United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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)).
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.
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). 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.
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.
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).
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.
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.” 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)).
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.
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.
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.
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 ...