First Merit Bank v. J&B Products, Ltd. et al

Filing 28

ORDER Granting Plaintiff's Request for Attorneys' Fees, Costs, and Expenses, Awarding Plaintiff Attorneys' Fees, Costs, and Expenses in the Amount of $61,625.21, and Directing Plaintiff to Submit Proposed Judgment. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
FIRST MERIT BANK,
Plaintiff,
v

Case No. 15-cv-13548
Honorable Thomas L. Ludington

J&B PRODUCTS, LTD., et al.,
Defendants.
__________________________________________/
ORDER GRANTING PLAINTIFF’S REQUEST FOR ATTORNEYS’ FEES, COSTS,
AND EXPENSES, AWARDING PLAINTIFF ATTORNEYS’ FEES, COSTS, AND
EXPENSES IN THE AMOUNT OF $61,625.21, AND
DIRECTING PLAINTIFF TO SUBMIT PROPOSED JUDGMENT
Plaintiff First Merit Bank initiated the present action by filing its complaint against
Defendant J&B Products, Ltd. (“J&B”), and Defendant Joseph Bommarito on October 8, 2015.
See Compl., ECF No. 1.

Plaintiff alleged that, by defaulting on three loan agreements,

Defendants were in breach of various guarantees and promissory notes. Id. Plaintiff therefore
sought repayment of all outstanding loan obligations ($415,526.46 at the time the complaint was
filed) and attorneys’ fees.
After the close of discovery, on July 27, 2016 Plaintiff moved for summary judgment on
Counts II, III, and IV of Plaintiff’s complaint. See ECF No. 16. On October 27, 2016 Plaintiff’s
motion for summary judgment on Counts II, III, and IV was granted. Because there was no
dispute that Loan No. 1 has been paid, Count 1 of Plaintiff’s complaint was dismissed as moot.
Judgment was not immediately entered in favor of Plaintiff, but instead the parties were directed
to submit supplemental briefs addressing any unresolved issues regarding attorneys’ fees. Those
briefs have now been received.

I.
A.
Federal Rule of Civil Procedure 54(d) governs the payment of attorneys’ fees. Under that
rule, “a claim for attorney’s fees and related nontaxable expenses must be made by motion unless
the substantive law requires those fees to be proved at trial as an element of damages.” Rule
54(d)(2)(A). Such a motion must “be filed no later than 14 days after the entry of judgment”
unless a statute or the court orders otherwise. Rule 54(d)(2)(b).
Defendant argues that Plaintiff must use the procedure outlined in Rule 54(d)(2) to
obtain its attorney’s fees.

The parties’ promissory notes contain provisions governing the

payment of attorneys’ fees, providing as follows:
ATTORYNEYS’ FEES; EXPENSES: Lender may hire or pay someone else to
help collect this note if Borrower does not pay. Borrower will pay Lender that
amount. This includes, subject to any limits under applicable law, Lender’s
reasonable attorneys’ fees and Lender’s legal expenses whether or not there is a
lawsuit, including reasonable attorneys’ fees and expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), and appeals. If not prohibited by applicable law, Borrower also will
pay any court costs, in addition to all other sums provided by law.
See Promissory Note p. 1, ECF No. 25 Ex 2. Through this provision, attorneys’ fees are an
element of damages that would need to be proven at trial. Therefore Plaintiff is not required to
use the procedure outlined in Rule 54(d)(2).
B.
Having determined that consideration of attorneys’ fees is appropriate at this stage, the
next issue is whether the fees sought by Plaintiff’s counsel are reasonable. The burden of proving
that requested fees are reasonable rests with the party requesting them. Smith v. Khouri, 481
Mich. 519, 528 (2008). The process by which reasonable attorney fees are calculated and
awarded under Michigan law proceeds in three steps. First, the court must determine the “fee
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customarily charged in the locality for similar legal services.” Id at 530. Second, the court must
determine the reasonable number of hours expended by each attorney.” Id. (citing Norman v.
Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988) (explaining that
excessive, unnecessary, or redundant hours should be excluded from the attorney fees
computation). Third and finally, the court must multiply the two numbers to create a “baseline
figure.” Smith, 481 Mich. at 533. At that point, the court “should consider . . . other factors and
determine whether they support an increase or decrease in the base number.” Id. Those factors
are as follows:
(1) the experience, reputation, and ability of the lawyer or lawyers performing the
services, (2) the difficulty of the case, i.e., the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service properly,
(3) the amount in question and the results obtained, (4) the expenses incurred, (5)
the nature and length of the professional relationship with the client, (6) the
likelihood, if apparent to the client, that acceptance of the particular employment
will preclude other employment by the lawyer, (7) the time limitations imposed
by the client or by the circumstances, and (8) whether the fee is fixed or
contingent.
Pirgu v. United Servs. Auto. Ass’n, 499 Mich. 269, 282 (2016).
Defendants do not object to Plaintiff’s proposed hourly rate of $195.00, conceding that
the rate is reasonable for the market and for Plaintiff’s attorneys’ credentials. Plaintiff also does
not request any upward adjustment of the fees. Therefore, the only issue before this Court is
whether Plaintiff’s counsel spent a reasonable amount of time on this case. Defendants argue
that the case was not complex, and that defense counsel only charged $40,069.50. Defendants
further argue that certain billing entries by plaintiffs’ counsel lack detail or specificity.
In Smith, the Michigan Supreme Court indicated that excessive, redundant or unnecessary
hours should be excluded. Id. at 523 n.17. See also Van Elslander, 297 Mich. App. at 239.
However, the “essential goal in [awarding reasonable fees] is to do rough justice, not to achieve
auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011). Plaintiff has provided complete and
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thorough billing statements, substantiated by affidavits of counsel. The bills are sufficiently
detailed for this Court’s review.
Plaintiff’s billing statement show that Attorney JAA devoted 207.45 hours to the case,
Attorney SMW devoted 80.9 hours to the case, and Attorney JPM spent 1.4 hours on this case.
See ECF No. 25 Ex. 4. The billing statements further show an additional 8.7 hours in preparing
the supplemental briefs regarding attorneys’ fees, but does not identify the specific attorney that
performed the work. Altogether, Plaintiff’s attorneys spent 298.45 hours on this matter.
Multiplying this figure by $195.00 (the agreed upon reasonable rate) results in a total of
$58,189.75 in attorney’s fees.
Aside from generally arguing that the billing statements are not sufficiently specific,
Defendants have not pointed the Court to any excessive, redundant, or unnecessary hours
incurred by Plaintiff’s counsel. Nor does a review of the billing statements by this Court suggest
any excessive or redundant hours. Finally, there is no rule of law holding that attorneys’ fees for
one party are capped at the attorneys’ fees incurred by the other party. In the present case
Plaintiff’s counsel not only filed the complaint and prosecuted its case to the close, but also
prepared and briefed dispositive motions. It is therefore unsurprising, and even appropriate, that
Plaintiff’s counsel incurred greater fees
The billing statements further show that Plaintiff’s counsel incurred $3,427.46 is costs
and expenses. These costs and expenses are authorized under the parties’ promissory notes,
which specifically provides for the payment of the lender’s legal expenses and court costs. See
Promissory Note p. 1, ECF No. 25 Ex 2. Defendants have not identified any rule of law that
prohibits the award of such costs and expenses, and so they will be awarded at this time.

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Adding the attorneys’ fees together with the costs and expenses results in a total of
$61,625.21. Because this amount is reasonable it will be awarded to Plaintiff at this time.
Plaintiff will be directed to submit a proposed judgment (via the CM/ECF Utilities function)
including the amount of all outstanding loan obligations and attorneys’ fees and expenses that is
consistent with this order and the order addressing Plaintiff’s motion for summary judgment
entered on October 27, 2016. See ECF No. 24.
II.
Accordingly, it is ORDERED that Plaintiff’s request for attorneys’ fees, costs, and
expenses in the amount of $61,625.21 is GRANTED.
It is further ORDERED that Plaintiff is AWARDED attorneys’ fees, costs, and expenses
in the amount of $61,625.21.
It is further ORDERED that Plaintiff is directed to SUBMIT a proposed judgment
consistent with both this order and the order addressing Plaintiff’s motion for summary judgment
entered on October 27, 2016.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: December 21, 2016

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on December 21, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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