Hornbeck Offshore Services, L.L.C. v. Salazar et al

Filing 270

OBJECTION to 265 Report and Recommendations On Quantum of Attorney's Fees by All Plaintiffs (Rosenblum, Carl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
)
HORNBECK OFFSHORE SERVICES, L.L.C., )
et al.
)
Plaintiffs,
)
)
VERSUS
)
)
KENNETH LEE “KEN” SALAZAR, IN HIS
)
OFFICIAL CAPACITY AS SECRETARY,
)
UNITED STATES DEPARTMENT OF
)
INTERIOR; UNITED STATES
)
DEPARTMENT OF INTERIOR; ROBERT
)
“BOB” ABBEY, IN HIS OFFICIAL
)
CAPACITY AS ACTING DIRECTOR,
)
MINERALS MANAGEMENT SERVICE;
)
AND MINERALS MANAGEMENT
)
SERVICE,
)
)
Defendants.
)
)

CIVIL ACTION NO. 10-1663(F)(2)

Section F
Judge Martin L. C. Feldman

Magistrate 2
Magistrate Joseph C. Wilkinson, Jr.

PLAINTIFFS’ OBJECTIONS TO MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION ON QUANTUM OF ATTORNEY’S FEES1
NOW INTO COURT, through undersigned counsel, come Plaintiffs, Hornbeck Offshore
Services, L.L.C., the Chouest Entities and the Bollinger Entities, which respectfully submit their
Objections to Magistrate Judge Wilkinson’s Findings and Recommendation (Rec. Doc. 265)
1

Although the Court just issued its Order approving the Magistrate Judge’s Findings and Recommendations (Rec.
Doc. 268), these Objections are timely pursuant to 28 U.S.C. §636(b)(1)(C).

{N2305142.2}

pursuant to 28 U.S.C. § 636(b)(1). Plaintiffs request that this Court review and revise the
Magistrate Judge’s quantum decision solely to address two apparently inadvertent omissions by
the Magistrate Judge. First, to include in the mathematical calculation of the lodestar amount the
reasonable and necessary attorney’s fees incurred by Plaintiffs in filing their Motion for
Recovery of Attorney’s Fees (Rec. Doc. 213) and their Motion to Set Amount of Attorney’s Fees
and Costs (Rec. Doc. 233), which, according to the Magistrate Judge – and even the Government
– are properly recoverable. See Rec. Doc. 265 at 26, 27, 32, and 8, 25, 28 (Plaintiffs are entitled
to recover “those reasonable fees incurred in connection with their motion for attorney’s fees”);
Rec. Doc. 246, Memorandum in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Cost
(filed under seal), at 6 (“a reasonable fee request would include costs related to . . . Plaintiffs’
motion for recovery of fees and costs”); Rec. Doc. 256, Memorandum in Opposition to
Plaintiffs’ Supplement to Motion to Set Attorneys’ Fees and Costs, at 7 (recognizing Plaintiffs’
entitlement to recover fees for attorneys’ work on Plaintiffs’ Motion to Set Amount of Attorney’s
Fees and Costs). Second, to include in the mathematical calculation of the lodestar amount 85%
of the total actual hours billed by John F. Cooney of Venable L.L.P. between June 22, 2010 and
September 29, 2010 at the rate of $450/hr, as recommended by the Magistrate Judge.
Based on these omissions, Plaintiffs request an upward adjustment of the lodestar amount
recommended by the Magistrate Judge from $440,596.68 to $530,441.93, to capture the
reasonable and necessary attorney’s fees incurred by Plaintiffs in connection with their Motion
for Recovery of Attorney’s Fees and Motion to Set Amount of Attorney’s Fees, which, as
supported by the record, totaled $89,845.25, See Rec. Doc. 234 at Ex. D-2; Rec. Doc. 251, and
an additional upward adjustment of the lodestar amount recommended by the Magistrate Judge

{N2305142.2}

2

by $101,974, to a final lodestar amount of $632,415.93, as supported by the record. See Rec.
Doc. 234 at Declaration of John F. Cooney at ¶12 and Exhibit C filed under seal.
In the Findings and Recommendation, the Magistrate Judge concluded that Plaintiffs
“cannot recover any attorney’s fees for legal work done before June 22, 2010, the day the
preliminary injunction was issued” and “cannot recover for any attorney’s fees incurred after
[September, 29, 2010] (except those reasonable fees incurred in connection with their motion
for attorney’s fees).”

Rec. Doc. 265 at 26-27 (underscoring original; bold italics added).

Accordingly, the Magistrate Judge found that Plaintiffs are entitled to recover their reasonable
fees incurred in connection with their Motion for Recovery of Attorney’s Fees and Motion to Set
Amount of Attorney’s Fees, as even the Government concedes.
To calculate the lodestar amount, the Magistrate Judge first deducted from the total
hours requested by Plaintiffs all hours billed by their attorneys before entry of the preliminary
injunction on June 22, 2010, for a subtotal of 1,803.60 hours for the Jones Walker firm. Rec.
Doc. 265 at 31. Then, the Magistrate Judge deducted all time incurred after September 29, 2010,
for a total of 1,706.40 hours for the Jones Walker firm. Rec. Doc. 265 at 31. Based on a finding
that there should be a 15% across-the-board reduction in reasonable hours billed and a finding
that Plaintiffs should recover their fees for only 50% of Jones Walker attorney Marjorie
McKeithen’s time, the Magistrate Judge arrived at a total calculation of recoverable Jones
Walker hours of 1409.81. Rec. Doc. 265 at 50. The mathematical calculation performed is
reflected as follows: 1,706.40 x .85 = 1450.44 – 40.63 = 1409.81 hours (total Jones Walker
hours recoverable after deducting pre-June 22, 2010 time and post-September 29, 2010 time
(1,706.40) reduced by 15% = 1450.44; deduct 40.63 hours (50% of Ms. McKeithen’s time) from
1450.44 = 1409.81 hours). Consequently, after deducting all post-September 29, 2010 time to

{N2305142.2}

3

calculate the lodestar, the Magistrate Judge inadvertently failed to recapture those postSeptember 29th hours that were devoted to Plaintiffs’ request to recover their attorney’s fees
based on the Government’s contemptuous conduct. In short, although the Magistrate Judge
concluded that Plaintiffs are entitled to recover their reasonable fees incurred in seeking their
attorney’s fees, the recommended lodestar amount did not capture those fees.
As reflected in the Declaration of Carl D. Rosenblum submitted in support of Plaintiffs’
Motion to Set Amount of Attorney’s Fees, Jones Walker opened a separate file, File No. 124440,
“to capture all of the attorney time and costs . . . to be rendered in connection with Plaintiffs’
Motion for Recovery of Attorney’s Fees (Rec. Doc. 213), as well as quantifying the amount of
attorney’s fees and costs sought.” Rec. Doc. 233-2. As further reflected in Exhibit D-2 to Mr.
Rosenblum’s Declaration (Rec. Doc. 234, filed under seal), the amount of Jones Walker
attorney’s fees incurred by Plaintiffs through January 2011 for File No. 124440 totaled
$44,348.00. Thereafter, Plaintiffs filed under seal a Supplemental Appendix, which reflects that
Plaintiffs incurred an additional $47,087.25 in Jones Walker attorney’s fees for File No. 124440
through February 2011. Rec. Doc. 251; Rec. Doc. 250 (Order, dated March 30, 2011, granting
Plaintiffs’ Ex Part Motion for Leave to File Supplemental Declaration and Supplemental
Appendix and further ordering that the supplemental appendix shall be filed under seal). After
deducting the time of Mary E. Rolland and after reducing the hourly rate for the most
experienced paralegal to $95/hr, as recommended the Magistrate Judge, the Supplemental
Appendix reflects an additional $45,497.25 in Jones Walker attorneys fees. Therefore, under the
Findings and Recommendations the total amount of recoverable Jones Walker attorney’s fees
incurred by Plaintiffs in connection with their motion for recovery of attorney’s fees is
$89,845.25 ($44,348.00 + $45,497.25).

{N2305142.2}

4

As the Magistrate Judge correctly concluded in excluding from his post-September 29th
fee reduction “those reasonable fees incurred in connection with their motion for attorney’s
fees,” Rec. Doc. 265 at 27, Plaintiffs are entitled to recover the attorney’s fees they incurred for
“the cost of bringing” the Government’s violation of this Court’s preliminary injunction order
“to the attention of the court” as “part of the damages” they suffered. Cook v. Ochsner Found.
Hosp., 559 F.2d 270, 272 (5th Cir. 1977). Because the Magistrate Judge, however, inadvertently
omitted to include in the mathematical calculation of the recommended lodestar amount any
attorney’s fees incurred by Plaintiffs to bring their Motion for Recovery of Attorney’s Fees and
their Motion to Set Amount of Attorney’s fees, Plaintiffs respectfully ask this Court to revise the
recommended $440,596.68 lodestar amount set forth in the Findings and Recommendation by
adjusting it upward by $89,845.25 to include those properly recoverable fees.
Additionally, in calculating the lodestar amount, the Magistrate Judge included only 30.6
hours of the time by John F. Cooney. Rec. Doc. 265 at 50. The Magistrate Judge intended to
include all hours of Mr. Cooney between June 22, 2010 and September 29, 2010 but at the
reduced rate of $450/hr as “the highest reasonable rate in this district.” See Rec. Doc. 265 at 1719. As reflected in Exhibit C to the Declaration of John F. Cooney, the total hours billed by Mr.
Cooney between June 22, 2010 and September 29, 2010 were 266.6 hours (37 in June, 121.50 in
July, 76.4 in August and 31.7 in September).

After applying the 15% across-the-board

reduction, the lodestar amount for Mr. Cooney should be $101,974.00 (266.6 hours x .85 =
226.61 x $450/hr = $101,974.00) rather than $13,770.00.

{N2305142.2}

5

Consequently, as adjusted, Plaintiffs respectfully request reimbursement of $632,415.93,
rather than the recommended $440,596.68 amount, plus the $444.33 amount recommended for
costs.2

Respectfully submitted,

CARL D. ROSENBLUM, T.A. (2083)
GRADY S. HURLEY (13913)
ALIDA C. HAINKEL (24114)
MARJORIE A. MCKEITHEN (21767)
JONES, WALKER, WAECHTER, POITEVENT,
CARRÈRE & DENÈGRE
201 St. Charles Avenue, 49th Floor
New Orleans, Louisiana 70170
Telephone: [phone]
Fax: [phone]
[e-mail]
And
JOHN F. COONEY
(admitted Pro Hac Vice)
Venable LLP
575 7th Street, N.W.
Washington, D.C. 20004
Telephone: [phone]
Attorneys for Plaintiffs,
Hornbeck Offshore Services, L.L.C.,
The Chouest Entities and The Bollinger Entities

2

See Rec. Doc. 265 at 3 (recommending that Plaintiffs be reimbursed $444.33 in costs).

{N2305142.2}

6

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing pleading has been served upon all
parties by email or by using the CM/ECF system which will send a Notice of Electronic filing to
all counsel of record, this 7th day of June, 2011.

{N2305142.2}

7