Mercury Companies, Inc. v. Comerica, Bank

Filing 41

ORDER that the defendant, Comerica Bank, shall have and recover from the plaintiff, Mercury Companies, Inc., the amount of $168,511.83 as fees and expenses paid by the defendant in obtaining judgment of dismissal of this civil action, by Judge Richard P. Matsch on 6/2/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 13-cv-01921-RPM
MERCURY COMPANIES, INC.,
Plaintiff,
v.
COMERICA BANK,
Defendant.
_____________________________________________________________________
ORDER FOR AWARD OF ATTORNEYS’ FEES
_____________________________________________________________________
On February 26, 2014, the defendant Comerica Bank (“Comerica”) filed a motion
for award of attorneys’ fees and expenses [Doc. 22] seeking $168,511.83 for legal
services in obtaining the dismissal of this civil action by this Court’s Memorandum
Opinion and Order, entered on February 12, 2014 (Doc. 20). The plaintiff, Mercury
Companies, Inc. (“Mercury”) acknowledges an entitlement to an award under the terms
of the Credit Agreement but argues that Comerica cannot now recover it because it
failed to file a contingent claim in the bankruptcy proceeding and the debt is thus
discharged. That argument is rejected. Mercury voluntarily pursued this action after
confirmation of its Chapter 11 Plan which failed to preserve the claims asserted. This,
then, creates a post petition debt incurred by Mercury.
Mercury also challenges the reasonableness of the fees requested. It argues
that much of the work done by counsel was not necessary because of the briefing done
in the related case, Mer, LLC v. Comerica Bank, 12-cv-02116-RPM. That case was
dismissed without consideration of the merits of the claims made. In this case those

merits were considered in addition to the determination that the claims had not been
retained. The forty-page complaint contained detailed factual allegations to support
claims for breach of contract and implied covenant of good faith and fair dealing,
requiring extensive briefing. The damages sought were $15 million and the briefing of
the legal issues was extensive.
Different from ordinary motions to dismiss, extensive factual investigation was
required to counter the plaintiff’s response brief, including declarations of Tom H.
Connolly and Lars H. Fuller.
The award of fees in this case is pursuant to a contract. This differs from
requests made under a fee-shifting statute. The defendant is entitled to recover what it
actually paid for legal services so long as the amounts paid are reasonable. This does
not require a lodestar analysis. Upon consideration of the affidavits and billing
information provided, this Court finds and concludes that the amount requested,
$168,511.83, is reasonable.
Comerica also seeks payment for services not yet billed in filing its motion for
reconsideration of this Court’s order deferring determination of the fee request pending
appeal. That request was made because of the defendant’s concern that it may not
recover its fees because Mercury’s assets will be distributed pursuant to the Chapter 11
liquidating plan before the appeal is determined.
That request is denied. These services are much like efforts to collect on a
judgment and do not come within the terms of the Credit Agreement,
Upon the foregoing, it is

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ORDERED, that the defendant, Comerica Bank, shall have and recover from the
plaintiff, Mercury Companies, Inc., the amount of $168,511.83 as fees and expenses
paid by the defendant in obtaining judgment of dismissal of this civil action.
DATED:

June 2nd, 2014
BY THE COURT:

s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge

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