Opinion
CIVIL ACTION NO: 02-1418 SECTION: "R" (4)
February 10, 2004
ORDER AND REASONS
On October 28, 2003, the defendant, Western Kentucky Navigation, Inc., filed a Motion to Compel Independent Medical Examination. Because the plaintiff, Edith L. Stagner ("Stagner"), did not file a memorandum in opposition nor request a extension of time within which to oppose the motion, the Court granted the motion as unopposed and ordered the defendant to submit the documentation required by Local Rule 54.2 for assessment of fees.
Rec. Doc. No. 29.
Rec. Doc. No. 31.
In response to the Court's order, on November 21, 2003, the defendant filed an Original Motion to Award Attorney Fees in Accordance with Local Rule 54.2. The Court construed the submission as a memorandum in support of an award of attorney's fees and costs in connection with the previous Motion to Compel Independent Medical Examination, as opposed to an Original Motion to Award Attorney's Fees in Accordance with Local Rule 54.2. Upon review of the information submitted, however, the Court found that the defendant failed to submit sufficient information for the Court to make a determination of the "reasonable hourly rate."
Rec. Doc. No. 29.
Thereafter, the Court ordered counsel for the defendant to provide the Court with (1) an affidavit attesting to their education, background, skills and experience and (2) sufficient evidence of rates charged in similar cases by other local attorneys with similar experience, skill and reputation no later than January 9, 2004. Defendant's counsel complied and the Court is now ready to rule on the amount of attorney's fees that should be awarded.
I. Background
This matter arises from a suit filed by the plaintiff, Edith L. Stagner ("Stagner") for injuries she allegedly suffered on or about February 1, 2001, which caused serious and painful injuries to her back. Stagner was employed by WESTERN aboard the M/V DE SALLE.
On May 7, 2002, Stagner filed the instant suit in this Court against the defendant under the Jones Act, 46 U.S.C. § 688 for her injuries. On October 28, 2003, the defendant filed a Motion to Compel Independent Medical Examination ("Motion to Compel IME") asserting that prior to filing this suit, Stagner had been examined by three physicians in Alabama. The defendant further asserted that none of the physicians who examined Stagner were selected or engaged by the defendant.
Id.
The defendant further asserted that in February of 2002, its counsel arranged to have Stagner examined at the defendant's expense by Dr. Melvin Parnell, a board certified orthopedic surgeon, on July 24, 2003. However, Stagner's counsel failed to notify defendant's counsel that she could not attend the appointment. Thereafter, the defendant arranged a second appointment with Dr. Parnell scheduled for October 21, 2003, and again Stagner's counsel failed to notify defendant's counsel of Stagner's inability to attend the appointment.
The defendant filed the Motion to Compel IME seeking an order compelling Stagner to attend the examination that was scheduled for December 2, 2003. Stagner failed to oppose the motion, and the Court granted the motion as unopposed with costs.
II. Analysis A. Rule 37
Motions to compel discovery responses are governed by Rule 37 of the Federal Rules of Civil Procedure. That rule provides that "[i] f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." FED. R. Civ. P. 37(a)(2). Rule 37(a)(4)(A), which governs sanctions under the rule, requires the award of reasonable expenses, including attorney's fees, unless the motion to compel discovery was unjustified or other circumstances make the award unjust. Lischka v. Tidewater Services, Inc., 1997 WL 27066, at *4 (E.D. La. Jan. 22, 1997). The rule provides:
If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
The defendant seeks to recover attorney's fees in the amount of $627.50. The defendant contends that Kathy Bilich, paralegal, expended a total of 1 hour on matters regarding the motion to compel at an hourly rate of $60.00. The defendant further contends that Zachary Stump, attorney, expended a total of 2.9 hours drafting and revising the motion to compel at an hourly rate of $110.00, and attorney Danica Benbow spent 1.1 hours in connection with the motion at an hourly rate of $135.00.
Although Zachary Stump is not enrolled as counsel for the defendant in this matter, he submitted an affidavit indicating that he provided services for the defendant in connection with the motion to compel.
Further, the defendant seeks to recover the $200.00 cancellation fee charged by Dr. Melvin Parnell for Stagner's failure to appear for the appointments. There has been no opposition to an award of attorney's fees submitted by Stagner.
The record reflects that Dr. Parnell billed defendant's counsel an amount of $200.00 for Stagner's failure to appear for the October 21, 2003 examination.
B. Standard
The determination of a reasonable attorney's fee award involves a two-step process. See Rutherford v. Harris County, 173, 192 (5th Cir. 1999). 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. This "lodestar" method serves as the initial estimate of a reasonable attorney's fee. Blum v. Stenson, 465 U.S. 886, 888 (1984).
The second step involves the application of twelve factors the Fifth Circuit applies in determining what amount is warranted. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill required 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 of money 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.
Once the lodestar is computed by multiplying the reasonable number of hours by a reasonable hourly rate, the court may adjust the lodestar upward or downward depending on its analysis of the twelve factors espoused in Johnson. See Dodge v. Hunt Petroleum Corp., 174 F. Supp.2d 505, 508 (N.D. Tex. 2001). Thus, in light of the Johnson factors, the Court may reduce the award resulting from the lodestar calculation if the documentation of hours worked is inadequate or if the calculation includes hours that were not "reasonably expended." See Hensley, 461 U.S. at 433-34.
C. The Lodestar 1. Reasonable Fee
The party seeking attorney's fees has the burden of establishing the reasonableness of the fees by "submitting evidence supporting the hours worked and the rates claimed." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3rd Cir. 1990) (citing Hensley, 461 U.S. at 433). Thus, counsel for the defendant "must produce satisfactory evidence-in addition to [their] own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984); Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
The Court must determine the reasonable number of hours expended in the litigation and the reasonable hourly rate for the participating attorneys. See Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The lodestar is then computed by multiplying the number of hours by the reasonable hourly rate. Id. 2. Reasonable Hourly Rate
Attorneys' fees are to be calculated at the prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 895 (1984). In the instant case, it is uncontested that the relevant community here is the New Orleans, Louisiana legal market.
The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987). Satisfactory evidence of the reasonableness of the rate, at a minimum, is more than the affidavit of the attorney performing the work. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Blum, 465 U.S. at 896 n. 11)). It must also speak to rates actually billed and paid in similar lawsuits. Thus, testimony that a given fee is reasonable is not satisfactory evidence of market rates. See Hensley, 461 U.S. at 439 n. 15.
Evidence of rates may be adduced through direct or opinion evidence as to what local attorneys charge under similar circumstances. The weight to be given to the opinion evidence is affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breath of the sample of which the expert has knowledge. Norman, 836 F.2d at 1299.
a. Zachary Stump
Here, Zachary Stump ("Stump") contends that his hourly rate is $110.00. As proof of the reasonableness of the rate charged, the defendant has only provided the affidavit of Stump, the attorney performing the work. Stump is an associate with Frilot, Partridge, Kohnke Clements, L.C., and he attests that for all of the work he performs on behalf of clients, the firm charges an hourly rate of $110.00. Stump states that he received his Juris Doctorate from Tulane Law School in 2001, where he was an articles editor for the Tulane Law Review and graduated Order of the Coif. Stump has been admitted to practice in the state of Louisiana since October of 2003.
Rec. Doc. No. 34, Memorandum in Support of Motion for Attorney's Fees, Exhibit 2, Affidavit of Zachary A. Stump.
b. Danica Benbow
The defendant's counsel, Danica Benbow ("Benbow"), contends that her hourly rate is $135.00. As proof of the reasonableness of the rate charged, the defendant has only provided the affidavit of Danica Benbow, the attorney performing the work. Benbow is an associate with Frilot, Partridge, Kohnke Clements, L.C., and she attests that for all of the work she performs on behalf of clients, the firm charges an hourly rate of $135.00.
Id., Exhibit 1, Affidavit of Danica C. Benbow.
Benbow states that she received her Juris Doctorate from Loyola Law School in 2001, where she was named a Crowe Scholar and a board member of the Loyola Law Review. She further states that she has been admitted to practice in the state of Louisiana since October of 2001.
c. Kathy Bilich
Kathy Bilich ("Bilich"), a paralegal with Frilot, Partridge, Kohnke Clements, L.C., submits that for all of the work she performs on behalf of clients, the firm charges an hourly rate of $60.00. As proof of the reasonableness of the rate, the defendant has only provided the affidavit of Kathy Bilich, the paralegal performing the work.
Id., Exhibit 3, Affidavit of Kathy Bilich.
Bilich states that she graduated high school in 1975, attended Tulane Paralegal School, completing courses for Legal Research and Writing, and she also has a certificate from the University of Colorado for Paralegal Studies. Bilich further states that she has twenty-five years of legal experience.
The defendant has not offered evidence, other than the affidavits, that the rates charged for the services are in line with the prevailing rates charged by attorneys or paralegals of similar
experience or education in the community. However, Stagner does not oppose the hourly rates requested by the defendant, the itemization of costs submitted by the defendant, or the hours expended on bringing the motion. Further, as discussed below and based on the Court's own knowledge
i. Attorney rates
As an initial matter, the Fifth Circuit has held that "when an attorney's customary billing rate is the rate at which the attorney requests the lodestar be computed and that rate is within the range of prevailing market rates, the court should consider this rate when fixing the hourly rate to be allowed. When that rate is not contested, it is prima facie reasonable." Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995).
Further, a review of cases decided in this Court reveals that Stump and Benbow's requested hourly rate is reasonable. In Millon v. Johnston, the Court found that the hourly rate of $150 was reasonable for counsel with ten years or more years of legal experience, and that the hourly rate of $135.00 for counsel with five years of experience was reasonable. 1999 WL 358968 at *5 (E.D. La. May 28, 1999); see also Associated Builders Contractors of La., Inc. v. New Orleans Parish Sch. Bd, 919 F.2d 374, 379 (5th Cir. 1990) (hourly rates of $175.00 for partner and $100.00 for associate within the prevailing market rate in New Orleans); L L Oil Co. v. Lefkowitz, 1996 WL 56464 (E.D. La. Feb. 9, 1996) (fees ranging between $105.00 and $140.00 fell withing the range of customary fees charged in the Eastern District for non-complex civil cases).
Therefore, the rates requested by Stump and Benbow are reasonable given their qualifications and experience, especially in light of the fact that Stagner failed to respond to the application for fees to state any objections.
ii. Paralegal rate
It is well established that prevailing parties can recover for fees expended by paralegals working on the file. Kathy Bilich, in her affidavit stated that she was billed at her customary rate of $60.00 per hour. Further, this rate has not been contested by Stagner.
The cost of paralegal services are to be included in the assessment and award of attorney's fees if the following criteria are met:
1. the services performed must be legal in nature;
2. the performance of such services by the paralegal must be supervised by an attorney;
3. the qualifications of the paralegal performing the services must be specified in the application or motion requesting an award of fees in order to demonstrate that the paralegal is qualified by virtue of education, training, or work experience to perform substantive work;
4. the nature of the services performed by the paralegal must be specified in the application/ motion requesting an award of fees in order to permit a determination that the services performed were legal rather than clerical in nature;
5. the amount of time expended by the paralegal in performing the services must be reasonable and must be set out in the motion; and
6. the amount charged for the time spent by the paralegal must reflect reasonable community standards of remuneration.See Jones v. Armstrong Co., 630 F.2d 324, 325 n. 1 (5th Cir. 1980). See also Fees for Paralegal Services: Are They Recoverable, 461 PLI/Lit 185 (1993); Associated Builders, 919 F.2d at 380.
In, Baza v. Chevron Oil Service Co., the Court allowed the paralegals to bill at their customary rates of $50.00 and $60.00 per hour, finding the rates reasonable, within the prevailing market range in New Orleans, and uncontested by opposing counsel. 1996 WL 711506 at *2 (E.D. La. December 10, 1996); see also Jimenez v. Paw-Paw's Camper City, Inc., 2002 WL 257691 at *20 (finding that $60.00 per hour was a reasonable rate for paralegal services). Considering Bilich's education in paralegal studies and her twenty-five years of legal experience, her customary rate of $60.00 per hour is reasonable.
However, in order to recover for paralegal fees, the services rendered by the paralegal must be legal in nature, or work traditionally performed by an attorney. See Armstrong, 630 F.2d 324, 325 n. l (5th Cir. 1980). Work that is legal in nature includes, for example, "factual investigation, locating and interviewing witnesses, assistance with depositions, interrogatories and document production, compilation of statistical and financial data, checking legal citations and drafting correspondence." Missouri v. Jenkins, 491 U.S. 274, 288 (1989).
The legal activities undertaken by paralegals must be distinguished from other activities that are purely clerical in nature, such as typing, copying, or delivering pleadings. See Lalla v. City of New Orleans, 161 F. Supp.2d 686, 710 (E.D. La. 2001). Pure clerical or secretarial work may not be billed at a paralegal rate. Jenkins, Id.
Counsel for the defendant is seeking to recover for one hour of paralegal services for the following: 1.) 0.2 hours for a telephone conference with Dr. Parnell regarding EME; 2.) 0.4 hours for review of the file regarding Stagner's IME and supporting information prepared for motion to compel; 3.) 0.2 hours for telephone conference with Tim Young regarding IME and motion to compel; and 4.) 0.2 hours for telephone conference with Dr. Parnell regarding fees. These time entries reflect work that is legal in nature as opposed to pure secretarial tasks, and counsel for the defendant should be allowed to recover for the services performed by Bilich. 3. Reasonable Number of Hours Expended
Timothy Young serves as counsel for the plaintiff in this matter.
The party seeking attorneys' fees must present adequately documented time records to the court. Watkins v. Fordice, 1 F.3d 453, 457 (5th Cir. 1993). As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded from any award of attorney's fees. Raspanti v. United States Dept. of the Army, 2001 WL 1081375, at *6. Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, or redundant hours" when seeking fee awards. Id. (citing Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996)). The fee seeker's attorneys are "charged with the burden of showing the reasonableness of the hours they bill and, accordingly, are charged with proving that they exercised billing judgment." Walker, 99 F.3d at 770. When billing judgment is lacking, the court must exclude from the lodestar calculation the hours that were not reasonably expended. Hensley, 461 U.S. at 434.
In reviewing the time sheets submitted by the defendant, seeking to recover fees for a total of five hours expended on the motion to compel, the Court finds that the hours are not excessive, duplicative, or unreasonable.
4. Fees/Costs
Lastly, the defendant seeks to recover attorney fees and costs in the amount of $200.00. This amount is reflective of the cancellation fee charged by Dr. Melvin Parnell for Stagner's failure to appear for the medical exam. In her affidavit, Benbow attests that the billing record and invoice of Dr. Parnell represents a true and correct record of attorney fees and costs incurred as a result of Stagner's failure to appear for the scheduled examinations.
Rec. Doc. No. 34, Memorandum in Support of Motion for Attorney's Fees, Affidavit of Danica C. Benbow.
Rule 37(a) of the Federal Rules of Civil Procedure provides that a court may award to the prevailing party the reasonable expenses incurred in making the motion, including attorney's fees. Here, Stagner's conduct in failing to appear for the scheduled examinations, without notice or explanation, necessitated the filing of the Motion to Compel IME. However, Rule 37(a) does not contemplate costs incurred by the party in the normal course of litigation, absent a direct relation to the motion to compel.
While Rule 37(b) allows a court to assess sanctions against a party for failure to obey an order compelling the party to provide or permit discovery, Rule 37(a) only allows a court to award fees and expenses incurred in securing the order compelling discovery. See Liew v. Breen, 640 F.2d 1046, 1051 (9th Cir. 1981); see also American Hangar, Inc. v. Basic Line, Inc. 105 F.R.D. 173, 175-76 (D. Mass. 1985) (Rule 37(a) only provides for the expenses in bringing the motion, not for expenses relating to the underlying discovery dispute); SCM Societa Commercial S.P.A. v. Industrial and Commercial Research Corp., 72 F.R.D. 110, 112 (N.D. Tex. 1976) (Rule 37(b) provides for a wider range of sanctions than does Rule 37(a)).
Here, there is no question that had Stagner appeared for the medical examination by Dr. Parnell, the defendant would not have been forced to engage the court seeking an order to compel. However, the language of Rule 37(a) cannot be construed so as to allow the recovery of costs for conduct which necessitated the motion to compel. To the contrary, if after the court grants the motion to compel the party refuses to obey the order, Rule 37(b) provides for an award of reasonable expenses incurred by the nonmoving party's failure to obey.
The invoice submitted by the defendant indicates that Dr. Parnell charged defendant's counsel $200.00 for Stagner's "no-show office consult", on October 21, 2003. However, these costs cannot be said to have been incurred in bringing the motion to compel. Therefore, the request for reimbursement for the "no-show office consult" is denied.
Id., Billing Invoice of Dr. Melvin Parnell.
5. The Johnson Factors
"The lodestar . . . is presumptively reasonable", and should be enhanced or reduced only in exceptional cases. Watkins v. Fordice, 1 F.3d 453, 459 (5th Cir. 1993) (citing City of Burlington v. Dague, 505 U.S. 557, 567 (1992)). After carefully reviewing the record, the Court finds that the Lodestar amount is reasonable and finds that no further reduction or enhancement is required. In making this recommendation, the Court has considered and applied the factors articulated in Johnson as required by the Fifth Circuit.
Accordingly,
IT IS ORDERED that the defendant's application for attorney's fees in connection with the previous Motion to Compel Independent Medical Examination (doc. #29) is GRANTED IN PART and DENIED IN PART as follows:
1.) GRANTED to the extent that the defendant seeks to recover fees for attorney and paralegal time expended in bring the motion to compel. The defendant is entitled to recover for 1 hour at an hourly rate of $60.00 for paralegal work, 2.9 hours at an hourly rate of $110.00 for work performed by Zachary Stump, and 1.1 hours at an hourly rate of $135.00 for work performed by Danica Benbow, or an amount of $427.50.
2.) DENIED to the extent that the defendant seeks to recover $200.00 for the cancellation fee charged by Dr. Parnell for Stagner's failure to attend the scheduled examination on October 21, 2003.