Bank SNB v. Flemming

Filing 43

ORDER granting in part 37 Motion for Attorney Fees, as more fully set out. Signed by Honorable David L. Russell on 4/5/16. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BANK SNB,
Plaintiff,
v.
MATTHEW FLEMMING,
Defendant.

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Case No. CIV-14-1354-R

ORDER
Before the Court is Plaintiff’s Motion for Attorney’s Fees (Doc. No. 37). The
Court previously ordered Plaintiff to submit supplemental time records, which it has
done. Plaintiff seeks attorney fees in the amount of $93,800. Plaintiff submitted billing
records to support fees in the amount of $74,300.00, and requests an enhanced award of
$19,470.00, pursuant to Burk v. City of Oklahoma City, 598 P.2d 659 (Okla. 1979).
“Defendant does not have the means to continue the defense of this litigation and, as a
result, does not contest SNB’s present request for fees and costs. However, Defendant
does not concede the appropriateness or the amount of the fees, the rates or the expenses
requested by SNB due to his lack of knowledge of what fees and expenses were
reasonably incurred by SNB in this litigation.” Doc. No. 39. Having considered Plaintiff’s
Motion, the Court finds as follows.
There is a two-step process to determine the reasonableness of a fee request. First,
the "lodestar" fee is calculated, which is the product of the number of attorney hours
reasonably expended and a reasonable hourly rate. See Robinson v. City of Edmond, 160
F.3d 1275, 1281 (10th Cir.1998). Second, if appropriate, the lodestar fee is enhanced or

reduced based on the Burk factors. Spencer v. Okla. Gas & Elec. Co., 171 P.3d 890, 895
(Okla.2007).
There is no basis in the record for taking issue with the hourly rate of the attorneys
and the paralegal as requested by Plaintiffs. Furthermore, because Defendant has not
objected to the reasonableness of the hours expended, and the Court’s review similarly
reveals no requests that appear unreasonable with regard to time expended for a particular
task, the Court finds that the $74,330.00 requested represents a reasonable number of
hours expended times a reasonable hourly rate. The Court finds, however, that Plaintiff is
not entitled to the enhanced fees it seeks under Burk.
The factors set forth in Burk include:
time and labor required; novelty and difficulty of the questions; skill
requisite to perform the legal service; preclusion of other employment;
customary fee; whether the fee is fixed or contingent; time limitations;
amount involved and results obtained; experience, reputation and the ability
of the attorneys involved; risk of recovery; nature and length of relationship
with the client; and awards in similar causes.
Spencer v. Oklahoma Gas & Elec. Co., 171 P.3d 890, 895 (Okla. 2007). This case was
decided on summary judgment and despite Plaintiff’s protests to the contrary, presented a
rather straightforward breach of contract issue. As such, there were no complex or
specialized areas of the law involved. The amount of the judgment was not in dispute, and
therefore, once it was determined that Plaintiff could enforce Mr. Flemming’s Note, the
amount he owed was not disputed. As such, the result herein was either to be zero or
$843,398.94, and no work performed by counsel enhanced the value of the Plaintiff’s
claim. The undersigned therefore denies Plaintiff’s request for enhancement of the fee
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award, finding that the $74,330.00 awarded above appropriately compensates the
Plaintiff's attorneys for their work in this case.
For the reasons set forth herein, Plaintiff’s Motion for Attorneys’ Fees is granted in
part, and Defendant is hereby ordered to pay Plaintiff’s fees in the amount of $74,330.00.
IT IS SO ORDERED this 5th day of March, 2016.

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