the reasonableness of the Plaintiff’s 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), abrogated
on other grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989), may aid the Court in determining
a reasonable hourly rate and thereby affect the lodestar analysis. Norman, 836 F.2d at 1299.
Those factors include:
(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, as 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 & Merchs. Nat’l Bank of Troy, 453 So. 2d 1305, 1311 (Ala. 1984).
Plaintiff seeks $1,413.68 in expenses; however, this is the total amount of expenses for both
cases. Based on the terms of the Note and Guaranty, the Court finds that Plaintiff is entitled to
recover expenses/costs. See, e.g., Peppertree Apartments, Ltd. v. Peppertree Apartments, 631
So.2d 873, 878 (Ala. 1993) (providing that “[t]he intention of the parties controls when a court
construes the terms of a promissory note, and that intention is to be derived from the provisions
of the contract, if the language is plain and unambiguous”). However, for those reasons stated
supra, recovery of this amount is disallowed for amounts expended on or before the dismissal of
the Previous Lawsuit. The Court has reviewed the expenses itemization and finds that the
expenses incurred by Plaintiff after June 14, 2010, and which are recoverable against Defendant
Friday, total $733.56.
Plaintiff seeks recovery of $27,665.00 for 121 hours of work for this case. However, this
represents the total amount of fees and hours for both cases since November 30, 2009. For those
reasons stated supra, recovery of this entire amount is disallowed.
As the party requesting fees, Plaintiff 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 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 that of
Mobile, Alabama. See Barnes, 168 F.3d at 437 (providing that “the ‘relevant market’ for
purposes of determining the reasonable hourly rate for an attorney’s services is the place where
the case is filed” – in that case, Atlanta) (citation omitted)).
Plaintiff’s revised fee application fails to provide evidence addressing the fundamental
question of whether the hourly rates charged by its attorneys are reasonable in the Mobile
market. Neither of Woodard’s affidavits attests to his familiarity with the customary rates
charged by the Mobile legal community; rather, both affidavits state that Woodard is “familiar
with the fees customarily charged to clients having business similar to that of Plaintiff by law
firms in the Birmingham area in connection with litigation of the same or similar nature as this
action.”3 (Doc. 13 at 43, ¶ 3; Doc. 24 at 15, ¶ 3 (emphasis added)). Nevertheless, 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).
Plaintiff seeks recovery of the following billable rates: 1) attorneys Woodard ($330/hour,
Partner with over 10 years experience), Creswell ($285/hour, Senior Associate with 7 years
experience) and Weed ($245/hour, Associate with 5 years experience); and 2) paralegals Stinson
($125/hour, 8 years experience), Crawford ($120/hour, 9 years experience) and Thompson
($105/hour, 23 years experience). (Doc. 24 at 32-33).
Regarding the attorneys, the Court finds as follows. The requested rate of $330/hour for
Woodard, a Partner with 10 years of experience, exceeds those rates that have been found to be
reasonable in this district. For example, this Court recently found $250/hour to be a reasonable
rate for a Mobile attorney with 15 years of experience as a law firm partner. See Vision Bank v.
Anderson, Civ. No. 10-0372-KD-M, 2011 WL 2142786, at *3 (S.D. Ala. May 31, 2011). See
also Mitchell Co., Inc. v. Campus, Civ. No. 08-342-KD-C, 2009 WL 2567889, at *1 and *17-18
(S.D. Ala. Aug. 18, 2009) (finding that a reasonable hourly rate for an attorney with 12 years of
experience was $225/hour).
Upon consideration, the Court will award the Partner rate of
$225/hour for Woodard.
Plaintiff has submitted no evidence showing it is entitled to non-local rates. See Barnes,
168 F.3d at 437 (“If a fee applicant desires to recover the non-local rates of an attorney who is
not from the place in which the case was filed, he must show a lack of attorneys practicing in that
place who are willing and able to handle his claims.”).
The requested rates for the Associates, which vary from $245/hour to $285/hour, are
unreasonable. Not only do these rates exceed the previously-determined reasonable Partner rate,
they also exceed rates that the undersigned and other judges in the Southern District of Alabama
have found to be reasonable for associates. See, e.g., Denny Mfg. Co. v. Drops & Props, Inc.,
Civ. No. 09-0214-KD-M, 2011 WL 2180358, at *3-5 (S.D. Ala. June 1, 2011) (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 Co., L.L.C. v. Chevron U.S.A., Inc., Civ. No. 09-0187-CG-M, 2011 WL 612737, at *4
(S.D. Ala. Feb. 11, 2011) (finding $145/hour to be a reasonable rate for second-year associate);
Adams v. Austal, U.S.A., L.L.C., Civ. No. 08-0155-KD-N, 2010 WL 2496396, at *6 (S.D. Ala.
June 16, 2010) (finding $150/hour to be a reasonable rate for third-year associate). Upon
consideration, the Court will award Senior Associate Creswell the rate of $175/hour and
Associate Weed the rate of $150/hour.
The Court rejects as unreasonable the requested hourly rates of the paralegals, ranging
from $105/hour to $125/hour. 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, Civ. No. 10-00085-KD-C, 2011 WL 1539878, at *9 (S.D. Ala. Apr. 21, 2011);
Wells Fargo Bank, N.A. v. Williamson, Civ. No. 09-00557-KD-C, 2011 WL 382799, at *5 (S.D.
Ala. Feb. 3, 2011). Apart from stating their years of experience, Plaintiff has not demonstrated
that any of these paralegals possess other qualifications that merit rates approximately 40%-70%
more than that which the Court has approved in the past. Thus, the Court finds that the paralegal
time allowed in this case will be reimbursed at the rate of $75/hour.
Plaintiff seeks recovery of 121 hours of work in this case from November 30, 2009, to the
present. As an initial matter, for those reasons stated supra, the Court cannot award for time
billed on or before the dismissal of the Previous Lawsuit. Moreover, in determining whether the
number of hours expended are reasonable, the Court should not include any hours that 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). Upon
consideration, the Court finds evidentiary support for 77 hours billed from the dismissal of the
Previous Lawsuit to the present.4
Total Recoverable Fees
Thus, the total amount of attorneys’ fees recoverable by Plaintiff against Defendant
Friday for work performed in enforcing the Note after June 14, 2010, is $12,490.00 for 77
billable hours, calculated as follows: Woodard (26.4 hours x $225 = $5,940.00) + Creswell (2.5
hours x $175 = $437.50) + Weed (33.4 hours x $150 = $5,010.00) + Stinson (13.1 hours x $75 =
$982.50) + Crawford (0.8 hours x $75 = $60) + Thompson (0.8 hours x $75 = $60).
Some time entries were billed at a rate of “$0.00.” The Court has excluded those entries
from its calculation of billable time.
b. Post-Judgment Interest Rate
Plaintiff also seeks reconsideration of that portion of the Court’s March 5, 2012 Order
which denied Plaintiff’s requested post-judgment interest rate of “Prime Rate plus five percent
(5%).” (Doc. 23 at 11). Plaintiff does not indicate whether its reconsideration request is filed
under Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure, or on what basis the
relief is sought. Given the relief sought, the Court construes Plaintiff’s request as a Rule
60(b)(6) motion for reconsideration for “any other reason that justifies relief.”
The Court has broad discretion in ruling on a Rule 60(b) motion, which is considered an
extraordinary request. See, e.g., Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006). The
motion must demonstrate “that the circumstances are sufficiently extraordinary to warrant relief.
Even then, whether to grant the requested relief is...a matter for the district court's sound
discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000). “A motion
for reconsideration should not be used as a vehicle to present authorities available at the time of
the first decision or to reiterate arguments previously made: [It is an improper use] of the motion
to reconsider to ask the Court to rethink what the Court...already thought through – rightly or
wrongly[.]” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992).
In the Order denying the request the Court based its denial on the fact that its review of
the loan documents did not reveal any agreed post-judgment interest rate. However, in its
motion to reconsider, Plaintiff now cites the Court to the relevant provision: “If a Default (as
defined herein) occurs and as long as a Default continues, all outstanding Obligations . . . shall
bear interest at the Interest Rate plus 3% (“Default Rate”). The Default Rate shall also apply
from acceleration until the Obligations or any judgment thereon is paid in full.” (Doc. 13 at 6,
¶ “DEFAULT RATE” (emphasis added)). “Interest Rate” is defined as Plaintiff’s “Prime Rate
plus 2.0%.” (Id., ¶ “INTEREST RATE”). The Court finds that Plaintiff is due the contractual
post-judgment interest rate it seeks – Plaintiff’s “Prime Rate” plus 5%.
Based on the foregoing, it is ORDERED that Plaintiff’s “(I) Revised Motion for Award
of Attorneys Fees and (II) Motion to Reconsider Denial of Post Judgment Interest and
Incorporated Memorandum of Law” (Doc. 24) is GRANTED in part and DENIED in part as
1. Plaintiff is awarded $12,490.00 in attorneys’ fees and $733.56 in expenses and costs
against Defendant Friday; and
2. Post-judgment interest shall accrue at the contractual rate of Plaintiff’s “Prime Rate”
plus 5%, as set out in the Promissory Note (Doc. 13 at 6-11).
Judgment shall be entered separately in accordance with this Order and the Court’s Order
dated March 5, 2012 (Doc. 23).
DONE and ORDERED this the 31st day of October 2012.
/s/ Kristi K. DuBose
KRISTI K. DUBOSE
UNITED STATES DISTRICT JUDGE
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