Haberman v. PNC Mortg. Co.
| Decision Date | 03 January 2013 |
| Docket Number | Case No. 4:11cv126. |
| Citation | 915 F.Supp.2d 800 |
| Parties | Steven W. HABERMAN v. PNC MORTGAGE COMPANY fka National City Mortgage Co. A Division of PNC Bank fka National City Bank. |
| Court | U.S. District Court — Eastern District of Texas |
OPINION TEXT STARTS HERE
William Leonard Manchee, Manchee & Manchee LLP, Dallas, TX, Sylvia A. Goldsmith, Law Office of Sylvia Goldsmith, Avon, OH, for Steven W. Haberman.
David Arthur Oliver, Jr., Paul Brown Kerlin, Latosha Terrell Lewis Payne, Vorys Sater Seymour & Pease, Houston, TX, for PNC Mortgage Company.
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS
Pending before the Court is Plaintiff's Motion for Attorneys' Fees and Reimbursement of Litigation Expenses (Dkt. # 79, # 80). After considering the relevant pleadings, the Court finds that the motion should be granted in part.
The Court may award reasonable attorneys' fees for any “successful action” to enforce liability under the Fair Credit Reporting Act (“FCRA”). 15 U.S.C. §§ 1681n, 1681 o. The computation of a reasonable attorneys' fee award is a two-step process. Rutherford v. Harris County, Texas, 197 F.3d 173, 192 (5th Cir.1999) (citation omitted). First, the court must utilize the “lodestar” analysis to calculate a “reasonable” amount of attorneys' fees. Id. The “lodestar” is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. Id. Second, in assessing the “lodestar” amount, the court must consider the twelve Johnson factors before final fees can be calculated. Id.
The Johnson factors are:
(1) time and labor required; (2) novelty and difficulty of issues; (3) skill required; (4) loss of other employment in taking the case; (5) customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by client or circumstances; (8) amount involved and results obtained; (9) counsel's experience, reputation, and ability; (10) case undesirability; (11) nature and length of relationship with the client; and (12) awards in similar cases.
Id. at 192 n. 23 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.1974)).
After considering the twelve Johnson factors, the court may adjust the “lodestar” upward or downward. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir.1993). “If the plaintiff obtained limited success, the hours reasonably spent on the case times the reasonable hourly rate may be excessive.” Verginia McC v. Corrigan–Camden Indep. Sch. Dist., 909 F.Supp. 1023, 1032 (E.D.Tex.1995). “[T]he most critical factor” in determining the reasonableness of an attorney's fee award “is the degree of success obtained.” Giles v. Gen. Elec. Co., 245 F.3d 474, 491 n. 31 (5th Cir.2001) (quoting Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)); see also Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir.1998). “ ‘The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.’ ” Verginia McC, 909 F.Supp. at 1032 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).
The fee applicant bears the burden of proof on this issue. See Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir.1996); Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.1995). “Many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate and should not be double-counted.” Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir.1998) (internal citations omitted).
The United States Supreme Court subsequently barred any use of the sixth factor as a basis for enhancement of attorneys' fees. See Walker v. United States Dep't of Hous. & Urban Dev., 99 F.3d 761, 772 (5th Cir.1996) (citing City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)). In addition, three of the Johnson factors, complexity of the issues, results obtained and preclusion of other employment, are fully reflected and subsumed in the lodestar amount. Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir.1999). “[T]he court should give special heed to the time and labor involved, the customary fee, the amount involved and the result obtained, and the experience, reputation and ability of counsel.” Migis, 135 F.3d at 1047 (citation omitted).
The lodestar is presumptively reasonable and should be modified only in exceptional cases. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.1993). The fee-seeker must submit adequate documentation of the hours reasonably expended and of the attorney's qualifications and skill, while the party seeking reduction of the lodestar must show that a reduction is warranted. Hensley, 461 U.S. at 433, 103 S.Ct. 1933;Louisiana Power & Light Co., 50 F.3d at 329.
A. Lodestar1. Hours Expended
The Plaintiff seeks $130,605.00 in attorneys' fees for 530.8 hours expended. The hours expended are divided as follows:
+--------------------------------------------------+
¦ ¦Sylvia Goldsmith ¦318 hours ¦
+-----+------------------------------+-------------¦
¦ ¦Bill Manchee ¦10.3 hours ¦
+-----+------------------------------+-------------¦
¦ ¦Jim Manchee ¦50.9 hours ¦
+-----+------------------------------+-------------¦
¦ ¦Geoff McCarrell ¦150.5 hours ¦
+-----+------------------------------+-------------¦
¦ ¦Paralegal(s) ¦1.2 hours.1 ¦
+--------------------------------------------------+
For the reasons stated below, counsel expended an unreasonable number of hours on this case.
Having reviewed Ms. Goldsmith's time records, the Court finds that the hours of attorney time purportedly expended in this case are within the range of reasonableness for the tasks performed in connection with this litigation.
Bill Manchee expended 10.3 hours on this case, 6.5 which were expended on preparing client for his deposition and attending the deposition. Although not unreasonable on its own, Bill Manchee's efforts were duplicative of Ms. Goldsmith's efforts. Based on the foregoing, the Court finds that a more reasonable expenditure of time for Bill Manchee was 3.8 hours.
Jim Manchee expended 50.9 hours in this case, 26.5 which were as follows: meeting with Ms. Goldsmith and associate a regarding a motion to compel; picking Ms. Goldsmith up from hotel and traveling to Sherman; attending hearing on motion to compel; and traveling back to Dallas and taking Ms. Goldsmith and associate to office; meeting with client for mediation; meeting with Ms. Goldsmith and client in preparation for trial and trial. Although not unreasonable on its own, Jim Manchee's efforts were duplicative of Ms. Goldsmith's efforts. Based on the foregoing, the Court finds that a more reasonable expenditure of time for Jim Manchee was 24.4 hours.
Geoff McCarrell expended 150.5 hours in this case. Having reviewed Mr. McCarrell's time records, the Court finds that the hours of attorney time purportedly expended in this case are within the range of reasonableness for the tasks performed in connection with this litigation. 2
Having reviewed the paralegal's time records, the Court finds that the hours of paralegal time purportedly expended in this case are within the range of reasonableness for the tasks performed in connection with this litigation.
2. Prevailing Hourly Rate
Based on affidavits submitted to the Court, the attorneys seek to be compensated at the following hourly rates:
+-------------------------------------------+
¦ ¦Sylvia Goldsmith ¦$350/hour¦
+-----+---------------------------+---------¦
¦ ¦Bill Manchee ¦$350/hour¦
+-----+---------------------------+---------¦
¦ ¦Jim Manchee ¦$300/hour¦
+-----+---------------------------+---------¦
¦ ¦Geoff McCarrell ¦$225/hour¦
+-----+---------------------------+---------¦
¦ ¦Paralegal ¦$120/hour¦
+-------------------------------------------+
Defendant does not contest the hourly rates requested. Based on their respective levels of experience, the Court finds that the hourly rates submitted in this case are reasonable.
Accordingly, pursuant to the lodestar analysis, the attorneys' fees are as follows:
1. Sylvia Goldsmith—318 hours x $350/hour = $104,692.50 3; 2. Bill Manchee—3.8 hours x $350/hour = $1,330;
3. Jim Manchee—24.4 hours x 300/hour = $7,320;
4. Geoff McCarrell—150.5 hours x 225/hour = $11,745 4; and
5. Paralegal—1.2 hours x 100/hour = $120.
The total lodestar amount is $125,207.50.
B. The Johnson Factors
In analyzing the Johnson factors, the Court finds that the requested fee is unreasonable. However, the Court finds that the reduced fee under the lodestar analysis is reasonable.
The time and labor required for this lawsuit should not have been excessive. However, the Court notes that the parties were contentious, resulting in a protracted discovery dispute.
This case involved claims under FCRA which required an attorney with specialized knowledge of credit reporting cases. The case did present a novel issue with regard to liability.
The Court finds that counsel were skilled and otherwise qualified to pursue this FCRA case.
Ms. Goldsmith argues that Plaintiff's counsel maintain small law practices and devoted a substantial amount of their time to this case and that the number of hours required to properly and diligently represent the interests of Plaintiff precluded other employment by counsel. However, “[t]his was not a complex case and should not have caused counsel to limit the number of cases counsel could handle at any given time.” Lewis v. Hurst...
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