United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING MOTIONS TO SET ASIDE DEFAULTS AND
DEFAULT JUDGMENT, DENYING MOTION FOR DEFAULT JUDGMENT, AND
AWARDING FEES AND COSTS
M. LAWSON UNITED STATES DISTRICT JUDGE.
matters are before the Court on the plaintiff's motion
for entry of default judgment against garnishee-defendant
Brandon Larson (“Brandon”), Brandon's amended
motion to set aside the Clerk's entries of default, and
garnishee-defendant Insureplex Market Solutions, Inc.'s
(Insureplex) motion to set aside default judgment. The Court
commenced a hearing on the plaintiff's motions for
default judgment against Brandon and his company Insureplex
on December 4, 2018, at which time the Court granted default
judgment in favor of the plaintiff as to Insureplex and took
the motion as to Brandon under advisement. The Court
permitted Brandon, who was proceeding pro se, to
file a motion to set aside the entries of default as to the
periodic and nonperiodic writs of garnishment issued in this
case. See ECF No. 282 and 289. Brandon thereafter
retained counsel on behalf of himself and Insureplex. His
counsel filed motions to set aside the entries of default and
default judgment, and the plaintiff filed responses.
Court reviewed the parties' submissions and continued the
hearing on February 27, 2019. At the conclusion of the
hearing, the Court announced from the bench its decision to
deny the plaintiff's motion for default judgment and to
grant Brandon's motion to set aside the entries of
default, finding that the garnishee-defendant established
good cause under Federal Rule of Civil Procedure 55(c). The
Court also granted Insureplex's motion to set aside the
default judgment, finding that Insureplex's failure to
answer the writs of garnishment qualified as excusable
neglect under Federal Rule of Civil Procedure 60(b)(1). The
Court, however, conditioned the setting aside of the defaults
and default judgment upon the payment of fees and costs and
allowed the plaintiff to submit an affidavit outlining the
expenses incurred related to these motions.
March 1, 2019, Debra Beth Pevos, attorney for the plaintiff,
filed an affidavit indicating that her hourly rate is $300.00
and that she expended 54.4 hours servicing these matters. The
affidavit requested $16, 320.00 in fees and $475.78 in costs.
See Pevos Aff. ¶¶ 8-11, ECF No. 367,
PageID.4366. Brandon and Insureplex filed a joint response to
the request, concurring in the hourly rate but requesting a
detailed billing invoice to properly evaluate the validity of
the charges. See ECF No. 371. At the Court's
direction, Ms. Pevos thereafter filed a supplement with an
itemized breakdown of the hours expended servicing these
matters; Ms. Pevos noted that the invoice reflected a greater
amount of costs than initially requested. See ECF
No. 375. Brandon and Insureplex then filed another joint
response, listing 51 objections to specific billing entries,
disputing them on various grounds, including that the
services were unrelated to the motions or duplicative of
previous entries, that the time billed was not reasonably
expended time for the service provided, and that the service
should have been billed at the paralegal rate. See
ECF No. 378. Ms. Pevos replied that all services set forth in
her filings were legal services performed by her only and
pertained to matters concerning Brandon and Insureplex.
first step for a district court “[i]n setting an award
of attorneys' fees, ” ordinarily is to
“arrive at the lodestar amount by multiplying the
number of hours reasonably expended on the litigation by a
reasonable hourly rate.” U.S. Structures, Inc. v.
J.P. Structures, Inc., 130 F.3d 1185 1193 (6th Cir.
1997) (citing Hensley v. Eckerhart, 461 U.S. 424,
433-37 (1983) (noting that “[t]he most useful starting
point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate”)). “The
party seeking attorney's fees ‘bears the burden of
establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.'”
Yellowbook Inc. v. Brandeberry, 708 F.3d 837 848
(6th Cir. 2013) (quoting Hensley, 461 U.S. at 437).
“The key requirement for an award of attorney's
fees is that the documentation offered in support of the
hours charged must be of sufficient detail and probative
value to enable the court to determine with a high degree of
certainty that such hours were actually and reasonably
expended in the prosecution of the litigation.”
Inwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,
553 (6th Cir. 2008). The trial judge must “question the
time, expertise, and professional work of [the] lawyer”
applying for fees. Earl v. Beaulieu, 620 F.2d 101,
103 (5th Cir. 1980). And, in calculating the appropriate
award, “the district court is required to give a clear
explanation, ” as to its reasoning. Moore v.
Freeman, 355 F.3d 558, 566 (6th Cir. 2004).
“trial courts need not, and indeed should not, become
green-eyeshade accountants.” Fox v. Vice, 563
U.S. 826, 838 (2011). “The essential goal in shifting
fees (to either party) is to do rough justice, not to achieve
auditing perfection.” Ibid. “So trial
courts may take into account their overall sense of a suit,
and may use estimates in calculating and allocating an
attorney's time.” Ibid. Thus, “there
is no requirement . . . that district courts identify and
justify each disallowed hour.” Mares v. Credit
Bureau of Raton, 801 F.2d 1197, 1202 (10th Cir. 1986)
(citing New York State Association for Retarded Children
v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)).
“Nor is there any requirement that district courts
announce what hours are permitted for each legal task.”
second component of the lodestar is the hourly rate.
Hensley, 461 U.S. at 433. As noted above, Brandon
and Insureplex do not quibble with Ms. Pevos's hourly
rate of $300.00.
Court has reviewed the submissions and finds that the
requested fees and costs are reasonable. Default judgment was
entered against defendant Karen Larson on August 16, 2018,
and the plaintiff commenced collection efforts shortly
thereafter. In September 2018 Ms. Pevos sought writs of
garnishment against Brandon and Insureplex - services that
the Court observes are not accounted for on the billing
invoice. To the extent that billing entries are challenged as
unnecessary, irrelevant, or duplicative, the
garnishee-defendants are reminded that state law prescribes a
multistep process for obtaining entries of default and
default judgment on periodic and nonperiodic writs of
garnishment. See generally M.C.R. 3.101; Mich. Comp.
Laws § 600.4012. Moreover, Brandon's and
Insureplex's submissions in defense of their inaction
prompted the need for revised or additional responses from
the plaintiff and protracted the proceedings. Ms. Pevos
represented that the billing entries reflect the actual time
expended on each task by her alone, and the entries
sufficiently detail the services rendered, which include
correspondence with the garnishee-defendants and their
recently retained counsel, taking Brandon's deposition,
and preparing for and attending hearings on these matters.
See ECF No. 375. The Court also observes that
despite apparently incurring costs in the amount of $566.18,
Ms. Pevos nevertheless seeks the lower amount that initially
was requested. See Plf.'s Br. at 8, ECF No. 379,
PageID.4435. In light of the time expended, which ranges from
six minutes to three hours, the amounts requested fairly
cannot be considered excessive. The objections therefore will
be overruled, and the Court will award the plaintiff fees and
costs in the amount of $16, 795.78.
it is ORDERED that garnishee-defendant
Brandon Larson's amended motion to set aside entries of
default (ECF No. 355) and garnishee-defendant Insureplex
Market Solutions, Inc.'s motion to set aside default
judgment (ECF No. 360) are GRANTED for the
reasons stated on the record.
further ORDERED that the Clerk's entries
of default against Brandon Larson (ECF No. 224 and 246) and
the default judgment against Insureplex Market Solutions,
Inc. entered on December 6, 2018 (ECF No. 281) are
SET ASIDE, subject to the payment of
$16, 795.78 in fees and costs to the
plaintiff. Counsel for the plaintiff is directed to file a
notice upon receipt of the payment.
further ORDERED that the plaintiff's
motion for default judgment against Brandon Larson (ECF No.
225) is DENIED ...