Mr. Mudbug, Inc. v. Bloomin' Brands, Inc.

Filing 79

ORDER: ORDERED that 76 Defendant's Motion to Fix Attorney's Fees is GRANTED. Defendant Ford Motor Company is awarded reasonable attorneys fees and expensesin the amount of $3,686.40. FURTHER ORDERED that Plaintiff's counsel shall satisfy their obligation to Defendant no later than twenty-one (21) days from the issuance of this Order. Signed by Magistrate Judge Karen Wells Roby on 2/23/17. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MR. MUDBUG, INC. d/b/a
MMI CULINARY SERVICES

CIVIL ACTION

VERSUS

NO:

BLOOMIN’ BRANDS, INC.

SECTION: “H” (4)

15-5265

ORDER

Before the Court is a Motion to Fix Attorneys’ Fees (R. Doc. 76) filed by Defendant

Bloomin’ Brands, Inc. (“Defendant”) seeking an order from the Court to fix the attorneys’ fees in
the amount of $6,441.00. The motion is opposed. R. Doc. 78. The motion was submitted on
February 15, 2017.
I.

Background
On February 1, 2017, the Court granted the Defendant’s Motion to Compel Site Inspections

finding in part that the Defendant was entitled to attorneys’ fees under Federal Rule of Civil
Procedure 37(a)(5). R. Doc. 75. As part of that order, the Court ordered that the Defendant file a
motion to fix attorney’s fees and costs. Id. at p. 8. The Defendant thereafter filed the subject motion
on February 7, 2017 requesting $6,441.00 in attorneys’ fees.
Mr. Mudbug, Inc. (“Plaintiff”) has opposed the Defendant’s fee request, arguing that the
Defendant is not entitled to fees under Rule 37(a)(5)(A). R. Doc. 78. Upon review, these arguments
are largely a rehashing of the arguments made to the Court during oral argument for the underlying
motion to compel site inspection, namely that the Defendant did not in good faith attempt to confer
with the Plaintiff. The Court stands by its determination that the Defendant complied with Rule
37’s conferral requirement and is entitled to fees under Rule 37. R Doc. 75, p. 6-8. As such, the
Court will turn to the evaluation of Defendant’s fee request.

II.

Standard of Review
After the Court has determined that an imposition of costs is appropriate, Federal Rule of

Civil Procedure 30(g) “contemplates the recovery of expenses associated with actual attendance
at a cancelled deposition, such as attorney's fees and those associated with travel, such as hotel,
airfare, and car rental expenses.” Ewing v. Flora, No. 14-cv-2925, 2015 WL 12564224, at *2 (S.D.
Cal. Dec. 28, 2015) (citing Albee v. Continental Tire North America, Inc., 780 F. Supp.2d 1005,
1013 (E.D. Cal. 2011)).
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

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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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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)).
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 Defendant has stated that the hourly rate of its attorneys are as follows: $300 for
Christopher Ralston; $240 for Jeremy Grabill; $210 for Arthur Kraatz; and $190 for Lillian
Grappe. R. Doc. 76-2, p. 2. These rates appear reasonable given that Mr. Ralston has roughly
seventeen (17) years of experience, Mr. Grabill has roughly ten (10) years of experience; Mr.
Kraatz has roughly four (4) years of experience; and Ms. Grappe is a first year associate. Id. 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

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hourly rates of $275 for seven years of experience); see also see also Calix v. Marine, LLC, No.
14-2430, 2016 WL 4194119, at *6 (E.D. La. July 14, 2016) report and recommendation adopted,
2016 WL 4180977 (approving $180 for first year associate); Alexander v. Ace Am. Ins. Co., No.
14-310, 2014 WL 4163756, at *2 (E.D. La. Aug. 20, 2014) (awarding $200 per hour for attorney
with four years of experience). Moreover, the Defendants have provided an affidavit attesting to
the reasonableness of the rates and their equivalence to prevailing market rates. R. Doc. 76-2.
Moreover, the Plaintiff has not opposed the rate. As such, the Court finds these rates to be
reasonable.
IV.

Hours Reasonably Spent on Litigation
Next, the court must determine what hours of time were reasonably 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.3d 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.’”).
Alternatively, this Court can conduct a line-by-line analysis of the time report. See Green v.

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Administrators of the Tulane Educational Fund, 284 F.3d 642, 662 (5th Cir.2002) overruled on
other grounds by Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).
Here, the Defendant has provided a billing statement showing that Mr. Ralston billed for
7.4 hours, Mr. Grabill billed for 4.5 hours, Mr. Kraatz billed for 6.0 hours, and Ms. Grappe billed
for 9.9 hours. While the billing statement reflects that the attorneys exercised some billing
judgment, the Court has the following concerns about the billing statement provided.
First, the Court notes a few block billed hours. Block Billing is “time-keeping method by
which an attorney lumps together the total daily time spent working on a case, rather than itemizing
the time expended on specific tasks.” Canon U.S.A., Inc. v. S.A.M., Inc., No. 07–1201, 2009 WL
35334, at *4 (E.D. La. Jan. 6, 2009) (citing Robinson v. City of Edmond, 160 F.3d 1275, 1283, n.
9 (10th Cir.1998)). “This practice makes it impossible for the Court to determine the
reasonableness of the hours spent on each task.” Id. When presented with such block billing before,
this Court has found a reduction in the amount of hours awarded to be appropriate. See High-Tec
Elc., Inc. of Delaware v. T&B Constr. & Elec. Serv., Inc., 2016 WL 3952089 at *3 (E.D. La. July,
22 2016) (Roby, M. J.) (reduction of 20%); Harris v. Allstate Ins. Co., 2009 WL 86673, at *3 (E.D.
La. Jan. 12, 2009) (Roby, M. J.) (reduction of 25% ); Canon U.S.A., Inc., 2009 WL 35334, at *5
(Roby, M. J.) (reduction of 25%); Creecy v. Metro. Prop. & Cas. Ins. Co., 548 F.Supp.2d 279
(E.D. La. 2008) (Roby, M. J.).  As such, the Court will reduce the amount of hours block-billed by
Mr. Ralston and Mr. Grabill by 20%. From the Court’s review, Mr. Grabill block billed for 2.3

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hours.2 Mr. Ralston has block billed for 3.1 hours.3 As such, the Court will reduce Mr. Grabill’s
reasonable hours by .46 hours and Mr. Ralston’s hours by .62 hours.
Second, while the Plaintiffs are allowed to utilize as many attorneys as they wish to handle
matters in litigation, the Plaintiffs are not necessarily entitled to costs of paying for each attorney
when such work may be duplicative, redundant, or excessive. See Jolie Design & Décor, Inc. v.
Gogh, 2016 WL 4708210 (E.D. La. Aug. 11, 2016) (citing Riley v. City of Jackson, 99 F.3d 757,
760 (5th Cir. 1996)) (“[W]hile a party is free to employ multiple attorneys, that party's opponent
is not required to pay for duplicative work by those attorneys – it remains the burden of the party
seeking fees to demonstrate the reasonableness of all the fees it seeks.”); See also, Walker, 99 F.3d
at 768) (quoting Johnson, 488 F.2d at 717) (“If more than one attorney is involved, the possibility
of duplication of effort along with the proper utilization of time should be scrutinized.”). Here, the
statements provided to the Court demonstrate that multiple attorneys spent multiple hours on the
motion to compel as well as the reply to Defendants’ opposition. “While the defendants are free to
utilize the services of however many attorneys they desire, and recognizing that some degree of
multiple attorney involvement is prudent to provide ‘back up’ if primary counsel becomes
indisposed and that a certain amount of oversight over the associate's work activities is necessary,
the Court questions whether such a combined effort was required” given that the issue presented
was not especially novel or complex. Marsala v. Mayo, No. 06-3846, 2014 WL 1276187, at *3

2

For the January 13, 2017 entry, Mr. Grabill billed for: “Made further revisions to updated draft of motion
to compel site inspection and finalized exhibits in support of the motion; follow-up communications with A. Kraatz
re: motion to compel site inspection.”
3

For a January 15, 2017 entry, Mr. Ralston billed for: “Edit and revise motion to compel site inspection;
memorandum to Mr. Grabill re filing, timing and steps related to same.” For a February 1, 2017 entry, he billed for:
“Prepare for hearing on motion to compel site inspection and gathering exhibits; travel to district court for hearing;
attend hearing on motion to compel; traveled from the court to the office; memo to and telephone call with client re:
hearing.”

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(E.D. La. Mar. 27, 2014) (Feldman, J.). As such, the Court will further reduce each attorney’s
hours by an additional forty (40) percent. See id. (reducing hours by one-third where multiple
attorneys involved); Flour Corp. v. Citadel Equity Fund Ltd., 2011 WL 3820704, at *6 (N.D. Tex.
Aug. 26, 2011) (reducing hours by 60% in part for use of multiple attorneys).
As such, the Court finds that Mr. Ralston reasonably expended 4.07 hours, Mr. Grabill
reasonably expended 2.42 hours, Mr. Kraatz reasonably expended 3.6 hours, and Ms. Grappe
reasonably expended 5.94 hours.4
V.

Lodestar Calculation
Given the foregoing reasonable rates and hours, the Court calculates the following Lodestar

amount for each attorney as:

Attorney
Christopher Ralston
Jeremy Grabill
Arthur Kraatz
Lillian Grappe

Reasonable Hourly
Rate
$300.00
$240.00
$210.00
$190.00

Reasonable Hours
Expended
4.07
2.42
3.60
5.94
Total:

Lodestar
Amount
$1,221.00
$580.80
$756.00
$1,128.60
$3,686.40

The total Lodestar amount then is $3,686.40.
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

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Mr. Ralston’s stated 7.4 hours were first reduced by .62 hours for a total of 6.78 hours. The 6.78 hours were
further reduced by forty percent for a total of 4.07 hours. Mr. Grabill’s stated 4.5 hours were first reduced by .46 hours
for a total of 4.04 hours. The 4.04 hours was further reduced by forty percent for a total of 2.42 hours. Mr. Kraatz’s
stated 6.0 hours was reduced by forty percent for a total of 3.6 hours. Ms. Grappe’s stated 9.9 hours were reduced by
forty percent for a total of 5.94 hours.

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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.
VII.

Conclusion
Accordingly,
IT IS ORDERED that Defendant’s Motion to Fix Attorney’s Fees (R. Doc. 76) is

GRANTED. Defendant Ford Motor Company is awarded reasonable attorney’s fees and expenses
in the amount of $3,686.40.
IT IS FURTHER ORDERED that Plaintiff’s counsel shall satisfy their obligation to
Defendant no later than twenty-one (21) days from the issuance of this Order.
New Orleans, Louisiana, this 23rd day of February 2017

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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