United States District Court, W.D. Arkansas, Hot Springs Division
O. Hickey, United States District Judge.
the Court is a Motion for Attorneys' Fees and Costs filed
by Plaintiff HCA Franchise Corporation (“HCA”).
ECF No. 50. Defendants Southern Home Care Assistance, Inc.,
Zachary F. Smith, and Lindsey R. Smith (collectively,
“Defendants”) have filed a response. ECF No. 54.
The Court finds this matter ripe for its consideration. For
the reasons explained below, HCA's motion is granted in
part and denied in part.
factual and procedural history of this litigation is known to
the parties and the Court will not repeat it
here. The Court, however, will recall a few
facts to provide a proper background for the instant motion.
On December 9, 2016, HCA filed this action asserting multiple
claims against Defendants arising from the alleged violation
of a Franchise Agreement executed by the parties, including
breach of contract, interference with contractual relations,
misappropriation of trade secrets and unjust enrichment. ECF
No. 1. As part of its prayer for relief, HCA sought to enjoin
Defendants from further violating the Franchise Agreement.
case was resolved with the entry of a Stipulated Order for
Permanent Injunction (“Stipulated Injunction”) on
December 21, 2016, which enjoined Defendants from engaging in
specified acts. ECF No. 11. Notably, the Stipulated
Injunction enjoined Defendants from using HCA's
trademarks and competing with HCA and its new franchisee in
the ways described in the Franchise Agreement. The Stipulated
Injunction further directed Defendants to remove all
instances of HCA's marks from their business properties;
provide copies of any and all customer or client lists
relating to their formerly franchised business, retaining no
copies; and provide or assign to HCA all telephone numbers
that were previously associated with Defendants' former
January 2017, HCA filed a motion which asserted that
Defendants were in violation of the Stipulated Injunction.
ECF No. 19. To that end, HCA sought an order finding
Defendants in contempt of court, as well as an award of
attorneys' fees and costs associated with bringing the
motion. After extensive briefing, the Court held a hearing on
the matter on September 7, 2017. On September 27, 2017, the
Court entered an order granting HCA's Motion for
Contempt. ECF No. 49. Specifically, the Court found that
Defendants violated the Stipulated Injunction's
noncompetition provisions and failed to transfer the phone
numbers associated with their former franchise as required by
the Stipulated Injunction.
order finding Defendants in contempt, the Court found it
appropriate to award HCA the attorneys' fees and costs it
incurred as a result of bringing the contempt motion. The
Court directed HCA to submit verified documentation of the
attorneys' fees and costs associated with the motion and
permitted Defendants to file a written response on the issue.
HCA now brings the instant motion seeking $27, 718.50 in
attorneys' fees and $207.75 in costs. In response,
Defendants argue that the hourly rate charged by HCA's
counsel is unreasonable and the total number of hours
expended in this matter is excessive.
court may award reasonable expenses and attorney's fees
incurred in bringing [a] contempt motion as a form of
compensatory relief.” Harris v. Wrob, No.
4:97CV01604 ERW, 2012 WL 666735, at *4 (E.D. Mo. Feb. 29,
2012) (citing Jake's Ltd. v. City of Coates, 356
F.3d 896, 900 (8th Cir. 2004)). When determining a reasonable
amount of attorneys' fees, “[t]he starting point .
. . is the lodestar, which is calculated by multiplying the
number of hours reasonably expended by the reasonable hourly
rates.” Fish v. St. Cloud State Univ., 295
F.3d 849, 851 (8th Cir. 2002) (citing Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983)). “Although
a counsel's customary rate might be some evidence of a
reasonable rate, it is not controlling.” Moysis v.
DTG Datanet, 278 F.3d 819, 828 (8th Cir. 2002) (citation
omitted). “As a general rule, a reasonable hourly rate
is the prevailing market rate, that is, the ordinary rate for
similar work in the community where the case has been
litigated.” Id. (citation and quotations
determining the lodestar amount, the Court must then
“consider whether other factors not considered in
arriving at the lodestar amount suggest upward or downward
adjustment to arrive at the appropriate fee award.”
Reeder-Simco GMC, Inc. v. Volvo GM Heavy Truck
Corp., No. CIV. 00-2031, 2006 WL 1445719, at *1 (W.D.
Ark. May 22, 2006) (citing Hensley, 461 U.S. at
434). Although the Court “need not
exhaustively address every factor[, ]. . . the district court
should consider those factors, ‘in the context of the
present case, [that] deserve explicit
consideration.'” Sherman v. Kasotakis, 314
F.Supp.2d 843, 882 (N.D. Iowa 2004) (quoting Griffin v.
Jim Jamison, Inc., 188 F.3d 996, 997-98 (8th Cir.1999)).
“[T]he fee applicant bears the burden of establishing
entitlement to an award and documenting the appropriate hours
expended and hourly rates.” Hensley, 461 U.S.
at 437. The fee applicant must also make a “good faith
effort to exclude from her fee request hours that are
excessive, redundant, or otherwise unnecessary.”
Microsoft Corp. v. Delta Computer Experts, LLC, No.
5:08CV0168 BSM, 2009 WL 348268, at *1 (E.D. Ark. Feb. 11,
2009) (citation omitted).
present case, HCA's counsel have submitted affidavits and
statements for fees and costs in support of the $27, 718.50
in attorneys' fees requested for representing HCA in this
litigation. The supporting documents reveal that lead
counsel, Matthew Kreutzer, performed 16.3 hours of service at
a rate of $325 per hour and local counsel, Darby Doan,
performed 38.1 hours of service at a rate of $475 per hour.
The documents further reveal that Doan's paralegal
performed 6.5 hours of services at a rate of $130 per hour,
and an associate attorney employed by Doan performed 14.7
hours of service at a rate of $235 per hour.
contend that neither attorney is entitled to charge a fee in
excess of $250 per hour for the legal services involved in
this case. In addition, Defendants maintain that the number
of hours expended on this matter were excessive. Without
citing any specific billed entries, Defendants argue that the
issues presented in this litigation did not require the
services of three lawyers and one paralegal to represent
HCA's interests. In Defendants' view, many of the
services billed by Doan-such as conferences, edits and
reviews-could have been assigned to an associate attorney or
a paralegal as a cost saving measure.
Court has thoroughly reviewed the billing statements
submitted by HCA and finds that many of the billed entries
are either excessive, redundant, or unnecessary. The Court,
therefore, will reduce the number of hours that were not
reasonably expended by HCA's counsel. Accordingly, the
Court finds the total number of allowable hours for Matthew
Kreutzer to be 14. The Court finds the total number of
allowable hours for Darby Doan to be 33.6. The Court further
finds the total number of allowable hours for Mr. Doan's
associate attorney to be 11.8 and the total number of hours
allowed for his paralegal to be 5.5.
addition, the Court finds that the hourly rates billed are
excessive and should be reduced. See Warnock v.
Archer, 397 F.3d 1024, 1027 (8th Cir. 2005)
(“[W]hen fixing hourly rates, courts may draw on their
own experience and knowledge of prevailing market
rates.”). In reaching this conclusion, the Court notes
that the issues actually litigated in this matter were not
particularly complex or novel. Based on the Court's
experience, rates of $225 per hour for a senior attorney,
$175 per hour for an associate attorney, and $75 per hour for
a paralegal are reasonable given the prevailing market ...