Opinion
NO. 3:01CV138-B-A
March 5, 2002
MEMORANDUM OPINION
This cause comes before the court on plaintiff's motion for default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure and separate motion for attorneys' fees and costs of collection pursuant to Rule 54(d)(2) of the Federal Rules of Civil Procedure and Local Rule 54.2(B) of the Uniform Local Rules of the United States District Courts for the Northern District and the Southern District of Mississippi.
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. Eg., Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977). The record reflects the following undisputed facts. On August 20, 2001 the plaintiff filed the complaint in this cause based on diversity jurisdiction. The defendants were served with process on October 6, 2001 and have 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 10A 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 defendants. Default was properly entered on November 5, 2001 upon the filing of the plaintiff's application for entry of default and supporting affidavit.
The complaint alleges that on July 11, 2000 defendant Anthony Wommack executed a promissory note, attached as an exhibit to the complaint, in the amount of $220,991.82 and has failed to perform under the terms and conditions of the note. The complaint further alleges that the balance of the principal due and owing as of June 26, 2001 is $182,071.27 and requests a judgment in the sum of $182,071.27 with daily interest at the rate of $50.55, 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.
The promissory note was made to the Bank of Falkner and assigned to the plaintiff when the Bank of Falkner was placed in receivership by the Federal Deposit Insurance Company.
The promissory note provides in pertinent part:
DEFAULT: If you default on this note, as that term is defined on the other side of this form, you agree to pay us the costs, including reasonable attorney fees, we may incur in collecting any amount due on this note.
The agreement defines default, inter alia, as failure "to make a payment in full when due" and failure "to make your payments in the amounts due." Reference to attorneys' fees and costs is restated in the terms as follows:
LEGAL FEES: To the extent permitted by Mississippi law, you agree to pay our attorney fees if we must hire an attorney to collect any amounts you owe us. You will also pay court costs.
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 defendants in the sum of $182,071.27, together with accrued and unpaid daily interest from June 26, 2001 at the rate of $50.55, reasonable attorneys' fees and costs of collection.
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 attorneys' fees and collection costs, along with affidavits and an itemization. The affidavits of the plaintiffs' attorneys, Joseph Lotterhos and Charles Barbour, address the twelve Johnson factors for calculating a reasonable award of attorneys' 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 requests an award of attorneys' fees in the sum of $4,130 for 23.6 hours of work at an hourly rate of $175. Two of the Johnson factors have no relevance in this cause, as stated in the attorneys' affidavits: 1) the preclusion of other employment by the attorney due to the acceptance of the case; and 2) the undesirability of the case. Brown v. Phillips Petroleum Co., 838 F.2d 451, 456 (10th 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.) (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 the 23.6 hours invested in this cause over a period of four months, including investigation and legal research before commencement of this cause, are reasonable. The attorneys' affidavits set forth, in sufficient detail, the nature of the work undertaken and time expended. Both attorneys state in their affidavits that the requested hourly rate of $175 for services rendered in this action is the customary hourly fee for similar collection cases. The court finds that the proposed hourly rate is reasonable and customary and should be used in the calculation of the lodestar amount by multiplying the rate of $175 per hour by the compensable hours expended, 23.6 hours, to arrive at a lodestar amount of $4,130 for attorneys' fees.
One of the attorneys representing the plaintiff has practiced law for more than thirty years.
The attorneys' affidavits further state that their fee was fixed and that the requested fee award is similar to fee awards in other collection causes of action. Upon due consideration, the court finds that the remaining applicable Johnson factors, as reflected in the attorneys' affidavits, do not warrant an adjustment of the lodestar figure. The nature of the questions, the required skill and the time limitations were not unusual. Therefore, the plaintiff should be awarded attorneys' fees in the sum of $4130.
The attorneys' itemization reflects the court cost of a $150 filing fee and expenses for postage, copying costs and telecopier costs totaling $51.72. The court finds that the amounts reflected are reasonable and the plaintiff should be awarded costs of collection in the sum of $201.72.
A default judgment will be entered accordingly.