Rubio v. C.R. Contractors, LLC et al

Filing 25

ORDER AND REASONS: IT IS ORDERED that Plaintiff's 19 motion is GRANTED IN PART as set forth in document. Signed by Judge Ivan L.R. Lemelle on 8/16/2017. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIYOKO RUBIO

CIVIL ACTION

VERSUS

NO. 16-13908

C.R. CONTRACTORS, LLC, ET AL.

SECTION “B”(5)

ORDER AND REASONS
Before the Court is Plaintiffs’ “Motion for Attorneys’ Fees.”
Rec. Doc. 19. Defendants timely filed an opposition memorandum.
Rec. Doc. 21. Plaintiffs then requested, and were granted, leave
to

file

a

reply

memorandum.

Rec.

Doc.

24.

For

the

reasons

enumerated below,
IT IS ORDERED that Plaintiffs’ motion (Rec. Doc. 19) is
GRANTED IN PART.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of alleged violations of the Fair Labor

Standards

Act

(“FLSA”).

Specifically,

Plaintiff

Kiyoko

Rubio

(“Rubio”) alleged that she was not properly paid overtime wages
while working for Defendants C.R. Contractors, SGS, LLC, and
Maritza Romero. Rec. Doc. 1 at ¶ 1. Accordingly, she filed a
complaint on August 17, 2016 on behalf of herself and similarly
situated employees. Id. at ¶ 2. When Defendant SGS, LLC failed to
respond to the complaint and no entry of default was sought, the
Court ordered Plaintiffs to show cause why SGS, LLC should not be
dismissed. Rec. Doc. 11. Plaintiffs did not respond to the show

1

cause order and SGS, LLC was consequently terminated as a party on
November 1, 2016.
On January 17, 2017, Petra Oloarte opted-in to the suit. Rec.
Doc. 13.
On May 3, 2017, the Court was informed that the parties had
reached a settlement agreement and accordingly entered an order of
dismissal. Rec. Doc. 16. Thereafter, the parties filed an ex
parte/consent motion to approve the FLSA settlement. Rec. Doc. 17.
Pursuant to the agreement reached by the parties, Rubio was to
receive $500.00, while Oloarte was to receive $1,000.00. Rec. Doc.
17-1 at ¶ 6. These amounts were reached by multiplying the regular
hourly rate by time-and-a-half for all overtime worked. Id. at ¶
7. The number was then doubled to account for liquidated damages
and Rubio received an additional amount as an incentive for
bringing the action. Id. However, the parties informed the Court
that they could not agree on the appropriate amount of attorneys’
fees. Id. at ¶ 9. Accordingly, on June 20, 2017, this Court
approved of the settlement and specifically noted Plaintiffs’
right to seek attorneys’ fees. Rec. Doc. 18.
II.

THE PARTIES’ CONTENTIONS

Plaintiffs’ counsel asks this Court to award $11,300.00 for
44.9 hours of work, billed at the rate of $250 per hour for lead
attorneys William Beaumont and Roberto Costales and $200 per hour
for Emily Westermeier. Rec. Doc. 19-1 at 8-9, 11. They argue that
2

Beaumont

and

Costales

have

practiced

law

for

six

years,

participated in several FLSA collective actions, and been awarded
$250 per hour by this Court in a separate FLSA collective action
case. Id. at 8-9 (citing Joel Banegas v. Calmar Corporation, et
al., Civil Action No. 15-593, Section “B”, Rec. Doc. 69 at 3).1
They also argue that Westermeir has been practicing law since 2014
and previously clerked for the Honorable Marvin E. Aspen in the
Northern District of Illinois. Rec. Doc. 19-1 at 9-10. Plaintiffs
fail to argue the basis for billing 44.9 hours of work in their
memorandum, which instead states that “the Court should award fees
for the full xxx hours sought by this application (which has
already been reduced 16.5% . . . for hours that were arguably
unproductive, excessive, or redundant[)].” Id. at 10. Nonetheless,
Plaintiffs’ counsel attached their billing records to the instant
motion. Rec. Doc. 19-2.
Defendants respond that the Court should award only $3,000 in
attorneys’

fees,

double

the

amount

pursuant to the settlement agreement.

recovered

by

Plaintiffs

Rec. Doc. 21 at 3. They

argue that they admitted to unknowingly failing to properly pay
overtime as soon as this case was filed and accordingly “offered
to pay its employees/former employees the overtime they were owed.”
Id. at 1. They suggest that “the only ‘material’ work that had to

This Court previously noted that $250 per hour was a reasonable fee for FLSA
work in the New Orleans area, based on experience with hourly rates in this
district and applicable case law. Rec. Doc. 69 at 3 (citation omitted).
1

3

be performed by Plaintiffs’ counsel was to review the payroll
records

to

ensure

that

such

records

corroborated

Defendants’

contention that it customarily paid overtime.” Id. at 5. They
further note that Plaintiff failed to respond to discovery requests
and did not take a single deposition; instead, Plaintiffs’ counsel
filed

a

“boilerplate/template”

complaint,

issued

“boilerplate/template” discovery, filed a “boilerplate/template”
motion for attorneys’ fees, and performed “numerous hours of phone
calls, emails, document review and other miniscule actions that
increased

the

billable

hours.”

Id.

at

2.

After

examining

Plaintiffs’ counsel’s billing records, Defendants determined that
(1) 32.87% of the hours were billed after the case settled; (2)
25.05% of the hours were billed in connection with filing the
instant motion for attorneys’ fees; (3) 12.92% of the hours were
billed for phone calls and/or emails; and (4) 37.86% of the hours
were billed for legal research and/or drafting legal documents,
even though Plaintiffs did not file any substantive motions and
this case did not present any novel or difficult issues. Id. at 5.
III. LAW AND ANALYSIS
The FLSA provides that the court shall, “in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a reasonable
attorney’s fees to be paid by the defendant, and costs of the
action.” 29 U.S.C. § 216(b). “Although the provision does not
specifically

mention

a

‘prevailing
4

party,’

the

courts

have

construed the provision as requiring the party being awarded
attorney’s fees to be the prevailing party, similar to other feeshifting jurisprudence.” Champion v. ADT Sec. Servs., Inc., No.
08-417, 2010 WL 4736908, at *1 (E.D. Tex. Nov. 16, 2010) (citing
Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 799 n.7
(5th

Cir.

2006)).

The

parties

do

not

dispute

the

fact

that

Plaintiffs prevailed in this case.
The Fifth Circuit uses the lodestar method for determining a
reasonable amount of attorneys’ fees. Saizan, 448 F.3d at 799
(footnotes

and

citations

omitted).

Under

that

method,

the

reasonable number of hours spent on the case is multiplied by an
appropriate hourly rate in the community for such work. Id.
The party seeking fees “bears the burden of establishing
entitlement to an award and documenting the appropriate hours
expended and hourly rates.” La. Power & Light Co. v. Kellstrom, 50
F.3d 319, 324 (5th Cir. 1995) (quoting Hensley v. Eckerhart, 461
U.S. 424, 437 (1983)). The court should eliminate those hours that
are excessive, duplicative, or too vague to permit meaningful
review. Johnson v. Big Lots Stores, Inc., 639 F. Supp. 2d 696, 702
(E.D. La. 2009) (citing Watkins v. Fordice, 7 F.3d 453, 457 (5th
Cir. 1993); La. Power & Light Co., 50 F.3d at 326). Also, “[w]hen
using the lodestar method to award attorney fees, courts routinely
deduct

time

spent

on

unsuccessful,

unfounded

or

unnecessary

pleadings, motions, discovery requests and memoranda.” White v.
5

Imperial Adjustment Corp., No. 99-3804, 2005 WL 1578810, at *11
(E.D. La. June 28, 2005).
Further, attorneys should not bill at that same rate for the
performance of clerical duties. Even if attorneys are required to
complete certain clerical tasks due to a lack of available help,
such non-legal work does not justify billing at an attorney’s rate
just because it is completed by an attorney. See Johnson v. Ga.
Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974), abrogated
on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989)
(noting that “[i]t is appropriate to distinguish between legal
work, in the strict sense, and investigation, clerical work,
compilation of facts and statistics and other work which can often
be accomplished by non-lawyers but which a lawyer may do because
he has no other help available. Such non-legal work may command a
lesser rate. Its dollar value is not enhanced just because a lawyer
does it.”).2
The resulting lodestar amount is presumed reasonable, but the
court may decrease or enhance the amount based on the twelve

Courts in this circuit also use percentage-based reductions if the attorney
failed to exercise billing judgment. See Fralick v. Plumbers and Pipefitters
Nat’l Pension Fund, No. 09-0752, 2011 WL 487754, at *3-4 (N.D. Tex. Feb. 11,
2011) (reducing attorney’s fees under the lodestar method in an ERISA case). To
show billing judgment, a party must adequately document “the hours charged and
[those] written off as unproductive, excessive, or redundant.” Saizan, 448 F.3d
at 799. Here, Plaintiffs at least made some effort to exercise billing judgment,
reducing various hours as duplicative or attributable to paralegal time. Rec.
Doc. 19-2. Defendants do not argue that a percentage-based reduction is
necessary on this basis and the Court does not find it necessary in light of
Plaintiffs’ counsel’s efforts.
2

6

factors outlined in Johnson, 488 F.2d at 717. Saizan, 448 F.3d at
800.3
The Court agrees with Plaintiffs that $250 and $200 per hour
are reasonable rates for FLSA work in the New Orleans community.
See, e.g., Big Lots, 639 F. Supp. 2d at 701-02 (finding $300 per
hour for partners and $225 per hour for associates reasonable for
an FLSA claim in the New Orleans community). Plus, Defendants do
not object to Plaintiffs’ counsel’s proposed rates.
However, cause exists to reduce the number of hours claimed by
Plaintiffs’ counsel to what is reasonable in this case. Many of
the hours claimed are excessive. For example, Plaintiffs’ counsel
repeatedly billed 0.1 hours for both sending and receiving email
correspondence or for time spent reading one-page Court orders or
motions. Other examples of excessive hours are the number of hours
spent on researching simple legal questions, irrelevant legal
issues, and an inordinate number of hours spent in meetings or
discussions between counsel, as well as with clients or potential
clients. Accordingly, and for good cause, the total number of

The twelve Johnson factors are: “(1) the time and labor required to represent
the client or clients; (2) the novelty and difficulty of the issues in the case;
(3) the skill required to perform the legal services properly; (4) the
preclusion of other employment by the attorney; (5) the customary fee charged
for those services in the relevant community; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the client or circumstances;
(8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorney; (10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client;
and (12) awards in similar cases.” Saizan, 448 F.3d at 800 n.18.
3

7

hours should be reduced by 12.9.4 The total number of hours
reasonably worked therefore amounts to 32:

9 hours by Roberto

Costales, 4.5 by William Beaumont, and 18.5 by Emily Westermeier.
See also Rec. Doc. 19-3 at ¶¶ 31-34. That equates to lodestar
amounts of $2,250.00 for Costales, $1,125.00 for Beaumont, and
$3,700.00 for Westermeier, or a total lodestar amount of $7,075.00.
Plaintiffs do not offer arguments regarding any of the Johnson
factors. Rec. Doc. 19-1 at 11. However, Defendants argue that the
eighth factor, regarding the amount involved and the results
obtained, warrants a reduction of the lodestar amount. Rec. Doc.
21 at 4. Essentially, they argue that because the case settled for

The following are examples of some excessive hours: 6/23/16 (research on a
simple issue that did not lead to a motion or other action reduced by 1 hour);
6/24/16 (follow-up on simple research noted on 6/23/16 reduced by 0.2 hours);
7/7/16 (meeting with Beaumont to discuss the case reduced by 0.2 hours); 8/18/16
and 8/19/16 (reading emails and the summons reduced by 0.1 hours); 9/13/16
(reading Defendants’ motion and the Court’s Order regarding an extension of
time to file reduced by 0.1 hours); 10/10/16 (reading and sending emails to
defense counsel reduced by 0.2 hours); 10/14/16 (reading Defendants’ email and
calling defense counsel reduced by 0.1 hours); 11/3/16 (reading Court email and
conducting conference with the Court reduced by 0.1 hours); 12/8/16 (researching
an offer of judgment reduced by 0.5 hours); 12/9/16 (meeting reduced by 0.1
hours); 1/17/17 (reading and sending emails reduced by 0.1 hours); 2/3/17
(reviewing files reduced by 0.3 hours); 2/22/17 (reading a protective order
reduced by 0.4 hours); 2/23/17 (firm meeting reduced by 0.1 hours); 3/2/17
(drafting, sending, and reviewing a letter to Defendants reduced by 0.2 hours);
3/14/17 (sending and reading emails reduced by 0.1 hours); 3/21/17 (emailing
and calling defense counsel reduced by 0.1 hours); 3/30/17 and 4/10/17 (sending
and reading emails from defense counsel reduced by 0.2 hours); 4/10/17
(continued review reduced by 0.3 hours); 4/13/17 and 4/14/17 (leaving a
voicemail for defense counsel and subsequently talking to defense counsel
reduced by 0.1 hours); 4/19/17 (revising and sending email to defense counsel
reduced by 0.1 hours); 4/27/17 and 4/28/17 (reading emails from defense counsel
reduced by 0.2 hours); 4/28/17 (research reduced by 0.3 hours); 5/3/17 (drafting
and emailing notice of settlement and reading Court’s order of dismissal reduced
by 0.2 hours); 5/11/17, 5/16/17, and 5/18/17 (reading emails reduced by 0.2
hours); 5/18/17 (research reduced by 0.5 hours); 6/1/17 and 6/21/17 (sending
email and reading Court order reduced by 0.1 hours); 6/30/17 (preparing motion
for attorneys’ fees reduced by 2.0 hours).

4

8

a total of $1,500.00 (amounting to twice the amount owed in
overtime plus an amount given to the original Plaintiff as an
incentive to bring similar claims) and approximately one-third of
the

hours

were

billed

after

the

case

settled,

Plaintiffs’

attorneys’ fees should be capped at $3,000.00. Id. at 4-5.
“That the attorneys’ fees exceed the awards to the plaintiffs
does not make them per se unreasonable.” Johnson, 639 F. Supp. 2d
at 706 (noting that both the Supreme Court and the Fifth Circuit
have rejected a “proportionality” rule between the damages awarded
and the amount of attorneys’ fees) (citing City of Riverside v.
Rivera, 477 U.S. 561 (1986); Saizan, 448 F.3d at 802). “[W]hile a
low damages award is one fact which a district court may consider
in setting the amount of attorney’s fees, this factor alone should
not lead the district court to reduce a fee award.” Hollowell v.
Orleans

Reg’l

Hosp.

LLC,

217

F.3d

379,

392

(5th

Cir.

2000)

(citation omitted).
The

Court

eliminating

has

hours

already

deemed

reduced

excessive.

the
The

lodestar
fact

that

amount

by

Plaintiffs

recovered only $1,500.00, alone, does not warrant adjusting the
lodestar amount under the eighth Johnson factor. See, e.g., Cox v.
Brookshire

Grocery

Co.,

919

F.2d

9

354,

358

(5th

Cir.

1990)

(affirming an award of $9,250.00 in fees where the plaintiffs
recovered only $1,181.00).5
IV.

CONCLUSION

For the reasons outlined above,
IT IS ORDERED that Plaintiff’s motion (Rec. Doc. 19) is
GRANTED IN PART. Plaintiff is awarded $7,075.00 in attorneys’ fees
plus court costs.
New Orleans, Louisiana, this 16th day of August, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

Significantly, Defendants cited to only one example in which a court
purportedly reduced the fee award because it was so disproportionate to the
damages award. Rec. Doc. 21 at 4 (citing Lewis v. Kendrick, 944 F.2d 949, 958
(1st Cir. 1991)). In that case, though, the district court entered a judgment
after trial for damages in the amount of $5,608.55, this amount was thereafter
reduced to $1,000.00 on appeal, the plaintiffs originally requested $300,000.00,
the fee award was discretionary in the civil rights case, and counsel requested
approximately $50,000.00 in fees. Unlike the plaintiff in that case, Plaintiffs
here did not fail “entirely, or largely, in everything” and did not make
unwarranted allegations in their complaint. Plus, the fees in this case do not
amount to fifty times the damages award.
5

10