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Whitesell Corp. v. Electrolux Home Products, Inc.

United States District Court, S.D. Georgia, Augusta Division

April 16, 2019




         On November 16, 2018, the Court determined that Plaintiff Whitesell Corporation had inappropriately attached a privileged document as an exhibit to a brief. (Doc. No. 1101.) At the conclusion of the Order, the Court invited Defendant Husqvarna Outdoor Products, Inc. to submit an application for fees and expenses. (Id. at 5.) On November 20, 2018, Husqvarna submitted its fee application now subject to the Court's review.

         An award of fees must be reasonable and fall within the guidelines the Eleventh Circuit has promulgated. See Norman v. Housing Auth. of Montgomery, 836 F.2d 1292 (11th Cir. 1988). The Eleventh Circuit has adopted the lodestar method for determining reasonable attorney's fees. Id. at 1299-1302. The "lodestar" is determined by multiplying an attorney's reasonable hourly rate by the number of compensable hours reasonably expended. Bivens v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). In determining the reasonable hourly rate and the number of hours reasonably expended, a court should consider the twelve Johnson factors.[1] Bivens, 548 F.3d at 1350 n.2 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

         Hours Reasonably Expended

         In determining the number of hours reasonably expended, the Court must consider whether the work sought to be compensated was "useful and of a type ordinarily necessary to secure the final result obtained from the litigation." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 561 (1986) (citations omitted). Courts must exclude hours that were "excessive, redundant, or otherwise unnecessary." Henslev v. Eckerhart, 461 U.S. 424, 434 (1989).

         In its submission, Husqvarna has included the work of two attorneys in the preparation of the "Expedited Motion for Determination of Attorney Client Privilege and to Strike Document Cited in Plaintiff's Court Filings''; in the review of Plaintiff's response and cited case law; in the preparation of its reply brief; and in the review of Plaintiff's sur-reply. Husqvarna also included the time spent in preparing and sending correspondence and emails to Plaintiff's counsel in an effort to persuade Plaintiff to voluntarily withdraw the privileged document prior to filing the "Expedited Motion."[2]Plaintiff has not filed any objection to the claimed hours or the hourly rate charged.

         Upon the Court's review, the number of the hours claimed in Husqvarna's fee application is reasonable. (See Decl. of R. Perry Sentell III, Ex. 1, Doc. No. 1105-1.) The Court will only exclude those hours claimed in preparation of the Fee Application, which are listed separately. (See id., Ex. 2.)

         Reasonable Hourly Rate

         A reasonable 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; see also Blum v. Stenson, 465 U.S. 886, 895-96 n.22 (1984). 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: the Southern District of Georgia, Augusta Division. See Kniaht v. Alabama, 824 F.Supp. 1022, 1027 n.l (N.D. Ala. 1993) (citing Turner v. Secretary 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. Loranaer v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). Two years ago, this Court set a reasonable billing rate in the Augusta market as $300 per hour. See Plumbers & Steamfitters Local No. 150 Pension Fund v. Muns Group, Inc., No. 1:l5-CV-200, Order of March 27, 2017, Doc. No. 37 (S.D. Ga. Dec. 16, 2015). This rate did not differentiate between a partner and an associate but the Court recognizes that years of experience and skill level are important factors in setting a rate.

         In this case, Husqvarna submits that R. Perry Sentell III, Esq., a partner in the law firm of Kilpatrick Townsend & Stockton, LLP, should be compensated at an hourly rate of $350. It further submits that its contract attorney, Laurel P. Landon, Esq., should be compensated at an hourly rate of $270. The Court observes that these rates are a fair reflection of the Augusta, Georgia legal market for the services rendered in this case and given the considerable experience of these attorneys (Mr. Sentell has been in practice for 30 years and Ms. Landon has been in practice for 25 years).


         Upon the foregoing, the Court finds the lodestar calculations as follows:

20.40 hours at $350.00/hour =
5.1 hours at $270.00/hour =

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