Tangen v. Ideacom of the Gulf Coast, Inc.

Filing 142

ORDER, Tangen's 133 motion for attorney's fees is GRANTED in the amount of $50,805.00; Tangen's 135 motion for taxation of costs is GRANTED in the amount of $3,359.88; Tangen's 136 motion for prejudgment interest is DENIED; and Tangen's 141 motion to amend his motion for taxation of costs is DENIED AS MOOT. Signed by Judge Callie V. S. Granade on 2/13/2014. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERLEND TANGEN,
Plaintiff,
v.
IDEACOM OF THE GULF COAST,
INC.
Defendant.

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Civil Action No. 12-0267-CG-M

ORDER
I. BACKGROUND
The controversy arose when Defendant Ideacom of the Gulf Coast, Inc.,
refused to pay a former employee, Plaintiff Erlend Tangen, several
commission payments after Tangen left Ideacom for another job. Following a
bench trial, the court ruled that Ideacom was liable to Tangen for those
unpaid commissions on a breach-of-contract theory. (Doc. 132 at 11.) Tangen
also prevailed on one of the claims he brought under the Alabama Sales
Commission Act. (Id.) The court withheld its final judgment pending further
briefing on the question of attorney’s fees, and the matter comes before the
court on Tangen’s motions for attorney’s fees (Doc. 133), taxation of costs
(Doc. 135), and prejudgment interest (Doc. 136).

II. DISCUSSION
A.

Attorney’s Fees
It is already settled that Tangen is entitled to recover the attorney’s

fees he incurred pursuing his successful Sales Commission Act claim. (Doc.
132 at 11.) The only question left is how much? The Alabama Supreme Court
has identified twelve factors the court might consider to answer that
question:
(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.1
Of those factors, three are particularly relevant here: (1) the amount of
time Tangen’s attorney spent on his successful Sales Commission Act
claim; (2) the degree of success Tangen ultimately achieved; and (3) the
customary fee charged for this sort of work in Mobile.
Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala.1988) (citing
Peebles v. Miley, 439 So. 2d 137 (Ala. 1983)); see also Kearney v. Auto-Owners
Ins. Co., 713 F. Supp. 2d 1369, 1373 (M.D. Fla. 2010) (“Just as a federal court
must apply state law to determine whether a party is entitled to fees, it must
also apply state law to resolve disputes about the reasonableness of fees.”).
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Time comes first. See Peebles, 439 So. 2d at 141 (“[T]he first
yardstick that is used by the trial judges is the time consumed.”).
Tangen’s counsel says he spent 291.15 hours2 and his paralegal spent
141.65 hours working on Tangen’s successful Sales Commission Act
claim. But as Ideacom points out, not all of those hours contributed to
that claim’s success. Some adjustments are in order.
First, the court excludes from its fee calculation the 10.55 hours
Tangen’s attorney and .40 hours his attorney’s paralegal spent
opposing Ideacom’s first motion to dismiss (Doc. 134-3 at 1). The basis
of that motion was purely technical, and amending the complaint as a
matter of course would have cured the defect. But instead of doing
that, Tangen’s counsel engaged in a fruitless motion battle that
culminated with the court pointing out the obvious and prompting
Tangen to amend his complaint as a matter of course (Doc. 13). Tangen
cannot recover the fees he expended on that motion battle because they
were not necessary to the success of his Sales Commission Act claim.
See Alabama Law of Damages § 33:1 (6th ed.) (“When attorney's fees
are recoverable as damages, they can be recovered only to the extent
that they are necessarily incurred and reasonable in amount.”
(emphasis added)).
This figure does not include the 2.4 hours Tangen’s attorney spent on an
unrelated matter, which Tangen now concedes he should not recover. (Doc.
141 (“Undersigned counsel inadvertently included those time entries, which
should be redacted in the amount of 2.4 hours . . . .”).)
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Next, the court excludes the 10.6 hours of attorney time and 5.0
hours of paralegal time associated with Tangen’s delayed response to a
request to produce certain emails (Doc. 134-2 (entries on Jan. 9, April
2, April 4, and April 53)). As Ideacom points out, Tangen should have
produced those emails in August 2012 (Doc. 46 at 2), but he drug his
feet well into March 2013 (Doc. 78 at 6). The delayed production of
those emails served no productive end, so Tangen cannot recover any
fees for the time his attorney spent dealing with Ideacom’s attempts to
hurry him along. The court will, however, allow Tangen to recover the
fees he incurred when his attorney actually produced emails, which he
was required to do under the rules of discovery.
And finally, the court excludes the 2.5 hours of attorney time
and 7.75 hours of paralegal time associated with the three subpoenas
Tangen issued a week before trial (Doc. 134-2 (entries on September 3,
September 5, and September 9).) Given that discovery had closed
months before, Tangen’s counsel should have anticipated that Ideacom
would successfully move to quash those subpoenas, or at least move to
exclude any evidence they yielded. He is not entitled to recover the fees
he incurred for that exercise in futility.
The billing entries that reference the emails also include time that would be
otherwise compensable, a practice that Ideacom objects to as “block billing.”
(Doc. 140 at 14.) Because the court cannot determine what portion of such
entries reflect compensable time as opposed to uncompensable time, the court
will disallow such entries in their entirety.
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But Ideacom’s other objections to specific time entries lack
merit. First, Ideacom quibbles with Tangen’s objection to the following
request to admit:
ADMIT that you did not, at any time place any order or engage
in any sale of any “product or products for sale to customers who
purchase the product or products for resale” while you were
employed by defendant.
(Doc. 30 at 4). Rather than responding, Tangen objected that the
request was too “poorly worded, vague, compound, ambiguous and
confusing” (id.) to either admit or deny accurately. After discussions
with Ideacom’s counsel provided some clarification, Tangen responded
to the request. (Doc. 33 at 1.) That was not an unreasonable course of
action, so the court will not exclude the time spent on that objection.
Likewise, the court will not exclude the time associated with Tangen’s
objection to Ideacom’s eighth interrogatory, which successfully
narrowed the scope of that interrogatory from five parts to two. (See
Doc. 35 at 6 (declining to challenge Tangen’s objection with respect to
three parts of Ideacom’s eighth interrogatory).) Second, Ideacom claims
that the lion’s share of Tangen’s summary-judgment opposition (i.e., all
but two paragraphs) had nothing to do with the Sales Commission Act.
On that point, Ideacom is simply wrong; as Tangen points out, his
claims under the Act required him to prove a commission agreement
existed, and the entirety of his summary-judgment opposition was
devoted to doing just that. That means the whole of Tangen’s

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summary-judgment opposition related to his Sales Commission Act
claims, so none of the time spent drafting it is due to be excluded from
Tangen’s fee award as unnecessary.
Of course, Ideacom is right to point out that most of Tangen’s Sales
Commissions Act claims did not survive summary judgment. That
leads to the next factor under Peebles: the measure of success achieved.
See Peebles, 439 So. 2d at 140. According to Ideacom’s math, Tangen
only recovered 2.6% of the total damages he sought under the Sales
Commission Act, the implication being that the court should reduce
Tangen’s fee award by 97.4%. Such a drastic reduction is unwarranted
here. Although most of Tangen’s Sales Commission Act claims did not
survive summary judgment, that doesn’t mean the majority of the time
he spent pursuing those claims was wasted effort.
Tangen’s primary aim throughout this litigation has been to
prove the existence and terms of his commission agreement with
Ideacom; a fight he had to win whether he claimed one commission
under that agreement or twenty. See Lindy Mfg. Co. v. Twentieth
Century Marketing, Inc., 706 So. 2d 1169, 1179 (Ala. 1997) (See, J.,
concurring) (noting that the Sales Commission Act does not create a
right to receive commissions absent a valid commission agreement). As
a result, the court finds that all the time Tangen spent proving that
agreement’s existence and terms was a necessary and reasonable part

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of his one successful Sales Commission Act claim. But to the extent
that Tangen’s attorney spent time proving facts peculiar to the
unsuccessful Sales Commission Act claims (damages, for instance),
Tangen cannot recover attorney’s fees.4 Based on the court’s knowledge
of this lawsuit, 90% of Tangen’s fees were spent proving the existence
and terms of his commission agreement, while the other 10% was
focused on questions unrelated to his one successful Sales Commission
Act claim. See Fox v. Vice, 131 S. Ct. 2205, 2216 (2011) (“[T]rial courts
may take into account their overall sense of a suit, and may use
estimates in calculating and allocating an attorney’s time.”). Thus, a
10% reduction is appropriate in light of his unsuccessful Sales
Commission Act claims.
Taking into account the adjustments discussed above, Tangen’s
attorney reasonably spent 240.75 hours on the successful Sales
Commission Act claim and his paralegal reasonably spent 115.65
hours. At the rates his attorney charged—$175 an hour for attorney
time and $75 an hour for paralegal time,5 both of which are in line
with fees “customarily charged in [this] locality for similar legal

Tangen’s billing records recognize this point by omitting the post-trial
briefing on the question of damages.
4

Ideacom does not claim that any of the time billed by a paralegal in
Tangen’s counsel’s office in nonrecoverable. (See Doc. 134 (citing Richlin
Security Service Co. v. Chertoff, 553 U.S. 571 (2007) for the proposition that
“Paralegal fees are recoverable as attorney fees.”)).
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services,” Van Schaack v. AmSouth Bank, N.A., 530 So. 2d at 749 —
Tangen is entitled to an award of $50,805 for the attorney’s fees he
incurred pursuing his successful Sales Commission Act claim.
The court recognizes that this amount exceeds the award
Tangen obtained on his successful Sales Commission Act claim. But
that fact does not on its own justify a reduction in his fee award. With
its treble-damages and fee-shifting provisions, the Sales Commission
Act incentivizes lawsuits that might not otherwise be worth bringing,
which helps achieve the Act’s punitive purpose, see RMC & Associates,
Inc. v. Beasley, 958 So.2d 879, 884 (Ala. Civ. App. 2006) (citing cases
that illustrate the principal that treble-damage provisions are
“essentially punitive in nature”). But if the court were to limit
Tangen’s fee award to the amount that he recovered, the opposite
purpose would be served, and small claims like Tangen’s would become
prohibitively expensive to pursue. Ideacom has cited no law that
suggests the fee-shifting provision in the Sales Commission Act was
meant to prohibit the recovery of otherwise reasonable fees based on a
plaintiff’s damages award, and the court is aware of none. Cf. Buckley
v. Seymore, 679 So. 2d 220 (Ala. 1996) (affirming an award of
$71,538.45 in attorney’s fees incurred obtaining a $3,388 judgment);
Gramercy Mills, Inc. v. Wolens, 1996 WL 562460, at *14 (N.D. Ill. 1996)
(awarding attorney’s fees under the Illinois Sales Representative Act

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and finding that “if the time was necessarily spent, the fact that it
exceeds the amount of plaintiff’s recovery is not a reason to deny full
compensation”). Accordingly, the court will allow Tangen to recover the
full amount of his reasonable attorney’s fees as set out above.
B.

Prejudgment Interest
According to Ala. Code § 8-8-8, all contracts “for the payment of

money” begin to bear interest “from the day . . . they should have been
paid . . .” Id. Tangen says that means Ideacom owes him interest on his
unpaid commissions calculated from the dates he should have received
them.
But Tangen has not provided evidence of what those dates are.
Instead, he relies on an unsupported allegation that Ideacom breached
its contract with him on an unspecified date in May 2011. (See Doc.
136 at 2 (citing a portion of the court’s order on the bench trial that
made no such finding).) Without any evidence to establish when
Ideacom should have paid each of the commissions Tangen recovered
here, the court cannot calculate the interest due on them. Accordingly,
Tangen’s motion for prejudgment interest must be denied.
C.

Costs
Finally, Tangen moves for an award of costs. Ideacom doesn’t

dispute that Tangen is entitled to recover the costs he claims, only that
Tangen has failed to properly document those costs. The court,

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however, is satisfied with the documentation in the record, which
includes specific descriptions of Tangen’s costs (see Doc. 135-1; Doc.
134-2 at 23–24) and an affidavit attesting to the accuracy of his
figures. Absent some indication that those figures are inaccurate,
Tangen is entitled to recover the costs he claims.
III. CONCLUSION
It is therefore ORDERED as follows:
(1)

Tangen’s motion for attorney’s fees (Doc. 133) is
GRANTED in the amount of $50,805.00;

(2)

Tangen’s motion for taxation of costs (Doc. 135) is
GRANTED in the amount of $3,359.88;

(3)

Tangen’s motion for prejudgment interest (Doc. 136) is
DENIED; and

(4)

Tangen’s motion to amend his motion for taxation of costs
(Doc. 141) is DENIED AS MOOT because the court did
not base its decision on the additional evidence Tangen
sought to submit.

An appropriate judgment will follow.
DONE and ORDERED this 13th day of February, 2014.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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