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d'Amico Dry d.a.c. v. Nikka Finance, Inc.

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

July 9, 2019

d'Amico Dry d.a.c., Plaintiff,
Nikka Finance, Inc., as owner of M/V SEA GLASS II, Defendant.



         This matter is before the Court on Plaintiff d'Amico Dry d.a.c.'s Motion for Attorneys' Fees, [1] (Doc. 203), Defendant Nikka Finance, Inc.'s Response, (Doc. 210), and d'Amico's Reply, (Doc. 215). In March, the Court, following a nonjury trial, found in d'Amico's favor. Specifically, the Court found that Nikka was Primera Maritime Limited's alter ego. (Doc. 192).

         At the conclusion of litigation in the United States District Court for the Southern District of New York (“the New York action”), the District Court found in d'Amico's favor. D'Amico Dry D.A.C. v. Primera Mar. (Hellas) Ltd., 348 F.Supp.3d 365, 368 (S.D.N.Y. 2018), reconsideration denied, No. 09-CV-7840 (JGK), 2019 WL 1294283 (S.D.N.Y. Mar. 20, 2019). When d'Amico moved for attorneys' fees and costs, the District Court granted the motion in all respects save for fees and costs incurred during an action in Texas and the present action (“the Mobile action”). Instead, the District Court “defer[red] to the Southern District of Alabama Court . . . to determine whether the plaintiff's costs in that action are reasonable and recoverable.” D'Amico Dry d.a.c. v. Primera Maritime (Hellas) Limited, No. 1:09-cv-07840-JGK (Doc. 376 at 5); 2019 WL 1863789, at *2 (S.D.N.Y. Apr. 24, 2019).

         D'Amico now moves for legal fees related to this action. Nikka opposes the request, arguing d'Amico is not entitled to any fees or costs as a matter of law and that d'Amico's $851, 885.02 request is unreasonable.[2] (The total now requested has increased to $872, 844.52 to account for the fees incurred in preparing the present motion.) The Court concludes that although d'Amico is entitled to attorneys' fees and costs, the attorneys' fees requested are unreasonably high.


         Courts within the Eleventh Circuit generally apply the lodestar method-multiplying the hours reasonably expended by a reasonable hourly rate-to calculate attorneys' fees. Norman v. Hous. Auth., 836 F.2d 1292, 1299 (11th Cir. 1988). The 12 factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), may aid the Court in that regard. Norman, 836 F.2d at 1299. Those factors include:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the 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.

Ass'n of Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359 n.1 (11th Cir. 2006) (citing Johnson, 488 F.2d at 717-19). “Courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded.” Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999).

         a. Reasonable Rate

         The Eleventh Circuit has instructed that 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.” Norman, 836 F.2d at 1299. In this case, the relevant legal community is Mobile, Alabama. Barnes, 168 F.3d at 437 (quoting Cullens v. Georgia Dep't. of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994)) (providing that “the ‘relevant market' for purposes of determining the reasonable hourly rate for an attorney's services is ‘the place where the case is filed[]'”). As the party requesting fees, d'Amico bears the burden of supplying the Court with specific and detailed evidence from which the Court can determine the reasonable hourly rate for the work performed. Barnes, 168 F.3d at 427 (citing Norman, 836 F.2d at 1303). “Satisfactory evidence at a minimum is more than the affidavit of the attorney performing the work.” Norman, 836 F.2d at 1299.[3] The Court, which is familiar with the prevailing rates in the local market, may act as its own expert and rely on its “knowledge and experience” to determine the reasonableness and propriety of the requested rates. Norman, 836 F.2d at 1303. This Court's prior awards are relevant and instructive in determining whether the “requested rate is in line with prevailing market rates” in this district for attorneys of reasonably comparable skill, experience, and reputation to the attorney seeking an award of fees. Langford v. Hale Cty. Ala. Comm'n, 2016 WL 4976859, *3 (S.D. Ala. Sept. 16, 2016).

         b. Hours Reasonably Expended

         In determining the reasonableness of the number of hours expended, the Court should not include any hours that are “excessive, redundant, or otherwise unnecessary.” Norman, 836 F.2d at 1301 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The Court will not permit a party to recover fees for 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). To determine whether the request is reasonable, courts should consider the Johnson factors. Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). And if a court concludes that the number of hours expended is unreasonably high, it may “conduct an hour-by-hour analysis or it may reduce the requested hours with an across-the-board cut.” Id. For when- such as here-a voluminous request is made, “an hour-by-hour review is simply impractical and a waste of judicial resources.” Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994). It is in these instances “where the fee motion and supporting documents are so voluminous, it is sufficient for the court to provide a concise but clear explanation of its reasons for the reduction, ” id., and the court may reduce the hours sought with an across-the-board reduction. See Padurjan v. Aventura Limousine & Transp. Serv., Inc., 441 Fed.Appx. 684, 687 (11th Cir. 2011) (holding that the district court did not err in “effecting broad percentage-based deductions to the hours expended”); see also Villano v. City of Boynton Beach, 254 F.3d 1302, 1311 (11th Cir. 2001) (“Appellant submitted 569.30 hours for compensation. Those hours are extensive enough that we do not expect the district court or the magistrate judge to conduct an hour-by-hour analysis in this case.”); Garrett Investments, LLC v. SE Prop. Holdings, LLC, 956 F.Supp.2d 1330, 1344 (S.D. Ala. 2013) (reducing request for attorneys' fees by 10%); SE Property Holdings, LLC v. Green, 2013 WL 790902, *6 (S.D. Ala. Mar. 1, 2013) (15% across-the-board reduction for clerical tasks performed by attorneys or paralegals, excessive billing for intra-office conferences among timekeepers, premature preparation of litigation documents never filed, and billings for monthly status reports); Norman v. Alorica, Inc., 2012 WL 5452196, at *7 (S.D. Ala. Nov. 7, 2012) (imposing a 50% across-the-board cut); United States v. Adkinson, 256 F.Supp.2d 1297, 1316 (S.D. Fla. 2003) (reducing hours by 20% due to their excessive nature).

         II. ANALYSIS

         a. Nikka's General Arguments Against Attorneys' Fees and Costs

         Nikka argues d'Amico is not entitled to recover any of the attorneys' fees and costs it incurred during the pendency of the Mobile action. Three arguments underlie this broad contention. The arguments include: (1) attorneys' fees for the Mobile action are not part of the New York judgment and cannot be awarded in an action for security to enforce the New York judgment; (2) the English judgment is time-barred and unenforceable; and (3) neither the English judgment nor the ISDA Master Agreement provides for legal fees. The Court has already addressed the second sub-argument and will not revisit it.

         As for the third argument, the Court finds, consistent with the Southern District of New York, that the Master Agreement provides for the legal fees. See D'Amico Dry d.a.c. v. Primera Mar. (Hellas) Ltd., No. 09-CV-7840 (JGK), 2019 WL 1863789, at *1 (S.D.N.Y. Apr. 24, 2019) (first internal citation omitted) (“The English Judgment expressly provides that the defendants will indemnify the plaintiff for ‘all reasonable out-of-pocket expenses, including legal fees . . . incurred by the [plaintiff] by reason of the enforcement and protection of its rights under this Agreement, including . . . costs of collection.' Section 11 of the ISDA Master Agreement states ...

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