Raiford et al v. National Hills Exchange, LLC et al

Filing 176

ORDER awarding to RBS Consulting, LLC, through their attorney John C. Dabney, the sum of $29,084.59 in costs, to be paid in equal shares by Plaintiffs and Defendants within fourteen days of the date of this Order. Signed by Judge J. Randal Hall on 01/14/2015. (thb)

IN THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

J. WAYNE RAIFORD and B,
ENTERPRISES, LLC,

T & R

*
*
*

Plaintiffs,

*
*

v.

*

CV 111-152

*

NATIONAL HILLS EXCHANGE,

LLC;

*

SNELLVILLE CROSSING, LLC;
RICHARD D. SWOPE; RONALD J.

*
*

DeTHOMAS; JAMES S. TIMBERLAKE;
THOMAS L. ABERNATHY; and

*
*

STEVEN E.

*

GAULTNEY,

*

Defendants.

*

ORDER

This

("RBS")
that

matter

Bill

of

statement

is

before

Costs
of

the

(Doc.

costs

Court

172)

(Doc.

on

RBS

Consulting,

and Defendants'

173).

On November

LLC's

objections
17,

2014,

to
the

Court held a hearing on Plaintiffs' Motion for Order to Show Cause
(Doc.

RBS,
an

163) .

In that motion,

Plaintiffs asked the Court to make

a computer forensics firm retained by Plaintiffs to conduct
audit

Defendants,

that

the

Court

authorized

as

a

sanction

against

appear and substantiate its billing records.

136; see also Doc. 139.)

(Doc.

RBS appeared at the hearing and, through

counsel, consented to the Court's jurisdiction for the purpose of

resolving

the

billing

and discovery

dispute.

System ("FTR") at 10:51:28 - 53:05, 3:21:12.)

(FTR

Recording

After

fully

arguments,

considering

the

parties'

including those presented by RBS,

filings
the

and

Court

oral

found no

evidence to suggest that the bills submitted by RBS for Phase I of
the

audit

25:57.)

were

unreasonable.

(FTR at

3:21:51 -

24:35;

3:25:25 -

Given the escalating costs of the audit and both parties'

failure to exercise proper diligence at the commencement of this

undertaking

(id.

at 3:17:45 - 19:22),

the Court imposed several

conditions on the payment of (1) outstanding invoices,
invoices,

and

(3)

RBS's

costs

associated

with

the

(2)

future

November

17,

2014 hearing, including preparation time, expenses, and attorney's
fees.

(Doc. 171 at 2.)

Specifically, as to the hearing costs and

expenses, the Court ordered the parties to reimburse RBS in equal
shares.

(Id.)

RBS,

through its attorney John C. Dabney,

has submitted to

the Court a request and supporting documentation for $39,485.56 in

attorney's fees, witness fees, and expenses.
Defendants

object

to

this

figure

on

four

(Doc.

172 at 1.)

grounds.

First,

Defendants contend that Mr. Dabney's rate of $400.00 per hour is
excessive and must be reduced to the prevailing rate for this
district.

(Doc.

173 at 1.)

Second, Defendants assert that the

Court should disallow entirely the expenses submitted for Richard

Pengelly, an RBS employee who traveled to testify at the hearing,
because his appearance was "unnecessary and duplicative."
2.)

(Id. at

Third, Defendants assert that the need for the hearing in the

first

place

was

precipitated by RBS when

it

"enter [ed]

into an

undefined contractual arrangement with the Plaintiff law firm" and

submitted "sketchy and incomplete" records.

(Id.

at 2,

3.)

They

request that RBS's "costs should be reduced by an amount that the
Court determines reflects the responsibility . . . of RBS."

at 3.)

(Id.

Finally, Defendants argue that RBS "block billed" its time

and improperly "rounded up to the total hour or half hour."
at 3.)

(Id.

The Court will address Mr. Dabney's proposed expenses and

RBS's proposed expenses separately.

DISCUSSION

A.

Attorney's Fees

"The

starting

reasonable fee

point

for

determining

the

amount

Inc.,

548 F.3d 1348, 1350

quotations omitted).
rate and what

a

is the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate."
Wrap It Up,

of

Bivins v.

(11th Cir. 2008)

(internal

In determining what is a "reasonable" hourly

number of

compensable hours

is

"reasonable,"

the

court must consider the twelve factors1 enumerated in Johnson v.

Ga.

1

Highway Express,

Inc.,

The twelve factors are:

488 F.2d 714

(5th Cir.

(1) the time and labor required;

1974).

Id^

(2) the novelty

and difficulty of the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or

contingent; (7) time limitations imposed by the client or the circumstances; (8)
the amount involved and the results obtained;

(9) the experience, 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.

Bivins, 548 F.3d at 1350 n.2.

The product of

these

two figures

calculating the lodestar,

is

the

"lodestar."

F. Supp.
the

1302

2d 1364,

burden

of

(11th Cir.

1369

(N.D. Ga. 2000).

establishing

The

also

be

mindful

a

documenting

836

request

F.2d at
for

fees "should not result in a second major litigation."

1.

the

1303.

attorney's

Id.

legal

is the prevailing market rate

in

community for similar services by lawyers of

reasonably comparable skills, experience, and reputation."

1299.

151

Reasonable Hourly Rate

"A reasonable hourly rate
the relevant

Auth.,

Fulton Cnty.,

and

Norman,

that

Hous.

"The fee applicant bears

entitlement

and hourly rates."

should

Norman v.

1988); Lambert v.

appropriate hours
Court

After

the Court may then consider whether it

should be adjusted upwards or downwards.
836 F.2d 1292,

Id.

The "going rate"

in the community

is the most

Id. at

critical

factor in setting the fee rate.

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

F.2d 604,

The relevant legal community is

610 (11th Cir.

the district

1990) .

in which the court sits.

Supp. 1022, 1027 n.l (N.D. Ala. 1993)

Knight v.

Alabama,

824

F.

(citing Turner v. Sec'y of

Air Force, 944 F.2d 804, 808 (11th Cir. 1991)).

Because the Court

is itself considered an expert on hourly rates in the community,

it

may consult

judgment.
1994) .

its

own experience

Loranger v.

Stierheim,

in forming

10 F.3d 776,

an independent

781

(11th Cir.

Mr.

Dabney seeks an hourly rate

Defendants

approved

contest

$250.00

as

per

unreasonable.

hour as

Augusta legal market.
l:ll-cv-187,

Inc. , No.

Doc.

91

(S.D.

3:07-cv-048,

195,

2010);

$400.00 per hour,

This

Court

a reasonable

has

billing

Ga.

Doc.

Nov.

171

6, 2012);

previously

rate

(S.D.

Johnson v.

Ga. Apr.

l:09-cv-021,

Doc.

29,

in

the

39

(S.D.

Milton Ruben Chevrolet,

Inc.,

86

Ga.

More

(S.D.

Mar.

6,

2009).

YKK Am. ,

2010);

Salazar v.

Doc.

which

See Guzman v. Consumer Law Grp. et al. , No.

v. Kellogg's Sales Co., No.
24,

of

No.

Ingram

Ga.

Feb.

l:06-cv-

recently,

in

recognizing that two years have passed since the Court assessed
the above-mentioned cases,

a reasonable billing rate.

Charleston,

14,

the Court approved $275.00 per hour as

M.I.T.,

Inc. v. Medcare Express,

LLC et al., No. l:14-cv-081,

2014).

Indeed,

in this case,

Doc.

12

(S.D.

N.

Ga. Oct.

the Court limited Plaintiffs'

counsel's recovery to $275.00 per hour when it issued sanctions.
(See Doc. 166 at 4-5.)

Upon consideration of the relevant legal

market, the underlying discovery and billing dispute at issue, and

Mr. Dabney's experience and expertise, the Court likewise sets his
billing rate at $275.00 per hour.

2.

Hours Reasonably Expended

When exercising

proper "billing

judgment,"

attorneys

must

exclude excessive, redundant, or otherwise unnecessary hours from

fee applications.
Cir.

1999).

ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th
"[H]ours

excluded

are

those

that

would

be

unreasonable

reputation,

" [A]

to

bill

a

client"

or experience of

counsel.

reference

Norman,

to

the

skill,

836 F.2d at

1301.

lawyer may not be compensated for hours spent on activities

for which he would not bill a

intent

on

private
cost

without

vindicating

sector the

benefit

necessary,
Mills v.
Norman,

Mr.

similar

client of means who was

rights,

recognizing

economically rational

analysis."

Id.

The

seriously

that

person engages

decision

to prune

918

F.2d 1575,

1580

(11th Cir.

the

in some

hours,

is squarely within the Court's discretion.
Freeland,

in

if

Columbus

1990)

(citing

936 F.2d at 1301).

Dabney

submitted

an

itemized

record

of

the

time

he

attributed to the hearing on Plaintiffs' Motion for Order to Show
Cause.

(Doc. 172, Ex. D.)

between October

8,

"initial

conference"

client

2014,

The first timesheet covers the period
the

date
with

on which Mr.
RBS

letter with respect to the parties'
November 3, 2014.

(See id. at 1-2.)

the period between November 5,
date of the hearing.

about

Dabney held an

preparing

a

demand

outstanding audit bills, and
The second timesheet covers

2014 and November 17,

(See id. at 5-6.)

2014,

the

Over the course of both

periods, Mr. Dabney spent 40.3 hours:

•

reviewing
RBS's
billing
records,
the
body
of
corresponding e-mails between the parties with respect
to the forensic audit, and the parties' filings
respect to the Motion for Order to Show Cause;

•

with

conducting

several

telephone

RBS,

Plaintiffs'

counsel,

and Defendants'

conferences
counsel

with
about

the

instant billing dispute and the scope of work moving
6

forward;
compiling,
revising,
and
publishing
package of exhibits for the hearing; and
•

preparing the direct
RBS's principal.

Additionally,

Mr.

Dabney

examination

spent

9.4

of

hours

Robert

RBS's

Bonenfant,

traveling

to

and

presenting testimony at the hearing.

Neither party to this action

has

submitted by Mr.

challenged

unreasonable.
The

the

number

of

hours

Dabney as

The Court agrees, with one minor exception.

Court

finds

it

appropriate

to

subtract

the

two

hours

billed for Mr. Dabney's initial consultation with RBS on October

8, 2014 about preparing a demand letter.

(Doc. 172, Ex. D, at 1.)

Plaintiffs did not file their Motion for Order to Show Cause until

October 20,

2014,

and the time records

indicate that Mr. Dabney

did not become aware of it until a day later.

The purpose of this

fee award is to compensate Mr. Dabney for his involvement in the

hearing and preparation therefor.
occurred between RBS and Mr.

Thus, any billable events that

Dabney before Plaintiffs filed the

precipitating motion - even if related - are not within the scope
of compensable time contemplated by the Court.
That leaves 47.7 hours of reasonably billed time at the rate

of $275.00, for a total attorney's fee award of $13,117.50.
3.

Adjustment to or Enhancement of the Lodestar

In responding to Defendants' objections, Mr. Dabney concedes

that the highest hourly rate approved by this Court to date is
$275.00 per hour.

(Doc. 175 at 1.)
7

Nevertheless, Mr. Dabney

urges the Court to make an upward adjustment or enhancement to the

attorney's

fee

award

that

fully

accounts

for

the

difference

between this district's prevailing rate and his customary $400.00

rate.

(Id.

at 2-3.)

Specifically,

Mr. Dabney points to

39 years of experience as a trial lawyer,

(2)

the forensic analysis underlying the dispute,

(1)

his

the complexity of

(3) the short notice

on which Mr. Dabney was required to prepare such a complex topic,

(4) the conflicting obligation that Mr. Dabney was required to set
aside to meet this Court's and the parties' schedule, and (5)

the

"total vindication" of RBS's right to past due payments of roughly
$71,000.

(Id.)

The Supreme Court affirmed in Pennsylvania v.
Citizens,

Council for Clean Air,

"upward

adjustments

permissible ... in

of

the

certain

478 U.S.

lodestar

xrare'

and

546,

565

figure

Del.

Valley

(1986),

are

^exceptional'

that

[

]

cases,

supported by both Specific evidence' on the record and detailed
findings by the lower court[]" that the lodestar fee would not
have been "adequate to attract competent counsel."

Id.

at 565

(quoting Blum v. Stenson, 465 U.S. 886, 898-901 (1984)); Perdue v.
Kenny

A.

omitted).

[already]

ex

rel.

Winn,

559

U.S.

542,

554

(2010)

(citation

Such evidence is required because "the lodestar figure

includes

most,

if

not all,

of the

relevant

factors

constituting a reasonable attorney's fee," and "enhancement may

not be awarded based on a

calculation."

The

Id.

Court

factor that

is

subsumed in the

lodestar

(internal citations omitted).

in

no

way

discounts

Mr.

Dabney's

outstanding

preparedness and demeanor, but the hearing at issue was not of the
"rare" and "exceptional" breed that merits enhancement.

at 554-58

See id.

(stating superior attorney performance may justify an

enhancement

where

(1)

the

method

used

in

determining

the

reasonable hourly rate takes into account only a single factor or

"only a

few

similar factors";

(2)

the "attorney's performance

includes an extraordinary outlay of expenses and the litigation is

exceptionally

protracted;"

or

(3)

the

"attorney's

performance

involves exceptional delay in the payment of fees," such as in
civil rights cases invoking federal fee-shifting).

4.

Mr.

Costs

Dabney

is

also

entitled

to

reimbursement

expenses, provided that such expenses are reasonable.
at 2 & n.l.)

In this case,

for

his

(Doc. 171

the Court finds Mr. Dabney's request

of expenses for long distance telephone calls,

postage,2 and

mileage reasonable in light of the fact that neither Mr. Dabney
nor RBS

are

local.

Dowdell

1181, 1192 (11th Cir. 1983) .

v.

City of

Apopka,

Fla. , 698

F.2d

Mr. Dabney also will be reimbursed

for expenses incurred in preparing to represent RBS in this Court,
2

Consistent

with the Court's

reasoning

above,

it

excludes

the $13.47

postage charge for the demand letter sent by Mr. Dabney to Plaintiffs and
Defendants on October 15, 2014.

(Doc. 172, Ex. D, at 2.)
9

such

as

admission

photocopying
Through

(S.D.

certification

and

binding

exhibits.

v.

Keenum,

No.

Burke

Ga.

fees,

Feb.

21,

CV

1989) .

fees,

Id. ;

and

see

288-067,

also

1989

Accordingly,

the

WL

the

cost

Burke
14681,

Court

of

By
at

&
*8

finds

Mr.

Dabney's total allowable expenses in this case are $557.07.

B.

RBS's Expenses

Preparation & Hearing

1.

Defendants

object

to

the

submission

of

$10,475

in

"preparation fees" for this matter by Mr. Bonenfant and J.D. Roe

because they believe RBS bears

some responsibility in bringing

about

any

this

dispute

and,

in

documentation is imprecise.
not entertain Defendants'

case,

the

(Doc. 172 at 2-3.)

finger pointing:

substantiating

The Court will

it is Defendants'

own

discovery misconduct that precipitated the need for the forensic
audit in the first place,

and it is Defendants'

own failure to

communicate about the scope of an audit for which they would be

financially responsible that in part created the dispute here.
Nor will the Court permit Defendants'

to re-litigate its finding

that

Defendants

alike

RBS's

billing was reasonable.

had the

opportunity

representatives

at

the

to examine

hearing

and Plaintiffs

and cross-examine

about

the

RBS's

substantive

work

completed and the time cards and other records used to support the
invoices.

Bonenfant's

Nevertheless,

(Doc.

172,

Ex.

after

A)

careful

and Mr.
10

Roe's

comparison

(Doc.

172,

of

Ex.

Mr.

B)

itemized

take

time

issue

records

with

with

certain

those

hours

of

Mr.

billed

Dabney,

in

the

Court

does

and

will

preparation

deduct them accordingly.

Robert Bonenfant

i.

First, as with Mr. Dabney,

the Court will deduct any billable

events related to nonpayment and collection that occurred before
Plaintiffs
(9/27,

filed

10/3,

Bonenfant's

the

precipitating

motion.

and 10/8/14 entries).)

entries

for

(Doc.

Second,

"exchanging"

172,

Ex.

A

the Court finds Mr.

e-mails

or

"reviewing

responding" to e-mails on November 2 and November 6,

and

2014 to be

duplicative of entries for the same on November 1 and November 5,
2014.

Lastly, the Court will deduct the three hours billed by Mr.

Bonenfant on November 16,

with

Mr.

material."

Dabney

may have

discuss

the

(Doc. 172, Ex. A.)

and thus

time,

"to

2014 for a meeting he purportedly held

case

[and]

over

dinner.

(See

Doc.

reflecting dinner expenses for Mr.

Pengelly,

Mr.

hours

That

leaves

all

the

Mr. Dabney did not bill for this

to the extent the Court can discern,

occurred

Dabney).)

review

21.4

172,
Mr.

of

the meeting

Ex.

C

(entry

Bonenfant,

and

reasonably billed

preparation time by Mr. Bonenfant at the rate of $250.00, plus 4
hours3

for his

court

appearance,

for a

total

expense

award

of

$6,350.00.

3

The Court notes that Mr. Dabney billed only 4 hours for his appearance at

the hearing (Doc. 172-4 at 2) while Mr. Bonenfant and Mr. Pengelly submitted 4.5
11

J.D.

ii.

First,

deduct
that

Roe

as with Mr. Dabney and Mr. Bonenfant,

any billable events

occurred before

(Doc. 172,

Ex.

also

also

will

B

related to nonpayment and

Plaintiffs

(9/27,
reduce

10/3,
Mr.

filed

the

collection

precipitating motion.

and 10/8/14 entries).)

Roe's

hours

for

delivering two retainer payments to Mr.
(10/21 and 10/28/14

the Court will

entries).)

RBS

the

The Court

time

spent

office.

Dabney's

he

(Id.

does not provide any reason

why a stamp or some type of electronic funds transfer would not
have

sufficed

clerical

in

for

nature

See Scelta v.
1328,

1334

delivery

of

payment.

This

and generally is not

6:07-cv-1196,

Fla.

2008

2002);

Fulford v.

WL 2952859,

at

*8

of

work

is

separately compensable.

Delicatessen Support Servs.,

(M.D.

type

Inc.,

203

NCO Fin.

(M.D.

Fla.

F.

Supp.

Sys. , Inc.,

July 30,

2d
No.

2008).

That leaves 7 hours of reasonably billed preparation time by Mr.
Roe

at

the

rate

of

$250.00,

for

a

total

expense

award

of

$1,750.00.

Richard Pengelly's Court Appearance

2.

Defendants
courtroom fees

object
for Mr.

to

the

payment

of

travel

expenses

Pengelly because they believe his

and

"short

testimony" was "unnecessary and duplicative of the testimony by
[Mr. Bonenfant]."

hours

each as

a

(Doc. 172 at 2.)

witness

fee

(Doc.

172-5) .

Mr. Dabney responds that the

The

Court

finds

4

hours

to

be

appropriate for all parties and will discount Mr. Bonenfant's and Mr. Pengelly's
time accordingly.
12

affidavit

filed by Defendant Ronald J. DeThomas

response to Plaintiffs'
that

Mr.

Pengelly

Pengelly's
without

(Doc.

165-1)

in

Motion for Order to Show Cause dictated

should attend.

testimony ultimately

objection could not

(Doc.

was

175

limited

at

to

3.)

one

have been foreseen.

That

brief

(Id.

Mr.

issue

at 3-4.)

The Court again agrees.
Mr.

DeThomas's affidavit set forth his own calculation of the

number of hours RBS

the audit.

(Id.

with Defendants

1 2.)

about

formal agreement.
Phase

I

of

spent on the premises conducting Phase I of

the

He also averred that RBS's conversation

"per device" billing never

(See id. UK 3, 5.)
audit

was

to

receive

resulted

in a

Mr. Pengelly's role during
hard

drives

as

they

were

extracted from individual work stations, process them, maintain a

log, and take photographs at the point RBS left the premises for
site security.

(FTR at 2:49:10-27; Doc.

175 at 3-4.)

Each of

these activities played a role in substantiating RBS's invoices on

either the "per device"
"monitoring"

process,

conversation

between

or hourly billing basis.
Mr.

Mr.

Pengelly
DeThomas

also
and

Mr.

was

During his
party

Bonenfant

to

a

about

potential cost-saving measures (FTR at 2:50:18 - 51:04), and Mr.
Bonenfant later pulled Mr.

Pengelly into a meeting with several

defendants about the billing method (id. at 2:51:11-50).

Mr.

Pengelly had critical

contested issues.

firsthand knowledge

of

several

His testimony at the hearing was a counterpoint
13

to

the

version

of

events

elicited

from

Mr.

DeThomas,

Defendants Richard Swope and James Timberlake.

Court

finds

all

Mr.

Pengelly's

expenses

are

as

well

Accordingly,

allowable,

as

the

in this

case $3,915.20 (Doc. 172, Exs. C & D).4

Other Travel

3.

The

hotel,

Court

finds

Mr.

Bonenfant's

and meal expenses are

travel

reasonable,

time,

airfare,

as are the

gas,

rental car,

gas, and hotel expenses RBS appears to have paid on behalf of Mr.
Dabney.

objections,

(See Doc.

172,

Ex.

C.)

the remaining costs

In

the

of travel

face

of

no

further

are approved in the

amount of $3,394.82.

CONCLUSION

Pursuant

the Court

to the Court's November 19,

2014

hereby AWARDS to RBS Consulting,

attorney John C.

Dabney,

Order

LLC,

(Doc.

171),

through their

the sum of $29,084.59 in costs,

to be

paid in equal shares by Plaintiffs and Defendants within FOURTEEN
DAYS of the date of this Order.

ORDER ENTERED at Augusta, Georgia, this

14k

day of January,

2015.

HALL

STATES DISTRICT JUDGE
DISTRICT OF GEORGIA

See supra note 3
14