Hobson et al v. ABE Development LLC et al
Filing
54
ORDER & REASONS: ORDERED that 46 Motion for Attorney Fees is GRANTED. Attorneys fees are fixed in the amount of $4,110.00. IT IS FURTHER ORDERED that the Defendants shall satisfy their obligation to Plaintiffs no later than twenty-one (21) days from the issuance of this Order. Signed by Magistrate Judge Karen Wells Roby. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RACHEL HOBSON, ET AL
CIVIL ACTION
VERSUS
NO: 15-1480
ABE DEVELOPMENT LLC, ET AL
SECTION: “B” (4)
ORDER AND REASONS
Before the Court is a Motion to Fix Attorney Fees (R. Doc. 46) filed by Plaintiffs Rachel
Hobson and Robert Walker seeking an order from the Court to fix the attorneys’ fees and costs in
the amount of $6,067.50. The motion is opposed. R. Doc. 49.
I.
Background
The instant motion for attorneys’ fees comes in connection with a suit involving alleged
housing discrimination. Plaintiffs claim that ABE Development and its employees Yousef
Haimour and Abraham Quraan (collectively, “Defendants”) discriminated against them. Hobson,
who is a white female, and Walker, who is an African-American male, claim that the
discrimination stemmed from Defendants not approving of their interracial relationship.
On July 5, 2016, the Plaintiffs filed a Second Motion to Compel Discovery Responses from
Defendants Abraham “Mike” Quraan and Yousef Haimour. R. Doc. 17. As part of that motion to
compel, Plaintiffs also sought attorneys’ fees and costs related to the motion. Id. After hearing
arguments on the motion to compel, the Court denied the motion in part as moot because the
discovery responses at issue had been produced. R. Doc. 38, p. 6. Moreover, under Federal Rule
of Civil Procedure 37, the Court granted the motion in part as to Plaintiffs’ request for attorneys’
fees and costs. On August 12, 2016, the Plaintiffs filed the instant motion to fix attorneys’ fees.
Providing an accounting of hours expended as well as affidavits attesting to the reasonableness of
the rates charged, the Plaintiffs requested that the Court award reasonable attorneys’ fees and
expenses in the amount of $6,067.50. R. Doc. 46. The Defendants opposed the motion, arguing
that a number of hours were either duplicative or not connected to the instant motion to compel.
II.
Standard of Review
The Supreme Court has specified that the “lodestar” calculation is the “most useful starting
point” for determining the award for attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). Lodestar is computed by “… the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Id. The lodestar calculation, “...provides an objective basis
on which to make an initial estimate of the value of a lawyer’s services.” Id. Once the lodestar has
been determined, the district court must consider the weight and applicability of the twelve factors
delineated in Johnson. See Watkins v. Forcide, 7 F.3d 453, 457 (5th Cir. 1993). 1 Subsequently, if
the Johnson factors warrant an adjustment, the court may make modifications upward or
downward to the lodestar. Id. However, the lodestar is presumed to be a reasonable calculation
and should be modified only in exceptional circumstances. Id. (citing City of Burlington v. Dague,
505 U.S. 557, 562 (1992)).
The party seeking attorney’s fees bears the burden of establishing the reasonableness of the
fees by submitting “adequate documentation of the hours reasonably expended”, and
demonstrating the use of billing judgement. Creecy v. Metro. Prop. & Cas. Ins. Co., 548 F. Supp.
2d 279, 286 (E.D. La. 2008) (citing Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th
Cir.1997)).
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The twelve Johnson factors are (1) the time and labor involved; (2) the novelty and difficulty of the
questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the
attorney due to this case; (5) the customary fee; (6) whether fee is fixed or contingent; (7) time limitations; (8) the
amount involved and results obtained; (9) the experience, reputation and ability of counsel; (10) the “undesirability”
of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974).
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III.
Reasonable Hourly Rate
The “appropriate hourly rate. . .is the market rate in the community for this work.” Black
v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing Smith & Fuller, P.A. v. Cooper Tire
& Rubber Co., 685 F.3d 486, 490 (5th Cir.2012)). Moreover, the rate must be calculated “at the
‘prevailing market rates in the relevant community for similar services by attorneys of reasonably
comparable skills, experience, and reputation.’” Int’l Transp. Workers Fed’n v. Mi-Das Line, SA,
13–00454, 2013 WL 5329873, at *3 (E.D. La. Sept. 20, 2013) (quoting Blum v. Stenson, 465 U.S.
886, 895 (1984)). Satisfactory evidence of the reasonableness of the rate necessarily includes an
affidavit of the attorney performing the work and information of rates actually billed and paid in
similar lawsuits. Blum, 465 U.S. at 896 n.11. Finally, if the hourly rate is not opposed, then it is
prima facie reasonable. Powell v. C.I.R., 891 F.2d 1167, 1173 (5th Cir. 1990) (quoting Islamic Ctr.
of Mississippi v. City of Starkville, 876 F.2d 468, 469 (5th Cir. 1989)).
The Plaintiffs have stated that the hourly rates for their attorneys are: $250 for Elizabeth
Owen; $250 for John Adcock; and $275 for Peter Theis. R. Doc. 46-1, p. 7. These rates are
reasonable given that each of the attorneys have roughly ten years of experience. See, e.g., EnVen
Energy Ventures, LLC v. Black Elk Energy Offshore Operations, LLC, No. 14-424, 2015 WL
3505099, at *2 (E.D. La. June 2, 2015) (awarding $300 for an attorney with 10 years of experience
and $275 for an attorney with 7 years of experience as well as collecting cases showing hourly
rates of $275 for seven years of experience). Moreover, the Plaintiffs have provided affidavits from
other attorneys attesting to the reasonableness of the rates and their equivalence to prevailing
market rates. R. Doc. 46-7, 46-8, 46-9. As such, the Court finds that the hourly rates of $250 for
Elizabeth Owen and John Adcock and $275 for Peter Theis are reasonable.
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IV.
Hours Reasonably Spent on Litigation
Next, the court must determine the reasonableness of the hours expended on the litigation.
The party seeking the fee bears the burden of documenting and supporting the reasonableness of
all time expenditures that compensation is sought. Hensley, 461 U.S. at 437. The “[c]ounsel for
the prevailing party should make a good faith effort to exclude from fee request hours that are
excessive, redundant, and otherwise unnecessary…” Id. at 434. Hours that are not properly billed
to one’s client also are not properly billed to one’s adversary. Id. The Supreme Court calls on fee
applicants to make request that demonstrate “billing judgement”. Id. The remedy for failing to
exercise “billing judgment” is to exclude hours that were not reasonably expended. See Hensley,
461 U.S. at 434; Walker v. City of Mesquite, 313 F.2d 246, 251 (5th Cir. 2002) (quoting Walker v.
HUD, 99 F.3d 761, 770 (5th Cir.1996)) (“If there is no evidence of billing judgment, however,
then the proper remedy is not a denial of fees, but a reduction of ‘the hours awarded by a percentage
intended to substitute for the exercise of billing judgment.’”).
When the motion for attorneys’ fees is in connection to a Rule 37(a) motion to compel, the
reasonable hours are further limited to only those hours directly connected to the motion to compel.
Stagner v. W. Kentucky Navigation, Inc., No. 02-1418, 2004 U.S. Dist. LEXIS 1936 (E.D. La. Feb.
10, 2004) (“However, Rule 37(a) does not contemplate costs incurred by the party in the normal
course of litigation, absent a direct relation to the motion to compel.”).
Here, the Plaintiffs have provided billing statements showing that: Elizabeth Owen worked
11.1 hours but only billed 9.5 hours; John Adcock worked for 27.63 hours but only billed 14.68
hours; and Peter Theis worked for 7.8 hours but only billed 1.9 hours. R. Doc. 46-4, p. 7; R. Doc.
46-5, p. 8; R. Doc. 46-6, p. 5.
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The Defendants object to hours billed by John Adcock for consulting with Defendants’
counsel about the underlying discovery as not directly related to the motion to compel. R. Doc. 49,
p. 5. As to the hours billed addressing the underlying discovery and drafting the instant motion to
fix attorneys’ fees, the Court finds that these are hours not properly expended for a motion to
compel. See Rock the Ocean Productions, LLC v. H1 Events LLC, No. 15-5189, 2016 WL
4272931, at *3 (E.D. La. Aug. 15, 2016) (quoting Stagner, 2004 U.S. Dist. LEXIS 1936) (“‘Rule
37(a) only provides for the expenses in bringing the motion, not for expenses relating to the
underlying discovery dispute.’”). As such, the .83 hours expended by John Adcock consulting with
Defendant’s counsel will be deducted and the 6 hours expended by John Adcock in connection to
the instant motion to fix attorney’s fees will be deducted. R. Doc. 46-5, p. 7-8.
The Defendants also object to the billing of hours spent discussing the case interoffice and
between counsel. R. Doc. 49, p. 5. However, the Court notes that the Plaintiffs’ attorneys have
exercised reasonable billing judgment and excluded most of those entries from the total billed
hours.
The Court will also reduce John Adcock’s hours by one hour for a duplicative entry on July
18, 2016 for “drafting reply brief on the plane from New Orleans to North Carolina.” R. Doc. 465, p. 7.
Finally, Defendant also argues that a number of hours are excessive for the instant motion.
R. Doc. 49, p. 6. After reviewing the billing statements for each attorney, the Court finds that the
Plaintiffs’ attorneys have billed roughly a total of 6.1 hours on the motion to compel (3.4 hours by
Elizabeth Owen; 2.4 hours by John Adcock; and .3 hours by Peter Theis), 11.45 hours on the reply
(6.1 hours by Elizabeth Owen; 4.45 hours by John Adcock; and .9 hours by Peter Theis), and .7
hours preparing for the hearing. Here, the Court agrees that the number of hours expended are
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excessive as to the initial motion to compel. As this Court has previously explained when faced
with a similar motion:
The. . .motion to compel was not a motion to test the sufficiency of the. . .discovery
responses. The Defendant propounded discovery and the Plaintiff did not answer.
The motion was not difficult nor did it involve novel or unique issues of law or fact.
Rather, it was simply a motion to compel responses that were required under the
Rules.
Drs. Le & Mui, Family Medicine v. St. Paul Travlers, No. No. 06-10015, 2007 WL 4547491, at
*5 (E.D. La. Dec. 19, 2007). For the initial motion to compel, the Court finds that 6.1 hours on a
simple motion to compel is excessive. In particular, the hours billed by Elizabeth Owen are
excessive given that John Adcock apparently conducted the majority of drafting on the initial
motion. R. Doc. 46-6, p.3. Additionally, John Adcock’s statement suggests that Elizabeth Owen
edited the motion to compel. R. Doc. 46-5, p. 7. As such, the Court will reduce the hours spent by
Elizabeth Owen on the initial motion to compel by two hours. However, given the evidence of
legal research and effort put into the motion, the Court finds that the amount of time billed by John
Adcock to be reasonable.
Note, the Court does not find that the hours spent on the reply to Defendants’ opposition
to be excessive. The Plaintiffs’ response to the Defendants’ opposition evinces a fair amount of
legal research as well as incorporates time reviewing and researching the Defendants’ opposition. 2
As such, the Court finds that the reasonable hours expended by the Plaintiffs’ attorneys
are: 7.5 hours, 6.85 hours, and 1.9 hours for Elizabeth Owen, John Adcock, and Peter Theis,
respectively for a total of 16.25 hours.
2
Defendants also allege that the entirety of the time expended on the Plaintiffs’ response to Defendants’
opposition should be discounted because it dealt mostly with the imposition of costs and waiver of objections to
discovery rather than compelling discovery. R. Doc. 49, p. 6. However, these issues were in “direct relation to the
motion to compel” and therefore are properly counted. Stagner, 2004 U.S. Dist. LEXIS 1936.
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V.
Lodestar Calculation
Given the foregoing reasonable rates and hours, the Court calculates the following Lodestar
amount for each firm as:
Attorney
Elizabeth Owen
John Adcock
Peter Theis
Total
Reasonable Hourly
Rate
$250.00
$250.00
$275.00
Reasonable Hours
Expended
7.50
6.85
1.90
16.25
Lodestar
Amount
$1,875.00
$1712.50
$522.50
$4,110.00
The total Lodestar amount then is $4,110.00.
VI.
Adjusting the Lodestar
After the lodestar is determined, the Court may then adjust the lodestar upward or
downward depending on the twelve factors set forth in Johnson, 488 F.2d at 717-19. However,
“the Supreme Court has limited greatly the use of the second, third, eighth, and ninth factors for
enhancement purposes, and accordingly, the Fifth Circuit has held that ‘[e]nhancements based
upon these factors are only appropriate in rare cases supported by specific evidence in the record
and detailed findings by the courts.’” Wells Fargo Equip. Fin., Inc. v. Beaver Const., LLC, No.
CIV. 6:10-0386, 2011 WL 5525999, at *3 (W.D. La. Oct. 18, 2011) (citing Walker v. U.S.
Department of Housing and Urban Development, 99 F.3d 761, 771–72 (5th Cir. 1996)). Finally,
to the extent that any Johnson factors are subsumed in the lodestar, they should not be reconsidered
when determining whether an adjustment to the lodestar is required. Migis v. Pearle Vision, Inc.,
135 F.3d 1041, 1047 (5th Cir. 1998). The Court has carefully evaluated the Johnson factors and
finds no adjustment of the lodestar is warranted.
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VII.
Conclusion
Accordingly,
IT IS ORDERED that Plaintiffs’ Motion to Fix Attorneys’ Fees (R. Doc. 46) is
GRANTED. Attorney’s fees are fixed in the amount of $4,110.00.
IT IS FURTHER ORDERED that the Defendants shall satisfy their obligation to
Plaintiffs no later than twenty-one (21) days from the issuance of this Order.
New Orleans, Louisiana, this 2nd day of September 2016.
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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