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reducing excessive request for hours by 25%
Summary of this case from Lyn-Lea Travel Corp. v. American AirlinesOpinion
No. 3:97-CV-2371-P.
March 10, 2000.
MEMORANDUM OPINION AND ORDER
Now before the Court are:
1) Plaintiffs' Motion for Leave to Conduct Limited Discovery of Defendants' Attorney Fees and Expenses;
2) Defendants' Response to Plaintiff's Motion for Leave to Conduct Limited Discovery of Defendants' Attorneys' Fees and Expenses;
3) Defendants' Rule 59 Motion for New Trial, Rule 52 Motion to Amend Findings of Fact, and Brief in Support Thereof;
4) Plaintiffs' Response to Defendants' Rule 59 Motion for New Trial and Rule 52 Motion to Amend Findings of Fact;
5) Defendants' Motion to Renew Request for Judgment as a Matter of Law Pursuant to Rule 50 and Brief in Support Thereof;
6) Plaintiffs' Response to Defendants' Motion to Renew Request for Judgment as a Matter of Law Pursuant to Rule 50;
7) Plaintiffs' Application for Award of Attorneys Fees;
8) Defendants' Response to Plaintiffs' Application for Award of Attorney Fees;
9) Baxter's Reply Brief to Defendants' Response to Plaintiffs' Fee Application Pursuant to Rule 54(d) with Supplemental Affidavit of Gary M. Vodicka in Support of Fee Application;
10) Motion to Review the Taxation of Costs Brief in Support Thereof;
11) Plaintiffs' Response to Defendants' Motion to Review the Taxation of Costs; and
12) Defendants' Reply to Plaintiffs' Response to Defendants' Motion to Review the Taxation of Costs.
Having considered the arguments and authorities presented, and the papers on file in the instant action, the Court sets forth its following rulings and opinions:
I.
Plaintiffs' Motion for Leave to Conduct Limited Discovery of Defendants' Attorney Fees is DENIED.
II.
Defendants' Rule 59 Motion for New Trial, Rule 52 Motion to Amend Findings of Fact is DENIED. The purpose of a motion pursuant to Rule 59 and Rule 52 is to correct manifest errors of law or fact, or, in some limited circumstances, to allow the party to present newly discovered evidence. See Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986); Wallace v. Brown, 485 F. Supp. 77, 78 (S.D.N.Y. 1979). However, Rule 59 and Rule 52 Motions should not be used to introduce evidence that was available at the time of trial, to re-litigate old issues, advance new theories, or secure a rehearing on the merits of the case. Fontenot, 791 F.2d at 1219; Wallace, 485 F. Supp. at 78. The Court does not find manifest errors of law or fact in this case and Defendants fail to present any newly discovered evidence that would entitle them to the requested relief.
III.
Defendants' Motion to Renew Request for Judgment as a Matter of Law Pursuant to Rule 50 is DENIED. "A Court may grant a judgment as a matter of law if after a party has been fully heard by the jury on an issue, there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue. A Court should view the entire record in the light most favorable to the non-movant, drawing all factual inferences in favor of the non-moving party, and leaving credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts to the jury." Rutherford v. Harris County, 197 F.3d 173, 178 (5th Cir. 1999) (internal quotations omitted) (internal citations omitted). This Court has previously considered the issues raised in Defendants' Rule 50 motion and has previously rejected Defendants' arguments. Defendants fail to raise any new arguments or authorities to persuade this Court to reconsider its position that they are not entitled to judgment as a matter of law under Rule 50.
IV.
Plaintiffs' Application for Award of Attorneys' Fees: Plaintiffs seek an award of attorneys' fees incurred through their counsel for the above captioned underlying case. On September 7, 1999, this Court signed a judgment for Plaintiffs in the principal amount of $121,042.10, plus pre-judgment interest, costs of court, statutory attorneys's fees to be established in amount by later order of this Court, and post judgment interest on all of the sums at 5.224% per annum.
The underlying suit was commenced by Plaintiffs through their attorney, Gary M. Vodicka. According to Mr. Vodicka's affidavit, he expended approximately 1026.7 hours on this case. Mr. Vodicka reduced this amount of hours by approximately 300 hours for paralegal and secretarial functions he may have performed for a total of 726.85 hours. See Exhibit "A" to Affidavit of Gary M. Vodicka. The total attorneys' fee sought by Vodicka, after reductions for paralegal and secretarial functions, is $147,061.255. This amount comprises 726.85 hours for Mr. Vodicka at $175.00 an hour for a total of $126,463.75 and a total of 116.50 hours for Rader, Campbell, Fisher Pyke at $175.00 an hour for a total of $20,597.50. See Plaintiffs' Application for Award of Attorneys' Fees at 4.
Actually, once properly computed, 726.85 hours multiplied by $175.00 an hour is $127,198.75.
Actually, again, once properly computed, 116.5 hours multiplied by $175.00 an hour is $20,387.50.
Defendants object to the amount sought by Plaintiffs, stating that the amount is unreasonable and unnecessary, that a contingent fee agreement exists between Mr. Vodicka and his client and should be limited to that fee, and that the attorney fee awarded should not exceed the amount of the judgment. See Defendant's Response to Plaintiff's Fee Application at 2-3. Defendants also assert that Pyke's affidavit regarding attorneys' fees should be stricken because Pyke was not designated as an expert on reasonableness of attorneys' fees. Id. at 4.
A. DISCUSSION
Defendants do not dispute that Plaintiffs are entitled to reasonable attorneys' fees pursuant to the Court's judgment. Rather, Defendants argue that the number of hours devoted to this case and the rate of compensation are excessive, and that Plaintiffs' attorney failed to exercise proper billing judgment. Defendants further assert that the amount sought by Plaintiffs' attorney is too high relative to the result attained. Defendants maintain that Plaintiffs' attorneys' fees should be awarded in an amount between $20,000-$30,000.
1. APPLICABLE LAW
The determination of reasonable attorneys' fees calls for a three-step procedure. First, the trial court must determine the reasonable number of hours expended on the litigation and the reasonable hourly rates for participating attorneys. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.), cert. denied, 516 U.S. 862 (1995). The reasonable number of hours must then be multiplied by the reasonable hourly rate. Id. The product of this multiplication is the "lodestar," which may be adjusted upward or downward depending upon the circumstances of the case. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir.), cert. denied, 510 U.S. 991 (1993).
In considering whether to adjust the lodestar amount upward or downward, this Court must consider the following twelve factors: (1) the time and labor required for the case; (2) the novelty and difficulty of the issues involved; (3) the skill required to litigate the case; (4) the ability of the attorney to accept other work; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances of the case; (8) the amount involved and results obtained; (9) the attorneys' experience, reputation and ability; (10) the "undesirability" of the case; (11) the nature and length of the attorney-client relationship; and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), overruled on other grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989). The court will pay "special heed" to the time and labor involved, the customary fee, the amount in controversy and results obtained, and the experience, reputation and ability of counsel. Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990).
2. LODESTAR CALCULATION
The first step in the lodestar analysis requires the Court to determine the reasonable number of hours expended by Plaintiffs' attorney on the lawsuit, as well as the reasonable hourly rates for each of those individual attorneys. Plaintiffs offer time records and affidavits to demonstrate that Plaintiffs' attorney, Gary Vodicka, worked a total of 1026.7 hours on this matter. Vodicka reduced these hours by 300 hours to a total of 726.85 hours to deduct for time spent on paralegal and secretarial work and portions for travel time to hearings, depositions and for telephone conferences with the client. See Exhibit "A" to Affidavit of Gary Vodicka. Plaintiffs also offer time records for Mr. Pyke of Rader, Campbell, Fisher Pyke at 116.5 hours. Both these attorneys seek an hourly rate of $175.00 an hour.
3. DEFENDANTS' ARGUMENTS
Defendants first argue that the attorneys' fee requested by Plaintiffs is not a reasonable one because this was a relatively simple case, save for the actions of Mr. Vodicka himself. Defendants claim that it was Vodicka, and not the Defendants, who caused the parties to incur more in attorneys fees than was necessary by running the overall fees via unreasonable, unwarranted legal actions. See Defendants' Response at 2.
Defendants also maintain that this was a simple suit on an account or an action for breach of contract or quantum meruit and therefore the attorneys fees should be considerably less than those requested. See Affidavit of Thomas L. Case at 2-3.
The evidence shows, however, that this was not a simple case. The matter involved multiple parties, seven defendants, four separate actions and multiple issues. The case was aggressively defended by Defendants with the use of two law firms and four lawyers against Mr. Vodicka, a solo practitioner. Mr. Pyke and his law firm were primarily used as co-counsel during the trial. See Pyke Affidavit at 2.
The evidence shows that Defendants mounted a vigorous defense to this lawsuit. Defendants contested Plaintiff Baxter was hired, that if he was hired he was hired for them, whether he did quality work, whether he did quality for work them, whether his work, if any, should be offset by any equitable defenses, whether adequate records were kept to support the claim, whether the individual partners should be liable and whether Plaintiff committed malpractice. Defendants deposed Plaintiff for three (3) days. They served on him a thirty-four (34) page letter setting out specific areas of inquiry for the remainder of Plaintiff's deposition. Defendants designated some 644 items/subsections of inquiry for this deposition. Defendants requested approximately 17 hearings with Magistrate Judge Kaplan. They raised a motion to dismiss for lack of personal jurisdiction, which they later dismissed. Defendants denied basic requests for admissions; they sought leave to file a malpractice claim against plaintiff, they raised various defenses against Plaintiff. These defenses included whether Plaintiffs' fees were reasonable, whether the partnerships were liable for them, whether Defendants were personally liable for them, whether Plaintiffs' claims were barred by statute of limitations, whether Plaintiffs' claims should be barred by fiduciary duties, among others. See Vodicka Affidavit; see Supplemental Affidavit of Gary M. Vodicka.
These hearings were both formal and informal. Defendants were granted written relief by letter or order only three times. Conversely, Plaintiffs only requested 7 hearings. See Plaintiffs' Reply to Defendants' Response at 5, 7-9; see Affidavit of Gary M. Vodicka; see Supplemental Affidavit of Gary M. Vodicka.
Leave was denied by Magistrate Judge Kaplan.
Indeed, Defendants did not view this case as a mere breach of contract, suit on an account or quantum meruit. They treated it as a complex case deserving a considerable defense. Certainly, the Court does not suggest that Defendants should not have engaged in any of the foregoing; they are entitled to aggressively defend their case, if they so choose. However, they cannot engage in an aggressive defense and then be heard to complain when Plaintiffs' attorneys' fees escalate as a result. A party cannot contest every issue and every claim and then complain that the fees should have been less because plaintiff could have tried the case with less resources and fewer hours. Henson v. Columbus Bank Trust Co., 770 F.2d 1566, 1575 (11th Cir. 1985). Having kicked the snow loose at the top by a vigorous, aggressive defense, defendants must now bear the consequences of the attorney fee avalanche at the bottom. See, e.g., Schwarz v. Folloder, 767 F.2d 125, 134 (5th Cir. 1985).
4. DEFENDANTS' ARGUMENTS
(a). Plaintiffs' Challenged Conduct
Defendants complain that much of Vodicka's actions for which he seeks attorneys fees compensation were unreasonable and unnecessarily complicated the matter. Specifically, Defendants complain of the following:
1. Defendants assert that what Vodicka references as hearings were not really hearings but were merely mentioned in a conference with Magistrate Judge Jeff Kaplan. See Defendant's Response at 6. It is not of monumental importance that the "hearings" were actually "conferences." Defendants fail to specifically challenge the time allotted by Plaintiffs for such "conferences." Defendants must point out with specificity which time entries are unreasonable and why they failed to do so.
2. Defendants complain that what Vodicka references in several paragraphs as separate motions were in fact all the same motion. See id. Again, the Court fails to see the monumental importance of whether these entries were one motion or separate motions so long as the time allotted is as Plaintiffs claim. Defendants fail to point out with specificity if any such entries are unreasonable and why.
3. Defendants complain that what Vodicka references in several of his paragraphs are things Defendants had to do in response to an action, sometimes unreasonable, taken by Vodicka. See id. at 7. Defendants fail to state where the action was unreasonable and why it was unreasonable whenever it was so.
4. Defendants state that Vodicka spent an inordinate amount of time drafting a petition for what should have been a simple breach of contract case. See id. at 7. First, the Court knows of no authority that dictates how long a petition must be in a breach of contract case nor do Defendants direct the Court to any such authority. Second, excluding the personal jurisdiction issues, (which were anticipated by Plaintiffs and indeed raised and subsequently dropped by Defendants), the petition itself was sixteen (16) pages long, which does not seem an unreasonable length. Third, a party must be given latitude to advance reasonable arguments and theories and the Court will not proscribe Plaintiffs from doing so by pre-determining a specific length for a petition.
5. All the time billed on the Rule 103 motion because Plaintiff could have served the Secretary of State instead. See id. at 7. Defendants fail to state with specificity why this action was unreasonable.
6. All the time billed regarding the lengthy petition and excessive requests for admission was unreasonable. See id. at 7. Defendants fail to provide the Court with a reason as to why this was unreasonable and excessive.
7. All the time billed for "trips downtown" should be billed at courier rates, not attorney rates. See id. at 7. Tasks that could or should have been performed by a secretary or other support staff may be eliminated by the court. See, e.g., Harris v. L L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 1997) (approving district court's elimination of hours spent on secretarial tasks from its lodestar calculation); Inks v. HealthCare Distrib. of Ind., Inc., 901 F. Supp. 1403, 1415-16 (N.D.Ind. 1995) (finding that defendant should not be charged with tasks that could be handled by clerical staff). Plaintiffs' attorney has, however, already completely written off all time incurred in performing clerical, secretarial, courier or administrative type functions and the Court does not find that a further reduction is necessary. See Plaintiffs' Application at 4; Vodicka Affidavit at 8.
8. All time billed regarding the Larry Edgerton deposition because the deposition was needless. See Defendants' Response at 7. Magistrate Judge Kaplan refused to quash this deposition which was necessary due to Defendants' 12(b) motion. It is noteworthy that Defendants withdrew their 12(b) motion after Plaintiffs' threat to depose Edgerton and Judge Kaplan's refusal to quash that deposition. See Supplemental Affidavit of Vodicka at 2. Therefore, it appears to the Court that this time spent was both reasonable and necessary.
9. All time spent on the 6/29/98 deposition notice was unreasonable. See Defendants' Response at 7. Defendants fail to educate the Court on why this time was unreasonable.
10. Time spent on Defendants' Motion to Limit Counsel's Abuse of the Pleadings was unreasonable because it was brought on by Vodicka's conduct. See id. at 7. The Court does not view this as a viable argument since Plaintiffs were obligated to respond to the motion drafted by Defendants.
11. The time spent for document review is unreasonable because Vodicka produced an excessive number of documents for this case. See id. at 7. Indeed, Plaintiff has the duty to produce all responsive documents, regardless of the number, and any claim by Defendants that Plaintiffs produced too many documents is absurd.
Defendants do not make the allegation that documents Plaintiffs produced were unresponsive.
12. The time spent on a motion to determine discovery violations in August of 1998 was unnecessary and unreasonable. See id. at 7. Defendants do not state why this was unnecessary and unreasonable.
13. The time spent on Defendants' Motion to Compel in September 1998 was unreasonable and brought on by Vodicka. See id. at 7-8. The Court does not view this as a viable argument since Plaintiffs were obligated to respond to the motion drafted by Defendants. Further, Defendants fail to say why the time spent on it was unreasonable.
14. The time spent by Vodicka on jury instructions was unreasonable and none of his submitted jury instructions were used at trial. See id. at 8. Plaintiff are obligated to research and submit jury instructions for trial. Plaintiffs cannot predetermine which instructions, if any, will actually be given to the jury. Because legal research is often the most critical component of determining which arguments to raise, the Court declines to reduce or omit these hours simply because the instructions were never submitted to the jury.
15. The time billed by Pyke for cutting down Vodicka's time is unreasonable. See id. at 8. The Court agrees that Plaintiffs are not entitled to Pyke's attorney's fees incurred in cutting Vodicka's attorney's fees. See discussion infra at "D."
16. Vodicka sent numerous unnecessary letters to the parties. See id. at 8. The Court has read the letters attached to Defendants' response and does not find them unnecessary.
17. Vodicka frequented Defendants' office, often unannounced, and had many trips downtown that were unnecessary because he could have held the meeting at his own office. See id. at 8-9. Defendants fail to point out with specificity which such entries were unnecessary and how much time was billed for such trips. The Court needs specific references to the challenged times.
18. Vodicka's time billed to expert reports was excessive because only one expert report, not three, was needed. See id. at 9. This is not unreasonable in light of the fact that it was not until after Vodicka's preparation that Magistrate Judge Kaplan limited the parties to one expert each. See Supplemental Affidavit of Vodicka at 4.
19. Vodicka filed an unnecessarily long response to Defendants' Motion for Summary Judgment. See Defendants' Response at 9. Plaintiffs are obligated to research and answer each and every issue raised by Defendants in their motion for summary judgment, regardless of length.
It is of considerable note that Defendants' motion for summary judgment was denied.
20. Vodicka's time billed to revising the pretrial order and trips to research jury instructions are excessive. See id. at 9. Defendants fail to state why this was excessive.
(b). Contingency Fee Agreement
Second, Defendants argue that because Plaintiffs' attorney had a contingent fee agreement with his clients, his attorneys' fee may only be the percentage of the judgment agreed to. Although the contingency fee agreement is a factor to consider under the Johnson factors, it is not determinative of the reasonableness of the attorneys' fee award. "There is authority for the suggestion that a contingent fee contract should not be considered in determining reasonable attorneys fees, except to establish the employment of counsel and the purpose for which counsel were employed." Beck v. Northern Natural Gas Co., 170 F.3d 1018, 1024 (10th Cir. 1999) (internal quotations omitted) (emphasis added). "What a plaintiff may be bound to pay and what an attorney is free to collect under a fee agreement are not necessarily measured by the "reasonable attorney fee" that a defendant must pay pursuant to a court order." Venegas v. Mitchel, 495 U.S. 82, 89 (1990) (emphasis added). "The fact that [Vodicka] agreed to a one-third contingency fee arrangement with his client does not determine the amount of attorneys fees [Vodicka] may recover. The recovery of attorneys fees is provided for by statute, the amount of which must be found by the trier of fact and must be supported by the evidence." Rauscher Pierce Refsnes, Inc. v. Koenig, 794 S.W.2d 514, 516 (Tex.App.-Corpus Christi 1990, writ denied).
The U.S. Supreme Court does not allow the trial court to enhance the lodestar figure to compensate the attorney for the contingent fee arrangement between plaintiff and attorney where the attorney should have received a higher figure due to the contingent fee agreement. City of Burlington v. Daque, 505 U.S. 557, 564 (1992); see also Rutherford v. Harris County, 197 F.3d 173, 193 (5th Cir. 1999). It seems logical that this Court is likewise disallowed from reducing the lodestar figure to be in line with the contingent fee agreement between the attorney and plaintiff. Plaintiffs are entitled to a reasonable attorneys' fee pursuant to Texas Civil Practice and Remedies Code Chapter 38. This Court will consider the contingency fee agreement between Plaintiffs and Mr. Vodicka under the Johnson factors but will not reduce the fee awarded based on that factor alone.
(c) Pyke's Affidavit
Defendants argue that Pyke's affidavit should be stricken because it purports to be expert witness testimony when Pyke was not designated as an expert; accordingly, Defendants maintain, the fees sought by Pyke should be disallowed because there is no expert testimony to support them. As Defendants state in their own response, the Court may take judicial notice of what a reasonable attorney fee should be. See Defendants' Response at 5; Copeland v. Alsobrook, 3 S.W.3d 598 (Tex.App.-San Antonio 1999, writ denied); Tex. Civ. Prac. Rem. Code § 38.004 (Vernon 1997). At this time, the Court takes judicial notice that $175.00 an hour is a reasonable attorneys fee for attorneys with similar experience and expertise as Mr. Vodicka and Mr. Pyke.
B. THE JOHNSON FACTORS
(A). THE TIME AND LABOR REQUIRED FOR THE CASE
Exhibit A of Plaintiffs' Application sets forth in great detail the time and labor expended on this case. A brief recapitulation of Plaintiffs' labors are as follows: Vodicka sought and obtained prejudgment writs of garnishment for a portion of Plaintiffs' recovery which assured collection of a great percentage of Plaintiffs' judgment. Vodicka spent considerable time anticipating and preparing for personal jurisdiction motions. He attended approximately 25 hearings, reviewed 30,000 pages of Defendants' documents, responded to summary judgment, had several meetings with opposing counsel for conferencing and joint status reports, prepared experts, defended against Defendants' attempt to file a malpractice counterclaim against his client, attended a three day deposition of his client and attempted to resolve and work on several discovery disputes. Vodicka also prepared for and won a four-day jury trial and prepared and attended post-trial equitable defense hearings. See Affidavit of Gary M. Vodicka at 8; Supplemental Affidavit of Gary M. Vodicka at 2-6; Exhibit A to Application for Attorneys' Fees.
Despite the foregoing work, which was considerable, it nevertheless appears to the Court that the total hours billed for this work by Mr. Vodicka is somewhat excessive. The time and labor required for the case (726.85 hours) warrant a reduction, which is more fully discussed at "C" below.
Mr. Pyke also expended time and labor, which are detailed in Exhibit A to Pyke's affidavit.
(B). THE NOVELTY AND DIFFICULTY OF THE ISSUES INVOLVED
The case involved partnership issues, which also presented personal jurisdiction issues. Statute of limitation issues also existed as did the prejudgment garnishment of Defendants' assets with accompanying writs seeking the dissolution of the garnishment action. Furthermore, the case involved post verdict suggestions and finding of fact and conclusions of law based on conflict of interest. Several of the aforementioned issues were novel given the situation and were of first impression within the particular circumstances of the case. See Vodicka Affidavit at 8; See Pyke Affidavit at 3.
(C). THE SKILL REQUIRED TO LITIGATE THE CASE
It appears to this Court that the level of skill required to litigate this case was high. Vodicka, a solo practitioner, obtained various writs of garnishment and pursued this case against several other lawyers, two of whom are board certified trial lawyers in federal court, two law firms and multiple defendants. The case involved oil and gas law, bankruptcy law, partnership law, agency law and conflicts law, among others. The case also involved partnership aspects with multiple defendants. Pyke and Vodicka also needed and possessed experience with federal civil procedure, Texas law and jury trials to litigate this case. See Vodicka affidavit at 9; Pyke Affidavit at 4.
(D) THE ABILITY OF THE ATTORNEY TO ACCEPT OTHER WORK
The evidence shows that Mr. Vodicka was precluded from expending time on other cases due to the time spent on this case. The evidence further shows that once discovery was placed on a fast track between the Spring of 1988 and mid-September of 1988, Mr. Vodicka did not devote much time to any other legal matter. See Vodicka Affidavit at 9. The evidence shows Mr. Pyke's firm was unaffected by this case. See Pyke Affidavit at 4.
(E). THE CUSTOMARY FEE FOR SIMILAR WORK IN THE COMMUNITY
Mr. Vodicka's and Mr. Pyke's rate is $175.00 per hour. The Court finds that this rate and fee is consistent with, if not lower than, those prevailing for similar services by professionals of reasonable skill, experience and reputation in the community in which this case has been filed and where Mr. Vodicka and Mr. Pyke practice law. See Vodicka Affidavit at 9; See Pyke Affidavit at 4.
(F). WHETHER THE FEE IS FIXED OR CONTINGENT
Mr. Vodicka has an arrangement with his clients for a contingency fee. The Court has considered the contingent fee arrangement, ( see discussion supra), in reaching its attorneys' fee award but will not limit this fee to the contingent fee arrangement. The attorneys' fee figure is properly calculated via the lodestar method and to limit the fee to the contingent fee arrangement constitutes a deviation from the lodestar calculation. Mr. Pyke's firm was paid on an hourly basis. See Pyke Affidavit at 4.
(G). TIME LIMITATIONS IMPOSED BY THE CLIENT OR CIRCUMSTANCES
The case imposed time limitations on Mr. Vodicka, especially during the fast track discovery schedule and responding to summary judgment, preparing for trial and a week long trial. Priority work during these periods delayed Mr. Vodicka from his other legal work. See Vodicka Affidavit at 10. Mr. Pyke's firm was employed on relatively short notice. See Pyke Affidavit at 4-5.
(H). THE AMOUNT INVOLVED AND RESULTS OBTAINED
The case involved approximately $153,000 as damages (including interest). The attorneys' fees sought are for substantially the same amount. Defendants maintain that because the application amount exceeds the principal amount of the judgment, that fact alone is evidence that the attorneys' fees are excessive. See Defendants' Response at 2.
The amount of damages awarded is only one among the many factors to be considered. An attorneys fee award substantially the same amount as the judgment obtained might, at first glance, appear excessive. Several courts, however, have held attorneys fee awards in far greater amounts to be reasonable. For example, the court in Great Northern American Stationers v. Ball upheld an attorneys fee award in the amount of $225,008. where the damages were only $90,724.38. Ball, 770 S.W.2d 631, 633 (Tex.App.-Dallas 1989, writ dism'd). Similarly, the court in Flint Assoc. v. Intercontinental Pipe Steel, Inc., upheld an attorneys fee award in the amount of $162,000 where the damages recovered were only $24,067.14. Flint Assoc., 739 S.W.2d 622, 626 (Tex.App.-Dallas 1987, writ denied). "The determination of what is reasonable cannot be made by application of some mechanical formula. Rather, the court must take into consideration the entire nature of the case." Id. "The amount of recovery is but one factor to be considered in determining reasonable attorneys fees in a case." Id.
Having preliminarily established that an attorney fee award higher than the judgment amount is permitted by law, this Court must nevertheless consider the relation of the judgment in this particular case to the award sought. It is the Court's opinion that, considering the nature of this particular case, the award sought is indeed high relative to the damages awarded. A reduction is warranted, which is more fully discussed infra at "C."
(I). THE ATTORNEY'S EXPERIENCE, REPUTATION AND ABILITY
Mr. Vodicka has had experience working for two judges and has been in private practice for a considerable time. He has much practice in federal court and state court litigation. See Vodicka Affidavit at 12. Mr. Pyke similarly has a reputable academic background, much experience and a good reputation in the community. See Pyke Affidavit at 5.
(J). THE UNDESIRABILITY OF THE CASE
The case was not an undesirable one. See Vodicka Affidavit at 12; See Pyke Affidavit at 5.
(K). THE NATURE AND LENGTH OF THE ATTORNEY-CLIENT RELATIONSHIP
Prior to this case, neither Vodicka nor Pyke had represented Plaintiffs in any matter. See Vodicka Affidavit at 12; See Pyke Affidavit at 5.
(L). AWARDS IN SIMILAR CASES
This Court finds that the attorneys' fee sought by Mr. Vodicka in this case is somewhat higher when considered in relation to those awarded in other cases with an equal amount of complexity. Therefore, a reduction is warranted.
The Court finds the amount sought by Mr. Pyke to be similar to other cases with an equal amount of complexity.
C. ADJUSTMENTS TO THE LODESTAR AMOUNT
Having considered the foregoing Johnson factors, the Court must now determine whether an adjustment is warranted. Although this case was hotly contested and involved difficult and novel issues, it appears to this Court that 726.85 hours spent by Mr. Vodicka is excessive. The Court reaches this conclusion based on the time and labor expended on this case (given the nature of the case), the amount involved and the results obtained and awards in similar cases. Accordingly, the Court finds a reduction of twenty-five percent (25%) of Mr. Vodicka's time is warranted.
D. THE LODESTAR CALCULATION
Having considered the Johnson factors and determined that a twenty-five percent adjustment is warranted, the Court must now arrive at the lodestar amount. The Court finds that a total of 545.13 hours for Mr. Vodicka at a rate of $175.00 an hour is reasonable. Therefore, the lodestar amount for Mr. Vodicka is $95,397.75. The Court agrees with Defendants that Pyke should not recover attorneys' fees for the hours spent reviewing Vodicka's time entries and records. Unfortunately, however, Defendants fail to specify what amount of time Pyke spent reviewing these records and by what amount such hours should be reduced. After a review of Pyke's time sheet, the Court finds several entries detailing such a review; however, they are intermingled with entries for other legal work which this Court deems to be reasonable and necessary. See Exhibit A to Pyke Affidavit. The Court is then left with the impossible task of determining what time was spent on the reasonable legal work and what time was spent on the review of Vodicka's time records. The entries that include work for reviewing Vodicka's time records total to 18.8 hours. The Court may estimate the time an attorney spent on compensable issues when the affidavit lacks sufficient detail to precisely determine the attorney's fee. Ragan v. Commissioner of Internal Revenue, 135 F.3d 329, 336 (5th Cir. 1998). The Court therefore estimates that of the 18.8 hours enunciated above, 10.8 were spent on reviewing Vodicka's time records. Therefore, Pyke's total hours are 116.5, minus 10.8 hours for a total of 105.7 at $175.00 an hour, totaling $18,497.50.
This amount represents the total hours worked by Mr. Vodicka after a reduction of twenty-five percent of the 726.85 hours claimed by him.
In addition to the attorneys' fees already discussed, Plaintiffs' counsel requests $22,500.00 in fees to cover the anticipated appeal of this matter to the Fifth Circuit. The Court finds that $10,000.00 is a reasonable amount of attorneys' fees in the event of an appeal to the Fifth Circuit. Therefore, Plaintiffs will be entitled to $10,000 in attorneys' fees should they prevail on an appeal taken.
E. COSTS AND FEES
Defendants have filed a motion to review the taxation of costs and a brief in support. Plaintiff responded by deleting several items for which they sought costs, reducing the amount sought to $10,339.97. These costs include the following items: $1,156.00 for filing fees; $786.24 for service costs; $4,902.55 for deposition transcripts; $455.00 for witness fees; and $3,040.18 for copy charges.
Actually the total amount of costs Plaintiffs claim is $10,340.00 (three cents more than the actual total).
Defendants challenge these costs on the following grounds:
a. Service and Writ Fee — Edgerton — $275.00. Defendants maintain that the rush fees were not reasonable nor necessary. Defendants do not provide any support or explanation for this conclusion. The Court finds the fee was necessarily obtained for use in the case and the Court will allow it.
b. PLS Copies — $475.80: Defendants allege that the dates of the invoices are too remote in time to indicate the copies were used at trial. 28 U.S.C. § 1920 provides for recoverable costs for "copies of papers necessarily obtained for use in the case." Pursuant to the statute, these documents need only have been for "the case" and the Court will allow them.
Invoice numbers 00027938 and 000277792 in the amount of $50.00 and $51.20, respectively, are captioned "general office." The Court agrees these invoices do not indicate they are for this matter and the Court will not allow them.
c. Garnishment citations — $360.00: Defendants challenge the citations; however, this case did involve pre-judgment writs of garnishment, the Court finds them to be necessarily obtained for use in the case and will allow them.
d-g. Bill Long — (B. Shirey, Palmer, Fidelity/ATT and Dean W/EOTT): Defendants complain that Plaintiffs have not provided back up documentation for these items. It is apparent from the receipts that these items were necessarily obtained for use in the case and the Court will allow them.
h. The Kinko's copies — $362.11: Defendants complain the copies are illegible. The Court finds them to be legible and Vodicka claims in his affidavit they were used for this case. The Court therefore finds they were necessarily obtained for use in this case and the Court will allow them.
i. Bear Imprints — $126.81 — Defendants complain that they are not aware of pictures being used at trial. The receipt, however, shows the sale was made through one of Defendants' attorneys and was apparently used for something relating to this case. Moreover, Vodicka's affidavit verifies all costs incurred were for the prosecution of the case. The Court therefore finds they were necessarily obtained for use in this case and the Court will allow it.
j. Deposition of R. Palmer — $3,291.15: Defendants complain that Plaintiffs did not provide backup documentation. However, this is a receipt for the deposition of Robert Palmer. This deposition was necessarily obtained for use in the case and the Court will allow it.
k. Knox — Service of citations — $652.24: Defendants complain that they cannot determine if the invoices are for this case. However, the invoice indicates it is for Robert Palmer, a person deposed in this case. Therefore, this was necessarily obtained for use in the case and the Court will allow it.
l. Mailbag — $2,021.76: Defendants complain that the invoices in the amounts of $241.17, $231.44, $148.47 and $532.35 are illegible. The Court agrees. The amount on these invoices is not legible and therefore, the Court will not allow these items to be recovered as Costs.
The total amount of costs recoverable by Plaintiffs, therefore, is $9,085.48.
V. CONCLUSION
For the reasons set forth above, it is hereby ORDERED that Plaintiffs' Motion for Leave to Conduct Limited Discovery of Defendants' Attorney Fees is DENIED; Defendants' Rule 59 Motion for New Trial, Rule 52 Motion to Amend Findings of Fact is DENIED; Defendants' Motion to Renew Request for Judgment as a Matter of Law Pursuant to Rule 50 is DENIED. For the reasons set forth above, it is also hereby ORDERED that Plaintiffs' counsel Vodicka is awarded $95,397.75 in attorneys fees, $10,339.97 in costs and $10,000 in appellate fees. It is also ORDERED that Plaintiff's counsel Pyke is awarded $18,497.50 in attorneys' fees.
So Ordered.
Signed this 10th day of March, 2000.
JORGE A. SOLIS UNITED STATES DISTRICT JUDGE