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approving rates of $190.00 and $225.00 per hour
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Civil Action No: 03-2024, Section: "N" (4).
November 22, 2004
ORDER AND REASONS
On July 30, 2004, the defendant, Diamond Offshore Management Company, filed the Defendant's Motion to Compel and Motion for Sanctions (Rec. Doc. No. 24) seeking an order compelling the plaintiff to respond to discovery requests and seeking to recover fees and expenses incurred in filing the motion. A hearing was set on the motion on August 18, 2004, however, before the hearing date, on August 16, 2004, the Court granted the motion as unopposed pursuant to Local Rule 7.5E.
While the movant characterizes its request as one for sanctions, the Court notes that they are not in fact sanctions but the reimbursement of the reasonable costs incurred in having to pursue the production of discovery which it was clearly entitled to as authorized by Rule 37.1 of the Federal Rules of Civil Procedure.
Rec. Doc. No. 26.
In the order, the Court requested that the defendant provide the Court with the documentation required by Local Rule 54.2 no later than August 23, 2004 and that the plaintiff's opposition to that documentation was due to the Court by August 25, 2004.
In response to the Court's order, on August 23, 2004, the defendant filed the Defendant Diamond Offshore Management Company's Supplementation in Response to Court's 8/17/04 Minute Entry. As required by the Court, the submission included (1) an affidavit of defense counsel in this matter, Bryant S. McFall and a narrative resume of Michael J. DePonte, describing 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.
Rec. Doc. No. 27.
On August 24, 2004, the plaintiff, James Smith, filed a Motion for Rehearing of Defendant's Motion to Compel which was permitted. After listening to the argument of counsel for the parties, the Court affirmed its prior ruling that the production was appropriately compelled and that the plaintiff's counsel failed to set forth good cause as required by Rule 37.1 why the information was not provided in a timely fashion. As a result, the Court found that it was appropriate to consider the award of attorneys fees and costs which were incurred in having to pursue the subject discovery. Having set forth the procedural history of this matter, the Court is now ready to rule on the amount of attorney's fees that should be awarded.
Rec. Doc. No. 28.
I. Analysis
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 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.
II. The Lodestar A. 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. B. 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, although both Bryant S. McFall and Michael J. DePonte practice law in Dallas, Texas, the defendant has acknowledged that the relevant legal community 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.
1. Bryant S. McFall
Here, the defendant seeks to recover Bryant S. McFall's ("McFall") fees at an hourly rate of $225.00. He points out that his standard rate in Texas was $305 per hour but that he discounted it to reflect the appropriate rate charged by lawyers in Louisiana.
He advises that he consulted with Benjamin Banta of the Kullman Firm, a local firm in the New Orleans area, who advised him that lawyers in their labor and employment law firm usually charge a rate of approximately $225.00 per hour.
As proof of the reasonableness of the rate charged, the defendant has provided the affidavit of McFall, his resume, and the declaration of Benjamin H. Banta, an attorney practicing in New Orleans and the defendant's local counsel. According to his affidavit, McFall is Managing Shareholder of the Dallas office of Ogletree, Deakins, Nash, Smoak, Stewart, P.C. His resume states that he received his Bachelor's Degree summa cum laude from Emory University and his Juris Doctorate from the University of Texas at Austin where he graduated cum laude and was inducted into the Order of the Coif. After graduating from law school, McFall served as a law clerk to the Honorable A. Joe Fish, Chief Judge of the United States District Court for the Northern District of Texas.
Rec. Doc. No. 27 Exhibits 1 and 2.
McFall further states that his practice has been directed to the area of Labor Employment. He states that he has litigated employment matters in state and federal courts throughout the United States, including Texas, Oklahoma, Louisiana, Kansas, Colorado, Alabama, Florida, Georgia, Illinois, Massachusetts, Missouri, New York, Pennsylvania, and California. In November 2003, Texas Monthly magazine recognized McFall as a "Texas Super Lawyer" in employment litigation.
2. Michael J. DePonte
The defendant also seeks to recover Michael J. DePonte's ("DePonte") fees at an hourly rate of $190.00. As proof of the reasonableness of the rate charged, the defendant has provided the affidavit of McFall, his resume, and the declaration of Benjamin H. Banta, an attorney practicing in New Orleans and the defendant's local counsel.
The movant notes that Mr. DePonte's standard hourly rate is $260.00 per hour which is while $10.00 below the standard rate charged by firms in Dallas his actually higher than the standard rates charged by lawyers in Louisiana. As a result, he reduced his standard rate to $190.00 per hour to reflect a rate consistent with the rates charged by lawyers in Louisiana.
DePonte is a Senior Associate with the professional law corporation of Ogletree, Deakins, Nash, Smoak, Stewart. According to DePonte's resume, he received his Juris Doctorate from South Texas College of Law in 1997. Upon graduating from law school, DePonte accepted a position with a private firm in the United States Virgin Islands. Sometime thereafter, DePonte accepted a position as an Assistant Attorney General for the State of Texas in the Law Enforcement Defense Division. In that position, DePonte represented state law enforcement agencies and officials in civil rights and employment litigation and appeals.
DePonte is admitted to practice before the Federal District Courts of the State of Texas, the United States Court of Appeals for the Fifth Circuit, and the United States Supreme Court. He is admitted to the bar in Texas and the United States Virgin Islands.
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 of similar experience or education in the community. However, the plaintiff has not opposed the hourly rates requested by the defendant.
3. 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. A reasonable hourly rate is defined as the prevailing market rate, in the relevant legal community, for similar services by attorneys of reasonably comparable skill, experience and reputation. Palmisano Properties, Ltd. v. Wells, 2003 WL 22326508, E.D.La., Oct 08, 2003". 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).
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.
Counsel for the mover appropriately modified their hourly rate to reflect rates charged in the prevailing market which in this instance in New Orleans, Louisiana. The Court therefore finds that the rates of $225.00 for Bryant S. McFall and $190.00 for Michael J. DePonte are reasonable.
C. Reasonable Number of Hours Expended
The party seeking attorneys' fees must present adequately documented time records to the court. Watkins v. Fordice, 7 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.
1. McFall's Time
The defendant first seeks to recover fees for a total of 2.1 hours that McFall contends he spent communicating with the plaintiff's counsel via telephone conversations and letter correspondences regarding the plaintiff's failure to respond to written discovery requests and for his work on the Motion to Compel.
In his affidavit, McFall states that he communicated with the plaintiff's counsel for .4 hours on April 21, 2004, regarding an agreement to extend the time for the plaintiff to respond to discovery requests; for .5 hours on June 10, 2004 and .3 hours on June 16, 2004 regarding the plaintiff's failure to respond to those requests. Next, McFall states that on June 16, 2004 he conducted additional communication with the plaintiff regarding his failure to respond for .3 hours. In addition, McFall states that he spent .3 hours on June 22, 2004 reviewing a letter from plaintiff's counsel. Finally, after deciding that a Motion to Compel was necessary and assigning it to be drafted by DePonte, McFall states that he spent .3 hours on July 28, 2004 revising the Motion before it was filed. Except for the June 22, 2004 hours, all of these hours and tasks are reflected on McFall's billing records.
In opposition to the instant motion, the plaintiff has not addressed the time his counsel spent corresponding and conversing with McFall regarding discovery responses. Rather, the plaintiff merely contends that the time the defendant's attorneys claim they spent working on the Motion to Compel is excessive.
Upon reviewing the billing records and affidavits submitted to the Court, as well as the hearing transcript from September 22, 2004, during which the plaintiff's counsel acknowledged that he had participated in correspondence with the defendant's counsel since April 2004 regarding these discovery responses, the Court finds that the defendant may be awarded for the 1.8 hours sought by the defendant for McFall's time that is reflected on the billing records. Because the June 22, 2004 time is not included on the billing records submitted to the Court, this time is not recoverable by the defendant. Thus, the Court awards the defendant fees for 1.8 hours of McFall's time.
2. DePonte's Time
The defendant also seeks to recover 5.2 hours for DePonte's time in researching the issue of sanctions and in drafting the Motion to Compel. The plaintiff contends that this time is excessive as the defendants counsel likely generated this type of motion on a regular basis.
First, the defendant has alleged that DePonte initially researched whether dismissal would be an appropriate sanction for the plaintiff's refusal to cooperate in discovery. Upon finding that this would not be appropriate under the circumstances, DePonte then conducted additional research to determine what would be an appropriate sanction. The billing records submitted to the Court indicate that DePonte spent a total of 1.4 hours conducting this research.
Next, the filings reflect that DePonte spent a total of 3.8 hours drafting and revising the Motion to Compel and Motion for Sanctions. That motion and its supporting Memorandum is eight pages in length excluding exhibits. Approximately three of those pages consist of a recitation of the facts which caused the defendant to file the motion. The motion also contains one paragraph explaining why the Motion to Compel should be granted and approximately two pages consist of legal argument with case citations in support of the imposition of sanctions.
The Court notes that an attorney fee award may include the amount of time the attorney spent seeking the award. Johnson v. State of Miss., 606 F.2d 635, 638 (5th Cir. 1979).
The Court finds that the motion was not complex and as such, 3.8 hours is an excessive amount of time for its drafting and revision. Given the defendant's counsels' extensive experience in employment litigation matters, generating the Motion to Compel discovery should not have exceeded 2.0 hours.
D. The Johnson Factors
"The lodestar . . . is presumptively reasonable", and should be enhanced or reduced only in exceptional cases. Watkins v. Fordice, 7 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 and for Sanctions (Rec. Doc. No. 24) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED to the extent that the defendant seeks to recover fees for reasonable time its attorneys expended in pursuing amicable resolution of discovery issues and in bringing the Motion to Compel. The motion is DENIED TO THE EXTENT THAT THE ORDER COULD BE CONSTRUED AS A SANCTION AS IT IS NOT. Instead it is being issued in accordance with the provisions of Rule 37.1 which provides for the reasonable assessment of attorneys fees for pursuing a motion to compel unless good cause is shown.
IT IS FURTHER ORDERED that the defendant is entitled to recover for 1.8 hours at an hourly rate of $225.00 per hour for Bryant S. McFall's for a total of $405.00 and 2.0 hours at an hourly rate of $190.00 for Michael J. DePonte's for a total of $380.00. The total amount of reasonable attorneys fees and costs that are recoverable are $785.00.