United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
before the Court is plaintiff's motion for attorney fees
(Dkt. # 15). Plaintiff brought this suit against Z Auto
Group, LLC (Z Auto Group) and David Uzzell, individually and
doing business as Z Auto Group, for breach of contract,
unjust enrichment, and fraud. Dkt. # 2. Plaintiff's
claims arose from defendants' alleged failure to pay
plaintiff pursuant to a contract for the sale of a 2015 Audi
A8 vehicle. Id. On July 14, 2017, the Court entered
a final default judgment against Uzzell. Plaintiff now asks the
Court to enter a judgment of attorney fees in favor of
plaintiff and against Uzzell in the amount of $10, 315.14. No
response has been filed, and the time to do so has
Oklahoma law, the prevailing party in a civil action to
recover under a contract relating to the purchase or sale of
goods shall be allowed reasonable attorney fees as set by the
court. Okla. Stat. tit. 12, § 936. The Oklahoma Supreme
Court has held that § 936 should be construed narrowly,
and applies only where a party is seeking to collect
“monetary consideration promised as payment for the
receipt of property, labor or services.” Kay v.
Venezuelan Sun Oil Co., 806 P.2d 648, 651 n.12 (Okla.
1991); see also Specialty Beverages, L.L.C. v. Pabst
Brewing Co., 537 F.3d 1165, 1184 (10th Cir. 2008)
(applying Oklahoma law). Here, plaintiff asserts that it
entered into a sales agreement with Z Auto Group, under which
plaintiff agreed to sell and deliver a specific Audi A8
vehicle and Z Auto Group agreed to pay plaintiff $58, 000 in
consideration. Dkt. # 2, at 2. Plaintiff asserts that it
delivered the vehicle, but the check Z Auto Group sent
plaintiff to fulfill the sales agreement was returned unpaid
due to insufficient funds. Id. at 2-3. Plaintiff
asserts that Z Auto Group directed plaintiff to attempt to
deposit the check a second time, but that the check returned
unpaid again, this time because the underlying account had
been closed. Id. at 3. Plaintiff brought suit
against defendants seeking to recover the $58, 000 due under
the sales agreement and $112, 000 in exemplary damages.
Id. at 4-5. The Count entered default judgment
against Uzzell for $56, 000 in actual damages and $112, 000
in exemplary damages. Dkt. # 20, at 2. Because plaintiff is
the prevailing party against Uzzell and filed this suit to
collect “monetary consideration promised as payment for
the receipt of property, ” plaintiff may recover under
§ 936 reasonable attorney fees arising from this case.
However, not all of the work billed in the time records
submitted with plaintiff's motion arises from this case.
asserts that the attorney fees in this case total $12,
135.46. Dkt. # 15, at 2. Plaintiff asks for $10, 315.14 in
attorney fees (a 15% discount) in order to account for
potential duplication of services and to ensure the
reasonableness of its fee request. Id. at 2-3.
Plaintiff has provided detailed records from its counsel,
Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.
(Hall Estill), to support its motion. See id. at
8-27. However, the time records show that most of the hours
billed are for work done on a related case in Texas, not this
suit. From the descriptions of the work done by
plaintiff's counsel, it appears that plaintiff first
attempted to secure the return of the Audi A8 from the
individual who purchased the vehicle from Z Auto Group. The
attempt to regain possession of the vehicle seems to have
resulted in a lawsuit filed against plaintiff in Texas. The
hours billed in January and February 2017 relate to tasks
such as researching Texas law, conferring with local counsel
in Texas, preparing for a preliminary injunction hearing, and
discussing a possible settlement. Id. at 9, 13.
Plaintiff seeks attorney fees under § 936, which should
be narrowly construed and allows a prevailing party to
collect attorney fees in a narrow range of circumstances.
Those circumstances do not include a related out-of-state
lawsuit. Plaintiff is entitled to reasonable attorney fees
under § 936 only for work done on this suit. According
to the time records, plaintiff's counsel began work on
this suit on March 2, 2017. See id. at 17. All work
prior to March 2, 2017 does not arise from this suit, and
plaintiff cannot collect attorney fees under § 936 for
Oklahoma Supreme Court has outlined a two-step process for
arriving at a reasonable attorney fee: (1) determine the
lodestar fee, which is the reasonable hourly compensation on
an “hours times rate basis, ” and (2) enhance or
reduce the lodestar fee, if warranted, by adding or
subtracting an amount arrived at by applying the factors set
forth in Burk v. City of Oklahoma City, 589 P.2d 659
(Okla. 1979). The factors a court should consider when
determining if an amount above or below the lodestar amount
should be awarded are as follows:
1. Time and labor required. 2. The novelty and difficulty of
the questions. 3. The skill requisite to perform the legal
service properly. 4. The preclusion of other employment by
the attorney due to acceptance of the case. 5. The customary
fee. 6. Whether the fee is fixed or contingent. 7. Time
limitations imposed by the client or the circumstances. 8.
The amount involved and the results obtained. 9. The
experience, reputation and ability of the attorneys. 10. The
‘undesirability' of the case. 11. The nature and
length of the professional relationship with the client, 12.
Awards in similar cases.
Id. at 661 (quoting Evans v. Sheraton Park
Hotel, 503 F.2d 177, 187-88 (D.D.C. 1974)). The party
applying for attorney fees “bears the burden of
establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates. The applicant
should exercise ‘billing judgment' with respect to
hours worked . . ., and should maintain billing time records
in a manner that will enable a reviewing court to identify
distinct claims.” Hensley v. Eckerhart, 461
U.S. 424, 437 (1983).
on the descriptions of the work in the time records, all work
after and including March 2, 2017 directly arose from this
suit. Plaintiff's counsel billed for 8.35 hours of
services rendered during that time. Id. at 17, 21,
25. Upon review of the detailed records submitted by
plaintiff's attorneys, the Court finds the amount of time
spent on plaintiff's case to be reasonable and not
time records indicate that two people, John T. Richer and
James M. Reed, worked on plaintiff's case after March 2,
2017. Both are attorneys with extensive litigation experience
and are shareholders at Hall Estill. Richer billed an hourly
rate of $320, and Reed billed an hourly rate of $510.
Id. at 17. To determine whether an hourly rate is
reasonable, courts look to “the prevailing market rate
in the relevant community.” Malloy v. Monahan,
73 F.3d 1012, 1018 (10th Cir. 1996) (citing Blum v.
Stenson, 465 U.S. 886, 895 (1984)). The Court finds that
Richer's hourly rate is reasonable for an attorney in
this district with his experience. See, e.g.,
Richards Grp., Inc. v. DecisionPoint Sys., Inc., No.
14-cv-575-TCK-TLW, 2016 WL 9086932, at *5 (N.D. Okla. Jan.
13, 2016) (finding hourly rates of $400 and $380 reasonable
for experienced attorneys in case with default judgment).
However, Reed's hourly rate is inconsistent with the
local market. See, e.g., McCrary v. Country Mut.
Ins. Co., No. 13-CV-507-JED-PJC, 2016 WL 8118183, at *2
(N.D. Okla. June 22, 2016) (noting that the Northern District
of Oklahoma commonly allows hourly rates of between $250 and
$300 for commercial litigators). The Court will reduce
Reed's hourly rate to $320, which is consistent with the
local market and reflective of his skill and experience.
See Richards Grp., 2016 WL 9086932, at *5 (reducing
hourly fee for experienced commercial litigator from $425 to
$325). An hourly rate of $320 for 8.35 hours yields a
lodestar amount of $2, 672. After consideration of the
factors set out in Burk, the Court sees no reason to
alter the lodestar amount.
THEREFORE ORDERED that plaintiffs motion for attorney fees
(Dkt. # 15) is granted in part and denied in part, and
attorney fees in the amount of $2, 672 are awarded to
plaintiff, and against defendant David Uzzell, individually
and doing business as Z Auto Group. A separate judgment will
be entered herewith.
 The Court originally entered default
judgment against Uzzell on June 20, 2017. On July 14, 2017,
the Court amended the default judgment to add findings under
Federal Rule of Civil Procedure 54(d) that the judgment was
final and no just reason for delay of its entry existed.
See Dkt. # 20, at 1 n.1.
 Plaintiff's motion was filed on
July 5, 2017. Pursuant to Local Rule 7.2(e), Uzzell's
response brief was ...