Summary
In Johnson v. ChoicePoint Servs., Inc., No. 03-1061, 2004 WL 253460 (E.D. La. Feb. 10, 2004), Magistrate Judge Shushan awarded $200 per hour in an FCRA case to an attorney who had practiced law for 22 years.
Summary of this case from White v. Imperial Adjustment CorporationOpinion
CIVIL ACTION NO: 03-1061 SECTION: "A"(1)
February 9, 2004
ORDER AND REASONS
Pursuant to the terms of a settlement agreement, the plaintiff, Dorothy Moten Johnson ("Johnson"), was authorized to file an application for attorneys' fees pursuant to 15U.S.C. § 1681 n-o that would be resolved by the undersigned without any right of appeal to the District Court or Court of Appeals. Johnson filed her application on January 7, 2004. Rec. doc. 14. The defendant, ChoicePoint Services, Inc. ("ChoicePoint"), filed its opposition, and Johnson submitted a reply. Rec. docs. 16 and 17.
BACKGROUND AND HISTORY OF THE LITIGATION
Johnson filed suit in state court, pursuant to the Fair Credit Reporting Act, 15 U.S.C. § 1681-1681u, against ChoicePoint. Johnson alleged that a background check provided by ChoicePoint for an employment application contained an error concerning a criminal conviction. The prospective employer was notified of the error and Johnson was employed within a few days. On April 15, 2003, the petition was removed to federal court. Rec. doc. 1. ChoicePoint answered on May 9, 2003. Rec. doc. 4. At a preliminary conference the trial was set for January 26, 2004. Rec. doc. 6. A settlement conference was set for November 18, 2003. Rec. docs. 7 and 9. A settlement was reached at the conference and an order of dismissal was entered on November 20, 2003. Rec. doc. 12.
JOHNSON'S APPLICATION FOR FEES AND DEFENDANTS' OPPOSITION
Johnson submitted the contemporaneous billing records for her counsel, Mr. Hashek, who provided an affidavit. Mr. Hashek's affidavit does not state that billing judgment was exercised before or after the time entries were recorded. Rec. doc. 14, Exhibit D. There is no documentary evidence of billing judgment. Johnson contends that 100 hours were reasonably spent on the litigation, including five hours for the preparation of the fee application. She urges that the reasonable hourly rate is $200 per hour. Id., Exhibit A. Johnson also seeks costs of $629.84 for a total award of $20,629.84. Id., Exhibit C. ChoicePoint contends that: (1) Johnson unduly prolonged the litigation by rejecting out of hand ChoicePoint's April, 2003 settlement proposal; (2) Mr. Hashek's hours are excessive; (3) the hourly rate should be reduced to $150; and (4) there is no basis for a multiplier.
Mr. Hashek does state that in the exercise of billing discretion, a requested multiplier of 1.5 is waived. This is not the equivalent of exercising billing judgment before or after the hours are recorded.
Johnson's memo in support of her application states that there was "no effort made herein to claim compensation for all of the obviously substantial amounts of time spent communicating with clients and counsel." Rec. doc. 14, Memorandum at p. 9. There is no evidence to support this statement, and it is contradicted by the billing entries.
GENERAL DISCUSSION
To calculate an attorney's fees award the district court first calculates the "lodestar." Forbush v. J.C. Penney Co., 98 F.3d 817, 821 (5th Cir. 1996). The lodestar is the product of the number of hours reasonably expended on the litigation multiplied by a reasonable hourly billing rate. Hensley v. Eckerhart, 103 S.Ct. 1933, 1939-40(1983). However, "the district court [retains] broad discretion in setting the appropriate award of attorneys' fees." Hensley, 103 S.Ct. at 1939-40.In calculating the number of hours reasonably expended on the litigation, whether the total number of hours claimed were reasonable, and whether specific hours claimed were reasonably expended, the court must first ascertain the nature and extent of the services supplied by defendant's attorneys. Hensley, 103 S.Ct. at 1939-40. The district court must eliminate excessive or duplicative time. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993); see Hensley, 103 S.Ct. at 1939-40. Next, the court must value the service according to the customary fee and quality of the legal work. The relevant market for purposes of determining the prevailing hourly billing rate to be paid in a fee award is the community in which the district court sits. Scham v. District Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998).
"The district court may then adjust the lodestar upward or downward depending on the respective weights of the twelve factors set forth inJohnson v. Georgia Highway Express, Inc., 488 F.2d 714,717-19 (5th Cir. 1974)." Forbush, 98 F.3d at 821: see also Walker v. United States Dep't of Housing and Urban Dev., 99 F.3d 761, 771-73 (5th Cir. 1996) (describing the limited circumstances in which an adjustment to the lodestar is appropriate).
While the court is required to give reasons upon which an award is based, it is not required to fully address each of the Johnson factors in the recitation of its reasons. See Smith v. Walthall County Mississippi, 157 F.R.D. 388, 392-93 (S.D. Miss. 199 (citing Curtis v. Bill Hanna Ford, Inc., 822 F.2d 549 (5th Cir. 1987)): but see Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990) ("To avoid the risk of remand the district court should explain with a reasonable degree of specificity the findings and reasons upon which the award is based, including an indication of how each of the Johnson factors was applied");see also Blanchard v. Bergeron, 893 F.2d 87, 91 (5th Cir. 1990) (emphasizing that "attorneys' fee litigation should not require specific reasoning by the trial court to justify every facet of its decision"). InHensley the Supreme Court noted that many of the Johnson factors are "subsumed" in the initial calculation of reasonable hours and rates. 103 S.Ct. at 1940 n. 9.
In Johnson, the Fifth Circuit, with respect to the time and labor factor, stated:
Although hours claimed or spent on a case should not be the sole basis for determining a fee, they are a necessary ingredient to be considered. The trial judge should weigh the hours claimed against his own knowledge, experience, and expertise of the time required to complete similar activities.488 F.2d at 717. In the undersigned's experience the amount of time sought by Johnson, 100 hours of attorney time, is substantially greater than what would be anticipated in a Fair Credit Reporting Act case that is settled after initial discovery and with the motion practice limited to a joint motion for a protective order.
HOURS REASONABLY EXPENDED
As noted above, there is no evidence that any billing judgment was exercised before or after the hours were recorded. There are eighty-five time entries from March 28, 2002 through January 7, 2003. Of these, only seven are for increments of less than half an hour. This suggests that many entries were rounded to half hour segments. Some of the entries appear to be excessive. On April 19, 2003, there is an entry of one-half hour for the receipt and review of ChoicePoint's motion for extension of time. The motion is a typical motion for extension of twenty days. There is no extraneous language. Rec. doc. 2. The review of the motion should take no more than a couple of minutes. On May 10, 2003, there is an entry of two hours for the receipt and review of ChoicePoint's answer. The answer is ten pages long. Rec. doc. 4. It briefly describes twenty affirmative defenses. There is a paragraph by paragraph response to Johnson's petition. There is nothing unusual about the answer. Two hours for its review was excessive. On May 23, 2003, there is an entry of one-half hour for the review of the Court's standard notice of a preliminary conference. Rec. doc. 5. At most the receipt of the notice required a quick review to confirm its routine nature and then record the time of the conference on counsel's calendar. On August 8, 2003, there are two entries totaling two and a half hours for the preparation of a letter scheduling a discovery conference with opposing counsel pursuant to L.R. 37.1. On August 13 and 15, there are two further entries totaling 1.7 hours concerning L.R. 37.1. and the telephone conference with opposing counsel. 3.7 hours for this activity is excessive. On October 15, 2003, there is an entry of one hour for the receipt and review the protective order that was filed on that date. Rec. doc. 8. The protective order is only five pages long and was the subject of discussion with counsel for the defendant on several occasions. It was submitted as a joint motion. It should not have required an hour to read the already filed protective order. Moreover, on October 20, 2003, an entry of twelve minutes is recorded to review the conformed copy of the protective order. Presumably this refers to the copy of the order faxed to counsel for the parties by the Clerk. This was not even worthy of a time entry. These instances of excessive time indicate that other entries are also excessive.
Because of the lack of billing judgment and the evidence of excessive amounts of time for particular entries, the hours reasonably expended will be reduced by forty percent from 100 hours to 60 hours.
REASONABLE HOURLY RATE
Johnson requests $200 per hour for all work performed. There are no affidavits from other lawyers demonstrating the reasonableness of the $200 hourly rate. ChoicePoint objects to the hourly rate. It urges that the rate is excessive for some of the entries, for example travel time for the filing of the petition in St. Tammany Parish. ChoicePoint also fails to provide any affidavits supporting an hourly rate lower than $200 per hour.
In Green v. Administrators of Tulane Educational Fund, 284 F.3d 642,662 (5th Cir. 2002), as amended on denial of rehearing and rehearing en bane (April 26, 2002), the Fifth Circuit affirmed as not clearly erroneous a finding that $ 175 per hour for a partner with fourteen years of employment law experience was within the prevailing market rates for New Orleans. In ACEF v. UHS of De La Ronde, Inc., 1999 WL 397959 (E.D.La. 1999), a Title VII decision by Judge Livaudais, a rate of $195 was determined to be the reasonable hourly rate for an attorney with twenty-four years experience. Mr. Hashek has twenty-two years of legal experience. The rate of $200 per hour will be deemed reasonable and will be used to determine the lodestar for Johnson's claim.
COMPUTATION AND ADJUSTMENT OF LODESTAR
The lodestar is the product of the number of hours reasonably expended on the litigation multiplied by a reasonable hourly billing rate. Hensley v. Eckerhart, 103 S.Ct. 1933, 1939-40 (1983). Based on the foregoing determination of the hours expended and the reasonable hourly billing rate, the lodestar for Johnson's' claim is 60 hours times an hourly rate of $200 or a total of $12,000.
The Fifth Circuit held that the Johnson factors can be considered in arriving at the lodestar as well as in determining whether to modify it.Cobb v. Miller, 818 F.2d 1227, 1232 n. 8 (5th Cir. 1987); see Sims v. Jefferson Downs Racing Association, 778 F.2d 1068, 1084 (5th Cir. 1985). Johnson's circumstances are analogous to the discussion in Hensley v. Eckerhart, 103 S.Ct. 1933 (1983), concerning a plaintiff who achieved only partial or limited success. In those circumstances, "the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Id. at p. 1941. In West v. Nabors Drilling USA, Inc., 330 F.3d 379 (5th Cir. 2003), the Fifth Circuit stated:
Because we are reversing the awards of back pay and liquidated damages, which on remand could be materially less than the sum of $230,000 included in the judgment, we vacate the attorney's fee award and remand for further proceedings. We recognize that, under civil rights statutes . . . there is no per se requirement of proportionality in an award of attorney fees. An attorneys' fee award does not need to be commensurate with the actual amount of dollars awarded to the plaintiff. Nevertheless, proportionality is an appropriate consideration in the typical case. The amount of damages a plaintiff recovers is certainly relevant to the amount of attorney's fees to be awarded . . . .330 F.3d at 395. Considering the fact of settlement, there is no need for a further reduction in the lodestar.
PREPARATION OF FEE APPLICATION
In Albert! v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990), reh'g granted on other ground, 903 F.2d 352 (5th Cir. 1990), the Fifth Circuit stated: "[i]n this circuit it is settled that a prevailing plaintiff is entitled to attorney's fees for the effort entailed in litigating a fee claim and securing compensation." Id. at 937. Johnson's time for the preparation of the fee application is included in the lodestar.
COSTS
ChoicePoint contends that Johnson is not entitled to costs as part of the settlement and only attorneys' fees were covered by the settlement. This is not a reasonable interpretation of the settlement agreement. Choicepoint makes no objection to the costs, so Johnson will be awarded costs of $694.84.CONCLUSION
The undersigned having considered the record in this matter, the parties' filings on the fee issue and the applicable law, and for the reasons assigned,
IT IS ORDERED that Johnson's application for attorneys' fees and costs (Rec. doc. 14) is GRANTED in PART and DENIED in PART and that Johnson is awarded attorneys' fees of $12,000.00 and costs of $694.84 for a total of $12,694.84.