Brown v. The Boeing Company et al
Order GRANTING IN PART & DENYING IN PART Lockheed-Martin Corporation's 155 MOTION for Attorney Fees and Costs, The Boeing Company's 159 MOTION for Attorney Fees and Costs, & United Technologies Corporation's 161 MOTION for Attorn ey Fees and Costs as set out. Honeywell International, Inc.'s 163 MOTION for Attorney Fees is DENIED as set out, & its 172 MOTION to deem its motion timely is DENIED as set out. Attny's fees are granted to Boeing in the amount of $8,361.00, to Lockheed Martin in the amount of $5,800.00, & to United Technologies in the amount of $6,000.00, for a total of $20,161.00 as set out. Signed by Judge Callie V. S. Granade on 12/4/2012. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
WALTER E. BROWN,
THE BOEING COMPANY, et al.,
Civil Action No. 12-0414-CG-C
This matter is before the Court on the motions of Defendants The Boeing
Company (“Boeing”), Honeywell International, Inc. (“Honeywell”), Lockheed Martin
Corporation (“Lockheed Martin”), and United Technologies Corporation (“UTC”) for
attorneys’ fees and costs1 (Docs. 155, 159, 161, 163), and Plaintiff’s objections
thereto (Docs. 164, 165, 166, 169). For the reasons set forth herein, Boeing’s,
Lockheed Martin’s, and UTC’s motions will be GRANTED IN PART and
DENIED IN PART, and Honeywell’s motion will be DENIED in its entirety.
On June 22, 2012, Plaintiff commenced a lawsuit in this Court alleging
certain damages from wrongful exposure to asbestos. (Doc. 1 ¶¶ 5, 20.)
Approximately two months later, Defendants moved for judgment on the pleadings,
arguing that Plaintiff’s action was time-barred under Alabama law. (Docs. 108,
Boeing (Doc. 159) and UTC (Doc. 161) filed their motions under seal.
109, 111, 112, 116.) Plaintiff then sought leave to voluntarily dismiss his case
without prejudice. (Doc. 117.) On September 13, 2012, this Court granted
Plaintiff’s motion, but concluded that payment of certain of Defendants’ attorneys’
fees was a proper and necessary condition for dismissal under Federal Rule of Civil
Procedure 41(a)(2). (Doc. 154 at 5, hereinafter “the September 13 Order”)
Specifically, the Court found that it was “appropriate for Plaintiff to reimburse
Defendants for the cost of researching Alabama’s statute of limitations, briefing the
issue in support of its motions for judgment on the pleadings (Docs. 108, 112 & 150),
and responding to Plaintiff’s motion for voluntary dismissal (Doc. 151).” (Doc. 154
at 5.) The Court set September 27, 2012 as the deadline for Defendants to submit
an accounting of their fees and expenses. (Id. at 6.) Subsequently, each Defendant
filed its own separate fee motion and supporting exhibits. (Docs. 155, 159, 161,
To determine a reasonable fee, this Court begins by calculating the
“lodestar,” which is the product of a reasonable hourly rate by the number of hours
reasonably expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also
Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.
1988). A reasonable hourly rate is defined as “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 (citing Blum v.
Stenson, 465 U.S. 886, 895 (1984)). In the instant case, the relevant legal
community is Mobile, Alabama. See Am. Civil Liberties Union of Ga. v. Barnes, 168
F.3d 423, 437 (11th Cir. 1999) (“[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)). The fee applicant bears the burden
of proving, by direct or opinion evidence, that the requested rate is in line with
prevailing market rates. Norman, 836 F.2d at 1299. In proving reasonable hours,
“the general subject matter of the time expenditures ought to be set out with
sufficient particularity so [the court] can assess the time claimed for each activity.”
Id. at 1303. A party opposing a fee application should also submit objections and
proof that are “specific and reasonably precise” concerning those hours that should
be excluded. Barnes, 168 F.3d at 428.
After calculating the lodestar amount, the court should then proceed with an
analysis of whether any portion of the fee should be adjusted upwards or
downwards. See Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478
U.S. 546, 565-66 (1986); see also Pennsylvania v. Del. Valley Citizens’ Council for
Clean Air, 483 U.S. 711 (1987); Hensley, 461 U.S. at 433-34. “When a district court
finds the number of hours claimed is unreasonably high, the court has two choices:
it may conduct an hour-by-hour analysis or it may reduce hours with an across-theboard cut.” Bivens v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). The
Court is itself an expert, and 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 twelve
factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19
(5th Cir. 1974),2 abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87,
91-92 (1989). See Hensley, 461 U.S. at 434 & n. 9; Dikeman v. Progressive Exp. Ins.
Co., 312 F. App’x 168, 172 (11th Cir. 2008). 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.
REASONABLENESS OF THE FEES
The quantum of Defendants’ fee requests vary significantly from $3,580 at
the low end to more than $22,000 at the opposite extreme. Plaintiff objects that the
hours expended by all Defendants are excessive and that the hourly rates charged
by Defendants’ lawyers (except for Honeywell’s) are unreasonable. Plaintiff also
All cases decided by the former Fifth Circuit before October 1, 1981, are binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).
requests that Lockheed Martin’s recovery be reduced due to counsel’s
unprofessional conduct during a deposition. (Doc. 165 at 8-9.)
The Court will address each fee application in turn, however, it pauses to
make one note at the outset: the September 13 Order was deliberately tailored to
allow Defendants to recover certain, but not all, of the fees they had incurred. At
the point of dismissal, Plaintiff’s lawsuit had subsisted for all of 57 days, and formal
discovery had not yet commenced.3 Both of these facts weighed against fee shifting.
See Wishneski v. Old Republic Ins. Co., 2006 WL 4764424, at *4 (M.D. Fla. Oct. 10,
2006) (no fees were awarded under Rule 41(d) when complaint was filed just one
month prior, no discovery had taken place, nor had there been any substantial
motions filed). Moreover, the issues briefed and presented to the Court during that
fledgling period were not overly complex, which also weighed against fee shifting.
However, because Plaintiff conceded that, at least in part, Defendants’ statute of
limitations defense motivated him to abandon his suit (Doc. 117 at 4), this Court
exercised its broad equitable discretion under Rule 41(a)(2) to condition dismissal
on Plaintiff’s payment of reasonable, limited fees in order to “do justice between the
parties.” McCants v. Ford Motor Co., 781 F.2d 855, 857, 859 (11th Cir. 1986).
Accordingly, as set forth in greater detail below, Plaintiff’s objections to those
instances where Defendants have endeavored to seek fees beyond the scope of the
Court’s September 13 Order are SUSTAINED.
In light of Plaintiff’s declining health, the Court allowed Defendants to depose
Plaintiff prior to the commencement of discovery. (Doc. 24)
Boeing has requested $21,391.50 in fees and costs. This amount is broken
down and justified by an “affidavit of fees and costs” (Doc. 159-1), an itemization of
$92.00 in court costs (Doc. 159-2), and a seven-page itemization of $21,299.50 of
legal fees (Doc. 159-3). The Court has also reviewed Boeing’s reply to Plaintiff’s
objections. (Doc. 173.)
Whereas the September 13 Order did not authorize the recoupment of court
costs related to procuring a certificate of good standing, pro hac vice status, and
Pacer downloads, the Court hereby strikes such costs of $92.00 before calculating
the lodestar. Additionally, the Court strikes as beyond the scope of Boeing’s
authorized recovery $289.00 of fees related to the drafting of corporate disclosures,
$165.00 of fees related to preparing and filing pro hac vice applications, and $280.50
of fees relating to preparing and filing the Answer – which reflects 3.9 hours of
work. See Doc. 159-3 (July 13 entry for $25.50, July 16 entries for $51.00, $76.50,
and $212.50, July 17 entry for $37.50, July 18 entries for $51.00, $178.50, $76.50,
1. Reasonable Rate
The Court first considers whether Boeing’s rates are reasonable. Boeing’s fee
itemization reflects three different rates: $125.00/hour, $210.00/hour, and
$255.00/hour. In an affidavit, Boeing’s lead counsel, Kay Baxter, Esq., declares the
work performed by her firm, Swetman Baxter Massenburg, LLC, to have been
“normal, reasonable, and routine” (Doc. 159-1 at 1), but such conclusory
declarations are insufficient to satisfy Boeing’s burden of demonstrating the
reasonableness of its attorneys’ rates in Mobile, Alabama.4 Norman, 836 F.2d at
1304 (an affidavit attesting only to the reasonableness of the fee without
mentioning prevailing market rates provides “little or no evidentiary support for an
award). In light of this failure, where Boeing’s evidence is lacking, the Court will
determine the applicable reasonable hourly rate based on its own experience.
Ms. Baxter’s affidavit recounts her experience as a law firm partner who has
been licensed since 1994. While not explicitly stated anywhere in Boeing’s
submission, it is reasonable to assume that Ms. Baxter’s billing rate is the highest
of the three noted above. Two hundred and fifty-five dollars an hour is a reasonable
rate for a partner with 18 years of experience. See Vision Bank v. Anderson, 2011
WL 2142786, at *3 (S.D. Ala. May 31, 2011) ($250/hour rate was reasonable for a
partner with 15 years experience); Vision Bank v. FP Mgmt., LLC, 2012 WL
222951, at *3 (S.D. Ala. Jan. 25, 2012) (same); Wells Fargo Bank, N.A. v.
Williamson, 2011 WL 382799, at *4 (S.D. Ala. Feb. 3, 2011) (same); Mitchell Co. v.
Campus, 2009 WL 2567889, at *1, *17-18 (S.D. Ala. Aug. 18, 2009) (same).
In its reply, Boeing argues that the Court should accept its rates because
“asbestos concerns and suits affect rates on a national level. . . . Suits of this type
require specialized expertise and the companies involved utilize firms that charge
national rates.” (Doc. 173 at 5) Boeing has cited no evidence proving this point, and
case law appears adverse to them on this point. See Country Inns & Suites by
Carlson, Inc. v. Interstate Props., LLC, 2009 WL 3535631, at *4 & nn.3-4 (Oct. 28,
2009). While it may be true that asbestos suits require specialized expertise
(though this Court passes no judgment on this issue), as stated previously, this suit
barely made it out of the pleading stage, and as such, did not require highly
However, Ms. Baxter’s affidavit says nothing about the identity or experience
of the associate that her firm billed out at $210/hour. Accordingly, reasonable hours
billed by Ms. Baxter’s associate will be credited at a rate of $150/hour. See
Anderson, 2011 WL 2142786, at *3 (“In the past, this Court has awarded the rate of
$150 per hour for associates’ time when their expertise is indeterminate.”); Adams
v. Austal, USA LLC, 2009 WL 3261955, at *2 (S.D. Ala. Oct. 7, 2009) (awarding
attorneys with “indeterminate expertise” $150/hour).
Similarly, $125/hour is not a reasonable rate for the services performed by
Boeing’s paralegal. In this district, paralegal work is consistently charged at a rate
of $75/hour. See, e.g., Ceres Envtl. Servs., Inc. v. Colonel McCrary Trucking, LLC,
2011 WL 1883009, at *6 (S.D. Ala. May 17, 2011) (reducing Mobile paralegal rate
from $101/hour to $75/hour); Trotter v. Columbia Sussex Corp., 2010 WL 383622, at
*11 (S.D. Ala. Jan. 29, 2010) (“[J]udges in this district have repeatedly approved
paralegal rates of $75 an hour.”); accord Wells Fargo Bank, N.A. v. Williamson,
2011 WL 382799, at *5 (S.D. Ala. Feb. 3, 2011).
2. Hours Reasonably Expended
Though Boeing did not provide the Court with a total number of hours, the
Court has undertaken its own analysis, and has counted 94.4 total hours submitted.
As for whether the remaining 90.5 hours were reasonably expended, the Court
begins with the five entries reflecting work performed by Boeing’s paralegal. The
Court has reviewed the paralegal’s time entries, and the majority of the work
performed was either beyond the scope of the Court’s September 13 Order or was
work not typically performed by a lawyer. “The law is quite clear that ‘purely
clerical or secretarial tasks should not be billed at a paralegal rate, regardless of
who performs them.’” Johnson v. TMI Mgmt. Sys., Inc., 2012 WL 4435304, at *5
(S.D. Ala. Sept. 26, 2012) (quoting Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274,
288 n.10 (1989)); see also Branch Banking & Trust Co. v. Imagine CBQ, LLC, 2012
WL 1987830, at *3 (S.D. Ala. June 4, 2012) (“As to reasonable paralegal fees, only
time spent performing work traditionally performed by attorneys will be
compensated.”). Thus, the only compensable paralegal time is 0.8 hours. The
remaining 2.6 hours of paralegal time is STRICKEN.
Of the remaining 87.1 hours, the Court must determine if associate hours of
44.2 and partner hours of 42.9 hours was reasonable. Plaintiff makes several
arguments that Boeing’s hours are excessive, and recommends that Boeing’s hours
should be reduced by two-thirds.
As a preliminary matter, the Court will determine whether the 20.1 hours
Ms. Baxter spent reviewing Plaintiff’s deposition for use in two motions is
compensable. In its objection, Plaintiff asserts that the hours spent reviewing the
deposition goes beyond the Court’s September 13 Order. (Doc. 169 at 5) Boeing
replies that Plaintiff’s deposition had to be thoroughly reviewed to support a
number of arguments advanced in the motion for voluntary dismissal and in reply
to the motion for judgment on the pleadings. Boeing’s time entries support this
characterization. However, the Court was clear in its September 13 Order that it
“believes that the limited discovery conducted to date (i.e., Plaintiff’s deposition) will
be useful to both parties should this action be refiled in Connecticut.” (Doc. 154 at 5
(emphasis added)) Any such benefit is no longer hypothetical, as Plaintiff has
indeed commenced a new action in Connecticut.5 In spite of this, Plaintiff asserts in
its reply brief that “the review . . . of multiple volumes of Plaintiff’s deposition is not
applicable to any other suit filed in any other state. . . . This review cost is one
Boeing would not have incurred had this suit been filed in another state.” (Doc. 173
at 3-4) It defies reason that a review of the Plaintiff’s deposition would not have
been undertaken had this suit been filed in Connecticut first.
The Court recognizes that, in reviewing Plaintiff’s deposition, Boeing’s focus
may have been different had it not had to contend with the statute of limitations
issue. However, this Court cannot grant Boeing its fees for reviewing the deposition
transcript where the knowledge and familiarity with the testimony it undoubtedly
gained will unquestionably aid its defense in Connecticut. See Wolf v. Pac. Nat’l
Bank, N.A., 2010 WL 1462298, at *4 (S.D. Fla. Mar. 18, 2010) (“It is well understood
that an award of fees for purposes of Rule 41 should not award such fees when the
work involved will prove necessary for the ultimate resolution of the second-filed
action.”). Moreover, there is no way for the Court to determine from Boeing’s time
sheets how much time was spent compiling support for statute of limitations-related
arguments and how much time was spent reading the transcript to uncover other
On October 10, 2012, Plaintiff filed a complaint in the Superior Court of
Bridgeport County, Connecticut (Civ. No. 12-6030795-S), which defendants removed
to federal court on October 22, 2012. See Brown v. CBS Corp. et al., No. 3:12-cv01495 (D. Conn.).
information. Due to Boeing’s vagueness and lack of compelling evidence in support
of its request for fees for deposition review (in spite of the Court’s clear order
indicating that no such fees would be granted), none of Ms. Baxter’s time spent
analyzing Plaintiff’s deposition transcript shall be allowed.
Of the 67 hours that remain, 22.8 hours were recorded by Ms. Baxter and
44.2 were recorded by her associate. Many of counsel’s entries are so vague as to
frustrate the Court’s ability to determine whether the tasks described are within
the ambit of the September 13 Order. Entries such as “receipt of emails,” “receipt
of notice of joinder,” “receipt of order,” “office conference with paralegal regarding
setting a telephone conference,” “receipt of notices from Court,” “plan and prepare
for e-mail to defense counsel,” and “plan and prepare for drafting motion” are
problematic and cast doubt upon the reasonableness of the remaining entries.
There are also a number of entries describing tasks devoted to “common interest
issues” – which are not only vague, but also are much broader than just the
Alabama statute of limitations’ issue. Rather than parsing the remaining time
entries on a line-by-line basis to identify and exclude purely clerical work or work
falling outside the scope of the Court’s September 13 Order, the Court instead
imposes a one-third across-the-board cut. See Campbell v. Mark Hotel Sponsor,
LLC, 2012 WL 4360011, at *2 (S.D.N.Y. Sept. 13, 2012) (“As a concession to the
mortality of judges, the law does not require a line-item review.”). Accordingly, 7.6
partner hours and 14.7 associate hours are further stricken.
Based on the foregoing discussion, the lodestar for Boeing is $8,361.00:
Honeywell seeks $3,580.00 in fees and costs. (Doc. 163 at 4) Plaintiff has
objected to both the merits and timeliness of Honeywell’s motion. (Doc. 164 at 1)
The Court first addresses the issue of timeliness.
Leaving no room for interpretation or confusion, this Court, in its September
13 Order, directed the parties to quantify their attorneys’ fees and submit
supporting evidence by a date certain, specifically September 27, 2012. Honeywell
filed its fee motion on September 28 – one day late – without explaining or even
acknowledging its tardiness. (Doc. 163) Only after Plaintiff objected that
Honeywell’s motion was untimely did Honeywell file a “Motion for Relief from
Court’s Prior Scheduling Order,” requesting that the Court exercise its discretion
and review Honeywell’s motion on the merits, despite having been filed one day
late. (Doc. 172.) In support of its prayer for relief, Honeywell says only that it was
unable to complete the task of aggregating its fees within the 14-day schedule set by
the Court and that it would be unduly prejudicial to deny its motion as untimely.
Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure, a party that is
unable to adhere to a schedule set by the court has two options. Before an act is to
be done, the party charged with performance may ask the court for an extension.
Fed. R. Civ. P. 6(b)(1)(A). After the time allowed has expired, the party may move
the court for a retroactive extension, which the court can grant “for good cause.”
Fed. R. Civ. P. 6(b)(1)(B). However, “[a]bsent an affirmative showing . . . of
excusable neglect according to Fed. R. Civ. P. 6(b),” a court does not abuse its
discretion in denying a late motion on timeliness grounds. See Clinkscales v.
Chevron U.S.A., Inc., 831 F.2d 1565, 1568 (11th Cir. 1987).
Honeywell has not shown excusable neglect for its failure to timely file its fee
motion or to timely request an extension of the September 27 deadline. Honeywell
says only that its “attorneys had problems completing their Motion, especially
reviewing the Bills for Legal Services and Costs to be redacted and submitted in
support of its Motion, and could not complete this task until 28 September 2012.”
(Doc. 172) Honeywell has not attempted to argue that its unspecified “problems”
constitute excusable neglect as its brief does not even acknowledge Rule 6(b) or the
relevant standard. In any event, to the extent that the Court understands
Honeywell’s explanation to be that its attorneys were so occupied by the press of
other matters that they could not, in the 14 days provided, analyze the billing
records of two attorneys as those records pertain to two motions filed within a
month of each other, it is well-settled that “[t]he fact that counsel has a busy
practice does not establish ‘excusable neglect’ under Rule 6(b)(2).” McLaughlin v.
City of LaGrange, 662 F.2d 1385, 1387 (11th Cir. 1981) (citation omitted); see also
Young v. City of Palm Bay, 385 F.3d 859, 864 (11th Cir. 2004) (“Counsel must take
responsibility for the obligations to which he committed and get the work done by
Honeywell is in no way redeemed by the fact that its fee motion was filed only
one day after the September 27 deadline. Galdames v. N & D Inv. Corp., 432 F.
App’x 801, 805 (11th Cir. 2011) (citing Clark v. Hous. Auth. of Alma, 971 F.2d 723,
727 (11th Cir. 1992)) (“A litigant’s failure to file a motion for attorneys’ fees within
the prescribed period can result in denial of that motion.”) Other courts in this
circuit have denied fee motions that were equally overdue. See, e.g., Palmyra Park
Hosp., Inc. v. Phoebe Putney Mem. Hosp., Inc., 688 F. Supp. 2d 1356, 1362 (M.D.
Ga. 2010) (motion for fees denied because filed one day late). Furthermore, the
Supreme Court has observed that
Given the clear holding of McLaughlin, it does not appear necessary to apply the
test set forth in Pioneer Investment Services Co. v. Brunswick Associates Limited
Partnership, 507 U.S. 380 (1993), which seeks to take account of “all relevant
circumstances surrounding the [late] party’s omission,” including the danger of
prejudice to the opposing party, “the length of the delay and its potential impact on
judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.” Id.
at 395. Nonetheless, even if the Court were to apply the Pioneer factors (an
undertaking that neither Honeywell nor Plaintiff has requested), it would not find
that Honeywell acted with excusable neglect. Though Plaintiff was not prejudiced
by the late filing, the Court finds Honeywell’s proffered reason for delay vague and
wholly insufficient. Accordingly, the Court cannot, on the record before it,
determine that Honeywell acted in good faith and was overcome by forces beyond its
[t]he notion that a filing deadline can be complied with by filing
something after the deadline falls due is . . . a notion without principle.
If 1-day late filings are acceptable, 10-day late filings might be equally
acceptable, and so on in a cascade of exceptions that would engulf the
rule erected by the filing deadline; yet regardless of where the cutoff
line is set, some individuals will always fall just on the other side of it.
United States v. Locke, 471 U.S. 84, 100-01 (1985). The High Court’s admonition in
Locke is doubly important considering that Honeywell sought to avail itself here of
a statute of limitations defense:
Filing deadlines, like statute of limitations, necessarily operate
harshly and arbitrarily with respect to individuals who fall just on the
other side of them, but if the concept of a filing deadline is to have any
content, the deadline must be enforced.
Id. at 101.7
Whereas Honeywell’s motion was not timely filed, and whereas Honeywell
has not demonstrated excusable neglect for its failure to either abide by this Court’s
order or seek permission to file out of time, its motion for attorneys’ fees (Doc. 162)
is DENIED, and its motion to deem its fee motion timely (Doc. 172) is DENIED.
C. Lockheed Martin
Lockheed Martin seeks $22,101.80 in fees and costs. Broken down, this
number encompasses $21,876.00 in attorney fees and $225.80 of court costs and
As the Seventh Circuit recently noted, even a delay of a few hours may preclude
relief in the absence of the requisite showing of excusable neglect. See Justice v.
Town of Cicero, Ill., 682 F.3d 662, 664-65 (7th Cir. 2012) (“[I]t does not take a
reference to Cinderella to show that midnight marks the end of one day and the
start of another. . . . Courts used to say that a single day’s delay can cost a litigant
valuable rights. With e-filing, one hour’s or even a minute’s delay can cost a litigant
valuable rights.” (internal citation omitted)).
filing fees. While the Court appreciates Lockheed Martin’s specificity in breaking
down its costs, the Court’s September 13 Order did not authorize costs for printing,
copying, PACER searches or expenses related to pro hac vice admission and
certificates of good standing. Therefore, Lockheed Martin’s request for court costs
of $225.80 is denied.
1. Reasonable Rate
Moving on to the question of reasonable rate, Lockheed Martin has submitted
three declarations which set forth the hourly rates for the partners ($345 and $375),
associate ($225), and litigation support clerks ($70) who worked on the case. (Docs.
155-1 at 1-3, 155-2, 155-3.). Plaintiff objects that these rates are unreasonable and
submits that a maximum rate of $180 for attorney work is customary for asbestos
defense work in Alabama.8 (Doc. 165 at 2.)
Laura Patricia Yee is a founder and partner of Glazier Yee LLP with 20 years
experience. Her billing rate is $375 per hour. Brian T. Clark is a partner with 14
years of product liability experience. His billing rate is $345/hour. As an initial
matter, the Court has reviewed the itemization of Ms. Yee’s and Mr. Clark’s fees,
In all of its objections, Plaintiff urges the Court to refer to Honeywell’s attorney
rates of $180/hour and $140/hour as the only evidence of reasonable rates for
asbestos defense work in Alabama. While counsel for Honeywell admitted in its
submission that its rates are “heavily discounted” from their standard rates “in
recognition of the high volume of asbestos litigation around the country” (Doc. 163
at 17), counsel’s firm is located in Birmingham, Alabama, and therefore, it is not
clear that such rates are reasonable in the relevant legal community – Mobile,
Alabama. However, the Court is it itself an expert on the question, and has drawn
upon its own knowledge and experience in setting the rates for all fee applicants.
Norman, 836 F.2d at 1303.
and concludes that a single rate for all partner-level attorneys is appropriate.
There is no indication that the work performed by Ms. Yee required greater
experience or expertise than that of Mr. Clark. Indeed, it appears that Mr. Clark
performed the majority of the work, as he performed 38.1 hours of work while Ms.
Yee performed only 4.5 hours.9 (See Doc. 155-1 at 5-6.). Thus, the Court will
consider what rate is appropriate for work performed by a partner with Mr. Clark’s
experience. See Adams v. Austal USA LLC, 2010 WL 2496396, at *5 * n.10 (Jun.
16, 2010) (assessing attorney fees for partners at a single partner rate where there
was no indication that work on the motion justified greater experience than the
lower fee rate).
Mr. Clark’s experience places him within a range of reasonable hourly rates
of $200 to $250.10 Though Mr. Clark has represented that he has 14 years of
product liability experience, he has been admitted to the bar for 16 years and has
clerked for two judges. Given the Court’s experience and knowledge of other prior
awards under similar circumstances, the Court finds that a rate of $250/hour is
reasonable and appropriate for work performed by a partner with 16 years
Any upward difference in the final award of fees caused by this simplification
will likely be insignificant.
Compare cases cited supra Part III.A.1. (approving $250/hour rate for a partner
with 15 years experience) with Branch Banking, 2012 WL 1987830, at *2
(approving hourly rate of $200.00 and $217.50 for a partner with 14 years
experience); Vision Bank v. Glynn, 2012 WL 685281, at *5 (S.D. Ala. Mar. 2, 2012)
(approving $220/hour rate for an attorney with more than 12 years experience, and
noting that “a reasonable rate for a partner with 12 years of experience is
experience and 14 years of product liability defense experience. See Lifeline
Pharms., LLC v. Hemophilia Infusion Managers, LLC, 2012 WL 2600181, at *3
(S.D. Ala. July 5, 2012) (“Recent awards almost without exception have utilized
hourly rates of $220 to $275 for partners . . . .”).
The remainder of the work was performed by Nina C. Irani, an associate who
has a little more than three years experience, and Song Kim and Caroline Caldwell,
who are litigation support clerks. All three of these timekeepers worked exclusively
on Lockheed Martin’s attorneys’ fees motion. (Doc. 155-1 at 7-8.) While the Court
greatly appreciates the considerable effort Lockheed Martin devoted to preparing
and organizing its fee motion, that work is beyond the scope of the Court’s
September 13 Order.11 Because the lodestars for Irani, Kim, and Caldwell are
In an effort to claim fees beyond the scope of the Court’s September 13 Order,
Defendant has relied on Simpleville Music v. Mizell, 511 F. Supp. 2d 1158 (M.D.
Ala. 2007). In Simpleville, the court granted the plaintiffs’ motion for summary
judgment that the defendant had violated the Copyright Act. Id. at 1160. Plaintiffs
then moved pursuant to 17 U.S.C. § 505 for attorneys’ fees and expenses. Id.
Section 505 “permits the trial court in its discretion to award a reasonable
attorney’s fee to the prevailing party in a copyright infringement action.” Original
Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 832 (11th Cir. 1982).
Thus, the court authorized payment of filing fees, copying costs, and electronic
research fees. In contrast, as described above, the Court’s award of attorneys’ fees
pursuant to the September 13 Order was limited to specific fees, and the limitation
on fees was well within this Court’s broad discretion. Farmaceutisk Laboratorium
Ferring A/S v. Reid Rowell, Inc., 142 F.R.D. 179, 181 (N.D. Ga. 1991). If a court
grants a dismissal without prejudice under Rule 41(a)(2), it possesses broad
discretion in determining what terms and conditions, if any, are appropriate to be
imposed as a condition for dismissal. Pontenberg v. Boston Scientific Corp., 252
F.3d 1253, 1256 (11th Cir. 2001); BMC-The Benchmark Mgmt Co. v. CeebraidSignal Corp., 2007 WL 2126272, at *5 (N.D. Ga. Jul. 23, 2007) (“[S]ubstantial
irrelevant to the ultimate determination of Lockheed Martin’s award, the Court
declines to analyze whether these individuals’ hourly rates and number of hours
expended were reasonable.
2. Partner Hours Reasonably Expended
As discussed above, the lodestar is limited to the reasonable hours worked by
Yee and Clark. Partners Yee and Clark worked a total of 42.6 hours. (Doc. 155-1 at
5-6.) However, Lockheed Martin admits it only spent 31.9 hours on “tasks that the
Court specifically deemed appropriate for reimbursement.” (Doc. 155 at 4.) The
remaining 10.7 hours were spent preparing an answer and disclosure statement,
conferring with co-defendants regarding the joint report, and analyzing the
scheduling order – tasks that Lockheed Martin represents it will need to duplicate
when this case is refilled in Connecticut. Upon careful review, the Court has
confirmed that Lockheed Martin has supported its claim that it spent 31.9 hours on
tasks within the scope of the Court’s September 13 Order. Plaintiff objects to the
31.9 hour total and submits that only 20 of Lockheed Martin’s hours are reasonable.
As evidence, Plaintiff argues that Lockheed Martin claimed to have spent
approximately six hours drafting its own motion for judgment on the pleadings,
even though its motion was only four pages long and “virtually identical” to the
motion that had been filed previously by Boeing. (Doc. 165 at 5.) Plaintiff also
submits that Lockheed Martin claims to have spent more than two full days
discretion is vested in the district court to determine and implement a just
working on the response to Plaintiff’s motion for voluntary dismissal, even though
billing records submitted by UTC reflect that it was responsible for drafting that
brief. (Id. at 6.)
The Court finds that Plaintiff’s first objection is well taken. A comparison of
Boeing’s motion (Doc. 108) to Lockheed Martin’s (Doc. 112) reveals that Lockheed
Martin’s motion is a near replica of Boeing’s. Lockheed Martin raised no novel
arguments, and it is difficult to believe that its attorneys spent 5.7 hours drafting a
virtually identical motion, particularly when it appears that their work was
commenced after Boeing’s motion had been filed and served. (See Doc. 155-1 at 5
(entry from 8/3/12)). The Court declines to credit Lockheed Martin for duplicating
Boeing’s work. See Barnes, 168 F.3d at 428 (“Fee applicants must exercise what the
Supreme Court has termed billing judgment . . . . That means they must exclude
from their fee applications excessive, redundant, or otherwise unnecessary hours.”
(citations and internal marks omitted)).
As for Plaintiff’s second objection, the Court does not agree that counsel’s
work on the motion for voluntary dismissal was necessarily duplicative. “There is
nothing inherently unreasonable about a client having multiple attorneys . . . if they
are not unreasonably doing the same work . . . .” Norman, 836 F.2d at 1302. “An
award for time spent by two or more attorneys is proper as long as it reflects the
distinct contribution of each lawyer to the case and the customary practice of
multiple-lawyer litigation.” Johnson v. Univ. Coll. of Univ. of Ala. in Birmingham,
706 F.2d 1205, 1208 (11th Cir. 1983). It appears that counsel is claiming as many
as 19 hours of work spent preparing and revising the motion for judgment on the
pleadings, conferring with co-defendants, and analyzing grounds for opposing the
motion. However, at least two of the time entries associated with work on the
motion for voluntary dismissal were block billed with other non-compensable tasks.
Block billing is problematic because it hinders the fee opponent
and the Court from determining whether the time spent on each
individual task within the entry is reasonable. The problem is
exacerbated when a block entry includes a facially noncompensable
activity or provides insufficient information to make that
determination. Thus, courts have approved across-the-board reductions
in block-billed hours to offset the effects of block billing. There may be
. . . inefficiencies in requiring counsel to break down their daily
activities more completely, but it is the fee proponent’s burden to show
the reasonableness of its request, and it has ample incentive and
opportunity to cure the problem before it arises by adequate recordkeeping.
Ceres Envtl. Servs., Inc., 2011 WL 1883009, at *4 (internal citation and footnote
omitted). The Court has carefully considered the entries, and concludes that a
further cut of three hours is justified.
After a thorough review of Lockheed Martin’s time sheets, the Court
concludes Lockheed Martin reasonably spent 23.2 hours on work within the scope
the Court’s September 13 Order.
The lodestar amount for Lockheed Martin is $5,800.00 ($250 multiplied by
The Court has considered Plaintiff’s arguments that the lodestar should be
further reduced due to counsel’s unprofessional conduct during a deposition. On
UTC requests $18,732.19 in fees and costs. With leave of the Court, it filed
its motion and billing records under seal. (Docs. 156, 161) As such, the Court will
try to limit any reference to the specific details of the billing records whenever
UTC seeks reimbursement for fees and expenses associated with preparing
and filing its Answer and application for pro hac vice admission on July 16, 2012
and July 17, 2012. For reasons previously articulated, the Court declines to grant
those costs. The Court also concludes that costs billed as “Westlaw Computer
Research” are beyond the scope of the Court’s September 13 Order, and
additionally, the entry is too vague to justify reimbursement. E.g., In re Adam
Furniture Indus., Inc., 1993 WL 13004589, at *9 (Bankr. S.D. Ga. Dec. 10, 1993)
(entry for “research costs” too vague to support reimbursement).
1. Reasonable Rate
UTC has submitted a summary of fees with rates ranging from $110/hour for
RLM, $155/hour for CY, $195/hour for WLR, and $230/hour for NBJ. In support,
UTC has also submitted the affidavit of W. Larkin Radney, IV, in which he avers
that the “billing rates . . . are reasonable given the complexity of this litigation.”
(Doc. 161-2 at 3) Plaintiff objects that these rates are unreasonable, that no
information is provided about the experience and skill level of the individuals
this record, the Court cannot say that counsel’s conduct was so inappropriate that a
further reduction in the lodestar is in order.
charging these hours, and that UTC provides no objective evidence that such rates
are customarily charged for asbestos defense litigation. (Doc. 166 at 4.)
UTC, as the party requesting fees, has not met its burden to supply the Court
with specific and detailed evidence from which the Court can determine reasonable
hourly rates for UTC’s attorneys and paralegals. Barnes, 168 F.3d at 427 (citing
Norman, 836 F.2d at 1303). UTC has failed to provide any information regarding
the four timekeepers on this case. Significantly, there is no clear evidence
designating which initials correspond to a highly experienced partner as opposed to
a paralegal as opposed to a junior attorney. Mr. Radney merely avers in his
affidavit that UTC’s attorneys’ fees are reasonable. This is insufficient. Gaines v.
Dougherty Cnty Bd. of Educ., 775 F.2d 1565, 1571 (11th Cir. 1985) (“Satisfactory
evidence at a minimum is more than the affidavit of the attorney performing the
work.”) (citing Blum v. Stenson, 465 U.S. 886 (1984))).
“Where documentation is inadequate, the district court is not relieved of its
obligation to award a reasonable fee . . . .” Norman, 836 F.2d at 1303. The Court’s
docket sheet reveals that the attorneys to be noticed in this case on behalf of UTC
are: Carter E. Strang, William Larkin Radney, IV, and Christopher Yearout. The
Court presumes that billing entries for “CY” refer to Christopher Yearout and that
“WLR” refers to William Larkin Radney, IV. However, the Court has no
information before it by which it can identify NBJ or RLM and assess their
experience and contributions. Accordingly, fees requested for work purported to be
performed by NBJ and RLM are DENIED. Glynn, 2012 WL 685281, at *5-6
(declining to award fees where fee applicant provides no information about the
As for Messrs. Yearout and Radney, the Court is unable to determine the
reasonableness of their rates because UTC’s fee application is silent as to their
expertise. Because both individuals are listed as “attorneys of record,” the Court is
aware of their status as attorneys, but cannot award fees beyond those appropriate
for an associate with indeterminate experience. Therefore, both attorneys are
awarded a $150/hour rate.
2. Hours Reasonably Expended
Considering the Court’s prior analysis that fees incurred on 7/16/12 and
7/17/12 are non-reimbursable, the Court begins by analyzing Mr. Radney’s 53.4
hours and Mr. Yearout’s 32.5 hours. This work was completed over the course of
twenty days in August.
In addition to objecting that UTC has included fees for work outside the scope
of the Court’s September 13 Order, Plaintiff submits that UTC has claimed too
much time on correspondence regarding the relevant motions, and has submitted
duplicative time for researching and briefing the relevant motions. Plaintiff asks
this Court to reduce the hours claimed by more than half, which would result in an
award of 20 hours for the reply brief (Doc. 150), and 10 hours for the response brief
to the motion to dismiss (Doc. 151).
The Court agrees that included within UTC’s submission is time spent on
tasks unquestionably outside the scope of the Court’s September 13 Order. For
instance, several entries describe UTC’s efforts to coordinate with another codefendant on a summary judgment motion. There are also entries relating to
drafting a motion for extended pages and email correspondence related thereto,
entries relating to research on issues other than Alabama’s statute of limitations,
attorney correspondence relating to filing a joinder motion, drafting the joinder
motion, and various clerical matters, such as gathering exhibits and reviewing of
the court’s briefing schedule. These non-compensable entries are peppered
throughout UTC’s fee submission.
The Court finds it impossible in this case to determine the exact number of
reasonably expended hours due to the fact that UTC’s fee petition does not
adequately separate compensable items from non-compensable items. Moreover,
due to the high number of hours billed over a short period of time, and because
three other defendants were working on identical briefs, the Court is especially
concerned that duplicative work has been billed.
Where an attorney has failed to exercise billing judgment, the court may do
so for him by striking problematic entries or by reducing the hours requested by a
percentage intended to substitute for the exercise of billing judgment. Bivens, 548
F.3d at 1350. This Court finds the latter approach appropriate here. As the
Supreme Court recently recognized:
Trial courts need not, and indeed should not, become green-eyeshade
accountants. The essential goal in shifting fees (to either party) is to
do rough justice, not to achieve auditing perfection. So trial courts
may take into account their overall sense of a suit, and may use
estimates in calculating and allocating an attorney’s time
Fox v. Vice, --- U .S. ---, 131 S. Ct. 2205, 2216 (2011); Hensley, 461 U.S. at 437 (“[A]
request for attorney’s fees should not result in a second major litigation.”).
For the reasons cited herein, the Court finds that a reasonable amount of
time expended by UTC in this case is 40 hours.
3. UTC’s Lodestar
The lodestar amount for UTC is $6,000.00 ($150 multiplied by 40 hours).
As stated herein, Boeing’s, Lockheed Martin’s, and UTC’s motions are
GRANTED IN PART and DENIED IN PART, and Honeywell’s motion is
DENIED in its entirety. Attorney’s fees are granted to the following defendants in
the following amounts:
Lockheed Martin: $5,800.00
DONE and ORDERED this 4th day of December, 2012.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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