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Whitesell Corp. v. Electrolux Home Products, Inc.

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

April 17, 2019

WHITESELL CORPORATION, Plaintiff,
v.
ELECTROLUX HOME PRODUCTS, INC., HUSQVARNA, A.B., and HUSQVARNA OUTDOOR PRODUCTS, INC., Defendants.

          ORDER

          J. RANDAL HALL, CHIEF JUDGE

         On March 7, 2019, Defendant Husqvarna Outdoor Products, Inc. (``Husqvarna") submitted a Fee Application (doc. no. 1167) in accordance with the Court's Order of February 14, 2019, which granted Defendants' motion for sanctions in this case. The Order followed an evidentiary hearing conducted on February 11, 2019.

         The Fee Application includes: ``(1) the fees and expenses incurred in drafting and filing the Motion for Sanctions and to Stay the Joint Discovery Plan . . . and the attendant briefs; (2) the fees and expenses incurred in responding to Plaintiff s Motion to Stay Ruling on the Sanctions Motions and Motion to Strike the Sanctions Motions . . .; and (3) the fees and expenses incurred in preparing for and attending the February 11, 2019 hearing." (Fee Application, at 1.) The award of fees and expenses related to all these events was specifically sanctioned by the Court in its Order of February 14, 2019. (Doc. No. 1159, at 15.)

         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)).

         The Court prefaces its dive into the details of Husqvarna's fee application with the following observations based upon the Johnson factors, particularly considering the amount involved; the results attained; the experience, reputation and ability of the attorneys; the difficulty of the questions involved; the time and labor required; and the skill required to attain the result.

         Here, the result attained is the striking of Plaintiff's purported $50 million lost profits claim. While the difficulty in attaining this result may not be apparent on the strength of the Court's Order of February 14, 2019 alone, the Court is well aware of the history and nature of this discovery dispute - a history that is only borne out by a thorough reading of the lines and between the lines of multiple briefs and motions, discovery requests and responses, and statements of counsel at hearings over a period of time dating back to the summer of 2014. Further, this case on its face does not appear overly complex; it is but a breach of contract case. Yet, dealing in nuts, bolts, and screws is a multi-million dollar prospect as between these parties. The case itself is in its sixteenth year of litigation, the last six of which have been with the undersigned judge. I have presided over most of the discovery in the case, with the First Joint Discovery Plan adopted only a few months prior to my assignment to the case. (The Court has just entered the Eighth Joint Discovery Plan.) During the course of discovery, I found it necessary to conduct almost monthly hearings because of the number of hurdles and roadblocks thrown into the path of litigants on both sides of the ``v".[2] The discovery issues were often complicated because of the sheer number of parts at issue, the number of manufacturing and production facilities at issue, the various information technology systems that came and went over time, and the different enterprise resource planning systems used by the parties, not to mention the long passage of time between the parties' dealings and the discovery requests. Despite the Court's involvement and its quest for candor and completeness, the sanctionable conduct occurred.

         The difficulty for Defendants in prosecuting the motion for sanctions was exponentially increased by Plaintiff's obstinate adherence to its position that it was not required to produce the requested data. Plaintiff's posturing, particularly in brief, demonstrates a level of gamesmanship unseen by this judge in his almost 37 years at the bar. The disingenuousness displayed by Plaintiff throughout this sanctions process continues even into its "response" to Defendants' fee application in that Plaintiff maintains that it "produced all responsive cost information in its possession, custody, or control to the Defendants in response to the discovery requests" (Pl.'s Resp. and Objs. to Fee Applications, Doc. No. 1174, ¶ 8) in direct contravention to the Court's findings in its Order of February 14, 2019.[3]While the ruling may be "difficult to comprehend" for Plaintiff (see id. at ¶ 9 n.4), the Court struck the lost profits claim only after thoughtful and considered judgment and upon findings supported by record evidence as thoroughly explained in my comments, questions and findings at the hearing and in the resulting order.

         In short, the outcome attained is the result of fine lawyering, extensive argument, cogent presentation, and dogged determination and perseverance. It is also the right result, no matter the grave impact upon the sanctioned party. The Court is reminded of the Eleventh Circuit's observation in Norman: ``If the result was excellent, then the court should compensate for all hours reasonably expended.'' 836 F.2d at 1302. But while Plaintiff did not file a single objection to Defendants' claimed hourly rates or hours expended, the Court will nevertheless endeavor to conduct a fair and reasonable review of the fee application to produce an equitable award.

         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).

         Turning now to the submitted fee application, Husqvarna has employed two law firms that were actively involved in litigating its motion for sanctions. The law firm of Kilpatrick Townsend & Stockton LLP (``KTS") employed three attorneys for a total of 320.9 hours, claiming in total amount a fee of $107, 259.00. The law firm of DLA Piper LLP (``DLA") employed 3 attorneys and 3 staff members for a total of 560.70 hours, claiming in total amount a fee of $191, 620.00.

         Husqvarna does not provide a line item detailed account of every hour expended; rather, it groups its claim in four categories (relating to certain events or filings) with a detailed narrative of the type of work involved in that category. For example, Category One relates to hours expended in preparation of the motion for sanctions.[4]

         For each category, KTS utilized the services of two partners and one contract attorney. DLA also utilized the services of two partners and one associate for each category.

         That means that four experienced and reputable partners and two additional attorneys worked on every aspect of the sanctions proceedings. In the Court's estimation, this is excessive. Accordingly, the Court will only allow the fees of one partner and one associate (or contract attorney) per firm so that the ...


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