Opinion
Civil Action 1:20-cv-483-TFM-N
10-14-2022
NATIONAL COMMISSION FOR THE CERTIFICATION OF CRANE OPERATORS, INC., Plaintiff, v. NATIONWIDE EQUIPMENT TRAINING, LLC, et al., Defendants. Claimed Hourly Claimed Rate ($)Hours Worked Hours Reduction for Block-Billed, Non-lawyer Work
MEMORANDUM OPINION AND ORDER
TERRY F. MOORER, DISTRICT JUDGE
Pending before the Court is Plaintiff National Commission for the Certification of Crane Operators, Inc.'s, evidence in support of its request for reasonable attorneys' fees and costs, which the Court construes as a motion for attorneys' fees and costs. Doc. 100, filed December 30, 2021. Plaintiff National Commission for the Certification of Crane Operators, Inc., moves the Court award its attorneys' fees in the amount of $63,115.00 and costs in the amount of $3,310.64. Id. at 21. Having considered the motion, the evidence in support of the motion, and relevant law, the Court finds the motion for attorneys' fees and costs is due to be GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
These parties have a long, storied history before this Court. See Nat'l Comm'n for the Certification of Crane Operators v. Nationwide Equip. Training, LLC, Civ. Act. No. 1:17-cv-00152-CG-M (S.D. Ala); Nat'l Comm'n for the Certification of Crane Operators, Inc. v. Nationwide Equip. Training, LLC, Civ. Act. No. 1:20-cv-00483-TFM-N (S.D. Ala.). The Court outlined the factual and procedural background of this matter in its December 13, 2021 Memorandum Opinion and Order, which the Court will update to detail what has occurred since its issuance. Doc. 98.
Plaintiff National Commission for the Certification of Crane Operators, Inc.'s (“NCCCO”) previously filed a motion for default judgment. Doc. 91. On December 13, 2021, the Court entered its Memorandum Opinion and Order in which it granted in part and denied in part the Motion for Default Judgment and granted in part and withheld in part NCCCO's Notice of Withdrawal of Four Motions and Request for Disposition of One Pending Motion. Id.; Docs. 97, 98. The Court granted NCCCO's Motion for Default Judgment as to its request against Defendants Nationwide Equipment Training, LLC (“Nationwide”), and Donald Childers (“Childers”), jointly and severally, for a permanent injunction, $975,000 in statutory damages, and attorneys' fees and costs and denied as to any additional requested relief. Doc. 98. The Court granted NCCCO's Notice of Withdrawal of Four Motions and Request for Disposition of One Pending Motion as to its request to withdraw four of its motions and withheld its ruling on NCCCO's Motion for an Order to Show Cause Why Non-Party James T. Davis, Sr. Should not be Held in Civil Contempt of Court, which was before the assigned Magistrate Judge. Doc. 69, 70, 75, 83, 85, 86, 88, 98. On December 30, 2021, NCCCO submitted its evidence in support of its request for attorneys' fees and costs. Therefore, NCCCO's motion for attorneys' fees and costs is ripe for review.
The Court concurrently issues a separate opinion which resolves that outstanding motion and issue.
II. DISCUSSION AND ANALYSIS
A. Attorneys' Fees
NCCCO requests attorneys' fees in the amount of $63,115.00 for its counsel and paralegal who are with the law firm of Luther, Collier, Hodges, & Cash, LLP (“Luther Collier”), the claimed hours worked and hourly rates for whom are as follows:
Claimed Hourly Claimed
Rate ($)Hours Worked
Danny J. Collier
250.00
240.10
Regina F. Cash
250.00
1.20
Brandon M. Lawson
225.00
2.40
Emily B. Brasier
100.00
22.50
Doc. 100 at 21.
As explained by the Court in its December 13, 2021 Memorandum Opinion and Order, the award of attorneys' fees to a prevailing party in a copyright infringement action is appropriate. Doc. 98 at 29 (citing 17 U.S.C. § 505). “There is no precise rule or formula for making [the determine to award attorneys' fees,] but instead equitable discretion should be exercised....” Broad. Music, Inc. v. Evie's Tavern Ellenton, Inc., 772 F.3d 1254, 1261 (11th Cir. 2014) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)).
“The determination of reasonable attorneys' fees is left to the sound discretion of the trial judge.” Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir. 1983) (citations omitted). “[T]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Watford v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)). “The first step in calculating a reasonable attorney's fee award is to determine the ‘lodestar'-the product of multiplying reasonable hours expended times a reasonable hourly rate.” Martinez v. Hernando Cty. Sheriff's Office, 579 Fed.Appx. 710, 713 (11th Cir. 2014) (citing Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999)); see also Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (“The product of these two figures is the lodestar and there is a ‘strong presumption' that the lodestar is the reasonable sum the attorneys deserve.”).
“Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40. “When a district court finds the number of hours claimed is unreasonably high, the court has two choices: it may conduct an hour-by-hour analysis or it may reduce the requested hours with an across-the-board cut.” Bivins, 548 F.3d at 1350 (citation omitted). The Court is “itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.” Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988).
“In determining what is a ‘reasonable' hourly rate and what number of compensable hours is ‘reasonable,' the court is to consider the 12 factors enumerated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).” Id.
The Eleventh Circuit has adopted as binding precedent the decisions of the Fifth Circuit that were decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
The Johnson factors include: (1) the time and labor required; (2) the difficulty of the issues; (3) the skill required; (4) the preclusion of other employment by the attorney because he accepted the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or 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.
Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1242-43 (11th Cir. 2011) (citations omitted). And, after determination of the lodestar, that “number” may then be “adjusted after considering other factors, such as the results obtained.” Martinez, 579 Fed.Appx. at 713 (citations omitted). Although the “Johnson factors are to be considered in determining the lodestar figure; they should not be reconsidered in making either an upward or downward adjustment to the lodestar-doing so amounts to double-counting.” Bivins, 548 F.3d at 1352 (citing City of Burlington v. Dague, 505 U.S. 557, 562-63, 112 S.Ct. 2638, 2641, 120 L.Ed.2d 449 (1992)).
In determining the proper lodestar in this case, the undersigned first considers how many hours were reasonably expended in pursuing this matter then what hourly rates are reasonable. In so doing, the Court keeps in mind that “the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. Although NCCCO's request for attorney fees is unopposed in this case, the Court is still obligated to scrutinize the reasonableness of the hours billed and claimed hourly rates by NCCCO's counsel and paralegal.
1. Hours Reasonably Expended
In support of the claimed hours worked, NCCCO submits an accounting of Luther Collier's legal fees and costs that NCCCO states were reasonably incurred to prosecute this action. Doc. 100 at 6, 8-21. The accounting details the work performed and number of hours worked. Id. at 821.
“‘Fee applicants must exercise what the Supreme Court has termed ‘billing judgment,' which requires the exclusion of excessive, redundant, or otherwise unnecessary hours.” Smith v. Werner Enters., Inc., Civ. Act. No. 14-0107-WS-B, 2015 U.S. Dist. LEXIS 153536, at *12, 2015 WL 7185503, at *4 (S.D. Ala. Nov. 13, 2015) (citations and internal quotation marks omitted).
Indeed, “[i]f fee applicants do not exercise billing judgment, courts are obligated to do it for them, to cut the amount of hours for which payment is sought, pruning out those that are ‘excessive, redundant, or otherwise unnecessary.'” Barnes, 168 F.3d at 428. “Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded.” Id. “Excluding excessive or otherwise unnecessary hours under the rubric of ‘billing judgment' means that a lawyer may not be compensated for hours spent on activities for which he would not bill a client of means who was seriously intent on vindicating similar rights, recognizing that in the private sector the economically rational person engages in some cost benefit analysis.” Norman, 836 F.2d at 1301. “Moreover, because an assessment of the reasonableness of the hours requested (at least when objection is adequately raised by the defendant) contemplate[s] a task-by-task examination of the hours billed, plaintiffs' counsel is required to record each task, and the time associated with each, with sufficient clarity that the Court can evaluate the reasonableness of the expenditure of time.” Smith, 2015 U.S. Dist. LEXIS 153536, at *12, 2015 WL 7185503, at *4 (citations and internal quotation marks omitted).
The Court reviewed Luther Collier's accounting and found many entries for the description of the work that was performed by Mr. Collier and Ms. Brashier redacted so much the Court is unable to evaluate the reasonableness of the associated expenditure of time. Therefore, the Court will reduce claimed hours worked for the following:
Hours Reduction for Redacted Work Descriptions
Mr. Collier
31.30
Ms. Brashier
5.80
The Court reviewed Luther Collier's accounting and identified several instances of block billing. “‘Block billing' occurs when an attorney lists all the day's tasks on a case in a single entry, without separately identifying the time spent on each task.” Ceres Envtl. Servs., Inc. v. Colonel McCrary Trucking, LLC, 476 Fed.Appx. 193, 203 (11th Cir. 2012). Block billing “makes it difficult, if not impossible, to calculate with any precision the number of hours an attorney devoted to a particular task.” Barnes, 168 F.3d at 429. “Courts have . . . approved across-the-board reductions in block-billed hours to offset the effects of block billing.” Ceres, 476 Fed.Appx. at 203.
The Court found multiple instances of block billing for work that was performed by Mr. Collier, and in some of those instances, the work description is also partially redacted so that the Court cannot completely evaluate the reasonableness of the associated expenditure of time. The Court finds an across-the-board reduction by ten percent (10%) is sufficient to offset the effects of the instances of block billing and partial redaction. Therefore, the Court will reduce claimed hours worked as follows:
Hours Reduction for Block-Billed and/or Partially Redacted Work
Mr. Collier 253
2.53
The Court has also found one instance of non-lawyer work that was performed by NCCCO's paralegal, Ms. Brashier. “A court may award fees for the work of non-lawyer paralegals and non-lawyer law clerks, but only to the extent they perform work ‘traditionally done by an attorney.'” Kent v. Gulf Coast Sec. Enters. LLC, Civ. Act. No. 18-00106-CG-C, 2018 U.S. Dist. LEXIS 208769, at *7, 2018 WL 6933393, at *3 (S.D. Ala. Dec. 10, 2018) (citations omitted). “Work that may appropriately be performed by paralegals and billed to a client or a losing party includes ‘factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence.'” Allen v. McClain EZ Pack of Ala., Inc., Civ. Act. No. 03-0490-WS-M, 2005 U.S. Dist. LEXIS 43487, at *9, 2005 WL 1926636, at *3 (S.D. Ala. Aug. 8, 2005) (quoting Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288 n.10, 109 S.Ct. 2463, 2471 n.10, 105 L.Ed.2d 229 (1989)). Ms. Brashier billed time for filing, which was also block billed with other tasks, and the Court is not able to parse out the amount of time billed for that non-lawyer work, so the Court finds an across-the-board-reduction of ten percent (20%) is necessary in this instance. Therefore, the Court will reduce claimed hours worked as follows:
Hours Reduction for Block-Billed, Non-lawyer Work
Ms. Brashier
0.16
2. Reasonable Hourly Rates
In support of the claimed hourly rates, NCCCO submits the affidavit of Mr. Collier. Doc.
100 at 3-7. Mr. Collier states he is licensed to practice law in the State of Alabama and has practiced law since April 26, 1996, and he was retained at a rate of $250.00 per hour to prosecute this matter. Mr. Collier also states his paralegal's hourly rate is $100.00. The affidavit does not discuss the level of experience of Ms. Brasier, Ms. Cash, or Mr. Lawson.
“The Eleventh Circuit has instructed that a reasonable hourly rate is ‘the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience and reputation.'” McDonald [v. ST Aerospace Mobile, Inc., No. 12-0313-CG-C], 2013 WL 1389976, [at] *3 [(S.D. Ala. April 4, 2013)] (citing Norman, 836 F.2d at 1303). “The general rule is that the ‘relevant market' for purposes of determining the reasonable hourly rate for an attorney's services is ‘the place where the case is filed.'” [ ]Barnes, 168 F.3d [ ] at 437 (citing Cullens v. Ga. Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994)[)]. .... The fee applicant “bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates.” Norman, 836 F.2d at 1299. “Satisfactory evidence at a minimum is more than the affidavit of the attorney performing the work.” Norman, 836 F.2d at 1299.
Cormier v. ACAC Inc., Civ. Act. No. 13-0158-CG-M, 2013 U.S. Dist. LEXIS 713659, at * 2, 2013 WL 6499703, at *2 (S.D. Ala. Dec. 11, 2013). “Also, the court is familiar with the prevailing rates in this district and may rely upon its own ‘knowledge and experience' to form an ‘independent judgment' as to a reasonable hourly rate.” Garrett Invs., LLC v. SE Prop. Holdings, LLC, 956 F.Supp.2d 1330, 1339 (S.D. Ala. 2013) (citing Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994)). However, “a court should hesitate to give controlling weight to prior awards, even though they may be relevant.” Dillard v. City of Greensboro, 213 F.3d 1347, 1355 (11th Cir. 2000).
As for the claimed hourly rate for Mr. Collier, the Court finds his rate reasonable based on the prevailing market rate in the Mobile, Alabama legal community for similar services by lawyers of comparable skills, experience, and reputation. Mr. Collier has approximately twenty-six (26) years of experience, and his claimed hourly rate of $250.00 is reasonable. See SE Prop. Holdings, LLC v. Sandy Creek II, LLC, Civ. Act. No. 12-00303-KD-M, 2014 U.S. Dist. LEXIS 1228, at *25, 2014 WL 47330, at *9 (S.D. Ala. Jan. 7, 2014) (awarding a $250.00 hourly rate to an attorney who was a partner at his firm and had approximately twenty (20) years of experience in complex commercial and business litigation).
As for the claimed hourly rates for Ms. Brasier, Ms. Cash, and Mr. Lawson, NCCCO does not provide the Court with evidence of their experience, which the Court is not required to independently investigate. So, the Court is obliged to apply the reasonable base hourly rate for attorneys and paralegals in the Mobile, Alabama legal community. See Norman, 836 F.2d at 1299 (“The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates.” (citing NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987)). Therefore, the Court will apply an hourly rate of $150.00 for Ms. Cash and Mr. Lawson since that is the general rate for entry-level attorneys. See Ford v. Navika Capital Grp., LLC, Civ. Act. No. 17-00311-KD-C, 2017 U.S. Dist. LEXIS 57923, at *17, 2017 WL 1381668, at *6 (S.D. Ala. Apr. 17, 2017) (awarding a $150.00 hourly rate to two attorneys with between one (1) and one and one-half years (1.5) of experience); SE Prop. Holdings, LLC v. Sandy Creek II, LLC, Civ. Act. No. 12-00303-KD-M, 2014 U.S. Dist. LEXIS 1228, at *25, 2014 WL 47330, at *9 (S.D. Ala. Jan. 7, 2014) (awarding a $150.00 hourly rate to an attorney with approximately two (2) years of experience); Goldsby v. Renosol Seating, LLC, Civ. Act. No. 2:08-0148-KD-N, 2013 U.S. Dist. LEXIS 174668, at *30, 2014 WL 6535253, at *9 (S.D. Ala. Dec. 13, 2013) (“[T]his Court's customary hourly rates for attorneys . . . ranges from $250.00 to $300.00 for more experienced and qualified attorneys [and] $150.00 to $225.00 for less experienced attorneys and associates with few years of practice.”). Further, the Court will apply an hourly rate of $75.00 for Ms. Brashier. See Sandy Creek II, LLC, 2014 U.S. Dist. LEXIS 1228, at *26-27, 2014 WL 47330, at *9 (“Absent a showing that a paralegal possesses some extraordinary qualification or expertise, this Court has routinely found a rate of $75/hour to be reasonable for work by paralegals.”).
3. Lodestar Calculation
After making the appropriate adjustments to the reasonable hourly rates and the hours that were reasonably expended for NCCCO's attorneys and paralegal, the Court finds the lodestar is $55,348.00.
Hourly Rate
($) Hours
Amount ($)
Mr. Collier
250.00
206.27
51,567.50
Ms. Cash
150.00
120
180.00
Mr. Lawson
150.00
270
360.00
Ms. Brasier
75.00
16.54
1240.50
Total
$53,348.00
4. Adjustments to the Lodestar
While the Supreme Court has made clear that “[t]he product of reasonable hours times a reasonable rate does not end the inquiry[,]” Hensley, 461 U.S. at 434, 103 S.Ct. at 1940, this Court does bear in mind that “there is a strong presumption that the lodestar is the reasonable sum the attorneys deserve.” Bivins, 548 F.3d at 1350 (citations and internal quotation marks omitted). “When the number of compensable hours and the hourly rate are reasonable, a downward adjustment to the lodestar is merited only if the prevailing party was partially successful in its efforts.” Id. at 1350-51 (citation omitted). Here, the Court entered against Defendants Childers and Nationwide two orders of contempt, a permanent injunction, and default and awarded statutory damages in favor of NCCCO. Docs. 54, 80, 89, 98. Therefore, a downward adjustment to the lodestar is not warranted, especially given the ongoing nature of Defendants' violations.
B. Costs
Fed. R. Civ. P. 54(d)(1) states “[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1); see also Fireman's Fund Ins. Co. v. Tropical Shipping & Constr. Co., 254 F.3d 987, 1013 (11th Cir. 2001) (citing EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000)) (“[A] prevailing party is entitled to an award of costs.”). “[F]ee applicants bear the burden of providing sufficient detail in their records to explain and support their requests for fees and costs.” Lee v. Krystal Co., 918 F.Supp.2d 1261, 1275 (S.D. Ala. 2013) (quoting Andrade v. Aerotek, Inc., 852 F.Supp.2d 637, 645 (D. Md. 2012)). The costs that a prevailing litigant is entitled to under Fed.R.Civ.P. 54(d) are enumerated in 28 U.S.C. §§ 1821 and 1920. The sections at issue include those enumerated in 28 U.S.C. §§ 1821 (b),(c)(2) and 1920(1)-(4).
Section 1821 states:
(b) A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.
(c)
(2) A travel allowance equal to the mileage allowance which the Administrator of General Services has prescribed, pursuant to section 5704 of title 5, for official travel of employees of the Federal Government shall be paid to each witness who travels by privately owned vehicle. Computation of mileage under this paragraph shall be made on the basis of a uniformed table of distances adopted by the Administrator of General Services.
28 U.S.C. § 1821 (b),(c)(2).
Section 1920 states:
[A] judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; [and] (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.
NCCCO's costs are detailed in Luther Collier's accounting and includes fees for court filing, in-house printing, process service, outsourced printing and scanning, transcripts, witness depositions and mileage, court reporter appearances, and investigative reports. Of the costs that NCCCO requests, those for in-house printing and outsourced printing and scanning do not detail their purpose, so the Court does not find them supportable and recoverable. In total, in-house printing and outsourced printing totals $953.35. The Court finds the remainder of NCCCO's requested costs of $2,357.29 are supportable and recoverable.
III. CONCLUSION
Accordingly, NCCCO's motion for attorneys' fees and costs (Doc. 100) is GRANTED in part and DENIED in part. The motion is GRANTED insofar as NCCCO is awarded attorneys' fees in the amount of $53,348.00, and costs and expenses in the amount of $2,357.29, for a total of $55,705.29. The motion is DENIED to the extent NCCCO seeks additional recovery.
DONE and ORDERED