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Carmel & Carmel Pc v. Dellis Construction

May 1, 2012


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


On December 2, 2011, the Court granted Carmel & Carmel PC's ("Carmel") motion to dismiss Clarity LTD's ("Clarity") counterclaims, finding no basis for Clarity's conversion claim and determining that Carmel did not exhibit willful default or gross negligence in failing to distribute the escrowed funds to Clarity prior to filing this interpleader. Memo. Op. [Dkt. # 38]. Carmel now moves for $123,085.47 in attorney's fees and costs under the Escrow Agreement's indemnification provision. Clarity, however, claims that it is not responsible for paying for any of the fees, and even if it is, the fee request should be substantially reduced. The Court will grant Carmel's request for fees in part.


The relevant facts are set forth in this Court's December 2, 2011 Memorandum Opinion [Dkt. # 38] and will not be repeated here.


"The usual method of calculating reasonable attorneys' fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the 'lodestar'*fn1 amount." Bd. of Trs. of Hotel & Restaurant Employees Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). While there is a strong presumption that the lodestar figure represents a reasonable fee, the amount may be adjusted by a multiplier in rare and exceptional cases. Id. (quoting Pennsylvania v. Delaware Valley Citizen's Council for Clean Air, 478 U.S. 546, 565 (1986)). The fee applicant bears the burden of demonstrating that the claimed rate and number of hours are reasonable. Blum v. Stenson, 465 U.S. 886, 897 (1984); Covington v. Dist. of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).

Reasonable attorneys' fees include charges for legal assistants and law clerks. Missouri v. Jenkins, 491 U.S. 274, 285 (1989) ("Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit."). Various forms of litigation expenses that are not fees for attorneys' time - such as copying charges, court reporter fees, and travel costs - may also be included in the award if such expenses are routinely billed by the attorney to his or her client. See New York v. Microsoft Corp., 297 F. Supp. 2d 15, 47-48 (D.D.C. 2003).

Fee applications must "include contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of the work with supporting documents, if any." In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989). A fee applicant may satisfy its burden of demonstrating that its time was reasonably spent by submitting "'sufficiently detailed information about the hours logged and the work done' that permits the district court to 'make an independent determination whether or not the hours claimed are justified.'" Cobell v. Norton, 231 F. Supp. 2d 295, 306 (D.D.C. 2002) (quoting Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)). The application need not, however, "present the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney." Cobell, 231 F. Supp. 2d at 306. The billing descriptions can be read in context, with clarification coming from surrounding billing entries as well as the docket. Heard v. Dist. of Columbia, Civ. No. 02-296 (CKK), 2006 WL 2568013, at *14-15 (D.D.C. Sept. 5, 2006). The number of billable hours in a fee application may be reduced for failure to allocate tasks efficiently among attorneys based on their experience, i.e., where research tasks are performed by relatively senior attorneys more frequently than seems justifiable, or where some attorneys' efforts have been duplicated by others. Davis County Solid Waste Mgmt. & Recovery Special Serv. Dist. v. EPA, 169 F.3d 755,761 (D.C. Cir. 1999). Fees should also not be awarded for time spent litigating claims that were unsuccessful. Copeland v. Marshall, 641 F.2d 880, 891-92 (D.C. Cir. 1980). If a court determines that duplication or waste of effort has occurred, it has the discretion to simply reduce the proposed fee by a reasonable amount without an item-by-item accounting. LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 906 (D.C. Cir. 1998). Outright denial of a fee request or an item within the request is appropriate where a court finds that particular fee request "outrageously unreasonable." Id.


Clarity makes two general arguments in response to Carmel's request for fees: (1) as the losing party in the interpleader action, Dellis Construction LTD ("Dellis") is solely responsible for the attorney's fees, and (2) even if Clarity bears responsibility for attorney's fees, the amount claimed by Carmel is excessive.

A. Disputed Escrow Provisions

3. In the event [Carmel] shall have received the notice of objection provieded for in paragraph 2 of this Escrow Agreement within the time herein prescribed, [Carmel] shall continue to hold the Escrow Amount until . . . (iii) [Carmel] shall take such affrimative steps as [Carmel] may, at [Carmel's] option, elect in order to terminated [Carmel's] duties as Escrowee, including, but not limited to, deposit in Court and an action for interpleader, the costs thereof to be borne by the party that is not entitled to the Escrow Amount.

4. [Carmel] . . . shall not be liable in connection with the performance of any duties imposed upon [Carmel] by the provision of this Escrow Agreement, except for [Carmel's] own willful default or gross negligence, all costs, expenses and losses, (including, without limitation, legal expenses and costs) incurred, expended or suffered by [Carmel] in connection with performing its duties hereunder and/or defending itself hereunder shall be paid by [Dellis] and [Clarity] equally unless specifically provided otherwise in paragraph 3 of this Escrow Agreement, in which even the same shall be paid in whole by the party required by said paragraph 3 to pay the same. . . . In the even that [Carmel] shall be uncertain as to [Carmel's] duties or rights hereunder, or shall receive instructions from [Clarity] or [Dellis] which, in [Carmel's] opinion are in conflict with any of the provisions hereof, [Carmel] shall be entitled to hold and disburse the Escrow Amount pursuant to paragraph 3 of this Escrow Agreement and may decline to take further action.

6. Other than for [Carmel's] willful default or gross negligence, [Delli] and [Clarity] hereby agree to jointly and severally indemnify and hold [Carmel] harmless from any damage, cost, liability or expense (including, but not limited to, reasonable legal fees either paid to retained attorneys or representing the fair value of legal services rendered by [Carmel] which [Carmel] may incur by reason of its acting hereunder without prejudice ...

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