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WELLS FARGO BANK v. BROOKSAMERICA MORTGAGE CORPORATION

December 1, 2004.

WELLS FARGO BANK Plaintiff,
v.
BROOKSAMERICA MORTGAGE CORPORATION, and MICHAEL W. BROOKS, Defendants.



The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Nelson Wen, a Fall 2004 intern in my Chambers and second-year law student at New York University School of Law, provided substantive assistance in the research and drafting of this opinion.

OPINION & ORDER

On September 13, 2004, Plaintiff Wells Fargo Bank, National Association ("Wells Fargo") was granted summary judgment, pursuant to Fed.R.Civ.P. 56, on all claims against Defendants BrooksAmerica Mortgage Corporation ("BrooksAmerica") and Michael Brooks, and was awarded $334,140.44 plus pre-judgment interest. As part of the Order, Plaintiff was also awarded attorneys' fees, in an amount to be determined. Accordingly, Plaintiff moves, pursuant to Fed.R.Civ.P. 54, for an award of $108,892.31 in attorneys' fees and other disbursements. For the reasons set forth below, Wells Fargo's motion is GRANTED.

I. BACKGROUND*fn2

  Wells Fargo references two provisions, one in the Lease and one in the Guaranty, which set forth BrooksAmerica's obligations with respect to attorneys' fees. The first provision, found in the Lease, provides:
Lessee [BrooksAmerica] shall pay all costs and expenses incurred by Lessor [Wells Fargo] in exercising any of its rights or remedies under this Lease, including expenses of retaking, holding, preparing for lease or sale, or leasing and selling of the Equipment, and reasonable attorneys' fees and legal expenses.
The provision in the Guaranty reads as follows:
The undersigned hereby agree[s], without demand, immediately to reimburse Lessor for all costs and expenses including reasonable attorneys' fees incurred in the enforcement of this guaranty.
(Bass Decl. Ex. B, Gaur. Agr.). This Court held BrooksAmerica liable to Wells Fargo for payments pursuant to the Lease and awarded both pre-judgment interest and attorneys' fees. Wells Fargo v. BrooksAmerica, No. 02 Civ. 446702, 2004 WL 2072358, at *11 (S.D.N.Y. Sept. 14, 2004).

  Wells Fargo estimated $108,892.31 for legal services expended in the prosecution of its suit against BrooksAmerica. In particular, Wells Fargo seeks $107,955 in attorneys' fees and $937.31 in disbursements (including long-distance telephone calls, facsimile charges and mail and freight charges). BrooksAmerica did not file a reply.

  II. DISCUSSION

  Under the general "American rule," "attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule." Hooper Assoc., Ltd. v. AGS Computers, Inc., 549 N.Y.S. 2d 365 (1989). Provided the parties agree to an award of attorney fees, the amount is generally determined by "[A] the number of hours reasonably expended on the litigation multiplied by [B] a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

  A. Reasonable Hourly Rates

  To be reasonable, requested hourly rates charged for legal services must be "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984). The community by which this Court evaluates the reasonableness of hourly rates is the Southern District of New York. W. ex rel. N.W. v. Brd. of Educ. of City of New York (Dist. Two), 257 F. Supp. 2d 600, 604 (S.D.N.Y. 2003) ("The relevant community to which the court should look is the district in which the case was brought."). In support of a requested hourly rate, the moving party may not rely solely on affidavits of attorneys, Blum, 465 U.S. at 896, but must provide "contemporaneous time records that . . . specify the name of each attorney working on the file, the date the work was done, the hours spent, and the nature of the work performed." Mikes v. Straus, 274 F.3d 687 (2d Cir. 2001). A determination of reasonable attorneys' fees in this district should "look to the rates charged by comparable firms in the New York area in each of the years" of the litigation. Gucci America, Inc. v. Rebecca Gold Enter., Inc., No. 89 Civ. 4736, 1993 WL 88270, at *4 (S.D.N.Y. Mar. 23, 1993). Counsel for Wells Fargo in this matter, Kutak Rock LLP, is a large firm of approximately 325 attorneys that worked on the case from March 2002 until October 19, 2004. Seven partners and "of counsel" attorneys, four associates, five paralegals, and one summer associate billed for their time spent on this case.*fn3

  1. Rates for Partners and Of Counsel

  Wells Fargo requests from $290 (in 2002) to $350 (in 2004) per hour for lead counsel (who has 23 years' experience), and from $200 to $350 per hour for the other partners and "of counsel" attorneys who worked on the case (who have between 8 and 25 years' experience). (Bass Decl. Ex. 1; 3). These rates fall well within the range of rates awarded to partners of large law firms with comparable experience in 2002, and, therefore, are reasonable. See Baird v. Boies, Schiller & Flexner LLP, 219 F.Supp.2d 510, 523 (S.D.N.Y. 2002) ($375 per hour for a partner with fourteen years' experience and $300 per hour for a partner with ten years' experience were reasonable); McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, No. 99 Civ. 9054, 2002 WL 1974054, at *4 (S.D.N.Y. Aug. 27, 2002) ($325 per hour reasonable rate for a partner with over twenty years' experience); L.G.W.U. Nat'l Ret. Fund v. ESI Group, Inc., No. 92 Civ. 0597, 2003 WL 135797, at *3 (S.D.N.Y. Jan. 17, 2003) ($350 per hour reasonable for experienced partners).

  2. Rates for Associates

  Wells Fargo seeks between $110 per hour (in 2002) and $220 per hour (in 2004) for associates who range from summer associates to associates with 12 years' experience. Such fees appear reasonable in light of awards given to associates with comparable experience in this District. See Irish v. City of New York, No. 98 Civ. 7131, 2004 WL 444544, at *4 ...


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