Gacek v. Owens et al

Filing 40

Order IMPOSING a SANCTION against Plfs as set out. Dft Owens is awarded attny's fees & expenses in the amount of $23,821.73; Dft Fillingim is awarded attny's fees & expenses in the amount of $6,780.00; Dft Fontenot is awarded attny's fees & expenses in the amount of $11,604.34; & Dft Hoffman is awarded attny's fees & expenses in the amount of $4,159.50. Signed by Senior Judge Callie V. S. Granade on 10/13/2016. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARK R. GACEK and PAMELA
GACEK,
Plaintiff,
vs.
JENE OWENS, JUDGE
GRADDICK, individually and in
his official capacity, GARY
FILLINGIM, ANTHONY
HOFFMAN, GILBERT
FONTENOT,
Defendants.

)
)
)
)
)
) CIVIL ACTION NO. 15-662-CG-M
)
)
)
)
)
)
)
)
)

ORDER
This matter is before the Court on the Defendants’ responses (Docs. 32, 33,
34, 35) to this Court’s Order awarding the Defendants attorneys’ fees and expenses,
Plaintiffs’ objection to the requested fees and expenses (Doc. 36), and Defendant
Owens’ reply to Plaintiffs’ objection (Doc. 39). This Court, by Order dated August
31, 2016 (Doc. 31), imposed a sanction against Plaintiffs, in the form of attorneys’
fees and expenses. This Court found that Plaintiffs’ Complaint was not only
frivolous but was filed in bad faith and that sanctions were appropriate to deter
repetition of the conduct and to compensate the Defendants. (Doc. 31, p. 10). The
Court ordered Defendants to file an accounting with supporting affidavits of any
fees and expenses they incurred in defending this action and ordered Plaintiffs to
file any response they had to the reasonableness of the fees and expenses
submitted.

Generally, the determination of reasonable attorneys’ fees begins with a
determination of the reasonable hourly rate multiplied by the “hours reasonably
expended.” 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.” Id. (internal citations and
quotation omitted). When making this “lodestar” determination, the Court may
consider the twelve factors identified in Pharmacia Corp. v. McGowan, 915 So.2d
549, 552–53 (Ala. 2004). These factors are:
(1) [T]he 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.
Id. (quoting Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)).
After the lodestar is determined by multiplication of a reasonable hourly rate
times hours reasonably expended, the Court must next consider the necessity of an
adjustment for results obtained. If the party achieved an excellent result, then the
Court should compensate for all hours reasonably expended. Popham v. City of
Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987). If the party achieved limited
success, then the Court may reduce the amount of fees that is reasonable in relation
to the results obtained. Hensley v. Eckerhart, 461 U.S. 424, 436–37 (1983). In doing
so, the Court may attempt to identify specific hours spent in unsuccessful claims, or
2

it may simply reduce the award by some proportion. Id.
The party seeking fees has the burden of supplying the Court with sufficient
evidence from which the Court can determine the reasonable hourly rate for the
attorneys and staff who worked on the litigation. Norman v. Hous. Auth. of City of
Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). A reasonable hourly rate is
often “the prevailing market rate in the relevant legal community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.”
Garrett Investments, LLC v. SE Prop. Holdings, LLC, 956 F. Supp. 2d 1330, 1339
(S.D. Ala. 2013). In that regard, “[s]atisfactory evidence at a minimum is more than
the affidavit of the attorney performing the work.” Norman, 836 F.2d at 1299
(citation omitted). When reviewing attorneys’ fees, the Court may rely upon its own
“knowledge and experience” to form an “independent judgment” as to a reasonable
hourly rate. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing
Norman, 836 F.2d at 1303); see also Garrett Investments, LLC, 956 F. Supp. 2d at
1340-41 (compiling market rates for attorneys with varied amounts of experience).
The party seeking to recover fees also has the burden of establishing
reasonable hours. Lee v. Krystal Co., 918 F. Supp. 2d 1261, 1266 (S.D. Ala. 2013).
Reasonable hours are established through billing statements or invoices that state
with sufficient particularity the nature of the work performed and by whom so the
Court may determine the reasonableness of the time expended. And if 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

3

excessive, redundant, or otherwise unnecessary. Norman, 836 F.2d at 1301.
“Courts are not authorized to be generous with the money of others.” ACLU of Ga. v.
Barnes, 168 F.3d 423, 428 (11th Cir. 1999).
Jeffrey R. Sport, as counsel for Defendant Jene Owens, filed a declaration
with supporting exhibits claiming attorney’s fees in the amount of $22,695.00
consisting of 82.3 hours for litigating the case at a rate of $250 per hour and 10.6
hours for preparing and litigating the fee application at a rate of $200 per hour.
(Doc. 32). Mr. Sport also claims costs in the amount of $6.75 for an AlaCourt page
overage charge for researching attributed to this case and $17.98 for certified mail
service. (Doc. 32-1, p. 4). Mr. Sport later submitted a reply that included an
updated time summary showing an additional 5.9 hours spent preparing the reply
to Plaintiffs’ objection to his fee application. (Doc. 39). William M. Cunningham,
Jr., as counsel for Defendant Gary W. Fillingim, Jr., filed a declaration with
supporting exhibits claiming attorney’s fees in the amount of $6,780.00, consisting
of 22.6 hours at a rate of $300.00 per hour. (Doc. 33). Thomas H. Benton, Jr., as
counsel for Defendant Anthony Hoffman, filed an affidavit with an attached
accounting claiming attorney’s fees totaling $4,159.50, consisting of 14.1 hours at a
rate of $295.00 per hour. (Doc. 34). Lastly, Richard Maples, Jr., as counsel for
Defendant Gilbert Fontenot, submitted affidavits and supporting documents
claiming attorney’s fees in the amount of $11,675.00, consisting of 46.7 hours at a
rate of $250 per hour, plus expenses in the amount of $18.94, for a total request of
$11,693.94. (Doc. 35).

4

Plaintiffs object to the amount of hours expended by attorneys Sport and
Maples as excessive and contends they should be more in line with attorneys
Cunningham and Benton. Plaintiff also asserts that Sport’s hourly rate should be
reduced to $200 per hour. In the alternative, Plaintiff suggests the Court may
choose to simply cut the fee awards by a percentage so that they are in line with the
amounts claimed by Cunningham and Benton.
Attorney Sport has been practicing in Alabama for approximately 10 years
and has been a solo practitioner since 2014. (Doc. 32, pp. 1-2). Mr. Sport submitted
the affidavit of attorney David F. Daniel who opined that the legal services provided
by Sport “were superior, involving substantial factual and legal issues in a rather
novel area of law” and “the result obtained was superior, not only as to the outcome,
but also with respect to the time frame within which this result was obtained.” (Doc.
32-3, p. 3). Mr. Daniel is familiar with the fees charges for services by lawyers
practicing in this area in similar matters in this federal forum and avers that the
prevailing fee range for such non-contingent hourly work by attorneys of Mr. Sport’s
experience is between $225 and $325.00 per hour. (Doc. 32-3, p. 3). Mr. Daniel also
avers that the hours incurred by Mr. Sport in defending the case “were necessary
and reasonable in light of the legal and factual issues presented, the result
obtained, and the compressed time frame within which the result was obtained.”
(Doc. 32-3, p. 3-4). The Court notes that Mr. Sport spent considerably more time
defending Mr. Owens than the other counsel incurred in defending the other
defendants. However, counsel for the other defendants had the advantage of being

5

able to simply follow Mr. Sport’s lead and adopt his arguments in defense of their
clients. It was not necessary for the other attorneys to spend as much time on this
matter because Owens and his counsel did most of the work for them. As such it is
not reasonable to compare the times spent by Sport to that of the other attorneys
and expect them to be similar. If Sport had not put the time and effort he did into
this matter, the other attorneys would have either had to incur more hours in their
defense or the defendants would not have obtained the swift favorable result that
occurred. The Court notes that the attorneys Plaintiffs want to compare Sport’s
work to (Mr. Benton and Mr. Cunningham) charged more per hour for the work
they did.
Plaintiffs and Sport quibble over whether compensation is appropriate for
“background research.” However, Mr. Sport makes clear that the research
Plaintiffs object to was not for background research but to review the statutes and
cases cited by Plaintiffs in their complaint and to review procedural rules and case
law to support Owens’ motions and responses to Plaintiff’s motions.
Mr. Sport concedes that the time entry of .6 hour on March 11, 2016 was
“largely procedural in nature,” but states that the time was incurred by him
because he did not have an assistant to perform the tasks. Sport appears to admit
that the hourly rate charged for that entry should be reduced and the Court agrees.
Mr. Sport cites case law in which this Court previously found that an hourly rate of
$120 for a paralegal with 11 years experience was reasonable. See Gulf Coast
Asphalt Co. v. Chevron U.S.A., Inc., 2011 WL 612737, *4 S.D. Ala. Feb. 11, 2011).

6

Accordingly, the Court finds the .6 hours incurred on March 11, 2016 should be
charged at a rate of $120 per hour.
After reviewing Mr. Sport’s detailed accounting of the hours spent on this
matter, the Court finds that the time charged was reasonable and necessarily
incurred. The Court also finds that the rate of $250 per hour charged by Mr. Sport
for the majority of his time was reasonable considering the fees customarily charged
for similar services by attorneys of his experience, the nature of the subject matter
and the measure of success achieved. A portion of the fees (10.6 hours for preparing
and litigating the fee application and 5.9 hours associated with Sport’s reply to
Plaintiffs’ objection to his fee application) was only charged at a rate of $200 per
hour, the rate advocated by Plaintiff. Additionally, as discussed above, the Court
will reduce .6 of the hours charged by Sport to the rate of $120 per hour. Thus, Mr.
Sport’s reasonable fees are the following:
Hours

Rate

Amount

81.7

$250

$20,425.00

10.6

$200

$2,120.00

5.9

$200

$1,180.00

.6

$120

$72.00
Total: $23,797.00

Mr. Sport also claims costs in the amount of $24.73, which has not been
objected to. The Court notes that the cost total includes $6.75 in AlaCourt page
overage charge. Although Pacer and AlaCourt charges are frequently not
recoverable since parties to cases can view the documents in their cases without
7

incurring a charge attributed to that case, this case involved prior state court cases
in which Mr. Sport did not appear as counsel. The Court notes that Mr. Sport did
not include as a cost his regular subscription payment to AlaCourt, but only the
overage charge attributed to litigation of this case. (Doc. 32-2, p. 1). As such, the
Court finds it is appropriate to include the AlaCourt charge as a reasonable cost in
this case.
Plaintiffs make only a general objection to the fees incurred by Maples,
asserting that they are unreasonable in comparison to the fees charged by Mr.
Cunningham and Mr. Benton. Mr. Maples has been practicing for 44 years and
seeks to be reimbursed for 46.70 hours at a rate of $250 per hour. The Court finds
Mr. Maples’ hourly rate, which is less than that charged by Cunningham or Benton,
is reasonable, given the fees customarily charged for similar services by attorneys of
his experience. A review of Mr. Maples’ time entries indicates that one of the main
differences between the number of hours charged by Mr. Maples and the number
charged by Cunningham and Benton is that Maples spent considerable time
researching and preparing a Rule 11 motion. That motion was never filed,
presumably because Plaintiff moved for voluntary dismissal without prejudice on
February 16, 2016. (Doc. 21). The Court, after reviewing Mr. Maples’ accounting
finds that the times charged were reasonable. Accordingly, the Court will award
Mr. Maples fees in the amount of $11,675.00.
Mr. Maples also seeks expenses in the amount of $18.94, for PACER charges
and certified mail postage. As mentioned above with regard to Mr. Sport’s

8

expenses, Pacer charges are usually not recoverable since parties to cases can view
the documents in their cases without incurring a charge. The parties received a
“free look” at all filings in their case and Mr. Maples has offered no explanation why
any PACER charges were necessarily incurred in this case. See Lee v. Krystal Co.,
918 F. Supp. 2d 1261, 1275 (S.D. Ala. 2013) (“the PACER charge is not documented
or explained in any meaningful way, and appears invalid given that litigants in this
District Court get a “free look” at all filings in their case, with no PACER charges”).
Accordingly, the amount requested for PACER usage, $3.60, will be disallowed. The
Court finds the charge of $15.34 for certified mail was reasonable.
As to the fees and expenses requested by Mr. Cunningham and Mr. Benton,
the Court finds that the amounts submitted are reasonable and were necessarily
incurred in litigating this case. The affidavits submitted by Mr. Cunningham and
Mr. Benton support their requested hourly rate and the number of hours they
incurred in litigating this matter are reasonable.
The Court notes that the fees and expenses to be awarded in this case are
considerable, given that there was no discovery conducted and there was no trial or
hearings in this case. The total amount to be awarded is $46,451.57. The size of
the award is due in part to the number of parties involved. The Court found above
that the amounts were reasonable, but also finds that the award is especially
warranted in light of the Plaintiffs’ history of litigation abuse. As stated in the
order finding sanctions appropriate, “[a] court must fashion a sanction that not only
punishes the wrongdoer but also deters future misconduct.” Belak v. American

9

Eagle, Inc. 2001 WL 253608, *5 -6 (S.D. Fla. March 12, 2001) (citing USX Corp. v.
Tieco, Inc., 189 F.R.D. 674, 678 (M.D. Ala. 1999)). The Court believes this award is
necessary to both reimburse the Defendants and to deter any future litigation abuse
by the Plaintiffs.
CONCLUSION
For the reasons stated above as well as those stated in this Court’s previous
order of August 12, 2016 (Doc. 31), a SANCTION is hereby imposed against
Plaintiffs as follows:
1. Defendant Jene Owens is awarded attorney’s fees and expenses in the
amount of $23,821.73;
2. Defendant Gary Fillingim is awarded attorney’s fees and expenses in
the amount of $6,780.00;
3. Defendant Gilbert Fontenot is awarded attorney’s fees and expenses in
the amount of $11,690.34; and
4. Defendant Anthony Hoffman is awarded attorney’s fees and expenses
in the amount of $4,159.50.
DONE and ORDERED this 13th day of October, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

10