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American Southern Insurance Co. v. Peavy Construction Co., Inc.

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

June 4, 2019

PEAVY CONSTRUCTION COMPANY, INC., JOHN R. PEAVY, AND KATHLEEN PEAVY, Individually, Separately and Severally, Defendants.


          Callie V. S. Granade, Senior United States District Judge.

         This matter is before the Court on Plaintiff American Southern Insurance Company's (“ASIC's”), Final Accounting of Attorneys' Fees (Doc. 41). Plaintiff seeks and award of attorneys' fees in the amount of $28, 070.12. Upon consideration of the petition and exhibits presented unto the Court, the petition is GRANTED and Plaintiff is awarded attorneys' fees in the amount of $28, 070.12.

         I. The Attorney's Fee Standard

         This Court has previously determined that Plaintiff is entitled to an award of attorney's fees. (Doc. 40). Additionally, Defendant was given an opportunity to object to the final accounting of attorneys' fees submitted by Plaintiff but made no such objection. Therefore, the Court will determine whether the amount sought by Plaintiff is reasonable.

         Generally, “[t]he starting point for calculating a reasonable attorney's fee is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate” for the attorney's services. Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). To make this determination, the district court should consider the relevant factors among the twelve factors identified in Johnson v. Georgia Highway Express, Inc.[1] Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (citing Johnson, 488 F.2d 714, 717-719 (5th Cir. 1974)). The product of these two numbers is referred to as the “lodestar” and there is a strong presumption that the lodestar represents a reasonable fee. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010).

         After calculating the lodestar, “[t]he court may then adjust the lodestar to reach a more appropriate attorney's fee, based on a variety of factors, including the degree of the plaintiff's success in the suit.” Assoc. of Disabled Americans v. Neptune Designs, Inc., 469 F.3d 1357, 1359 n.1 (11th Cir. 2006). “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.” Bivins, 548 F.3d at 1350-51; Cf. Mock v. Bell Helicopter Textron, Inc., 456 Fed.Appx. 799, 802 (11th Cir. 2012) (affirming a 25% reduction for lack of success in an ADEA action). The presumption that the lodestar is reasonable “may be overcome” and the lodestar enhanced “in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.” Perdue, 559 U.S. at 554 (citations omitted). The fee applicant “must produce specific evidence” that the “enhancement was necessary to provide fair and reasonable compensation.” Perdue, 559 U.S. at 553 (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 1349 (citing Burlington v. Dague, 505 U.S. 557, 562-563 (1992); Perdue, 559 U.S. at 553 (“an enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation.”); Barnes v. Zaccari, 592 Fed.Appx. 859, 871 (11th Cir. 2015) (citing Bivins, 548 F.3d at 1349).

         A. Reasonable hourly rate

         The reasonable hourly rate is generally “the prevailing market rate in the legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895-896 n. 11, 104 S.Ct. 1541 (1984); Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The “relevant market” is the “place where the case is filed.” American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999) (citation and internal quotation marks omitted). 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. In determining a reasonable hourly rate, Johnson factors three and nine-“the skill requisite to perform the legal service properly” and “the attorney's experience, reputation and ability”-may be considered. Further, although the Court does not give controlling weight to prior awards, those awards are relevant and instructive in determining whether the “requested rate is in line with prevailing market rates” in this judicial district for attorneys of reasonably comparable skill, experience, and reputation to that of Ladenheim seeking an award of fees. Norman, 836 F.2d at 1299. 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. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing Norman, 836 F.2d at 1303).

         Plaintiff seeks attorneys' fees for the efforts of its counsel, Brian Miller of Brown & Ruprecht, PC, formerly of Wright & Green P.C, and James P. Green of Wright & Green P.C. for the time they spent litigating this action from April 2016 to April 2019. (Docs. 41, 41-1, 43, 43-1, 43-2). Plaintiff's counsel seek an hourly rate of $190.00. Initially, in support of its request, ASIC referred to copies of the checks paid to Wright Green, P.C in the amounts of $2, 094.39, $8, 004.50, and $2, 511.08 for its representation of ASIC from August 2017 to November 2018 (Doc. 35-1 at 54-57) and Mr. Miller submitted an Affidavit and an itemization of the hours he billed with the description of the work performed from January 2019 to April 2019 and that amount totals $12, 781.15. (Docs. 41; 41-1). According to the pleading and Affidavit ASIC sought $28, 070.12 in attorney's fees. (Id.) However, upon review of the documents submitted, this Court ordered ASIC to supplement its final accounting so that this Court could determine the reasonableness of the total amount of fees sought, not just the amount sought from January 2019 to April 2019. (Doc. 42). In response, ASIC resubmitted its motion seeking $28, 070.12 in attorneys' fees along with an amended Affidavit of Mr. Miller and an itemization of the hours billed by both Mr. Miller and Mr. Green from April 2016 to April 2019. (Doc. 43-1). The Amended Affidavit indicates that the total amount of fees billed to ASIC was $33, 523.12. (Id.) No. mention is made of the difference in the fees sought and the fees calculated per the Amended Affidavit and supporting itemization and the final accounting filed by Plaintiff.

         As to skill and experience, Miller has twenty four years' experience. (Doc. 41-1 at 1). Mr. Green was admitted to the Alabama bar in 1979. (Doc. 43-1). Mr. Miller attests that an hourly rate of $190 an hour is in accordance with the fees that are customarily charged by attorneys who handle similar claims in Mobile, Alabama. Again, Defendant has not objected to the amount of attorneys' fees being sought. Upon consideration of the relevant Johnson factors and the submissions of counsel and based on this Court's own knowledge and experience, the Court finds $190 per hour is a reasonable hourly rate.

         B. Hours reasonably expended

         “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. Therefore, a district court should not allow any hours which are “excessive, redundant, or otherwise unnecessary”, such as hours “that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel.” Norman, 836 F.2d at 1301 (emphasis omitted). “Redundant hours generally occur when more than one attorney represents a client”, although “they may all be compensated if they are not unreasonably doing the same work and are being compensated for the distinct contribution of each lawyer.” Id. at 1301-02.

         Generally, “[w]hen 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). If the district court employs an across-the-board cut, it must ‚Äúprovide a concise but clear ...

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