Cole v. Orleans Parish Sheriff's Office et al

Filing 64

ORDERED that 61 Motion to Fix Attorneys Fees on Motion to Compel is GRANTED. The Court finds that a total amount of $2,412.50 in fees is reasonable in the matter here. FURTHER ORDERED that Defendant shall satisfy his obligation to Jones no later than twenty (20) days from the issuance of this Order. Signed by Magistrate Judge Karen Wells Roby. (clm, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHANCELLOR COLE

CIVIL ACTION

VERSUS

NO: 11-2211

ORLEANS PARISH SHERIFF’S
OFFICE, ET AL.

UNITED STATES MAGISTRATE
JUDGE KAREN WELLS ROBY
ORDER

Before the Court is a Motion to Fix Attorney’s Fees on Motion to Compel (R. Doc. 61),
filed by Plaintiff, Chancellor Cole, (“Cole”) in accordance with this Court’s Order granting
Plaintiff’s Motion to Compel and Request for an award of attorney fees (R. Doc. 57) issued on
August 20, 2013. The motion is opposed. (R. Doc. 63). The motion was noticed for submission on
September 18, 2013, and heard on the briefs on that date.
I.

Background
This case arises under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et

seq.,and the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701, 705, 791, 794, et seq. (R.
Doc. 57, p. 1, citing R. Doc. 24, p .4).1 Cole alleges that he was formerly employed by Defendants
as a Deputy Civil Sheriff. Id. See also R. Doc. 24, p. 3. He alleges that he has been diagnosed with
diabetes, a documented impairment which affects his major life activities, but which did not prevent
Cole from carrying out his job duties. Id.
On October 26, 2008, Cole alleges that he requested “reasonable accommodation,” i.e., to
1

Cole originally filed his Complaint on September 12, 2011, and duly amended his Complaint on March 5,
2012. (R. Doc. 24)

be assigned to the “third shift” while he adjusted to necessary life changes brought about by his
impairment. Id. However, Cole alleges that his requests were not granted. Id. Cole then alleges that
on October 28, 2008, he was hospitalized for three days as a result of his diabetes. Id. Cole alleges
that although he immediately informed his employer of the fact that he was hospitalized on October
31, 2008, Defendants terminated Cole’s employment while he was still hospitalized. Id. Cole alleges
that during his employment, he was never subject to disciplinary action. Id.
Cole alleges that Defendants’ wrongful termination of his employment forced him to seek
alterative employment. Id. at 4. He alleges that as a result of Defendants’ actions, he has incurred
monetary damages, in the form of, inter alia, lost wages, pension benefits, insurance benefits, and
other fringe benefits, as well as future earnings. Id. at 5. In the instant suit, Cole seeks an award of
damages, a declaratory judgment deeming the acts of Defendants to be in violation of his federally
protected rights, as well as an award of attorney’s fees. Id.
On July 23, 2013, Plaintiff filed a Motion to Compel Discovery, seeking an Order from this
Court compelling defendants to respond to his discovery requests, as well as for an award of
attorney’s fees. (R. Doc. 50). On August 20, 2013, this Court granted the motion to compel and
ordered Plaintiff, Cole to submit a motion fixing attorney’s fees. (R. Doc. 57).
Cole filed the instant Motion to Fix Attorney’s Fees on Motion to Compel (R. Doc. 61),
on September 11, 2013, including affidavits of both his attorneys, as well as a “billing and expense
record” of the alleged 19.3 hours spent on the motion, at $300.00 per hour, totaling $5,790.00 (R.
Doc. 61-1, p. 3-5).
Defendants have opposed the motion, stating that the hourly rate of $300.00 is inappropriate
when “considering an unopposed motion to compel, which is considered a boiler-plate form.” (R.
Doc. 63). Defendants also contest the amount of hours sought for the “extensive amount of review

and comparison of the responses, drafting, and ‘legal research’ surrounding an area of law already
well-settled.” Id. Finally, Defendants submit that an hourly rate of “125.00 for 10 hours” would be
a more appropriate award for “preparation and litigation of an unopposed motion to compel,” than
the 19.3 hours Plaintiff requested, at $300.00 per hour. Id. at 2.
The instant motion was noticed for submission on September 18, 2013, and heard on the
briefs that date.
II.

Standard of Review
The Supreme Court has indicated that the “lodestar” calculation is the “most useful starting

point” for determining the award of attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The lodestar equals “the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Id. The lodestar is presumed to yield a reasonable fee. La. Power & Light
Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). After determining the lodestar, the court must
then consider the applicability and weight of the twelve factors set forth in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).2 The court can make upward or downward
adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins
v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). However, the lodestar should be modified only in
exceptional cases. Id. (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)).
After the calculation of the lodestar, the burden then shifts to the party opposing the fee to
contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended

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The twelve Johnson factors are (1) the time and labor involved; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the
attorney due to this case; (5) the customary fee; (6) whether fee is fixed or contingent; (7) time limitations; (8) the
amount involved and results obtained; (9) the experience, reputation and ability of counsel; (10) the undesirability of
the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
See Johnson, 488 F.2d at 717-719.

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“by affidavit or brief with sufficient specificity to give fee applicants notice” of the objections. Rode
v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990).
III.

Analysis
A.

Calculating a Reasonable Hourly Rate

The fee application submitted by Cole seeks to recover 19.3 hours of attorney work at a rate
of $300.00 per hour for his attorneys, Luz M. Molina, Esq. (“Molina”) and Deborah Majeeda Snead,
Esq. (“Snead”). See R. Doc. 61. In support of their rates, Cole submits affidavits from Molina
(“Molina Affidavit”) and Snead (“Snead Affidavit”).
Attorney’s fees must 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); Powell v. C.I.R., 891 F.2d 1167, 1173 (5th Cir. 1990). The
applicant bears the burden of producing satisfactory evidence that the requested rate is aligned 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 necessarily includes an affidavit of the
attorney performing the work and information of rates actually billed and paid in similar lawsuits.
Blum, 465 U.S. at 896 n.11. However, mere testimony that a given fee is reasonable is not
satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439 n. 15.
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 breadth of the sample of which the expert has knowledge. Norman v.
Housing Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); see also White v.

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Imperial Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28, 2005)
(recognizing that attorneys customarily charge their highest rates only for trial work, and lower rates
should be charged for routine work requiring less extraordinary skill and experience).
Where “an attorney's customary billing rate is the rate at which the attorney requests the
lodestar to 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. Where a rate is not contested, it is
prima facie reasonable. Louisiana Power & Light, 50 F.3d at 328; Trahan v. Crown Drilling, Inc.,
No. 2011 WL 3320531, at *4 (E.D. La. July 13, 2011) (Roby, M.J.) (finding that attorney’s
requested rate was reasonable when the rate was not challenged by the opposing party).
The Molina Affidavit states that she graduated from Tulane Law School in New Orleans in
1979, and is admitted to practice law in the District Court, U.S. Court of Appeals for the Fifth
Circuit. (R. Doc. 61-1, p. 1) She states that her practice includes labor and employment law and that
she has represented and counseled plaintiffs in Title VII, ADEA and ADA discrimination matters
since 1994. Id. Based on her experience and the prevailing hourly market rate of attorneys in New
Orleans, Molina states that the average hourly rate for an attorney “with comparable skill is $250.00$450.00 an hour.” Id. at 2. Therefore, Molina states that she believes a rate “of $300.00 per hour in
this matter is adequate.” Id.
The Snead Affidavit states that she graduated from Loyola Law School in 1984, and is
admitted to practice law in the District Court, U.S. Court of Appeals for the Fifth Circuit. (R. Doc.
61-1, p. 3). She stated that she joined the firm of “Howell and Bayer” in 1987, which specialized in
constitutional and civil rights litigation, became a partner in 2000, and left the firm in 2001. Id.
Upon leaving the firm, she stated that she was invited to become a visiting clinical professor at

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Loyola Law School, in New Orleans, Louisiana. Id. Later in 2001, she became a permanent faculty
member there. Based on her and the prevailing hourly market rate of attorneys in New Orleans,
Snead states that the average hourly rate for an attorney “with comparable skill is $250.00-$350.00
an hour.” Id. Therefore, Snead states that she believes a rate of “$300.00 per hour in this matter is
adequate.” Id. at 4.
In considering the issue of whether the rate charged is reasonable, the Court looks to case
law regarding similarity of years of experience, in comparison to this rate to the prevailing market
rates for legal services in the greater New Orleans. For example, area from the applicable case law,
the Court concludes that a rate of $275.00 is reasonable as to Molina, as she has been practicing for
approximately 34 years. See e.g., Int’l Transp. Workers Fed. v Mi-Das, No. 13-454, 2013 WL
5329873 at *3 (E.D. La. Sept. 20, 2013) (finding a reasonable rate for an attorney of 31 years was
$250, and that $350 is a reasonable rate for an attorney of 47 years); Coves of the Highland
Community Dev. Dist., No. 09–7251, 2012 WL 174477, at *2–*3 (E.D. La. Jan. 20, 2012) (Roby,
M.J.) (citing cases, and finding that notwithstanding deficiency of affidavit which averred
“familiarity” with hourly rates in the New Orleans area, rate of $300 per hour was reasonable for
attorney with 39 years of experience); Braud v. Transport Service Co. of Illinois, Nos. 05–1898,
05–1977, 05–5557, 06–0891, 2010 WL 3283398, at * 15 (E.D. La. Aug.17, 2010) (Knowles, M.J.)
(finding that an award of $200 per hour for attorney with 30 years of experience was “within the low
end of the range of the market rate.”). Therefore the Court adjusts the $300.00 per hour requested
by Molina to $275.00 per hour.
In assessing the reasonable of the fee as to Snead from the applicable case law, the Court
concludes that a rate of $250.00 per hour is reasonable, as she has been practicing for approximately

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29 years. See e.g., Picard v. St. Tammany Parish Hosp., No. 08-0824, 2009 WL 911003, at *3 (E.D.
La. Mar. 27, 2009) (finding $250 a reasonable rate for an attorney with 28 years of experience);
Health Net, Inc. v. Wooley Mitchell, No. 06–845–D–M2, 2007 WL 3331662, at *3 (M. D. La. Oct.
4, 2007) (citing Sorapuru v. Mitchell, No. 05–2524, R. Doc. 63) (E.D. La. 2004)(finding that a rate
of $250.00 was reasonable for an attorney with 30 years of experience, plus judicial experience as
a former federal judge).
Therefore, the Court finds that the reasonable rate for Professor Molina is $275.00, and the
reasonable rate for Professor Snead is $250.00 per hour.
B.

Determining the Reasonable Hours Expended

In support of its motion, Cole submits a copy of Snead and Molina’s joint billing entries for
the instant motion (R. Doc. 61-1, p. 5). There are approximately twelve entries: “(a) discussing with
opposing counsel regarding outstanding discovery (.1 hours), (b) drafting letter to opposing counsel
regarding discovery (1.0 hours), (c) reviewing and preparation of all responses by Defendant with
the EEOC record 3 (9 hours), (d) drafting motion to compel and legal research (1.5 hours), (e)
conducting legal research and analysis (1.5 hours), (f) drafting legal memorandum and reviewing
motion (1.4 hours), (g) conducting additional research (1.0 hours), (h) editing and filing of the
Motion to Compel (1.3 hours), (i) file / review motion and motion hearing preparation (1 hours) and
(j) motion hearing (1.5 hours).” Id.
The party seeking attorney’s fees bears the burden of establishing the reasonableness of the
fees by submitting adequate documentation and time records of the hours reasonably expended and
proving the exercise of “billing judgment.” Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th
3
These entries are dated June 27, 2013, July 14, 2013, and July 15, 2013, respectfully, totaling four of the
twelve entries. See R. Doc. 61-1, p. 5.

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Cir.1997); Walker v. United States Dep’t of Housing & Urban Development, 99 F.3d 761, 770 (5th
Cir.1996). Attorneys exercise “billing judgment” by excluding time that is, inter alia, inadequately
documented when seeking fee awards. Walker, 99 F.3d at 769. Specifically, the party seeking the
award must show all hours actually expended on the case but not included in the fee request. Leroy
v. City of Houston, 831 F.2d 576, 585 (5th Cir. 1987).
After conducting a line-by-line analysis of the billing invoice submitted by Cole, the Court
finds that the invoice is improperly vague, for failure to adequately describe the attorneys who
performed the specific entry. Because the Court has determined a different “reasonable” rate for
each attorney, the Court cannot now determine which attorney is properly billing for which entry.
Therefore, the Court determines that an allocation of the lower rate, $250.00 for the entries will be
allowed, and that the total amount expended after the line-by-line analysis is conducted shall be
reduced by 50% due to Snead and Molina’s failure to properly document their billing entries. Yelton
v. PHI, Inc., No. 09-3144, 2012 WL 3441826, at *8 (E.D. La. Aug. 14, 2012); (see also Walker v.
City of Mesquite, Texas, 313 F.3d 246, 252 (5th Cir. 2002) (“[T]he district court has broad discretion
to exclude or reduce the entries that are vague.”)).
Therefore, the Court finds that of the 19.3 hours submitted, all of the entries shall be reduced
by 50%, for Snead and Molina’s failure to exercise billing judgment. Therefore Cole is entitled to
an award of 9.65 hours in attorney’s fees at the rate of $250.00 per hour, totaling $2,412.50.
3.

Adjusting the Lodestar

After the lodestar is determined, the Court may then adjust the lodestar upward or downward
depending on the twelve factors set forth in Johnson, 488 F.2d at 717-19. To the extent that any
Johnson factors are subsumed in the lodestar, they should not be reconsidered when determining

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whether an adjustment to the lodestar is required. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047
(5th Cir. 1998). The Court has evaluated the Johnson factors and finds no adjustment of the lodestar
is warranted. Accordingly, Cole is entitled to attorney’s fees of $2,412.50.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff, Chancellor Cole’s, (“Cole”) Motion to Fix Attorney’s

Fees on Motion to Compel (R. Doc. 61) is GRANTED. The Court finds that a total amount of
$2,412.50 in fees is reasonable in the matter here.
IT IS FURTHER ORDERED that Defendant shall satisfy his obligation to Jones no later
than twenty (20) days from the issuance of this Order.

7th

New Orleans, Louisiana, this ___ day of October 2013

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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