CONTINENTAL CASUALTY COMPANY et al v. TRUCKS INC
Filing
12
ORDER granting 9 Motion for Attorney Fees. Ordered by Judge C. Ashley Royal on 12/23/2011 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CONTINENTAL CASUALTY COMPANY, :
AMERICAN CASUALTY COMPANY OF
:
READING, PENNSYLVANIA and CNA
:
CLAIM PLUS, INC.,
:
:
Plaintiffs,
:
:
TRUCKS, INC.,
:
:
Defendant.
:
__________________________________________
Civil Action No.
5:11‐CV‐307 (CAR)
ORDER ON MOTION FOR ATTORNEYS’ FEES
AND APPLICATION FOR DAMAGES
In accordance with the Court’s previous Order [Doc. 8] granting default
judgment as to liability for breach of contract, Plaintiffs Continental Casualty Company;
American Casualty Company of Reading, Pennsylvania; and CNA Claim Plus, Inc.
(“Plaintiffs”) have filed the current Application for Damages, Attorneys’ Fees and Costs
[Doc. 9]. Plaintiffs’ counsel seeks $8,701.50 in attorneys’ fees and $678.79 in litigation
costs incurred in their representation of Plaintiffs. Plaintiffs support their request for
attorneys’ fees with the affidavit of Samuel Thomas, a partner in the New Jersey law
firm of Bressler, Amery & Ross, P.C., which was retained by Plaintiffs to represent them
in this action. In support of their request for damages, Plaintiffs submit the affidavit of
1
Cynthia Goral, an employee of CNA Insurance Companies.1 After careful
consideration, the Court GRANTS Plaintiffs’ Application for Damages, Attorneys’ Fees
and Costs [Doc. 9] and awards the amounts specified below.
Background
On August 11, 2011, Plaintiffs filed a Complaint against Defendant Trucks, Inc.
asserting claims of breach of contract, unjust enrichment, and account stated. Plaintiffs
sought to recover amounts and interest owed by Defendant on several insurance
policies issued by Plaintiffs over a period of three years. When Defendant failed to
respond to Plaintiffs’ Complaint, Plaintiffs sought an entry of default from the Clerk
and simultaneously requested entry of default judgment from the Court.
This Court entered an Order on November 3, 2011 [Doc. 8] finding Plaintiffs
were entitled to default judgment against Defendant because (1) Defendant failed to
appear or otherwise respond after being served with process; (2) through its failure to
respond, Defendant admitted all well‐pleaded allegations in Plaintiffs’ Complaint; and
(3) those allegations were sufficient to establish Defendant’s liability for breach of
contract. However, the Court directed Plaintiffs to make a supplemental evidentiary
showing with respect to damages.
1
Plaintiffs Continental Casualty Company and American Casualty Company of Reading, Pennsylvania
are companies operating under the CNA trademark.
2
Discussion
A.
Application for Damages
As the Court noted in its prior Order, it has an obligation “to assure that there is
a legitimate basis for any damage award it enters.” Anheuser Busch, Inc. v. Philpot, 317
F.3d 1264, 1266 (11th Cir. 2003). Plaintiff’s Application for Damages [Doc. 9] represents
its evidentiary basis for the damages sought in its Complaint [Doc. 1]. Plaintiffs have
now provided copies of each insurance policy issued to Defendant as well as the Claim
Services Agreements, the Finance Agreements, and the Confirmation Letters sent to
Defendant regarding each policy. Pursuant to these agreements, Defendant was
required to pay certain amounts for deductible obligations and claims handling fees, in
addition to maintaining sufficient collateral for the benefit of Plaintiffs to secure
Defendant’s obligations under the insurance policies.
Defendant’s obligations under the policies are calculated quarterly and continue
until all of the claims submitted for coverage are closed. In their Application for
Damages, Plaintiffs have provided invoices detailing the amounts owed by Defendant
pursuant to these quarterly calculations. These invoices show that Defendant is
indebted to Plaintiffs in the amount of $91,023.00 based on past due deductibles and
fees from three quarters: September 1, 2010 to December 1, 2010 ‐ $59,832; December 1,
3
2010 to March 1, 2011 ‐ $16,751; and March 1, 2011 to June 1, 2011 ‐ $14,440. The interest
on these past due invoices is $2,927.62.
Plaintiffs have also produced evidence to support their allegations that
Defendant failed to maintain sufficient collateral for these periods. Plaintiffs’
calculation shows that Defendant is responsible for collateral obligations of $147,159.
Thus, Plaintiffs have provided adequate evidence to demonstrate that they are entitled
to a damages award of $241,109.62. A hearing on damages is not necessary because the
record “adequately reflects the basis for [the] award via … a demonstration by detailed
affidavits establishing the necessary facts.” Adolph Coors Co. v. Movement Against
Racism and the Klan, 777 F.2d 1538, 1544 (11th Cir. 1985) (citation omitted); DIRECTV,
Inc. v. Huynh, 318 F. Supp. 2d 1122, 1129 (M.D. Ala. 2004) (the decision of whether to
hold a hearing on damages rests in the district court’s discretion); S.E.C. v. Smyth, 420
F.3d 1225, 1232 (11th Cir. 2005) (noting that a hearing is not required “where all
essential evidence is already of record”).
B.
Attorneys’ Fees
The insurance policies issued to Defendant provide that Plaintiffs are entitled to
reimbursement for reasonable attorneys’ fees, expenses, and litigation costs necessary to
collect past due amounts. Thus, an award of attorneys’ fees is authorized under the
contracts, and is allowed by Georgia law. See O.C.G.A. § 13‐1‐11. In determining a
4
reasonable amount of attorneys’ fees, the Court must calculate the “lodestar,” which is
the number of hours reasonably spent working on the case multiplied by a reasonable
hourly rate. Dillard v. City of Greensboro, 213 F.3d 1347, 1354 (11th Cir. 2000). The
Court may make adjustments to the lodestar calculation for other considerations not yet
factored into the lodestar amount. Id.; Norman v. Hous. Auth. of Montgomery, 836
F.2d 1292, 1302 (11th Cir. 1988). Factors courts should consider in calculating an award
include: (1) the time and labor required; (2) the novelty and difficulty of the legal
questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to the acceptance of 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
expertise, reputation and ability of the attorneys; (10) the “undesirability” of the case;
(11) the nature and length of the professional relationship with the client; and (12)
awards in similar cases. Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717‐719 (5th
Cir. 1974),2 abrogated in part on other grounds, Blanchard v. Bergeron, 489 U.S. 87
(1989); see also Cable/Home Commc’n Corp. v. Network Prod., Inc., 902 F.2d 829, 853 n.
37 (11th Cir. 1990).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as
binding precedent all decisions of the former Fifth Circuit issued prior to October 1, 1981.
5
The party seeking attorneys’ fees bears the burden of establishing the
appropriate hours and rates. Norman, 836 F.2d at 1303. However, the court “is itself an
expert on the question and may consider its own knowledge and experience concerning
reasonable and proper fees and may form an independent judgment either with or
without the aid of witnesses as to value.” Id.
Here, Plaintiffs seek $8,701.50 in attorneys’ fees for 36.7 hours spent on the case.
Plaintiffs submitted an affidavit and invoices detailing the hours worked and rates
charged. The 36.7 hours encompass the work of five attorneys – partner Samuel J.
Thomas, working 5.0 hours at $330.00 per hour; associate Christopher J. Dos Santos,
working 0.5 hours at $250 per hour; and associate Dennis Kadian, working 23.70 hours
at $225 per hour. Mr. Tomas’ affidavit also addresses the fees incurred by Plaintiffs’
local counsel: attorney Lawrence D. Domenico, working 4.8 hours at $235 per hour; and
attorney Timothy J. Wooten, working 2.70 hours at $235 per hour.
1. Reasonable Hourly Rates
A reasonable hourly rate “is the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills, experience,
and reputation.” Norman, 836 F.2d at 1299. Generally, the relevant legal community is
the place where the case is filed. Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1494
(11th Cir. 1994). Plaintiffs filed this case in Macon, Georgia, and the majority of the
6
events giving rise to this litigation occurred in nearby Jackson, Georgia. Although
Plaintiffs’ attorneys practice in the metropolitan areas of Florham Park, New Jersey and
Atlanta, Georgia, the Court finds that the Macon area is the appropriate legal
community for the purpose of determining reasonable hourly rates.
The Court may use its discretion and expertise to determine the appropriate
hourly rate. This analysis is affected by factors such as skill, reputation, and experience.
Norman, 836 F.2d at 1304. Plaintiff has proposed rates of $330.00 per hour for Samuel
Thomas’ time, $225 per hour for his associates, Dennis Kadian and Christopher Dos
Santos, and $235 per hour for local counsel Lawrence Domenico and Timothy Wooten.
Plaintiffs’ lead counsel, Samuel Thomas, has 17 years of experience, and has
represented Plaintiffs since 1997. While Mr. Thomas certainly has the requisite
experience and skill to effectively prosecute the breach of contract claim involved in this
action, the Court finds that a rate of $330.00 per hour is not comparable to similarly
situated attorneys in Macon and thus reduces his rate to $220.00 per hour.
The Court also finds it appropriate to adjust the hourly rates of Mr. Thomas’s
associates, Dennis Kadian and Christopher Dos Santos. Mr. Kadian has been practicing
in New Jersey for 8 years, and Mr. Dos Santos has been practicing there for 4 years.
However, the Court finds that a rate of $250 per hour is not comparable to the rates of
associates in Macon, and the Court reduces the associates’ rates to $150.00 per hour.
7
Finally, Plaintiffs also incurred local counsel attorneys’ fees. Mr. Domenico and
Mr. Wooten, of the firm Mozley, Finlayson & Loggins, LLP, seek $1,762.50 in fees for
assisting with this matter. Mr. Domenico has been practicing in the Atlanta area for 23
years, and Mr. Wooten has been practicing in the Atlanta area for 10 years. Both
attorneys propose $235 as a reasonable hourly rate. However, based upon careful
consideration of Plaintiffs’ motion and the Court’s own expertise, judgment, and
research into prevailing market rates for attorneys in the Macon area, the Court finds
that local counsel is entitled to $220.00 per hour.
2. Reasonable Hours Expended
In determining reasonable attorneys’ fees, district courts “are not authorized to
be generous with the money of others, and it is as much the duty of courts to see that
excessive fees and expenses are not awarded as it is to see that an adequate amount is
awarded.” American Civil Liberties Union v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999).
Thus “excessive, redundant or otherwise unnecessary hours [should be] excluded from
the amount claimed.” Norman, 836 F.2d at 1301 (quoting Hensley v. Eckerhart, 461 U.S.
424, 434 (1983)). This means a party seeking to recover attorneys’ fees may not be
compensated for hours that would not be billed to a client of means, regardless of the
attorney’s skill, reputation, or experience. See id.
8
Counsel charged a total of 36.7 hours of work on this default judgment case. The
Court finds that 8.2 of those hours are unreasonable. Counsel spent a total of 13.2 hours
drafting the 14‐page complaint in this case. The Court finds it unreasonable that
counsel, who have represented Plaintiffs for 14 years, would spend this much time
drafting a pleading in what is, ultimately, a simple and uncontested breach of contract
case. Granted, this case involves multiple insurance policies, but it was not so complex
that it demanded the work of four attorneys to draft a relatively simple complaint.
Therefore, the hours are reduced as follows: (1) attorney Samuel Thomas’ time will be
reduced by 3.2 hours; (2) attorney Dennis Kadian’s time will be reduced by 3 hours; (3)
attorney Timothy Wooten’s time will be reduced by 1.2 hours; and (4) attorney
Lawrence Domenico’s time will be reduced by 0.8 hours. The Court finds no other
adjustments necessary.
C.
Litigation Costs and Expenses
Plaintiffs also seek $678.79 in litigation costs. Local counsel, Mr. Wooten and Mr.
Domenico, incurred $429.80 in litigation costs, $419.00 on “Metro Legal Support” in
August 2011, and $10.80 for copy charges. Although counsel neglects to explain what
“Metro Legal Support” means, the Court assumes that this cost covered the Clerk’s
filing fee and personal service on the Defendant. The remaining costs include postage,
9
copy fees, and pro hac vice fees. The Court finds these amounts to be reasonable and
awards them in full.
Conclusion
For the foregoing reasons, the Court hereby ORDERS Defendant to pay
Plaintiffs (1) $241,109.62 in damages and interest; (2) $4,786.00 in attorneys’ fees as
calculated in the Appendix to this Order; and (3) $678.79 in litigation costs, for a total
award of $246,574.41. See Coastal Fuels Mktg., Inc. v. Fla. Express Shipping Co., 207
F.3d 1247, 1252 (11th Cir. 2000) (stating that court granting award of attorneys’ fees
should provide a summary table of how it arrived at amount awarded).
SO ORDERED, this 23rd day of December, 2011.
AES/ssh
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
10
APPENDIX
Calculation of Attorneys’ Fees
Thomas
Total Hours Claimed
5.0
Deductions
(3.2)
Total Reasonable Hours
1.8
Reasonable Rate
$220.00
Total Fees
$396.00
Kadian
Total Hours Claimed
23.7
Deductions
(3.0)
Total Reasonable Hours
20.7
Reasonable Rate
$150.00
Total Fees
$3,105.00
Dos Santos
Total Reasonable Hours
0.5
Reasonable Rate
$150.00
Total Fees
$75.00
Wooten
Total Hours Claimed
2.7
Deductions
(1.2)
11
Total Reasonable Hours
1.5
Reasonable Rate
$220.00
Total Fees
$330.00
Domenico
Total Hours Claimed
4.8
Deductions
(0.8)
Total Reasonable Hours
4.0
Reasonable Rate
$220.00
Total Fees
$880.00
Total Fees Awarded:
$4,786.00
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?