Opinion
Civil Action No. 3:02-CV-1124-H.
June 12, 2003.
FINDINGS CONCLUSIONS RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the District Court in implementation thereof, Plaintiff's Application for Attorney's Fees has been referred to the United States Magistrate Judge for hearing, if necessary, and to submit a recommendation to the District Court no later than noon, June 13, 2003. The following pleadings are presently before this Court:
(1) Plaintiff's Application for Attorney's Fees, filed April 2, 2003;
(2) Defendant's Opposition to Plaintiff's Application for Attorney's Fees, filed April 23, 2003;
(3) Plaintiff's Reply Memorandum in Support of Plaintiff's Application for Attorney's Fees, filed May 1, 2003; and
(4) Defendant's Surreply in Opposition to Plaintiff's Application for Attorney's Fees, filed June 2, 2003.
This district's briefing rules do not allow a surreply unless authorized by leave of court. Cf. N.D. TEX. Civ. R. 7.1(f) (cited in El Conejo Bus Lines, Inc. v. Metropolitan Life Ins. Co., Civil Action No. 3:98-cv-00608-D, 1999 WL 354237, at *1 (N.D. Tex. May 27, 1999)). Bolick did not seek leave to file its surreply. Thus, the Court will not consider it.
I. BACKGROUND
On May 28, 2002, Plaintiff, Robbins Hardwood Flooring, Inc. ("Robbins"), a Delaware corporation, filed suit against defendant, Bolick Distributors, Corporation ("Bolick"), a Louisiana corporation, for breach of contract, suit on a sworn account, and attorney's fees. On March 18, 2003, the District Court granted partial summary judgment for Robbins on its sworn account claim and awarded Robbins $175,135.03 in damages, $11,393.37 in prejudgment interest, and "reasonable attorneys' fees in an amount to be determined pursuant to 28 U.S.C. § 54(d)(2)." (March 18, 2003 Mem. Op. Ord. at 7.)On April 2, 2003, Robbins filed the instant application ("App.") for attorney's fees, requesting $69,807.80 in reasonable attorney's fees and expenses or, alternatively, $35,027.01 in contractual attorney's fees. (App. at 2.) Robbins provided an affidavit ("Aff.") by lead counsel, Timothy R. McCormick, and an exemplar of an attorney's fee provision contained within its sworn account invoices. (Aff. at 1-9.) Robbins also offered to provide its billings records to the Court for in camera review. Id. at 8. On June 3, 2003, the Court reviewed Robbins' application in light of applicable Texas law and concluded that it lacked sufficient documentation for the Court to evaluate it according to the factors set forth by the Texas Supreme Court in Arthur Anderson Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997). Pursuant to Robbins' offer to provide its billing records for in camera review, the Court ordered counsel for Robbins to submit its relevant, unredacted billing records, supporting biographical information, and any other documentary support necessary to compute a reasonable fee in light of the Arthur Anderson factors. On June 6, 2003, counsel timely submitted itemized billing records, highlighting the requested fees, and the resumes of each billing person.
II. ANALYSIS
In a diversity case such as this one, "state rather than federal law governs the issue of the awarding of attorney's fees." McLeod, Alexander, Powel Apffel, P.C. v. Quarles, 894 F.2d 1482, 1488 (5th Cir. 1990). "Thus, the direct authority granted district courts by Fed.R.Civ.P. 54(d) to award attorney's fees must be exercised within the bounds of applicable state law." Id. Because the District Court granted Robbins summary judgment under Texas law, Texas law controls the instant fee application. Id.
Pursuant to TEX. CIV. PRAC. REM. CODE § 38.001(7), Robbins "may recover reasonable attorney's fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for . . . a sworn acount[.]" TEX. CIV. PRAC. REM. CODE ANN. § 38.001(7) (Vernon 2002). An award of reasonable attorney's fees is mandatory under § 38.001 if there is proof of the reasonableness of the fees and the plaintiff has been awarded damages. See Mathis v. Exxon Corp., 302 F.3d 448, 462 (5th Cir. 2002) (citing TEX. CIV. PRAC. REM. CODE ANN. § 38.001(8) (Vernon 2002)). Although fees are mandatory, Robbins bears the burden of proving reasonableness and providing sufficient documentation thereof. See Pelt v. U.S. Bank Trust National Ass'n, ___ F. Supp.2d ___, 2003 WL 1984538, at *2 (N.D. Tex. Apr. 28, 2003). Determining reasonableness and calculating a proper fee award is left to the court's discretion, which is guided by two presumptions. See Mathis, 302 F.3d at 462. "First, there is a rebuttable presumption of reasonableness for fees that are `usual' or `customary. Second, where the fees are tried to the court . . . the statute authorizes the judge to take judicial notice of the `usual and customary fees' and the contents of the case file." Id. (citing TEX. CIV. PRAC. REM. CODE ANN. § 38.003-4 (Vernon 2002)). These presumptions apply whether or not the fee arrangement is an hourly or contingent agreement. See Mathis, 302 F.3d at 462 and n. 19 (citing European Crossroads' Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 58-59 (Tex.App.-Dallas 1995, writ denied) (contingency fee), and Gill Sav. Ass'n v. Chair King, Inc., 797 S.W.2d 31 (Tex. 1990) (no contingency fee)).
There is no question that Robbins prevailed on its suit on a sworn account and was awarded damages and attorney's fees. The only issue left to determine is the amount of fees to be awarded. See Watson v. State Farm Lloyds, 2000 WL 42174, at *1 (N.D. Tex. Jan. 18, 2000). Robbins requests $69,807.80 in attorney's fees and expenses for prosecution of the suit and the instant fee application. Bolick argues that the requested amount is unreasonable on its face, unreasonable in light of the Johnson factors, and unsupported by sufficient documentation. (Resp. at 2-4.) Robbins' affidavit and billing records reflect that counsel spent approximately 272.50 hours prosecuting this suit and that these hours and "fees are reasonable and were necessary to the pursuit and collection of all moneys owed to Plaintiff . . . [and] the rates charged by counsel for Plaintiff are reasonable and comparable to attorneys practicing in the Northern District of Texas, Dallas Division." (Aff. at 2-4.) There is a rebuttable presumption that Robbins' usual and customary fees are reasonable. See Mathis, 302 F.3d at 462. Further, because Robbins' fee request is not being tried to a jury, the Court may take judicial notice that Robbins' usual and customary fees are reasonable. Id. Bolick argues that the fees are excessive given that the Complaint consisted of five pages, this was a straightforward case with "[v]ery little discovery," and it was decided on summary judgment. (Resp. at 3-4.)
In a letter accompanying its billing records, Robbins noted that its billing records support "$69,806.80" in fees. Because $69,807.80 is repeated throughout the application, the Court interprets the slight reduction as a typographical error. By the same letter, Robbins requests an additional $5,308.50 for fees incurred since filing its application. This amount was neither made part of the original fee application nor has Robbins presented an affidavit or billing records in support of this additional amount. Thus, the Court will not consider it.
The Johnson factors refers to those factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Instead of using the Johnson factors, the Court will determine a proper fee award pursuant to Texas law. See Mathis, 302 F.3d at 462 ("State law controls both the award of and the reasonableness of fees awarded where state law supplies the rule of decision.").
Mr. McCormick's affidavit shows that counsel billed approximately 21.50 hours in preparing, filing, and serving the original complaint, 51.30 hours in preparing, reviewing, and serving written discovery, 22.40 hours in preparing for and attending depositions, and 9.2 hours preparing for and attending a discovery hearing. (Aff. at 4-5.) Counsel also billed approximately 39.90 hours complying with the Court's pretrial orders and 41.40 hours in summary judgment proceedings. Id. at 5-6. In addition, counsel billed approximately 26.00 hours attempting to settle this matter, 16.40 hours for "strategic analysis" and "substantive conferences and communications with both clients and opposing counsel," 25.00 hours for research, and 19.40 hours in preparing and filing its expert designation, responding to Bolick's motion for continuance, and in attempting to obtain attorney's fees. Id. at 6-7.
Converting evidence is necessary to rebut the presumption that Robbins' usual and customary fees are reasonable. See Industrial Clearinghouse, Inc. v. Browning Mfg., 1998 WL 34001126, at *3 (N.D. Tex. Jan. 14, 1998) ("Defendant has submitted no evidence which rebuts the presumption of reasonableness of the amount of fees which plaintiffs claim they incurred. Defendant asserts that it needs additional evidence so it can determine whether the amount requested is reasonable, however, it submits no evidence which states that the amount submitted by plaintiffs as attorneys fees is unreasonable.") (emphasis added); see also Budd v. Gay, 846 S.W.2d 521, 524 (Tex.App. — Hous. (14 Dist.) 1993, no writ) ("These fees are presumed reasonable and, so far as this record shows, appellants put on no evidence to contradict this presumption."); Robray Offshore Drilling Co., Ltd. v. Thomas, 751 S.W.2d 911, 913 (Tex.App. — Hous. (14 Dist.) 1988, no writ) (requiring evidence to rebut the presumption). The only controverting evidence Bolick presents is its affidavit appended to its surreply. Because the unauthorized surreply is not being considered, the presumption is unrebutted and the Court may take judicial notice that Robbins' fees are reasonable. However, even if the Court were to consider the surreply and thus find that the presumption had been rebutted, the fee request would still be reasonable in light of the Arthur Anderson factors. Robbins recovered 100% of the damages sought, and its application and billing records contain detailed evidence of the amount of time and labor expended in prosecuting this case, biographical information on each billing person, and an affidavit by lead counsel addressing the complexities of this case as required by Arthur Anderson. Thus, Robbins' application proves that the fees requested are reasonable and were necessary in the prosecution of this suit and its fee application.
Accordingly, the Court recommends that Robbins recover $69,807.80 in attorney's fees and expenses for prosecution of the suit and the instant fee application. Because the Court finds that Robbins is entitled to fees pursuant to the above factors, the Court need not address Robbins' alternative argument that it is entitled to 20% of its fees as provided in the sworn account invoice.
III. RECOMMENDATION
For the foregoing reasons, the Court RECOMMENDS that Plaintiff's Application for Attorney's Fees be GRANTED and that Robbins be awarded $69,807.80 in reasonable and necessary attorney's fees and expenses.