IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MARK R. GACEK and PAMELA 

GACEK,

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Plaintiff,

vs. CIVIL ACTION NO. 15-662-CG-M

JENE OWENS, JUDGE 

GRADDICK, individually and in 

his official capacity, GARY 

FILLINGIM, ANTHONY 

HOFFMAN, GILBERT 

FONTENOT, 

Defendants.

ORDER

This matter is before the Court on the Defendants’ responses (Docs. 32, 33, 

34, 35) to this Court’s Order awarding the Defendants attorneys’ fees and expenses, 

Plaintiffs’ objection to the requested fees and expenses (Doc. 36), and Defendant 

Owens’ reply to Plaintiffs’ objection (Doc. 39). This Court, by Order dated August 

31, 2016 (Doc. 31), imposed a sanction against Plaintiffs, in the form of attorneys’ 

fees and expenses. This Court found that Plaintiffs’ Complaint was not only 

frivolous but was filed in bad faith and that sanctions were appropriate to deter 

repetition of the conduct and to compensate the Defendants. (Doc. 31, p. 10). The 

Court ordered Defendants to file an accounting with supporting affidavits of any 

fees and expenses they incurred in defending this action and ordered Plaintiffs to 

file any response they had to the reasonableness of the fees and expenses 

submitted. 

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Generally, the determination of reasonable attorneys’ fees begins with a 

determination of the reasonable hourly rate multiplied by the “hours reasonably 

expended.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). “The 

product of these two figures is the lodestar and there is a strong presumption that 

the lodestar is the reasonable sum the attorneys deserve.” Id. (internal citations and 

quotation omitted). When making this “lodestar” determination, the Court may 

consider the twelve factors identified in Pharmacia Corp. v. McGowan, 915 So.2d 

549, 552–53 (Ala. 2004). These factors are: 

(1) [T]he nature and value of the subject matter of the employment; (2) 

the learning, skill, and labor requisite to its proper discharge; (3) the 

time consumed; (4) the professional experience and reputation of the 

attorney; (5) the weight of his responsibilities; (6) the measure of 

success achieved; (7) the reasonable expenses incurred; (8) whether a 

fee is fixed or contingent; (9) the nature and length of a professional 

relationship; (10) the fee customarily charged in the locality for similar 

legal services; (11) the likelihood that a particular employment may 

preclude other employment; and (12) the time limitations imposed by 

the client or by the circumstances.

Id. (quoting Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)).

After the lodestar is determined by multiplication of a reasonable hourly rate 

times hours reasonably expended, the Court must next consider the necessity of an 

adjustment for results obtained. If the party achieved an excellent result, then the 

Court should compensate for all hours reasonably expended. Popham v. City of 

Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987). If the party achieved limited 

success, then the Court may reduce the amount of fees that is reasonable in relation 

to the results obtained. Hensley v. Eckerhart, 461 U.S. 424, 436–37 (1983). In doing 

so, the Court may attempt to identify specific hours spent in unsuccessful claims, or 

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it may simply reduce the award by some proportion. Id.

The party seeking fees has the burden of supplying the Court with sufficient 

evidence from which the Court can determine the reasonable hourly rate for the 

attorneys and staff who worked on the litigation. Norman v. Hous. Auth. of City of 

Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). A reasonable hourly rate is 

often “the prevailing market rate in the relevant legal community for similar 

services by lawyers of reasonably comparable skills, experience, and reputation.” 

Garrett Investments, LLC v. SE Prop. Holdings, LLC, 956 F. Supp. 2d 1330, 1339 

(S.D. Ala. 2013). In that regard, “[s]atisfactory evidence at a minimum is more than 

the affidavit of the attorney performing the work.” Norman, 836 F.2d at 1299 

(citation omitted). When reviewing attorneys’ fees, the Court may rely upon its own 

“knowledge and experience” to form an “independent judgment” as to a reasonable 

hourly rate. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing 

Norman, 836 F.2d at 1303); see also Garrett Investments, LLC, 956 F. Supp. 2d at 

1340-41 (compiling market rates for attorneys with varied amounts of experience).

The party seeking to recover fees also has the burden of establishing 

reasonable hours. Lee v. Krystal Co., 918 F. Supp. 2d 1261, 1266 (S.D. Ala. 2013). 

Reasonable hours are established through billing statements or invoices that state 

with sufficient particularity the nature of the work performed and by whom so the 

Court may determine the reasonableness of the time expended. And if fee 

applicants do not exercise billing judgment, courts are obligated to do it for them, to 

cut the amount of hours for which payment is sought, pruning out those that are 

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excessive, redundant, or otherwise unnecessary. Norman, 836 F.2d at 1301. 

“Courts are not authorized to be generous with the money of others.” ACLU of Ga. v. 

Barnes, 168 F.3d 423, 428 (11th Cir. 1999).

Jeffrey R. Sport, as counsel for Defendant Jene Owens, filed a declaration 

with supporting exhibits claiming attorney’s fees in the amount of $22,695.00 

consisting of 82.3 hours for litigating the case at a rate of $250 per hour and 10.6 

hours for preparing and litigating the fee application at a rate of $200 per hour. 

(Doc. 32). Mr. Sport also claims costs in the amount of $6.75 for an AlaCourt page 

overage charge for researching attributed to this case and $17.98 for certified mail 

service. (Doc. 32-1, p. 4). Mr. Sport later submitted a reply that included an 

updated time summary showing an additional 5.9 hours spent preparing the reply

to Plaintiffs’ objection to his fee application. (Doc. 39). William M. Cunningham, 

Jr., as counsel for Defendant Gary W. Fillingim, Jr., filed a declaration with 

supporting exhibits claiming attorney’s fees in the amount of $6,780.00, consisting 

of 22.6 hours at a rate of $300.00 per hour. (Doc. 33). Thomas H. Benton, Jr., as 

counsel for Defendant Anthony Hoffman, filed an affidavit with an attached 

accounting claiming attorney’s fees totaling $4,159.50, consisting of 14.1 hours at a 

rate of $295.00 per hour. (Doc. 34). Lastly, Richard Maples, Jr., as counsel for 

Defendant Gilbert Fontenot, submitted affidavits and supporting documents 

claiming attorney’s fees in the amount of $11,675.00, consisting of 46.7 hours at a 

rate of $250 per hour, plus expenses in the amount of $18.94, for a total request of 

$11,693.94. (Doc. 35).

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Plaintiffs object to the amount of hours expended by attorneys Sport and 

Maples as excessive and contends they should be more in line with attorneys 

Cunningham and Benton. Plaintiff also asserts that Sport’s hourly rate should be 

reduced to $200 per hour. In the alternative, Plaintiff suggests the Court may 

choose to simply cut the fee awards by a percentage so that they are in line with the 

amounts claimed by Cunningham and Benton.

Attorney Sport has been practicing in Alabama for approximately 10 years 

and has been a solo practitioner since 2014. (Doc. 32, pp. 1-2). Mr. Sport submitted 

the affidavit of attorney David F. Daniel who opined that the legal services provided 

by Sport “were superior, involving substantial factual and legal issues in a rather 

novel area of law” and “the result obtained was superior, not only as to the outcome, 

but also with respect to the time frame within which this result was obtained.” (Doc. 

32-3, p. 3). Mr. Daniel is familiar with the fees charges for services by lawyers 

practicing in this area in similar matters in this federal forum and avers that the 

prevailing fee range for such non-contingent hourly work by attorneys of Mr. Sport’s 

experience is between $225 and $325.00 per hour. (Doc. 32-3, p. 3). Mr. Daniel also 

avers that the hours incurred by Mr. Sport in defending the case “were necessary 

and reasonable in light of the legal and factual issues presented, the result 

obtained, and the compressed time frame within which the result was obtained.” 

(Doc. 32-3, p. 3-4). The Court notes that Mr. Sport spent considerably more time 

defending Mr. Owens than the other counsel incurred in defending the other 

defendants. However, counsel for the other defendants had the advantage of being 

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able to simply follow Mr. Sport’s lead and adopt his arguments in defense of their 

clients. It was not necessary for the other attorneys to spend as much time on this 

matter because Owens and his counsel did most of the work for them. As such it is 

not reasonable to compare the times spent by Sport to that of the other attorneys 

and expect them to be similar. If Sport had not put the time and effort he did into 

this matter, the other attorneys would have either had to incur more hours in their 

defense or the defendants would not have obtained the swift favorable result that 

occurred. The Court notes that the attorneys Plaintiffs want to compare Sport’s 

work to (Mr. Benton and Mr. Cunningham) charged more per hour for the work 

they did. 

Plaintiffs and Sport quibble over whether compensation is appropriate for 

“background research.” However, Mr. Sport makes clear that the research 

Plaintiffs object to was not for background research but to review the statutes and 

cases cited by Plaintiffs in their complaint and to review procedural rules and case 

law to support Owens’ motions and responses to Plaintiff’s motions. 

Mr. Sport concedes that the time entry of .6 hour on March 11, 2016 was 

“largely procedural in nature,” but states that the time was incurred by him 

because he did not have an assistant to perform the tasks. Sport appears to admit 

that the hourly rate charged for that entry should be reduced and the Court agrees. 

Mr. Sport cites case law in which this Court previously found that an hourly rate of 

$120 for a paralegal with 11 years experience was reasonable. See Gulf Coast 

Asphalt Co. v. Chevron U.S.A., Inc., 2011 WL 612737, *4 S.D. Ala. Feb. 11, 2011). 

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Accordingly, the Court finds the .6 hours incurred on March 11, 2016 should be 

charged at a rate of $120 per hour. 

After reviewing Mr. Sport’s detailed accounting of the hours spent on this 

matter, the Court finds that the time charged was reasonable and necessarily 

incurred. The Court also finds that the rate of $250 per hour charged by Mr. Sport 

for the majority of his time was reasonable considering the fees customarily charged 

for similar services by attorneys of his experience, the nature of the subject matter 

and the measure of success achieved. A portion of the fees (10.6 hours for preparing 

and litigating the fee application and 5.9 hours associated with Sport’s reply to 

Plaintiffs’ objection to his fee application) was only charged at a rate of $200 per 

hour, the rate advocated by Plaintiff. Additionally, as discussed above, the Court 

will reduce .6 of the hours charged by Sport to the rate of $120 per hour. Thus, Mr. 

Sport’s reasonable fees are the following:

Hours Rate Amount

81.7 $250 $20,425.00

10.6 $200 $2,120.00

5.9 $200 $1,180.00

.6 $120 $72.00

Total: $23,797.00

Mr. Sport also claims costs in the amount of $24.73, which has not been 

objected to. The Court notes that the cost total includes $6.75 in AlaCourt page 

overage charge. Although Pacer and AlaCourt charges are frequently not 

recoverable since parties to cases can view the documents in their cases without 

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incurring a charge attributed to that case, this case involved prior state court cases 

in which Mr. Sport did not appear as counsel. The Court notes that Mr. Sport did 

not include as a cost his regular subscription payment to AlaCourt, but only the 

overage charge attributed to litigation of this case. (Doc. 32-2, p. 1). As such, the 

Court finds it is appropriate to include the AlaCourt charge as a reasonable cost in 

this case.

Plaintiffs make only a general objection to the fees incurred by Maples, 

asserting that they are unreasonable in comparison to the fees charged by Mr. 

Cunningham and Mr. Benton. Mr. Maples has been practicing for 44 years and 

seeks to be reimbursed for 46.70 hours at a rate of $250 per hour. The Court finds 

Mr. Maples’ hourly rate, which is less than that charged by Cunningham or Benton, 

is reasonable, given the fees customarily charged for similar services by attorneys of 

his experience. A review of Mr. Maples’ time entries indicates that one of the main 

differences between the number of hours charged by Mr. Maples and the number 

charged by Cunningham and Benton is that Maples spent considerable time 

researching and preparing a Rule 11 motion. That motion was never filed, 

presumably because Plaintiff moved for voluntary dismissal without prejudice on 

February 16, 2016. (Doc. 21). The Court, after reviewing Mr. Maples’ accounting 

finds that the times charged were reasonable. Accordingly, the Court will award 

Mr. Maples fees in the amount of $11,675.00. 

Mr. Maples also seeks expenses in the amount of $18.94, for PACER charges 

and certified mail postage. As mentioned above with regard to Mr. Sport’s 

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expenses, Pacer charges are usually not recoverable since parties to cases can view 

the documents in their cases without incurring a charge. The parties received a 

“free look” at all filings in their case and Mr. Maples has offered no explanation why 

any PACER charges were necessarily incurred in this case. See Lee v. Krystal Co., 

918 F. Supp. 2d 1261, 1275 (S.D. Ala. 2013) (“the PACER charge is not documented 

or explained in any meaningful way, and appears invalid given that litigants in this 

District Court get a “free look” at all filings in their case, with no PACER charges”). 

Accordingly, the amount requested for PACER usage, $3.60, will be disallowed. The 

Court finds the charge of $15.34 for certified mail was reasonable.

As to the fees and expenses requested by Mr. Cunningham and Mr. Benton, 

the Court finds that the amounts submitted are reasonable and were necessarily 

incurred in litigating this case. The affidavits submitted by Mr. Cunningham and 

Mr. Benton support their requested hourly rate and the number of hours they 

incurred in litigating this matter are reasonable. 

The Court notes that the fees and expenses to be awarded in this case are 

considerable, given that there was no discovery conducted and there was no trial or 

hearings in this case. The total amount to be awarded is $46,451.57. The size of 

the award is due in part to the number of parties involved. The Court found above 

that the amounts were reasonable, but also finds that the award is especially 

warranted in light of the Plaintiffs’ history of litigation abuse. As stated in the 

order finding sanctions appropriate, “[a] court must fashion a sanction that not only 

punishes the wrongdoer but also deters future misconduct.” Belak v. American 

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Eagle, Inc. 2001 WL 253608, *5 -6 (S.D. Fla. March 12, 2001) (citing USX Corp. v. 

Tieco, Inc., 189 F.R.D. 674, 678 (M.D. Ala. 1999)). The Court believes this award is 

necessary to both reimburse the Defendants and to deter any future litigation abuse 

by the Plaintiffs.

CONCLUSION

For the reasons stated above as well as those stated in this Court’s previous 

order of August 12, 2016 (Doc. 31), a SANCTION is hereby imposed against 

Plaintiffs as follows:

1. Defendant Jene Owens is awarded attorney’s fees and expenses in the 

amount of $23,821.73;

2. Defendant Gary Fillingim is awarded attorney’s fees and expenses in 

the amount of $6,780.00;

3. Defendant Gilbert Fontenot is awarded attorney’s fees and expenses in 

the amount of $11,690.34; and 

4. Defendant Anthony Hoffman is awarded attorney’s fees and expenses 

in the amount of $4,159.50.

DONE and ORDERED this 13th day of October, 2016.

/s/ Callie V. S. Granade

SENIOR UNITED STATES DISTRICT JUDGE

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