United States Of America v. $80,891.25 in U.S. Currency

Filing 25

ORDER that the Court orders the return of the $80,891.25 to Davila-Tosado. The Court further awards Davila-Tosado $3,251.05 in attorneys' fees and costs. The Court also awards Davila-Tosado $2,681.68 in pre-judgment interest and $.50 in post-judgment interest. The total amount thus awarded to Davila-Tosado, including the returned property, is $86,824.48. Signed by Judge B. Avant Edenfield on 1/19/12. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA,

4, 2006). This determination is within the
Court’s discretion and will only be
overturned if the Court abuses its discretion.
See Johnson v. Ga. Highway Exp., Inc., 488
F.2d 714, 716-17 (5th Cir. 1974), overruled

on other grounds by Blanchard v. Bergeron,
489 U.S. 87, 90 (1989).

Plaintiff,
v. 4:11-cv-183
$80,891.25 in U.S. CURRENCY,
Defendant.
ORDER
I. INTRODUCTION
On December 19, 2011, this Court
granted Claimant Luis Daniel DavilaTosado’s (“Davila-Tosado”) motions to
dismiss. See Doc. 22. The Court ordered
the parties to brief the damages owed by
Plaintiff United States of America
(“Government”) under 28 U.S.C. § 2465.
See id. at 3. Having considered the briefs,
the Court orders the following.
II. ANALYSIS
A. Return of the Property

Where fees are called for by statute, the
Court must first calculate the “lodestar”
amount, an initial estimate of a reasonable
attorney’s fee, by multiplying the number of
hours reasonably expended on the litigation
times a reasonable hourly rate. Blanchard,
489 U.S. at 94. The Court then considers
adjusting this amount by reference to the
factors listed in Johnson. See id. “[T]here
is a ‘strong presumption’ that the lodestar
figure is reasonable, but that presumption
may be overcome in those rare
circumstances in which the lodestar does not
adequately take into account a factor that
may properly be considered in determining a
reasonable fee.” Perdue v. Kenny A. ex rel.
Winn, 130 S. Ct. 1662, 1673 (2010). The
Court must consider factors such as:
(1) time and labor required;
a. novelty and difficulty of the
questions
involved;

A successful claimant is entitled to the
return of his property. See 28 U.S.C. §
2465(a)(1). Davila-Tosado is the lone,
successful claimant in this case. See Doc.
22. Accordingly, the Court ORDERS the
return of the $80,891.25 to Davila-Tosado.

(2) likelihood that this representation
precluded the attorney from taking other
work;

B.
Attorney’s Fees and Other
Litigation Costs

(3) fee customarily charged in the
community for similar work;

“[T]he United States shall be liable for . .
. reasonable attorney fees and other
litigation costs reasonably incurred by the
claimant.” 28 U.S.C. § 2465(b)(1)(A).

(4) amount at stake and result achieved;

“A determination of a reasonable
attorney’s fees is a question of fact.” Crowe

& Dunlevy v. Century Martial Art Supply,
Inc., 2006 WL 20509, at *1 (M.D. Fla. Jan.

b. skill requisite to perform the legal
services;

(5) time limitations imposed by client or
circumstances;
(6) nature and length of the professional
relationship with the client;
(7) experience, reputation, and ability of
the lawyer;

(8) fee arrangement between the
attorney and client;

$250 per hour was reasonable. See id., Doc.
24 at 2.

(9) the undesirability of the case; and

Because of the swift resolution of this
case, the simplicity of the statutory
interpretation involved in reaching that
resolution, and this Court’s precedent, the
Court finds a fee of $250 per hour to be
reasonable.

(10) awards in similar cases.
See Johnson, 488 F.2d at 717-19; MODEL
RULES OF P ROF ’ L C ONDUCT R. 1.5 (2010).
Davila-Tosado contends that he is
entitled to $3,730.00 in attorneys’ fees. See
Doc. 23 at 9. This amount reflects 13.9
hours worked by Davila-Tosado’s counsel at
varying rates of either $200 or $300 per
hour. See id. Davila-Tosado’s counsel
swears by affidavit that the amount of time
expended on this case “was necessary and
justified in the defense of this case, in view
of the duration of the litigation, the
complexity of the factual and legal issues
involved, and the stubborn and litigious
nature of Plaintiff and Plaintiff’s counsel.”
Id. at 6. Davila-Tosado’s counsel also avers
“[t]hat the hourly rates charged by [DavilaTosado’s] attorneys are reasonable in view
of their experience and are consistent with
that charged by said attorneys for
representation of other clients in litigation of
specialized matters such as this and with the
value of the property at stake.” Id.

Two attorneys represented DavilaTosado in this matter, and Davila-Tosado
requests fees for both of their services. See
Doc. 23 at 8-9. One attorney began
participating more than five months after
Davila-Tosado agreed to representation by
his firm. See id. at 8. Davila-Tosado’s
attorneys charged Davila-Tosado for the
time spent briefing the new attorney on the
case. See id.
The Government argues that the
expenses associated with transferring
Davila-Tosado’s case to another attorney are
unreasonable. See Doc. 24 at 4. The Court
agrees with the Government.
“An award for time spent by two or
more attorneys is proper as long as it reflects
the distinct contribution of each lawyer to
the case and the customary practice of
multiple-lawyer litigation.” See Johnson v.
Univ. Coll. of Univ. of Ala. in Birmingham,
706 F.2d 1205, 1208 (11th Cir. 1983).

The Government contends that the
attorneys’ fee award requested by DavilaTosado is unreasonable. See Doc. 24 at 2.
The Government argues that the Court
should consider its conclusion that
reasonable cause supported the seizure, see
Doc. 22 at 2, in determining the
reasonableness of Davila-Tosado’s request,
see Doc. 24 at 3.

The time spent briefing the second
attorney constitutes duplicate work that
would not have been charged to DavilaTosado but for the attorney’s late entry into
this forfeiture foray. Accordingly, the Court
deducts an hour from the 13.9 hours charged
by Davila-Tosado’s attorneys, but finds the
remaining charged time to be reasonable.

In a case analogous to this one, this
Court determined that a $300 per hour fee
was unreasonable. See United States v.
$89,600, 4:11-cv-176, Doc. 24 (S.D. Ga.
Oct. 26, 2011). In that case, as in this one,
this Court dismissed the Government’s
complaint because it was untimely. See id.,
Doc. 21. The Court decided that a fee of

The lodestar calculation ($250 per hour
× 12.9 hours) calls for an attorneys’ fee
award of $3,225.00. Although the issues
involved in the case were not particularly
novel or difficult, the amount at stake and
the successful result ultimately achieved by
2

Therefore, the Court AWARDS DavilaTosado $3,225.00 in attorneys’ fees and
$26.05 in other litigation costs , for a total of
$3,251.05 under 28 U.S.C. § 2465(b)(1)(A).

Davila-Tosado’s counsel confirm the
propriety of adherence to the lodestar
calculation.
The Government argues that other fees
requested by Davila-Tosado, including “fees
for dealing with the Drug Enforcement
Administration after the initial seizure of the
funds and before the verified complaint was
filed, [and] expenses associated with
litigating the merits of the seizure,” are
unreasonable. See Doc. 24 at 4. Failing to
reimburse these fees would deviate from the
purpose of the Civil Asset Forfeiture Reform
Act’s (“CAFRA”) fee-shifting provision.
Cf. United States v. 317 Nick Fitchard Rd.,
N.W., 579 F.3d 1315, 1323 (11th Cir. 2009)
(“The CAFRA fee-shifting provision was
designed to make claimants whole for their
efforts to recover their proper ty in a civil
forfeiture action.”). The Court will not
demarcate the fee award in this fashion.

C. Pre-Judgment and Post-Judgment
Interest
Successful claimants of currency are
also entitled to pre-judgment and postjudgment interest. See 28 U.S.C. §
2465(b)(1 )(B), (C)(ii).
Davila-Tosado has requested an award
of $2,681.68 in pre-judgment interest on the
$80,891.25 seized. See Doc. 23 at 1.
Davila-Tosado has also requested an award
of $0.50 in post-judgment interest on
$83,572.93, which reflects the amount
seized
plus
pre-judgment
interest
($80,891.25 + $2,681.68). See id. at 2.
The Government has raised no
objections to the calculation of these awards,
contending only that it would be
unreasonable to award Davila-Tosado prejudgment interest at all, seemingly due to the
reasonableness of the Government’s seizure.
See Doc. 24 at 2-3.

The Government cites United States v.
4880 S.E. Dixie Highway for the principle
that “the government will not ordinarily
incur liability for attorney's fees by merely
filing a defective complaint.” 838 F.2d
1558, 1564 (11th Cir. 1988).

The statute, however, requires that this
Court award pre-judgment interest. See 28
U.S.C. § 2465(b)(1)(C)(ii) (stating that “the
United States shall be liable for” prejudgment interest where a claimant
substantially prevails). Davila-Tosado is a
substantially prevailing party. See Doc. 22
at 2. Accordingly, Davila-Tosado is entitled
to pre-judgment interest.

The Government ignores the verbal
forest for the trees. The sentence after the
quote states that “[w]e emphasize again,
however, that forfeiture actions are unique.”
Id. The line cited by the Government
applies only “[i]n other civil actions.” Id.
The mandate of CAFRA in this context is
clear. See 28 U.S.C. § 2465(b)(1)(A)
(“[T]he United States shall be liable for . . .
reasonable attorney fees and other litigation
costs reasonably incurred by the claimant.”
(emphasis added)).

The Court AWARDS Davila-Tosado
$2,681.68 in pre-judgment interest and
$0.50 in post-judgment interest.
III. CONCLUSION

Davila-Tosado has also requested an
award of $26.05 in other costs of litigation.
See Doc. 23 at 9. The Government raises no
objection to this award.

THE COURT ORDERS THE
RETURN OF THE $80,891.25 TO
DAVILA-TOSADO. THE COURT
FURTHER AWARDS DAVILA-TOSADO
$3,251.05 IN ATTORNEYS’ FEES AND
3

COSTS. THE COURT ALSO AWARDS
DA VILA-TOSADO $2,681.68 IN PREJUDGMENT INTEREST AND $0.50 IN
POST-JUDGMENT INTEREST. THE
TOTAL AMOUNT THUS AWARDED TO
DA VILA-TOSADO, INCLUDING THE
RETURNED PROPERTY, IS $86,824.48.
THIS CASE IS CLOSED.
This 19th day of January 2012.

R AVANT EDENFIELØ, JUDGE

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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