Allen et al v. City of Grovetown et al

Filing 112

ORDER granting in part 100 Motion for Attorney Fees; granting in part 105 Motion for Attorney Fees; granting 111 Motion to Substitute Party. The Court awards $70,862.00 in attorney's fees and $8,009.16 in costs for a total of $78,871.16. The Clerk shall close this case. Jeremy D. Love, Jr. added. Gloria J. Allen (as next friend of J.D.L., Jr. and M.A.M., minor children of the decedent, Jeremy D. Love, Sr.) terminated. Signed by Judge J. Randal Hall on 02/25/2016. (thb)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN

AUGUSTA

GLORIA J. ALLEN,

FOR THE

DISTRICT OF GEORGIA

as Next

DIVISION

*

Friend of J.D.L., Kr., M.A.M.,
and Z.G.L., minor children of
the decedent, Jeremy D. Love,
Sr., and GLORIA J. ALLEN, as

*
*
*
*

Administratrix of the Estate

*

of Jeremy D. Love,

*

Sr.,

*

*

Plaintiffs,
v.

*

MIKE FREEMAN,

l:10-cv-22

Sergeant,

individually and in his
official capacity as an
officer with the

Grovetown

Police Department, and CHESTER
HOPKINS, Officer, individually
and in his official capacity
as an officer with the

Grovetown Police Department,
Defendants.

ORDER

This case comes before the Court on Plaintiffs'

attorneys'

fees and costs and Plaintiffs'

for the same.

below,
fees

Also

(Docs.

Plaintiffs'

and

costs

pending

100,

105).

motion for

supplemental motion

For the

reasons

discussed

motions are GRANTED IN PART and attorneys'

are AWARDED in the total

before

the

Court

is

amount

of $78,871.16.

Plaintiffs'

motion

to

substitute Jeremy D. Love, Jr. for J.D.L., Jr. as a Plaintiff in
this case.

(Doc. 111). That motion is GRANTED. Finally, in the

Court's Order approving the settlement

(Doc.

101),

the Court,

pursuant

to

Plaintiffs'

S.D.

counsels'

for attorneys'
fees

and

Ga.

L.R.

17.1,

the

Court

now

approval

Plaintiffs'

of

motion

Having granted the motion for
GRANTS

Settlement with respect to Plaintiffs'
(Doc.

its

fee arrangements until

fees was resolved.

costs,

withheld

Plaintiffs'

Motion

for

Local Rule 17.1 petition.

99).

I.

On

June

17,

2015,

BACKGROUND

Defendants

made

the

following

offer

to

Plaintiffs:

Pursuant

to

Rule

68

of

the

Federal

Civil

Procedure,

Defendants

[sic]

to

Judgment

allow

Rules

hereby

to

be

of

offers

entered

against them in this action in the amount of
$100,000.00
(One Hundred Thousand Dollars
and No/100),
including all of Plaintiffs'
claims for relief. This Offer of Judgment is

made

for

the

purposes

specified

in

Federal

Rule of Civil Procedure 68,

and is not to be

construed
Defendants

admission
that
this
action,
or

that

as
are

either
liable

Plaintiffs

have

an
in

suffered

any

damage.

This Offer of Judgment shall not be filed
with the Court unless (a) accepted or (b) in
a proceeding to determine costs.

(Doc.

93,

offer,

Ex.

(emphasis

on June 30,

counsel.

(Defs.'

Defendants,
defense

1)

at

counsel

addition to the

2015,

Opp'n
that
of

added).

Plaintiffs'

Br.,

meeting,

his

Prior to accepting this

Doc.

counsel met with defense

107

at

Plaintiffs'

intention

settlement amount."

to

seek
(Id. )

2).

According

counsel
attorney's
On the

to

"informed
fees

in

same day as

that

meeting,

and

one

day

before

the

offer

expired,

defense

counsel emailed Plaintiffs' counsel to explain that
[t]he

offer

was

to

^allow

entered against them in
amount
of
$100,000.00,
Plaintiff's

claims

for

Judgment

to

be

this action in the
including all
of
relief.'

While

I

understanding
contention in
make clear to

this
may
be
a
point
of
the near future,
I wish to
you and your client that our

intention

the

for

offer

was

to

include

all

costs, fees, or any other relief your client
may be entitled to in this action.

(Id. ,

Ex.

A) .

offer.

The

(Doc.

92,

Plaintiffs

filed

Defendants'

Rule 68

Subsequently,

expenses
Plaintiff

next

under

Ex.

a

offer.

Soon

and

supplemented

accepted

after,

indicating

(Doc.

Plaintiffs

68

Plaintiffs

2) .

notice

Rule

later

day,

on

Defendants'

July

their

3,

2015,

acceptance

93).

moved

42

for

U.S.C.
their

attorneys'

§

1988.

motion

fees

(Doc.

with

105) .

Soon after,

and

100).

additional

argument concerning the appropriate amount of attorneys'
(Doc.

of

fees.

Defendant filed its opposition brief

(Doc. 107), and Plaintiffs filed their reply brief.

(Doc. 110).

The motion is now ripe for adjudication.

Because Jeremy Love,

and

remains

a minor,

the

Jr.

was then a minor,

Court

ordered

and M.A.M.

Plaintiffs

petition for approval of settlement pursuant to S.D.
17.1.,

which Plaintiff filed shortly thereafter.

95 at 3;

Pis.'

On July 20,

the Court granted Plaintiffs'

file

a

Ga.

L.R.

(Order,

Doc.

Petition for Approval of Settlement,

2015,

to

was

Doc.

99).

petition for

settlement

and

ordered

the

Clerk

to

enter

judgment

against

Defendants in the amount of $100,000, but withheld consideration

of

"the

substance

completion

of

and costs."

of

the

parties'

(Doc.

II.

Plaintiffs'

Rule

briefing

17.1

regarding

petition

upon

attorney's

fees

101).

LIABILITY FOR ATTORNEY'S

FEES

AND

COSTS

Federal Rule of Civil Procedure 68 "prompts both parties to
a

suit

to

evaluate

the

risk

and

costs

of

litigation,

and

to

balance them against the likelihood of success upon trial on the
merits."

"plain

Marek

purpose

v.

.

litigation." Id.

Chesny,

.

.

is

473

to

U.S.

1,

5

encourage

(1985).

The

settlement

Rule's

and

avoid

Rule 68(a) provides as follows:

At least 14 days before the date set for
trial, a party defending against a claim may
serve on an opposing party an offer to allow
judgment on specified terms, with the costs
then

accrued.

If,

within

14

days

after

being
served,
the
opposing party serves
written notice accepting the offer, either
party may then file the offer and notice of
acceptance, plus proof of service. The clerk
must then enter judgment.

Fed.

R.

Civ.

to Rule 68,

P.

68(a).

When a party accepts an offer pursuant

she may pursue "costs then accrued."

Id.

In this

case, Plaintiffs seek costs and attorneys' fees pursuant to Rule
68 and 42 U.S.C.

In Marek,

include

§

1988.

the Supreme Court held that costs under Rule 68

attorneys'

fees

in

cases

where

the

underlying

fee

shifting statute defines costs as inclusive of attorneys'
473

U.S.

§ 1988,

case,

at

9.

the

As

the

underlying

statute

Court
issue

at

recognized,
in

Marek

defines costs as inclusive of attorneys'

Court further held that,
included in

a Rule

be

to

assigned

form

Supreme

of

a

however,

those

"lump
not

68

Rule

categories;

sum."

42

and

Id.

necessarily

at

68 does

not

instead,
6.

Such

lump

of

costs.

inclusive

in

this

The

fees may be

require

offers

funds to

may

sum

U.S.C.

Id. -1

fees.

though costs and attorneys'

offer,

fees.

take

the

awards

are,

the

Court

As

acknowledged,

"[i]f

an offer recites that costs are included or

specifies

amount

for

an

costs,

and

the

plaintiff

accepts

the

offer, the judgment will necessarily include costs."

Id. If, on

the

costs

other

included

hand,

and

"the

an

amount

offer

for

does

costs

not

is

state

not

that

specified,

the

are

court

will be obliged by the terms of the Rule to include in its

judgment

an

determines

additional

to

be

Delta Air Lines,
(Powell,

amount

sufficient

to

Inc. v. Augusta,

which
cover

in
the

its

discretion

costs."

Id.

450 U.S. 346, 362, 365

it

(citing

(1981)

J., concurring)).

As Defendants correctly concede, "[t]he crux of the instant

inquiry

turns

Defendants'

on

offer

whether
included

ambiguity

existed

compensations

for

as

to

whether

costs."

(Defs.'

1 42 U.S.C. § 1988(b) provides, in relevant part, that "the
court, in its discretion, may allow the prevailing party ... a
reasonable attorney's fee as part of the costs."

Opp'n Br. at 2).
in

Rule

Utility

68

The Eleventh Circuit has held that ambiguities

offers

are

Automation

to

2000,

Auto

F.3d 617,

Fin.

Ctr.,

Cochise Cnty.,

because

619

plaintiffs

cannot

counteroffer.

Further,

are

because

what

a

(quoting Webb,
the

(6th

terms

Automation

later

found in

for

view,

the

refusing

"left

hold the

Relying

with

II

Erdman

v.

This is

so

offer,

modification
298

in

at

Rule

the

and

or make

F.3d

a

James,

Detroit

1991).

68

a

1244.

offer

position

offer means."

of
Id.

on this principle,

Utility Automation

"$45,000

fees.

Defendants'

Co-op.,

2004);

of

2000,

of

147 F.3d at 623).

offer

or

would be

will

Cir.

(9th Cir.

the

consequences

court

include attorneys'

In

564

879-81

plaintiffs

Eleventh Circuit

defendant's

561,

control

the

offeror.

accord McCain v.

seek clarification

substantial,

guessing

F.3d

Utility

the
Elec.

Chocatwatchee

1998));

926 F.2d 877,

defendants

v.

against

(11th Cir. 2002) (citing Webb v.

(7th Cir.

378

construed

Inc.

Inc., 298 F.3d 1238, 1244
147

be

costs

2000

accrued"

that

the

did

not

Id.

they

"made

a

clear

and

unequivocal

offer to fully and wholly satisfy Plaintiffs." (Defs.' Opp'n Br.

at 2) .

They characterize their offer as a lump sum offer that

represents Defendants' total liability.
Defendant,

this

argument

misses

the

(Id.)
mark.

Unfortunately for
To

be

sure,

the

Supreme Court has blessed "lump sum offers" that do not specify
what recovery compensates for a plaintiff's claim for relief and
what compensates for costs or attorneys' fees.

Marek,

473 U.S.

at 6-7.

The question before the Court, however,

is not whether

it is permissible to enter into a lump sum offer, but whether
Defendants'
includes

offer

is

costs.

unambiguously

In

short,

a

lump

sum

Defendants'

offer

offer

that

does

not

unambiguously include costs.
Two other Circuit Courts of Appeals have considered Rule 68
offers with the exact language as the present offer.

See Sanchez

v.

Cir.

2013);

(3d Cir.

2011).

Prudential

Lima v.

Pizza,

Newark Police

In Sanchez,

Inc.,

709

Dept.,

F.3d

658

689,

F.3d 324,

the defendant's offer provided,

691

(7th

327

in relevant part,

as

follows:

Pursuant

Civil

to

Rule

68

Procedure,

of

the

Federal

Defendant,

Rules

of

PRUDENTIAL

PIZZA, INC., hereby offers to allow Judgment
to be entered against them [sic] in this
action in the amount of $30,000 including
all of Plaintifff s

claims for relief.

709 F.3d at 691 (second emphasis added).

The Seventh Circuit,

relying

Webb

on

ambiguities

its

previous

against

ambiguous and,

the

precedent
offeror,

in

held

on

that

the

interpreting it against the offeror,

construing
offer

was

found that

it did not include costs under Rule 68. IcL_ at 692. The Seventh
Circuit

reasoned

that

"Plaintiff's

claims

for

relief"

"specified terms" as required by Rule 68(a). IcL

are

not

Moreover, the

Seventh Circuit distinguished "claims" for relief from "demands
for relief" and found that attorneys'
plaintiff's claim." Id. at 693.

fees are "not part of a

Similarly,

offer
that

in Lima,

ambiguous,
the

the Third Circuit found the defendant's

interpreted

offer did not

it

against

include costs.

the

658

offeror,

F.3d at

and

333.

held

Just

as

in Sanchez, defendant's offer provided that:
Pursuant

to

Rule

68

of

the

Federal

Rules

of

Civil
Procedure,
Defendants
City
of
Newark . . . and
Garry
McCarthy,
hereby
offers [sic] to allow Judgment to be entered
against

these

defendants

in

this

action

in

the amount of $55,000.00, including all of
Plaintiff's claims for relief against all
defendants

Id.

at

Third

327

(emphasis

Circuit

plaintiff's

found

claims

the

attorney's

for

the

uniquely

....

that

for

fees

injury

added) .

rise

the

Seventh

fees

are

Circuit,

not

part

the
of

a

"Unlike other judicial relief,

allowed under

from

the

attorneys'

relief.

giving

separable

Like

to

§

an

cause

1988

are

not

action.

of

action

compensation

Their

to

be

award

is

proved

at

trial." Id. (quoting White v. N.H. Dep't of Emp't Sec, 455 U.S.
445,

452

(1982)).

As

discussed

above,

in

Utility

Automation

2000,

the

Eleventh Circuit joined the majority of circuits in holding that

ambiguous
offeror.

Rule
298

68

F.3d

offers
at

1244.

are to be
Applying

interpreted against the
this

same

principle,

the

Third and Seventh circuits have held the exact language at issue

in

this

offeror,

case

to

be

ambiguous,

to be exclusive of costs.

and,

interpreted

against

the

The

cases

instance,
Dano's
1995)

cited

by

Defendants'

Restaurant

Defendants

reliance

Systems,

is misplaced.

are

on

Inc.,

distinguishable.

Broadcast
902

Broadcast Music,

Music,

F.Supp.
which

224

For

Inc.

(M.D.

v.
Fla.

implicitly reasoned

that agreements that are silent as to costs include costs,2 was
decided prior to Utility Automation 2000 and its reasoning is no
longer valid.

113,

116

Additionally,

(M.D.

Fla.

1996)

in

the

Blumel

court

v.

Mylander,

interpreted

an

165

F.R.D.

offer

"to

settle all pending claims against him" as inclusive of costs and

attorneys'
precedent

fees.

In

Utility

and

Sanchez

in

Lima,

Defendants'

to

precedent.

Likewise,

858

light

F.2d 397,

the

Automation

which

exclude

401

of

intervening Eleventh Circuit

2000,

the

interpret

costs,

are

more

Court

consistent

1988),

that

exactly

offers

Defendant cites Radecki v.

(8th Cir.

believes

like

with

current

Amoco Oil Co.,

which asserts that requiring

a "laundry list" of relief "runs counter to the purpose of Rule
68

to assume that forms of relief not mentioned are not intended

to

be

included

precedent,

within

Radecki

the

is

sum

offered."

entirely

Automation 2000, 298 F.3d at 1244

2 The

court

Under

backwards.

this

See

circuit's

Utility

("[A]ny ambiguity in the terms

in Broadcast Music identified the

correct

question:

"the silence of the instant parties as to the itemized amounts of the

offer of judgment does not invalidate the offer.

It does,

however,

create the dilemma of which Plaintiffs complain. Does the award
include 'costs?'" 902 F. Supp. at 226. The court, however, went on to
assume the offer included costs and only analyzed whether costs

included attorneys' fees under the substantive statute. Id. at 226-27.
That analysis skips a critical step and is untenable after Utility
Automation 2000.

of an offer must be resolved against its drafter,

absent

a clear

and therefore,

indication to the contrary the accepting party

cannot be deemed to have received its fees or waived the rights
to seek them.").

Defendants

Services,
part of

WL

also

LLC,

for

the

a Defendant's

2117451,

at

*2

misses the mark.

held

cite

liable

whether an

for

unambiguously

that

LLC

(M.D.

is

Ga.

May

21,

Ga.

fees

This

certainly true that a defendant

fees;

the

costs

and

Farm

l:09-cv-186,

2014).

question

settle "all plaintiffs'

includes

v.

"attorney's

'total liability.'" No.

attorney's

offer to

Genetics,

proposition

n.l
It

AGSouth

in

this

claims

attorneys'

2014

point
can be

case

for

fees.

are

is

relief"

On

that

question AGSouth Genetics provides no help because the offer of

judgment explicitly included attorneys' fees.
Without

reference

to

any

legal

Id. at *2.

authority,

Defendants

also

urge the Court to consider extrinsic evidence of an email sent
to Plaintiffs'

counsel

purporting to reveal

the meaning of the words in Defendants'
Third Circuit

criticized the

district

the

intent

offer.

court's

behind

In Lima,

use

of

the

conveying the offer in interpreting the terms of the offer.
F.3d at 331-32.

That email included the phrase,

"if

the

email

658

[the offer

is] accepted, this litigation will be resolved in its entirety."
Id.

at

331.

Because

the

email

is

extrinsic

to

the

offer

itself, the Third Circuit held that "it does not inform whether

the

[o]ffer itself explicitly includes
10

fees and costs."

Id.

For the
will

reasons

not

given by

consider

intentions

the

here.

the Third Circuit
extrinsic

See

id.

in Lima,

evidence

at

of

331-32.

the

the

Court

offeror's

Further,

utilizing

extrinsic evidence to determine the meaning of a Rule

68 offer

could frequently lead to collateral proceedings that disturb the
entire purpose behind Rule
68's

"plain

purpose ... is

litigation.").
required

Utility

68.

To

avoid

defendants

Automation

to

2000,

Cf.

to

298

473 U.S.

encourage

the

at

their

F.3d

offers

at

5

(Rule

and

settlement

problems,

these
make

Marek,

avoid

Eleventh

Circuit

unambiguous.

1244.

The

See

utilization

of

extrinsic evidence to interpret ambiguous offers runs counter to

the reasoning of the Eleventh Circuit's precedent.
In

conclusion,

the

Court

finds

that

Defendants'

offer was ambiguous as to whether costs and attorneys'

Rule

68

fees were

included.

Interpreting the ambiguities in the offer against the

offeror,

the

Court

finds

that

Defendants'

offer

to

settle

"plaintiff's claims for relief" do not include costs under Rule
68.

Accordingly,

pursuant
Marek,

to Federal

attorneys'

III.

"The

Plaintiff

is

Rule of Civil

entitled

Procedure

to

costs

68(a)

accrued

and,

under

fees as well.

AMOUNT OF COSTS AND ATTORNEY'S FEES

starting

point

for

determining

the

amount

of

a

reasonable fee is the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate."
11

Bivins v.

Wrap It Up,

quotations
hourly

Inc.,

548 F.3d 1348,

omitted).

In

rate

and
the

court

number
must

enumerated in Johnson v. Ga.

(5th Cir.

1974) .

"lodestar."

Id.

Id.

v.

Lambert

2000) .

Hous.

v.

entitlement
rates."

Auth.,

fee

and

Norman,

of

is

a

consider

the

Highway Express,

Cnty.,

should be
836

F.2d

151

applicant

hours

twelve

Inc.,

is

factors

488 F.2d 714

F.

the

F.2d at

the Court may

adjusted upward or downward.
1292,

Supp.

bears

documenting
836

(internal

"reasonable"

compensable

After calculating the lodestar,

Fulton

"The

what

2008)

The product of these two figures is the

then consider whether it
Norman

(11th Cir.

determining

what

"reasonable,"

1350

1302

2d

the

1364,

burden

appropriate

1303.

(11th

The

1369

of
hours

Court

Cir.

1988);

(N.D.

Ga.

establishing
and

hourly

should also

be

mindful that a request for attorneys' fees "should not result in
a second major litigation."

Id.

A. Reasonable Hourly Rate

"A reasonable hourly rate is the prevailing market rate in

the relevant legal community for similar services by lawyers of

reasonably comparable skills, experience,
at 1299.

and reputation."

Id.

The "going rate" in the community is the most critical

factor in setting the fee rate.

Martin v. Univ. of S. Ala., 911

F.2d 604, 610 (11th Cir. 1990).

The relevant legal community is

the district in which the court sits.

Knight v. Alabama,

824 F.

Supp. 1022, 1027 n.l (N.D. Ala. 1993) (citing Turner v. Sec'y of
12

Air

Force,

Court

is

944

F.2d

itself

community,

it

804,

808

considered

may

an

consult

independent judgment.

(11th Cir.

expert

its

Norman,

own

1991)).

on

Because

hourly

experience

rates
in

the

in

the

forming

an

836 F.2d at 1303.

Plaintiffs seek an hourly rate of $450.00 per hour for Mr.
Batson's

time,

and $250.00 per hour for Mr.

argue that the $450.00 hourly rate for Mr.
for

two

reasons.

significant

First,

experience

in

because

jail

House.

Batson is reasonable

Mr.

suicide

Plaintiffs

Batson

cases

and

possesses

other

cases

alleging constitutional violations against government officials.
Second,

higher

Plaintiffs

rate

similar

jail

Mr.

legal

that,

Batson

expertise.

relevant

Georgia

for

argue

is

given

suicide

1988's

justified to

Similarly,

community

should

there

are

no

cases"

because

§

in

attract

Plaintiffs
be

who

Augusta.

that

from

"specialize

Defendants

the

lawyers

argue

broadened

lawyers

purpose,

of

the

Augusta,

in

only

oppose

the

reasonableness of these hourly rates.

As

Mr.

experience

Batson's

declaration

in civil rights

attests,

he

litigation and,

has

significant

in particular,

in

advancing the causes of those incarcerated in jails and prisons.
(Batson Decl., Doc. 105, Ex. 1 II 7-29).
that

Mr.

Batson's

contributed to

Mr.

Batson,

their

experience
success

because few,

benefited

in this

if any,

13

The Court has no doubt
Plaintiffs

litigation.

and

According to

Augusta attorneys have this

experience,

Plaintiffs argue that Mr. Batson should recover at a

rate similar to that commanded by attorneys in Atlanta, Georgia.
The Court

if,

may

award a non-local hourly rate

Plaintiffs demonstrate

[the

Southern

[their]
Dep't.

District]

of Transp.,

that the district

29

"a lack of attorneys

who

claims." Barnes,

if,

168

are

willing

F.3d at 437

F.3d 1489,

1494

and

and only

practicing

able

to

in

handle

(citing Cullens v. Ga.

(11th Cir.

1994)

(finding

court did not err by awarding Macon,

Georgia

rates because "plaintiffs did not meet their burden of showing a

lack of Macon lawyers willing or able to handle their individual
claims")).

Comm'n,

2012),

no

Just

No.

as

in

Martin

v.

Augusta

Richmond

2012

WL

5950408

(S.D.

l:12-cv-58,

Cty.,

Ga.

Nov.

Ga.,

28,

Plaintiffs have not put forth any evidence that there are

local

handled

attorneys
this

counsel's

"believe [s]

case.

affidavit

that

with

the

Instead,
that

[he is]

skills

and

Plaintiffs

indicates

that

familiarity
rely

on

to

have

Plaintiffs'

Plaintiffs'

counsel

the only person in Augusta with

[his]

level of knowledge and experience,"3 and that he "believe [s] that
no lawyers would want to invest in the expert because they would
not appreciate the facts involved."

(Batson Decl.

This

there

evidence

does

not

prove

that

attorneys able to take this case on;

3 Although written as

a tautology,

were

rather,

the

11 38,

not

any

40).
local

it merely proves

Court understands Mr.

Batson to mean that he believes he is the only attorney in Augusta
with significant experience in this field.
14

that

Plaintiffs

evidence

is

insufficient to support an Atlanta billing rate. See Barnes,

168

F.3d at

A

did

not

know

of

any.

This

437.

court

consider its

"is

itself

an

expert

on

the

question

and

may

own knowledge and experience concerning reasonable

and proper fees and may form an independent judgment either with
or

without

Stierheim,

the

10

aid

F.3d

776,

may command fees at

believe

that

the

of

witnesses

781

as

to

(11th Cir.

value."

1994).

a higher rate in Atlanta,

Augusta

legal

market

Loranger

Although

v.

counsel

the Court does not

would

bear

such

billing

for the services rendered in the present case

This

Court

has

previously

approved

$250.00

per

reasonable billing rate in the Augusta legal market.
v. Consumer Law Grp.

Nov.

6,

2012);

et al.,

No.

l:ll-cv-187,

Johnson v. YKK Am.,

Inc.,

Doc.

No.

hour

as

a

See Guzman
91

(S.D.

3:07 cv 048,

Ga.

Doc.

171 (S.D. Ga. Apr. 29, 2010); Ingram v. Kellogg's Sales Co., No.
l:09-cv-021,

Doc. 39 (S.D. Ga. Feb. 24, 2010);

Ruben Chevrolet,

6,

2009) .

And,

Inc.,

No.

l:06-cv-195,

Doc.

Salazar v. Milton
86

(S.D.

Ga.

Mar.

as Defendant notes, recognizing that two years

have passed since the Court assessed the above-mentioned cases,
the

Court

recently

billing rate.
152,

2015

WL

approved

$275.00

per

Raiford v. Nat'l Hills,
195983,

at

*2

(S.D.

Ga.

hour

as

a reasonable

Exch., LLC, No.
Jan.

14,

2015);

l:ll-cvM.I.T.,

Inc. v. Medcare Express, N. Charleston, LLC et al., No. l:14-cv081,

Doc.

12

(S.D. Ga. Oct.

14, 2014).
15

Upon consideration of the Johnson factors,
relevant

legal market

and counsel's

including the

experience and expertise,

the Court sets the billing rate at $275.00 per hour
Batson.
Mr.

for Mr.

The Court also approves a rate of $250.00 per hour for

House.

B. Hours Reasonably Expended

When
exclude

exercising

excessive,

proper

redundant,

from fee applications.
(11th

Cir.

1999).

unreasonable

reputation,

to

"billing

otherwise

ACLU of Ga. v. Barnes,

"[H]ours

bill

or

judgment,"

a

excluded

client"

without

or experience of counsel.

are

unnecessary

must
hours

168 F.3d 423,

those

reference

Norman,

attorneys

that
to

would

the

428
be

skill,

836 F.2d at 1301.

"[A] lawyer may not be compensated for hours spent on activities
for which he would not bill a client of means who was seriously

intent

on

vindicating

similar

rights,

recognizing

that

in

the

private sector the economically rational person engages in some
cost benefit analysis."

Id.

If fee applicants do not exercise billing judgment,
should do it for them.

See Barnes,

168 F.3d at 428

("Courts are

not authorized to be generous with the money of others,
is as much

courts

and it

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.").

The decision to prune hours is thus squarely

within the Court's discretion.

Columbus Mills v. Freeland,

16

918

F.2d

1575,

1301) .

If

claimed

1580
a

is

(11th Cir.

district

1990)

court

unreasonably

(citing Norman,

does

high,

find that

"[it]

has

the

two

936

F.2d

number

of

choices:

at

hours

it

may

conduct an hour-by-hour analysis or it may reduce the requested
hours with an across-the-board cut."
Plaintiffs
Jack

Batson,

(Batson

spent

which

Decl.).

260.6

this

the

the

hours

particular,

preparing

Ex. A at 3),

case

declaration

itemizes
In

hours

(Batson Decl.,
with

provide

(Batson

Bivins,

Mr.

548 F.3d at 1350.

of
he

Plaintiffs'
spent

Batson

filings

and

on

counsel

this

declares

conducting

case.

that

he

discovery

17.43 hours in phone time associated

Decl.

1

52;

Id.

emailing (Batson Decl. 1 53; Id. Ex. C).

Ex.

B) ,

and

8.9

hours

Plaintiff also seeks 3

hours spent preparing the fee application.

(Dec. Batson Decl. 1

55) .

Defendant has not disputed the reasonableness of the hours

spent or the costs expended in litigating this case.

However,

the absence of an objection does not relieve the Court of its

duty to conduct an independent review of Plaintiffs'

request.

In conducting the review, the Court notes that its efforts have

been complicated by numerous deficiencies in the billing summary

prepared

by

Plaintiffs'

counsel.

Some

entries

reflect

an

inordinate amount of time allocated to tasks while other entries

appear unrealistically

low.

The Court's

experience

suggests

that billing summaries with such deficiencies are evidence of a

lack

of

proper

time-keeping

efforts
17

by counsel.

As

it

is

impractical
time

that

to attempt
may

have

to determine

been

under

the appropriate

billed

on

amount

certain

work,

of
the

Court's review is limited to addressing any overbilled entries.
To

do

otherwise

would

simply

reward

counsel

for

sloppy

recordkeeping.

The Court's review has resulted in a number of adjustments.
These

adjustments

Batson

claiming

§ 1988

and

of

10

Rule

With

two types:

that

68;

of

are

and

the

hours

at

F.3d

compensable

hours).

of

hours

reasonableness
Loranger,

are

781-783

hours
respect

from
to

the

(1)

adjustments

non-compensable
(2)

under

adjustments

expended

on

the

(distinguishing

the

to

42

based

the

adjustments,

Mr.

U.S.C.
on

litigation.

determination

first

due

the

See

determination

of

reasonable

"[t]he

Supreme

Court has clearly stated that the time that is compensable under
§ 1988 is that reasonably expended on

782
of

(internal
the

quotations

relevant

federal

the litigation."

omitted).

"Time

litigation

is

expended independent

not

The Court determines that the 7.25 hours Mr.

June 30 and July 1,

the

compensable."

Id.

Batson requests for

2015 concern probate court proceedings that

are not compensable

Additionally,

Id. at

in this case.

3

hours

Mr.

(Doc.

Batson

105,

spent

Ex.

2 at 3) .

preparing

his

attorneys' fee application are excluded because those hours were
not accrued at the time of the Rule 68 offer.

The

Court

requested hours.

now

determines

Four

entries
18

the

reasonableness

on Mr.

Batson's

fee

of

the

request

evidence

"excessive,

redundant,

or otherwise

unnecessary"

time

spent litigating this case.

Id.

(quoting Hensley v. Eckerhart,

461 U.S.

The

December 30,

hours

424,

434

expended

motion

to

(1983)).

preparing

reconsider

a

the

brief

Court's

in

part,

an

points

excessive

addressed

motions.
hours

and

14

contained

Robinson.

Court

(Doc.

to

and

at 9-15).

at all,

another
the

Mr.

reduces

to

is,

Defendants
at

least

reargue

on

the

this

the

in

same

underlying

request

from

20

Chief

To the

brief

in

opposition

to

summary

attempt

to

re-litigate

the

Court's

Defendants

61).

reconsider

Grovetown

briefs

sur-reply

dismissing

Order

attempt

Court

Plaintiffs'

hours.

Plaintiffs'

judgment

Robinson

redundant

the

of

dismissing

Plaintiffs'

in

Accordingly,

to

support

Order

City of Grovetown and Police Chief Al

2010 entry of 20

City

In this brief,

its
of

Order

of

and

Al

Plaintiffs again asked the

dismissing

Police Al

Grovetown

Robinson

Defendants
from the

City

case.

extent re-raising these issues was

of
(Id.

warranted

Batson's decision to bring these issues before the

Court in a sur-reply brief to an unrelated motion made by the

remaining Defendants does not constitute the appropriate method

for doing so and is redundant to Plaintiffs'
motion

for

reconsideration.

portion of the
Court reduces Mr.
Ex.

To

account

previously denied
for

the

sur-reply brief addressed to this
Batson's fee request on this entry

2 at 2) from 15 hours to 11 hours.

19

redundant

topic,

the

(Doc.

105,

Mr.

Batson

Plaintiffs'
request

also

opposition

does

Plaintiffs'

not

to

specify

60

summary
how

hours

of

fees

judgment.

these

hours

related

(Id.).

were

The

divided

response brief and response to Defendants'

of Material Facts.
for

requests

summary

found

Mr.

Batson

in

fee

between

Statement

The Court's Order denying Defendants'

judgment

to

violation

motion

of

Local

Rules 7.1 and 56.1 because his response to Defendant's statement

of

and

facts

was

"have

"inappropriately

consistently

resources."

(Doc.

of material

fact that

discussed

above

Accordingly,

63

is

the

at

inundated

frustrated
36).

the

with

legal

Court

and

arguments"

wasted

its

Preparing responses to statements

include the excessive legal argumentation
an

unreasonable

Court

reduces

use

the

of

counsel's

requested

time.

hours

for

opposition to summary judgment from 60 to 50.

Likewise, the July 16, 2014 entry for 15 hours on a motion
to

reconsider

unnecessary

the

because,

Court's

as

denial

the

of

Court's

summary

Orders

judgment

(Docs.

63,

was

65)

explain, Mr. Batson's violation of Local Rules 7.1 and 56.1 "had
no effect on the disposition of [Defendants'] motion for summary

judgment," which was, in fact, denied.

(Doc. 65 at 3).

If Mr.

Batson felt the need to challenge the Court's determination even

though

it

did

not

affect

his

client,

then

those

hours

were

"spent on activities for which he would not bill a client of
means."

Norman,

836 F.2d at 1301.

20

The Court determines that

the

15

hours

expended

on

that

motion

was

unreasonable,

and,

therefore, reduces Mr. Batson's fee request by that amount.
After

making

calculates

the

that Mr.

above-mentioned

adjustments,

Batson spent a total

of

244.68

the

Court

recoverable

hours in litigating this case.

Plaintiffs also request reasonable attorney's
time

incurred

evidence

104,

of

Ex.

by

23.70

2

at

counsel
hours

1-2) .

probate proceedings
this

case.

finds
this

Stanley

worked

Many

in

of

Mr.

on

behalf

those

Mr.
of

worked

14.3

Mr.

Batson

requests

however,

are not

review of the

House

House

(Doc.

compensable

hours

the

concerned

evidence,

recoverable

for

submitted

Plaintiffs.

hours,

state court that

After the Court's

that

House.

fees

in

the Court

as

part

of

case.

In passing,
time.

(Doc.

99, Ex.

1 at 2) .

52.65

hours

in

paralegal

No description of how that time

was spent appears in the record.

The Court DENIES recovery of

Mr.

House

Batson's

estimates

was

paralegal
six

time.

hours

of

Mr.

paralegal

also
time

requests
spent

what

he

preparing

"petitions of administration and organizing the GBI records."
(Doc.

104, Ex. 2 at 2) .

As the Court has mentioned elsewhere,

the time spent working with the petitions of administration is
not compensable in this proceeding.

Though the GBI records are

relevant, without a more detailed breakdown of how much time Mr.
House spent organizing those records,

the Court DENIES recovery

of the six hours of Mr. House's paralegal time.
21

C. Lodestar

Based
case

on

the

above,

the

Court

finds

the

lodestar

in

this

to be:

Batson: $275.00/hour at 244.68 = $67,287.00
House: $250.00/hour at 14.3 hours = $3,575.00.
Thus,

Court

the

total

therefore

of attorneys'

lodestar in this

GRANTS

IN PART

case

is

Plaintiffs'

$70,862.00.

motion

for

The

recovery

fees in the amount of $70,862.00.

D. Costs

Plaintiffs

also

Batson of $7,217.57

expert
(Doc.

costs,
104,

Plaintiffs'

incurred

costs
2

costs.

by

Mr.

litigation

(Batson Decl.

and

Ex.

claim

at
In

Batson

relevance to this case.

1 54;

incurred
3) .
the

by

costs
Id.

Mr.

Defendant
Court's

and

Mr.

Ex.

D),

House
does

view,

House

incurred

are

not

of

Mr.

exclusive of

of

some

by

$1,385.59.
object

of

the

to

costs

questionable

In particular, the Court finds that the

expenses incurred by Mr. House between May and October 2009 were
not incurred as part of this case.

Similarly, the $350.00 paid

by Mr. Batson to the Columbia County Probate Court in July, 2015
is not recoverable because it was not part of this case.
Court therefore finds that Mr.

of

$6,867.57

and

Mr.

House

The

Batson incurred recoverable costs

incurred

22

recoverable

costs

of

$791.59.

Accordingly,

the Court GRANTS

IN PART

Plaintiffs'

motion for a total of $8,009.16 in costs.

IV.

PLAINTIFFS'

LOCAL RULE 17.1 MOTION FOR APPROVAL

In the Court's July 20,
approval of
the

minor

Plaintiffs'
Mr.

House

reflects
Court

best.

children

motions

the
at

agreement,

the Court reserved the

any fee arrangement between Plaintiffs'
Plaintiffs

same
a

that

his

to

can

(House Aff.,

Having awarded attorneys'

be

104,

after

fee

as

and costs.

Mr.

that

1 1

Batson and Mr.

recover

fees

respective

discussed above.

to settle

(Doc.

With that,

99)

with

101).

Plaintiffs
though

the

House's

Mr.

as

of

fee

bare-bones

Id. , Ex.

2

at

at

21).

fees and costs as described above, the

Court now ORDERS that Mr.

their

with

from

12;

(Doc.

Batson,

characterized
Ex.

counsel and

consideration

arrangement

decipher

only
Doc.

fees

fee

contingency

loss

which

until

for attorneys'

declares

is

2015 Order,

and

costs

House are permitted to

only

in

the

the Court GRANTS Plaintiffs'

respect

amounts
motion

to the remaining question of

the fee arrangements and Local Rule 17.1.

V.

The

Court

attorneys'

GRANTS

CONCLUSION

IN PART

Plaintiffs'

motion

for

costs

fees. The Court AWARDS $70,862.00 in attorneys'

and $8,009.16 in costs for a total of $78,871.16.
the Court GRANTS Plaintiffs'

and

fees

Additionally,

motion pursuant to Local Rule 17.1

23

(Doc.

99) .

Order,

J.D.L.,

case

as

mentioned

in

the

introduction

to

this

the Court GRANTS Plaintiffs' motion to substitute Jeremy

D. Love,

111).

Finally,

Jr., who is now an adult,

as a party in this matter for

Jr. a minor child of decedent Jeremy D.

Love Sr.

(Doc.

At the Court's order, the Clerk entered judgment in this
on

resolved,

July

20,

2015.

(Doc.

102).

With

these

motions

there are no longer any pending motions in this case;

accordingly, the Clerk shall CLOSE THIS CASE.

ORDER ENTERED at Augusta,
February,

Georgia,

this _^2^$J daY of

2016.

HONOR^BIiEXr. RANDAL HALL

UNITEDJsTATES DISTRICT JUDGE
IRN DISTRICT OF GEORGIA

24