Castellanos v. Saints & Santos Construction, LLC et al
ORDER AND REASONS: IT IS ORDERED that the 186 motion for attorneys' fees is GRANTED IN PART and DENIED IN PART, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 03/25/2019. (am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSE CASTELLANOS, ET. AL.
SAINTS & SANTOS CONSTRUCTION,
LLC, ET. AL.
ORDER & REASONS
Before the Court are plaintiffs’ Motion for Attorneys’ Fees
Plaintiffs’ Reply (Rec. Doc. 192), plaintiffs’ Bill of Costs (Rec.
Doc. 190), defendants’ Opposition to plaintiffs’ Bill of Costs (Rec.
Doc. 193), and Clerk of Court Reasons for Taxation of Costs (Rec.
Doc. 196). For the reasons below,
IT IS ORDERED that plaintiffs’ motion for attorneys’ fees and
bill of costs are GRANTED IN PART and DENIED IN PART.
FACTS AND PROCEDURAL HISTORY
This is a collective action to recover unpaid overtime wages.
See Rec. Doc. 1 at 1. Specifically, plaintiff Jose Castellanos
situated to recover unpaid overtime wages from Defendants Saints &
Santos Construction, LLC and Wiliomar Oliveira. 1 See id. Plaintiffs
also sought to recover interest, liquidated damages, and attorneys’
fees and costs. See id.
correcting a deficient filing, plaintiffs sought and were granted
leave to amend their Complaint to add another company as a defendant.
See Rec. Docs. 9, 11, 12, 13, 14.
Plaintiffs later amended the
Complaint a second time to add another company as a defendant. See
Rec. Docs. 42, 44.
It is important to note that several named
defendants and claims of several plaintiffs were dismissed from the
case. See Rec. Docs. 24, 90, 93, 128, 168, 169, 181.
In May 2017, after hearing oral argument, plaintiffs’ motion
for class certification was granted. See Rec. Doc. 129. The parties
were instructed to confer and submit a joint proposed class notice.
After coming to an agreement and with court approval, the class
notice was sent out and an additional 16 former employees returned
their consent form bringing the total number of plaintiffs to 27.
As noted earlier, several plaintiffs were later dismissed from the
On January 10, 2018, the parties jointly reached an agreement
on the amount of unpaid overtime wages due with the 17 remaining
However, the parties were unable to resolve whether
Plaintiff Castellanos was employed
defendants. See Rec. Doc. 1 at 1.
plaintiffs were entitled to liquidated damages and attorneys’ fees.
After further briefings from all parties, an opinion was issued
awarding $14,878.64 for unpaid overtime and $7,439.32 in liquidated
damages, with fees and costs to be determined. See Rec. Docs. 179,
184. Thereafter, plaintiffs filed a motion for attorney’s fees. See
Rec. Doc. 186. Defendants filed a timely response in opposition,
wherein they also sought fees on prevailing defenses. See Rec. Doc.
187. Plaintiffs replied. See Rec. Doc. 192.
Plaintiffs contend that, pursuant to the Fair Labor Standards
Act (“FLSA”), they are entitled to attorneys’ fees in the amount of
$59,010.00 for 201.2 hours of attorney time. See Rec. Doc. 186-1.
Plaintiffs argue that they are the prevailing parties in this case
because the Court issued a judgment in their favor, entitling them
to unpaid overtime wages and liquidated damages. See id. at 8 citing
Judgment at Rec. Doc. 185.
They further argue the reasonableness of
claimed hourly rates and hours, contending no further adjustment of
fees is warranted as counsel exercised billing judgment throughout
the litigation. Plaintiffs did not document their costs in the
instant motion. 2
2 However, the Court will still address the issue of costs. After filing the motion
for fees, plaintiffs submitted a Bill of Costs in the amount of $2,272.55. See
Rec. Doc. 190. On August 7, 2018 defendants filed an opposition, stating plaintiffs
failed to sufficiently particularize costs. See Rec. Doc. 193. On October 1, 2018,
the Clerk of Court submitted Reasons for Taxation of Costs in the amount of
$1,966.69. See Rec. Doc. 196.
Defendants oppose the amount of attorneys’ fees that plaintiffs
seek, contending an across-the-board reduction is warranted. See
Rec. Doc. 187-2 at 1. Specifically, defendants argue some fees are
associated with claims involving eventually-dismissed defendants and
Defendants also argue that they are entitled to attorneys’ fees to
recover costs expended in litigating against plaintiffs that were
eventually dismissed. See id. at 4 (stating they were the prevailing
LAW AND ANALYSIS
A. FLSA Fee Shifting
In 1938, Congress enacted the FLSA to protect the laboring
public from unfair labor practices. See 29 U.S.C. § 202. Pursuant to
the FLSA, courts shall “allow a reasonable attorney’s fee to be paid
by the defendant, and costs of the action” when a judgment is awarded
to the plaintiff. 29 U.S.C. § 216(b) (Emphasis added). Judgment was
plaintiffs are entitled to reasonable attorneys’ fees and costs to
be paid by defendants to plaintiffs. See e.g., Buckhannon Bd. & Care
Home, Inc. v. W. Virginia Dep't of Health & Human Res., 532 U.S.
598, 604 (2001) (“[E]nforceable judgments on the merits and courtordered consent decrees create the “material alteration of the legal
attorney's fees.”). However, it remains for this Court to determine
what fees and costs, if any, are reasonable. Defendants offer no
authority under FLSA for recovery of defense fees.
B. Calculation of Lodestar
Courts in this Circuit use the lodestar method for determining
an appropriate attorney fee award under the FLSA. See Saizan v. Delta
Concrete Products Co., Inc., 448 F.3d 795, 799 (5th Cir. 2006). The
lodestar method consists of two steps. See Louisiana Power & Light
Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The first step
is to determine the reasonable number of hours expended on the
litigation and the reasonable hourly rates for the participating
attorneys. See id. The second step is to multiply the determined
hours by the determined rate. See id. The resulting product is the
lodestar. See id.
The lodestar may be accepted as is or adjusted. See Johnson v.
Georgia Highway Exp., 488 F. 2d 714, 717-19 (5th Cir. 1974). There
are twelve factors to consider in establishing whether to accept or
adjust the lodestar. See id. Those twelve factors are:
(1) the time and labor involved; (2) the novelty and
difficulty of the questions involved; (3) the skill
requisite 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 the 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 proceedings;
and (12) awards in similar cases. See id.
However, “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).
a. Reasonable Hours Expended
expended . . ..” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). In
documenting the hours expended, attorneys should “exercise billing
duplicative, or inadequately documented when seeking fee awards.”
Creecy v. Metro. Prop. & Cas. Ins. Co., 548 F. Supp. 2d 279, 286
(E.D. La. 2008). “The remedy for failing to exercise billing judgment
is to reduce the hours awarded as a percentage and exclude hours
that were not reasonably expended.” Id. Courts may eliminate hours
that are excessive, duplicative, and too vague to permit meaningful
review. See Johnson v. Big Lots, 639 F. Supp. 2d 696, 792 (E.D. La.
Imperial Adjustment Corp., 2005 U.S. Dist. LEXIS 13382 *1, *34 (E.D.
The Fifth Circuit has held that “the most critical factor in
Black v. SettlePou, P.C., 732 F.3d 492, 503 (5th Cir.
2013) (citing Saizan at 799, and Singer v. City of Waco, 324 F.3d
813, 829–30 (5th Cir.2003)) (internal quotations omitted); Ransom v.
M. Patel Enterprises, Incorporated, 734 F.3d 377, 387–88, 2013 WL
4402983, at *9. However, “[w]hile a low damages award is one factor
which the court may consider in setting the amount of fees, this
factor alone should not lead the court to reduce a fee award.”
Saizan, 448 F.3d at 799; accord Singer. Although the district court
must explain its reasons for determining an award of attorney's fees,
“the court need not explicitly calculate the lodestar to make a
reasonable award.” No Barriers, Inc. v. Brinker Chili's Tex., Inc.,
262 F.3d 496, 501 (5th Cir.2001).
The Saizan district and circuit courts approved reducing the
loadstar amount by about $100,000 due to lack of billing judgment,
failures to prevail on all claims, and a relatively low settlement
of claims, leading to a fee award of $13,000. In another case, the
attorney's fees award on a judgment for about $4,700 in unpaid
overtime wages was “excessive in the light of Plaintiffs' limited
recovery”. That rejection was premised upon finding that “[t]he
district court properly calculated the lodestar amount and then
properly considered the plaintiffs' limited recovery when it reduced
the lodestar amount by ten percent.” See Lucio–Cantu v. Vela, 239
Fed.Appx. 866, 867–68 (5th Cir.2007) (per curiam); Mauricio v.
Phillip Galyen, P.C., 174 F. Supp. 3d 944, 951 (N.D. Tex. 2016),
accord Singer, 324 F.3d at 830; and Hollowell v. Orleans Reg'l Hosp.
LLC, 217 F.3d 379, 392 (5th Cir.2000).
Plaintiffs submit time records to establish entitlement to an
attorney fee award. 3 See Rec. Doc. 186-2. The time records exhibit
the following totals:
Attorney Name: Billable Hours; Hours After Billing Judgment
Total Hours After Billing Judgment:
Billing judgment refers to the usual practice of law firms in
writing off unproductive, excessive, or redundant hours. Walker v.
U.S. Dept. of Hous. & Urban Dev., 99 F.3d 761, 770 (5th Cir.1996).
Plaintiffs’ counsel, to their credit, adjusted hours claimed after
reductions for hours that counsel deemed unreasonable. See Rec. Doc.
186-2. However, after review of the time records, the Clerk’s record
Specifically and in addition to reductions made by counsel, there
In a document referred to as Joint Declaration of Plaintiffs’ Counsel, plaintiffs
state that they will submit additional time for time spent reviewing defendants’
opposition and drafting plaintiff’s reply. See Rec. Doc. 186-3 at 5. Plaintiffs
never submitted such additional time, so the Court only recognizes the time
submitted in the instant motion.
unsuccessful or unnecessary pleadings. 4 Other similar entries concern
dismissed putative class members. 5 See Hensley, 461 U.S. at 426
(stating that if a plaintiff has achieved only partial success, the
excessive and this will be true even where the plaintiff's claims
were interrelated and raised in good faith).
applied to the adjusted hours that plaintiffs submitted. See Pruett
v. Harris County Bail Bond Dd., 499 F.3d 403, 418 (5th Cir. 2007)
(stating that courts may use their equitable discretion to reduce an
award). The reasonable number of hours expended on the litigation
are as follows:
Attorney Name: Hours After Partial Billing Judgment;
Total Reasonable Hours:
4 See e.g., Rec. Doc. 186-2 at 4 (time entries for drafting an opposition to
summary judgment filed by an eventually dismissed defendant). Only partial success
was reached on liquidated damages.
See e.g., id. at 4, 33 (numerous time entries for the drafting of discovery
responses for opt-in plaintiffs-in September 30, 2017, October 2, 2017, October
3, 2017–who were eventually dismissed).
b. Reasonable Hourly Rate
Reasonable fees are calculated based on the prevailing market
rate in the relevant community for similar services by attorneys of
reasonably comparable skill and experience. See Blum v. Stetson, 465
U.S. 886, 895 (1984). “Determination of the reasonable hourly rate
affidavits of other attorneys practicing there.” Chisholm v. Hood,
90 F. App'x 710 (5th Cir. 2004). The determination of rates are
performed on a case-by-case basis. See id. Reference to other fee
awards in the pertinent jurisdiction can also be helpful.
To establish that the hourly rates plaintiffs’ counsel seek are
commensurate with their skill and experience, plaintiffs submit a
joint declaration and fee awards in this district. See Rec. Doc.
186-1 at 10; Rec. Doc. 186-3. 6 Three attorneys worked on behalf of
Westermeier was an associate attorney with three years’ experience
at the time of filing this motion. She seeks a rate of $250 per
See, e.g., Wagner v. Boh Bros. Const. Co., LLC, No. 11-2030-JCW, 2012 WL 3637392 at
*16 (E.D. La. Aug. 22, 2012) (in employment discrimination case, awarding 2012 hourly
rates of $275 for attorney with 10 years experience, $235 for attorney with 4 years
experience); Cox v. Precision Surveillance Org., No. 13-6600-IRLR-DEK, 2014 WL
1785350 at *2 (E.D. La. May 5, 2014) (awarding 2014 hourly rate of $275 for attorney with
10 years experience); Foley v. SAFG Ret. Servs., Inc., No.. 10-2827-JTM-DEK, 2012 WL
956499 at *2 (E.D. La. Mar. 20, 2012) (awarding 2012 rate of $275 for associate with 8
years experience). Johnson v. Big Lots Stores, Inc., 639 F. Supp. 2d 696 (E.D. La. 2009)
(awarding $300/hour for partners, $225/hour for associates); Foley v. SAFG Retirement
Servs., Inc., Civ. A. No. 10-2827, 2012 WL 956499 (E.D. La. Mar. 20, 2012) ($275/hour for
attorney with eight years experience).
(Emphasis added to compare with attorneys experience here of seven and three years)
hour. 7 See Rec. Doc. 186-1 at 9. Ms. Westermeier was employed by Mr.
William Beaumont and Mr. Roberto Costales. See id. Mr. Beaumont and
Mr. Costales each have been practicing seven years at the time of
filing this motion. See id. They have experience in FLSA and class
attorneys attest to declining other employment based in part on the
time necessary to prosecute this case. See id. Beaumont and Costales
seek a rate of $300 per hour. See id. Movants did not submit
affidavits from other attorneys as further evidence of customary
rates charged or awarded in this district. 8
customary rates for attorneys. See, e.g., Smith v. Manhattan Mgmt.
Co., LLC, No. CV 14-2623, 2016 WL 915272, at *2 (E.D. La. Mar. 10,
Catastrophe Response, LLC, No. CIV.A. 11-241, 2012 WL 161824, at *22
(E.D. La. Jan. 18, 2012) (approving hourly rates ranging from $150
per hour to $400 per hour for ten attorneys involved in the case);
Johnson v. Big Lots Stores, Inc., 639 F. Supp. 2d 696, 701–02 (E.D.
La. 2009) (approving a rate of $300 per hour for partners and $225
per hour for associates); Ducote Jax Holdings, L.L.C. v. Bank One
7 On September 27, 2018, Ms. Westermeier was withdrawn as co-counsel of record.
See Rec. Doc. Nos. 194, 195.
The Fifth Circuit has noted that a court is itself an expert in attorneys' fees
and “may consider its own knowledge and experience concerning reasonable and
proper fees and may form an independent judgment with or without the aid of
witnesses as to value.” Campbell v. Green, 112 F.2d 143, 144 (5th Cir.1940).
Corp., 2007 WL 4233683 (E.D.La. Nov. 28, 2007), affirmed in part,
reversed in part on other grounds, 335 Fed.Appx. 392 (5th Cir.2009)
(unpublished) (Civil RICO case where Judge Fallon awarded New Orleans
Interestingly in 2016, Magistrate Judge Wilkinson considered the
work of Messrs. Beaumont and Costales in another FLSA case and
reduced the hourly rate from the requested $250 to $200 per hour.
See Calix v. Ashton Marine LLC, No. CV 14-2430, 2016 WL 4194119, at
*6 (E.D. La. July 14, 2016), report and recommendation adopted, No.
CV 14-2430, 2016 WL 4180977 (E.D. La. Aug. 8, 2016). Judge Wilkinson
found the proposed rates were “excessive for both Beaumont and
Costales at [what he referred to as] an early stage of their careers
as FLSA lawyers.” Id. at *5. The latter action also gave helpful
analysis of customary rates awarded in other cases. See also Esparza
v. Kostmayer Constr., LLC, No. CV 15-4644, 2017 WL 4621107, at *3
(E.D. La. Sept. 26, 2017), report and recommendation adopted, No. CV
15-4644, 2017 WL 4574416 (E.D. La. Oct. 13, 2017) (awarding instant
attorneys hourly rates between $200 to $250, in part because of no
objections and review of customary rates).
Based on a review of the case law in this area, the Court finds
that the prevailing rate in this market for an attorney with Ms.
Westermeir’s level of experience (3 years) is typically between $150
to $200 per hour. See, e.g., Carrier v. Weber Prop. Grp., L.L.C.,
No. 16-6648, 2017 WL 4232535, at *4 (E.D. La. June 14, 2017)
(Wilkinson, M.J.) ($150 for an associate with 4 years of experience);
Compare also Wilson v. Tulane Univ., Civ. A. No. 09-7451, 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);
Gulf Coast Facilities Mgmt, L.L.C. v. BG LNG Servs., L.L.C., Civ. A.
No. 09-3822, 2010 WL 2773208 (E.D. La. July 13, 2010) (awarding
$300.00/hour to attorneys with 17 years’ experience and $180.00/hour
authority cited above, and Ms. Westermeir’s substantial work in this
case on successful claims, we find an hourly rate of $175 would be
In similar cases in this district, Messrs. Beaumont and Costales
were awarded hourly rates ranging from $200 to $250. See: Calix v.
Ashton Marine LLC, No. CV 14-2430, 2016 WL 4194119, at *6 (E.D. La.
July 14, 2016), report and recommendation adopted, No. CV 14-2430,
2016 WL 4180977 (E.D. La. Aug. 8, 2016); Banegas v. Calmar Corp.,
No. CV 15-593, 2016 WL 6276779, at *2 (E.D. La. Oct. 27, 2016).
Considering the latter two cases as well all other cases infra and
noting again their limited roles and work performed in this action,
we find they should be compensated at a reasonable hourly rate of
$250 per hour.
Additional case reviews further support the latter
The reasonable hourly rates are thusly summarized for each
$175 per hour
$250 per hour
$250 per hour
c. Johnson Factors
In analyzing the lodestar, the Court considered the Johnson
reasonable hours expended in this litigation. There is no need
for the Court to reconsider the Johnson factors for a second
time. See Migis, 135 F.3d at 1056.
See e.g., Sanchez v. Pizzati Enters., Inc., No. 17-9116, 2018 WL 3954866, at *4 (E.D. La. Aug. 16, 2018) (Brown,
C.J.) (finding $325 to be a reasonable hourly rate for an attorney with 15 years of labor and employment experience); M
C Bank & Trust Co. v. Suard Barge Serv., Inc., No. 16-14311, 2017 WL 6344021, at *2 (E.D. La. Dec. 12, 2017)
(Vance, J.) (finding that $350 was a reasonable hourly rate for an attorney with over 17 years of experience, with
particular expertise in the area of mortgaged vessels); Parkcrest Builders, LLC v. Hous. Auth. of New Orleans, No. 151533, 2017 WL 4682297, at *2 (E.D. La. Oct. 18, 2017) (Roby, M.J.) (finding $225 to be a reasonable hourly rate for a
managing partner with 35 years of construction law experience); Curry v. Lou Rippner, Inc., No. 14-1908, 2016 WL
236053, at *6 (E.D. La. Jan. 20, 2016) (Brown, J.) (finding that $210 was a reasonable hourly rate for a founding
partner with more than 15 years of experience); Norris v. Causey, No. 14-1598, 2016 WL 1046101, at *9 (E.D. La. Mar.
16, 2016) (Barbier, J.) (finding that $250 was a reasonable hourly rate for an attorney with 31 years of experience);
Alfasigma USA, Inc. v. EBM, et al, 2018 WL 3869496, at *4 (E.D. La. Aug. 15, 2018) (Roby, M.J.) (finding that $325
per hour was a reasonable rate for an attorney with 23 years of specialized experience in products liability litigation);
Warder v. Shaw Group, Inc., No. 09-4191, 2016 WL 3447950, at *3 (E.D. La. June 23, 2016) (Knowles, M.J.) ($300.09
for an associate with 20 years of experience); and Drs. Le and Mui, Family Med. v. St. Paul Travelers, No. 06-10015,
2007 WL 4547491, at *2-3 (E.D. La. Dec. 19, 2007) (Roby, J.) (awarding hourly rates of $175.00 to an attorney with
seven (7) years of legal experience and $200.00 for an attorney with eleven (11) years of experience).
Plaintiffs’ counsel submitted a bill of costs in the amount of
litigation. See Rec. Doc. 190. 28 U.S.C. § 1920 provides that a court
may tax the following costs:
[F]ees of the clerk and marshal; fees of the court reporter
for all or any part of the stenographic transcript
necessarily obtained for use in the case; fees and
disbursements for printing and witnesses; fees for
exemplification and copies of papers necessarily obtained
for use in the case; docket fees; compensation of courtappointed
Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 529
(5th Cir. 2001). Plaintiffs’ counsel seek the following costs:
Upon review of defendants’ Opposition to plaintiffs’ Bill of Costs
and the Clerk of Court’s Reasons for Taxation of Costs, the Court
finds that only $1,996.69 are recoverable. See Rec. Doc. 196 at 3-4
(stating that investigative services are not taxable, the process
server did not charge a fee for service, and costs incurred for
renting a conference room are not taxable).
IT IS ORDERED that the motion for attorneys’ fees is GRANTED IN
PART and DENIED IN PART. Defendants are hereby ordered to pay
$32,512.50 in reasonable fees 10 and $1,996.69 in recoverable costs,
for a total of $34,509.19.
New Orleans, Louisiana, this 25th day of March, 2019.
SENIOR UNITED STATES DISTRICT JUDGE
The calculation of the lodestar follows:
170.1 x $175 per
x $250 per
1.08 x $250 per
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