Massey, Inc. et al v. Moe's Southwest Grill, LLC et al

Filing 339

ORDER denying as untimely 286 Motion for Attorney Fees. Defendants may re-file a motion for attorneys' fees when this action has been resolved as to all Plaintiffs. Signed by Judge Richard W. Story on 12/21/2012. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MASSEY, INC., et al..,
Plaintiffs,
v.
MOE’S SOUTHWEST GRILL,
LLC, et al.,
Defendant.

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CIVIL ACTION NO.
1:07-CV-0741-RWS

ORDER
This case comes before the Court on Defendants’ Motion for Attorneys’
Fees and Memorandum in Support (“Def.s’ Motion”) [286]. After reviewing
the record, the Court enters the following Order.

Background
This case has been ongoing for over five years and has involved
extensive motions practice and discovery. On April 17, 2012, this Court
granted partial summary judgment for Defendants and dismissed the claims of

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twelve Plaintiffs.1 (April 2012 Order, Dkt. [285].) Defendants now seek
attorneys’ fees in the amount of $1,026,893.61 from the losing Plaintiffs, jointly
and severally. (Defendants’ Detailed Itemization and Documentation of
Attorneys’ Fees (“Def.s’ Itemization”), Dkt. [314] at 2.) Specifically,
Defendants seek fees for document review, motions practice, and depositions
related to the losing Plaintiffs’ claims. (Id. at 10-14.) As of the date of this
Order, twelve other Plaintiffs remain parties to this action.

Discussion
Defendants argue that they are entitled to recover attorneys’ fees under
the Market Development Agreements (“MDA”) executed by each of the twelve
losing Plaintiffs. (Def.s’ Motion, Dkt. [286] at 5-12.) The losing Plaintiffs
argue, among other things, that it would be improper to hold them responsible
for all of Defendants’ attorneys’ fees, including those incurred in relation to the

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The twelve losing Plaintiffs on summary judgment include: 3M Restaurants, LLC; CCM
Restaurants, LLC; JFM Restaurants, LLC; The Jimmy Legs Group, LLC; John McKeown;
Moe’s Bros, LLC; Moe’s Brunswick, LLC; Rounding Third, LLC; SMI Restaurants, LLC;
Taylor Investment Partners, II, LLC; David Titshaw; and Edward Tronnes. The Court
notes that several other Plaintiffs in the action were voluntarily dismissed throughout 2010
and 2011.

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claims of other dismissed and active Plaintiffs in the lawsuit. (Plaintiff’s
Memorandum of Law in Opposition to Defendants’ Motion for Attorneys’ Fees
(“Pl.s’ Mem.”), Dkt. [303] at 19-20.) The Court agrees with Plaintiffs.
Even assuming that Defendants are entitled to attorneys’ fees under the
losing Plaintiffs’ MDAs, Defendants’ motion to recover these fees is premature.
There are twelve Plaintiffs remaining in the lawsuit, including two (Neil
Griffeth and Gryphmore Foodservices of Kentucky, Inc.) that survived the
Court’s partial granting of summary judgment. (See April 2012 Order, Dkt.
[285] at 22-23.)
Defendants claim they have made reasonable deductions “to remove fees
and costs related to portions of the case unrelated to the 12 Plaintiffs against
whom judgment was entered.” (Def.s’ Itemization, Dkt. [314] at 10.)
Specifically, Defendants do not seek fees and expenses incurred in connection
with depositions of Plaintiffs other than the losing Plaintiffs and “other fees and
expenses have been deducted based on counsel’s current inability to determine
definitively whether such fees are reasonably related to the claims of the losing

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Plaintiffs.”2 (Id. at 11-12.) However, Defendants do seek fees from the losing
Plaintiffs incurred, since the inception of the case, for motion practice and
document review related “to the causes of action asserted by these 12 losing
Plaintiffs.” (Id. at 12-13) (emphasis added).
Defendants argue that recovering fees jointly and severally against the
twelve losing Plaintiffs is reasonable under the circumstances. (Id. at 14.) In
support of this argument, they claim that “breaking down the work with respect
to each Plaintiff would in many cases be next to impossible, because the claims
asserted by each Plaintiff substantially overlap, such as fraud, Georgia RICO,
and negligent representation, which all of the losing Plaintiffs asserted.” (Id. at
14.) This is precisely why the Court finds Defendants’ motion premature.
All of the Plaintiffs in the case, including the twelve remaining Plaintiffs
and Plaintiffs voluntarily dismissed earlier in the litigation, asserted claims for
Georgia RICO, fraud in the inducement and fraudulent omissions, and negligent
misrepresentation and negligent omission – the claims primarily at issue
through the summary judgment phase. (See Second Amended Complaint, Dkt.

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Defendants list these deductions in Exhibit 8 [314-11], but provide no
information regarding how these deductions are related to losing versus non-losing
Plaintiffs.
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[94] ¶¶ 73-95.) Therefore, Defendants’ document review and motion practice
with regard to these causes of action were arguably incurred to defend against
all Plaintiffs, not just the twelve that were dismissed on summary judgment.
Consequently, the Court agrees that it is improper at this stage to require the
twelve losing Plaintiffs (to date) to bear all of Defendants’ attorneys’ fees.
Because this action has not been resolved as to all Plaintiffs and because
Defendants may be entitled to (and may seek to) recover attorneys’ fees from
remaining Plaintiffs that have asserted the same causes of action as the losing
Plaintiffs, the Court will not award attorneys’ fees at this time.

Conclusion
Based on the foregoing, Defendants’ motion is DENIED as untimely.
Defendants may re-file a motion for attorneys’ fees when this action has been
resolved as to all Plaintiffs.
SO ORDERED, this 21st day of December , 2012.

________________________________
RICHARD W. STORY
United States District Judge
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