Opinion
CIVIL ACTION NO. 1:07cv737-MHT (WO).
September 29, 2009
OPINION AND ORDER
Appellee Fernisa Parker seeks an award of additional attorneys' fees and costs associated with defending, on appeal, a bankruptcy-court judgment for damages arising out of the willful violation of an automatic stay by appellant Pioneer Credit Company of Alabama, Inc., doing business as First Southeast Acceptance Corporation. Parker also seeks an award of the costs and attorneys' fees associated with protecting her interest in the judgment during the pendency of the appeal. First Southeast denies that Parker is entitled to such fees and further asserts that the fees she seeks are not reasonable.
I. Background
This court laid out the factual and procedural history of this case in its prior opinion upholding the bankruptcy's judgment: In re Parker, 2008 WL 4183436, *1 (M.D. Ala. 2008) (Thompson, J.).
In short, as a result of a Chapter 13 petition, an automatic stay precluded creditors from commencing judicial actions and enforcing property judgments against Parker. Parker contended that First Southeast willfully violated the stay. After a trial, the bankruptcy court held that First Southeast had willfully violated the stay, and awarded Parker $500 in actual damages and $12,791.45 in attorneys'' fees and expenses pursuant to 11 U.S.C. § 362(k)(1). First Southeast appealed to this court, seeking a reduction in the award of attorneys' fees and contending only that the rate Parker's counsel sought was excessive. This court affirmed the judgment of the bankruptcy court.
Parker then filed the petition that is now before the court, seeking a supplemental award of $11,227.50 in attorneys' fees for the appeal and for protecting her interest in the judgment during the pendency of the appeal. Parker contends that, because First Southeast did not post a bond or offer to satisfy the judgment while the appeal was pending, she was forced to execute on First Southeast's property in order to protect her interest by requesting condemnation of garnished funds. First Southeast counters that Parker is not entitled to attorneys' fees associated with the cost of defending the prior award of fees included in the judgment and that her fee request is excessive.
II. Discussion A. Whether the law entitles Parker to the attorneys' fees she seeks
11 U.S.C. § 362 provides that "an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees." 11 U.S.C. § 362(k)(1). Under 362(k)(1), an award of attorneys' fees is mandatory when a party willfully violates an automatic stay.Jove Engineering, Inc. v. I.R.S., 92 F.3d 1539, 1559 (11th Cir. 1996).Parker argues that this language, which plainly covers attorneys' fees when a debtor suffers injury due to willful violation of a stay, also extends to appellate attorneys' fees incurred in defending such an award. First Southeast responds that Parker's claim for appellate fees must fail because no statute or rule expressly provides for the award of such in this situation.
First Southeast's argument is without merit. It is well-established that "appellate attorney's fees and costs flow from the creditor's violation of the automatic stay." In Re Shade, 261 B.R. 213, 217 (C.D. Illinois 2001) (Lessen, J.) (citing In re Florio, 229 B.R. 606 (S.D.N.Y. 1999)). As with attorneys' fees for prosecuting the willful violation of a stay, attorneys' fees incurred resisting a non-frivolous appeal are `actual damages' incurred by the debtor. Eskanos Adler, P.C. v. Roman (In re Roman), 283 B.R. 1, 10 (B.A.P. 9th Cir. 2002) ("Section 362(h) . . . allows attorneys' fees to be `actual damages,' rather than a separate litigation expense."). Thus, as part of her entitlement to damages flowing from the violation of a stay, a debtor is entitled to collect attorneys' fees incurred in resisting a non-frivolous appeal. Id. at 15; see also In re Walsh, 219 B.R. 873, 878 (B.A.P. 9th Cir. Cal. 1998). Indeed, such damages are mandatory. Roman, 283 B.R. at 15.
This conclusion is consistent with caselaw concerning other, parallel federal fee-shifting statutes in the civil-rights context. For example, an entitlement to attorneys' fees under 42 U.S.C. § 1988 includes an entitlement to fees on fees. Jackson v. State Bd. of Pardons Paroles, 331 F.3d 790, 798-99 (11th Cir. 2003); accord Volk v. Gonzalez, 262 F.3d 528, 536 (5th Cir. 2001); Hernandez v. Kalinowski, 146 F.3d 196, 200-01 (3d Cir. 1998). Courts considering analogous fee requests under § 1988 have reasoned that "[t]he effect of completely denying compensation to [an attorney] for the time she spent on the fee issue is to diminish the proper net award of attorney's fees for the successful civil rights claim: an outcome that frustrates the intent of Congress." Thompson v. Pharm. Corp. of Am., Inc., 334 F.3d 1242, 1245 (11th Cir. 2003). In § 362, Congress evinced the intent to award fees to debtors injured by a creditor's willful violation of a stay. A bankruptcy attorney, no less than a civil-rights attorney, should not suffer a decrease in effective fees simply because an appeal is taken. See Grant v. George Schumann Tire Battery Co., 908 F.2d 874, 879 (11th Cir. 1990) ("attorneys' fees in bankruptcy cases should be no less, and no more, than fees received for comparable non-bankruptcy work.").
The fee-shifting language is quite similar between the two statutes, compare 42 U.S.C. § 1988 ("In any action or proceeding to enforce a provision of [enumerated] sections . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs")with 11 U.S.C. § 362(k)(1) ("[A]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees."), and is therefore generally governed by the same legal principles.Cf. Simpleville Music v. Mizell, 511 F. Supp. 2d 1158, 1161 n. 1 (M.D. Ala. 2007) (Thompson, J.) (Reasoning that caselaw governing fee-shifting under 42 U.S.C. § 1988 applied to 17 U.S.C. § 505 because of similarity of fee-shifting language).
The same reasoning supports Parker's claim to the costs of collecting the judgment in the lower court. See Johnson v. Mississippi, 606 F.2d 635, 639 (5th Cir. 1979) (failure to allow attorney's fee for cost incurred in protecting judgment would decrease the attorney's effective rate, contrary to statutory purpose); Vukadinovich v. McCarthy, 59 F.3d 58, 60-61 (7th Cir. 1995). First Southeast contends that Parker's counsel should not recover any money for the costs of collecting the judgment because allowing Parker to recover the cost of enforcing the judgment results in double payment since First Southeast has now satisfied the judgment in full. It is illogical to suggest that, because Parker's efforts to collect on the judgment were successful, it is double-paying to compensate her for the additional work required to collect it. Although courts must be careful to avoid compensating lawyers "for turning the litigation about attorneys' fees into a second major litigation," Thompson, 334 F.3d at 1245 (quotation marks and citation omitted), the court is satisfied that this is not such a case. Rather, Parker's attorney seeks fair compensation for the additional time required to obtain satisfaction of the judgment.
Parker's counsel makes a passing reference suggesting that her attorneys seek fees for the hours spent on this supplemental fee petition. The court notes that it is awarding Parker's counsel the hours spent preparing the fee petition, which are included in the fee Parker's counsel seeks, but no more. To do otherwise does, in fact, risk turning the litigation over attorneys' fees into a second major litigation.
B. Whether Parker's fee request is reasonable
First Southeast protests that the attorneys' fees Parker seeks for the appeal and collection of judgment are unreasonable.
As the court explained in its prior decision in this case, § 362(k)(1) attorneys' fee requests must be reasonable and are calculated using the lodestar approach:
"[T]he Eleventh Circuit Court of Appeals has instructed that, `Attorneys fees in bankruptcy cases should be no less, and no more, than fees received for comparable non-bankruptcy work.' Grant v. George Schumann Tire Battery Co., 908 F.2d 874, 879 (11th Cir. 1990) (emphasis omitted). Thus, the court should use the lodestar approach. Id. at 878-79. The lodestar `is the number of hours (tempered by billing judgment) spent in the legal work on the case, multiplied by a reasonable market rate in the local area.' Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir. 2000). In determining the allowable hours and rates that make up the lodestar, `a judge must 1) determine the nature and extent of the services rendered; 2) determine the value of those services; and 3) consider the factors laid out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) and explain how they affect the award.' Grant, 908 F.2d at 877-78 (footnotes omitted)."In re Parker, 2008 WL 4183436, *2 (M.D. Ala. 2008) (Thompson, J.) (footnote omitted). The Johnson factors are: (1) the time and labor required, (2) the novelty and difficulty of the legal questions, (3) the skill required to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (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 attorney, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.Johnson, 488 F.2d at 717-19.
First Southeast argues that the attorneys' fees Parker seeks are excessive because Parker's counsel did not exercise sufficient billing judgment. First Southeast contends that "the 2.1 hours . . . for lead counsel David Poston's conferring with his associates on July 6, 9, and 19, 2007 should not be compensable." Def. Mem. Br. at 3. This argument is without merit. The 2.1 hours that First Southeast claims Parker's counsel billed for "conferring" with associates clearly incorporates many other tasks, such as reviewing filings and conducting legal research, that First Southeast does not dispute are appropriate. Moreover, First Southeast articulates no logical basis for excluding consultation with co-counsel from legal fees. Thus, these hours are compensable.
In addition, First Southeast contends that Parker's counsel improperly seeks compensation for 1.5 hours of "secretarial work." This contention is equally without merit. As a preliminary matter, First Southeast does not indicate where it gets this number; the court must assume that First Southeast refers to the hours billed for paralegal work, which was 1.2, not 1.5, hours. However, Parker's counsel excised 1.1 paralegal hours for truly secretarial work, such as transcription, from the fee request. The remaining 1.2 hours is for work nearly identical in nature to work that merited fees from the bankruptcy court. Thus, Parker's counsel will receive these fees.
First Southeast also asserts that Parker's counsel's hours for researching, drafting, and editing the appellee brief was excessive. The total hours billed for the brief is 30.05 (26.95 hours for Poston, and 3.1 hours for Blakeney). The court agrees that these hours are excessive, given that the appeal centered on a narrow, straightforward dispute of Parker's counsel's rate. TheJohnson factors here counsel in favor of a reduction: the legal questions were uncomplicated; the substance of the brief filled fewer than 10 pages; and the dispute, on appeal, concerned less than $3,000. In light of the limited scope of the appeal, Parker's counsel's hours are excessive. Accordingly, the court will reduce Poston's hours by 13.5 hours.
First Southeast contends that the hours billed for the brief is 27.5.
Finally, First Southeast contends that the court should deny all of Parker's supplemental fee request because Parker's counsel has not submitted new affidavits since the filing of the original fee petition. Although, technically, Parker's counsel should have filed new affidavits with the fee petition, the court disagrees that the record is insufficient to support Parker's rate. The sole dispute on appeal was the reasonableness of Parker's counsel's rates. The record is clear: the rate for the senior attorneys, David Poston and Michael Brock, is $250; for associates it is $125; and for paralegals it is $75.
After reducing Poston's fee by 13.5 hours, the fee is as follows:
David Poston 28.1 hours × $250 $7,025.00 Michael Brock 0.5 hours × $250 125.00 Walter Blakeney 4.9 hours × $125 612.50 Paralegal 1.2 hours × $75 90.00 TOTAL $7,852.50***
For the above reasons, it is ORDERED that appellee Fernisa Parker's motion for award of additional attorneys' fees (doc. no. 12) is granted and appellee Parker shall have and recover from appellant Pioneer Credit Company of Alabama, Inc., doing business as First Southeast Acceptance Corporation the additional sum of $7,852.50 as attorneys fees and costs. A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).