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United States of America, For the Use and Benefit of Greenmoor, Inc v. Travelers Casualty and Surety Company of America

July 29, 2011

UNITED STATES OF AMERICA, FOR THE USE AND BENEFIT OF GREENMOOR, INC., PLAINTIFF,
v.
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA,
AND BURCHICK CONSTRUCTION COMPANY, INC.,
DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Cathy Bissoon*fn1

MEMORANDUM AND ORDER

I.MEMORANDUM

Pending before the Court is Defendant Burchick Construction Company, Inc.‟s Motion to Amend Order and Request for the Court to Determine the Amount of Attorneys‟ Fees to be Awarded to Burchick Construction Company, Inc. and to Enter a Molded Judgment (Doc. 181). For the reasons stated herein, Defendant Burchick‟s motion will be granted in part and denied in part.

BACKGROUND

The facts of this case were set forth in the Court‟s Findings of Fact and Conclusions of Law (Doc. 143). Following a bench trial, the Court entered judgment (Doc. 144) and deferred ruling on the parties‟ requests for attorneys‟ fees and costs. The Court subsequently awarded fees and costs to Defendant Burchick Construction Company, Inc. ("Defendant") pursuant to the parties‟ Subcontract, which makes Plaintiff liable to Defendant for attorneys‟ fees and costs incurred "as a result of [Plaintiff‟s] failure to perform [the] Subcontract in accordance with its terms." Memorandum Order (Aug. 20, 2010) (Doc. 166). The Court ordered supplemental briefing on the limited issue of the amount of attorneys‟ fees, related costs and expenses recoverable under the Subcontract. Id.

Defendant filed a supplemental brief (Doc. 167) on September 3, 2010. Plaintiff filed a notice of appeal (Doc. 168) on September 16, 2010, and a supplemental brief (Doc. 169) regarding the amount of attorneys‟ fees on September 17, 2010. Defendant filed a notice of cross appeal (Doc. 171) on September 28, 2010. On September 30, 2010, the U.S. Court of Appeals for the Third Circuit ordered the parties to file written responses addressing whether the Court of Appeals had jurisdiction over the appeals. Doc. 173-1. This Court then deferred adjudication of the amount of attorneys‟ fees to be awarded to Defendant, pending further ruling from the Court of Appeals. Doc. 175.

The Court of Appeals, on June 21, 2011, dismissed the appeals for lack of jurisdiction because this Court‟s order granting attorneys‟ fees without quantifying the amount to be awarded was not a final order. See Doc. 182-1. On July 1, 2011, Defendant filed the pending Motion to Amend Order and Request for the Court to Determine the Amount of Attorneys‟ Fees to be Awarded to Burchick Construction Company, Inc. and to Enter a Molded Judgment (Doc. 181). Defendant requests that this Court: (1) amend its August 20, 2010 Order (Doc. 165) to eliminate daily interest from accruing in favor of Plaintiff from September 16, 2010 to June 21, 2011; (2) determine the amount of attorneys‟ fees to be awarded to Defendant; and (3) enter a final molded judgment. Plaintiff filed a response (Doc. 185) on July 19, 2011.

ANALYSIS

A.Defendant's Request to Amend the August 20, 2010 Order

Defendant requests that this Court amend its August 20, 2010 Order (Doc. 165) to eliminate daily interest between September 16, 2010 and June 21, 2011, the time period for which Plaintiff‟s appeal to the U.S. Court of Appeals for the Third Circuit was pending. Defendant argues that Plaintiff "inappropriately and prematurely" filed its appeal, and that "[u]nder principals [sic] of fundamental fairness and using the Court‟s inherent powers to modify its previous Order as justice requires, this Court should exclude the imposition of daily interest between September 16, 2010 and June 21, 2011." Def.‟s Br. at 4-5 (Doc. 182).

Defendant cites no authority to permit this Court to extend its inherent authority to eliminate the mandatory imposition of interest under the Pennsylvania Contractor and Subcontractor Payment Act ("CSPA"). See 73 P.S. § 507(d) ("If any progress or final payment to a subcontractor is delayed beyond the date established in subsection (b) or (c), the contractor or subcontractor shall pay the subcontractor interest . . . ." (emphasis added)). Further, Defendant has not demonstrated that justice requires amendment of this Court‟s August 20, 2010 Order. Plaintiff‟s appeal appears to have been taken in good faith and Defendant does not allege otherwise. Defendant merely asserts that Plaintiff "should have known" that the appeal was premature. Def.‟s Br. at 4 (Doc. 182). Finally, Defendant has had (and continues to have) the benefit of the use of the money owed to and not yet paid to Plaintiff. Thus, Defendant‟s motion to amend this Court‟s August 20, 2010 Order will be denied.*fn2

B.Amount of Attorneys' Fees to be Awarded

In light of the appellate court‟s dismissal of the parties‟ appeals for lack of jurisdiction, this Court will proceed to consider the parties‟ arguments set forth in their supplemental briefing on the amount of fees to be awarded (Docs. 167, 169) and determine the amount of attorneys‟ fees and costs to be awarded to Defendant.

The Supreme Court has emphasized that determination of fees "should not result in a second major litigation." Fox v. Vice, __ U.S. __, 131 S.Ct. 2205, 2216 (2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). As the fee applicant, Burchick must provide documentation to meet the burden of establishing entitlement to an award. Id. "But trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. 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." Id. In apportioning fees among multiple claims, a court may ...


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