Precision IBC, Inc. v. Phoenix Chemical Technologies, LLC et al

Filing 61

MEMORANDUM OPINION AND ORDER entered granting in part and denying in part 52 Motion for Attorney Fees. Signed by Magistrate Judge William E. Cassady on 4/19/2017. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PRECISION IBC, INC.,

:

Plaintiff,

:

vs.

:

PHOENIX CHEMICAL
TECHNOLOGIES, LLC,

:
:

Defendant.

CA 15-00637-C

:
MEMORANDUM OPINION AND ORDER

This matter is before the undersigned on Plaintiff Precision IBC, Inc.’s,
(“Precision”) Request for and Submission in Support of Attorney’s Fees and
Expenses (“Request for Attorney’s Fees”), (Doc. 52), filed on February 2, 2017,
and Notice Regarding Supplement to Request for Attorney’s Fees and Expenses,
(Doc. 59), filed on March 29, 2017. The parties have consented to the exercise of
jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all
proceedings in this Court. (Doc. 32 (“In accordance with the provisions of 28
U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties in this case consent to have a
United States magistrate judge conduct any and all proceedings in this case,
including the trial, order the entry of a final judgment, and conduct all postjudgment proceedings.”)). Following a review of the foregoing pleadings, with
attachments, as well as all other relevant pleadings in this matter, the Court
GRANTS IN PART Plaintiff’s Request for Attorney’s Fees, (Doc. 52), as more
fully explained hereinafter.
BACKGROUND

The complaint, (Doc. 1), in this matter was originally filed in this Court on
December 16, 2015, invoking the Court’s diversity jurisdiction and then was
1

assigned to the undersigned, (Doc. 2). On December 27, 2016, Plaintiff Precision
filed its Motion for Summary Judgment and Supporting Brief, (Doc. 45), which
the Court granted on March 28, 2017, (Doc. 58).

Plaintiff Precision filed its

instant motion, (Doc. 52), on February 2, 2017. Defendant Phoenix Chemical
Technologies, LLC, (“Phoenix”) has not filed a response in opposition to Plaintiff
Precision’s Request for Attorney’s Fees. (See Docket Sheet).
DISCUSSION
Plaintiff Precision seeks $33,236.50 in attorney’s fees and expenses, (Doc.
52, at 1), which consists of 129.2 hours of attorney time at a rate of $230.00 per
hour, 16.3 hours of paralegal time at a rate of $125.00 per hour, purchase of a
transcript, postage, and online research fees.

(Doc. 52, at ¶¶ 2-4).

Plaintiff

Precision’s “Equipment Rental Agreement,” (Doc. 1-1), signed by Defendant
Phoenix, states:

“Attorney’s Fees.

In the event that Lessor takes action to

exercise any right or remedy under this Agreement or to enforce any provision of
this Agreement, or if Lessor successfully defends any action brought by Lessee
against it, Lessee will pay all costs and expenses of such action or such defense
incurred by Lessor, including, without limitation, reasonable attorneys’ fees and
costs of litigation,” (Doc. 1-1, ¶ 22(e)).

1

“For federal diversity jurisdiction to attach, all parties must be completely diverse, Strawbridge
v. Curtiss, 7 U.S. (3 Cranch) 267, 267, 2 L. Ed. 435 (1806); Palmer v. Hosp. Auth. of Randolph [Cty.], 22
F. 3d 1559, 1564 (11th Cir. 1994); Tardan v. Cal. Oil Co., 323 F.2d 717, 721-22 (5th Cir. 1963), and the
amount in controversy must exceed $75,000, 28 U.S.C. § 1332(a).” Underwriters at Lloyd’s, London
v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010) (footnotes omitted).

In her affidavit, Attorney Anne Laurie McClurkin, counsel for Plaintiff
Precision, asserts on behalf of her and Anna Bush, the paralegal assigned to this
matter, the number of hours expended and hourly rates charged were
reasonable. (Doc. 52, ¶¶ 2-4 & 6). “Alabama follows the American rule, whereby
attorney fees may be recovered if they are provided for by statute or by contract .
. . .” Jones v. Regions Bank, 25 So. 3d 427, 441 (Ala. 2009) (citations omitted). The
law is clear that “provisions regarding reasonable attorney’s fees are terms of the
contracts susceptible to breach.” Army Aviation Ctr. Fed. Credit Union v. Poston,
460 So. 2d 139, 141 (Ala. 1984); see also Ierna v. Arthur Murray Int’l, Inc., 833 F.2d
1472, 1476 (11th Cir. 1987) (“When the parties contractually provide for
attorneys’ fees, the award is an integral part of the merits of the case.”). Under
Alabama law, such attorney’s fees are recoverable; however, recovery is subject
to Alabama’s imposition of a reasonableness constraint on all fee shifting
contracts, as a mater of public policy. See, e.g., Willow Lake Residential Ass’n, Inc.
v. Juliano, 80 So. 3d 226, 241 (Ala. Civ. App. 2010) (“Alabama law reads into every
agreement allowing for the recovery of attorney’s fees a reasonableness
limitation.”); PNCEF, LLC v. Hendricks Bldg. Supply LLC, 740 F. Supp. 2d 1287,
1294 (S.D. Ala. 2010) (rejecting claim for attorney’s fees in amount of 15% of fund
to be collected, where plaintiff made no showing of its actual attorney’s fee
incurred in enforcing contract). Thus, Plaintiff Precision is entitled to recover
only its reasonable attorney’s fees and costs incurred in collecting the debt.
The calculation of reasonable attorney’s fees is within the sound discretion
of the court. Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1187 (11th Cir. 1983);
Kiker v. Probate Court of Mobile Cty., 67 So. 3d 865, 867 (Ala. 2010). Over thirty
years ago, the Supreme Court indicated “‘the most useful starting point for

determining the amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.’” Watford v.
Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985) (quoting Hensley v. Eckerhart, 461 U.S.
424, 433, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983)).

“The first step in

calculating a reasonable attorney’s fee award is to determine the ‘lodestar’—the
product of multiplying reasonable hours expended times a reasonable hourly
rate.” Martinez v. Hernando Cty. Sheriff’s Office, 579 F. App’x 710, 713 (11th Cir.
2014) (citing Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir.
1999)); see also Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (“The
product of these two figures is the lodestar and there is a ‘strong presumption’
that the lodestar is the reasonable sum the attorneys deserve.”).

The party

moving for fees bears the burden of establishing the “reasonableness” of the
hourly rate and number of hours expended via specific evidence supporting the
hours and rates claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Barnes, 168
F.3d at 427. The court may utilize its own “knowledge and expertise” to come to
an independent judgment regarding the reasonableness of requested attorney’s
fees. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994).
When seeking attorney’s fees, the prevailing party must not request fees
for hours that are “excessive, redundant, or otherwise unnecessary,” or request
fees for unsuccessful claims. Hensley, 61 U.S. at 434-35. When a request for
attorney’s fees is unreasonably high, the court may “conduct an hour-by-hour
analysis or it may reduce the requested hours with an across-the-board cut.”
Bivins, 548 F.3d at 1350.

Likewise, 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.

See, e.g.,

Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.
1988). Notably, “[t]he court, either trial or appellate, is itself an expert on the
question and may consider its own knowledge and experience concerning
reasonableness and proper fees and may form an independent judgment with or
without the aid of witnesses.” Id. at 1303 (citations omitted)
The lodestar figure established by the Court may be adjusted in
consideration of various factors that 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); see also, e.g.,
Pharmacia Corp v. McGowan, 915 So. 2d 549, 552-554 (Ala. 2004); Lolley v. Citizens
Bank, 494 So. 2d 19 (Ala. 1986). These factors are not an exhaustive list of specific
criteria that must all be met. Beal Bank, SSB v. Schilleci, 896 So. 2d 395, 403 (Ala.
2004).
In determining the proper lodestar in this case, the undersigned first
considers what hourly rates are reasonable and then what hours were reasonably
expended in pursuing this matter. In so doing, the Court keeps in mind that “the
fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.” Hensley, 461
U.S. at 437, 103 S. Ct. at 1941.
I.

Reasonable Hourly Rates

“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.’” McDonald [v. ST
Aerospace Mobile, Inc., No. 12-0313-CG-C], 2013 WL 1389976, [at] *3
[(S.D. Ala. April 4, 2013)] (citing Norman, 836 F.2d at 1303). “The
general rule is 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.’” [ ]Barnes, 168 F.3d [ ] at 437
(citing Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1494 (11th Cir.
1994)[)]. . . . The fee applicant “bears the burden of producing
satisfactory evidence that the requested rate is in line with
prevailing market rates.” Norman, 836 F.2d at 1299. “Satisfactory
evidence at a minimum is more than the affidavit of the attorney
performing the work.” Norman, 836 F.2d at 1299.
Cormier v. ACAC Inc., No. 13-0158-CG-M, 2013 WL 6499703, at *2 (S.D. Ala. Dec.
11, 2013). “Also, the court is familiar with the prevailing rates in this district and
may rely upon its own ‘knowledge and experience’ to form an ‘independent
judgment’ as to a reasonable hourly rate.” Garrett Invs., LLC v. SE Prop. Holdings,
LLC, 956 F. Supp. 2d 1330, 1339 (S.D. Ala. 2013) (citing Loranger v. Stierheim, 10
F.3d 776, 781 (11th Cir. 1994)).
Plaintiff requests an hourly rate of $230.00 for Ms. McClurkin and $125.00
for Ms. Bush. (Doc. 52, ¶ 2). Defendant does not take issue with the requested
hourly rates of Ms. McClurkin and Ms. Bush. (See Docket Sheet). The affidavit
supplied by Ms. McClurkin states that the rate charged by her was, previously,
found to be reasonable by the Court, and the rate charged by Ms. Bush is
comparable to prevailing rates in the local market of Mobile, Alabama, see Smith
v. Werner Enters., Inc., No. 14-0107-WS-B, 2015 WL 7185503, at *3 (S.D. Ala. Nov.
13, 2015) (“[T]he general rule is 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. The relevant market is thus Mobile . . . .” (citations and
quotations omitted)) charged by paralegals with similar experience. (Doc. 52, ¶

2). Ms. Bush has thirteen (13) years of paralegal experience that has included
substantial experience assisting with complex civil litigation matters. (Doc. 52, ¶
2).
As Ms. McClurkin stated in her affidavit, the Court previously found
reasonable her hourly rate of $230.00. (Doc. 44, at 6-7). As to Ms. Bush’s hourly
rate, in this market, this Court regularly approves hourly rates of $75.00 for
paralegals. See PNC Bank v. Classic Crab, Inc., Civil Action 15-00459-KD-C, 2016
WL 4257360, at *5 (S.D. Ala. Aug. 11, 2016) (awarding hourly rate of $75.00 for
paralegals with 20 to 21 years of experience and stating “[i]n this market, this
Court regularly approves rates of $75.00/hour for paralegals”); PNC Bank v.
Classic Crab, Inc., Civil Action 15-00459-KD-C, 2016 WL 1587237, at *5 (S.D. Ala.
Apr. 11, 2016) (awarding hourly rate of $75.00 for paralegals with 20 to 40 years
of experience); Goldsby v. Renosol Seating, LLC, 2013 WL 6535253, at *9 (S.D. Ala.
Dec. 13, 2013) (stating the customary hourly rate for paralegals to be $75.00);
Johnson v. TMI Mgmt. Sys., Inc., No. 11-0221-WS-M, 2012 WL 4435304, at *1 (S.D.
Ala., Sept. 26, 2012) (finding $75.00 per hour was a reasonable hourly rate for
paralegal time where movant did not show that paralegals possessed special
qualification or expertise to support an award of a higher hourly rate); but cf. Gulf
Coast Asphalt Co., L.L.C. v. Chevron U.S.A., Inc., No. 09-0187-CG-M, 2011 WL
612737, at *4 (S.D. Ala. Feb. 11, 2011) (finding reasonable an hourly rate of
$120.00 for a paralegal with eleven (11) years of experience); Transmontaigne Prod.
Servs., Inc. v. Clark, No. 09-0023-CG-B, 2010 WL 3171656, at *1 (S.D. Ala. Aug. 10,
2010) (finding reasonable an hourly rate of $120.00 to $130.00 for a paralegal). It
has not been shown that Ms. Bush “possesses unusually advanced qualifications
or expertise, SE Prop. Holdings, LLC v. Green, Civil Action No. 12-0738-WS-B, 2013

WL 790902, at *6 (S.D. Ala. Mar. 1, 2013), to support a higher hourly rate.
Therefore, the Court finds an hourly rate of $75.00 to be reasonable for Ms.
Bush’s work.
II.

Hours Reasonably Expended

“’Fee applicants must exercise what the Supreme Court has termed
‘billing judgment,’ which requires the exclusion of excessive, redundant, or
otherwise unnecessary hours.” Smith, 2015 WL 7185503, at *4 (citations and
internal quotation marks omitted). Indeed, “[i]f fee applicants do not exercise
billing judgment, courts are obligated to do it for them, to cut the amount of
hours for which payment is sought, pruning out those that are ‘excessive,
redundant, or otherwise unnecessary.’” Barnes, 168 F.3d at 428. “Courts 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.”

Id.

“Excluding excessive or otherwise

unnecessary hours under the rubric of ‘billing judgment’ means that a lawyer
may not be compensated for hours spent on activities for which he would not bill
a client of means who was seriously intent on vindicating similar rights,
recognizing that in the private sector the economically rational person engages in
some cost benefit analysis.” Norman, 836 F.2d at 1301. “Moreover, because an
assessment of the reasonableness of the hours requested (at least when objection
is adequately raised by the defendant) contemplate[s] a task-by-task examination
of the hours billed, plaintiffs’ counsel is required to record each task, and the
time associated with each, with sufficient clarity that the Court can evaluate the
reasonableness of the expenditure of time.”
(citations omitted).

Smith, 2015 WL 7185503, at *4

Ms. McClurkin summarizes, in her affidavit, the work she and Ms. Bush
performed:
The file in this matter was opened in approximately November
2015 and began with efforts to resolve the parties’ dispute
concerning unpaid rental fees and damaged equipment through
written correspondence to Defendant, none of which was
answered. On December 16, 2015, I filed the Complaint on
Precision’s behalf. In addition to pre-suit settlement efforts and
preparing the Complaint, the successful prosecution of Precision’s
claims required participation in the Rule 26 discovery conference,
preparation of the Rule 26 planning report, preparing Precision’s
Rule 26(a)(1) disclosures, several rounds of written discovery,
motions to amend Precision’s Complaint based on information
learned during written discovery, preparing a motion to extend the
Scheduling Order based on Defendant’s delay in responding to
discovery, preparing for and taking the 30(b)(6) deposition of the
Defendant, consulting with Precision’s expert and preparing a 15page written report, conferences with Defendant’s counsel
concerning settlement and various other issues, preparing a motion
for summary judgment, including a supporting brief and Affidavit
and other evidentiary materials, preparing a motion to enforce the
Court’s December 1, 2016 Order instructing Defendant to pay
attorney’s fees incurred to prepare Precision’s motion to compel,
attending the recent January 31, 2017 hearing to address
Defendant’s failure to comply with the Court’s December 1 Order
and failure to respond to Precision’s motion for summary
judgment, the preparation of the instant Declaration in support of
Precision’s attorney’s fees and expenses, and preparing the
proposed Order and final judgment as requested during the
January 31, 2017 hearing.
...
Ms. Bush prepared and issued non-party subpoenas, catalogued
and bates stamped Precision’s and Defendant’s document
production, assisted with document review, managed the electronic
file, assisted with gathering exhibits for Precision’s motion for
summary judgment, reviewed deposition testimony to assist with
preparing citations to the record for Precision’s summary judgment
brief, reviewed and calendared Scheduling Order deadlines, and
prepared and summarized records received from Defendant
and/or non-parties.
(Doc. 52, ¶¶ 3-4). Further, Ms. McClurkin states, “It is my opinion that all of the
work described herein was necessary under the circumstances and that 129.2

hours of attorney time and 16.3 hours of paralegal time is a reasonable amount of
time charged to Precision for this work . . . .”

(Doc. 52, ¶ 6).

A detailed

description of the work performed and time to complete tasks by Ms. McClurkin
and Ms. Bush is not provided in the Request for Attorney’s Fees, (see Doc. 52);
however, Defendant Phoenix did not file an objection to the hours requested, (see
Docket Sheet).
Based upon the Court’s knowledge and experience, the Court finds
reasonable Ms. McClurkin’s and Ms. Bush’s invoiced hours.
III.
Attorney
Ms. McClurkin

Lodestar Calculation

Adjusted
Hourly Rate
$230.00

Hours

Amount

129.2

$29,716.00

$75.00

16.3

$1,222.50

Ms. Bush
Total

$30,938.50
After making the appropriate adjustments to the reasonable hourly rates

of the attorneys and factoring the hours reasonably expended, the Court finds
that the lodestar is $30,938.50.
IV.

Adjustments to the Lodestar

While the Supreme Court has made clear that “[t]he product of reasonable
hours times a reasonable rate does not end the inquiry[,]” Hensley, 461 U.S. at
434, 103 S. Ct. at 1940, this Court does bear in mind that “there is a strong
presumption that the lodestar is the reasonable sum the attorneys deserve.”
Bivins, 548 F.3d at 1350 (citations and quotations omitted). “When the number of
compensable hours and the hourly rate are reasonable, a downward adjustment
to the lodestar is merited only if the prevailing party was partially successful in
its efforts.” Id. at 1350-51 (citation omitted). Here, Plaintiff Precision’s motion for

summary judgment was granted in its entirety by the Court.

Therefore, a

downward adjustment to the lodestar is not warranted.
V.

Reasonable Costs and Expenses

Ms. McClurkin, in her affidavit, states additional costs were incurred in
the prosecution of this matter including court reporter fees and the purchase of
Defendant Phoenix’s deposition transcript ($1,352.10), and postage and online
research ($130.90). (Doc. 52, ¶ 7). Upon review, the Court finds reasonable these
costs, and, therefore, approves them.
VI.

Conclusion

Upon consideration of the foregoing, judgment in the amount of
$30,938.50 for attorney’s fees and $1,483.00 for costs and expenses is due to be
entered against Defendant Phoenix for a total of $32,421.50.

Accordingly,

Plaintiff Precision’s Request for Attorney’s Fees, (Doc. 52), is hereby GRANTED
IN PART. To the extent that Plaintiff Precision seeks additional recovery, its
motion is DENIED. Judgment will be separately entered.
DONE and ORDERED this the 19th day of April 2017.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE