Ascentium Capital LLC v. Littell

District Court, W.D. Missouri·Decided April 11, 2022·No. 2:20-cv-04215·Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISON

ASCENTIUM CAPITAL LLC,

Plaintiff,

v. Case No. 2:20-cv-4215-NKL

TED LITTELL, TIMOTHY LITTELL, and WHITE KNIGHT LIMOUSINE, INC.,

Defendants.

ORDER Plaintiff Ascentium Capital LLC seeks an award of its reasonable attorney’s fees and costs. Doc. 107 (Motion for Attorney’s Fees). The Court previously determined that Defendants are jointly and severally liable for Ascentium’s reasonable attorney’s fees and costs and ordered Ascentium to provide proof to substantiate its request. See Doc. 89 (Sanction Order); Doc. 102 (Summary Judgment Order); Doc. 104 (Default Judgment Order). Ascentium requests a total of $138,957.08 in attorney’s fees and $3,914.86 in costs. See Doc. 108. The Court grants Ascentium’s request in part and orders that all Defendants, including Timothy Littell, are jointly and severally liable for $113,742.05 in attorney’s fees and $3,914.86 in costs. Defendant Timothy Littell is also liable for an additional $14,711.58 in attorney’s fees. I. BACKGROUND Defendant White Knight entered into five loan agreements with Ascentium. Defendants Tim and Ted Littell served as guarantors for the agreements and are jointly and severally liable for any amounts due under the agreements. In the event of default, Ascentium was entitled to recover all past due amounts, 1.5% monthly interest on past due amounts, and any reasonable attorney’s fees and costs Ascentium incurred enforcing its rights under the agreements. To secure the loans, White Knight provided Ascentium a security interest in two of White Knight’s busses. Defendants defaulted on the loans in the middle of 2020, and White Knight

repossessed the busses. Ascentium resold the busses and subtracted the value of the resale from the amount owed under the agreements. A. Procedural History On November 3, 2020, Ascentium filed its Complaint, claiming Defendants breached the loan agreements. Doc. 1. On September 29, 2021, Ascentium moved for sanctions against all Defendants because their conduct during discovery was dishonest. Doc. 56. The Court only

granted the Motion as to Tim Littell, finding clear and convincing evidence that he repeatedly and intentionally misrepresented evidence to strengthen Defendants’ case. Id. Doc. 89. As a remedy, the Court struck Tim Littell’s pleadings and entered a default judgment against him. In the default judgment order, the Court ordered Tim Littell to pay Ascentium $328,891.90, any interest that had accrued, and Ascentium’s reasonable attorney’s fees and costs. Doc. 104. On November 19, 2021, Ascentium moved for summary judgment on all its claims. The Court granted Ascentium’s motion for summary judgment because (1) a reasonable juror could only conclude that Defendants had breached the five agreements and Ascentium’s resale of the collateral was reasonable, and (2) Defendants’ affirmative defenses failed as a matter of law. Doc. 102. As a result, Ascentium was entitled to recover from Ted Littell and White Knight,

$328,891.90, interest that had accrued, and Ascentium’s reasonable attorney’s fees and costs. Id. B. Attorney’s Fees On January 6, 2022, Ascentium filed its legal invoices under seal to prove its reasonable attorney’s fees and costs. Doc. 97. On January 26, 2022, the Court permitted Defendants to respond to with any argument that the requested fees were not reasonable. Doc. 101. Defendants did not respond. Ascentium then filed a motion for attorney’s fees and costs. Doc. 107.

Defendants responded to the motion by arguing that the fee award should be reduced because Ascentium has failed to support a multitude of its billing entries. Doc. 108. II. DISCUSSION The underlying loan agreements state California law applies to the dispute. See Doc. 79- 4; 79-31; 79-47; 79-63; 79-76. However, the Court can look to federal law for guidance. Ridgeway v. Wal-Mart Stores Inc., 269 F. Supp. 3d 975, 982 (N.D. Cal. 2017) (“California law governs

plaintiffs’ motion . . . Nevertheless, the Court may still look to federal authority for guidance in awarding attorney’s fees.” (quoting MacDonald v. Ford Motor Co., No. 13-cv-2988-JST, 2016 WL 3055643, at *2 (N.D. Cal. May 31, 2016))). Under Cal. Civ. Code. § 1717(a), if a party prevails in a breach of contract action and the contract provides the party is entitled to the attorney’s fees and costs spent enforcing their rights, then the prevailing party is entitled to recover its reasonable attorney’s fees and costs. Under the statute, “reasonable attorney fees are to be fixed by the court.” PLCM Grp. v. Drexler, 997 P.2d 511, 515 (Cal. 2000), as modified (June 2, 2000). “[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the

reasonable hourly rate.” Id. at 518. The lodestar “is fundamental to a determination of an appropriate attorney’s fee award.” Id. (quoting Margolin v. Reg. Plan. Com., 185 Cal.Rptr. 145 (Cal. Ct. App. 1982)). Ascentium bears the burden of proving that the hourly rates for its attorneys and the number of hours spent were reasonable. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) (holding it is the fee applicant’s burden to show the rates charged are reasonable); Roth Grading, Inc. v. Martin Bros. Constr., No. 220CV00336KJMCKD, 2022 WL 411425, at *4 (E.D. Cal. Feb. 10, 2022) (“A party who requests attorneys’ fees bears an initial

burden to show ‘the fees it seeks are reasonable.’” (quoting Ctr. for Biological Diversity v. Cty. of San Bernardino, 115 Cal.Rptr.3d 762 (Cal. Ct. App. 2010))). A. Whether the Rates Charged Were Reasonable Under California law, the reasonable hourly rate is the rate prevailing in the community for similar work. PLCM Grp., 997 P.2d. at 518. Ascentium’s counsel charged between $412 and $450 per hour for the work of its partners J.J. Trad and J.E. Martineau; between $129.60 and $177.311 per hour for the work of its associates T.H. Brown, T.R. Selig, and D.A. Hayes; and

between $160 and $190 per hour for the work of its paralegals J.S. Lanciault, J.L. Moentmann, and K.D. Winschel. Doc. 97. Defendants do not contest that the rates were reasonable. The rates Ascentium’s counsel charged for partners and associates were reasonable because they are below the average rates charged in Missouri in 2021 according to the Missouri Lawyers Weekly Billing Rates Report. See Billing Rates 2021: Fee awards few and far between during pandemic, 2021 WLNR 37503966. The rates charged for paralegals are higher than the $150 per hour average rate charged by “support staff” in Missouri in 2021. Id. However, that support rate “may include not only paralegals but other types of support staff that may be less skilled.” S.C. by & through M.C. v. Riverview Gardens Sch. Dist., No. 18-4162-CV-C-NKL, 2020 WL 5262267,

1 Brown’s original billing rate was $350 per hour. However, that rate was reduced to $165.00 per hour and then $158.40 per hour. The average amount charged for Brown’s services over the course of the litigation was $177.31 per hour. at *9 (W.D. Mo. Sept. 3, 2020). Additionally, the Court has previously found that higher paralegal rates were reasonable. Brown v. Precythe, No. 17-CV-4082-NKL, 2020 WL 1527160, at **3-4 (W.D. Mo. Mar. 30, 2020) (holding paralegal rates of $216 per hour were reasonable before applying the discount required by the Prison Litigation Reform Act); Washington v. Denney, No.

2:14-CV-06118-NKL, 2017 WL 4399566, at *4 (W.D. Mo. Oct.

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