Kesler Associates, Inc. v. Wellman Plastics Recycling, LLC

Filing 98

ORDER AND OPINION Granting Defendant's 97 Motion for Attorney Fees. Signed by District Judge Denise Page Hood. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KESLER ASSOCIATES, INC.
Plaintiff,
v.

Case No. 10-CV-13390
HONORABLE DENISE PAGE HOOD

WELLMAN PLASTICS
RECYCLING, LLC,
Defendant.
______________________________________/
ORDER AND OPINION GRANTING DEFENDANT’S MOTION FOR
ATTORNEY FEES
I. BACKGROUND
Plaintiff, Kesler Associates, Inc. filed this action on August 25, 2010, against
Defendant, Wellman Plastics Recycling, LLC. A trial began on May 7, 2013, and
continued until May 15, 2013. The Plaintiff’s Complaint alleged eight different
counts including a count alleging that the Defendant violated Michigan Sales
Representatives’ Commission Act (“SCRA”) Mich. Comp. Laws § 600.2961 (2013).
On May 15, 2013, the jury returned a verdict on all counts for the Defendant against
the Plaintiff. Now before the Court is Defendant’s Motion for Attorney Fees pursuant
to Mich. Comp. Laws § 600.2961(6). [Docket No. 97, filed May 30, 2013]
Defendant is entitled to reasonable attorney fees and some costs under SCRA as a

“prevailing party” in the lawsuit. For the reason stated below, Defendant’s Motion
for Attorney Fees is GRANTED.
II. ANALYSIS
Defendant argues for attorney fees and costs under Mich. Comp. Law
§ 600.2961(6) (2013) because it was the “prevailing party” in the lawsuit. SCRA
awards attorney fees and costs to the prevailing party. The Defendant has provided the
Court with itemized documentation addressing the reasonableness of attorney fees and
costs. Petterman v. Haverhill Farms, Inc., 125 Mich. App. 30, 33; 335 N.W.2d 710,
712 (1983) (“The party requesting fees, the prevailing party, has the burden of proving
the reasonableness of attorney fees.”). The Plaintiff has not filed a response opposing
the motion for attorney fees.
A. Eligibility for Attorney Fees and Costs
Eastern District of Michigan Local Rule 54.1.2(a) mandates that “a motion for
attorney fees . . . pursuant to Fed. R. Civ. P. 54(d)(2) must be filed no later than 28
days after entry of judgment.” E. D. Mich. R. 54.1.2. Pursuant to Local Rule
54.1.2(b), Defendant has submitted an affidavit of counsel setting out in detail the
number of hours spent on each aspect of the case, the rate customarily charged by
counsel for such work, and the prevailing rate charged in the community for similar
services within the appropriate time frame. [Docket No. 97, Exhibit C]
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Generally, the “American Rule” does not allow for the recovery of attorney fees
from the losing party, unless there is an exception carved out by statute or court rule.
Haliw v.City of Sterling Hts, 471 Mich. 700, 707, 691 N.W.2d. 751 (2005). Section
600.2961 provides that “if a sales representative brings a cause of action pursuant to
this section, the court shall award to the prevailing party reasonable attorney fees and
court costs.” SCRA defines the “prevailing party” as the “party who wins on all the
allegations of the complaint or on all of the responses to the complaint.” Mich. Comp.
Laws § 600.2961(1)(c); Peters v. Gunnell, Inc., 253 Mich. App. 211, 223, 655 N.W.2d
582, 590 (2002) (“A party cannot be deemed a prevailing party entitled to reasonable
attorney fees and court costs unless that party is found to have prevailed fully on each
and every aspect of the claim or defense asserted under the SRCA.”). Here,
Defendant is the prevailing party because it received a jury verdict in its favor on all
counts. [Docket No. 97, Exhibit B] As the “prevailing party,” the Defendant can
petition for attorney fees and costs pursuant to the statute.
B. Reasonableness of Attorney Fees
The Court now turns to examining the reasonableness of attorney fees. Smith
v. Khouri, 481 Mich. 519, 530, 751 N.W.2d 472, 480 (2008). The Court must
consider six factors:

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(1) the fee customarily charged in the locality for
similar services. This number is multiplied by the
reasonable number of hours expended in the case; (2)
the professional standing and experience of the
attorney; (3) the skill, time and labor involved; (4) the
amount in question and the results achieved; (5) the
difficulty of the case; (6) the nature and length of the
professional relationship with the client.
Id. The burden lies with the Defendant to provide evidentiary support as to the
reasonableness of attorney fees. Petterman v. Haverhill Farms, Inc., 125 Mich. App.
30, 33; 335 N.W.2d 710, 712 (1983); see also Smith v. Khouri, 481 Mich. 519, 531,
751 N.W.2d 472, 480 (2008) (“The burden is on the fee applicant to produce
satisfactory evidence . . . that the requested rates are in line with those prevailing in
the community for similar services by lawyers of reasonably comparable skill,
experience and reputation.”) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11
(1984)).
The first factor, “multiplying the reasonable hourly rate by the reasonable hours
billed will produce a baseline figure.” Smith, 481 Mich. at 533, 751 N.W.2d at 480.
To establish this baseline figure, “the trial courts have routinely relied on data
contained in surveys such as the Economics of the Law Practice Surveys that are
published by the State Bar of Michigan.” Id. at 530, 751 N.W.2d at 479. Defendant
has attached the State Bar of Michigan 2010 Economics of Law Practice Attorney
Income and Billing Rate Summary Report (the “2010 Michigan Billing Report”) as

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evidence of the most recent empirical data regarding the customary fees charged for
legal services. [Docket No. 97, Exhibit F, Pg ID 1149-1165]
The tables break down the billing rates by years of practice, firm size, and
location. Defense counsel, Mark C. Pierce, is a managing partner with over 35 years
of experience. The State Bar of Michigan reports that an attorney in that position has
a billing rate of $200 per hour in the 25th percentile and $315 per hour for the 75th
percentile. The median rate is $250 per hour and the mean is $265 per hour. Attorney
Pierce has billed $275 per hour. This is higher than the median and mean according
to the 2010 Michigan Billing Report, but the $10 difference is not exorbitant and a
reasonable variance for attorney fees.
For the second consideration, the Court examines the professional standing and
experience of the attorney. A check of the State Bar of Michigan member directory
shows that Mark C. Pierce has been a member of the bar since 1976 and is currently
in good standing. He has 37 years of litigation experience in Michigan at all levels
of the court. This too weighs in favor of the reasonableness of the attorney fees
request.
The remaining factors—skill, time and labor involved, the difficulty, nature and
the length of the case—weigh in favor of the reasonableness of the attorney fees
request. Defendant argues that the time spent on this matter is reasonable given the
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significant work required to defend this case during discovery, motions for summary
judgment, and trial. The Court agrees as the case spanned over a 2.5 year period. In
addition, several years’ worth of documents were produced and multiple depositions
conducted in both Michigan and South Carolina. The evidence indicates the majority
of attorney fees accrued in relation to trial preparation and the ensuing eight-day trial.
In all, 401.91 hours were billed and totaled $107,388.25. Though the amount may,
at first glance, seem exorbitant, balanced with the 2.5-year lifespan of the suit, the
amount is reasonable.
III. CONCLUSION
Accordingly, for the reasons stated above,
IT IS ORDERED that the Defendant’s Motion for Attorney fees [Docket. No.
97, filed May 30, 2013] is GRANTED. The Court awards attorney fees in the
amount of $107,388.25, pursuant to Mich. Comp. Laws § 600.2961 (2013).
IT IS SO ORDERED.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 6, 2014

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I hereby certify that a copy of the foregoing document was served upon counsel of
record on March 6, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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