own sur-reply for the most part simply reargued points made earlier and Continental did not need to do more than minimal new research. I recommend that the time to be charged to defendants be reduced by 60 hours.
Defendants also complain that Mayer, Brown & Platt charged for 80.75 hours writing a reply memorandum in support of summary judgment on the issue of damages. It is apparent, however, from a review of that memorandum as well as the memoranda filed by defendants in opposition to Continental's initial memorandum in support of summary judgment on damages, that substantial work was required to fully respond to the arguments made by defendants. I do not find the amount of time spent to be unreasonable.
In summary, I recommend that the time defendants are charged for work done by Mayer, Brown & Platt be reduced by 103.25 hours. I have not attempted to determine which attorneys' time should be reduced and recommend that the average billing rate, which Continental represents is $ 130.00, be applied to this figure to determine the actual reduction.
Defendants argue that the specific objections noted by them are simply representative and that the fees charged by Mayer, Brown & Platt should be reduced substantially. With few exceptions, however, I have not found that the bills were excessive. It should also be remembered that but for the fact that Continental obtained summary judgment, the case would have gone to trial, almost surely resulting in substantially larger fees and costs. Furthermore, the large fees were necessitated by defendants' insistence on fighting Continental's efforts to enforce the guaranties. Finally, it is apparent both from my reading of the briefs and Continental's success in this litigation, that Mayer, Brown & Platt's representation in this case was of excellent quality. I find no basis for a wholesale reduction in fees on the basis of the records, briefs, and court opinions reviewed by me.
Continental also seeks reimbursement for costs charged to it by Mayer, Brown & Platt. Defendants object, arguing that photocopying, telephone, delivery, postage and computerized research charges are overhead that is included in attorneys' hourly fees. Defendants' argument ignores the fact that in this case Continental was separately charged for each of the items for which it now seeks recovery against them. The charges were not included in the attorneys' hourly fees. In addition, the loan agreements signed by them allow Continental to recover "all expenses" in the enforcement of the guaranties. These charges are therefore recoverable. Defendants also argue that some of the Lexis and Westlaw charges have not been properly documented. However, in its reply Continental has satisfactorily explained the discrepancies noted by defendants, and provided documentation.
Defendants make several objections to the amount sought by Continental in its supplemental petition. The first is to amounts that defendants say Continental incurred after December 31, 1991, in seeking to have execution issued against defendants when Continental had received payment from Guilford of the principal amount owed. Defendants say at that point, no one knew what the defendants owed, and it was premature to attempt to register or execute the judgment. They do not, however, point to any specific amount said to be attributable to this effort, nor do they identify the hours in question.
Defendants also object to Continental's inclusion of attorney's fees and costs incurred in defense of two suits filed in federal district court in North Carolina in 1992 in the fees sought in the present suit. The suit brought by defendants and one non-defendant guarantor, No. 1:92CV00234, is a clear attempt to evade the judgment in this case. That suit seeks to enjoin Continental from executing the judgment in the present case in North Carolina and to enter a satisfaction of the judgment registered in North Carolina. Success in that suit would prevent Continental from enforcing its guaranty -- incorporated in the judgment in this case -- against defendants. Fees generated as a result of that suit are recoverable under the language of the guaranties. Exchange National Bank of Chicago v. Daniels, 763 F.2d 286, 294 (7th Cir. 1985). The second suit is ostensibly brought by Guilford Telecasters, Inc. against Continental, No. 2-92CV00233, also in federal district court in North Carolina. That complaint alleges that Continental is improperly attempting to collect default interest from the guarantors and has overcollected from Guilford and its officers and stockholders (including the guarantors) the amount due. This suit also then directly impacts Continental's judgment in the present case and its ability to collect on that judgment. Continental's fees are within the scope of the obligation of the guarantors to pay the expenses incurred in enforcing the guaranties.
I recommend that Continental's fee petitions be allowed in the amount of $ 831,154.92 plus $ 7,557.26 in costs. That includes all of Continental's statutory costs and all fees and expenses sought except for $ 13,422.50 attributable to time spent by Mayer, Brown & Platt on certain briefs and $ 12,000.00 in charges by the bankruptcy firm in North Carolina that I conclude should not be charged to defendants.
ELAINE E. BUCKLO
United States Magistrate Judge
Dated: March 29, 1993.
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