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SE Property Holdings, LLC v. Unified Recovery Group, LLC

United States District Court, S.D. Alabama, Southern Division

February 26, 2018

SE PROPERTY HOLDINGS, LLC, Plaintiff,
v.
UNIFIED RECOVERY GROUP, LLC, et al., Defendants.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         After due and proper consideration of the issues raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B), and dated January 4, 2018 (doc. 207), is ADOPTED as the opinion of this Court, with modification as noted.[1] Accordingly, the Court will address Plaintiff SE Property Holdings LLC's request for $3, 431.98 as attorney's fees and costs for work performed in relation to the contempt proceedings and the Magistrate Judge's recommendation of a coercive daily fine.

         A. Attorney's fees and costs

         The Magistrate Judge recommended that the Court order “Green & Sons, LLC to pay SPEH's attorney's fees and costs incurred after November 16/17, 2017, when the undersigned unequivocally ordered Green & Sons, LLC to comply with the subpoena served upon its registered agent on August 21, 2017” (doc. 207, p. 9). The Magistrate Judge instructed SEPH to file a fee petition and an affidavit in support. SEPH has now filed an affidavit of counsel along with counsel's time sheets in support of its request (doc. 207, p. 9, doc. 213). Therefore, the Court must first determine whether SEPH's attorney's fees in this contempt proceeding “are limited to those reasonably and necessarily incurred in the attempt to enforce compliance.” Abbott Laboratories v. Unlimited Beverages, Inc., 218 F.3d 1238, 1242 (11th Cir. 2000) (citing Rickard v. Auto Publisher, Inc., 735 F.2d 450, 458 (11th Cir.1984)); In re Ocean Warrior, Inc., 835 F.3d 1310, 1318 (11th Cir. 2016) (same).

         As an initial consideration, SEPH submitted time sheets showing entries for work performed and time expended by its counsel from September 27, 2017 through January 29, 2018. However, the Magistrate Judge recommended an award for the work performed and time expended after November 17, 2017, and this Court has adopted that recommendation. Thus, the Court will consider the entries from December 12, 2017 through January 29, 2018, which are the only time entries after November 17, 2017.

         During that time period, the entries show that SEPH's counsel reviewed the Magistrate Judge's orders and Report and Recommendation, conferred twice regarding service upon Green & Sons, LLC, reviewed motions that had been filed, attended the hearing on sanctions, researched case law on contempt and daily fines, reviewed the Federal Rules and local rules on fines, prepared a supplemental memorandum on sanctions with exhibits, and prepared the affidavit in support of the attorney's fees and costs. These attorney's fees were necessarily incurred in the attempt to enforce compliance. Abbott Laboratories, 218 F.3d at 1242.

         With respect to the reasonableness of the attorney's fees incurred, the “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.” Ela v. Destefano, 869 F.3d 1198, 1203 (11th Cir. 2017) (quoting Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (per curiam) (internal quotation marks omitted)). “This number is called the lodestar and ‘there is a “strong presumption” that the lodestar is the reasonable sum the attorneys deserve.'” Id. “In determining whether the lodestar is reasonable, ‘the [district] court is to consider the 12 factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).'” Id. After calculating the lodestar, “[t]he court may then adjust the lodestar to reach a more appropriate attorney's fee[.]” Association of Disabled Americans v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006).

         The twelve Johnson factors are as follows:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of 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.

Ballantine v. BancorpSouth Bank, 2018 WL 348008, at *4 (N.D. Ala. Jan. 10, 2018) (slip copy) (citing Johnson, 488 F.2d at 717-19). “Many of the Johnson factors ‘are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.'” Ballantine, 2018 WL 348008, at *4 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 n.9 (1983)).

         In this circuit, 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.” Danubis Grp., LLC v. Landmark Am. Ins. Co., 685 Fed.Appx. 792, 803 (11th Cir. 2017) (citing Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)). Counsel for SEPH did not provide the Court with any information as to the prevailing market rate. Instead, SEPH's counsel asserts that his regular hourly rate for commercial collection matters is $200.00. However, the Court is aware that counsel has been practicing since 1992[2] and in this Court, primarily practices in the area of commercial debt collection and business litigation.

         Based on the straightforward aspect of this contempt proceeding, which did not present any novel or difficult questions, the experience or ability required to prepare and present a motion for sanctions, and based upon its own experience with respect to the customary fee in this legal community, the Court finds $200.00 per hour is a reasonable hourly rate for an attorney practicing in the Mobile, Alabama area in commercial debt collection with approximately 26 years of experience. See Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (“A court, however, ‘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.'”) (citing Norman, 836 F.2d at 1302); see Lifeline Pharmaceuticals, LLC v. Hemophilia Infusion Managers, LLC, 2012 WL 2600181, at *3 (S.D. Ala. July 5, 2012) (utilizing a rate of $275.00 per hour for three partners with 12 years, 20 years, and 30 years of experience, respectively, in commercial litigation).

         With respect to hours of work reasonably expended, SEPH's counsel reviewed the Magistrate Judge's orders and Report and Recommendation, conferred twice regarding service upon Green & Sons, LLC, reviewed motions that had been filed, attended the hearing on sanctions, researched case law on contempt and daily fines, reviewed the Federal Rules and local rules on fines, prepared a supplemental memorandum on sanctions with exhibits, and prepared the affidavit in support of the attorney's fees and costs. Counsel expended a total of 13.40 hours during the relevant time period from December 12, 2017 through January 29, 2018. The Court finds that the work performed and the time expended is reasonable in consideration of the procedural and legal posture of this civil contempt matter.

         Multiplying the hours reasonably expended by the reasonable hourly rate yields a lodestar of $2, 680.00. The Court finds that no adjustment is necessary. The lodestar adequately reflects the time and labor involved, the novelty or difficulty of the matter before the Court, the requisite skill, experience and ability of counsel, and the result obtained. Accordingly, the reasonable attorney's fee is set at $2, 680.00. See Johnson v. TMI Management Systems, Inc., 2012 WL 4435304, *6 (S.D. ...


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