Opinion
CIVIL ACTION NO. 12-723
04-27-2016
U.S. BANK, NATIONAL ASSOCIATION, Plaintiff/Counterclaim Defendant, v. Maury ROSENBERG, Defendant/Counterclaim Plaintiff.
Jack C. Mcelroy, Shutts & Bowen LLP, Orlando, FL, Peter H. Levitt, Shutts & Bowen, Miami, FL, Stacey A. Scrivani, Craig A. Hirneisen, Stevens & Lee, Reading, PA, for Plaintiff W. Barry Blum, Michael A. Friedman, Genovese Joblove & Battista, P.A., Miami, FL, Susan M. Verbonitz, Weir & Partners, LLP, Philadelphia, PA, Yale L. Galanter, Aventura, FL, for Defendant.
Jack C. Mcelroy, Shutts & Bowen LLP, Orlando, FL, Peter H. Levitt, Shutts & Bowen, Miami, FL, Stacey A. Scrivani, Craig A. Hirneisen, Stevens & Lee, Reading, PA, for Plaintiff
W. Barry Blum, Michael A. Friedman, Genovese Joblove & Battista, P.A., Miami, FL, Susan M. Verbonitz, Weir & Partners, LLP, Philadelphia, PA, Yale L. Galanter, Aventura, FL, for Defendant.
ORDER
CYNTHIA M. RUFE, J.
Plaintiff instituted this action in 2012 seeking to enforce a personal guaranty that Defendant executed pursuant to a settlement agreement with Plaintiff. After a bench trial, the Court held that Defendant was liable for breach of the guaranty and entered judgment in favor of Plaintiff and against Defendant in the amount of $5,804,479.95 on the breach of contract claim. The Court also ruled against Defendant and entered judgment in favor of Plaintiff on Defendant's counterclaims. Now before the Court is Plaintiff's motion for attorney's fees and costs. Plaintiff seeks attorney's fees and costs in the amount of $642,017.50 and $59,577.96 respectively, for over three years of legal representation in this matter by two law firms, Shutts & Bowen LLP and Stevens & Lee, P.C. For the reasons discussed below, Plaintiff's Motion will be granted.
Findings of Fact and Conclusions of Law and Order, Doc. No. 211.
Plaintiff agreed, in its reply brief, to reduce its original request for fees and costs by $10,123 in fees and $1,634 in costs.
Under Federal Rule of Civil Procedure 54(d), a claim for attorney's fees must "specify the judgment and the statute, rule, or other grounds entitling the movant to the award" and must "state the amount sought or provide a fair estimate of it." The movant has the burden of proving that the amount sought is reasonable and must submit evidence to support the claimed hourly rate and number of hours worked.
Fed. R. Civ. P. 54.
Rode v. Dellarciprete , 892 F.2d 1177, 1183 (3d Cir. 1990) (internal citation omitted).
Plaintiff argues that it is entitled to attorney's fees under Defendant's Individual Limited Guaranty, in which Defendant agreed "to pay all expenses ... by the Agent ... in enforcing this Limited Guaranty, including its reasonable attorney's fees and expenses." In support of its Motion, Plaintiff has attached a copy of the Guaranty, declarations from two of Plaintiff's attorneys, and billing records. Defendant does not dispute that the Guaranty allows for attorney's fees, nor does Defendant dispute the rates charged by Plaintiff's attorneys, but argues that the amount of attorney's fees and costs sought are unreasonable and should be reduced.
Ex. C to Dec. of Peter Levitt.
Declarations of Steven Adams and Peter Levitt, Attachments 1, 4 to Pl's Motion for Attorney's Fees and Costs.
Exs. A and B to Declarations of Steven Adams and Peter Levitt.
First, Defendant argues Plaintiff cannot be awarded fees and costs in connection with the settlement conferences because the settlement conferences were global, involving four other related cases. Although the settlement conferences did involve other related matters, the Court referred the parties to settlement at the parties' request, and said request included all pending matters between the parties. The cases were all factually and procedurally interrelated and all were concurrently pending disposition in this and other jurisdictions. The Court therefore finds the $30,616.50 sought for preparation and participation in the two global settlement conferences reasonable.
The procedural history of this case and its connection to the four other cases is discussed in detail in the Court's Findings of Fact and Conclusions of Law and Order, Doc. No. 211. The Findings of Fact and Conclusions of Law and Order are incorporated herein as if fully set forth.
Second, Defendant argues that the fees and costs Plaintiff incurred in defending against Defendant's counterclaims should not be included because the Guaranty does not, Defendant alleges, provide for or entitle Plaintiff to recover fees or costs incurred in defense of claims asserted by Defendant. However, courts have held that where a guaranty provides for attorney's fees and costs incurred in its enforcement, fees incurred in defending against claims that were integral to its enforcement may also be recovered.
See e.g. , Chrysler First Diversified Credit, Inc. v. Robertson , No. 87-1749, 1989 WL 95366, at *2 (E.D. Pa. Aug. 14, 1989) ; Exchange National Bank v. Daniels , 763 F.2d 286, 294 (7th Cir. 1985).
Defendant originally brought three counterclaims against Plaintiff, alleging that Plaintiff: (1) was grossly negligent in procuring, initiating and continuing a confession of judgment action in the Court of Common Pleas of Bucks County, which was brought to collect the money Defendant owed pursuant to the Guaranty, (2) abused legal process in the confession of judgment action, and (3) breached its contract with Defendant by failing to act in good faith with respect to the Guaranty. These counterclaims were integrally related to enforcement of the Guaranty because Defendant brought affirmative defenses in this action that were based on the same allegations as the counterclaims, the counterclaims focused on alleged wrongdoing in Plaintiff's attempt to enforce the Guaranty, and if successful, the counterclaims would have frustrated enforcement of the Guaranty, as an award of damages to Defendant on these claims would effectively reduce the damages Defendant owed Plaintiff for his breach. Plaintiff is therefore entitled to the attorney's fees and costs it incurred in defending against the counterclaims.
For example, Defendant's Thirteenth Affirmative Defense alleged that Plaintiff's claims were barred by "its consent and ratification of the wrongfully [sic] actions of its agent, among others, in improperly attempting to take action and confess judgment against Rosenberg." Doc. No. 10 at 7.
Third, Defendant argues that the fees sought for trial preparation are unreasonable because the case and trial were not complex, Plaintiff seeks fees for multiple attorneys reviewing the same documents, and the time entries describing the trial preparation performed are vague or inadequate. Although Defendant criticizes the number of hours that counsel spent in preparation, he does not point out the amount of preparation he considers to be reasonable, and while the trial only lasted three days, the Court is well aware that every issue in this case was fiercely contested and litigated. In light of this fact, and as Defendant disclosed that he expected to call 12 witnesses and use hundreds of documents as exhibits, substantial preparation, including multiple attorneys reviewing the same material to prepare for trial, was not unreasonable. Moreover, due to unavoidable circumstances, the trial date had to be postponed two days before it was scheduled to begin and scheduling issues moved the trial date four months, which required at least some repeated preparation. Finally, while some of the time entries state only that counsel performed trial preparation, even this limited description is sufficient, especially because the preparation occurred in close proximity to the trial date. The Court therefore finds that the fees sought for trial preparation are reasonable.
Defendant also argues that Plaintiff includes fees from time entries where it is unclear whether the work was performed on this case or on one of the related matters, but provides no support for this argument.
Doc. No. 143.
Grove v. City of York, Pennsylvania , No. 05-2205, 2007 WL 906439, at *3 (M.D. Pa. Mar. 22, 2007) ("While the court agrees with the City that ‘prepared for trial’ and ‘continued preparation for trial’ are not highly detailed, the court concludes that the description is within the bounds articulated [by the Third Circuit]."). See also Lindy Bros. Builders of Phila. v. Am. Radiator & Standard Sanitary Corp. , 487 F.2d 161, 167 (3d Cir. 1973) ("It is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney. But without some fairly definite information as to the hours devoted to various general activities, e. g. , pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e. g. , senior partners, junior partners, associates, the court cannot know the nature of the services for which compensation is sought.").
Fourth and finally, the Court will not reduce Plaintiff's attorney's fees award to account for time billed for coordinating service of process, as Defendant contends it should, because such tasks were performed by a paralegal and therefore the Court finds the fees assessed for these tasks to be reasonable. AND NOW , this 27th day of April, 2016, upon consideration of Plaintiff's Motion for Attorney's Fees and Costs [Doc. No. 214], and the response thereto, it is hereby ORDERED that the Motion is GRANTED . Plaintiff is awarded reasonable attorney's fees in the amount of $642,017.50 and costs in the amount of $59,577.96, for a total award of $701,595.46. Plaintiff shall submit a proposed final judgment for damages, attorney's fees and costs within 14 days of entry of this Order.
In Defendant's opposition brief, he also argued that the fees and costs should be reduced because: (1) Plaintiff seeks fees for work performed on other related cases in the amount of $6,379; (2) Plaintiff made a mathematical error that increased the attorney's fees sought by $3,744; and (3) Plaintiff seeks to recover travel expenses for local counsel in the amount of $1,634. Plaintiff concedes that five billing records, in the amount of $6, 379, involve work on related cases, that two records contain a mathematical error in the amount of $3,744, and agrees to reduce its request for fees by these amounts and its requests for costs by $1,634 to account for the disputed travel-related expenses. The fees and costs ordered by the Court reflect these reductions.
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It is so ORDERED.