Goff v. HSBC Bank USA et al

Filing 27

ORDER GRANTING 26 Motion for Attorney Fees to HSBC in the amount of $8,500.00 Signed by Judge Kathleen Cardone. (mt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JAMES GOFF,
Plaintiff,
v.
HSBC BANK USA and BEVERLY
MITRISIN,
Defendants.

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EP-13-CV-265-KC

ORDER
On this day, the Court considered Defendant HSBC Bank USA‟s Motion for Award of
Attorneys‟ Fees and Costs and Brief in Support (the “Motion”), ECF No. 26. By the Motion,
Defendant HSBC Bank USA (“HSBC”) seeks an award of $8,500 for attorneys‟ fees and costs
incurred in the above-captioned case (the “Case”). See Mot. 9.1 For the reasons discussed below,
the Court GRANTS the Motion.
I.

BACKGROUND
Plaintiff sued HSBC on August 5, 2013. See Original Pet., ECF No. 1-5. Plaintiff

requested a declaratory judgment that a pending foreclosure (the “Foreclosure”) of certain real
property (the “Property”) would, if consummated by HSBC, be unlawful and invalid. See 2d Am.
Compl., ECF No. 15, at 1-4. Plaintiff also sought to temporarily enjoin the Foreclosure. See id. at
4.
The Court dismissed all but one of Plaintiff‟s claims against HSBC on December 6, 2013.
See Dismissal Order, ECF No. 16. The Court then granted summary judgment in favor of HSBC
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The Court refers to the pagination assigned to the Motion by the Court‟s electronic docketing system, rather than to
the internal pagination assigned by HSBC.

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on Plaintiff‟s remaining claim on March 18, 2014. See Summ J. Order, ECF No. 22. On the same
day, the Court entered final judgment in favor of HSBC. See Final J., ECF No. 23.
On April 1, 2014, HSBC requested permission to file the Motion under seal. See ECF No.
24. The Court denied HSBC‟s request and ruled that, if HSBC wished to recover attorney‟s fees,
it would have until April 9, 2014 to file the Motion on the public docket. See ECF No. 25, at 2.
HSBC publicly filed the Motion on April 2, 2014. See Mot.
II.

DISCUSSION
A.

Standard

Federal Rule of Civil Procedure 54(d)(2) creates several requirements that a movant must
satisfy to obtain attorney‟s fees. See Fed. R. Civ. P. 54(d)(2). The movant must (1) file the
motion “no later than 14 days after the entry of judgment;” (2) “specify the judgment and the
statute, rule, or other grounds entitling the movant to the award;” (3) “state the amount sought or
provide a fair estimate of it;” and (4) “disclose, if the court so orders, the terms of any agreement
about fees for the services for which the claim is made.” Fed. R. Civ. P. 54(d)(2)(B)(i)-(iv).
Local Rule CV-7(j) imposes several additional requirements. First, both parties‟ counsel
must “meet and confer for the purpose of resolving all disputed issues relating to attorney‟s fees”
before the movant submits its application. W.D. Tex. L.R. CV-7(j)(1). The movant must “certify
that such a conference has occurred.” Id. If the parties are unable to reach an agreement
regarding attorney‟s fees, the movant “shall certify the specific reason why the matter could not
be resolved by agreement.” Id.
Second,
[t]he motion shall include a supporting document organized chronologically by
activity or project, listing attorney name, date, and hours expended on the
particular activity or project, as well as an affidavit certifying (1) that the hours
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expended were actually expended on the topics stated, and (2) that the hours
expended and rate claimed were reasonable.
Id.
Third, the motion must be “accompanied by a brief memo setting forth the method by
which the amount of fees was computed, with sufficient citation of authority to permit the
reviewing court the opportunity to determine whether such computation is correct.” Id.
If the non-movant objects to the motion for attorney‟s fees, it must file an objection “on
or before 14 days after the date of the filing of the motion. If there is no timely objection, the
court may grant the motion as unopposed.” W.D. Tex. L.R. CV-7(j)(2). Whether to grant the
motion as unopposed is within the court‟s discretion; “[a] trial court may still review the
requested attorneys‟ fees for their reasonableness even though the motion is unopposed.”
JPMorgan Chase Bank, N.A. v. Gonzalez, Civil Action No. SA-12-CV-105-XR, 2013 WL
321779, at *2 (W.D. Tex. Jan. 28, 2013) (citing Harvey v. Baton Rouge Marine Contractors, No.
08-459-VP-CN, 2009 WL 331594, at *7 (M.D. La. Feb. 10, 2009)).
B.

Analysis

HSBC argues that, because the Case could have significantly affected its rights in the
Property, “HSBC was forced to incur attorneys‟ fees and court costs to protect its rights.” Mot.
3-4. By the Motion, HSBC seeks to recover the attorney‟s fees it incurred defending itself
against Plaintiff‟s claims. See id. at 3-9.
Plaintiff did not file a response to the Motion. See W.D. Tex. L.R. CV-7(j)(2) (“An
objection to a motion for attorney‟s fees shall be filed on or before 14 days after the date of the
filing of the motion.”). As a result, this Court is permitted to grant the Motion as unopposed. See
id. Nevertheless, out of an abundance of caution, the Court examines whether the Motion
complies with Federal Rule of Civil Procedure 54(d)(2) and Local Rule CV-7(j), as well as
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whether the requested fees are reasonable. See Gonzalez, 2013 WL 321779, at *2-3; Opus
Portfolio, Ltd. v. Koz, Civil Action No. SA-09-CV-363-XR, 2010 WL 2136571, at *1-2 (W.D.
Tex. May 27, 2010).
1.

Timeliness of Motion

The Court first assesses whether HSBC timely filed the Motion under all applicable rules
of procedure. A movant seeking attorney‟s fees must file its motion “no later than 14 days after
the entry of judgment” unless “a court order provides otherwise.” Fed. R. Civ. P. 54(d)(2).
Accord W.D. Tex. L.R. CV-7(j)(1), (3). HSBC filed the Motion a day after this fourteen-day
deadline. See Mot.; Final J. Nonetheless, the Motion is timely because HSBC filed it before the
April 9, 2014, deadline established in this Court‟s order denying HSBC‟s request to file the
Motion under seal. See ECF No. 25, at 2.
2.

HSBC’s entitlement to attorney’s fees

The Court next assesses whether HSBC has specified the source of its entitlement to
attorney‟s fees as required by Federal Rule of Civil Procedure 54(d)(2)(B)(ii). Accord W.D. Tex.
L.R. CV-7(j)(1) (requiring the motion to “include reference to the statutory authorization or other
authority for the request”). “An award of attorneys‟ fees is governed by the same law that
determines the substantive issues of the case.” Gonzalez, 2013 WL 321779, at *1 (citing Mathis
v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002)). Because the Court applied Texas state law to
Plaintiff‟s claims, see Dismissal Order 6-18; Summ. J. Order 7-8, HSBC‟s entitlement to
attorney‟s fees is governed by Texas law. See Gonzalez, 2013 WL 321779, at *1.
Under Texas law, “[a] party who prevails in a lawsuit is entitled to recover attorney‟s
fees,” but “only if permitted by statute or by contract.” Med. City. Dall., Ltd. v. Carlisle Corp.,
251 S.W.3d 55, 58 (Tex. 2008). HSBC specifies that it seeks attorney‟s fees pursuant to a
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provision in the deed of trust securing the Property. See Mot. 5-7. This provision permits HSBC
to recover “reasonable attorneys‟ fees to protect its interest in the Property” in “a legal
proceeding that might significantly affect [HSBC]‟s interest in the Property.” ECF No. 26-2, at
7-8. Because the Case is a legal proceeding that could have affected HSBC‟s interest, HSBC is
entitled to recover attorney‟s fees under Texas law. See Velazquez v. Countrywide Home Loans
Servicing, L.P. (In re Velazquez), 660 F.3d 893, 897-900 (5th Cir. 2011) (enforcing analogous
deed of trust provision where lender incurred fees by filing proof of claim in debtor‟s bankruptcy
case); Opus Portfolio, Ltd., 2010 WL 2136571, at *1-2 (enforcing analogous fee provision in
promissory note). Thus, HSBC has adequately specified the grounds for its entitlement to
attorney‟s fees under Federal Rule of Civil Procedure 54(d)(2)(B)(ii) and Local Rule CV-7(j)(1).
3.

Amount of fees sought

The Motion specifies that HSBC seeks a total of $8,500 in fees. The Motion therefore
“state[s] the amount sought or provide[s] a fair estimate of it” as required by Federal Rule of
Civil Procedure 54(d)(2)(B)(iii).
4.

Terms of fee agreement

Federal Rule of Civil Procedure 54(d)(2)(iv) requires the movant, “if the court so orders,”
to “disclose . . . the terms of any agreement about fees for the services for which the claim is
made.” Because this Court has not so ordered, the Motion satisfies the Rule.
5.

Conference requirement

HSBC has also complied with Local Rule CV-7(j)(1)‟s requirement to confer with
Plaintiff regarding attorney‟s fees before filing the Motion. HSBC certifies that it has “conferred
with counsel for Plaintiff regarding the merits of th[e] Motion,” Mot. 10, which satisfies Rule
CV-7(j)(1)‟s requirement that the movant “certify that such a conference has occurred.” See
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W.D. Tex. L.R. CV-7(j)(1). The certification also specifies that HSBC and Plaintiff were unable
to resolve the issues presented by the Motion “because Plaintiff cannot agree to the
reasonableness of any amount of fees.” Mot. 10. This satisfies Rule CV-7(j)(1)‟s requirement
that the movant “certify the specific reason why the matter could not be resolved by agreement.”
See W.D. Tex. L.R. CV-7(j)(1).
6.

Supporting documentation

HSBC, as required by Rule CV-7(j)(1), has submitted “a supporting document organized
chronologically by activity or project, listing attorney name, date, and hours expended on the
particular activity or project.” See ECF No. 26-6. Although HSBC has partially redacted the
supporting document, the document is still sufficient to allow the Court to evaluate the
reasonableness of HSBC‟s attorney‟s fees. See id. at 1-2, 4-5, 7-11.
HSBC has also submitted a sworn affidavit from its counsel, Richard A. Illmer
(“Counsel”), in which he avers that “the hours expended, the rates claimed and the attorneys‟
fees . . . are reasonable and within the range of usual and customary fees charged in Texas for
work of this nature.” Illmer Aff., ECF No. 26-5 ¶ 6. Illmer also avers that all of the hours listed
in the report attached to the Motion were expended in furtherance of the Case. See id. ¶ 7. This
satisfies Rule CV-7(j)(1)‟s requirement that the movant submit “an affidavit certifying (1) that
the hours expended were actually expended on the topics stated, and (2) that the hours expended
and rate claimed were reasonable.” W.D. Tex. L.R. CV-7(j)(1).
The supporting documentation to the Motion also specifies “the method by which the
amount of fees was computed, with sufficient citation to authority to permit the reviewing court
the opportunity to determine whether such computation is correct.” See id. The Motion and
Illmer‟s affidavit explain that each practitioner assigned to the Case billed at an hourly rate, and
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that the total fees incurred were then “discounted to $8,500.00 as an accommodation to HSBC
and to ensure that all time billed to HSBC was reasonable.” Mot. ¶ 13; Illmer Aff. ¶¶ 3, 6.
7.

Reasonableness of fees

Because the Motion complies fully with both Federal Rule of Civil Procedure 54(d)(2)
and Local Rule CV-7(j), the Court assesses whether the requested fees are reasonable.
“The preferred method of calculating a reasonable fee is the „lodestar‟ method, which is
the product of a reasonable rate times a reasonable number of hours.” Gonzalez, 2013 WL
321779, at *2 (citing Exp. Worldwide, Ltd. v. Alfred Knight, No. SA-05-CA-647-XR, 2007 WL
1300468, at *3 (W.D. Tex. May 3, 2007)). “Once the lodestar amount has been determined, the
court may then adjust the award based on the factors listed in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974).” Gonzalez, 2013 WL 321779, at *2 (citing Saizen v.
Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006)). The Johnson factors include (1)
the time and labor required; (2) the novelty and difficulty of the questions at issue; (3) the skill
necessary to perform the legal service properly; (4) the preclusion of other employment by the
attorney due to the 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 of
money and the results obtained in the case; (9) the experience, reputation, and ability of the
attorneys involved; (10) the undesirability of the case; (11) the nature and length of counsel‟s
professional relationship with the client; and (12) awards in similar cases. Johnson v. Ga. Hwy.
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other grounds by Blanchard v.
Bergeron, 489 U.S. 87 (1989).
HSBC‟s attorneys billed a total of 74.3 hours in the Case. See ECF No. 26-6, at 11. The
Court has reviewed the supporting documentation and concludes that these hours were indeed
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expended in furtherance of the Case. See id. at 1-11. Because the Case required HSBC to draft
and file two motions to dismiss, two reply briefs, a joint report of parties‟ planning meeting, an
answer, and a motion for summary judgment, the Court finds 74.3 hours to be a reasonable
amount of time expended. See ECF Nos. 5, 9, 12, 15, 17, 21.
Dividing $8,500 by 74.3 produces an hourly rate of $114.40,2 a rate below the median
hourly rate charged by attorneys in the El Paso region.3 Because $8,500 is the product of a
reasonable rate multiplied by a reasonable number of hours in the Case, the requested fee is
reasonable under the lodestar method. See Gonzalez, 2013 WL 321779, at *2. None of the
Johnson factors militate against awarding $8,500 of fees in the Case. See Johnson, 488 F.2d at
717-19. The Court therefore concludes that the requested fees are reasonable.
III.

CONCLUSION
It is therefore ORDERED that the Motion, ECF No. 26, is hereby GRANTED. The

Court awards HSBC $8,500.00 in attorney‟s fees.

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HSBC retained three attorneys to defend it in the Case. These attorneys charged hourly rates of $395.00, $275.00,
and $230.00, respectively. See Illmer Aff. ¶ 3. Although HSBC incurred a total of $24,000.00 of attorney‟s fees in
the Case, that value was “discounted to $8,500.00 as an accommodation to HSBC and to ensure that all time billed
to HSBC was reasonable.” Mot. ¶ 13; Illmer Aff. ¶¶ 3, 6. Thus, although the attorneys assigned to the Case billed at
hourly rates higher than the median hourly rate in the El Paso region, the voluntary reduction caused the effective
hourly rate to drop below the median. See infra note 3. The Court expresses no view regarding whether the original
effective rate would be reasonable in the absence of the voluntary reduction.
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See State Bar of Tex. Dep‟t of Research & Analysis, 2011 Hourly Fact Sheet (2011),
http://www.texasbar.com/AM/Template.cfm?Section=Demographic_and_Economic_Trends&Template=/CM/Conte
ntDisplay.cfm&ContentID=20499. Courts in this district frequently refer to this fact sheet when ruling on requests
for attorney‟s fees. See Gonzalez, 2013 WL 321779, at *2 n.1; Opus Portfolio, Ltd., 2010 WL 2136571, at *2 n.5.

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SO ORDERED.
SIGNED this 21st day of April, 2014.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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