Accor Franchising North America LLC v. HR & F Hotel Group LLC et al
Filing
128
OPINION AND ORDER granting in part 125 Motion for Attorney Fees Signed by Honorable Cameron McGowan Currie on 4/28/2014.(mdea )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Accor Franchising North America, LLC,
a Delaware Limited Liability Company,
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Plaintiff,
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v.
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HR&F Hotel Group, LLC, a South Carolina )
Limited Liability Company; Randhir
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Maisuria, an individual; and Heenaben
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B. Maisuria, an individual,
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Defendants.
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___________________________________ )
C.A. No.: 0:12-cv-02129-CMC
OPINION AND ORDER
This matter is before the court on Plaintiff’s motion for attorneys’ fees and costs. ECF No.
125. For reasons stated below, the court grants Plaintiff’s motion for attorneys’ fees and costs in
a reduced amount.
BACKGROUND
On March 18, 2014, the court granted Plaintiff’s motion for summary judgment, finding
HR&F Hotel Group, LLC (“HR&F”) in default and liable for $99,491.84 and Randhir Maisuria and
Heenaben B. Maisuria (“the Individual Defendants”) liable for HR&F’s debts due to the Personal
Guaranty. ECF No. 122. The court also found that Plaintiff is entitled to attorneys’ fees and costs
in this action pursuant to Section 22.8 of the Franchise Agreement and pursuant to the Personal
Guaranty. Id. at 9. The court, however, declined to award attorneys’ fees and costs pre-judgment
and informed Plaintiff that it could file a post-judgment motion for attorneys’ fees. Id. The court
instructed Plaintiff to comply with Fourth Circuit law should it file such a motion. Id. (citing
Grissom v. Mills Corp., 549 F.3d 313 (4th Cir. 2008); Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir.
1990); Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir. 1978)).
On April 1, 2014, Plaintiff filed a motion for attorneys’ fees and costs. ECF No. 125.
Plaintiff seeks $56,972.60, which includes $56,487.50 in attorneys’ fees and $485.10 in costs.
Plaintiff also seeks post-judgment interest pursuant to Local Civil Rule 54.02(B). Defendants did
not respond to Plaintiff’s motion and the deadline for doing so has passed.1
STANDARD
“The proper calculation of an attorney’s fee award involves a three-step process.” McAfee
v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013). First, the “court must ‘determine a lodestar figure by
multiplying the number of reasonable hours expended times a reasonable rate.’” Id. (quoting
Robinson v. Equifax Info. Servs., 560 F.3d 235 (4th Cir. 2009)). To determine what constitutes a
reasonable number of hours and the appropriate hourly rates, a court should consider the following
twelve factors:
(1) the time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4) the
attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee
for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the
time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation and ability of the
attorney; (10) the undesirability of the case within the legal community in which the
suit arose; (11) the nature and length of the professional relationship between
attorney and client; and (12) attorneys’ fees awards in similar cases.
Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n. 28 (4th Cir. 1978) (adopting twelve factors set forth
in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds
by Blanchard v. Bergeron, 489 U.S. 87 (1989)). Second, after determining the lodestar figure, the
court should then “subtract fees for hours spent on unsuccessful claims unrelated to successful
1
The Individual Defendants responded to Plaintiff’s prior motion for attorneys’ fees and
costs, which was submitted as an objection to the Report and Recommendation on Plaintiff’s motion
for summary judgment. ECF No. 120.
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ones.” Id. Third, the court should “then award[] some percentage of the remaining amount,
depending on the degree of success enjoyed by the plaintiff.” Id.
In determining whether a rate is reasonable, the court is to consider “prevailing market rates
in the relevant community.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir.
1994) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). As the Fourth Circuit has explained:
[D]etermination of the hourly rate will generally be the critical inquiry in setting the
reasonable fee, and the burden rests with the fee applicant to establish the
reasonableness of a requested rate. In addition to the attorney’s own affidavits, the
fee applicant must produce satisfactory specific evidence of the prevailing market
rates in the relevant community for the type of work for which he seeks an award.
Although the determination of a market rate in the legal profession is inherently
problematic, as wide variations in skill and reputation render the usual laws of supply
and demand largely inapplicable, the Court has nonetheless emphasized that market
rate should guide the fee inquiry.
Plyler, 902 F.2d at 277 (internal quotation marks and citations omitted). Further, this court’s Local
Rule 54.02(A) provides that attorney’s fee petitions must comply with Barber “and shall state any
exceptional circumstances and the ability of the party to pay the fee.” Local Rule 54.02(A) (D.S.C.).
DISCUSSION
In support of its motion for attorneys’ fees and costs, Plaintiff submitted the following: (1)
the affidavit of Mary Goodrich Nix, pro-hac vice counsel, which includes a calculation of attorneys’
fees and costs incurred in this matter, as well as an analysis of the Barber factors; (2) redacted
copies of fee statements from counsel representing Plaintiff; and (3) the affidavit of Kenneth
Wingate, a member of the law firm acting as local counsel in this case, purporting to set forth the
prevailing hourly rate for attorneys in the District of South Carolina of similar skill and for similar
work.
Although it appears Plaintiff attempted to provide support for its motion for attorneys’ fees,
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Plaintiff’s support is inadequate. First, the redacted fee statements provide nothing but the total
hours worked by each lawyer in the case without a description of the work completed. Plaintiff
stated that “[t]he fee statements have been redacted to protect communications and descriptions that
are subject to attorney-client privilege and the work product doctrine.” ECF No. 125 at 3. Although
the fee statements likely contain some privileged or protected information, redacting all of the
services performed and hours spent performing those services is overbroad and unhelpful to the
court’s determination of reasonableness of hours. See generally Chaudhry v. Gallerizzo, 174 F.3d
394, 402 (4th Cir. 1999) (“‘[T]he identity of the client, the amount of the fee, the identification of
payment by case file name, and the general purpose of the work performed are usually not protected
from disclosure by the attorney-client privilege.
However, correspondence, bills, ledgers,
statements, and time records which also reveal the motive of the client in seeking representation,
litigation strategy, or the specific nature of the services provided, such as researching particular areas
of law, fall within the privilege.’” (internal citation omitted)). Based on Plaintiff’s omission of any
description of services performed, and the court’s inability to determine whether counsels’ hours are
excessive, redundant, or otherwise unnecessary, the court is faced with the alternative of denying
Plaintiff’s motion in its entirety or awarding a reduction in hours. See Hensley v. Eckerhart, 461
U.S. 424, 434 (1983) (explaining that excessive, redundant, or otherwise unnecessary hours should
be reduced from fee award). Although this case began on July 30, 2012 with the filing of a
complaint, proceeded through written discovery, and was resolved on a motion for summary
judgment after one Defendant defaulted, no depositions appear to have been taken, the issues were
not novel, and it is difficult for the court to determine without further documentation why this case
necessitated 230.8 attorney hours and 21 paralegal hours. After reviewing the history of the case
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and the documents filed in the record, as well as the Barber factors, the court finds half of the hours
requested reasonable: 126.4 total hours (115.4 attorney hours and 10.5 paralegal hours).
Plaintiff’s second evidentiary problem involves the attorney rate sought. In an attempt to
provide evidence of the prevailing market rate in this District, Plaintiff submitted an affidavit
prepared by Mr. Wingate, who is not an attorney of record in this case but is a member of the law
firm serving as local counsel:
I have reviewed the Affidavit of Mary Goodrich Nix in Support of Plaintiff’s Motion
for Attorneys’ Fees and Costs and find the requested attorneys’ fees and costs to be
reasonable under applicable South Carolina law and in accord with the fees
customarily charged by my firm and attorneys in Columbia, South Carolina for
similar services.
ECF No. 125-4 at 1-2.2 The attorney rates that Mr. Wingate finds to be “in accord with the fees
charged by [his] firm and attorneys in Columbia, South Carolina for similar services” range from
$225 to $375 an hour.3 The court finds that a law partner’s affidavit is not satisfactory evidence to
establish the prevailing market rate. See Robinson, 560 F.3d at 244 (discussing requirement that
party seeking attorney’s fees submit an affidavit from an attorney outside of own law firm regarding
the prevailing market rates of attorneys in the community for similar work). Without additional
support for the requested rates, Plaintiff has not met its burden of establishing the prevailing market
rate. Rather than denying fees outright, the court will approve an hourly rate of $126 for attorneys
2
The affidavit submitted by Ms. Nix similarly states that the attorneys’ fees sought “are
customary and reasonable in Columbia, South Carolina and Dallas, Texas.” ECF No. 125-2 at 6.
Plaintiff essentially has presented an affidavit from out-of-state counsel attesting to the
reasonableness of the attorney rates sought by local counsel and an affidavit from local counsel
(albeit not counsel of record, but a member of local counsel’s law firm) attesting to the
reasonableness of the attorney rates sought by out-of-state counsel.
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The paralegal rate Plaintiff seeks is $125 an hour.
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and $35 for paralegals. These rates correspond to the rates paid to attorneys providing service under
the Criminal Justice Act, 18 U.S.C. § 3006A. The court, therefore, grants Plaintiff’s motion for
attorneys’ fees in the amount of $14,907.90, which represents 115.4 attorney hours at $126 an hour
and 10.5 paralegal hours at $35 an hour.
The court also awards costs in the amount requested: $485.10.
CONCLUSION
For reasons stated above, the court grants Plaintiff’s motion for attorneys’ fees in the amount
of $15,393.00, which includes $14,907.90 in attorneys’ fees (representing 115.4 attorney hours at
$126 an hour and 10.5 paralegal hours at $35 an hour) and $485.10 in costs. The court also awards
Plaintiff post-judgment interest as provided in Local Civil Rule 54.02(B).
IT IS SO ORDERED.
S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
April 28, 2014
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