Audubon Engineering Company LLC et al v. International Procurement and Contracting Group LLC

Filing 75

MEMORANDUM ORDER: Defendant shall pay Plaintiffs $189,379.11 for attorneys' fees and litigation expenses incurred by Plaintiffs in this action. Signed by Judge Leonard P. Stark on 3/21/16. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUDUBON ENGINEERING COMPANY,
LLC and AUDUBON ENGINEERING
SOLUTIONS, LLC,
Plaintiffs and CounterclaimDefendants,
C.A. No. 13-1248-LPS

v.

INTERNATIONAL PROCUREMENT
AND CONTRACTING GROUP, LLC,
Defendant and CounterclaimPlaintiff.

MEMORANDUM ORDER
At Wilmington this 21st day of March, 2016:
Having reviewed the parties ' filings (D.I. 58, 59, 59-1 , 59-2, 62, 65) related to Plaintiffs
Audubon Engineering Company, LLC and Audubon Engineering Solutions, LLC's ("Plaintiffs"
or "Audubon") Statement of Attorneys ' Fees and Litigation Expenses (D.I. 58) and Defendant
International Procurement and Contracting Group, LLC ' s ("Defendant") Objections to Plaintiffs '
Statement of Attorneys ' Fees and Litigation Expenses (D.I. 62) ("Defendant's Objections"),

IT IS HEREBY ORDERED that, for the reasons stated below, Defendant' s Objections
are OVERRULED and Defendant shall pay Plaintiffs $189,379.11 for attorneys ' fees and
litigation expenses incurred by Plaintiffs in this action.
1.

In the Court' s Opinion granting Plaintiffs ' motion for summary judgment, the

Court held that "Audubon, as the prevailing party, is entitled to attorneys ' fees" and ordered
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Audubon to "submit a statement specifying the amount sought pursuant to the requirements of
Federal Rule of Civil Procedure 54(d)(2)." (D.I. 56 at 9) Audubon submitted a statement
requesting $189,379.11 in attorneys' fees and litigation expenses. (D.I. 58) Defendant objected
to the statement on three grounds: (1) Plaintiffs failed to "allocate their attorneys' fees and
litigation expenses between (i) enforcing the Settlement Agreement, which is covered under the
attorneys' fees provision of the Settlement Agreement, and (ii) the collection action for the
unpaid portion of their engineering fees , which is not covered," (2) Plaintiffs' attorneys did not
submit to the Court "an oath that the fees are reasonable," and (3) one of Plaintiffs' attorneys,

Mr. Mickler, billed an excessive amount of time for his work related to this action and his hourly
rate of $300-$340 was "inappropriate" for a lawyer having about 3-6 years of experience. (See
D.I. 62)
2.

Regarding Defendant's first argument, to the extent Defendant asks the Court to

reconsider its decision (D.I. 56 at 9) to award Plaintiffs attorneys ' fees and litigation expenses,
the Court declines to do so. In addition, the Court rejects Defendant' s argument that Plaintiffs
failed to allocate their requested fees and expenses between time spent enforcing the Settlement
Agreement and time spent working on a "collection action to recover for engineering services
performed by Plaintiffs" under a contract for engineering services. (See D.I. 62 at 2) The
Settlement Agreement expressly provides that the "contract for engineering services" referenced
by Defendant was part of Audubon' s performance obligations under the Settlement Agreement.
(See D.I. 37 Ex. 2 at 2) Defendant argues that terms of the engineering services were "attached"

to the Settlement Agreement (D.I. 62 at 2) (citing language in Settlement Agreement), implying
that the terms were separate and independent of the Settlement Agreement. The Court disagrees.

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Performance of the engineering services was required by the Settlement Agreement. Therefore,
all attorneys ' fees and litigation expenses related to the aforementioned engineering services are
recoverable under Paragraph 11 of the Settlement Agreement, and there was no need for
Plaintiffs to further apportion their requested fees and expenses. (See D.l. 62 at 1) (listing as
recoverable fees and expenses related to "any action to enforce, interpret, or challenge the terms
ofthis [Settlement] Agreement") (emphasis added) Thus, the Court rejects Defendant's first
ground for objection.
3.

Second, regarding Defendant' s objection that Plaintiffs' attorneys did not submit

an oath attesting to the reasonableness of Plaintiffs' requested fees and expenses, Plaintiffs'
attorney, Mr. Cordo, subsequently filed a declaration that the requested fees and expenses were
reasonable. (See D.I. 65 Ex. A) The Court finds Mr. Cordo ' s declaration (D.I. 65 Ex. A) to be
an acceptable representation as to the reasonableness of Plaintiffs' requested fees and expenses.
Therefore, the Court rej ects Defendant' s second ground for objection.
4.

Finally, Defendant argues that one of Plaintiffs' attorneys, Mr. Mickler, billed an

excessive amount of time for his work related to this action and that his hourly rate of $300-$340
was "inappropriate" for a lawyer having about 3-6 years of experience. In Bell v. United
Princeton Properties, Inc., 884 F.2d 713 , 720 (3d Cir. 1989), the Court of Appeals for the Third
Circuit explained that, when presiding over "counsel fee litigation," District Judges "must be
presented with evidence and must make findings based on the evidence." Id. The Bell Court
identified "affidavits" as necessary to establish facts averred by a party challenging a fee
statement. In this case, Defendant has submitted no affidavit or other factual evidence in support
of its objections. "Affidavits are required in such instances because statements made in briefs are

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not evidence of the facts asserted." Id. Because Defendant has submitted no evidence to rebut
Plaintiffs' affidavits supporting their statement of fees and expenses, the Court rejects
Defendant's third ground for objection.
5.

Plaintiffs' attorney, Mr. Cordo, declared that Plaintiffs ' requested fees and

expenses are reasonable and that Mr. Mickler' s rates are reasonable for an attorney with his level
of experience in the Wilmington area. (See D.I. 65 Ex. A at 2) Defendant has presented no
contrary evidence to rebut Mr. Cordo ' s representations, and Mr. Cordo's representations do not
appear to the Court to be facially unreasonable. Accordingly, Defendant' s Objections are

OVERRULED and Defendant shall pay Plaintiffs $189,379.11 for attorneys' fees and litigation
expenses incurred by Plaintiffs in this action.

HON. L NARD P. ST
UNITED STATES DISTRICT JUDGE

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