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United States for Use & Benefit of Richardson v. Mack Mechanichal, Inc.

United States District Court, M.D. Tennessee, Nashville Division

April 12, 2017

UNITED STATES FOR THE USE AND BENEFIT OF: TERRY RICHARDSON, individual D/B/A TERRY RICHARDSON CONCRETE, LLC, Plaintiff,
v.
MACK MECHANICAL, INC., and AMERICAN SAFETY CASUALTY INSURANCE COMPANY, Defendants.

          Magistrate Judge Holmes

          MEMORANDUM AND ORDER

          KEVIN H. SHARP, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Plaintiff Terry Richardson d/b/a Terry Richardson Concrete, LLC's (“Richardson”) unopposed[1] Motion for Award of Attorney Fees. (Docket No. 159). On October 21, 2016, the Court granted Plaintiff Richardson's Motion for Summary Judgment on his Miller Act claim. (Docket No. 147). Subsequently, the Court awarded damages to Plaintiff Richardson in the amount of $39, 489.12 after holding a damages hearing. (Docket No. 169). For the reasons stated herein, the Court will grant Plaintiff Richardson's Motion subject to adjustments.

         LEGAL STANDARD

         Because the Miller Act does not provide for an award of attorney's fees to a successful litigant, “the traditional American rule applies that each party bears its own legal costs absent an enforceable contractual provision or evidence of bad faith.” U.S. for Use & Benefit of Ken's Carpets Unlimited, Inc. v. Interstate Landscaping Co., 1994 WL 481684, *8 (6th Cir. 1994) (citing F. D. Rich Co. v. U.S. for Use of Indus. Lumber Co., 417 U.S. 116, 126 (1974)). Here, however, Section VIII of the subcontract between Plaintiff Richardson and Defendant Mack states, “Attorney fees for both parties and court costs shall be paid by the non-prevailing party.” (Docket No. 126-5 at 2).

         As the prevailing party, Plaintiff Richardson is entitled to an award of attorney's fees. “A reasonable fee is one that is ‘adequately compensatory to attract competent counsel yet which avoids producing a windfall for lawyers.'” Dowling v. Litton Loan Servicing LP, 320 F. App'x 442, 446 (6th Cir. 2009) (quoting Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004)). Determining a reasonable fee starts with calculating the lodestar amount-“the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.” Hensley, 461 U.S. at 433. The Court should not consider hours “not reasonably expended” or that were “excessive, redundant, or otherwise unnecessary.” Id. at 434. And the Court may exercise its discretion to reduce an award “where the documentation of hours is inadequate.” Id. at 433.

         To establish the lodestar amount and any adjustments to it, the Court considers the following factors:

(I) the time and labor required by a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (II) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 n.8 (6th Cir. 2000) (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

         ANALYSIS

         Plaintiff Richardson requests attorney's fees and expenses, (Docket No. 167 at 2, ¶ 9), for his attorneys Tyce S. Smith and Mark Turley, one certified paralegal Leatta Nichols, and Smith's personal paralegal/legal assistant JoAnna Exendine (collectively, “Smith & Turley group”). He further requests attorney's fees and expenses, (Docket No. 167-2 at 3-4, ¶ 17), for local counsel J. Brad Scarbrough and Adam O. Knight, junior associate Timothy Bishop, and paralegal Julie Long (collectively, “Scarbrough group”).

         I. Smith & Turley Group

          With respect to the Smith & Turley group, Plaintiff Richardson calculates the amount sought by multiplying the number of hours worked by a reasonable hourly rate. Based on the document setting out the Smith & Turley group's professional service charges and expenses, (Docket No. 167-1), the hourly rates charged for attorneys were $225/hour and $220/hour. The Court finds that the hourly rates of $225/hour and $220/hour for Attorneys Smith and Turley (presumably designated by the initials “TSS” and “MT”) are reasonable given that Smith has practiced law for forty-five years and Turley has practiced for over thirty years. (Docket No. 167 at 1-2, ¶¶ 3, 18). However, the Court observes that there are $220/hour charges for work performed by an individual whose initials appear to be “PMR, ” and one such charge for an individual with the initials “CBW.”

          In the Second Affidavit of Tyce S. Smith, (Docket No. 167), Smith refers to himself, his law partner Turley, and paralegals Nichols and Exendine, but there is no mention of any attorneys with the initials “PMR” and “CBW.” Furthermore, no individuals with the initials “PMR” or “CBW” are listed in the docket among the lawyers representing the parties. Presumably, those individuals are Peter Rohrich and Carrie Williamson, as there is an entry in the professional service charges and expenses document that includes those two names. (Docket No. 167-1 at 8). Because no affidavit was submitted on behalf of ...


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