Opinion
CIVIL ACTION NO. 3:01CV107
March 21, 2002
MEMORANDUM OPINION
This cause comes before the court on the plaintiff's renewed motion for default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure and separate renewed motion for attorneys' fees, expenses and costs.
I. Entitlement to Default Judgment
The right to default judgment is not automatic and must be determined within the sound judicial discretion of the district judge. E.g., Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977). The record reflects the following undisputed facts. On June 18, 2001, the plaintiff filed the complaint in this cause based on diversity jurisdiction. The defendant was served with process on June 27, 2001 and has made no "presentation or submission to the court" or otherwise appeared. New York Life Ins. Co. v. Brown, 84 F.3d 137, 141-42 (5th Cir. 1996) (defendant's participation in a telephone conference before a magistrate judge and telephone call to plaintiff's counsel advising of his intent to contest the action constitute an appearance), cited in 10 A Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2686 n. 4 (3d ed. 1998). Therefore, under the terms of Rule 55(b)(2), default judgment may be entered in this cause without notice to the defendant. Default was properly entered on July 26, 2001 upon the filing of the plaintiff's application for entry of default and supporting affidavit.
The complaint alleges that the defendant purchased certain materials from the plaintiff pursuant to an executed service charge agreement, attached as an exhibit to the complaint, and accrued a balance of $79,375.73. The instant motion for default judgment further alleges that the balance of the principal due and owing as of February 25, 2002 is $2,230.88 and requests a judgment in the sum of $2,230.88 with interest at the rate of 18% per annuum, reasonable attorneys' fees and costs of suit. The plaintiff seeks the entry of a default judgment for the defendants' failure to answer or otherwise defend.
Attached as an exhibit to the plaintiff's motion for default judgment is a letter indicating that all but the amount requested in the motion has been paid by Abbeville Bank.
The service charge agreement provides in pertinent part:
Applicant agrees all accounts shall be due within thirty (30) days after date of invoice, unless otherwise specified and all past due invoices will bear interest on the unpaid balance at the rate of 1 ½ % per month or the maximum allowed by law, whatever is less.
Reference to attorneys' fees and costs is stated as follows:
Applicant agrees to pay all costs of collection of any overdue amount including a reasonable attorney's fee.
The court finds that the record establishes the plaintiff's right to entry of default judgment. The court further finds that the plaintiff is entitled to default judgment against the defendant in the sum of $2,230.88 with interest at the rate of 18% per annuum, reasonable attorneys' fees and costs of suit.
The plaintiff's claim is for a sum that can be made certain by computation. Therefore, a hearing on damages is not necessary.
II. Reasonable Attorneys' Fees and Costs
The plaintiff's counsel filed a separate motion for attorney's fees and collection costs, along with an affidavit and an itemization. The affidavit of the plaintiff's attorney, R. Keith Forman, addresses the twelve Johnson factors for calculating a reasonable award of attorney's fees. In light of the twelve factors set out in Johnson v. Georgia Highway Express, Inc., the court must determine "a lodestar figure equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work" and adjust the lodestar figure to reflect any factors not otherwise subsumed in the lodestar calculation. Nisby v. Commissioners Court of Jefferson County, 798 F.2d 134, 136-37 (5th Cir. 1986); Jackson v. Color Tile, Inc., 638 F. Supp. 62, 64 (N.D.Miss. 1986), aff'd 803 F.2d 201 (5th Cir. 1986). After considering the Johnson factors, the court may adjust the lodestar upward or downward. League of United Latin Am. Citizens v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997).
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
The plaintiff's attorney requests an award of attorney's fees in the sum of $5325.00 for 42.6 hours of work at an hourly rate of $125. Two of the Johnson factors have no relevance in this cause, as stated in the attorney's affidavits: (1) the preclusion of other employment by the attorney due to the acceptance of the case; (2) the undesirability of the case. Brown v. Phillips Petroleum Co., 838 F.2d 451 (19th Cir.), cert. denied, 488 U.S. 822, 102 L.Ed.2d 43 (1988) ("rarely are all of the Johnson factors applicable"). See Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 331 (5th Cir. 1995) (not every Johnson factor must be explicitly analyzed in every case) (citations omitted), cert. denied, L.K. Comstock Co. v. Louisiana Power Light Co., 516 U.S. 862, 133 L.Ed.2d 113 (1995). Four factors are of special importance: (1) the time and labor involved; (2) the customary fee; (3) the amount involved and the results obtained; and (4) the experience, reputation, and ability of counsel. Williams v. Thomas, 692 F.2d 1032, 1037 (5th Cir. 1982), cert. denied, Dallas County v. Williams, 462 U.S. 1133, 77 L.Ed.2d 1369 (1983).
The court finds that 42.6 hours for a collection case of this type, in which no answer was filed and the amount of the alleged debt was paid almost entirely without court action and before the default judgment herein was executed, is more than the number of hours reasonably required. The court is of the opinion that 20 hours of work is reasonable for a collection case in which a default judgment is obtained. The attorney's affidavit sets forth, in sufficient detail, the nature of the work undertaken. The attorney states in his affidavit that the requested hourly rate of $125 for services rendered in this action is below the customary hourly fee for similar collection cases. The affidavit further states that the original amount involved was approximately $80,000, of which all but the amount requested in the instant cause has been paid. Moreover, the attorney has been involved in the practice of law for more than thirteen years, and much of work has consisted of creditor representation. Upon due consideration, the court finds that the proposed hourly rate is reasonable and should be used in the calculation of the lodestar amount by multiplying the rate of $125 per hour by the reasonable number of hours for a case of the instant kind, 20 hours, to arrive at a lodestar amount of $2500 for attorney's fees. The court also finds that the remaining applicable Johnson factors do not warrant an adjustment of the lodestar figure. Therefore, the plaintiff should be awarded attorneys' fees in the sum of $2500.
The attorney's itemization reflects the sum of $328.10 for filing fees, service of process expenses and other costs of suit. The court finds that the amounts reflected are reasonable and the plaintiff should be awarded costs of suit in the sum of $328.10.
A default judgment will be entered accordingly.