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Volvo Financial Services v. Williamson

United States District Court, S.D. Mississippi, Southern Division

February 28, 2018

VOLVO FINANCIAL SERVICES, a division of VFS U.S. LLC PLAINTIFF
v.
ELVIS WILLIAMSON DEFENDANT

          ORDER GRANTING MOTION FOR ATTORNEYS' FEES FILED BY VOLVO FINANCIAL SERVICES

          Louis Guirola, Jr. United States District Judge

         BEFORE THE COURT is the [24] Motion for Attorneys' Fees filed by the plaintiff Volvo Financial Services. The defendant, Elvis Williamson, has filed a response in opposition to the Motion. After reviewing the submissions of the parties, the record in this matter, and the applicable law, the Court finds that the Motion for Attorneys' Fees should be granted to the extent that Volvo is awarded attorney's fees in the amount of $21, 435 and expenses in the amount of $965.53.

         BACKGROUND

         Volvo financed Williamson's purchase of eight trucks. In 2016 and 2017, Volvo repossessed and sold seven of the trucks. Each sale resulted in a deficiency balance; thus, Volvo filed this lawsuit seeking a deficiency judgment. On October 18, 2017, this Court entered a [22] Memorandum Opinion and Order granting summary judgment in favor of Volvo in the amount of $296, 956.62 plus interest, costs, and attorney's fees to be awarded upon application by Volvo.

         DISCUSSION

         Volvo argues that the award of attorneys' fees in this case should be governed by North Carolina law, because the promissory notes at issue in this case contain the following choice of law provision: “This Note shall be effective only when accepted by Lender and shall be governed by the substantive (and not choice of law or conflicts) laws of the State of North Carolina.” Williamson argues that Mississippi law applies.

         “The law of the forum determines whether an issue in the action is substantive or procedural in nature.” Hartford Underwriters Ins. Co. v. Found. Health Servs. Inc., 524 F.3d 588, 593 (5th Cir. 2008). Under Mississippi law, awards of attorneys' fees are procedural in nature. Id. Therefore, the choice of law provision in the promissory notes does not require application of North Carolina law to the issue of attorneys' fees.

         Mississippi Rule of Professional Conduct 1.5 provides that “[a] lawyer's fee shall be reasonable.” Miss. Rules of Prof'l Conduct R. 1.5(a). To determine reasonableness, Mississippi courts use “as a starting point the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate . . . .” Tupelo Redevelopment Agency v. Gray Corp., Inc., 972 So.2d 495, 522 (Miss. 2007). “[T]he issue of attorneys' fees must then be appropriately considered in light of Miss. R. Prof. Conduct 1.5(a) and the McKee factors.” Id.

         Miss. R. Prof. Conduct Rule 1.5(a) provides:

The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar ...

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