Provensal v. Gaspard et al
Filing
109
ORDER AND REASONS. It is ORDERED that Gaspard's 78 Motion for Attorney Fees is GRANTED IN PART AND DENIED IN PART, and that Gaspard is awarded attorney's fees of $18,030.00. It is FURTHER ORDERED that H2O's 99 Motion for Attorney Fees and Costs is GRANTED IN PART AND DENIED IN PART, and that H2O is awarded attorney's fees of $25,805.00 and costs of $3,990.74. Signed by Magistrate Judge Sally Shushan. (gec, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MATTHEW EARLE PROVENSAL
CIVIL ACTION
VERSUS
NO. 10-4276-SS
MICHAEL JOHN GASPARD, ET AL.
ORDER AND REASONS
Plaintiff, Matthew Earle Provensal, filed this civil action against Michael John Gaspard and
Hair H2O, Inc. d/b/a H2O Spa and Salon (hereinafter “H2O”). Plaintiff sought relief under Title
VII, 42 U.S.C. § 2000e, Louisiana Civil Code articles 2315, 2316, 2317, and 2320, and La. Rev.
Stat. Ann. §§ 23:302 and 51:2231. The parties consented to the jurisdiction of the undersigned
United States Magistrate Judge.1
On May 23, 2011, the Court dismissed plaintiff’s claims against Gaspard for slander and
defamation and for relief under Title VII and La. Rev. Stat. Ann. §§ 23:302 and 51:2231. The Court
also dismissed plaintiff’s claims against H2O for slander, defamation, and religious discrimination.2
On February 14, 2012, the Court dismissed the claims against both Gaspard and H2O for the
intentional infliction of emotional distress, as well as the claims against H2O under Title VII, 42
1
2
Rec. Doc. 20.
Rec. Doc. 26; Provensal v. Gaspard, Civ. Action No. 10-4276, 2011 WL 2004416 (E.D. La.
May 23, 2011).
U.S.C. § 2000e.3 Then, on March 23, 2012, the Court dismissed plaintiff’s claims against H2O
under La. Rev. Stat. Ann. §§ 23:302 and 51:22314 and entered judgment in favor of the defendants.5
The Louisiana Fifth Circuit Court of Appeals affirmed that judgment on August 20, 2012.6
The defendants have now moved for awards of fees and costs pursuant to 42 U.S.C. §
2000e-5(k), 28 U.S.C. § 1920, and La.Rev.Stat.Ann. § 23:303(B). Specifically, Gaspard seeks fees
in the amount of $93,392.50,7 and H2O seeks fees in the amount of $78,199.50 and costs in the
amount of $19,194.24.8 Plaintiff has opposed those motions.9
With respect to fees in a Title VII case, the law provides: “In any action or proceeding under
this subchapter the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s
fee (including expert fees) as part of the costs ....” 42 U.S.C. § 2000e-5(k). However, the Court’s
analysis differs depending on whether the prevailing party was the plaintiff or a defendant.
While a prevailing Title VII plaintiff ordinarily is to be awarded attorney’s fees in all but
special circumstances, the United States Supreme Court set out a much more rigorous standard for
awarding attorney’s fees where, as here, the defendants prevailed. See Christiansburg Garment Co.
3
Rec. Doc. 72.
4
Rec. Doc. 94; Provensal v. Gaspard, Civ. Action No. 10-4276, 2012 WL 1014809 (E.D. La.
Mar. 23, 2011).
5
Rec. Doc. 95.
6
Provensal v. Gaspard, No. 12-30325, 2012 WL 3564453 (5th Cir. Aug. 20, 2012).
7
Rec. Doc. 78.
8
Rec. Docs. 99 and 105.
9
Rec. Docs. 88 and 100.
2
v. EEOC, 434 U.S. 412 (1978). Specifically, a district court may award attorney’s fees to a
prevailing Title VII defendant only “upon a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not brought in subjective bad faith.” Id. at 421.
A suit is frivolous only if it is “so lacking in arguable merit as to be groundless or without
foundation.” Walker v. City of Bogalusa, 168 F.3d 237, 240 (5th Cir. 1999) (quotation marks
omitted). Attorney’s fees for a prevailing defendant, thus, is presumptively unavailable unless a
showing is made that the underlying suit was “vexatious, frivolous, or otherwise without merit.”
Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001). Further, it is clear that the mere dismissal of a
plaintiff’s case does not establish that the claim itself was unreasonable, frivolous, or groundless.
Id. at 512; see, e.g., Vitale v. Georgia Gulf Corp., 82 Fed. Appx. 873, 2003 WL 22922292 (5th Cir.
2003) (unpublished) (finding that the district court did not abuse its “sound discretion” in denying
attorney’s fees and holding that the district judge properly granted judgment as a matter of law
dismissing plaintiff’s ADA claim and denied attorney’s fees).
The burden of establishing frivolity is on the defendant who is seeking attorney’s fees. Dean,
240 F.3d at 512. “When considering whether a suit is frivolous, a district court should look to
factors such as whether the plaintiff established a prima facie case, whether the defendant offered
to settle, and whether the court held a full trial.” Myers v. City of West Monroe, 211 F.3d 289, 292
(5th Cir. 2000).
Louisiana law similarly allows for the recovery of attorney’s fees in employment cases.
State law provides: “A plaintiff found by a court to have brought a frivolous claim under this
Chapter shall be held liable to the defendant for reasonable damages incurred as a result of the claim,
3
reasonable attorney’s fees, and court costs.”
La.Rev.Stat.Ann. § 23:303(B).
Title VII’s
“frivolousness” analysis is instructive when considering a claim for fees under state law. Dinet v.
Hydril Co., Civ. Action No. 05-3778, 2006 WL 3904991, at *3 (E.D. La. Nov. 22, 2006).
In the instant case, the frivolity of plaintiff’s federal and state employment claims against
H2O is a close call. However, the Court need not reach that issue, because H2O is not seeking
attorney’s fees with respect to those claims; rather, it is seeking fees only for work performed
defending against the related and interconnected claims for religious discrimination, slander,
defamation, and intentional infliction of emotional distress.10
The frivolity of the claims for which attorney’s fees are being sought is self-evident. The
claims for religious discrimination, slander, and defamation had no colorable basis in fact or law,
the claims for intentional infliction of emotional distress were clearly prescribed, and the federal and
state employment claims against Gaspard were patently meritless because Gaspard was not
plaintiff’s employer. In that those claims were obviously frivolous, the defendants are entitled to
awards of fees incurred in defending against them.
Because the Court has determined that awards of attorney’s fees are appropriate, it must next
determine the amounts, which is matter subject to the Court’s discretion. See Hopwood v. Texas,
236 F.3d 256, 277 (5th Cir. 2000). The calculation of reasonable attorney’s fees involves a
well-established two-step process. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir.
1998). First, the Court calculates a “lodestar” fee by multiplying the reasonable number of hours
spent on the case by the reasonable hourly rates for the participating lawyers. Id. Second, the Court
10
Rec. Doc. 105, p. 2.
4
considers whether the lodestar should be adjusted upward or downward depending on the
circumstances of the case under the Johnson factors. Id.; Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974).
The Johnson factors are:
(1) time and labor required; (2) novelty and difficulty of issues; (3) skill required; (4)
loss of other employment in taking the case; (5) customary fee; (6) whether the fee
is fixed or contingent; (7) time limitations imposed by client or circumstances; (8)
amount involved and results obtained; (9) counsel’s experience, reputation, and
ability; (10) case undesirability; (11) nature and length of relationship with the client;
and (12) awards in similar cases.
Rutherford v. Harris County, Texas, 197 F.3d 173, 192 n.23 (5th Cir. 1999). “[O]f the Johnson
factors, the court should give special heed to the time and labor involved, the customary fee, the
amount involved and the result obtained, and the experience, reputation and ability of counsel.”
Migis, 135 F.3d at 1047; see also Saizan v. Delta Concrete Products Co., 448 F.3d 795, 800 (5th Cir.
2006). Three of the Johnson factors, complexity of the issues, results obtained, and preclusion of
other employment, are presumably fully reflected and subsumed in the lodestar amount. Heidtman
v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). Moreover, after Johnson was decided,
the “Supreme Court has barred any use of the sixth factor,” whether the fee is fixed or contingent.
Walker v. U.S. Department of Housing and Urban Development, 99 F.3d 761, 772 (5th Cir. 1996).
The Supreme Court has also noted that “the quality of an attorney’s performance generally should
not be used to adjust the lodestar because considerations concerning the quality of a prevailing
party’s counsel’s representation normally are reflected in the reasonable hourly rate.” Perdue v,
Kenny A., 130 S.Ct. 1662, 1673 (2010) (quotation marks and brackets omitted). Lastly, the lodestar
5
is considered to be presumptively reasonable and should be enhanced or reduced only in exceptional
cases. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
It must also be remembered that the calculation of attorney’s fees is often a messy and
imprecise endeavor. The United States Supreme Court has noted:
[T]he determination of fees should not result in a second major litigation. The fee
applicant (whether a plaintiff or a defendant) must, of course, submit appropriate
documentation to meet the burden of establishing entitlement to an award. But trial
courts need not, and indeed should not, become green-eyeshade accountants. The
essential goal in shifting fees (to either party) is to do rough justice, not to achieve
auditing perfection. So trial courts may take into account their overall sense of a
suit, and may use estimates in calculating and allocating an attorney’s time.
Fox v. Vice, 131 S.Ct. 2205, 2216 (2011) (citations and quotation marks omitted).
With these general guidelines in mind, the Court finds that the following fees should be
awarded.
I. Gaspard
Because all of the claims against Gaspard were frivolous, he is clearly entitled to an award
of fees. That said, he is not entitled to an award based on hours claimed: Golden - 148.7 hours;
Kopfinger - 77.3 hours; and Fonte - 79.3 hours. Rather, only a fraction of those hours was
warranted, in that it should have been apparent early on that the claims against Gaspard were subject
to a speedy dismissal on simple grounds. The federal and state employment claims against Gaspard
obviously had no merit because he was not plaintiff’s employer. Further, the allegations in the
complaint were woefully inadequate to state a claim for slander and defamation, and so dismissal
of those claims likewise required no great effort. Lastly, the claim for the intentional infliction of
emotional distress was clearly prescribed, and therefore it could have been dismissed early in the
6
litigation on that basis. In fact, all the claims were ultimately dismissed based on Gaspard’s
relatively elementary and straightforward motions.11
Because the legal bases for dismissal were fairly obvious and the determinative facts (i.e. that
Gaspard was not the employer and the point at which the actions on which the emotional distress
claim ceased) required no extensive discovery to uncover, it was not reasonable for Gaspard’s
attorneys to devote 305. 3 hours to the defense of the claims. Therefore, a substantial reduction the
claimed hours is warranted. The Court finds that a reduction of approximately 65% is appropriate.
Turning to the hourly rates, the rates requested are as follows: Golden - $325.00; Kopfinger
- $250.00; and Fonte - $325.00. However, an applicant for attorney’s fees bears the burden of
producing satisfactory evidence that the requested rate is in line with prevailing market rates in the
community for similar services by attorneys of reasonably comparable skills, experience, and
reputation. Dinet v. Hydril Co., Civ. Action No. 05-3778, 2006 WL 3904991, at *7 (E.D. La. Nov.
22, 2006). Here, as plaintiff correctly notes, Gaspard has offered nothing whatsoever in support of
the rates claimed. That is unacceptable. With no evidence before it showing that Golden,
Kopfinger, and Fonte are entitled to “premium” fees based on their particular skills, experience, or
reputation, it would be inappropriate to award them more than baseline fees. In the absence of any
evidence to the contrary, the Court finds that hourly fees of $175.00 for Golden and Fonte and
11
The motion for summary judgment with respect to claim of intentional infliction of
emotional distress was the more complicated of the two motions filed; however, the bulk of that
motion was unnecessary because it was primarily devoted to a discussion of the underlying merits
of the claim. While that discussion was well-reasoned, it was overkill in light of the fact that the
claim was clearly prescribed (as so persuasively argued in less than three pages of the supporting
memorandum).
7
$150.00 for Kopfinger are appropriate. See Dinet, 2006 WL 3904991, at *7 (setting forth a
sampling of awarded hourly rates in this district in footnotes 43 and 44).12
Accordingly, the lodestar is $18,030.00:
Time Keeper
Rate
Compensable Hours
Total
Golden
$175.00
52.00
$9,100.00
Kopfinger
$150.00
27.10
$4,065.00
Fonte
$175.00
27.80
$4,865.00
TOTAL
$18,030.00
As noted, the lodestar is presumptively reasonable and should be enhanced or reduced only
in exceptional cases. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). After due consideration
of the Johnson factors, the Court finds that this is not an exceptional case which warrants further
adjustment.
II. H2O
H2O also seeks an award of fees. Specifically, H2O is seeking an award for work performed
in connection with the following: (1) the motion to dismiss; (2) defense against the intentional
infliction of emotion distress claim; and (3) the opposition to the motion for reconsideration.13
12
The Court expressly notes that it will not entertain a motion for reconsideration on this issue.
This defect in Gaspard’s motion was expressly noted in the opposition thereto which was filed more
than six months ago. Clearly, if Gaspard was inclined to correct the defect, he has had ample time
to do so. The time for doing so has now passed.
13
Rec. Doc. 99-3, p. 4.
8
A. Motion to Dismiss
Early in the litigation, H2O filed a motion to dismiss which was granted in part and denied
in part. Specifically, the motion was granted with respect to the claims of religious discrimination,
slander, and defamation; however, the motion was denied with respect to plaintiff’s claims for the
intentional infliction of emotional distress, as well as his claims under state and federal employment
law. Because the motion was granted only in part, H2O correctly notes that the time and fees must
be apportioned to reflect that result.
H2O alleges that the following hours were worked in connection with the motion: Stakelum
- 26.50; Pannell - 2.10; Corrada - 60.80; and Giammolva - 5.70. However, only a small fraction of
the motion was devoted to the religious discrimination, slander, and defamation claims, and those
claims required no “heavy lifting.” In the motion’s supporting memorandum, only approximately
two pages were devoted to the religious discrimination claim, and the argument was a simple one
(i.e. the religious discrimination claim was barred because it was not mentioned in the EEOC
complaint). Similarly, little more than a page was devoted to the slander and defamation claims, and
the analysis of those claims was limited to the discussion of a single court decision which simply
set forth the claims’ elements. Therefore, a substantial reduction in the claimed hours is warranted,
and the Court finds that a reduction of approximately 75% is appropriate.
The hourly rates sought are as follows: Stakelum - $325.00; Pannell - $250.00 through
January 2011, $275.00 thereafter; Corrada - $190.00; and Giammolva - $100.00. Unlike Gaspard,
H2O does make an effort to establish that these requested rates are in line with prevailing market
rates in the community for similar services by attorneys of reasonably comparable skills, experience,
9
and reputation. An affidavit has been provided to show: (1) Stakelum has practiced law for thirtynine years in complex areas of the law, $325.00 is his standard billing rate on new matters, and in
the last three years his billing rate has ranged from a high of $375.00 (on a complex lawsuit) to a
low $175.00 (pursuant to the state attorney’s fee scheduled for representing a governmental entity);
(2) Pannell has practiced law for twenty-five years, has specialized in labor law, and her billing rates
for the relevant periods were $250.00 - $275.00; (3) Corrada was an associate with approximately
nine-years experience, and her normal billing rate was $190.00; (4) Newbauer is an associate with
approximately ten-years experience, and his normal billing rates range from $200.00 - $210.00; and
(5) Giammolva is a paralegal with twenty-five years experience, and her normal billing rate for nongovernmental matters is $100.00.
Based on its review of the jurisprudence, the Court finds that the requested rates are in some
instances in excess of the prevailing market rates for this type of case. Therefore, the Court, in its
discretion, finds that the following rates are warranted in this case: Stakelum - $250.00; Pannell $200.00; Corrada - $150.00; and Giammolva - $100.00. See, e.g., John G. Raymond, Inc. v. Blair,
Civ. Action No. 09-5507, 2012 WL 1135778, at *7 (E.D. La. Jan. 10, 2012) ($200.00 - $250.00 per
hour for attorneys with decades of experience; $125.00 - $175.00 for associates), adopted, 2012 WL
1135911 (E.D. La. Apr. 4, 2012); Board of Supervisors of Louisiana State University v. Smack
Apparel Co., Civ. Action No. 04-1593, 2009 WL 927996, at *5 (E.D. La. Apr. 2, 2009) ($80 per
hour for paralegals).
10
Accordingly, the lodestar is $4,170.00:
Time Keeper
Rate
Compensable Hours
Total
Stakelum
250.00
6.60
$1,650.00
Pannell
200.00
0.50
$100.00
Corrada
150.00
15.20
$2,280.00
Giammolva
100.00
1.40
$140.00
TOTAL
$4,170.00
Again, after due consideration of the Johnson factors, the Court finds that this is not an exceptional
case which warrants further adjustment of the lodestar.
B. Intentional Infliction of Emotional Distress Claims
H2O also seeks substantial fees for the defense against the intentional infliction of emotional
distress claim. Specifically, H2O argues that it should be compensated for the following hours
spent defending against this claim: Stakelum - 85.20; Pannell - 1.80; Corrada - 94.50; Newbauer 3.80; and Giammolva - 12.70.
However, the bulk of the hours for which fees are sought appears to be related to matters of
discovery. That is problematic for two reasons. First, apparently only a fraction of that discovery
concerned the intentional infliction of emotional distress claim. Second, that claim was clearly
prescribed. If defendants had sought dismissal of the claim on that basis early in the lawsuit, almost
no discovery related to the claim would have been required. Therefore, much of the work performed
was unnecessary under the circumstances. For those reasons, it is evident that a substantial
reduction is in order.
11
With respect to the hours spent on the motion, that is likewise problematic. First, it appears
that the motion was actually prepared by Gaspard’s counsel, not H2O’s attorneys.14 Moreover, in
any event, the motion was primarily devoted to a discussion the underlying merits of plaintiff’s
emotional distress claim.
As previously noted, that discussion, while well-reasoned, was
unnecessary because the claim was clearly prescribed. In light of that fact, as well as the relative
simplicity of the prescription issue, an award of fees for the work on the motion must also be
substantially reduced.
Based on the foregoing considerations, the Court finds that a reduction of approximately
60% is appropriate.
As to the hourly rates, the Court has previously determined that the appropriate rates are
$250.00 for Stakelum, $200.00 for Pannell, $150.00 for Corrada, and $100.00 for Giammolva.
Newbauer replaced Corrada, and he is entitled to the same rate the Court approved for her: $150.00.
Accordingly, the lodestar is $15,060.00:
Time Keeper
Rate
Compensable Hours
Total
Stakelum
250.00
34.10
$8,525.00
Pannell
200.00
0.70
$140.00
Corrada
150.00
37.80
$5,670.00
Newbauer
150.00
1.50
$225.00
Giammolva
100.00
5.00
$500.00
TOTAL
14
Rec. Doc. 99-3, pp. 45 and 47.
12
$15,060.00
Again, after due consideration of the Johnson factors, the Court finds that this is not an exceptional
case which warrants further adjustment of the lodestar.
C. Motion for Reconsideration
After the Court dismissed the employment claims, plaintiff filed a patently frivolous motion
for reconsideration. H2O filed an opposition to that motion, and the motion was ultimately denied.
H2O seeks attorney’s fees for that opposition and alleges that the following hours were spent on the
opposition: Stakelum - 3.5; and Newbauer - 38.00. Considering the quality of that opposition, the
Court finds that no reduction of hours is warranted. Further, as previously noted, the approved
hourly rates are $250.00 for Stakelum and $150.00 for Newbauer.
Accordingly, the lodestar is $6,575.00:
Time Keeper
Rate
Compensable Hours
Total
Stakelum
250.00
3.50
$875.00
Newbauer
150.00
38.00
$5,700.00
TOTAL
$6,575.00
Once again, the Court finds that the Johnson factors do not warrant further adjustment of the
lodestar.
D. Costs
H2O also seeks the following costs pursuant to 28 U.S.C. § 1920: (1) the costs incurred in
deposing Stone Creek Club & Spa ($657.80), plaintiff ($1,563.40), Angel Michael ($459.95),
Gabrielle Izzo-Hansen ($491.20), and Dolly Samuel ($467.65); (2) witness and mileage fees for
Michael ($48.21), Izzo-Hansen ($42.23), Stone Creek Club & Spa (78.42), Spa Atlantis ($46.88),
13
and Dr. Wagner ($95.00); (3) the cost of obtaining plaintiff’s payroll records from the Social
Security Administration ($40.00). These costs are properly documented and taxable, and therefore
they can be recovered.
H2O also seeks to recover its costs for the accounting services of Kushner Lagraize, L.L.C.
($15,203.50). H2O consulted with that accounting firm “to refute Plaintiff’s meritless contention
that he suffered a loss of pay of the result of the alleged discriminatory acts.”15 However, the Court
finds that those costs are not recoverable under 28 U.S.C. § 1920. That statute provides for recovery
of only the following costs:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use
in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section
1828 of this title.
28 U.S.C. § 1920. The fees paid to Kushner Lagraize, L.L.C., do not fall within any of those
categories and will not be awarded.
15
Rec. Doc. 99-2, p. 16.
14
Accordingly,
IT IS ORDERED that Gaspard’s motion for attorney’s fees, Rec. Doc. 78, is GRANTED
IN PART AND DENIED IN PART, and that Gaspard is awarded attorney’s fees of $18,030.00.
IT IS FURTHER ORDERED that H2O’s motion for attorney’s fees and costs, Rec. Doc.
99, is GRANTED IN PART AND DENIED IN PART, and that H2O is awarded attorney’s fees
of $25,805.00 and costs of $3,990.74.
New Orleans, Louisiana, this twenty-fourth day of September, 2012.
_______________________________________
SALLY SHUSHAN
UNITED STATES MAGISTRATE JUDGE
15
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