United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE
matter is before the undersigned on Plaintiff Precision IBC,
Inc.'s, (“Precision”) Request for and
Submission in Support of Attorney's Fees and Expenses
(“Request for Attorney's Fees”), (Doc. 52),
filed on February 2, 2017, and Notice Regarding Supplement to
Request for Attorney's Fees and Expenses, (Doc. 59),
filed on March 29, 2017. The parties have consented to the
exercise of jurisdiction by the Magistrate Judge, pursuant to
28 U.S.C. § 636(c), for all proceedings in this Court.
(Doc. 32 (“In accordance with the provisions of 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this
case consent to have a United States magistrate judge conduct
any and all proceedings in this case, including the trial,
order the entry of a final judgment, and conduct all
post-judgment proceedings.”)). Following a review of
the foregoing pleadings, with attachments, as well as all
other relevant pleadings in this matter, the Court GRANTS IN
PART Plaintiff's Request for Attorney's Fees, (Doc.
52), as more fully explained hereinafter.
complaint, (Doc. 1), in this matter was originally filed in
this Court on December 16, 2015, invoking the Court's
diversity jurisdiction and then was assigned to the undersigned,
(Doc. 2). On December 27, 2016, Plaintiff Precision filed its
Motion for Summary Judgment and Supporting Brief, (Doc. 45),
which the Court granted on March 28, 2017, (Doc. 58).
Plaintiff Precision filed its instant motion, (Doc. 52), on
February 2, 2017. Defendant Phoenix Chemical Technologies,
LLC, (“Phoenix”) has not filed a response in
opposition to Plaintiff Precision's Request for
Attorney's Fees. (See Docket Sheet).
Precision seeks $33, 236.50 in attorney's fees and
expenses, (Doc. 52, at 1), which consists of 129.2 hours of
attorney time at a rate of $230.00 per hour, 16.3 hours of
paralegal time at a rate of $125.00 per hour, purchase of a
transcript, postage, and online research fees. (Doc. 52, at
¶¶ 2-4). Plaintiff Precision's “Equipment
Rental Agreement, ” (Doc. 1-1), signed by Defendant
Phoenix, states: “Attorney's Fees.
In the event that Lessor takes action to exercise any right
or remedy under this Agreement or to enforce any provision of
this Agreement, or if Lessor successfully defends any action
brought by Lessee against it, Lessee will pay all costs and
expenses of such action or such defense incurred by Lessor,
including, without limitation, reasonable attorneys' fees
and costs of litigation, ” (Doc. 1-1, ¶ 22(e)).
affidavit, Attorney Anne Laurie McClurkin, counsel for
Plaintiff Precision, asserts on behalf of her and Anna Bush,
the paralegal assigned to this matter, the number of hours
expended and hourly rates charged were reasonable. (Doc. 52,
¶¶ 2-4 & 6). “Alabama follows the
American rule, whereby attorney fees may be recovered if they
are provided for by statute or by contract . . . .”
Jones v. Regions Bank, 25 So.3d 427, 441 (Ala. 2009)
(citations omitted). The law is clear that “provisions
regarding reasonable attorney's fees are terms of the
contracts susceptible to breach.” Army Aviation
Ctr. Fed. Credit Union v. Poston, 460 So.2d 139, 141
(Ala. 1984); see also Ierna v. Arthur Murray Int'l,
Inc., 833 F.2d 1472, 1476 (11th Cir. 1987) (“When
the parties contractually provide for attorneys' fees,
the award is an integral part of the merits of the
case.”). Under Alabama law, such attorney's fees
are recoverable; however, recovery is subject to
Alabama's imposition of a reasonableness constraint on
all fee shifting contracts, as a mater of public policy.
See, e.g., Willow Lake Residential
Ass'n, Inc. v. Juliano, 80 So.3d 226, 241 (Ala. Civ.
App. 2010) (“Alabama law reads into every agreement
allowing for the recovery of attorney's fees a
reasonableness limitation.”); PNCEF, LLC v.
Hendricks Bldg. Supply LLC, 740 F.Supp.2d 1287, 1294
(S.D. Ala. 2010) (rejecting claim for attorney's fees in
amount of 15% of fund to be collected, where plaintiff made
no showing of its actual attorney's fee incurred in
enforcing contract). Thus, Plaintiff Precision is entitled to
recover only its reasonable attorney's fees and costs
incurred in collecting the debt.
calculation of reasonable attorney's fees is within the
sound discretion of the court. Dowdell v. City of Apopka,
Fla., 698 F.2d 1181, 1187 (11th Cir. 1983); Kiker v.
Probate Court of Mobile Cty., 67 So.3d 865, 867 (Ala.
2010). Over thirty years ago, the Supreme Court indicated
“‘the 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 F. App'x 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.”). The
party moving for fees bears the burden of establishing the
“reasonableness” of the hourly rate and number of
hours expended via specific evidence supporting the hours and
rates claimed. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); Barnes, 168 F.3d at 427. The court may
utilize its own “knowledge and expertise” to come
to an independent judgment regarding the reasonableness of
requested attorney's fees. Loranger v.
Stierheim, 10 F.3d 776, 781 (11th Cir. 1994).
seeking attorney's fees, the prevailing party must not
request fees for hours that are “excessive, redundant,
or otherwise unnecessary, ” or request fees for
unsuccessful claims. Hensley, 61 U.S. at 434-35.
When a request for attorney's fees is unreasonably high,
the court 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. Likewise,
where the rates or hours claimed seem excessive or lack the
appropriate documentation, a court may calculate the award
based on its own experience, knowledge, and observations.
See, e.g., Norman v. Hous. Auth. of the City of
Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).
Notably, “[t]he court, either trial or appellate, is
itself an expert on the question and may consider its own
knowledge and experience concerning reasonableness and proper
fees and may form an independent judgment with or without the
aid of witnesses.” Id. at 1303 (citations
lodestar figure established by the Court may be adjusted in
consideration of various factors that include:
(1) the nature and value of the subject matter of the
employment; (2) the learning, skill, and labor requisite to
its proper discharge; (3) the time consumed; (4) the
professional experience and reputation of the attorney; (5)
the weight of his responsibilities; (6) the measure of
success achieved; (7) the reasonable expenses incurred; (8)
whether a fee is fixed or contingent; (9) the nature and
length of a professional relationship; (10) the fee
customarily charged in the locality for similar legal
services; (11) the likelihood that a particular employment
may preclude other employment; and (12) the time limitations
imposed by the client or by the circumstances.
Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740,
749 (Ala. 1988); see also, e.g., Pharmacia Corp
v. McGowan, 915 So.2d 549, 552-554 (Ala. 2004);
Lolley v. Citizens Bank, 494 So.2d 19 (Ala.
1986). These factors are not an exhaustive list of specific
criteria that must all be met. Beal Bank, SSB v.
Schilleci, 896 So.2d 395, 403 (Ala. 2004).
determining the proper lodestar in this case, the undersigned
first considers what hourly rates are reasonable and then
what hours were reasonably expended in pursuing this matter.
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.