Irene Meola v. JKJ Investments Inc et al
Filing
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MEMORANDUM OPINION AND ORDER AWARDING ATTORNEY FEES, COSTS, AND POSTJUDGMENT INTEREST by Magistrate Judge Marc L. Goldman: Defendant shall pay Plaintiff's reasonable attorney fees in the amount of $11,220.00 and post judgment interest in the amount of $3,522.81. (rla)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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IRENE MEOLA,
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v.
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Plaintiff,
JKJ INVESTMENTS INC.,
Defendant.
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Case No. SACV 04-00960-MLG
MEMORANDUM OPINION AND ORDER
AWARDING ATTORNEY FEES, COSTS,
AND POSTJUDGMENT INTEREST
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I.
Procedural Background
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Plaintiff Irene Meola filed this action on August 9, 2004,
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against Defendant for violations of the Americans With Disabilities
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Act 42 U.S.C. §§ 12101 et seq., (“ADA”) and California’s Unruh Civil
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Rights Act, Cal. Civ.Code §§ 51 et seq., alleging that Defendant
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failed to provide accessible hotel rooms. On January 29, 2007, United
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States
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judgment
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included costs and attorney fees. (Docket No. 34.)
District
against
Judge
Alicemarie
Defendant
in
H.
the
Stotler
amount
of
entered
a
default
$14,822.00,
which
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On October 27, 2010, a writ of execution was issued by Judge
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Stotler in favor of Plaintiff in the amount of $14,822.00. Plaintiff
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then commenced a concerted effort to collect the judgment. Plaintiff
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attempted to serve a judgment debtor examination (“JDE”) subpoena on
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Defendant’s registered agent Kirit Bhakta. On November 2, 2011,
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counsel appeared for Defendant and informed the court that Kirit
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Bhakta had moved to Oklahoma and the subpoena had been served instead
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on Mr. Bhakta’s father. The subpoena was quashed.
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A JDE subpoena served on Kirit Bhakta in Oklahoma was quashed
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on February 1, 2011, because it was served outside of this Court’s
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jurisdiction. However, a second JDE subpoena served upon Kamesh
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Nookala, the hotel manager, was deemed effective, and Mr. Nookala was
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ordered to show cause on March 29, 2011, why he should not be held
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in contempt for failing to appear for examination.
On
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March
29,
2011,
Mr.
Nookala
did
not
appear.
However,
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Defendant appeared through counsel and paid the judgment amount in
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full. On the same day, the parties consented to the undersigned
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magistrate judge conducting all further proceedings. Plaintiff now
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seeks a supplemental award of attorney’s fees and costs for the
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efforts made to collect the judgment, as well as postjudgment
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interest. For the reasons discussed below, Plaintiff’s motion is
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GRANTED in part.
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II.
Discussion
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A.
Attorney’s Fees and Costs
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Attorney Raymond G. Ballister, Jr. requests compensation at a
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rate of $425 per hour for 34.4 hours1 for a total of $14,620.00
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Plaintiff additionally seeks costs in the amount of $959.95. The
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The number of attorney hours actually requested is 33.1. However,
adding up the total number of hours claimed equals 34.4 hours.
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total amount of attorney’s fees and costs sought is $15,579.95.
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State law is applied to proceedings supplemental to and in aid
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of a judgment, unless there is an applicable federal statute.
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Fed.R.Civ.P. 69. No federal statute governing an award of attorney
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fees in the postjudgment setting has been brought to the Court’s
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attention. California law provides that a “judgment creditor is
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entitled to the reasonable and necessary costs of enforcing a
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judgment.” Cal. Civ. Proc. Code § 685.040. Recoverable costs may
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include attorneys' fees otherwise allowed by law. Id.; Erickson v.
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Sympathy for the Record Industry ex Rel. Mermis, 2011 WL 1211533 at
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*2 (N.D. Cal. 2011); Carnes v. Zamani, 488 F.3d 1057, 1060 (9th Cir.
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2007)(stating
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incurred in enforcing the judgment when the prevailing party was
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entitled to attorney's fees in the underlying action); see also Berti
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v. Santa Barbara Beach Properties, 145 Cal.App.4th 70, 77 (2007)
that
recoverable
costs
may
include
attorney
fees
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To determine reasonable attorney’s fees, the starting point is
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“the number of hours reasonably expended on the litigation multiplied
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by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
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(1983). This is called the “lodestar” method. The fee applicant must
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submit evidence of the hours worked and the rates claimed. Id. Once
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the
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application has a burden of rebuttal that requires submission of
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evidence
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reasonableness of the hours charged or the facts asserted by the
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prevailing party in its affidavits.” Gates v. Deukmejian, 987 F.2d
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1392, 1397–98 (9th Cir. 1992). All hours that are not reasonably
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expended, or that are excessive or redundant, should be excluded.
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Hensley, 461 U.S. at 434. Hensley also identified twelve factors to
fee
applicant
to
the
has
done
district
so,
“[t]he
court
party
challenging
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opposing
the
the
accuracy
fee
and
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aid a court’s decision when determining the appropriate fee award,
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which are largely undisputed here except for the attorney’s hourly
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rates and hours expended.
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Defendant makes a variety of arguments as to why Plaintiff is
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not entitled to attorney’s fees. First, Defendant claims that the
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underlying
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Plaintiff is not entitled to any attorney’s fees or costs. This
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argument is rejected because Defendant cannot now relitigate the
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merits of the underlying default judgment in its opposition to this
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action
was
meritless
and
fraudulent,
and
therefore,
motion for attorney’s fees and costs.
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Defendant also contends that Mr. Ballister’s hourly rate is not
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reasonable and is inconsistent with the current market rate. The
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Court finds that the hourly rate charged by Plaintiff’s attorney is
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reasonable. As stated in his declaration, Mr. Ballister has been in
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practice for 27 years and has tried numerous cases. He has also
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focused exclusively on disability access cases for the past seven
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years. Ballister Decl. ¶ 13. Plaintiff also submitted the declaration
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of a fee expert and substantial market data confirming that the rates
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charged were appropriate. Rollins Decl., attached as Ex. 1 to
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Ballister Decl. Defendant, in contrast, has submitted no persuasive
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evidence as to the prevailing market rates. Rather, Defendant simply
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criticizes the Rollins Declaration because it was originally filed
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in another case. However, as Plaintiff points out, courts have
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accepted declarations from fee experts filed in other cases. See,
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e.g., Salinas v. Rite Aid Lease Management Co., 2011 WL 1107213, *2
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(C.D.Cal. 2011) (considering the Rollins Declaration at issue here
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as persuasive evidence of prevailing market rates despite its being
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originally filed in another case); Blackwell v. Foley, 724 F.Supp.2d
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1068,
1078
(N.D.Cal.
2010).
Indeed,
in
Salinas,
the
Court
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specifically found that a rate of $425 per hour for Mr. Ballister was
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reasonable in an identical ADA/Unruh case. 2011 WL 1107213 at *1.
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There is no reason to find otherwise here.
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Defendant also objects to various individual billing entries and
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seeks a reduction in the attorney’s fees in the amount of $6,800.00.
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Defendant argues that 3.5 hours charged on January 3, 2011 for online
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research and 4 hours for appearance and travel time at a debtor’s
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examination on October 4, 2010 are not recoverable as costs under the
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California Civil Code. Def.’s Opp. to Pl.’s Motion for Supplemental
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Award of Attorney Fees and Costs at 3. Plaintiff argues that she is
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not seeking to recover the 7.5 hours as a “recoverable cost” under
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the California Civil Code, but rather as part of an attorney’s fees
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award. Pl.’s Reply Brief at 4-5. Defendant also argues that the 4
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hours charged for appearance at an Order to Show Cause hearing on
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November 2, 2010, and again on November 30, 2010, is excessive.
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Defendant similarly contends that the charge of 1.2 hours on November
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20, 2010 for reviewing the Judgment Debtor’s Declaration and response
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to the Court’s Order to Show Cause is excessive. Plaintiff contends
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that Defendant has not adequately described why these hours are
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excessive.
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The Ninth Circuit has established that travel time and clerical
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tasks are reasonably compensated at normal hourly rates if such is
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the custom in the relevant legal market. See Davis v. City & County
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of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992). Reasonable
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travel time from San Diego, where Ballister practices, to Santa Ana
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for necessary hearings is recoverable. The Court finds however, that
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expenditures of time for the three court appearances are excessive.
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All three court appearances shall be reduced by one hour as none of
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them required more than 30 minutes of time and 3½ hours for travel
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is excessive. In addition, Plaintiff seeks attorney fees for 10.1
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hours for on line searches to “see which online travel sites took
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reservations for Judgment Debtor’s Hotel” and for preparing motions
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for assignments of account receivables. None of those motions were
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ever submitted to this Court, nor is there any record of them being
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filed in another district court in the National Pacer Case Locator
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System. The time expended for that work shall be reduced by 5 hours.
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Otherwise, Plaintiff is entitled to the amount of attorney fees and
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costs requested.
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B.
Postjudgment Interest
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Postjudgment interest “shall be allowed on any money judgment
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in a civil case recovered in a district court.” 28 U.S.C. § 1961. A
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“judgment” for purposes of § 1961 means a “final, appealable order.”
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Dishman v. UNUM Life Ins. Co. of America, 269 F.3d 974, 990-991 (9th
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Cir. 2001). Postjudgment interest is calculated “from the date of the
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entry of judgment.” 28 U.S.C. § 1961(a); Kaiser Aluminum & Chem.
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Corp. v. Bonjorno, 494 U.S. 827, 835 (1990). Postjudgment interest
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“shall” be calculated from the date of judgment at a rate “equal to
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the weekly average 1-year constant maturity Treasury yield, as
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published by the Board of Governors to the Federal Reserve System,
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for the calendar week preceding the date of the judgment.” 28 U.S.C.
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§ 1961. The interest is computed daily from the date of judgment to
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the date of payment and compounded annually. 28 U.S.C. § 1961(b).
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Defendant contends that Plaintiff is entitled to postjudgment
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interest only from the date the writ of execution was issued, which
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is October 27, 2010. Plaintiff counters that the interest runs from
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the date of judgment, which is January
31, 2007. The Court agrees
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with Plaintiff. See Dishman, 269 F.3d at 990-991. Thus, Plaintiff is
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entitled to postjudgment interest running from the date of entry of
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judgment, January 31, 2007, up to March 29, 2011, at an interest rate
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of 5.26%. Therefore, the amount of postjudgment interest to which
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Plaintiff is entitled is $3,522.81.
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III. Conclusion
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Plaintiff’s motion is GRANTED. Defendant shall pay Plaintiff’s
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reasonable attorney fees in the amount of $11,220.00 and post
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judgment interest in the amount of $3,522.81.
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Dated: April 28, 2011
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________________________________
Marc L. Goldman
United States Magistrate Judge
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