Allen et al v. Lowe et al
Filing
46
ORDER & REASONS ADOPTING & MODIFYING REPORT AND RECOMMENDATIONS 42 . Signed by Judge Jane Triche Milazzo on 3/31/2016.(mmm)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
L. WALKER ALLEN, II
CIVIL ACTION
VERSUS
NO: 14-204
ROBERT C. LOWE, ET AL
SECTION: “H”(4)
ORDER AND REASONS
Before the Court is a Report and Recommendations issued by the
Magistrate Judge assigned to this case (Doc. 42) regarding Defendants’ Motion
for Attorney Fees (Doc. 24).
For the following reasons, the Report and
Recommendations is ADOPTED IN PART except as modified herein.
BACKGROUND
Plaintiff filed this suit seeking damages arising out of several events that
occurred during the course of his divorce proceeding in Louisiana state court.
Defendants Robert Lowe, Jeffrey Hoffman, and the law firm of Lowe, Stein,
Hoffman, Allweiss & Hauver, LLP, represented Plaintiff's wife, Susan Martin.
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While the divorce action was pending, Plaintiff filed a separate suit in
Louisiana state court seeking the partition of a vehicle that Plaintiff alleged
was co-owned by him and Ms. Martin. During the partition proceedings, the
judge granted a motion for contempt and ordered Plaintiff to surrender the
title that day and to pay attorney's fees to Defendants and a $1,000 sanction.
Plaintiff complied with the contempt order promptly, but sought supervisory
review of the contempt order through the Louisiana courts and later argued
that the district court lacked subject matter jurisdiction over the partition
action.
Both arguments were ultimately unsuccessful.1
The contempt
judgment was affirmed on direct appeal in December of 2014.2
On December 19, 2013, Plaintiff filed the instant suit in Louisiana state
court alleging that Defendants' conduct in the divorce and partition
proceedings violated 42 U.S.C. § 1983 and LUTPA. Defendants removed the
suit to this court and filed a motion to dismiss arguing that Plaintiff failed to
state a claim for a violation of either statute. Defendants also requested
reasonable attorney's fees associated with their defense of the section 1983 and
LUTPA claims pursuant to 42 U.S.C. § 1988 and La. Rev. Stat. § 51:1409,
respectively.3 Despite the fact that the motion to dismiss remained pending
for nearly seven months, Plaintiff never filed an opposition. The Court granted
Allen v. Allen, 132 So. 3d 380 (La. 2013) (denying supervisory review of the
contempt order); Allen v. Allen, – So.3d. –, 2014 WL 1800077 (La. May 7, 2014) (finding
that the state judge had subject matter jurisdiction over the partition action).
2 Allen v. Allen, 2013-0996, 2014 WL 7368574 (La. App. 1 Cir. Dec. 29, 2014).
3See 42 U.S.C. § 1988 (permitting recovery of attorney's fees in § 1983 cases); La.
Rev. Stat. § 51:1409(A) (permitting recovery of attorney's fees in LUTPA cases).
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the motion to dismiss but deferred ruling on the request for attorney's fees,
offering Plaintiff one last opportunity to be heard. On October 27, 2014, eight
months after the motion to dismiss was filed, Plaintiff filed a brief arguing that
the action was meritorious and that Defendants were not entitled to attorney's
fees.
The Court rejected Plaintiff’s arguments and awarded Defendants
reasonable attorneys’ fees incurred in the defense of Plaintiff’s claims. As
ordered by the Court Defendants filed a Motion for Attorney’s Fees before the
Magistrate Judge on March 30, 2015. The Magistrate issued a Report and
Recommendations to which both parties have filed objections.
LEGAL STANDARD
I. Review of the Magistrate’s Report and Recommendations
28 U.S.C. § 636(b)(1)(B) permits the district court to refer dispositive
matters to a magistrate judge, who then issues a report and recommendations.
28 U.S.C. § 636(b)(1)(C). The district court reviews de novo those portions of
the report and recommendations to which objection is made.4
The court
reviews all other portions for clear error.5
II. Determination of Attorneys’ Fees Award
The Supreme Court has indicated that the “lodestar” calculation is the
“most useful starting point” for determining an award of attorneys’ fees.6 The
lodestar equals “the number of hours reasonably expended on the litigation
28 U.S.C. § 636(b)(1).
See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
6 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
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multiplied by a reasonable hourly rate.”7 The lodestar is presumed to yield a
reasonable fee.8
LAW AND ANALYSIS
The Court referred this matter to the Magistrate Judge for a Report and
Recommendation on an appropriate attorney’s fees award. Defendants seek to
recover fees for four attorneys that worked on the matter: Richard Stanley,
Thomas Owen, Cassandra Hewlings, and Eva Conner. These attorneys’ hourly
rates are, respectively, $350 per hour, $250 per hour, $150 per hour, and $130
per hour. At the outset, the Court notes that neither party has objected to the
Magistrate’s
determination
that
these
hourly
rates
are
reasonable.
Accordingly, the Court adopts the Magistrate’s findings that the hourly rates
are reasonable and may be used in the lodestar calculation.
Defendants have made three specific objections to the Report and
Recommendation.
First, they aver that the Magistrate Judge improperly
reduced the total fee request by 25 percent because the time entries in defense
counsels’ invoices contained “block billed” entries. Second, they object to the
Magistrate’s exclusion of 8.6 hours of time because the entries contained time
spent monitoring other litigation potentially relevant to defending the claims
at issue in the matter before this Court. Third, defendants object to the
Magistrate’s 50 percent reduction of fees incurred in responding to Plaintiff’s
Opposition to this Motion for Attorney’s Fees. Plaintiff has likewise filed an
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8
Id.
La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).
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Objection to the Report and Recommendation asking the Court to reconsider
its prior finding that this suit was objectively groundless and brought in bad
faith. The Court will address each of these objections in turn.
I. Defendants’ Objection to Block Billing Reduction
Defendants first object to the Magistrate’s 25 percent reduction of the
overall attorneys’ fee award due to systemic block billing. Defense counsels’
billing statements are “block billed,” a method by which attorneys bill several
hours of work for multiple tasks without itemizing the amount of time spent
on each task. This method “makes it difficult for the court to determine
whether the attorney spent excessive time on an individual task or duplicated
the efforts of co-counsel.”9 Because defense counsel billed in this manner, the
Court is unable to determine the reasonableness of time billed for individual
tasks.10 The Magistrate correctly determined that the most common method
used to compensate for block billing is a flat reduction of a specific percentage
from the fee award.11
Accordingly, the Court finds that a reduction of
Defendants fee award by 25 percent is warranted because of systemic block
billing. This objection is overruled.
Piazza's Seafood World, LLC v. Odomm, No.04-690, 2010 WL 2290696, at *2 (E.D.
La. June 3, 2010) (citing Cristancho v. National Broadcasting Co., 117 F.R.D. 609, 610
(N.D. Ill. 1987)).
10 See id.
11 See id. See also Bollinger Marine Fabricators, LLC v. Marine Travelift, Inc., No.
14-1743, 2015 WL 4937839, at *12 (E.D. La. Aug. 18, 2015); Canon U.S.A., Inc. v. S.A.M.,
Inc., No. 07–1201, 2009 WL 35334, at *4 (E.D. La. Jan. 6, 2009).
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II. Defendant’s Objection to the Exclusion of Time Spent Monitoring
State Court Litigation
Defendants next object to the exclusion of 8.6 hours of Mr. Owen’s time
spent monitoring related state court litigation. Defendants billed for time
monitoring two state-court matters related to this litigation: the underlying
divorce and partition proceedings in which Defendants represented Mr. Allen’s
ex-wife and the suit brought by Mr. Allen against the entire 22nd Judicial
District Court under Section 1983.
They contend that this time was
appropriately billed because counsel needed to monitor those proceedings to
determine whether events in those matters could positively or negative impact
the Defendants’ defense in this case. This Court agrees in part, inasmuch as
it did direct the parties to be prepared to discuss the impact of the Louisiana
First Circuit Court Appeals’ ruling upholding the validity of the Contempt
Order that is the subject of this litigation. The Court finds, however, that 8.6
hours is an excessive amount of time spent preparing to discuss this issue.
Accordingly, the Court finds that the 8.6 hours billed should be reduced by 50
percent to 4.3 hours.12 Accounting for Mr. Owen’s billing rate of $250 per hour
and the Court’s 25 percent overall reduction for block billing, this ruling
increases the overall fee award by $806.25. This objection is sustained in part.
III. Defendant’s Objection to the 50 Percent Reduction for Fees
Incurred in Responding to Plaintiff’s Opposition to this Motion
The Court notes that billing entries include monitoring state court litigation
beyond the pending appeals court case.
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Defendants’ final objection is to the Magistrate’s 50 percent reduction of
fees incurred in responding to Plaintiff’s Opposition to this Motion for
Attorneys Fees.
The Magistrate recommended this reduction because
Defendants did not submit billing documentation along with this request for
additional fees. When litigants submit fee requests that are vague or have
inadequate documentation, they run the risk that the fee requests will be
reduced or denied in their entirety.13 Accordingly, the Court finds that a 50
percent reduction of fees requested in responding to Plaintiff’s opposition is
appropriate considering Defendants’ insufficient documentation.
This
objection is overruled.
IV. Plaintiff’s Objection
Plaintiff’s objection represents a further attempt to relitigate the issue
of whether Defendants are entitled to recover fees. Plaintiff “suggests that, in
the interests of justice, this Court should reconsider its prior evaluation that
his suit against these Defendants was ‘objectively groundless and brought in
bad faith.’”
Notably, Plaintiff does not object to any of the Magistrate’s
recommendations. The Court declines Plaintiff’s invitation revisit its prior
determination that Defendants are entitled to collect attorneys’ fees. That
matter was the subject of an earlier Motion, which the Court granted after
Plaintiff was given a full and fair opportunity to submit argument in opposition
to an attorneys’ fees award. Plaintiff may not use an objection to this Report
13
See La. Power Light, 50 F.3d at 237.
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and Recommendations to dredge up the issue anew. The objection is therefore
denied.
CONCLUSION
For the foregoing reasons, the Report and Recommendation of the
Magistrate Judge is ADOPTED AS MODIFIED HEREIN.
Defendants’
attorneys’ fee award is increased by $806.25 to $21,843.50 to account for 1.72
hours spent monitoring related state court litigation. The Court also adopts
the magistrate’s finding with regard to an $896.10 award of costs, bringing the
total award to $22,739.60.
New Orleans, Louisiana this 31st day of March, 2016.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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