American Southern Insurance Company v. Peavy Construction Company, Inc. et al

Filing 44

ORDER GRANTING Plaintiff's 41 Petition and AWARDING Plaintiff attorneys' fees in the amount of $28,070.12. Signed by Senior Judge Callie V. S. Granade on 06/04/2019. (mab) (Main Document 44 replaced on 6/4/2019) (mab). (Main Document 44 replaced on 6/4/2019) (mab).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AMERICAN SOUTHERN
INSURANCE COMPANY
Plaintiff,
vs.
PEAVY CONSTRUCTION
COMPANY, INC., JOHN R.
PEAVY, AND KATHLEEN
PEAVY, Individually, Separately
and Severally,

)
)
)
)
)
) CIVIL ACTION NO. 17-0385-CG-N
)
)
)
)

Defendants.
ORDER
This matter is before the Court on Plaintiff American Southern Insurance
Company’s (“ASIC’s”), Final Accounting of Attorneys’ Fees (Doc. 41). Plaintiff seeks
and award of attorneys’ fees in the amount of $28,070.12. Upon consideration of the
petition and exhibits presented unto the Court, the petition is GRANTED and
Plaintiff is awarded attorneys’ fees in the amount of $28,070.12.
I. The Attorney’s Fee Standard
This Court has previously determined that Plaintiff is entitled to an award of
attorney’s fees. (Doc. 40). Additionally, Defendant was given an opportunity to
object to the final accounting of attorneys’ fees submitted by Plaintiff but made no
such objection. Therefore, the Court will determine whether the amount sought by
Plaintiff is reasonable.
Generally, “[t]he starting point for calculating a reasonable attorney’s fee is

“the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate” for the attorney’s services. Norman v. Housing Authority of
the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); See Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). To make this determination, the district court
should consider the relevant factors among the twelve factors identified in Johnson
v. Georgia Highway Express, Inc.1 Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350
(11th Cir. 2008) (citing Johnson, 488 F.2d 714, 717–719 (5th Cir. 1974)). The
product of these two numbers is referred to as the “lodestar” and there is a strong
presumption that the lodestar represents a reasonable fee. Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 552 (2010).
After calculating the lodestar, “[t]he court may then adjust the lodestar to
reach a more appropriate attorney’s fee, based on a variety of factors, including the
degree of the plaintiff’s success in the suit.” Assoc. of Disabled Americans v.
Neptune Designs, Inc., 469 F.3d 1357, 1359 n.1 (11th Cir. 2006). “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.” Bivins, 548 F.3d at 1350–51; Cf. Mock v. Bell Helicopter Textron, Inc., 456

The Fifth Circuit instructed the district court to consider, on remand, the following
factors: (1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service properly; (4) the
preclusion of other employment caused by accepting the case; (5) the customary fee;
(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
attorney’s experience, reputation, and ability; (10) the “undesirability of the action;
(11) the nature and length of the relationship between the attorney and client; and
(12) awards in similar cases. 488 F.2d 714, 717–19.
1

2

F. App’x 799, 802 (11th Cir. 2012) (affirming a 25% reduction for lack of success in
an ADEA action). The presumption that the lodestar is reasonable “may be
overcome” and the lodestar enhanced “in those rare circumstances in which the
lodestar does not adequately take into account a factor that may properly be
considered in determining a reasonable fee.” Perdue, 559 U.S. at 554 (citations
omitted). The fee applicant “must produce specific evidence” that the “enhancement
was necessary to provide fair and reasonable compensation.” Perdue, 559 U.S. at
553 (citations omitted).
Although the “Johnson factors are to be considered in determining the
lodestar figure; they should not be reconsidered in making either an upward or
downward adjustment to the lodestar — doing so amounts to double-counting.”
Bivins, 548 F.3d at 1349 (citing Burlington v. Dague, 505 U.S. 557, 562–563 (1992);
Perdue, 559 U.S. at 553 (“an enhancement may not be awarded based on a factor
that is subsumed in the lodestar calculation.”); Barnes v. Zaccari, 592 F. App’x 859,
871 (11th Cir. 2015) (citing Bivins, 548 F.3d at 1349).
A. Reasonable hourly rate
The reasonable hourly rate is generally “the prevailing market rate in the
legal community for similar services by lawyers of reasonably comparable skills,
experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895–896 n. 11, 104
S.Ct. 1541 (1984); Norman v. Housing Authority of the City of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988). The “relevant market” is the “place where the case is
filed.” American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir.

3

1999) (citation and internal quotation marks omitted). 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. In determining a reasonable
hourly rate, Johnson factors three and nine—“the skill requisite to perform the
legal service properly” and “the attorney’s experience, reputation and ability”—may
be considered. Further, although the Court does not give controlling weight to prior
awards, those awards are relevant and instructive in determining whether the
“requested rate is in line with prevailing market rates” in this judicial district for
attorneys of reasonably comparable skill, experience, and reputation to that of
Ladenheim seeking an award of fees. Norman, 836 F.2d at 1299. 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. Loranger v. Stierheim, 10 F. 3d 776, 781 (11th Cir. 1994) (citing
Norman, 836 F. 2d at 1303).
Plaintiff seeks attorneys’ fees for the efforts of its counsel, Brian Miller of
Brown & Ruprecht, PC, formerly of Wright & Green P.C, and James P. Green of
Wright & Green P.C. for the time they spent litigating this action from April 2016
to April 2019. (Docs. 41, 41-1, 43, 43-1, 43-2). Plaintiff’s counsel seek an hourly
rate of $190.00. Initially, in support of its request, ASIC referred to copies of the
checks paid to Wright Green, P.C in the amounts of $2,094.39, $8,004.50, and
$2,511.08 for its representation of ASIC from August 2017 to November 2018 (Doc.
35-1 at 54-57) and Mr. Miller submitted an Affidavit and an itemization of the

4

hours he billed with the description of the work performed from January 2019 to
April 2019 and that amount totals $12,781.15. (Docs. 41; 41-1). According to the
pleading and Affidavit ASIC sought $28,070.12 in attorney’s fees. (Id.) However,
upon review of the documents submitted, this Court ordered ASIC to supplement its
final accounting so that this Court could determine the reasonableness of the total
amount of fees sought, not just the amount sought from January 2019 to April 2019.
(Doc. 42). In response, ASIC resubmitted its motion seeking $28,070.12 in
attorneys’ fees along with an amended Affidavit of Mr. Miller and an itemization of
the hours billed by both Mr. Miller and Mr. Green from April 2016 to April 2019.
(Doc. 43-1). The Amended Affidavit indicates that the total amount of fees billed to
ASIC was $33,523.12. (Id.) No mention is made of the difference in the fees sought
and the fees calculated per the Amended Affidavit and supporting itemization and
the final accounting filed by Plaintiff.
As to skill and experience, Miller has twenty four years’ experience. (Doc. 411 at 1). Mr. Green was admitted to the Alabama bar in 1979. (Doc. 43-1). Mr.
Miller attests that an hourly rate of $190 an hour is in accordance with the fees that
are customarily charged by attorneys who handle similar claims in Mobile,
Alabama. Again, Defendant has not objected to the amount of attorneys’ fees being
sought. Upon consideration of the relevant Johnson factors and the submissions of
counsel and based on this Court’s own knowledge and experience, the Court finds
$190 per hour is a reasonable hourly rate.
B. Hours reasonably expended

5

“Counsel for the prevailing party should make a good faith effort to exclude
from a fee request hours that are excessive, redundant or otherwise unnecessary,
just as a lawyer in private practice ethically is obligated to exclude such hours from
his fee submission.” Hensley, 461 U.S. at 434. Therefore, a district court should not
allow any hours which are “excessive, redundant, or otherwise unnecessary”, such
as hours “that would be unreasonable to bill to a client and therefore to one’s
adversary irrespective of the skill, reputation or experience of counsel.” Norman,
836 F.2d at 1301 (emphasis omitted). “Redundant hours generally occur when more
than one attorney represents a client”, although “they may all be compensated if
they are not unreasonably doing the same work and are being compensated for the
distinct contribution of each lawyer.” Id. at 1301–02.
Generally, “[w]hen 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 the requested hours with an across-the-board-cut.”
Bivins, 548 F.3d at 1350 (citation omitted). If the district court employs an acrossthe-board cut, it must “provide a concise but clear explanation of its reasons for the
reduction.” Loranger v. Stierheim, 10 F.3d 776, 784 (11th Cir. 1994).
To determine the hours reasonably expended, the Court may consider the
first and second Johnson factors: the time and labor required and the novelty and
difficulty of the question. A review of the submissions indicates that Mr. Green
billed 12.8 hours for his involvement in this action and Mr. Miller billed 159.1 hours
for his involvement from June 2017 to April 2019. The itemization submitted to

6

this Court indicates that the total hours billed to ASIC included the following tasks:
pre-suit communications relating to bond claims and indemnification, research and
investigation of claims; drafting of Complaint; multiple and continued
correspondences with the parties regarding the status of case and satisfaction of
terms of a previous proposed settlement; Draft, edit, and revision of a Motion for
Summary judgment and all supporting documents including an affidavit; and draft
and revise reply to response to summary judgment. (Doc. 41-1). Considering the
relevant Johnson factors and the history of this action, the Court finds that the
hours expended in this action by counsel are reasonable. However, despite its effort,
this Court is unable to reconcile the amount of fees requested per ASIC’s final
accounting ($28,070.12) (Docs. 41,43) and the amount itemized ($33,523.12). (Doc.
43-1).
C. Calculating the lodestar
The Court has determined that Plaintiff is entitled to an hourly rate of $190
per hour for the services performed by Miller and Green and that counsel
reasonably expended 171.9 hours in this action. Accordingly, the lodestar is
$32,661.2 However, based on ASIC’s request for fees in the amount of 28,070.12, a
lack of explanation between the requested amount and the amount referred to in
the Amended Affidavit, the Court finds it necessary to adjust the lodestar in this
action to the requested amount of $28,070.12.3

This amount differs slightly from the billed $33,523.12 because the total billed
Because the discrepancy is unexplained and because the itemization submitted
with the Amended Affidavit relates to fees which were paid prior to ASIC’s motion
2
3

7

III. CONCLUSION
Based upon consideration of the above analysis, attorneys’ fees are
AWARDED to Plaintiff in the amount of $28,070.12 for attorneys’ fees incurred in
litigating this action.
DONE and ORDERED this 4th day of June, 2019.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

for summary judgment being filed, it appears that the more accurate amount is that
reflected by adding the amounts of the checks paid by ASIC (Doc. 35-1 at 54-57)
plus the amounts that counsel indicates was billed in the months following (Doc. 43,
43-1). Otherwise, by awarding $33,523.12, ASIC would be reimbursed for amounts
that were billed (per the itemization) but were never paid (per the checks) for
whatever reason.
8