Action Oilfield Services, Inc. v. Mantle Oil & Gas, LLC

Filing 33

ORDER & REASONS: granting 31 Defendant's Motion for Attorney Fees; FURTHER ORDERED that Plaintiff, Action Oilfield Services, Inc,. shall pay to Defendant, Mantle Oil & Gas, L.L.C., an amount of $17,034.25, which includes $15,917.50 in attorneys' fees and $1,116.75 in expenses. Signed by Judge Carl Barbier on 6/2/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ACTION OILFIELD SERVICES, INC.

CIVIL ACTION

VERSUS

NO: 13-4866

MANTLE OIL & GAS, L.L.C.

SECTION: J

ORDER AND REASONS
Before the Court is Defendant's Motion for Attorneys' Fees
(Rec. Doc. 31). Plaintiff has filed no opposition to the motion.
Having considered the motion, the submissions, the record, and the
applicable law, the Court finds, for the reasons expressed below,
that the motions for attorneys' fees should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
On May 24, 2013, Plaintiff filed suit against Defendant in the
23rd Judicial District Court in Assumption Parish, Louisiana for
$319,559.58 allegedly due on an open account. Defendant removed the
action to federal court based on diversity jurisdiction on June 20,
2013. On January 10, 2014, Defendant served discovery requests on
Plaintiff, and Plaintiff failed to respond within the required
thirty (30) days. On February 21, 2014, Magistrate Judge Shushan
issued an order requiring Plaintiff to provide discovery responses
by February 28, 2014, but Plaintiff failed to do so. On March 25,
2014, Magistrate Judge Shushan issued another order requiring
Plaintiff to provide discovery responses by March 31, 2014, and on
1

March 27, 2014, the undersigned also ordered that Plaintiff provide
discovery

responses

by

March

31,

2014,

in

compliance

with

Magistrate Judge Shushan's order, or else Plaintiff's action would
be dismissed with prejudice. Plaintiff failed to provide complete
discovery responses by the March 31, 2014 deadline. On April 1,
2014, Defendant moved to dismiss Plaintiff's claims and to recover
from Plaintiff itself the reasonable expenses and attorneys' fees
that Defendant incurred as a result of Plaintiff's refusal to
participate

in

discovery

pursuant

to

Federal

Rule

of

Civil

Procedure 37(b)(2)©. The Court granted the motion, dismissing
Plaintiff's claims with prejudice and instructing Defendant to
submit a properly supported motion for reasonable expenses and
attorneys' fees. Defendant then filed the instant motion along with
the affidavit of M. Taylor Darden, one of Defendant's attorneys,
and a billing transaction list.
LEGAL STANDARD
In the event of a party's failure to comply with a Court order
with

respect

to

discovery,

Federal

Rule

of

Civil

Procedure

37(b)(2)© states:

[T]he

court

attorney

must

advising

order
that

the

disobedient

party,

or

both

party,
to

pay

the
the

reasonable expenses, including attorneys' fees, caused by
the

failure,

unless

the

failure

2

was

substantially

justified

or

other

circumstances

make

an

award

of

expenses unjust.

Fed. R. Civ. P. 37(b)(2)©.
The Fifth Circuit uses a two-step analysis to calculate fee
awards. Hernandez v. U.S. Customs & Border Prot. Agency, No. 104602, 2012 WL 398328, at *13 (E.D. La. Feb. 7, 2012) (Barbier, J.).
First,

the

accomplished

Court
"by

must

calculate

multiplying

the

the

"lodestar,"

number

of

hours

which

is

reasonably

expended in the case by the prevailing hourly rate for legal
services in the district." Id. (internal citations omitted). Next,
"the second step allows the Court to make downward adjustments, or
in rare cases, upward adjustments, based upon consideration of the
twelve Johnson factors." Id. The twelve Johnson factors are the
following:

(1) the time and labor required
(2) the novelty and difficulty of the questions
(3)

the

skill

requisite

to

perform

the

legal

service properly
(4)

the

preclusion

of

other

employment

attorney due to acceptance of the case
(5) the customary fee
(6) whether the fee is fixed or contingent

3

by

the

(7) time limitations imposed by the client or the
circumstances
(8) the amount involved and the 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
(12) awards in similar cases

Johnson v. Ga. Highway Exp. Inc., 488 F.2d 714, 717-19 (5th Cir.
1974), abrogated on other grounds, Blanchard v. Bergeron, 489 U.S.
87 (1989).
In determining the number of hours billed for purposes of
calculating the lodestar, the Court must "determine whether the
requested hours expended by Plaintiffs' counsel were reasonable in
light of the facts of the case and the work performed. The burden
of proving the reasonableness of the hours expended is on the fee
applicant." Hernandez, 2012 WL 398328, at *13 (internal citations
omitted). The Court must also determine whether the records show
"that Plaintiffs' counsel exercised billing judgment" and "should
exclude all time billed for work that is excessive, duplicate, or
inadequately documented." Id. at *14 (internal citations omitted).
In determining the hourly rates for purposes of calculating

4

the lodestar, the Court must determine a reasonable rate for each
attorney "at the prevailing market rates in the relevant community
for similar services by attorneys ore reasonably comparable skills,
experience, and reputation." Id. (internal citations omitted). The
burden is on the fee applicant to submit "satisfactory evidence
that the requested rate is aligned with prevailing market rates."
Id. (internal citations omitted).
Once the Court calculates the lodestar,

There

is

a

reasonable.

strong
...

presumption

Nonetheless,

that

the

this

Court

figure
must

is

still

consider the twelve Johnson factors ... . Though the
Court

need

not

be

"meticulously

detailed"

in

its

analysis, it must nonetheless articulate and clearly
apply the twelve factors to determine how each affects
the

lodestar

amount.

The

to

time

consideration
customary

fee,

the

the

Court

amount

and

should
labor

involved

give

special

involved,

and

the

the

results

obtained, and the experience, reputation, and ability of
counsel. ... However, to the extent that a factor has
been previously considered in the calculation of the
benchmark

lodestar

amount,

a

court

further adjustments on that basis.

5

should

not

make

Id. at *16 (internal citations omitted).
This Court recently analyzed awards of attorneys' fees in the
Eastern District of Louisiana:

See, e.g. Smith v. Sprint/United Mgmt. Co., 2011 [WL]
6371481 (E.D. La. Dec. 20, 2011) (awarding $290.00/hour
for a partner with 16 years experience and $240/hour for
an associate with 8 years of experience); Construction
South, Inc. v. Jenkins, 2011 WL 3892225 (E.D. La. Sept.2,
2011) (awarding $350/hour for two partners with 36 and 30
years of experience; $200/hour for an associate with four
years of experience; and $180/hour for an associate with
two years of experience); Atel Mar. Investors, LP v. Sea
Mar Mgmt., LLC, 2011 WL 2550505 (E.D. La. June 27, 2011)
(awarding $250 for partner with 35 years of experience;
$250 for a partner with 11 years of experience; and $175
for an associate with 2 years of experience); Entergy
La., L.L.C. v. The Wackenhut Corp., 2010 WL 4812921 (E.D.
La. Nov.17, 2010) (awarding $175.00/hour to attorney with
16 years of experience); Wilson v. Tulane Univ., 2010 WL
3943543 (E.D. La. Oct.4, 2010) (awarding $250.00/hour and
$160.00/hour

to

attorneys

with

25

and

four

years

experience respectively); Hebert v. Rodriguez, 2010 WL
2360718 (E.D. La. June 8, 2010) (awarding $300.00/hour to
6

partner

with

33

years

of

experience);

Gulf

Coast

Facilities Mgmt., L.L.C. v. BG LNG Servs., L.L.C., 2010
WL

2773208

(E.D.

La.

July

13,

2010)

(awarding

$300.00/hour to attorneys with 17 years experience and
$180.00/hour and $135.00/hour to attorneys with seven
years and two years experience respectively); Belfor USA
Group, Inc. v. Bellemeade Partners, L.L.C., 2010 WL
6300009 (E.D. La. Feb. 19, 2010) (awarding $250.00/hour,
$210.00/hour, and $180.00/hour to attorneys with 20, 10,
and 4 years of legal experience, respectively); Marks v.
Standard Fire Ins. Co., 2010 WL 487403 (E.D. La. Feb. 3,
2010) (awarding $185.00/hour to attorney with seven years
of experience).

Hernandez, 2012 WL 398328, at *15.
DISCUSSION
The Court finds that Plaintiff's failure to comply with this
Court's discovery orders was not substantially justified, and an
award of expenses is not unjust in this case. Therefore, the Court
will award Defendant reasonable expenses, including attorneys'
fees, to be paid by Plaintiff itself, not by Plaintiff's counsel.
Defendant seeks attorneys' fees for the services of the New
Orleans law firm Carver, Darden, Koretzky, Tessier, Finn, Blossman
& Areaux, L.L.C., specifically for hours billed between January 7,
7

2014 and March 31, 2014 as a result of Plaintiff's refusal to
participate in discovery and comply with the Court's orders.1
Defendant seeks attorneys' fees for the services of following
parties: M. Taylor Darden, Matthew J. Fantaci, Seth E. Bagwell, and
paralegals at the firm. Defendant also seeks to recover expenses,
as discussed below.
A. Attorneys' Fees for M. Taylor Darden
M. Taylor Darden ("Mr. Darden") is a named partner at the law
firm and has been practicing law for approximately thirty-seven
(37) years. He is an experienced litigator, particularly in the
areas of oil and gas and property rights litigation. Defendant
requests that the Court approve an hourly rate of $395 for Mr.
Darden. However, the Court finds that under Jenkins, an hourly rate
of $350 is more reasonable. Mr. Darden expended 2.70 hours between
January 7, 2014 and March 31, 2014, and he appears to have
exercised billing judgment by refraining from billing for an office
conference with Mr. Fantaci regarding the status of Plaintiff's
discovery responses on March 31, 2014. Therefore, the Court finds
that the hours Mr. Darden expended are reasonable. The lodestar for

1

Defendant's counsel has submitted a billing sheet that details each
billing transaction in this matter ranging from June 5, 2013 to March 31, 2014,
and Defendant states that Plaintiff's refusal to participate in discovery began
when Defendant prepared and served its discovery requests on Plaintiff in January
2014. The first billing entry in the year 2014 is on January 7, 2014. Therefore,
the relevant time period for purposes of this motion begins on January 7, 2014.
Defendant estimates that it has incurred an additional $1,500 in this litigation
between March 31, 2014 and the date of the filing of this motion. However,
Defendant has submitted no billing records for that time period, and the Court
declines to award attorneys' fees based on an estimation.

8

Mr. Darden is therefore equal to 2.70 hours at a rate of $350 per
hour, or $945.
B. Attorneys' Fees for Matthew J. Fantaci
Matthew J. Fantaci ("Mr. Fantaci") is a partner at the law
firm and has been practicing law for approximately twelve (12)
years. He practices in the areas of oil and gas and commercial
litigation. Defendant requests that the Court approve an hourly
rate of $245 for Mr. Fantaci. However, the Court finds that under
Belfor, an hourly rate of $220 is more reasonable. Mr. Fantaci
expended 32.90 hours between January 7, 2014 and March 31, 2014,
and although Mr. Fantaci does not appear to have reduced his hours,
his time appears to be adequately documented and does not seem to
be excessive or duplicative. Therefore, the Court finds that the
hours Mr. Fantaci expended are reasonable. The lodestar for Mr.
Fantaci is therefore equal to 32.90 hours at a rate of $220 per
hour, or $7,238.
C. Attorneys' Fees for Seth E. Bagwell
Seth E. Bagwell ("Mr. Bagwell") is an associate at the law
firm and has been practicing law for approximately three (3) years.
He

practices

in

the

area

of

general

commercial

litigation.

Defendant requests that the Court approve an hourly rate of $155
for Mr. Bagwell, and the Court finds that this hourly rate is
reasonable. Mr. Bagwell expended 49.90 hours between January 7,
2014 and March 31, 2014, and although Mr. Bagwell does not appear
9

to have reduced his hours, his time appears to be adequately
documented and does not seem to be excessive or duplicative.
Therefore, the Court finds that the hours Mr. Bagwell expended are
reasonable. The lodestar for Mr. Bagwell is therefore equal to
49.90 hours at a rate of $155 per hour, or $7,734.50.
D. Johnson Factors
As discussed above, these lodestar figures are presumptively
reasonable, but the Court must nevertheless consider the twelve
Johnson factors to determine whether they warrant a downward
adjustment or, in rare cases, an upward adjustment.
1. Time and Labor Required
The Court finds that Plaintiff's consistent failure to produce
the requested discovery increased the time and labor required to
resolve this matter. However, the Court finds that this factor
merely confirms the reasonableness of the lodestar amounts and does
not warrant an upward adjustment.
2. Novelty and Difficulty of the Questions
The legal issues presented in this case between January 7,
2014 and March 31, 2014 have pertained to discovery issues, which
are not particularly novel or difficult.
3. Skill Requisite to Perform the Legal Service Properly
The skill of each attorney is already accounted for in the
lodestar calculations.

10

4. Preclusion of Other Employment
Defendant has not claimed that the attorneys were precluded
from taking other employment by virtue of the time and resources
required to be expended in this case.
5. Customary Fee
The customary fees charged by each attorney are already
accounted for in the lodestar calculations.
6. Fixed or Contingent Fee
This is a fixed fee case, and the Court finds that this factor
does not warrant a downward or upward adjustment from the lodestar
amounts.
7. Time Limitations Imposed by Client or Circumstances
Defendant has not claimed that there were any particular time
limitations or constraints imposed on its counsel in this matter.
8. Amount Involved and Results Obtained
The result that Defendant's counsel obtained in this matter
was dismissal of Plaintiff's claims based on its failure to file
witness and exhibits lists, to comply with Defendant's discovery
requests, and to comply with multiple orders of this Court.
Defendant has not sought or obtained any affirmative relief in this
matter. The Court finds that this factor does not warrant a
downward or upward adjustment from the lodestar amounts.
9. Experience, Reputation, and Ability of Attorneys
The experience, reputation, and ability of each attorney is
11

already accounted for in the lodestar calculations.
10. Undesirability of the Case
Defendant has not claimed that this case was in any way
undesirable to its counsel.
11. Nature and Length of Professional Relationship with Client
Defendant has not claimed that its counsel discounted their
fees because Defendant is a longstanding client and has not
indicated any other respect in which this factor might warrant an
upward or downward adjustment from the lodestar amounts.
12. Awards in Similar Cases
The Court already considered recent awards of attorneys' fees
in

this

district

and

took

those

awards

into

account

when

determining the reasonable hourly rate for purposes of calculating
the lodestar amounts.
Because it appears that none of the Johnson factors warrants
an upward or downward adjustment from the lodestar amounts, the
Court finds that the lodestar amount calculated for each attorney
is the correct award in this case. Therefore, the total attorneys'
fee award, including $945 for Mr. Darden's services, $7,238 for Mr.
Fantaci's services, and $7,734.50 for Mr. Bagwell's services, is
$15,917.50.
E. Expenses
Defendant seeks a total of $1,271.35 in expenses for online
record searches and e-filing with the Texas Secretary of State,
12

photocopy

and

fax

charges,

online

research

using

Pacer

and

LexisNexis, and hours billed by paralegals. The Court will award
expenses for photocopies and faxes, as well as online record
searches with the Texas Secretary of State, at a total of $10.50.
With respect to the online research, the Supreme Court of the
United States has held that, at least in the context of expenses
awarded to a prevailing party pursuant to Federal Rule of Civil
Procedure 54(d), courts may only award costs that are specifically
enumerated in 28 U.S.C. § 1920. Crawford Fitting Co. v. J. T.
Gibbons, Inc., 482 U.S. 437, 441-42 (1987). That statute does not
enumerate electronic research costs, such as Lexis and Westlaw
fees. See 28 U.S.C.A. § 1920 (West 2008). However, an award of
expenses pursuant to Federal Rule of Civil Procedure 37(b)(2)© is
a type of sanction and therefore differs from such an award
pursuant to Rule 54. This Court has recently awarded expenses for
Westlaw legal research in the context of a Rule 37 sanction. See
Atel Mar. Investors, LP v. Sea Mar Mgmt., LLC, 2011 WL 2550505, at
*4 (E.D. La. June 27, 2011) (Roby, J.). Therefore, the Court will
award Defendant expenses for its LexisNexis and Pacer research at
a total of $1,095.75.
With respect to the hours billed by paralegals, Defendant
requests that the Court award expenses for 2.40 hours expended, at
a rate of $65 per hour, by a paralegal billing under code number
59, for a total of $156.00. Paralegal expenses are recoverable

13

"only to the extent that the paralegal performs work traditionally
done by an attorney. Otherwise, paralegal expenses are separately
unrecoverable overhead expenses." Allen v. U.S. Steel Corp., 665
F.2d 689, 697 (5th Cir. 1982). Here, each entry under code number
59 involves strictly the secretarial task of reviewing the Court's
deadlines and calendaring for the attorneys. Therefore, the Court
declines to award $156.00 for the work of this paralegal.
Additionally, Defendant requests that the Court award expenses
for 0.1 hours expended, at a rate of $105 per hour, by a paralegal
under code number 65 for an office conference with Mr. Bagwell
regarding the pretrial conference, for a total of $10.50. This
Court has recently found reasonable in the Eastern District of
Louisiana an hourly billing rate for paralegal work ranging from
$115 to $120. Akins v. Worley Catastrophe Response, L.L.C., No. 122041, 2014 WL 1456382, at *6 (E.D. La. Apr. 14, 2014) (Wilkinson,
J.). Therefore, the Court finds it reasonable to award Defendant
$10.50 for the work of this paralegal.
Adding together the expense awards for photocopies and faxes,
online record searches with the Texas Secretary of State, online
research using Pacer and LexisNexis, and the hours billed by the
paralegal

under

code

number

65,

$1,116.75.

14

the

total

expense

award

is

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant's Motion for Attorneys'
Fees (Rec. Doc. 31) is GRANTED.
IT

IS

FURTHER

ORDERED

that

Plaintiff,

Action

Oilfield

Services, Inc,. shall pay to Defendant, Mantle Oil & Gas, L.L.C.,
an amount of $17,034.25, which includes $15,917.50 in attorneys'
fees and $1,116.75 in expenses.
New Orleans, Louisiana this 2nd day of June, 2014.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

15