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Raiford v. National Hills Exchange, LLC

United States District Court, Southern District of Georgia, Augusta Division

January 14, 2015

J. WAYNE RAIFORD and B, T & R ENTERPRISES, LLC, Plaintiffs,
v.
NATIONAL HILLS EXCHANGE, LLC; SNELLVILLE CROSSING, LLC; RICHARD D. SWOPE; RONALD J. DeTHOMAS; JAMES S. TIMBERLAKE; THOMAS L. ABERNATHY; and STEVEN E. GAULTNEY, Defendants.

ORDER

J. RANDAL HALL JUDGE

This matter is before the Court on RBS Consulting, LLC's ("RBS") Bill of Costs (Doc. 172) and Defendants' objections to that statement of costs (Doc. 173). On November 17, 2014, the Court held a hearing on Plaintiffs' Motion for Order to Show Cause (Doc. 163) . In that motion, Plaintiffs asked the Court to make RBS, a computer forensics firm retained by Plaintiffs to conduct an audit that the Court authorized as a sanction against Defendants, appear and substantiate its billing records. (Doc. 136; see also Doc. 139.) RBS appeared at the hearing and, through counsel, consented to the Court's jurisdiction for the purpose of resolving the billing and discovery dispute. (FTR Recording System ("FTR") at 10:51:28 - 53:05, 3:21:12.)

After fully considering the parties' filings and oral arguments, including those presented by RBS, the Court found no evidence to suggest that the bills submitted by RBS for Phase I of the audit were unreasonable. (FTR at 3:21:51 - 24:35; 3:25:25 -25:57.) Given the escalating costs of the audit and both parties' failure to exercise proper diligence at the commencement of this undertaking (id. at 3:17:45 - 19:22), the Court imposed several conditions on the payment of (1) outstanding invoices, (2) future invoices, and (3) RBS's costs associated with the November 17, 2014 hearing, including preparation time, expenses, and attorney's fees. (Doc. 171 at 2.) Specifically, as to the hearing costs and expenses, the Court ordered the parties to reimburse RBS in equal shares. (Id.)

RBS, through its attorney John C. Dabney, has submitted to the Court a request and supporting documentation for $39, 485.56 in I attorney's fees, witness fees, and expenses. (Doc. 172 at 1.) Defendants object to this figure on four grounds. First, Defendants contend that Mr. Dabney's rate of $400.00 per hour is excessive and must be reduced to the prevailing rate for this district. (Doc. 173 at 1.) Second, Defendants assert that the Court should disallow entirely the expenses submitted for Richard Pengelly, an RBS employee who traveled to testify at the hearing, because his appearance was "unnecessary and duplicative." (Id. at 2.) Third, Defendants assert that the need for the hearing in the first place was precipitated by RBS when it "enter[ed] into an undefined contractual arrangement with the Plaintiff law firm" and submitted "sketchy and incomplete" records. (Id. at 2, 3.) They request that RBS's "costs should be reduced by an amount that the Court determines reflects the responsibility ... of RBS." (Id. at 3.) Finally, Defendants argue that RBS "block billed" its time and improperly "rounded up to the total hour or half hour." (Id. at 3.) The Court will address Mr. Dabney's proposed expenses and RBS's proposed expenses separately.

DISCUSSION

A. Attorney's Fees

"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." Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (internal quotations omitted). In determining what is a "reasonable" hourly rate and what number of compensable hours is "reasonable, " the court must consider the twelve factors[1] enumerated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Id. The product of these two figures is the "lodestar." Id. After calculating the lodestar, the Court may then consider whether it should be adjusted upwards or downwards. Norman v. Hous. Auth., 836 F.2d 1292, 1302 (11th Cir. 1988); Lambert v. Fulton Cnty., 151 F.Supp.2d 1364, 1369 (N.D.Ga. 2000). "The fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman, 836 F.2d at 1303. The Court should also be mindful that a request for attorney's fees "should not result in a second major litigation." Id.

1. Reasonable Hourly Rate

"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." Id. at 1299. The "going rate" in the community is the most critical factor in setting the fee rate. Martin v. Univ. of S. Ala., 911 F.2d 604, 610 (11th Cir. 1990) . The relevant legal community is the district in which the court sits. Knight v. Alabama, 824 F.Supp. 1022, 1027 n. 1 (N.D. Ala. 1993) (citing Turner v. Sec'y of Air Force, 944 F.2d 804, 808 (11th Cir. 1991)). Because the Court is itself considered an expert on hourly rates in the community, it may consult its own experience in forming an independent judgment. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) .

Mr. Dabney seeks an hourly rate of $400.00 per hour, which Defendants contest as unreasonable. This Court has previously approved $250.00 per hour as a reasonable billing rate in the Augusta legal market. See Guzman v. Consumer Law Grp. et al., No. 1:11-cv-187, Doc. 91 (S.D. Ga. Nov. 6, 2012); Johnson v. YKK Am., Inc., No. 3:07-cv-048/ Doc. 171 (S.D. Ga. Apr. 29, 2010); Ingram v. Kellogg's Sales Co., No. l:09-cv-021 Doc. 39 (S.D. Ga. Feb. 24, 2010); Salazar v. Milton Ruben Chevrolet, Inc., No. 1:06-cv-195, Doc. 86 (S.D. Ga. Mar. 6, 2009). More recently, in recognizing that two years have passed since the Court assessed the above-mentioned cases, the Court approved $275.00 per hour as a reasonable billing rate. M.I.T., Inc. v. Medcare Express, N. Charleston, LLC et al., No. 1:14-cv-081, Doc. 12 (S.D. Ga. Oct. 14, 2014). Indeed, in this case, the Court limited Plaintiffs' counsel's recovery to $275.00 per hour when it issued sanctions. (See Doc. 166 at 4-5.) Upon consideration of the relevant legal market, the underlying discovery and billing dispute at issue, and Mr. Dabney's experience and expertise, the Court likewise sets his billing rate at $275.00 per hour.

2. Hours Reasonably Expended

When exercising proper "billing judgment, " attorneys must exclude excessive, redundant, or otherwise unnecessary hours from fee applications. ACLU of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999). "[H]ours excluded are those that would be unreasonable to bill a client" without reference to the skill, reputation, or experience of counsel. Norman, 836 F.2d at 1301. " [A] lawyer may not be compensated for hours spent on activities for which he would not bill a client of means who was seriously intent on vindicating similar rights, recognizing that in the private sector the economically rational person engages in some cost benefit analysis." Id. The decision to prune hours, if necessary, is squarely within the Court's discretion. Columbus Mills v. Freeland, 918 F.2d 1575, 1580 (11th Cir. 1990) (citing Norman, 936 F.2d at 1301).

Mr. Dabney submitted an itemized record of the time he attributed to the hearing on Plaintiffs' Motion for Order to Show Cause. (Doc. 172, Ex. D.) The first timesheet covers the period between October 8, 2014, the date on which Mr. Dabney held an "initial client conference" with RBS about preparing a demand letter with respect to the parties' outstanding audit bills, and November 3, 2014. (See id. at 1-2.) The second timesheet covers the period between November 5, 2014 and November 17, 2014, the date of the hearing. (See id. at 5-6.) Over the course of both periods, Mr. Dabney spent 40.3 hours:

• reviewing RBS's billing records, the body of corresponding e-mails between the parties with respect to the forensic audit, and the parties' filings with ...

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