Opinion
Civil Action No. 94-1215, Section "R" (3).
July 29, 2004
ORDER AND REASONS
Before the Court is plaintiffs' counsel's Application for Attorney Fees. The district judge previously ordered that the defendant pay reasonable attorney fees incurred by the plaintiffs in connection with their motion to reopen the case. The defendant, Thomas S. Keaty, filed a formal opposition memorandum to which the plaintiffs replied. For the following reasons, the Court GRANTS the plaintiff's application for attorneys fees in the full amount of $4,916.00.
See Application for Attorney Fees filed March 5, 2004 [Rec. Doc. No. 203].
See Minute Entry Order Granting Plaintiff's Motion to Reopen Defendant to Pay Reasonable Attorney Fees dated November 24, 2003 [Rec. Doc. No. 196]; Minute Entry Order Denying Defendant's Motion for Reconsideration dated January 30, 2004 [Rec. Doc. No. 201].
See Opposition to Plaintiffs' Application for Attorney's Fees [Rec. Doc. No. 206]; Supplemental Memorandum in Support of Claim for Reasonable Attorney's Fees [Rec. Doc. No. 207].
I. BACKGROUND
On January 30, 2004, having fully considered and reconsidered plaintiffs' motion for reasonable attorney's fees, the district judge denied defendant's motion for reconsideration of her November 25, 2003 ruling reopening the matter and awarding reasonable attorney fees incurred in connection with the motion to reopen. The district judge observed:
On June 16, 2003, this Court dismissed this case without prejudice to the right, upon good cause shown, within 120 days, to reopen the action if settlement is not consummated. Plaintiffs moved to reopen the action within 120 days of the Court's dismissal. In their motion, plaintiffs indicated that the parties have been unable to consummate the agreed upon settlement. Defendants did not oppose plaintiffs' motion. The Court found that the plaintiffs had shown good cause why the Court should reopen this matter. The Court therefore granted plaintiffs' motion to reopen.
Plaintiffs also moved for reasonable attorneys incurred in connection with the motion to reopen. Plaintiffs pointed to the settlement letter dated June 9, 2003, signed by both of the plaintiffs' and defendant Thomas Keaty's attorneys, in which the parties agreed that the defendant would send the settlement funds for each plaintiff after the plaintiffs' attorney notified defendant that the plaintiff had accepted the settlement. The agreement further states that if the defendant does not pay the funds, the plaintiffs may enforce the settlement agreement or resume the pending litigation, but in either event the defendant would be required to pay reasonable attorney fees. Plaintiffs indicated in the motion that they notified the defendant that they accepted the settlement, but the defendant failed to pay the funds. As such, the Court found that the defendant is required to pay reasonable attorney's fees.
Minute Entry Order dated January 30, 2004 at p. 2 [Rec. Doc. No. 201].
On reconsideration, the district judge rejected the defendant's argument that the June 9, 2003 letter agreement is unenforceable and explained:
Plaintiffs' counsel clearly indicates that he "will recommend to all of [his] clients that they accept the settlements offered." In return, defendant agreed to send the settlement fund after the plaintiffs' counsel notified him that the plaintiff had accepted the settlement. Defendant does not dispute that he failed to remit funds to the plaintiffs' counsel after counsel notified him that certain plaintiffs had accepted the settlements offered. The Court finds that the award of attorney's fees is appropriate.
Id. at p. 3 (quoting the June 9th letter agreement).
Following the denial of the defendant's motion for reconsideration, plaintiff's counsel filed the instant Application for Attorney Fees, together with a listing of dates, time and a description of the nature of services provided by plaintiffs' counsel, John G. DeRussy. Plaintiffs claim the total time spent of twenty-four hours and thirty-five minutes (24.35) should be taxes against the defendant as reasonably incurred in connection with the motion to reopen at the rate of $200.00 per hour, i.e., $4,916.00 is sought as reasonable attorney's fees.
II. CONTENTIONS OF THE PARTIES
Defendant, Thomas S. Keaty, contends that the full amount of $4,916.00 was not reasonably incurred in connection with the Motion to Reopen this case. Defendant argues that plaintiffs are limited to an award of fees not exceeding $200.00, i.e., compensation for the one hour spent filing the motion and incorporated memorandum in support of the plaintiffs' motion to reopen. Defendant suggests that no other fees were incurred "in connection with the motion to reopen" and directs the undersigned Magistrate Judge to the following language in the district judge's November 21, 2003 order, to wit: "IT IS FURTHER ORDERED that the defendant pay reasonable attorney's fees incurred by the plaintiffs in connection with this motion to reopen, the amount of which is to be determined by the Magistrate Judge."
See Defendant's Memorandum in Opposition to Plaintiffs' Application for Attorney's Fees at p. 2 (quoting Judge Vance's November 21, 2003 Order granting the motion to reopen and awarding reasonable attorney's fees.
Order dated November 21, 2003 at p. 2 [Rec. Doc. No. 196].
In addition to seeking fees allegedly unrelated to the motion to reopen, the defendant contends that the plaintiffs' application is deficient in the following respects, to wit: (1) the hourly rate claimed in the amount of $200.00 is excessive and unproven; (2) the time records submitted are not contemporaneous records, are impermissibly vague and thus should be disallowed in their entirety or significantly reduced; and (3) the ten hours spent on e-mail related tasks and five hours spent on letter related tasks involved simple clerical tasks not reasonably taxed at the rate of $200.00 an hour or were not incurred in connection with the motion to reopen and thus should be disallowed or substantially reduced. In summary, the defendant argues that only eight hours were billed for what he would consider "substantial" legal work and the balance of time, involved in "reviewing" letters and e-mails, appears to be duplicative and excessive.
Plaintiffs' counsel highlights that the settlement agreement is the centerpiece of their motion for reasonable attorney's fees and, necessarily, the district judge's order granting the request. Plaintiffs contend that any construction of the agreement as being limited to the fees incurred for "filing the motion to reopen would be the height of absurdity." As far as his time records are concerned, plaintiffs' counsel highlights that he has made no claim for time spent which was not supported by a written document. Plaintiffs' counsel notes that, subject to the attorney client privilege, these documents are available to be reviewed. Plaintiffs' counsel explains that much time was spent for which he seeks no recovery, such as time involved in the numerous telephone conversations with Mr. Kevin Tully, Mr. John Anderson (formerly defense counsel) and the law office of Sapalo Velez. Because there is no contemporaneous documentation of same, plaintiffs' counsel has claimed no compensation in connection with such services rendered in connection with the motion to reopen.
See Counsel's Supplemental Memorandum in Support of Claim for Reasonable Attorney's Fees at p. 1.
Plaintiffs' counsel indicated that he is more than willing to testify regarding the fees claimed should the court deem it either necessary or helpful. As to defendant's argument that the plaintiffs incurred no fees, plaintiffs' counsel notes that this contradicts the defendant's written agreement to pay legal fees if the settlement was not consummated. Plaintiffs contend that the itemized accounting of reasonable attorney's fees sought in the amount of $4,916.00 is neither improper, nor excessive. Plaintiffs urge the Court to order reimbursement for the aforesaid in full, considering that the amount claimed has already been generously discounted.
III. ANALYSIS
At the outset, the Court notes that, had the district judge intended compensation for the filing of the motion to reopen to be fixed in the amount of $200.00 for the one hour's worth of services, the referral to the undersigned Magistrate Judge would have been wholly unnecessary. The Court has had the occasion to review and research the issues inherent in the instant application for fees and finds that the twenty-four hours and thirty-five minutes of attorney efforts expended constitutes a conservative calculation.
1. The Lodestar Approach
A prevailing party may recover only those fees that are reasonably expended on the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983); Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir. 1993). The determination of a reasonable attorney's fee award involves a two-step process. See Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999).
The two-step process set forth in the following paragraphs is the normal process that a court must undertake to determine an appropriate attorney's fee award. The court follows this process, but makes necessary adjustments, for reasons discussed below, to reflect fairness.
In assessing the reasonableness of attorney's fees, the court must first determine the "lodestar" by multiplying the reasonable number of hours expended and the reasonable hourly rate for each participating attorney. See Hensley, 461 U.S. at 433; Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642, 661 (5th Cir. 2002); Migis v. Pearle Vision, Inc., 135 F.2d 1041, 1047 (5th Cir. 1998); Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.), cert. denied, 516 U.S. 862 (1995). The fee applicant bears the burden of proof on this issue. See Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996); Kellstrom, 50 F.3d at 324; In re Smith, 986 F.2d 973, 978 (5th Cir. 1992).
2. Computation of the Lodestar
Initially, the Court addresses the "attorney fees" fee statement/calculation of plaintiffs' counsel, John G. DeRussy, in the amount of $4,916.00.
Local Rule 54.2 provides:
In all cases where attorney's fees are sought, the party desiring to be awarded such fees shall submit to the court a contemporaneous time report reflecting the date, time involved, and nature of services performed. The report shall be both in narrative and statistical form and provide hours spent and justification thereof.
Any judge of the court may, for good cause shown, relieve counsel of the obligation of filing such a report.
The rule permits exemption from compliance with this obligation and provides that such relief may be permitted by any judge of the court for good cause shown. The pared down descriptive list submitted by plaintiffs' counsel, while not technically compliant with the aforesaid rule, substantially comports with the spirit and intent of the rule. In any event, this Court will not add insult to injury by requiring technical compliance, since it is apparent that the plaintiffs' counsel has exercised billing judgment and submitted only charges in connection with actual documents necessarily reviewed or drafted in connection with the motion to reopen. Defendant points to no specific duplicative charges, this Court has identified none and, the defendant argues only in the most general terms that the charges in connection with e-mails and letters reviewed or drafted constitute "clerical" tasks.
Defendant's argument is essentially twofold, to wit: (1) the fees charged are excessive/duplicative and a fully compensatory fee is not warranted in light of the express language of the district judge's November 21, 2003 ruling; and (2) the hourly rate charged by defense counsel in the amount of $200.00 is not reasonable.
3. Reasonable Hourly Rate
Plaintiffs have been represented at all pertinent times by John G. DeRussy. The fee listing for the tasks performed is exclusively based on 24.35 hours worked by Mr. DeRussy alone at $200.00 per hour. Plaintiffs' counsel attests as an officer of the court in his signed application that $200.00 per hour is his usual or customary rate. When an attorney requests that the lodestar be computed at his or her customary billing rate, when the customary rate is within the range of prevailing market rates and when the rate is not contested, the rate is prima facie reasonable. Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir.), cert. denied, 516 U.S. 862 (1995).
Defendant contests the reasonableness of the requested rate of $200.00, as it pertains to reviewing and preparing e-mails and letters relevant to the failed settlement and necessarily reviewed and/or prepared in connection with the motion to reopen. It is clear from this Court's review that no "clerical" tasks such the actual filing of papers or other such services were included in the listing and calculation provided by plaintiffs' counsel. The Court has been given no reason to doubt that the hourly rate ( i.e., $200 an hour) is consistent with counsel's ability, competence, experience and skill. Considering the prevailing market rate in the Greater New Orleans area and the particular task at hand, which demanded Mr. DeRussy's best efforts to comply with the terms of the settlement agreement, the Court can only find that the rate charged is exceedingly reasonable.
4. Reasonable Hours
In assessing the reasonableness of the particular hours documented by counsel, the court must make two determinations. First, the attorney must have demonstrated adequate billing judgment by "writing off unproductive, excessive, or redundant hours." Walker v. U.S. Dept. of Housing and Urban Development, 99 F.3d 761, 769 (5th Cir. 1996). Second, the hours billed must have been for time reasonably spent on work in furtherance of claims on which the plaintiffs "prevailed." See Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) (holding that a plaintiff must prove "the reasonableness of the number of hours expended on his prevailing claim").
In light of the defendant's objections and in accordance with the standards set forth in Hensley, this Court has undertaken a review of the time record submitted in conjunction with the written submissions at issue for the purpose of excluding any "excessive, redundant, or otherwise unnecessary" hours. Hensley, 461 U.S. at 433-45. The time charged is not duplicative and relates to tasks performed by the attorney regarding documents either reviewed or prepared as required by the settlement agreement and necessarily reviewed in connection with the motion to reopen. The Court has taken into account that the hourly rate for legal work should not be applied to work that is clerical or paralegal in nature, such as time spent filing documents. "Normally, clerical or secretarial costs are part of an attorney's office overhead and are reflected in the billing rate." Hagan v. MRS Assocs., Inc., No. 99-3749, 2001 WL 531119, at *9 (E.D.La. May 15, 2001) (Africk, M.J.) ( citing Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995)). Plaintiffs' counsel included no such charges in the appendix to his fee application.
4. The Johnson Factors
As explained herein below, the Court finds that no reduction is required upon considering the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Green, 284 F.3d at 661; Cobb v. Miller, 818 F.2d 1227, 1232 (5th Cir. 1987). The twelve factors are: (1) the 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, and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.
While the court's analysis need not be meticulously detailed, it must articulate and clearly apply the Johnson criteria. Kellstrom, 50 F.3d at 331. To the extent that any of the Johnson factors are subsumed in the lodestar, they should not be reconsidered when determining whether an adjustment to the lodestar is required. Migis, 135 F.3d at 1047. The fee award must be the result of a "measured exercise of discretion" on the Court's part. Farrar, 506 U.S. at 114.
Turning to a few of the important factors ( i.e., factors one through five), these factors have already been considered in calculating the lodestar. The Court therefore determines that no reduction in the lodestar is warranted based on these factors.
Use of fee criteria (factor six) has been expressly disallowed. Burlington, 505 U.S. at 567. Accordingly, the Court gives it no consideration. As to time limitations imposed by the client or the circumstances (factor seven), counsel for the parties do not contend that any such limitations are applicable in setting a reasonable fee and thus no adjustment is warranted pursuant to the seventh Johnson factor. Factors nine through twelve also warrant no revision to the lodestar calculation. No evidence was adduced, aside from the vintage of the case, to suggest that the case was particularly undesirable.
See also Shipes v. Trinity Indus., 987 F.2d 311, 323 (5th Cir. 1993) (the contingent nature of a case cannot serve as a basis for enhancement of attorney fees).
Lastly, consideration of eighth Johnson factor (the results obtained), this factor is usually applied where there is partial success to reduce a fee award. Hensley v. Eckerhart, 461 U.S. 424 (1983). Plaintiffs were completely successful in prosecuting the motion to reopen and for attorney's fees, whereas the defendant was considered at fault in failing to comply with the July 9th settlement agreement, therefore the eighth Johnson factor does not warrant a discount of the fees incurred in this particular case.
For the foregoing reasons and pursuant to the Court's orders dated November 21, 2003 and January 30, 2004,
IT IS ORDERED that the defendant, Thomas S. Keaty, shall pay to the plaintiffs the full amount of Four Thousand Nine Hundred Sixteen Dollars ($4,916.00) as reasonable attorney fees, necessarily incurred in connection with the motion to reopen.
OBJECTIONS
Objections to the foregoing must be: (1) specific, (2) in writing, and (3) served within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b) and 72(b).A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge; and (2) appellate review of the unobjected-to factual findings and legal conclusions accepted by the district court, except upon grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).