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

Filing 273

OBJECTION to 265 Report and Recommendations and Opposition to Plaintiffs' Objections by All Defendants (Piropato, Marissa) (Additional attachment(s) added on 6/17/2011: # 1 Exhibit A - B) (caa, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA

HORNBECK OFFSHORE SERVICES,
LLC, et al.
Plaintiffs,
and

CIVIL ACTION No. 10-1663(F)(2)
SECTION F

DIAMOND OFFSHORE COMPANY,
JUDGE FELDMAN
Plaintiff-Intervenors,
v.

MAGISTRATE 2
MAGISTRATE WILKINSON

THE CENTER FOR BIOLOGICAL
DIVERSITY, et al.,
Defendant-Intervenors,
and
KENNETH LEE "KEN" SALAZAR, et al,
Defendants.

DEFENDANTS’ OBJECTIONS TO MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION ON QUANTUM OF ATTORNEY’S FEES AND DEFENDANTS’
OPPOSITION TO PLAINTIFFS’ OBJECTIONS

INTRODUCTION
Plaintiffs request $191,891.25 in additional fees to correct what they characterize as
“inadvertent omissions” from the Magistrate’s well-reasoned and thorough Report and
Recommendation, Dkt. #265 (“R&R”). What Plaintiffs describe as inadvertent omissions are not
omissions at all but rather reflect the Magistrate’s well-reasoned conclusion that Plaintiffs may
not recover fees for hours that were not reasonably expended or for which Plaintiffs have failed
to carry their burden of substantiating their petition for fees. If Plaintiffs had wanted to
challenge the Magistrate’s findings as to the appropriate level of recovery, they could have done
so on its merits rather than alleging unsupportable and implied inadvertent omissions. Indeed,
the only mathematical error the Magistrate made is in awarding Plaintiffs an extra $71,588.70 in
fees for hours that are not reflected in their billing statements. For this reason, Federal
Defendants request that the Magistrate’s recommended award of $440,596.68 be adjusted
downward to $369,007.98 to reflect this mathematical error.
ARGUMENT
I.

THE MAGISTRATE MADE NO INADVERTENT OMISSIONS WARRANTING
AN UPWARD ADJUSTMENT OF THE LODESTAR
The Magistrate Judge’s Report and Recommendation recommended that Plaintiffs

recover $440,596.68 in reasonable attorney’s fees and $444.33 in costs. While claiming not to
disagree with the Magistrate’s analysis, Plaintiffs nonetheless contend that the Magistrate
accidentally omitted (1) $89,845.25 in fees for hours expended on their motion to set attorney’s
fees and costs; and (2) $101,974 in fees for the hours of Venable partner John Cooney. Pls’ Br.
(Dkt. #270), at 2-3. By Plaintiffs’ estimation, the Magistrate’s calculation of quantum omitted
$191,891.35 — which amounts to 44% of the total quantum the Magistrate awarded. Pls’ Br. at
2. Plaintiffs’ theory that Magistrate made not one— but two — substantial “inadvertent

omissions,” however, cannot be reconciled with the Magistrate’s thoughtful 58-page opinion.
The Magistrate did not abuse his discretion and, accordingly, there is no basis for increasing
Plaintiffs’ recovery. Hollowell v. Orleans Reg’l Hosp. LLC, 217 F.3d 379, 391-392 (5th Cir.
2000) (reviewing factual findings for clear error, and the district court’s award of attorneys’ fees
for abuse of discretion). For the reasons discussed below, Plaintiffs’ request for an upward
adjustment to the Magistrate’s award of $440,596.68 should be rejected out of hand as another
attempt at overreaching for fees and costs from the public fisc.
First, nowhere in the Report and Recommendation did the Magistrate find that Plaintiffs
were entitled to $89,845.25 to compensate them for hours expended on their fee-related motions.
To the contrary, the Magistrate made clear that Plaintiffs are only entitled to fees incurred after
the entry of the preliminary injunction and before the Fifth Circuit found the case to be moot.
R&R, at 30-31. While the Magistrate did acknowledge that Plaintiffs could be entitled to
reasonable fees for the hours expended on their fees motion, it also found that Plaintiffs had
exercised no billing judgment:
These conclusory assertions do not constitute billing judgment. In short, the billing
records contain no indication of the hours the attorneys wrote off as redundant,
unproductive, or excessive during this lengthy litigation…. plaintiffs cannot recover for
all of the hours expended in this entire litigation. Their failure to pare down the hours
they claim to the concretely identifiable time period during which the preliminary
injunction was in effect and defendants were actually in contempt, is one example of a
broader failure to demonstrate the exercise of billing judgment.
R&R 37.
The Magistrate, therefore, found that Plaintiffs had “made the court’s evaluation of their
submissions more difficult and time consuming that it might otherwise have been.” Id. at 8 n.3.
Under such circumstances, it was within the Magistrate’s discretion to deny compensation for the
time spent in litigating those fees. See Trichilo v. Sec’y of Health and Human Serv., 823 F.2d
FEDERAL DEFENDANTS’ OPP’N & OBJECTIONS

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702, 708 (2nd Cir. 1987) (noting “[i]f counsel makes inflated or outrageous fee demands, the
court could readily deny compensation for the time spent in pressing them, since that time would
not have been ‘reasonably spent’”). 1 This is particularly true here given that Plaintiffs spent
untold hours redacting their billing records, a practice that the Magistrate deemed unacceptable
in light of the fact that Plaintiffs filed their billing records under seal. R&R, at 46-47. The law is
clear that plaintiffs who fail to exercise a modicum of billing judgment in briefing the issue of
fees and preparing any attendant billing records cannot later claim that they are entitled to fees
for those hours. The Magistrate therefore reasonably concluded that Plaintiffs were not entitled
to recover full compensation for the time spent litigating their claim for fees.
Plaintiffs further claim that the Magistrate accidentally did not include 236 hours that
Venable partner, John Cooney, billed during the relevant time period. Pls’ Br. at 5. Not so. The
Magistrate’s conclusion that Mr. Cooney had reasonably expended only 30.6 hours within the
relevant time period accurately reflects Mr. Cooney’s limited advisory role in the litigation
during that period. R&R, at 50. It strains credulity that the Magistrate, in his 58-page opinion,
accidentally omitted over one hundred thousand dollars in billable hours for Mr. Cooney.
Despite Plaintiffs’ suggestions to the contrary, nowhere did the Magistrate find that it “intended
to include all hours of Mr. Cooney between June 22, 2010 and September 29, 2010.” Id. Indeed,
1

Despite Plaintiffs’ emphasis that Defendants did not contest a reasonable fee award to Plaintiffs
for their fee-related motions, Defendants vigorously opposed Plaintiffs’ fee request for their
quantum motion as unreasonable:
Plaintiffs’ claimed hours is particularly incongruous given that Plaintiffs simply
submitted to the Court 200 pages of block-billed entries without even attempting to
identify which charges arose from the Court’s finding of contempt (and which did not).
Plaintiffs cannot plausibly request 78 hours in billable time when they did not even
attempt to make the threshold showing of causation required by law in order to collect
attorneys’ fees and costs. See Norman Bridge, 529 F.2d at 827 (“Compensatory civil
contempt reimburses the injured party for the losses and expenses incurred because of his
adversary’s non-compliance.”). Dkt. #256 at 4.
FEDERAL DEFENDANTS’ OPP’N & OBJECTIONS

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in the pages from the Report & Recommendation that Plaintiffs cite for this proposition, the
Magistrate reduces Mr. Cooney’s hourly rate from $725 to $450 and no more. R&R, 17-19.
Elsewhere, the Magistrate finds that Mr. Cooney’s practice of relying on “vague descriptions” in
his billing entries such as “office conferences with Jones Walker attorneys” rendered it difficult
to ascertain how much time he “spent on compensable and noncompensable tasks and whether
the amount of time spent on compensable tasks was reasonable.” R&R, at 39. The Magistrate
reasonably refused to credit Mr. Cooney’s vague billing entries given Mr. Cooney’s failure to
substantiate his portion of the petition with sufficiently detailed billing entries. Finally, the R&R
makes plain that the Magistrate did not number Mr. Cooney among the attorneys doing most of
the work in the case as Plaintiffs’ demand for an additional 230 hours would suggest. R&R, at
38 (“The bulk of the work was done by the two Jones Walker lead partner, Rosenblum and
Hainkel, along with one associate and one paralegal. . .”). 2 In sum, the Magistrate reasonably
determined that Mr. Cooney had billed more hours than was reasonably necessary, and that he
was not entitled to full compensation for those hours. If Plaintiffs had wanted to challenge the
Magistrate’s recommendation on this score, they should have done so on its merits rather than
claiming there was an error in calculation.

2

If this Court were to find that Mr. Cooney is entitled to an extra 236 hours as Plaintiffs now
claim, Federal Defendants request leave to file objections to the Magistrate’s Report and
Recommendation for the limited purpose of seeking an additional reduction for duplicative and
excessive time and for overstaffing of this matter. The Magistrate’s findings on these issues
were predicated on only 30.6 hours of billable time for Mr. Cooney. Federal Defendants believe
that the reasonableness of the Magistrate’s conclusions on these points would be undermined if
this Court were to grant the additional hours for Mr. Cooney that Plaintiffs request from the
Court, which Defendants assert would not be appropriate.

FEDERAL DEFENDANTS’ OPP’N & OBJECTIONS

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II.

A DOWNWARD ADJUSTMENT OF THE LODESTAR OF $71,588.70 IS
APPROPRIATE TO REFLECT A MATHEMATICAL ERROR
Federal Defendants object to the Report and Recommendation in connection with a

mathematical error made in calculating the hours of two Jones Walker partners. Specifically,
Federal Defendants request that the Court revise the Magistrate’s quantum decision to reduce
Ms. Hainkel’s and Mr. Rosenblum’s respective hours so as to make them consistent with the
billing statements submitted to this Court.
The Magistrate calculated Ms. Hainkel as incurring 501.330 hours after the 15%
reduction during the relevant time period. As illustrated by Ex. A, Ms. Hainkel actually billed
393.9 hours during the relevant time period. The appropriate calculation for Ms. Hainkel’s hours
should be: 393.9 x .85 (reflecting the 15% across-the-board reduction) = 334.82 x $300, which
would amount to $100,444.50. The Magistrate awarded Ms. Hainkel $150,399 in fees, which
means that a $49,954.50 downward adjustment of the lodestar is appropriate on this basis.
The Magistrate calculated Mr. Rosenblum as incurring 262.99 hours after the 15%
reduction during the relevant time period. As illustrated by Ex. B, Mr. Rosenblum actually
billed 248.8 hours during the relevant time period. The appropriate calculation for Mr.
Rosenblum’s hours should be: 248.8 x .85 (reflecting the 15% across-the-board reduction) =
211.48 x $420= $88,821.6. The Magistrate awarded Mr. Rosenblum $110,455.8 in fees, which
means that a $21,634.2 downward adjustment of the lodestar is appropriate on this basis. In sum,
the Magistrate awarded Plaintiffs an extra $71,588.70 in fees for hours that are not reflected in
their billing statements. Based on this technical mistake, Defendants respectfully request a
downward adjustment of the lodestar amount recommended by the Magistrate Judge from
$440,596.68 to $369,007.98.

FEDERAL DEFENDANTS’ OPP’N & OBJECTIONS

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III.

CONCLUSION
Defendants respectfully request that Plaintiffs’ objections to the Report and

Recommendation be rejected and no upward adjustment be applied to the Magistrate’s finding
that the appropriate fee award is $440,596.68. Defendants further seek a downward adjustment
to the quantum award from $440,596.68 to $369,007.98, reflecting $71,588.70 for hours that are
not recorded in Plaintiffs’ billing statements. As noted in Defendants briefing before the
Magistrate, any award of fees and costs to Plaintiffs will be interlocutory. Federal Defendants
respectfully request that such award be placed in escrow until such time as there is a final nonappealable order.
Respectfully submitted, June 15, 2011

IGNACIA S. MORENO
Assistant Attorney General
U.S. Dept. of Justice, Env’t & Nat. Resources Div.
/s/Marissa A. Piropato
GUILLERMO A. MONTERO (T.A.)
BRIAN COLLINS
KRISTOFOR R. SWANSON
MARISSA A. PIROPATO
Natural Resources Section
PO Box 663
Washington, DC 20016
Tel: [phone]
PETER MANSFIELD
Assistant United States Attorney
Eastern District of Louisiana
Hale Boggs Federal Building
500 Poydras Street, Suite B-210
New Orleans, Louisiana 70130
Tel: [phone]

FEDERAL DEFENDANTS’ OPP’N & OBJECTIONS

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CERTIFICATE OF SERVICE
I hereby certify that on June 15, 2011, I caused a copy of the foregoing to be served
through the Court’s CM/ECF System to all parties.

/s/ Marissa A. Piropato
Marissa A. Piropato

FEDERAL DEFENDANTS’ OPP’N & OBJECTIONS

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