Barrack et al v Pailet, Meunier & LeBlanc, LLP et al

Filing 80

ORDER AND REASONS on Barrack parties' 63 Motion to Fix Amount of Monetary Sanctions. IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as set forth herein. For the reasons set forth herein, the law firm of Deutsch, Kerrigan & Stiles, L.L.P., and/or William E. Wright, Jr., and/or the Pailet parties must pay the Barrack parties $2,275.00 (an amount for which all three are liable in solido; i.e., for the full amount to whatever extent the others fail to pay) to reimburse the Pailet parties for reasonable fees incurred as a result of their discovery conduct. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 11/27/13. (tbl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DR. ROBERT L. BARRACK ET AL.

CIVIL ACTION

VERSUS

NO. 12-2716

PAILET, MEUNIER & LEBLANC,
L.L.P. ET AL.

SECTION “B” (2)

ORDER AND REASONS ON MOTION
The Barrack parties’ Motion to Fix Amounts of Monetary Sanctions, Record Doc.
No. 63, is currently pending before me. The Pailet parties filed a timely opposition
memorandum. Record Doc. No. 75. Having considered the written submissions of the
parties, the record and the applicable law, IT IS ORDERED that the motion is GRANTED
IN PART AND DENIED IN PART as follows.
In this motion, the Barrack parties seek a total of $9,654.64, including lost income
by Dr. Robert Barrack and attorneys’ fees, as the monetary sanction awarded in my
previous order. Record Doc. No. 54. They also seek “lodestar enhancement.” Record Doc.
No. 63-1 at p. 4. For the following reasons, I find that the requested amounts must be
reduced and that no lodestar enhancement is appropriate. I therefore deny the motion
insofar as it seeks those amounts, and instead grant the motion in the lower amounts
provided herein.
I note as an initial matter that none of the $7,254.64 in lost income sought by Dr.
Barrack will be awarded. That portion of my sanctions order has been vacated by the

presiding district judge, Record Doc. No. 74, rendering all parts of this motion addressing
that issue moot.

As to the request for an award of reasonable attorneys fees, the lodestar method
is routinely used to determine such awards in federal civil actions, and I apply it in this
case in which the award is made pursuant to federal law. Fed. R. Civ. P. 37(a)(5) and
(d)(3). Under the lodestar method,
[t]he determination of a fees award is a two-step process. 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. The court should exclude all time that is
excessive, duplicative, or inadequately documented. Once the lodestar
amount is calculated, the court can adjust it based on the twelve factors set
forth in Johnson v. Georgia Highway Express, Inc.,1 488 F.2d 714, 717-19
(5th Cir. 1974)[, abrogated on other grounds by Blanchard v. Bergeron, 489
U.S. 87 (1989)].
Jimenez v. Wood Cnty., 621 F.3d 372, 379-80 (5th Cir. 2010) (citations omitted). “The
lodestar may not be adjusted due to a Johnson factor, however, if the creation of the
lodestar award already took that factor into account.” Heidtman v. County of El Paso,
171 F.3d 1038, 1043 (5th Cir. 1999) (citing City of Burlington v. Dague, 505 U.S. 557,

1

The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the
issues; (3) the skill required to perform the legal services properly; (4) the preclusion of other
employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the
time limitations imposed by the client or circumstances; (8) the amount involved and results obtained;
(9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the
nature and length of the professional relationship with the client; and (12) the award in similar cases.
Johnson, 488 F.2d at 717-19.

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562 (1992); Shipes v. Trinity Indus., 987 F.2d 311, 319-20 (5th Cir. 1993)). “If more than
one attorney is involved, the possibility of duplication of effort along with the proper
utilization of time should be scrutinized.” Abrams v. Baylor Coll. of Med., 805 F.2d 528,
535 (5th Cir. 1986) (quotation omitted); accord Phila. Indem. Ins. Co. v. SSR Hospitality,
Inc., 459 F. App’x 308, 317 (5th Cir. 2012); Riley v. City of Jackson, 99 F.3d 757, 760
(5th Cir. 1996).
Applying the foregoing standards, I find that only time incurred by attorney
Thomas Henican is reasonably compensated. Henican actually defended the Barrack
deposition. The involvement of a second lawyer billing at a substantially higher hourly
rate in that function was unnecessarily duplicative. Henican also prepared the relevant
motion papers and appeared in court for oral argument on that motion. I also find that the
hourly rate of $250 per hour sought for the work of Henican, a highly competent litigator
with 24 years of experience in these kinds of cases, is well within the range of rates found
to be reasonable in other decisions of this court. See Thompson v. Connick, 553 F.3d
836, 868 (5th Cir. 2008)(approving hourly rates of $202 to $312 for experienced
attorneys as “at the upper range of what was reasonable in the” Eastern District of
Louisiana from 2003 to 2007); Ranger Steel Servs., LP v. Orleans Materials & Equip.,
Co., No. 10-112, 2010 WL 3488236, at *1, *3 (E.D. La. Aug. 27, 2010) (Barbier, J.)
(awarding the rates charged by New Orleans co-counsel of $360 in 2009 and $395 in

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2010 for highly experienced partner’s work); Braud v. Transp. Serv. Co., No. 05-1898,
2010 WL 3283398, at *15 (E.D. La. Aug. 17, 2010) (Knowles, M.J.) (hourly rate of $200
for attorney with 30 years of experience is “within the low end of the range of the market
rate in this area and . . . reasonable”); Combe v. Life Ins. Co., No. 06-8909, 2008 WL
544547, at *3 (E.D. La. Feb. 27, 2008) (Livaudais, J.) (awarding $250 per hour for
attorneys who had practiced for more than 20 years in the relevant legal field).
As to the number of hours, the sanctionable conduct in connection with the Dr.
Barrack deposition was limited to the five-hour delay in commencement of the scheduled
deposition, as I have already found. Record Doc. No. 54 at p. 1. Five (5) hours of
Henican’s time is the appropriate number of hours to be reimbursed as to that incident.
As to the failure of Kenneth Pailet and Benny Hausknecht to appear for their reasonably
noticed depositions upon the instruction of their counsel, the evidence establishes that
Henican spent a total of 8.4 hours in research and drafting, revising and editing all of the
underlying motion papers, only part of which were necessitated by the deponents’ failure
to appear, and in conferring and appearing in court concerning that matter. Record Doc.
Nos. 63-6 at p. 4, ¶ 12, and 70-3 at pp. 3-4. While I find these amounts reasonable for
these various tasks, Henican has prudently suggested that the court reduce the hours to
be compensated by 75 percent, recognizing that only about a quarter of the resulting
motion practice should be attributable to the subject discovery conduct. Record Doc. No.

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63-6 at p. 5, ¶ 14. This is a reasonable exercise of billing judgment. See Walker v. U.S.
Dep’t of Housing & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996); Saizan v. Delta
Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006); Hopwood v. Texas, 236 F.3d
256, 279 (5th Cir. 2000) (all recognizing the court’s authority to reduce fee awards on
a percentage basis). Accordingly, the number of hours for which reimbursement will be
required for motion practice resulting from counsel’s erroneous instruction to the two
deponents that they should not appear will be 2.1 hours, which is reasonable.
Finally, although the Barrack parties have not specifically accounted for it in their
motion papers, Record Doc. No. 63-6 at p. 4, ¶12, I find that they are also entitled to an
award of reasonable attorney’s fees in connection with the time spent to prepare the
instant fee application. See Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996);
Cruz v. Hauck, 762 F.2d 1230, 1233-35 (5th Cir. 1985); Lewallen v. City of Beaumont,
No. 1:05-CV-733-TH, 2009 WL 2175637, at *8 (E.D. Tex. July 20, 2009); Chaparral
Texas, L.P. v. W. Dale Morris, Inc., No. H-06-2468, 2009 WL 455282, at *12 n.5 (S.D.
Tex. Feb. 23, 2009). Abstracting from the evidence Henican has submitted concerning
the related motion practice addressed above, and deducting hours attributable to the now
unawardable lost income claim of Dr. Barrack, I find that an additional two hours of
Henican’s time should be awarded in connection with the relevant part of his work on
this motion to fix the amount of the award.

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Thus, the lodestar amount in this instance is $250 per hour multiplied by 9.1 hours
[consisting of five (5) hours for the delay in commencement of the Barrack deposition;
2.1 hours for the portion of the original motion relating to the deponents’ failure to
appear; and two (2) hours for the portion of the instant motion to fix the awardable
amounts attributable to attorneys fees only] for a total of $2,275.00. Applying the
Johnson factors that have not already been subsumed in the lodestar calculation, I find
that no enhancement of the lodestar amount is appropriate in these circumstances.
For the foregoing reasons, the law firm of Deutsch, Kerrigan & Stiles, L.L.P.,
and/or William E. Wright, Jr., and/or the Pailet parties must pay the Barrack parties
$2,275.00 (an amount for which all three are liable in solido; i.e., for the full amount to
whatever extent the others fail to pay) to reimburse the Pailet parties for reasonable fees
incurred as a result of their discovery conduct.
New Orleans, Louisiana, this

27th

day of November, 2013.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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