Saber v. Dileo, 723 F. Supp. 1167 (E.D. La. 1989)

McNAMARA, District Judge.

This case involved a civil odometer fraud action brought under the Motor Vehicle Information and Cost Saving Act, 15 U.S.C. § 1989 (1982). The Plaintiffs purchased a 1983 Jaguar XJ6, and they subsequently learned that its odometer had been adjusted backwards. They then sued three Defendants, James Dileo, Performance Motor Service, Inc., and Leader Buick, Inc. Leader Buick was dismissed on May 23, 1989, from this lawsuit because Leader settled with Plaintiffs for $3,000.00 plus $298.00 in costs. Performance Motor Service, Inc. made an offer of judgment in the amount of $2,100.00 plus a future determination of attorneys' fees and costs accrued as of the date of the offer, which was March 16, 1989. Plaintiffs' counsel accepted this offer on March 22, 1989.

The Trial proceeded against Defendant Dileo before a jury on August 31, 1989. The jury found the Defendant liable and assessed damages in the amount of $3,500.00. Under 15 U.S.C. § 1989, this damage amount must be trebled by the court to $10,500.00. The court requested memoranda from the parties on whether or not the $10,500.00 should be reduced by any amount that the Plaintiffs had received from the two settling Defendants. The court must also determine an appropriate award of attorneys' fees, and determine how these fees should be apportioned among the parties.

The issue of whether Defendant's liability should be reduced by any amount *1168 that the Plaintiffs received from the two settling Defendants has not been directly decided in the Fifth Circuit. In Alley v. Chrysler Credit Corp., 767 F.2d 138 (5th Cir. 1985), the court, however, expressly disapproved of Duval v. Midwest Auto City, Inc., 425 F. Supp. 1381 (D.Neb.1977), aff'd, 578 F.2d 721 (8th Cir.1978), in which the district court held that payment by one defendant diminished the amount of the claim against the other defendants. The Duval court found that the defendants' liability was "joint and several; each is liable for the whole judgment of each plaintiff." Id. at 1388, citing Restatement of the Law, Torts, § 875, p. 434. In rejecting the theory of joint and several liability, the Fifth Circuit in Alley found that each defendant is "separately and individually liable to the plaintiff and is without recourse to recovery from other defendants. The purposes of the statute are advanced by imposing separate and individual liability on each person violating the Act." 767 F.2d at 142, quoting Mataya v. Behm Motors, Inc., 409 F. Supp. 65, 70 (E.D.Wis. 1976) (emphasis supplied).

In accordance with this Fifth Circuit precedent, this court holds that the Defendant Dileo is separately and individually liable to the Plaintiffs for the full amount of $10,500.00. The Defendant, therefore, is not entitled to a reduction of these damages due to the fact that the other two Defendants settled prior to the Trial.

The Defendant Dileo argues that this court should be guided by La.Civ.Code Ann. art. 1803 (West 1989) in determining whether his liability should be reduced by the other Defendants' settlements. It is unnecessary for this court to examine the effect of Article 1803. Although the Plaintiff originally pled causes of action under Louisiana law, this case was decided under 15 U.S.C. § 1989. As a result, federal law must be applied to this issue. Alley, 767 F.2d at 141.

Section 1989(a) (2) provides that a successful plaintiff shall recover "the costs of the action together with reasonable attorney fees...." It is well settled that a district court has discretion in determining the amount of this award. Hensley v. Eckerhart, 461 U.S. 424, 438, 103 S. Ct. 1933, 1941, 76 L. Ed. 2d 40 (1983). The court must "provide a concise, clear explanation of its reasons for the fee award." Id. at 438, 103 S. Ct. at 1941. The most important factor in assessing attorneys' fees are the "results obtained." Id. at 435, 103 S. Ct. at 1940; Duval v. Midwest Auto City, Inc., 578 F.2d 721, 725 (8th Cir.1978). And, "[w]here a plaintiff has obtained excellent results, his attorney should recover a full compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified." Hensley, 461 U.S. at 346, 103 S. Ct. at 1940.

Plaintiff's counsel has submitted an itemized list requesting $19,928.00 in attorneys' fees and $1,715.80 in expenses, for a total of $21,643.80. This request is the attorney's "lodestar" amount, which is the result obtained by multiplying the amount of hours incurred by the attorney's billable rate. Gonzales v. Van's Chevrolet, Inc., 498 F. Supp. 1102, 1106 (D.Del.1980). In assessing the reasonableness of this figure, this court is guided by the Fifth Circuit guidelines for awarding attorneys' fees, as enunciated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The Johnson court set forth twelve factors which a district court may consider in gauging the appropriateness of an award. This court has considered all of the Johnson factors, and will comment specifically on several of them.

The hours claimed by Plaintiff's counsel "are a necessary ingredient" in ascertaining an appropriate award. Johnson, 488 F.2d at 717. The court should "weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities." Id. In addition, the court should look for inefficient utilization of time, effort expended upon superfluous tasks, or any "non-legal *1169 work" which deserves a lesser rate of compensation. Id.

Plaintiffs' counsel's initial consultation with the Plaintiffs was on April 22, 1988. The Trial in this case was held on August 31, 1989. Three Defendants were initially involved, and Plaintiff settled with one Defendant and accepted an offer of judgment against the second Defendant before the Trial. While the legal issues were not necessarily complicated, counsel's efforts in this matter did span an 18-month period with no significant gaps during which the litigation was dormant.

Regarding counsel's hourly rate, this rate should be compared "to the prevailing market rates in the relevant community ..." for similar services by lawyers of reasonably comparable skills. Blum v. Stenson, 465 U.S. 886, 896, 104 S. Ct. 1541, 1547, 79 L. Ed. 2d 891 (1984). This court finds that counsel's requested hourly rate of $100/hr to be reasonable when measured against this standard.

The court, however, agrees with many of the Defendants' exceptions to the Plaintiff's request for fees. Accordingly, the court has deleted certain entries regarding discovery matters which were unnecessary or due to the untimeliness of counsel and other matters which the court finds duplicitous. Finally, this court has reduced the hours on matters which could have been done more expeditiously or by clerical personnel. Defendants' exceptions offer no compelling reasons, however, and this court finds none on its own, to cut the expenses petitioned for. Attached to this Opinion as Exhibit "A" is counsel's itemized request for attorney's fees and expenses, and this court's adjustments.

Plaintiffs accepted an offer of judgment from Performance Motor Service, Inc. for $2,100.00, and Leader Buick settled with Plaintiffs for $3,000.00 plus $298.00 in costs. At Trial, the Jury returned a verdict for $3,500.00, which is trebled to $10,500.00. These figures add up to a total recovery of $15,898.00. This recovery reflects an excellent result for complainant in this litigation.

This court has noted the attorney fee awards in the following cases: Duval v. Midwest Auto City, Inc., 578 F.2d 721 (8th Cir.1978) (fee of $14,000.00 and damages of $3,960.00); Tusa v. Omaha Auto Auction, Inc., 712 F.2d 1248 (8th Cir.1983) (fee of $8,000.00 and damages of $1,500.00); Gonzales v. Van's Chevrolet, Inc., 498 F. Supp. 1102 (D.Del.1980) (fee of $9,000.00 and damages of $7,105.98); Shore v. J. C. Phillips Motor Co., 567 F.2d 1364 (5th Cir.1978) (fee of $2,000.00 and damages of $3,000.00); Fleet Inv. Co. v. Rogers, 620 F.2d 792 (10th Cir.1980) (fee of $5,000.00 and damages of $2,551.50). These cases, and others, indicate that there must be some relationship between the damage award and the attorneys fees. In Tusa, the Eighth Circuit paid attention to the proportion between the damages awarded and the fee requested in determining the award's compatibility with amounts given in other cases under the federal statute. Tusa, 712 F.2d at 1255. The proportion between the fee and the damages in the Duval case was 3.5 to 1. Considering the result obtained, the award herein is not inconsistent with the cited jurisprudence.

A consideration of the nature of this case and the Johnson factors leads this court to conclude that Plaintiff's counsel in this action deserves a fee award reflecting 135.55 hours of legal work at $100/hr, or $13,555.00. Additionally, counsel is entitled to expenses in the amount of $1,715.80.

This award will be apportioned among the three Defendants in the following manner. The Plaintiffs accepted an offer of judgment tendered by Performance Motor Service, Inc. which provided for costs and attorney's fees accrued as of the date of the offer, which was March 16, 1989. Since there were three Defendants until that date, Performance Motors will be held liable for one-third of the attorneys' fees accrued until March 16, 1989. Performance Motors' share of the attorneys' fees therefore comes out to $2,434.33. Leader *1170 Buick settled with the Plaintiffs and was dismissed from the instant action on May 22, 1989. Leader Buick's share of the attorney's fees is as follows: one-third of the attorneys' fees until the date of Performance Motor's offer of judgment, which is $2,434.33; and one-half of the fees incurred between the time of Performance Motor's offer and the time of Leader Buick's settlement with the Plaintiffs, which is $1,184.00. Leader Buick's total share of attorney's fees, therefore, is $3,618.33. This amount, however, is not recoverable since Leader Buick settled with Plaintiff. The final Defendant, James Dileo, is responsible for one-third of the fees incurred up until the time that Performance Motor's offer of judgment. As stated earlier, this amounts to $2,434.33. Dileo also owes one-half of the fees incurred between the time of Performance Motor's offer and the time of Leader Buick's settlement with the Plaintiff. This amounts to $1,184.00. Finally, Dileo is responsible for all of the fees incurred between the time that Leader Buick settled and the resolution of this case. This figure is $3,884.00. Dileo's total share, therefore, is $7,502.33.

The court shall utilize the same method for apportioning the Plaintiff's costs and expenses. Performance Motor owes one-third of the costs and expenses accrued as of March 16, 1989, which is $440.30. Leader Buick's share includes one-third until March 16, 1989 ($440.30), and one-half until their settlement with Plaintiff, which is $37.50. Leader Buick's total share is $477.80, but this amount is not recoverable due to the settlement. Defendant Dileo owes one-third until March 16, 1989 ($440.30), one-half until Leader Buick's settlement ($37.50), and the remaining expenses ($319.90), for a total of $797.70.

Accordingly, IT IS ORDERED that the Defendant Dileo is not entitled to any credit due to the settlements reached by the other Defendants. As such, the Defendant Dileo is responsible for $10,500.00 in damages to the Plaintiffs. Regarding attorney's fees, expenses and costs, Defendant Dileo owes Plaintiff $8,300.03, and Performance Motor Service owes Plaintiff $2,874.63. Plaintiff is also entitled to interest on this judgment from the date of entry of the judgment until the date of payment, pursuant to 28 U.S.C. § 1961(a) (West Supp.1989).

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