Gowen Oil Company, Inc. v. Abraham et al
Filing
260
ORDER granting 192 Motion for Attorney Fees and granting 254 Motion for Costs pursuant to Federal Rule of Civil Procedure 54. Signed by Chief Judge Lisa G. Wood on 3/30/2012. (csr)
3ki the Unfttb Otatto Marta Court
for the £outljern Ototritt of totgta
38runobtti Atbioton
GOWEN OIL COMPANY, INC.,
Plaintiff,
VS.
*
*
*
*
*
*
BIJU ABRAHAM; GREENBERG TRAURIG, *
*
LLP; GREENBERG TRAURIG, P.A.;
*
JOSEPH WEINGARD; and
*
JONATHAN WILLIAMS,
*
*
Defendants.
CV 210-157
ORDER
Presently before the Court is Defendants Greenberg Traurig,
LLP and Greenberg Traurig P.A.'s (collectively "Greenberg")
Motion for Attorneys' Fees. Dkt. No. 192. Also before the
Court is Greenberg's Motion for Costs Pursuant to Federal Rule
of Civil Procedure 54. For the reasons stated below,
Greenberg's Motion for Attorneys' Fees is GRANTED and
Greenberg's Motion for Costs is GRANTED.
AO 72A
(Rev. 8/82)
BACKGROUND'
Plaintiff Gowen Oil Company Inc., ("Gowen") sued Greenberg
based on legal work done for a client, Biju Abraham.
Specifically, Gowen claimed that Greenberg participated in a
conspiracy with Abraham to undermine Gowen's alleged contractual
rights to purchase a number of filling stations. Gowen claimed
that Greenberg tortiously interfered with Gowen's right of first
refusal with regards to the sale of the filling stations. In
part, Gowen's claims were based on violations of Georgia's Bulk
Transfer Act. Defendants removed the case to this Court based
on diversity jurisdiction.
The ensuing litigation was complex, involving extensive
discovery and substantial motion practice. Both parties sought
extended discovery due to the large number of parties, the large
number of witnesses, the complex factual issues, and the need
for discovery outside the United States. Dkt. No. 76. Gowen
relied on numerous expert witnesses and sought to depose up to
fifteen other individuals. Dkt. No. 21, 22, 23, 24.
Ultimately, Gowen sought $35,543,940.17 in compensatory damages
as well as punitive damages, attorneys' fees, and costs. Dkt.
No. 175, at 15-17.
The facts of the underlying dispute are set out more fully in the Court's
September 3, 2010 order addressing Defendants Greenberg and Weingard's
motions for summary judgment and Defendant Williams's motion to dismiss.
Dkt. No. 185.
AO 72A
(Rev. 8/82)
2
On March 31, 2010, while discovery was still open,
Greenberg sent an offer of settlement to Gowen pursuant to
O.C.G.A § 9-11-68(a). Dkt. No. 192, Ex. A. Gowen neither
accepted nor rejected the offer.
On May 26, 2010, Greenberg filed a motion for summary
judgment. Dkt. No. 124. On September 3, 2010, this Court
granted Greenberg's motion for summary judgment on all of
Gowen's claims. Dkt. No. 185. On October 21, 2010, Greenberg
filed a motion for attorneys' fee and expenses pursuant to
O.C.G.A. § 9-11-68. Dkt. No. 192. The Court entered final
judgment in favor of Greenberg on all of Gowen's claims against
Greenberg on January 13, 2011. Dkt. No. 214.
Greenberg's motion for attorneys' fees, the motion now
before the Court, seeks attorneys' fees and expenses incurred
between May 4, 2010 and November 7, 2010. See Dkt. No. 211-1
(providing itemization of Greenberg's requested fees and
expenses). Greenberg claims it is entitled to $272,031.90 in
attorneys' fees and $9,230.25 in litigation expenses, totaling
$281,262.15. Id. Greenberg asserts that it is actually
entitled to attorneys' fees and expenses up until the entry of
final judgment on January 13, 2011, however Greenberg has not
sought to supplement its original motion to recover the
additional fees and expenses. Greenberg is seeking fees
generated by thirteen individuals: Richard H. Sinkfield (Senior
A0 72A
(Rev. 8/82)
II
3
Partner); Brett A. Rogers (Partner); James W. Beverage (Of
Counsel); Catherine M. Bennett (Of Counsel); Kristina M. Jones
(Associate); Fischer Reed (Associate); Leah A. Epstein
(Associate); Stephanie H. Jackman (Associate); Aisha N. Witted
(Litigation Support); Debra L. Livingston (Paralegal); Patricia
G. Benjamin (Paralegal); Robyn D. Garcia (Paralegal); and Casey
R. White (Paralegal).
Greenberg also filed its bill of costs and a motion for
costs pursuant to Federal Rule of Civil Procedure 54. Dkt. Nos.
203; 254. Gowen objected to Greenberg's bill of costs, but did
not file a response to Greenberg's motion for costs. Dkt. No.
204. Gowen's objection to Greenberg's bill of costs is based on
a single argument: Gowen claims that a portion of the costs
sought are for videotaping witness depositions. Id. Gowen
claims that Greenberg is not entitled to recover these costs
because it was unnecessary to videotape the depositions.
DISCUSSION
I. Motion for Attorneys' Fees
Greenberg seeks attorneys' fees and expenses under
Georgia's offer of settlement statute, O.C.G.A. § 9-11-68. The
Georgia statute provides an award of attorneys' fees and
expenses to a defendant who makes a valid offer of settlement
that is rejected, and the final judgment is one of no liability
AO 72A
(Rev. 8/82)
II
9
or less than 75 percent of the defendant's offer. 2 An award of
attorney's fees is mandatory under the offer of settlement rule
when the rule's conditions are met. Cohen v. Alfred and Adele
Davis Acad., Inc., 714 S.E.2d 350, 353 (Ga. Ct. App. 2011). In
order for a party to recover attorney's fees under Georgia's
offer of settlement rule, the party must make an offer of
settlement that complies with O.C.G.A. § 9-11-68(a). Greenberg
made an offer of settlement to Gowen on March 31, 2010. The
offer complied with the requirements of O.C.G.A. § 9-11-68(a).
Moreover, Gowen has not disputed the validity of Greenberg's
settlement offer.
Gowen failed to respond to Greenberg's offer of settlement.
Under O.C.G.A. § 9-11-68(c), a valid offer of settlement remains
open for thirty days. Further, "[a]n offer that is neither
withdrawn nor accepted within 30 days shall be deemed rejected."
O.C.G.A. § 9-11-68(c). Accordingly, Greenberg's offer was
deemed rejected on April 30, 2010. Gowen does not dispute the
date of rejection of the offer.
2
Specifically, O.C.G.A. § 9-11-68(b) (1) states:
If a defendant makes an offer of settlement which is rejected by
the plaintiff, the defendant shall be entitled to recover
reasonable attorney's fees and expenses of litigation incurred by
the defendant or on the defendant's behalf from the date of the
rejection of the offer of settlement through the entry of
judgment if the final judgment is one of no liability or the
final judgment obtained by the plaintiff is less than 75 percent
of such offer of settlement.
Rejection occurred on April 30, 2010, but Greenberg only seeks fees and
expenses incurred since May 4, 2010.
AO 72A
(Rev. 8/82)
5
Although Gowen appears to concede that O.C.G.A. § 9-11-68
applies in this diversity suit, 4 and that Greenberg has satisfied
the basic requirements of the statute, Gowen challenges the
amount and nature of the fees Greenberg requests. 5 Dkt. Nos.
226, 240, 257. Gowen argues generally that the rates and hours
that form the basis of Greenberg's request are unreasonable.
A. Actual Attorneys' Fees Incurred
The Court begins its analysis by defining the actual
attorney's fees Greenberg incurred and now requests.
Greenberg's calculation of its attorneys' fees warrants some
explanation. Greenberg determined that during the relevant
period its attorneys spent 1,176.2 hours on this case resulting
Plaintiff offers no case law or analysis suggesting that O.C.G.A. § 9-11-68
is inapplicable in this diversity suit. Although the Eleventh circuit has
not addressed whether O.C.G.A. § 9-11-68 is properly applied in diversity
suits, at least one district court has. In Wheatley v. Moe's Southwest
Grill, LLC, the Northern District of Georgia held that O.C.G.A. § 9-11-68 is
substantive and not in direct collision with Federal Rule of civil Procedure
68, and therefore, it is proper to apply the Georgia rule in diversity
suits. 580 F. Supp. 2d 1324, 1328 (N.D. Ga. 2008). This court agrees with
Wheatley, and holds that Eleventh Circuit case law supports application of
the Georgia offer of settlement rule in diversity suits. See also 1 Robert
L. Rossi, Attorney's Fees § 10:5, "Applicability of State Law [in Federal
Courts]" (2011) ("In diversity actions . . . the federal courts, in absence
of countervailing equitable principles, apply state law with regard to the
allowance or disallowance of attorney's fees.").
Gowen's challenges are painted with a broad brush. For example, Gowen
asserts that paralegal fees as a whole are unrecoverable. Dkt. No. 257, at
8. Similarly, Gowen claims that fees incurred after the entry of summary
judgment in favor of Greenberg are unrecoverable. Id. Gowen disputes very
few individual, discrete aspects of Greenberg's bills. The Court notes that
"[g]eneralized statements that the time spent was reasonable or unreasonable
of course are not particularly helpful and not entitled to much weight."
Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1301 (11th
Cir. 1988).
AO 72A
(Rev. 8/82)
6
in $400,318 in fees. 6 Due to the relationship between Greenberg
and its attorneys, Greenberg negotiated two discounts on its
fees. First, Greenberg received an overall 10% discount on all
fees incurred in this case. Consequently, Greenberg's fees were
reduced from $400,318 to $360,268.20. Additionally, Greenberg
received a $150,000 cap on certain fees, for example, on
briefing Greenberg's motion for summary judgment. The cap
resulted in another $89,932.75 discount to Greenberg, thus
reducing the total fees to $274,353.45. Finally, Greenberg
voluntarily choose not to seek recovery of fees for employees
whose total billing was less than $1,000. That reduction
6
Greenberg's initial calculation of its fees is the result of multiplying the
number of hours worked by its employees by their respective hourly rates.
The calculation is as follows:
Hours
Rate
Total
Richard H. Sinkfield
(Senior Partner)
Brett A. Rogers (Partner)
89.4
$565
$50,511.00
157.5
$395
$62,212.50
James W. Beverage (Of Counsel)
101.7
$435
$44,239.50
Catherine M. Bennett (Of Counsel)
205.5
$425
$87,337.50
78
$335
$26,130.00
Fischer Reed (Associate)
136.7
$265
$36,225.50
Leah A. Epstein (Associate)
158.6
$260
$41,236.00
Stephanie H. Jackman (Associate)
20.5
$240
$4,920.00
Aisha N. Witted (Litigation Support)
20.8
$215
$4,472.00
Debra L. Livingston (Paralegal)
80
$215
$17,200.00
Patricia G. Benjamin (Paralegal)
14.8
$210
$3,108.00
Robyn D. Garcia (Paralegal)
83.5
$210
$17,535.00
Casey R. White (Paralegal)
Work performed by timekeepers for
whom Greenberg is not seeking
recovery
Totals
15.9
$155
$2,464.50
Kristina M. Jones (Associate)
AO 72A
(Rev. 8/82)
7
13.3
$2,726.50
1176.2
$400,318.00
eliminated another $2,321.55 in fees, thus reducing the request
to $272,031.90.
Greenberg has submitted extensive support for its requested
fees and costs. In particular, Greenberg has produced
affidavits from all but one of the individuals who performed
work on this case. Dkt. No. 211, Exs. 1, 13, 14, 15, 16, 171
18, 19, 20, 21, 22, 23, 24. Additionally, Greenberg has
provided detailed itemized bills documenting every action
performed on behalf of its attorneys, and background summaries
or resumes for each staff member claiming to have worked on the
case. See generally Dkt. No. 211. Importantly, Greenberg
submitted the affidavit of Phillip R. Taylor as an expert on the
reasonableness of Greenberg's request. Id. Greenberg also
submitted the affidavit of Wallace E. Harrell, counsel for
another defendant in this suit, and Richard G. Garrett,
Greenberg's Chief Legal Officer. Id. The Court also points out
that it conducted a hearing on the issue of attorneys' fees,
expenses, and costs at which counsel for both sides presented
extensive argument on the disputed fees. Accordingly, Greenberg
has provided ample and specific evidence demonstrating the
actual fees it incurred.
B. Reasonableness of the Attorneys' Fees Requested
AO 72A
(Rev. 8/82)
8
"The starting point for calculating a reasonable attorney's
fee is 'the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate' for the
attorneys' services." ACLU of Ga. v. Barnes, 168 F.3d 423, 427
(11th Cir. 1999). "The product of these two figures is the
lodestar and there is a 'strong presumption' that the lodestar
is the reasonable sum the attorneys deserve." Bivins v. Wrap It
U2, Inc., 548 F.3d 1348 (11th Cir. 2008). While the fee
applicant bears the burden "of establishing entitlement and
documenting the appropriate hours and hourly rates," the
opponent must be reasonably precise in his objections and proof
opposing the award. Norman v. Housing Auth. of City of
Montgomery, 836 F.2d 1292, 1301, 1303 (11th Cir. 1988).7
The court evaluates Greenberg's fee request under federal cases dealing with
the reasonableness of fee awards generally. See Columbus Mills, Inc. v.
Freeland, 918 F.2d 1575, 1577, 1580 (11th Cir. 1990) (noting that in
diversity cases state law "controls both the questions of the availability
of attorney's fees and the standard to determine when the attorney's fees
should be awarded," and applying federal standards for determining
reasonableness). Though, the Court notes that in this particular case the
outcome would be the same under Georgia law. Georgia cases on attorney's
fees focus on the actual fees incurred and the reasonableness of those fees.
Abrams v. Putney, 697 S.E.2d 269, 271 (Ga. Ct. App. 2010). In evaluating
the reasonableness of the fees incurred, Georgia cases consider a reasonable
number of hours expended multiplied by a reasonable rate. See In re Estate
of Boss, 668 S.E.2d 283, 285 (Ga. Ct. App. 2008) (affirming fee award based
on reasonable rate times reasonable hours); Bienert v. Dickerson, 624 S.E.2d
245, 251 (Ga. Ct. App. 2005) (same). Furthermore, Georgia courts recognize
the usefulness of the factors set forth in Johnson. See Rowen v. Estate of
Hughley, 611 S.E.2d 735, 738 (Ga. Ct. App. 2005) (affirming a fee award
based on the factors set forth in Rule 1.5 of the Georgia Rules of
Professional Conduct, which largely mirror the factors set forth in
Johnson). Accordingly, under either authority, Greenberg' s request should
be evaluated based on the reasonable number of hours expended times a
reasonable rate, and the factors set forth in Johnson.
AO 72A
(Rev. 8182)
9
Gowen challenges the reasonableness of the fees Greenberg
requests. Dkt. Nos. 226, at 2; 257, at 4-8. Specifically,
Gowen contends that the rates that form the basis of Greenberg's
fee request are not reasonable based on the local market, which
Gowen contends is Brunswick, Georgia. Dkt. No. 257, at 5.
Moreover, Gowen contends that Greenberg has not shown that its
fee request is reasonable in relation to fees charged in similar
cases. Id. at 6-7. Gowen also contends that the number of
hours expended by Greenberg's counsel is unreasonable and should
be reduced. Dkt. No. 226, at 4.
1. Reasonable 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, and reputation."
Norman, 826 F.2d at 1299. "Evidence of rates may be adduced
through direct evidence of charges by lawyers under similar
circumstances or by opinion evidence." Id. (emphasis added).
Further, the rate an attorney ordinarily charges "is powerful,
and perhaps the best evidence of his market rate." Dillard v.
City of Greensboro, 213 F.3d 1347, 1354 (11th Cir. 2000).
The rate charged by Greenberg's counsel is difficult to
state with particularity. This matter was complex and involved
the work of multiple attorneys, paralegals, and staff.
Additionally, Greenberg received a 10% discount on all fees and
AO72A
(Rev. 8/82)
II
10
Greenberg's counsel capped its fees at $150,000 for certain
tasks. The pre-discount, and pre-cap, hourly rates were as
follows: Richard H. Sinkfield ($565); Brett A. Rogers ($395);
James W. Beverage ($435); Catherine M. Bennett ($425); Kristina
M. Jones ($335); Fischer Reed ($265); Leah A. Epstein ($260);
Stephanie H. Jackman ($240); Aisha N. Witted ($215); Debra L.
Livingston ($215); Patricia G. Benjamin ($210); Robyn D. Garcia
($210); and Casey R. White ($155). However, all of these hourly
rates were reduced by ten percent. And because some of the fees
were capped at $150,000 total by Greenberg's counsel, many of
the hours worked by these individuals were not billed at all.
Greenberg has made the argument that the "blended effective
billing rate" (the total requested fees divided by the total
number of hours worked by these employees) is only $234 per
hour.
In any case, Greenberg has presented substantial evidence
that the rates its counsel charged were reasonable based on the
circumstances of this case, even before the discounts. First,
Greenberg's lead counsel testified to the reasonableness of the
rates. See Sinkfield Aff. 1 33, 38. Second, Greenberg's expert
on the reasonableness of attorney's fees stated, "The hourly
rates charged by [Greenberg's counsel] are the same or below the
comparable rates of law firms in Atlanta with similar clients
and experience involving high profile business litigation."
AO 72A
(Rev. 8/82)
II
11
Taylor Aff. ¶ 7. Greenberg's expert based his conclusions on
inquiries made to "a number of Atlanta law firms, which have
litigation departments with lawyers who have the same or
reasonably comparable skills, experience and reputation as
lawyers representing Greenberg." Id. ¶ 7. The Court also
recognizes, from its own experience, that rates that form the
basis of Greenberg's request are in line with prevailing market
rates. See Norman, 836 F.2d at 1303 ("The court, either trial
or appellate, 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."). Additionally,
several of the Johnson factors support an award based on
Greenberg's counsel's base rates. 8 Namely, this case presented a
number of novel and complex legal questions; the skill required
to perform the work in this case was necessarily high; the
potential liability in the suit was exceptional; Greenberg's
counsel obtained resounding success for its client; and the
8
AO 72A
(Rev. 8/82)
The twelve Johnson factors are useful in determining the reasonableness of
an attorney's rate. Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th
Cir. 2008); Norman, 836 F.2d at 1299. The twelve Johnson factors are: (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 acceptance of
the case; (5) the customary fee; (6) whether the fee is fixed or contingent;
(7) the 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. Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717-19 (5th Cir. 1974)
12
counsel Greenberg employed was experienced and well-respected.
Accordingly, Greenberg has presented sufficient evidence to show
that the rates charged by its counsel were reasonable.
Gowen, however, contends that Greenberg has used the
incorrect locality for determining a reasonable rate, and that
the rates that form the basis of Greenberg's request should be
adjusted downward. Gowen contends that Brunswick is the correct
market to look to when determining a reasonable hourly rate.
Greenberg disputes Gowen's position, and argues that Atlanta is
the proper market for determining a reasonable hourly rate.9
This dispute is immaterial to the Court's ultimate conclusion on
the reasonableness of Greenberg's rates. As explained below,
the rates that form the basis of Greenberg's fee request are
reasonable based on prevailing market rates in both Atlanta and
Brunswick.
During oral arguments, Gowen took issue with some of the
highest rate attorneys for Greenberg, namely those billing in
excess of $400 per hour. Mot. Hr'g Tr. 20-21, Dkt. No. 256.
Gowen indicated that the top hourly rate for Brunswick is closer
to $375, as evidenced by the affidavits of counsel for
Greenberg's expert testified that Atlanta is the proper market given that he
was "not aware of a firm that has comparable experience, such as
[Greenberg's counsel], in the defense of law firms such as Greenberg" in the
Brunswick area. Taylor Aff. 4 7. Because the Court concludes that Gowen's
position would have no impact on the recoverable award, the Court need not
address whether there are firms in the Brunswick area that were qualified to
handle Greenberg's case.
AO72A
(Rev. 8/82)
II
13
Greenberg's codefendant Joseph Weingard. However, even if a
$375 per hour cap was imposed on the rates billed by Greenberg's
attorneys, the Court sees no reason to reduce the fees
requested. Gowen's contention that certain individuals' hourly
rates exceeded the prevailing market rates is based on the rates
Greenberg's counsel charged pre-discount and without considering
the $150,000 cap on fees. See Pl.'s Proposed Finding of Facts
and Conclusions of Law, at 5-6 (challenging Greenberg's lead
counsel's rate of $565 per hour compared to Defendant Weingard's
lead counsel's rate of $375 per hour). If the Court capped all
of Greenberg's stated rates at $375 per hour, the reduction
would only total $36,513. 10 As noted above, the actual prediscount total fees generated by Greenberg's attorneys were
$400,318. As such, capping the rates of Greenberg's attorneys
would only reduce the actual fee to $363,805.11 Greenberg's
requested fee, $272,031.90, is approximately $90,000 below a fee
calculated with a $375 per hour cap. As such, capping the
hourly rates Greenberg seeks would have no impact on the overall
award. 12
10 The court calculates the reduction as follows: Four individuals charged
over $375 per hour: Sinkfield ($565); Rogers ($395); Beverage ($435); and
Bennett ($425). Capping each of those individuals' rates at $375 per hour,
and multiplying the reduction in rate by the individual's hours results in a
decrease in overall fees of $36,513.00. Sinkfield ($190 x 89.4) + Rogers
($20 x 157.5) + Beverage ($60 x 101.7) + Bennett ($50 x 205.5) = $36,513.00.
$400,318 - $36,513 = $363,805.
12
In his affidavit, Richard Sinkfield presents an alternate approach to the
prevailing market rate question. Sinkfield Aff. ¶ 33. Mr. Sinkfield shows
AO 72A
(Rev. 8/82)
14
The Court finds that Greenberg has presented sufficient
evidence to show that the rates charged by its counsel were
reasonable. Further, whether the Court looks to the Atlanta
market or the Brunswick market to determine the prevailing
market rate, the outcome would be the same. Accordingly, the
Court sees no reason to reduce Greenberg's request based on its
counsel's rate.
2. Reasonable Hours
Greenberg requests fees associated with 1,162.9 hours of
legal work. 13 Initially, it should be noted that Greenberg's
lead counsel testified in his affidavit that each individual for
whom Greenberg is requesting fees made a direct contribution to
the case, and that the hours worked by each individual were
reasonable, necessary, and required to complete the work in this
case. See generally Sinkfield Aff. Moreover, Greenberg's
expert witness testified that the work performed in this case
that if prevailing market rates were applied to the thirteen fee-generating
employees, then the total award sought would be $276,575.00. Mr. Sinkfield
states that "utilizing an $80 per hour rate for non-lawyers, $200 per hour
for Associates, $325 per hour rate for Of Counsel lawyers, and $300 per hour
for . . . partner, Brett A. Rogers, and $375 per hour for [Mr. Sinkfield],"
and multiplying those rates by the number of hours billed by the respective
individuals, the total fee would be $276,575.00. Mr. Sinkfield asserts that
these rates would be in line with the prevailing rates in the forum,
Brunswick, Georgia. Id. (relying on the affidavit of Wallace E. Harrell for
the prevailing market rates in Brunswick, Georgia). The Court agrees.
13
Greenberg claims that its attorneys actually performed 1,176.2 hours of
work, but that it is only seeking fees for individuals who billed more than
$1,000 total. Therefore, Greenberg has reduced the total number of hours
supporting its claim to 1,162.9. Dkt. No. 213, Ex. 1. Also, a significant
number of the 1,162.9 hours were non-billable based on Greenberg's
negotiated $150,000 cap on certain fees.
AO 72A
(Rev. 8/82)
15
was reasonable and necessary, based on his review of the docket
and bills and conferences with Greenberg's counsel. Taylor Aff.
9M1 5, 8, 10.
Gowen claims that Greenberg's requested fees are based on
unnecessary hours, arguing that Greenberg's billing records
contain numerous entries for conferences involving multiple
attorneys. Dkt. No. 226, at 4. Gowen provides an example,
stating that Greenberg's bills show two meetings on May 6 and 7,
2010 with at least six attendees. Gowen claims that these
conferences create an inflation of fees.
The Court notes that Gowen's challenge is generalized,
asserting broadly that meetings involving six or more attorneys
are unreasonable. Gowen does not explain why a meeting between
six attorneys in a $35 million lawsuit is unreasonable. Nor
does Gowen provide any authority for its position. Greenberg's
bills show that the meetings involved Greenberg's lead counsel
and other attorneys regarding Greenberg's motion for summary
judgment. Greenberg has placed testimony and detailed bills in
the record showing that the hours expended on this and other
actions were reasonable. Moreover, "[t]here is nothing
inherently unreasonable about a client having multiple
attorneys, and they may all be compensated if they are not
unreasonably doing the same work and are being compensated for
the distinct contribution of each lawyer." Norman, 836 F.2d at
AO 72A
(Rev. 8182)
16
1302 (11th Cir. 1988) . Gowen has not sufficiently disputed
Greenberg's request as it relates to the meetings occurring on
May 6 and 7, 2010.
Gowen further claims that "[s]everal [billing] entries
describe work that was never used to advance Greenberg's
argument or position in this case." Dkt. No. 226, at 3. Gowen
provides two examples: (1) work on a motion to strike expert
opinions, and (2) preparation of video clips taken from
depositions. Gowen contends that the motion to strike expert
opinions was never used and the video clips were never presented
to the Court. Id.
Gowen's challenge to Greenberg's unsuccessful legal work is
general in nature. The Court will not cull through a party's
bills searching for potential elements of unsuccessful legal
work. 14 Accordingly, the Court will limit its consideration to
the two specific examples to which Gowen points.
Gowen relies on authority stating that "[in determining
reasonable hours, a court must deduct time spent on discrete and
unsuccessful claims." Dkt. No. 226, at 3 (citing Gray v.
Bostic, 625 F.3d 692, 715 (11th Cir. 2010)). However, the
authority Gowen cites was evaluating a request for attorney's
14
Where a fee application is voluminous, a district court is not required to
engage in an hour-by-hour review of the request. Loranger v. Stierheim, 10
F.3d 776, 783 (11th Cir. 1994). Here, Greenberg's request involves over a
thousand hours by fifteen attorneys. The billing summary is approximately
150 pages. Greenberg's request is undoubtedly voluminous.
AO 72A
(Rev. 8/82)
17
fees under 42 U.S.C. § 1988. Unlike O.C.G.A. § 9-11-68, the
federal statute, § 1988, permits a court to award attorney's
fees to a "prevailing party." The Georgia offer of settlement
rule permits awards to winners and losers who make offers of
settlement which are rejected. Indeed, O.C.G.A. § 9-11-68
mandates that a court award attorneys fees to defendants who
make offers and later lose on the merits of the case, if the
offer was made in good faith and the final judgment is less than
75 percent of the offer. As such, the Georgia offer of
settlement rule plainly contemplates awards of attorney's fees
on unsuccessful legal work. See Essex Builders Grp., Inc. v.
Amerisure Ins. Co., 2007 WL 2948581, at *1 n.4 (M.D. Fla. Oct.
10, 2007) ("[lIt makes no sense to limit fee awards under
[Florida's offer of judgment rule] to 'successful' arguments.
For the same reason, [plaintiff's] argument that [defendant]
cannot recover for the hours expended on an unfiled motion to
dismiss must fail.")
Despite its lack of authority, Gowen contends portions of
the fees are unrecoverable because the work on the motion to
strike and the preparation of video clips were not used to
"advance Greenberg's argument or position in the case." To the
extent that Gowen's challenge is based on the necessity of this
work, the challenge fails. Greenberg has presented testimony
that the fees related to the motion to strike and video clips
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were considered reasonably necessary at the time the fees were
incurred. Gowen has not contradicted this testimony.
Accordingly, Greenberg's fee request should not be reduced for
unsuccessful claims or work that was not filed with the Court.
C. Additional Challenges
Gowen challenges Greenberg's request on a number of
additional grounds unrelated to the reasonableness of
Greenberg's request. The Court addresses each of Gowen's
contentions to determine if a valid basis for reducing the award
exists.
1. Comparison to Gowen's Fees
Gowen protests the amount of Greenberg's fees because it
billed far less in litigating the same case, approximately
$55,648.50. The Court does not find the total value of Gowen's
fees a persuasive justification for reducing Greenberg's
requested fee. Myriad reasons may exist for why the parties'
counsel devoted unequal levels of resources to the same suit.
In the end, Gowen's total fee is of little or no relevance.
See, e.g., Johnson v. Univ. Coll. of Univ. of Ala. in
Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983) (noting that
both the hourly rate and number of hours of one party is of
little use in determining a reasonable award to the opposing
side) .
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I
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2. Greenberg's Legal Malpractice Insurance
Gowen objected to Greenberg's request for attorneys' fees
on the grounds that the fees Greenberg incurred were paid, not
by Greenberg, but by Greenberg's legal malpractice insurance
provider. Dkt. No. 240. Gowen's argument is contrary to the
language of O.C.G.A. § 9-11-68. Section 9-11-68(b) (1) requires
an award of "attorney's fees and expenses of litigation incurred
by the defendant or on
the defendant's behalf."
(emphasis
added). The language of the Georgia rule contemplates an award
of attorneys' fees and expenses paid for by a party other than
the defendant. As such, whether a defendant has insurance that
pays any or all of the defendant's attorneys' fees has no
bearing on whether the defendant can recover under O.C.G.A. § 911-68. Accordingly, Gowen's argument based on Greenberg's
malpractice insurance is denied. 15
3. Recovery for Paralegal. Fees
Gowen challenges Greenberg's motion for attorneys' fees on
the grounds that a portion of the fees requested are
attributable to paralegals rather than attorneys. Dkt. No. 257,
at 8. Gowen disputes approximately $43,000 in paralegal fees
incurred by Greenberg. Neither party has pointed to authority
15
Gowen also moved the Court to order Greenberg to disclose its legal
malpractice insurance policy. Dkt. No. 241. Because the Court holds that
Greenberg's legal malpractice insurance is irrelevant to recovery under
O.C.G.A. § 9-11-68, Gowen's motion to order disclosure of Greenberg's policy
is denied as moot.
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holding that O.C.G.A. § 9-11-68 does or does not permit the
recovery of paralegal fees.
Paralegal fees are generally recoverable in an attorney's
fee award where the paralegal performs "work traditionally done
by an attorney." See Jean v. Nelson, 863 F.2d 759, 778 (11th
dr. 1988) (affirming an award of law clerk and paralegal fees
under the Equal Access to Justice Act). See also Richlin Sec.
Serv. Co. v. Chertoff, 553 U.S. 571, 581 (2008) (holding that it
is self-evident that 5 U.S.C. § 504(b) (1) (A), which entitles
prevailing parties to recover attorney's fees, includes
paralegal fees); Missouri v. Jenkins by Agyei, 491 U.S. 274, 289
(1989) (affirming an award of attorneys' fees under 42 U.S.C. §
1988 that included fees attributable to paralegals and law
clerks) .
Gowen does not provide support for its contrary
position that paralegal fees are not recoverable in this
dispute.
Moreover, Greenberg states that all the work performed by
its paralegals would have been performed by attorneys if it had
not been performed by paralegals. Dkt. No. 259, at 6 (citing
Sinkfield Aff. ¶ 27). Gowen has not disputed Greenberg's claim
The court notes that the result would likely be the same under Georgia law.
Though not explicitly ruling on the issue, Georgia cases have discussed the
award of paralegal fees under statutes awarding attorney's fees without any
hesitation or criticism. See Ellis v. Stanford, 568 S.E.2d 157, 161 (Ga.
ct. App. 2002) (mentioning the recoverability of paralegal fees in the
context of O.C.G.A. § 9-15-14(b)); Santora v. Am. Combustion, Inc., 485
S.E.2d 34, 37-40 (Ga. Ct. App. 1997) (same).
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that the disputed work was work that would have otherwise been
done by attorneys. Accordingly, Greenberg is entitled to
recover paralegal fees under O.C.G.A. § 9-11-68.
4. Period of Recovery
Gowen challenges Greenberg's request for attorneys' fees
and expenses incurred after the Court issued its order granting
Greenberg summary judgment.' 7 Specifically, Gowen disputes
Greenberg's request for fees and expenses incurred between
September 3, 2010, the date of the Court's order awarding
summary judgment to Greenberg, and November 7, 2010.18 Gowen
asserts that eliminating this range of fees and expenses would
reduce Greenberg's recoverable fees by $38,553.50 and expenses
by $7,810.50, for a total of $46,364.'
Section 9-11-68(b) (1) states:
17
Gowen relies largely on Wheatley v. Moe's Southwest Grill, LLC, 580 F.
Supp. 2d 1324, 1326 (N.D. Ga. 2008), for the principle that the entry of
summary judgment closes the period for which Greenberg may recover fees
under O.C.G.A. § 9-11-68. That issue, however, was not before the Wheatley
court. Rather, Wheatley held that fees incurred on appeal were not
recoverable fees under O.C.G.A. § 9-11-68. Gowen's reliance on Wheatley for
this point is misguided.
18
Gowen indicates confusion as to why Greenberg asks for fees up until
November 7, 2010. Dkt. No. 257, at 10 n.10 ("Defendants' assertion that
they are entitled to fees and costs incurred through November 7, 2010 is
meritless. The record reflects no entries of a judgment, or any document,
on November 7, 2010.") . As the Court understands Greenberg's request,
Greenberg asks for fees up until November 7, 2010 merely because it chose
that date when it filed its motion for attorneys' fees on January 12, 2011.
Greenberg has continuously asserted that it is entitled to recover fees up
until the entry of final judgment on January 13, 2011, but that it is only
asking for fees incurred through November 7, 2010. The Court sees no reason
why Greenberg is prohibited from asking for fewer fees than it believes it
is entitled to.
19
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Gowen does not explain how it arrived at these figures.
22
the defendant shall be entitled to recover reasonable
attorney's fees . . . incurred by the defendant
from the date of the rejection of the offer of
settlement through the entry of judgment if the final
judgment is one of no liability or the final judgment
obtained by the plaintiff is less than 75 percent of
such offer of settlement.
Based on the language of the statute, it is necessary to
identify the precise date of "the entry of judgment" in order to
determine the end date of the recoverable period. Notably,
Section 68(b) (1) forecloses the period of recovery upon
judgment, not final judgment. Finality is necessary for an
award under the statute, but it is not a limitation on the
period of recovery
"Judgment" is defined as "a decree and any order from which
an appeal lies." Fed. R. Civ. P. 54(a). The question,
therefore, is whether the Court's September 3, 2010 order was
appealable. That order resolved all of Gowen's claims against
Greenberg, but it did not resolve the claims against Defendant
Biju Abraham. Dkt. No. 185. Where an order resolves all claims
against one party, but does not dispose of the claims against
other defendants, that order is not appealable. Williams v.
Bishop, 732 F.2d 885, 886 (11th Cir. 1984) (concluding that the
grant of summary judgment in favor of two of the three named
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defendants was not an appealable final judgment because it
disposed of "fewer than all the claims or parties")
20
Because the Court's September 3, 2010 order was not an
order subject to appeal, the order did not constitute a
"judgment." As such, the September 3, 2010 order did not end
the period for which Greenberg could recover attorneys' fees.
Greenberg is entitled to recover fees and expenses incurred up
until the Court entered final judgment as to all claims against
all defendants. That order was entered on January 13, 2011.
Dkt. No. 214. Greenberg's award will not be reduced by the fees
20
Gowen argues that the September 3, 2010 order constituted a judgment for
the purposes of O.C.G.A. § 9-11-68. Dkt. No. 257, at 10. In support of its
position, Gowen points to O.C.G.A. § 9-11-56(h), which states, "An order
granting summary judgment on any issue or as to any party shall be subject
to review by appeal." Gowen contends that under O.C.G.A. § 9-11-56(h), the
Court's September 3, 2010 order would be appealable, and would therefore
constitute a judgment under both Federal Rule of Civil Procedure 54 and
O.C.G.A. § 9-11-54 of the Georgia Civil Procedure Act. Dkt. No. 257, at 10.
Gowen's reliance on the Georgia rule is misplaced. In federal courts, but
for a few exceptions, an order is not appealable unless it resolves all
claims against all parties. Williams v. Bishop, 732 F.2d 885, 886 (11th
Cir. 1984). The direct appeal rule embodied in O.C.G.A. § 9-11-56(h) is in
conflict with the federal final judgment rule stated in Williams v. Bishop.
Accordingly, under the Erie framework, the Court must determine whether the
federal rule is outcome determinative. Specifically, the Court must
determine whether failure to apply state law would have such a significant
impact on the outcome of a case that it would result in unfair
discrimination against citizens of the forum state or be likely to cause a
plaintiff to choose federal court over state court. Esfeld v. Costa
Crociere, S.P.A., 289 F.3d 1300, 1307 (11th Cir. 2002). Application of the
federal final judgment rule would not be unfair to citizens of the forum
state because the rule is citizenship-neutral, and applies equally to
Georgia residents and non-residents. Moreover, application of the federal
rule will not encourage forum shopping because application of the rule has
no discernible favorability to either party. The federal rule merely treats
the grant of partial summary differently than the state rule. Because
either party can move for summary judgment, there is no clear advantage to
any party. In sum, the Court must apply the federal final judgment rule set
forth in Williams v. Bishop, not the Georgia rule.
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24
and expenses incurred after the Court's summary judgment order,
but before the entry of final judgment.
E. Conclusion
Greenberg has submitted sufficient evidence to establish
both a reasonable rate and reasonable number of hours to support
its attorneys' fee request under O.C.G.A. § 9-11-68. Greenberg
is entitled to recover $272,031.90 in attorneys' fees.
Greenberg has also submitted sufficient evidence to recover its
expenses incurred during the relevant time. Greenberg is
entitled to recover $9,230.25 in expenses. Gowen has not put
forth any valid challenge to Greenberg's request that would
warrant a reduction in the fees and expenses requested. In sum,
Greenberg is entitled to recover both fees and expenses under
O.C.G.A. § 9-11-68. The total combined award of fees and
expenses is $281,262.15.
II. Motion for Costs
Greenberg also moves separately for costs pursuant to
Federal Rule of
Civil Procedure
54. Dkt. No. 254. Greenberg
submitted a timely bill of costs supporting its motion. Dkt.
No. 203. Greenberg seeks $35,577.54 in costs. Gowen objected
to Greenberg's bill of costs, arguing that $8,648.43 of the
requested costs is attributable to videotaping ten depositions.
Dkt. No. 204. Gowen contends that these costs are not
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recoverable because the videotaping was only for Greenberg's
convenience and was not necessary. Id. Gowen emphasizes that
the videotaped portions of the depositions were not submitted to
the Court, and therefore could not have been used in the case.
Notably, Gowen does not challenge whether the costs of
videotaped depositions are recoverable generally, but rather
contends that these specific video recordings were not necessary
and were not used in this case.
It is the non-prevailing party's burden to demonstrate that
a challenged cost is not taxable under Rule 54. See Davis v.
Williams, 2010 WL 1955935, at *1 (S.D. Ga. 2010). Moreover, a
deposition need not actually be used at trial to be recoverable
under Rule 54. If the "deposition appeared to be reasonably
necessary to the parties in light of the particular situation at
the time it was taken" the prevailing party may be awarded the
cost of that deposition. Helms v. Wal-Mart Stores, Inc., 808 F.
Supp. 1568, 1571 (N.D. Ga. 1992) (emphasis in original)
Gowen concedes that "stenographic transcripts may have been
useful for crafting [Greenberg's] summary judgment and brief."
Dkt. No. 204, at 3. Moreover, despite Greenberg's notice that
the depositions would be videotaped and stenographically
recorded, Gowen made no objection to the videotaping of the
deposition. Accordingly, Gowen has not carried its burden to
demonstrate that videotaping the depositions was not reasonably
AO 72A
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26
necessary at the time they were taken. Gowen's objection to the
costs for videotaping the depositions is denied.
Gowen's only objection to Greenberg's bill of cost was the
objection to videotaping costs. Because that objection is
denied, Greenberg is entitled to the full $35,577.54 requested.
Greenberg's motion is granted in full.
CONCLUSION
For the reasons stated above, Greenberg's Motion for
Attorneys' Fees pursuant to O.C.G.A. § 9-11-68 is GRANTED.
Greenberg is entitled to recover $281,262.15 in fees and
expenses on its motion.
Also, Greenberg's Motion for Costs pursuant to Federal Rule
of Civil Procedure 54 is GRANTED. Greenberg is entitled to
recover $35,577.54 in costs on that motion.
SO ORDERED,
this 30th day of March, 2012.
LISA GODBEY OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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