Faulk v. Duplantis et al

Filing 146

ORDER granting in part and denying in part 132 Motion for Attorney Fees and Costs. The Court awards attorney fees in the amount of $65, 137.50. Within ten (10) days of entry of this Order Faulk's counsel shall move for costs with the Clerk pursuant to the Local Rules of this Court. Signed by Judge Jay C. Zainey. (Reference: 12-1714)(jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KYLE FAULK

CIVIL ACTION

VERSUS

NO: 12-1714

TODD M. DUPLANTIS`

SECTION: "A" (3)

ORDER AND REASONS
The following motion is before the Court: Motion for Attorney's Fees (Rec. Doc.
132) filed by Plaintiff, Kyle Faulk. Defendant Todd M. Duplantis opposes the motion. The
motion, scheduled for submission on May 20, 2015, is before the Court on the briefs without
oral argument.
On July 16, 2014, the jury returned a verdict in favor of Faulk on his First Amendment
retaliation claim against Todd M. Duplantis. (Verdict Form, Rec. Doc. 100-1). The jury
concluded that Duplantis transferred Faulk to uniformed car patrol in retaliation for
engaging in protected speech, and that the transfer constituted an adverse employment
action. The jury then awarded Faulk $75,000 in compensatory damages and $275,000 in
punitive damages. (Id. at 2, 3). The Court granted Duplantis' motion for new trial on
damages. (Rec. Doc. 118). The second jury found in favor of Faulk and awarded him $50,000
in compensatory damages and $200,000 in punitive damages. (Rec. Doc. 126-2). The Court
entered judgment on the verdict on April 16, 2015 (Rec. Doc. 129).
Faulk now seeks reasonable attorney's fees and costs incurred in the prosecution of

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his case as a prevailing party under 42 U.S.C. § 1988.1 Faulk contends that attorney's fees in
the amount of $202, 597.50 (578.85 hours x $350 per hour) would properly compensate his
counsel for their work on the case. Defendant does not contest Plaintiff's entitlement to
attorney's fees as a prevailing party but does take issue with both the hours claimed and the
rate requested.
The determination of an attorney fee award under 42 U.S.C. § 1988 is a two-step
process. Jimenez v. Wood County, 621 F. 3d 372, 379 (5th Cir. 2010) (citing Rutherford v.
Harris County, 197 F.3d 173, 192 (5th Cir. 1999)). First, the court calculates the "lodestar"
which is equal to the number of hours reasonably expended multiplied by the prevailing
hourly rate in the community for similar work. Id. In calculating the lodestar the court
excludes all time that is excessive, duplicative, or inadequately documented. Id. Second, once
the lodestar is calculated the court can adjust it based on the twelve factors set out in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).2 The burden
of proof of reasonableness of the number hours claimed is on the fee applicant. Leroy v. City

Via the instant motion Plaintiff's counsel also seek to recover $6,741.97 in costs. In
this district costs are taxed in the first instance by the Clerk of Court pursuant to the
procedure described in Local Rules 54.3 and 54.3.1. The request for costs included in this
motion will not be addressed.
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The Johnson factors are: (1) the time and labor required to represent the client or
clients; (2) the novelty and difficulty of the issues in the case; (3) the skill required to perform
the legal services properly; (4) the preclusion of other employment by the attorney; (5) the
customary fee charged for those services in the relevant community; (6) whether the fee is fixed
or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount
involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10)
the undesirability of the case; (11) the nature and length of the professional relationship with the
client; and (12) awards in similar cases. Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800
(5th Cir. 2006) (citing Johnson, 488 F.2d at 717-19).
In light of Perdue v. Kenny, 559 U.S. 542 (2010), an upward enhancement to the lodestar
will rarely be appropriate. In Perdue, the Supreme Court explained why the lodestar calculation
carries with it a strong presumption of reasonableness. Id. at 552.

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of Houston, 831 F.2d 576, 586 (5th Cir. 1987) (citing Hensley v. Eckerhart, 461 U.S. 424, 437
(1983)). Determining a reasonable fee is a matter committed to the sound discretion of the
trial judge. Perdue, 559 U.S. at 558.
Hourly Rate
Plaintiff's counsel, Jerri Smitko and David Ardoin, have requested an hourly rate of
$350 per hour. Plaintiff has the burden of establishing that $350 per hour is in line with the
rate prevailing in this legal community for similar services by lawyers of reasonably
comparable skills and experience. In support of this requested rate attorneys Smitko and
Ardoin each submitted an affidavit attesting to their normal hourly billing rates. Smitko
attests that she typically charges $300 per hour for state court litigation and $350 per hour
for federal court litigation; Ardoin attests that he charges an hourly rate between $250 and
$350 an hour depending on the nature and complexity of the action. (Rec. Docs. 132-3 & 4).
In opposition, Duplantis has submitted affidavits from two Terrebonne Parish
attorneys who regularly practice in this community. Attorney Danna E. Schwab has been a
licensed attorney since 1990. Ms. Schwab attests that in her opinion the prevailing and
customary hourly rated charged for jury trial work falls withing a range of $150.00 to
$225.00 per hour, depending on the complexity of the litigation. (Rec. Doc. 133-1). Attorney
Barry J. Boudreaux has been a licensed attorney since 1983. Mr. Boudreaux attests that in his
opinion the prevailing and customary hourly rated charged for jury trial work falls within a
range of $175.00 to $250.00 per hour depending on the complexity of the litigation. (Rec.
Doc. 133-2).
The Court is persuaded that the rates suggested by Duplantis's witnesses reflect the
prevailing hourly rate for comparable work in this district. Duplantis suggests that the Court

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use an hourly rate of $175.00 at the low end of the range because this case was not novel or
complex. The Court agrees with Duplantis' assessment of the case but Smitko and Ardoin
each have practiced law for many years (29 and 17, respectively), and trying a case to a jury is
always challenging and risky. The Court is convinced that it was through Smitko's and
Ardoin's trial expertise and skill that Faulk obtained such a generous jury verdict under the
facts of his case (twice in fact). The Court therefore will use a rate of $225 per hour for the
lodestar calculation.
Hours Expended
Attorney Smitko claims 461.6 hours of time for both trials; Ardoin claims 117.25 hours
for both trials; their combined hours are 578.85 hours. (Rec. Docs. 132-5 & 132-7). Of
Smitko's hours 66.3 are specific to the second trial; of Ardoin's time 55.5 hours are specific to
the second trial. The Court's first task under the lodestar method is to eliminate hours that
are excessive, duplicative, or inadequately documented. Duplantis raises persuasive
arguments pertaining to this task. While the Court will not traverse the attorneys' itemized
time sheets line for line the Court makes the following observations which apply globally to
the hours claimed.
First, most of Smitko's hours in the earlier part of this case were devoted to pursuing
claims that were non-cognizable ab initio as a matter of federal law. Faulk and the plaintiff in
Civil Action 12-1717, Milton Wolfe, attempted to assert claims (including claims for
preliminary emergency relief) pertaining to the state's civil service system, the conduct of the
Louisiana legislature, the adequacy of Duplantis's qualifications as police chief, and a defunct
federal consent decree—none of which were even arguably viable under § 1983. Defendants
were forced to file five dispositive motions which Faulk and Milton vehemently opposed even

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though their positions were not legally viable. Defendants were overwhelmingly granted
relief, and the sole claim that remained of the numerous claims asserted and the numerous
defendants sued was the claim against Duplantis in his individual capacity for First
Amendment retaliation. (Rec. Doc. 56, Court's 8/16/13 Order and Reasons). Duplantis
cannot be expected to pay for attorney time spent pursuing and defending claims that had
nothing to do with his own personal conduct.3
Second, although Ardoin's contribution to the case was beyond reproach, the Court is
not persuaded that it was necessary to bring in a second trial attorney, particularly one of
Ardoin's skill and experience, on the eve of trial. As the Court has already noted, the case was
not complex and Smitko is an experienced trial attorney. Undoubtedly having two attorneys
at trial made the logistics of trying the case easier but the Court is not persuaded that the cost
of two experienced trial lawyers should be borne by Duplantis.
Third, of the combined 578.85 hours for Smitko and Ardoin, Smitko claims 66.3 hours
for the second trial on damages and Ardoin claims 55.5 hours. The Court can certainly
envision circumstances where a defendant in Duplantis's position should be cast in judgment
for the attorney fees incurred because of a retrial on damages but the second trial in this case
was not required due to any conduct on Duplantis's part or on the part of his attorney. The

Smitko's time sheets include references to Wolfe's claim and Duplantis points out that
the time sheets provide no way to ensure that Duplantis is not being taxed for time spent on
Wolfe's case. Wolfe's complaint on its face failed to state a claim for First Amendment retaliation
so the Court finds it highly unlikely that any time spent on Wolfe's case would have inured to the
benefit of Faulk's case. See Von Clark v. Butler, 916 F.2d 255 (5th Cir. 1990) (recognizing that the
fee applicant bears the risk of not clearly distinguishing between attorney time spent on the
defendant's case and time spent on claims by and against other parties).
Another particularly noteworthy entry that suggests to the Court that Smitko did not
purge her claimed hours of time that was not chargeable to the case against Duplantis was an
entry for 21 hours of time to review a 1264 page HPD FISCA Manual that played no part in the
trial of the claims against Duplantis. (Rec. Doc. 132-5 at 3).
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Court recognizes that Faulk and his attorneys were likewise free of fault with respect to the
first jury's untenable verdict but the Court is persuaded that it would be unfair to cast
Duplantis with the entirety of the attorney fees incurred because of the new trial.4
Finally, when awarding attorney's fees under § 1988 the Court remains mindful that §
1988's aim is to serve the important public purpose of encouraging capable attorneys to
undertake the representation of meritorious civil rights cases—cases that might otherwise be
overlooked because at times the vindication of rights does not involve a significant monetary
value. See Perdue, 559 U.S. at 552, 559. Section 1988 does not necessarily award the
prevailing party for every hour that his attorney spent working on the case and it does not
make the defendant liable for satisfying whatever fee arrangements a plaintiff makes with his
attorney.5 In this case there is no evidence that Faulk's attorney's were forced to forego any
other legal work because of their time on this case.
Based on the foregoing, the Court deems it appropriate to allow 50 percent of the total
hours claimed by Smitko and Ardoin.6 The reasonable fee under the lodestar calculation

The Court adds that Smitko opted to claim her hours for the second trial as a lump
sum total instead of itemizing her hours for the new trial which is unacceptable. The Court notes
that where Smitko did itemize in conjunction with the first trial the hourly charges at times
appear to incorporate time for work of a clerical nature as opposed to purely legal work
performed by an attorney.
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Plaintiff's counsel point out that Faulk agreed to a 40 percent contingency fee
agreement with Smitko and Ardoin. Absent a contractual arrangement to the contrary, the
Court's award of attorney's fees under § 1988 does not alter Faulk's fee agreement with his
lawyers. See Gobert v. Williams, 323 F.3d 1099 (5th Cir. 2003) (recognizing that § 1988 has
nothing to do with what a client agrees to pay his attorney). In other words, § 1988 in and of
itself neither voids Faulk's payment contract with his attorneys nor foists it upon Duplantis.
In a supplemental memorandum Smitko and Ardoin suggest that their claimed hours of
578.85 are reasonable because public records reveal that Duplantis's counsel billed 528.50 hours
defending the case and the parish attorney billed 364 hours defending her clients, the parish and
the parish president. (Rec. Doc. 143-2). This argument fails to recognize that defense counsel
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comes to $65, 137.50 ($225 x 289.5 hours). The Court finds that this fee amount already
encompasses the twelve Johnson factors and need not be enhanced or reduced.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion for Attorney's Fees (Rec. Doc. 132) filed by
counsel for Plaintiff, Kyle Faulk is GRANTED. The Court awards attorney fees in the
amount of $65, 137.50. The request for costs is denied without prejudice. Within ten (10)
days of entry of this Order Faulk's counsel shall move for costs with the Clerk pursuant to
the Local Rules of this Court.
June 4, 2015
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

had to originally defend this case against a bevy of claims, all but one of which were dismissed
on motion practice because they lacked legal merit.

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