United States District Court, S.D. New York
December 1, 2004.
WELLS FARGO BANK Plaintiff,
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.
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
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
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,
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.
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
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 (S.D.N.Y. Mar. 10, 2004) ($250 per
hour reasonable for attorney with seven years' experience).
Wells Fargo requests paralegal fees of $60 per hour to $110 per
hour. As with the associate fees, the requested fees are
reasonable given the market rate for paralegal services during
the relevant period. Moon v. Gab Kwon, 2002 WL 31512816, at *2
(S.D.N.Y. Nov. 8, 2002) (hourly paralegal rate of $100 held
reasonable); Marathon Ashland Petroleum, 2003 WL 21355216, at
*2 ($99 per hour reasonable for paralegal work).
B. Reasonable Number of Hours
The second part of the lodestar equation is the reasonableness
of the number of hours billed in light of the complexity and
length of the litigation. See Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). The party moving for attorneys'
fees "must adequately describe [billed work] entries so that the
court is informed of the nature or subject of the work." Tran v.
Tran, 166 F. Supp. 2d 793, 800 (S.D.N.Y. 2001). Wells Fargo has
provided the Court with over 80 pages of invoices and anticipated
billing documents, which describe with sufficient specificity the
nature of the work performed, and illustrate to my satisfaction
that the hours billed were in fact reasonable.
C. Other disbursements
Finally, Wells Fargo has requested $937.31 in other fees,
representing telephone calls, facsimile charges, and mail and
freight charges. Since the expenses counsel for Wells Fargo seeks
would normally be charged to fee-paying clients, and do not
appear disproportionate or excessive, the amount requested is
both recoverable and reasonable. See U.S. Football League v.
Nat'l Football League, 887 F.2d 408, 416 ("Attorney's fees
awards include those reasonable out-of-pocket expenses incurred
by attorneys and ordinarily charged to their clients.").
Wells Fargo arrived at its lodestar amount of $107,955 in
attorneys' fees by multiplying the net total hours for each month
(totaling 490.80 for the 31 months of the litigation) by the
rates of each attorney who worked on the case that month.
Reductions were made both in the number of hours billed and the
disbursements, presumably to include only allowable expenses.
For the foregoing reasons, Wells Fargo's application for
attorneys' fees is granted. The defendants are ordered to pay
Wells Fargo $107,955 in attorneys' fees and $937.31 in
disbursements, for a total of $108,892.31.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.