Terry Richardson Concrete LLC v. Mack Mechanichal, Inc et al

Filing 176

MEMORANDUM and ORDER granting 159 Motion for Attorney Fees. Plaintiff shall be awarded $70,564.60 in attorneys fees, costs, and expenses. Signed by Chief Judge Kevin H. Sharp on 4/12/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
UNITED STATES FOR THE USE AND
BENEFIT OF:
TERRY RICHARDSON, individual
D/B/A TERRY RICHARDSON
CONCRETE, LLC,
Plaintiff,
v.
MACK MECHANICAL, INC., and
AMERICAN SAFETY CASUALTY
INSURANCE COMPANY,

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Case No. 2:12-cv-00109
Judge Sharp
Magistrate Judge Holmes

Defendants.
MEMORNADUM AND ORDER

Pending before the Court is Plaintiff Terry Richardson d/b/a Terry Richardson Concrete,
LLC’s (“Richardson”) unopposed1 Motion for Award of Attorney Fees. (Docket No. 159). On
October 21, 2016, the Court granted Plaintiff Richardson’s Motion for Summary Judgment on
his Miller Act claim. (Docket No. 147). Subsequently, the Court awarded damages to Plaintiff
Richardson in the amount of $39,489.12 after holding a damages hearing. (Docket No. 169).
For the reasons stated herein, the Court will grant Plaintiff Richardson’s Motion subject to
adjustments.
LEGAL STANDARD
Because the Miller Act does not provide for an award of attorney’s fees to a successful
litigant, “the traditional American rule applies that each party bears its own legal costs absent an

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In this Court’s Order awarding damages to Plaintiff Richardson, the Court ordered Defendant Mack
Mechanical (“Mack”) to file any Response in Opposition to Plaintiff Richardson’s Motion for Attorney
Fees within seven days of entry of that Order. (Docket No. 169). Defendant Mack has not done so.
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enforceable contractual provision or evidence of bad faith.” U.S. for Use & Benefit of Ken’s
Carpets Unlimited, Inc. v. Interstate Landscaping Co., 1994 WL 481684, *8 (6th Cir. 1994)
(citing F. D. Rich Co. v. U. S. for Use of Indus. Lumber Co., 417 U.S. 116, 126 (1974)). Here,
however, Section VIII of the subcontract between Plaintiff Richardson and Defendant Mack
states, “Attorney fees for both parties and court costs shall be paid by the non-prevailing party.”
(Docket No. 126-5 at 2).
As the prevailing party, Plaintiff Richardson is entitled to an award of attorney’s fees. “A
reasonable fee is one that is ‘adequately compensatory to attract competent counsel yet which
avoids producing a windfall for lawyers.’” Dowling v. Litton Loan Servicing LP, 320 F. App’x
442, 446 (6th Cir. 2009) (quoting Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004)).
Determining a reasonable fee starts with calculating the lodestar amount—“the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). “The party seeking an award of fees should submit
evidence supporting the hours worked and rates claimed.” Hensley, 461 U.S. at 433. The Court
should not consider hours “not reasonably expended” or that were “excessive, redundant, or
otherwise unnecessary.” Id. at 434. And the Court may exercise its discretion to reduce an
award “where the documentation of hours is inadequate.” Id. at 433.
To establish the lodestar amount and any adjustments to it, the Court considers the
following factors:
(1) the time and labor required by a given case; (2) the novelty and difficulty of the
questions presented; (3) the skill needed to perform the legal service properly; (4) the
preclusion of employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case;
(11) the nature and length of the professional relationship with the client; and (12) awards
in similar cases.
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Adcock–Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 n.8 (6th Cir. 2000) (citing Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)).
ANALYSIS
Plaintiff Richardson requests attorney’s fees and expenses, (Docket No. 167 at 2, ¶ 9), for
his attorneys Tyce S. Smith and Mark Turley, one certified paralegal Leatta Nichols, and Smith’s
personal paralegal/legal assistant JoAnna Exendine (collectively, “Smith & Turley group”). He
further requests attorney’s fees and expenses, (Docket No. 167-2 at 3-4, ¶ 17), for local counsel
J. Brad Scarbrough and Adam O. Knight, junior associate Timothy Bishop, and paralegal Julie
Long (collectively, “Scarbrough group”).
I.

Smith & Turley Group
With respect to the Smith & Turley group, Plaintiff Richardson calculates the amount

sought by multiplying the number of hours worked by a reasonable hourly rate. Based on the
document setting out the Smith & Turley group’s professional service charges and expenses,
(Docket No. 167-1), the hourly rates charged for attorneys were $225/hour and $220/hour. The
Court finds that the hourly rates of $225/hour and $220/hour for Attorneys Smith and Turley
(presumably designated by the initials “TSS” and “MT”) are reasonable given that Smith has
practiced law for forty-five years and Turley has practiced for over thirty years. (Docket No. 167
at 1-2, ¶¶ 3, 18). However, the Court observes that there are $220/hour charges for work
performed by an individual whose initials appear to be “PMR,” and one such charge for an
individual with the initials “CBW.”
In the Second Affidavit of Tyce S. Smith, (Docket No. 167), Smith refers to himself, his
law partner Turley, and paralegals Nichols and Exendine, but there is no mention of any
attorneys with the initials “PMR” and “CBW.” Furthermore, no individuals with the initials
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“PMR” or “CBW” are listed in the docket among the lawyers representing the parties.
Presumably, those individuals are Peter Rohrich and Carrie Williamson, as there is an entry in
the professional service charges and expenses document that includes those two names. (Docket
No. 167-1 at 8). Because no affidavit was submitted on behalf of Rohrich and Williamson, the
Court will decline to award attorney’s fees associated with “PMR” and “CBW,” which is $9,992
for 49.96 hours worked.2
Regarding Attorneys Smith and Turley, Plaintiff Richardson seeks attorney’s fees for
141.65 hours worked at $225/hour ($31,871.25) and 42.5 hours worked at $200/hours ($8,500),
for a total of 184.15 hours worked for $40,371.25. Those hours are comprised of appropriate
legal work and time spent traveling, which this Court has the discretion to compensate. See
Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991) (“We believe that matters of [time spent in
travel] are within the discretion given [sic] the district court . . . .”). While only some hours are
specifically linked to either Smith or Turley with the designation “TSS” or “MT,” the Court will
allow all 184.15 hours because presumably those were hours worked by Smith, who submitted
the invoice with the professional service charges.
Plaintiff Richardson requests fees for 163 hours worked at a rate of $50/hour for legal
assistant Exendine, which is $8,150. Even though the Court finds that $50/hour is a reasonable
hourly rate, the Court will reduce the amount of legal assistant time that is compensable because
Exendine may not recover for the purely clerical/secretarial work she performed. See Missouri
v. Jenkins, 491 U.S. 274, 288 n.10 (1989) (“Of course, purely clerical or secretarial tasks should
not be billed at a paralegal rate, regardless of who performs them.”); B & G Min., Inc. v. Dir.,
Office of Workers’ Comp. Programs, 522 F.3d 657, 666 (6th Cir. 2008) (“While reviewing

2
This compromises some of the charges from the following dates: 1/26/2016, 1/29/2016, 2/2/2016,
2/3/2016, 2/4/2016, 2/5/2016, 2/6/2016, 2/7/2016, 5/6/2016, 5/12/2016, and 5/13/2016. (Docket No. 1671 at 7-9).
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correspondence can constitute legal work, receiving and filing correspondence presumably
constitutes clerical work.”); E.E.O.C. v. Whirlpool Corp., No. 3:06-CV-0593, 2011 WL
3321291, at *7 (M.D. Tenn. Aug. 2, 2011) (“[T]he Court will decline to award fees to Plaintiff
for hours billed by her attorneys that amount to clerical tasks and constitute the overhead cost
normally expected in legal practice.”); Lay v. Astrue, No. CIV.A. 10-346-DLB, 2012 WL
5988822, at *5 (E.D. Ky. Nov. 29, 2012) (“Clerical work involves tasks that do not require legal
knowledge, such as filing motions, preparing or reviewing summons, and receiving and filing
correspondence.”). Because each clerical activity performed by Exendine is not specifically
separated from other compensable activities she performed, the Court uses its discretion to
reduce her fees by 20% to account for clerical work performed. Therefore, the Court finds that
$6,520 is a reasonable amount (80% of $8,150).3 Furthermore, the Court finds that $2,964.50 for
42.35 hours worked at a rate of $70/hour for certified paralegal Nichols is reasonable and fully
compensable.
In addition to the aforementioned, Plaintiff Richardson seeks costs and expenses incurred
by the Smith & Turley group. Plaintiff Richardson has submitted a Bill of Costs, (Docket No.
171), in the total amount of $2,510.50, which is comprised of fees of the clerk ($350), fees for
service of summons and subpoena ($210), and fees for printed or electronically recorded
transcripts necessarily obtained for use in the case ($1,950.50). Plaintiff Richardson may not
recover these costs because the supporting documentation is inadequate; a reference to a check
number without the attached check is insufficient. (Docket Nos. 171-1, 171-2). Furthermore,
Plaintiff Richardson may not recover for costs associated with having originally filed this suit in
Missouri.

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The Court also declines to consider the legal assistant time of “YB,” whose activities—filing complaint,
preparing and emailing summons to clerk, and setting up video depositions—constitute clerical work.
(Docket No. 167-1 at 1).
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In the document setting out the Smith & Turley group’s professional service charges and
expenses, (Docket No. 167-1), pages 15-18 contain “additional charges” in the amount of
$7,928.85, which Plaintiff Richardson seems to be considering expenses. Some of the additional
charges include items already accounted for in the Bill of Costs, which are nonrecoverable.
After reviewing the remaining additional charges, the Court finds that Plaintiff Richardson may
not recover most of the funds sought because of inadequate documentation. Plaintiff Richardson
has not submitted a single receipt or copy of a check written to cover expenses, yet seeks to
recover for his attorneys’ charges for postage, mileage, gas, hotel rooms, and other items. The
Court will use its discretion to award only fees incurred from PACER Service Center and the
fees from this Court, which amounts to $172.60.
II.

Scarbrough Group
As with the Smith & Turley Group, Plaintiff Richardson calculates the amount in

attorney’s fees sought for the Scarbrough group by multiplying the number of hours worked by a
reasonable hourly rate.

The Court finds that the hourly rate of $250/hour for Attorneys

Scarbrough and Knight is reasonable given that they have, respectively, over fifteen and twenty
years of experience practicing law. (Docket No. 167-2 at 2-3, ¶¶ 3, 11). Based on the document
labeled Exhibit A, (Docket No. 167-2 at 5-25), which contains the specific charges and expenses,
Plaintiff also seeks to recover fees for work performed by Timothy Bishop and Julie Long. Even
though the Second Affidavit of J. Brad Scarbrough specifically references by name only
Scarbrough and Knight, it appears to the Court that the unnamed junior associate referenced is
Bishop and the unnamed paralegal referenced is Long. (Docket No. 167-2 at 4, ¶ 18). The Court
finds that the hourly rate of $150/hour for Bishop is appropriate in light of the fact that the
normal hourly rate for a junior associate is between $175 and $225. (Id.). However, the Court is

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offered no explanation as to the reasonableness of the $100/hour rate for Long. Therefore, the
Court will allow only $75/hour of work performed by Long to be compensable. See Hall v. City
of Clarksville, No. 3:03-1229, 2006 WL 2038004, at *3 (M.D. Tenn. July 19, 2006) (“The Court
also finds that $100 per hour is not a reasonable rate for the work done by the paralegal working
on this case. The Court finds that $75 per hour for paralegal time is a more appropriate rate.”).
Regarding Attorneys Scarbrough, Knight, and Bishop, Plaintiff Richardson requests fees
for 11 hours worked by Scarbrough ($250 x 11 = $2,750), 32.2 hours for Knight ($250 x 32.2 =
$8,050), and 56.1 hours worked by Bishop ($150 x 56.1 = $8,415). Furthermore, Plaintiff
Richardson requests fees for 4.95 hours worked by Long ($75 x 4.95 = $371.25) and an
additional $875 for an estimated 3.5 hours of work ($250 x 3.5 = $875) that will be required to
enforce this Order.

Having reviewed the description of the work performed and that will be

performed, the Court finds reasonable the aforementioned fees sought for the Scarbrough group.
Plaintiff Richardson also requests $305.36 in expenses, which is comprised of a filling
fee, travel mileage, and a delivery charge. Because Plaintiff Richardson has not submitted any
receipts and there is insufficient information, the Court will allow recovery only on the $75 filing
fee.
III.

Total Award
Item
Smith & Turley

$40,371.25

Exendine

$6,520

Nichols

$2,964.50

Expenses

$172.60

Total

Smith & Turley Group

Amount

$50,028.35

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Scarbrough Group

Scarbrough

$2,750

Knight

$8,050

Bishop

$8,415

Long

$371.25

Additional Time

$875

Expenses

$75

Total

$20,536.25

Grand Total

$70,564.60

CONCLUSION

For the foregoing reasons, and considering that Defendant Mack has not responded to
Plaintiff Richardson’s Motion, Plaintiff is entitled to the award he seeks subject to adjustments.
Accordingly, Plaintiff Richardson’s Motion for Award of Attorney Fees, (Docket No. 159), is
hereby GRANTED.

Plaintiff shall be awarded $70,564.60 in attorney’s fees, costs, and

expenses.
It is SO ORDERED.

____________________________________ 

KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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