VFS US LLC v. Southwinds Express Construction, LLC et al
Filing
29
ORDER & REASONS: granting 27 Motion for Attorney Fees and Costs filed by Plaintiff, VFS US, L.L.C.; FURTHER ORDERED that Defendants shall pay to Plaintiff, VFS US, L.L.C., $17,097.50 in attorneys' fees and $400.00 in costs. Signed by Judge Carl Barbier on 8/8/14. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VFS US, L.L.C.
CIVIL ACTION
VERSUS
NO: 14-126
SOUTHWINDS EXPRESS
CONSTRUCTION, L.L.C., ET AL
SECTION: J
ORDER AND REASONS
Before the Court is a Motion for Attorneys' Fees and Costs
filed by Plaintiff, VFS US, L.L.C. (hereinafter "VFS") (Rec. Doc.
27). The motion is unopposed. Having considered the motion, the
record, and the applicable law, the Court finds, for the reasons
expressed below, that the motion should be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND1
Between December 29, 2010 and September 9, 2011, Defendant
Southwinds executed five (5) secured promissory notes in favor of
VFS for the financed purchase of various construction equipment.
The loan documents that the parties executed contain the following
language:
Borrower agrees to pay on demand all reasonable external
and
internal
costs,
expenses
and
fees
(including
reasonable attorneys' fees and expenses) of Lender in
1
The detailed facts of this case are outlined in the Court's Order and
Reasons of July 1, 2014 (Rec. Doc. 26).
1
enforcing the Loan Documents and the rights and remedies
of Lender regardless of whether any legal action or
proceeding is instigated.
(Rec. Doc. 12-3, pgs. 3, 11, & 15).
On July 1, 2014, the Court granted summary judgment in favor
of VFS and ordered that VFS file a motion for attorneys' fees
within fourteen (14) days. (Rec. Doc. 26). VFS filed its motion on
July 3, 2014, and Defendants have not filed an opposition.
DISCUSSION
A. Reasonable Attorneys' Fee Awards: Two-Step Analysis
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.).
In the first step, the Court must calculate the "lodestar," which
is accomplished "by multiplying the number of hours reasonably
expended in the case by the prevailing hourly rate for legal
services in the district." Id. (internal citations omitted).
In determining the number of hours billed for purposes of
calculating the lodestar, the Court must "determine whether the
requested hours expended by . . . 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
2
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, duplicative, or
inadequately documented." Id. at *14 (internal citations omitted).
In determining the hourly rates for purposes of calculating
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 of 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).
Next, "the second step allows the Court to make downward
adjustments, or in rare cases, upward adjustments, to the lodestar
amount 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
3
by
the
(6) whether the fee is fixed or contingent
(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).
Courts apply "a strong presumption that [the lodestar] figure
is reasonable." Hernandez, 2012 WL 398328, at *16. Nevertheless,
[T]he
Court
must
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 Court should give
special consideration to the time and labor involved, the
customary
fee,
the
amount
4
involved
and
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
should
not
make
further adjustments on that basis.
Id. (internal citations omitted).
D. Lodestar Calculations
1. Gregory F. Rouchell
VFS seeks attorneys' fees for 52.40 hours billed by Mr.
Rouchell at the rate of $225.00 per hour. Mr. Rouchell is a partner
at the firm of Adams and Reese and has been practicing law for
approximately eleven (11) years. Mr. Rouchell has experience in
commercial litigation and enforcement of creditors' rights.
The Court will first determine the reasonableness of the
hourly rate for Mr. Rouchell. Only two years ago, in 2012, this
Court found that in the Eastern District of Louisiana, a reasonable
hourly rate for an attorney who had been practicing law for over
eight (8) years and specialized in the field of law at issue was
$300.00 per hour, and that a reasonable hourly rate for an attorney
who had been practicing law for approximately two (2) years and
specialized in the field of law at issue was $180.00 per hour.
Hernandez, 2012 WL 398328, at *14-16. The Court arrived at its
conclusion after an analysis of multiple cases in this district:
5
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
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
6
$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).
Id. at *15.
Given the cases discussed above, the Court finds that a fee of
$225.00 per hour for Mr. Rouchell's services is reasonable. A total
of 52.40 hours appears to be a reasonable number of hours billed by
Mr. Rouchell, and those hours are well-documented. Defendants have
not filed an opposition to challenge the reasonable hourly rate or
number of hours billed by Mr. Rouchell. Therefore, the Court finds
that the lodestar figure for Mr. Rouchell (52.40 hours at a rate of
$225.00 per hour) is $11,790.00.
2. L. Cole Callihan
VFS also seeks attorneys' fees for 19.30 hours billed by Mr.
Callihan at the rate of $190.00 per hour. Mr. Callihan is an
associate at the firm of Adams and Reese and has been practicing
law since 2011 and therefore has approximately three (3) years
7
experience.2 Given the cases cited above, the Court finds that a
fee of $190.00 per hour for Mr. Callihan's services is reasonable.
A total of 19.3 hours appears to be a reasonable number of hours
billed by Mr. Callihan, and those hours are well-documented.
Defendants have not filed an opposition to challenge the reasonable
hourly rate or number of hours billed by Mr. Callihan. Therefore,
the Court finds that the lodestar figure for Mr. Callihan (19.30
hours at a rate of $190.00 per hour) is $3,667.00.
3. William Wright
VFS also seeks attorneys' fees for 13.30 hours billed by Mr.
Wright at the rate of $85.00 per hour. Mr. Wright was a summer
associate at the law firm of Adams and Reese who performed legal
research
in
the
matter.
This
Court
has
recently
found
that
attorneys' fees can be awarded for a reasonable number of hours
billed by a summer associate in the amount of $85.00. Cater v. Fid.
Nat. Ins. Co., No. 07-4619, 2009 WL 35342, at *2 (E.D. La. Jan. 6,
2009)(Roby, M.J.).3 Therefore, the Court finds that a fee of $85.00
per hour for Mr. Wright's services is reasonable. A total of 13.30
2
The
Court
retrieved
this
http://www.adamsandreese.com/l-cole-callihan/.
3
information
The Court stated:
[T]he Court finds that a rate of $85.00 per hour for the work of
Matthew Morgan, a summer law clerk with the law firm of Gieger,
Laborde & Laperouse, LLC, is reasonable. The Court further notes
that the Caters do not contest the reasonableness of the rate.
Cater, 2009 WL 35342, at *2.
8
from:
hours appears to be a reasonable number of hours billed by Mr.
Wright, and those hours are well-documented. Defendants have not
filed an opposition to challenge the reasonable hourly rate or
number of hours billed by Mr. Wright. Therefore, the Court finds
that the lodestar figure for Mr. Wright (13.30 hours at a rate of
$85.00 per hour) is $1,130.50.
4. Taylor Brett
VFS also seeks attorneys' fees for 6.00 hours billed by Mr.
Brett at the rate of $85.00 per hour. Mr. Brett was a summer
associate at the law firm of Adams and Reese who drafted the motion
for attorneys' fees and associated filings. The Court finds that a
fee of $85.00 per hour for Mr. Wright's services is reasonable. A
total of 6.00 hours appears to be a reasonable number of hours
billed
by
Mr.
Brett,
and
those
hours
are
well-documented.
Defendants have not filed an opposition to challenge the reasonable
hourly rate or number of hours billed by Mr. Brett. Therefore, the
Court finds that the lodestar figure for Mr. Brett (6.00 hours at
a rate of $85.00 per hour) is $510.00.
Adding each of the four lodestar calculations together, the
Court reaches a total of $17,097.50.
E. 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
9
adjustment or, in rare cases, an upward adjustment.
1. Time and Labor Required
The Court finds that the lodestar amounts calculated above
fairly account for the time and labor expended by each attorney in
this case, and so no upward or downward adjustment of the lodestar
calculation is warranted based on this factor.
2. Novelty and Difficulty of the Questions
The
Court
finds
that
the
issues
in
this
case
were
not
sufficiently novel or difficult to warrant an upward adjustment of
the lodestar calculation.
3. Skill Requisite to Perform the Legal Service Properly
The skill of each attorney is already accounted for in the
lodestar calculations.
4. Preclusion of Other Employment
There is no contention in this case that the attorneys were
precluded from taking other employment by virtue of the time and
resources required to be expended in this case, and the Court
therefore finds that this factor does not warrant an upward
adjustment of the lodestar amount.
5. Customary Fee
The customary fees charged by each attorney are already
accounted for in the lodestar calculations.
6. Fixed or Contingent Fee
The Court finds that this factor does not warrant an upward or
10
downward adjustment of the lodestar amount.
7. Time Limitations Imposed by Client or Circumstances
The Court finds that there were no particular time limitations
or constraints imposed on Counsel in this matter that would warrant
an upward or downward adjustment.
8. Amount Involved and Results Obtained
Counsel for VFS achieved the results they sought, and this
factor is already accounted for in the lodestar calculations.
9. Experience, Reputation, and Ability of Attorneys
The experience, reputation, and ability of each attorney is
already accounted for in the lodestar calculations.
10. Undesirability of the Case
There is no contention in this case that the this case was
undesirable, and the Court therefore finds that this factor does
not warrant an upward adjustment of the lodestar amount.
11. Nature and Length of Professional
Relationship with Client
There is no evidence that any attorney discounted his or her
fees because any of the Plaintiffs were longstanding clients, and
so this factor does not warrant an upward adjustment from the
lodestar amounts.
12. Awards in Similar Cases
This factor is neutral because the Court already considered
recent awards of attorneys' fees in this district and took those
11
awards into account when 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
– a total of $17,097.50 – is the correct award in this case.
F. Costs
The Court has discretion to award reasonable costs to a
prevailing party. See 28 U.S.C.A. § 1920 (West 2008). However, the
Court "may only award those costs articulated in [S]ection 1920
absent explicit statutory or contractual authorization to the
contrary." Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045
(5th Cir. 2010) (internal citations omitted). Plaintiffs'
counsel
have itemized costs that they believe are recoverable.
VFS has itemized a $400 filing fee, and filing fees are
generally recoverable under Section 1920. Marsala v. Mayo, No. 063846, 2014 WL 1276187, at *4 (E.D. La. Mar. 27, 2014) (Feldman,
J.). Therefore, the Court will award $400 in filing fees.
VFS has also itemized costs for computer assisted legal
research and long distance telephone calls, neither of which is
recoverable under Section 1920. See Speaks v. Kruse, No. 04-1952,
2006 WL 3388480, at *8 (E.D. La. Nov. 20, 2006) (Livaudais, J.);
see also Honestech, Inc. v. Sonic Solutions, 725 F. Supp. 2d 573,
582 (W.D. Tex. 2010), aff'd, 430 F. App'x 359 (5th Cir. 2011); see
also Marsala, 2014 WL 1276187, at *4; see also Auto Wax Co., Inc.
12
v. Mark V. Prods. Inc., No. 99-0982, 2002 WL 265091, at *10 (N.D.
Tex. Feb. 22, 2002). Therefore, the Court declines to award these
costs.
In addition, VFS has itemized costs for copy expenses, which
are
recoverable
under
Section
1920
"where
the
copies
are
necessarily obtained for use in the case." 28 U.S.C.A. § 1920 (West
2008). Copy costs should not be awarded where the copies were made
merely for the convenience of counsel. Monelus v. Tocodrian, Inc.,
609 F. Supp. 2d 1328, 1335 (S.D. Fla. 2009) (citing Fogleman v.
ARAMCO,
920
F.2d
278,
286
(5th
Cir.
1991)).
In
Zapata,
the
prevailing party sought costs for photocopies and provided the
Court with columns of numbers that were meant to represent the
costs of photocopies made; however, the party failed to provide the
Court with any information regarding the documents that were
copied, how the copies were used, or why the copies were necessary.
Zapata Gulf Marine Corp. v. Puerto Rico Mar. Shipping Auth., 133
F.R.D. 481, 484 (E.D. La. 1990) (Mentz, J.). The Court found that
the party's claim for copy costs was "essentially undocumented" and
therefore could not be allowed. Id. Here, VFS has provided the
Court with no information by which the Court could determine that
the copies made were necessarily obtained for use in the case and
were not merely made for the convenience of counsel. Therefore, the
Court declines to award copy costs.
Also, VFS has itemized private process server expenses in the
13
total amount of $171.50. In the Fifth Circuit, the costs of private
process servers are generally not recoverable under Section 1920
absent exceptional circumstances. Baisden v. I'm Ready Prods.,
Inc.,
793
F.
Supp.
2d
970,
974-75
(S.D.
Tex.
2011)
(citing
Marmillion v. Am. Int'l Ins. Co., 381 Fed. App'x 421, 431 (5th Cir.
2010)).
Even
in
such
exceptional
circumstances,
a
party
can
generally only recover costs for private process servers to the
extent that those costs do not exceed the cost that the U.S.
Marshal would charge to effect service. Id. at 975. Where a
prevailing party fails to show exceptional circumstances and fails
to provide the court with evidence of the amount that the U.S.
Marshal would charge for service, an award of private process
server fees is not warranted. See id. Because VFS has failed to
show
exceptional
circumstances
or
to
provide
the
Court
with
evidence of the amount that the U.S. Marshal would charge in this
case, the Court declines to award private process server fees in
this case.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion for Attorneys'
Fees and Costs filed by Plaintiff, VFS US, L.L.C. (hereinafter
"VFS") (Rec. Doc. 27) is GRANTED.
IT IS FURTHER ORDERED that Defendants shall pay to Plaintiff,
VFS US, L.L.C., $17,097.50 in attorneys' fees and $400.00 in costs.
14
New Orleans, Louisiana this 8th day of August, 2014.
________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
15
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