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LLC v. Bushnell Holdings, Inc.

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

June 7, 2019

HUNTER'S EDGE, LLC, Plaintiff,
v.
BUSHNELL HOLDINGS, INC. d/b/a PRIMOS, Defendant.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the District Judge's Opinion and Order (Doc. 65) adopting the undersigned's Recommendation (Doc. 62) that Defendant's Motion for Attorney's Fees (Doc. 56) be granted, and referring this matter back to the undersigned Magistrate Judge “for recommendation on the amount of attorneys' fees” to be awarded. Subsequently, Defendant Primos, Inc. (“Primos” or “Defendant”) filed their Brief Supporting Reasonableness of Attorneys' Fees (Doc. 68), and Plaintiff Hunter's Edge, LLC (“Hunter's Edge” or Plaintiff”) filed their Response (Doc. 69). Thus, the matter is fully briefed and is ripe for recommendation to the District Judge. For all of the following reasons, the undersigned Magistrate Judge hereby RECOMMENDS that Plaintiff shall pay Defendant's reasonable attorneys' fees in the amount of $32, 224.00.

         I. DISCUSSION

         Having already determined that Defendant is entitled to attorneys' fees due to the “exceptional” nature of this case, the Court must determine if the fees are reasonable. The starting point in any “reasonable fee” determination is the number of hours reasonably expended on the litigation multiplied by the reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). The resulting figure is known as the “lodestar.” Pa. v. Del. Valley Citizens Council II, 483 U.S. 711, 745 (1987) (“Delaware II”). The lodestar may thereafter be enhanced or reduced based on the results obtained or the risk of nonpayment. Delaware II, 483 U.S. at 745; Pa. v. Del. Valley Citizens Council I, 478 U.S. 546 (1986) (“Delaware I”). Where the objective sought was in fact obtained, the full lodestar amount should be awarded. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988). “If the result was excellent, then the court should compensate for all hours reasonably expended.” Id. at 1302 (citing Popham v. Kennesaw, 820 F.2d 1570, 1578 (11th Cir.1987)).

         In considering whether to adjust the lodestar amount upward or downward, a court may wish to consider any of the twelve factors enumerated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989); Hensley, 461 U.S. at 436. Enhancement of the lodestar, however, should only be made in exceptional cases where need and justification for such enhancement are readily apparent and supported by clear evidence of record. Delaware II, 483 U.S. at 728; see also Norman, 836 F.2d at 1302. A downward adjustment of the lodestar may be required when the party being awarded fees achieved only limited success or spent time on unsuccessful and unrelated claims. Hensley, 461 U.S. at 436. A further downward adjustment may be required for “excessive, redundant, or otherwise unnecessary” hours. Id. at 434.

         Defendant seeks a total of $144, 502.50 in attorney's fees for 479.9 hours of work from six attorneys and one paralegal whose experience, skill, and hourly rate each differed (average ranging from $225.00 for the least experienced attorney to $425.00 for the most experienced attorney, and $175.00 for the paralegal).[1] In particular, Defendant seeks fees for: (1) Brett L. Foster, a partner with approximately 24 to 27 years of experience during the relevant period who billed 179.5 hours at an average rate of $401.00 per hour; (2) L. Grant Foster, a partner with approximately 25 to 28 years of experience during the relevant period who billed 13.4 hours at an average rate of $425.00 per hour; (3) Phil W. Harris, an associate with approximately 2 and 5 years during the relevant period who billed 236.9 hours at an average rate of $225.00 per hour; (4) Ginger Utley, an associate with approximately 7 to 10 years of experience during the relevant period who billed 47.0 hours at an average rate of $284.00 per hour; (5) Sherri L. Stucki, a paralegal who billed 2.4 hours at an average rate of $175.00 per hour; (6) Mark A. Miller, a partner who billed 0.4 hours at an average rate of $395.00 per hour; and (7) Tamara L. Kapaloski, an associate who billed 0.3 hours at an average rate of $345.00 per hour. See Doc. 68-3 at 4-7.

         These attorneys performed a variety of services on the case, including, among others: reviewing the infringement allegations; preparation, review, and filing of the Answer, the initial and final infringement contentions, and other documents filed in the lawsuit; preparing and exchanging initial disclosures; discussions and correspondence with Defendant Primos, Inc. and local counsel; preparation and filing of the Defendant's motion for summary judgment and the reply in support; and preparation and filing of the Motion for Attorneys' Fees, as well as the brief in support of the reasonableness of the fees in question. Docs. 68 and 78. The Court has some concerns that the attorneys have provided redundant and excessive services and questions the reasonableness of the hourly rates Defendant seeks.

         First, in determining the reasonable hourly rate for the purpose of an attorneys' fees motion, the burden is on the moving party to establish the prevailing market rate, which is the rate charged in the community by lawyers of reasonably comparable skill, experience, and reputation for similar services. Blum v. Stenson, 465 U.S. 886, 895-96, n.11 (1984); NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987); Gaines v. Dougherty County Bd. of Educ., 775 F.2d 1565, 1571 (11th Cir. 1985); see also Simpleville Music v. Mizell, 511 F.Supp.2d 1158, 1162 (M.D. Ala. 2007) (citations omitted). “The relevant community for determining the range of prevailing market rates ‘is that of the place where the case is filed.'” Miller v. Kenworth of Dothan, Inc., 117 F.Supp.2d 1247, 1256 (M.D. Ala. 2000) (quoting Cullens v. Ga. Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994) (rejecting the plaintiffs' argument that “the relevant market for the hourly rate to be used in the computation of the lodestar figure” was Atlanta, Georgia, the situs to which the case was transferred, and holding that the district court did not err in examining hourly rates of attorneys in Macon, Georgia, the city where the cases was filed)). Since this case was filed in the Middle District of Alabama, Southern Division, the Court finds that Montgomery, Alabama, and its surrounding area is the relevant legal community that governs. See Black v. M.G.A., Inc., 51 F.Supp.2d 1315, 1321 (M.D. Ala. 1999) (finding that the relevant legal community for a case filed in the Middle District of Alabama, Southern Division, was Montgomery, Alabama, and declining to consider fees outside the district).

         “The decision regarding the appropriate hourly rate may be made either by analyzing the affidavits submitted by counsel or, if this documentation is insufficient, by relying upon the court's expertise.” Norman, 836 F.2d at 1303; Avirgan v. Hull, 705 F.Supp. 1544, 1549 (S.D. Fla. 1989). Satisfactory evidence of the market rate, however, requires more than the mere affidavit of the attorneys performing the work. Blum, 465 U.S. at 896. Also insufficient is testimony that a given fee is reasonable; evidence must be of rates actually billed and paid. Hensley, 461 U.S. at 439 n.15. This evidence may be adduced from charges of lawyers under similar circumstances or by opinion evidence. Norman, 836 F.2d at 1299. When analyzing the market rates being attested to, the Court may consider any of the twelve Johnson factors referred to previously. Delaware I, 478 U.S. at 564-69. One of those factors, the hourly rate normally charged by the applicant's counsel, has been deemed the logical starting place in any rate determination. Vaughns v. Bd. of Educ., 598 F.Supp. 1262 (D. Md. 1984), aff'd 770 F.2d 1244 (4th Cir. 1985); Zeffiro v. First Pa. Bank, N.A., 574 F.Supp. 443, 447 (E.D. Pa. 1983), aff'd without opinion, 746 F.2d 1469 (3d Cir. 1984); see also Fla. Pawnbrokers v. Ft. Lauderdale, 711 F.Supp. 1084, 1086-87 (S.D. Fla. 1989). Also considered probative are the rates billed in similar lawsuits and the relative skill of the attorneys involved. Norman, 836 F.2d at 1299.

         As mentioned above, Defendant seeks average hourly rates ranging from $225.00 per hour for the least experienced attorney, up to $425.00 per hour for the most experienced attorney. Doc. 68-3 at 7. While the Court recognizes that the rates provided are likely reasonable in Salt Lake City, Utah, and notes the highly specialized training and knowledge required of counsel in conducting a federal patent action, the Court cannot ignore the fact that it appears counsel's requested rates are based on the markets in which they practice and not the prevailing market rate, which, in this case, is that of Montgomery, Alabama. Simpleville Music, 511 F.Supp.2d at 1163 (citing Black, 51 F.Supp.2d at 1320-21 (“The rate of attorney's fees is that of the place where the case is filed.”) (quoting Cullens, 29 F.3d at 1494). “In the Middle District of Alabama, skilled lawyers with twenty years or more experience may expect to receive $300 [to $375] an hour, lawyers with ten years or more experience may receive between $200 and $250 an hour, and associates may expect to receive $150-185 an hour.”[2] Morrison v. Veale, 2017 WL 6388960, at *4-5 (M.D. Ala. Dec. 14, 2017) (citing Weekes-Walker v. Macon Co. Greyhound Park, Inc., 31 F.Supp.3d 1354, 1360 (M.D. Ala. 2014); Alfa Corp. v. Alfa Mortg., Inc., 560 F.Supp.2d 1166, 1180 (M.D. Ala. 2008); Simpleville Music, 511 F.Supp.2d at 1163; and Gaylor v. Comal Credit Union, 2012 WL 1987183 (M.D. Ala. June 1, 2012)).

         Applying these ranges here, the Court limits the rates requested to what is reasonable in Montgomery market. Thus, the Court limits (1) Brett L. Foster's rates to $375.00 per hour; (2) L. Grant Foster rates to $375.00 per hour; (3) Phil W. Harris' rates to $160.00 per hour; and (4) Ginger Utley's rates to $185.00 per hour.[3]

         Next, the Court must determine the number of hours reasonably expended on the litigation. As previously stated, in evaluating Defendant's attorneys' fees, the Court applies the “lodestar” method of multiplying the number of hours reasonably expended on the litigation by the customary fee charged in the community for similar legal services. Hensley, 461 U.S. at 433-34; Ass'n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006). The fee applicant bears the burden of “establishing entitlement and documenting the appropriate hours and hourly rates.” Norman, 836 F.2d at 1303. To satisfy this burden, the fee applicant shall provide: (1) specific and detailed evidence from which it can determine the reasonable hourly rate for the community and (2) records evidencing time spent on different claims and setting out with sufficient particularity the general subject matter of the time expenditures so that the court can assess the time claimed for each activity. Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999).

         The Court has carefully reviewed the time expenditures submitted by the Defendant. Doc. 78. Defendant seeks a total of $144, 502.50 in attorneys' fees for 479.9 hours of work completed by six attorneys and one paralegal. Plaintiff argues that “[t]he amount of hours expended by defense attorneys on this litigation was not reasonable and included duplication of efforts, excessive time devoted to research and briefing given the simple nature of the case, and the fact that it was disposed of very quickly.” Doc. 70 at 1. The Plaintiff further avers that Defendant's attorneys' fees should be reduced due to the “simple nature of this litigation, ” which involved extremely minimal exchange of discovery (due to the fact that this case involved legal, rather than factual issues), no use of expert witnesses, and no trial or trial preparation. Indeed, this case presented pure questions of law and simply involved an exchange of dispositive motions on the legal issues.” Doc. 70 at 3, 5. Additionally, the Plaintiff notes that this case only involved two hearings that each lasted less than fifteen minutes. Doc. 70 at 5.

         A party moving for attorney's fees must exercise “billing judgment.” Hensley, 461 U.S. at 434. Billing judgment means that the attorneys “must exclude from their fee applications ‘excessive, redundant, or otherwise unnecessary [hours],' which are 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.'” Am. Civil Liberties Union of Ga., 168 F.3d at 428 (quoting Hensley, 461 U.S. at 434; Norman, 836 F.2d at 1301) (emphasis in original). “Courts are not authorized to be generous with the ...


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