Arce et al v. Louisiana State et al
Filing
233
ORDER AND REASONS - Shelton's motion for attorneys' fees and costs is GRANTED IN PART and DENIED IN PART, in accordance with this order. Signed by Judge Lance M Africk on 6/4/2019.(sbs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NELSON ARCE, ET AL.
CIVIL ACTION
VERSUS
No. 16-14003
LOUISIANA STATE, ET AL.
SECTION I
ORDER & REASONS
This case is before the Court on remand from the United States Court of
Appeals for the Fifth Circuit regarding attorneys’ fees. For the following reasons,
plaintiff Ana Christine Shelton’s request for fees and additional costs is granted in
part and denied in part, as stated herein.
I.
This action was originally filed by Nelson Arce, a deaf man who was placed on
probation in Jefferson Parish after pleading guilty to a drug possession offense in
Louisiana state court. In his complaint, Arce alleged that he had limited proficiency
in written English and that he communicated primarily in American Sign Language
(“ASL”). According to Arce, his probation officer refused to provide him with an ASL
interpreter during their meetings. 1 As a result, Arce alleged, he did not understand
the terms of his probation and inadvertently violated them.
Beginning in December of 2016, Arce was incarcerated for the probation
violation in the Jefferson Parish Correctional Center (“JPCC”) for 90 days. Arce
alleged that JPCC officials failed to provide him with an ASL interpreter. Because he
The evidence at trial showed that Arce’s primary probation officer communicated
with him largely through his father, acting as an interpreter, or in writing.
1
did not have an interpreter to help him review JPCC’s inmate handbook, Arce alleged
that he did not understand JPCC’s rules and regulations and that he was penalized
twice for purported violations. After Arce was released from JPCC, his probation
officer allegedly again refused to provide him with an ASL interpreter during their
meetings.
In August of 2016, Arce and his father sued the State of Louisiana, through
the Louisiana Department of Public Safety and Corrections, and Jefferson Parish
Sheriff Joseph Lopinto (collectively, the “defendants”) for violations of the Americans
with Disabilities Act (the “ADA”) and the Rehabilitation Act. 2 They sought
compensatory damages as well as declaratory and injunctive relief. Early in the
litigation, Arce and his father moved for a preliminary injunction against the State
of Louisiana, requesting that the Court order the State of Louisiana to provide him
with a qualified ASL interpreter during the remainder of his probation meetings and
while the case was pending. Before the Court could rule on the motion, the parties
reached an agreement, pursuant to which the State of Louisiana would provide Arce
with an ASL interpreter during all future probation meetings. Accordingly, the Court
dismissed the motion as moot.
For reasons unrelated to this lawsuit, Arce unfortunately passed away in May
of 2017, and Ana Christine Shelton, as the administrator of Arce’s estate and the
mother of his children, was substituted as the plaintiff. Shortly thereafter, the Court
Arce originally sued Sheriff Newell Normand. After he retired, Sheriff Normand’s
successor, Joseph Lopinto, was substituted as a defendant. Arce also sued Jefferson
Parish, but the Court dismissed Arce’s claims against the parish on motion pursuant
to Federal Rule of Civil Procedure 12(b)(6). R. Doc. No. 42.
2
2
dismissed all claims for injunctive relief, without opposition, for lack of standing. The
case proceeded to trial, the jury finding that both the State of Louisiana and Sheriff
Lopinto had intentionally discriminated against Arce in violation of the ADA. 3
However, the jury also found that the discrimination had not caused Arce injury and,
therefore, it did not award him any compensatory damages. Rather, in accordance
with a stipulation among the parties, the Court awarded Shelton nominal damages
of $1 as to each defendant.
Shelton moved for an award of attorneys’ fees in the amount of $495,853.50.
After determining that Shelton was a prevailing party, the Court nonetheless held
that special circumstances justified the denial of attorneys’ fees because, at trial,
Shelton sought solely monetary relief but achieved only nominal damages. 4 Shelton
timely appealed the Court’s denial of fees. Upon review, the Fifth Circuit vacated this
Court’s order and remanded the case for reconsideration. Shelton v. Louisiana, 919
F.3d 325, 331 (5th Cir. 2019). The Fifth Circuit instructed this Court to consider
“whether [Arce’s, and subsequently Shelton’s,] lawsuit achieved a compensable public
goal”; however, it expressed no opinion as to the propriety of a fee award. Id.
II.
The United States Supreme Court’s decision in Farrar v. Hobby, 506 U.S. 103
(1992), provides the legal framework in this matter. Shelton, 919 F.3d at 329. In
Before trial, the parties stipulated that, if the jury found that either defendant
violated Title II of the ADA, the jury would be considered to have also found that the
defendant violated § 504 of the Rehabilitation Act. R. Doc. No. 163, at 1.
4 See R. Doc. No. 192, at 17, 25. Shelton also sought $32,373.08 in costs. Although the
Court did not find that attorneys’ fees were warranted, it awarded Shelton costs in
the amount of $11,428.06. Id. at 32.
3
3
Farrar, the Supreme Court affirmed the lower court’s denial of attorneys’ fees to the
prevailing plaintiffs, 5 who exclusively sought monetary relief but achieved only
nominal damages. 506 U.S. at 105–08. The Supreme Court observed that, “[i]n civil
rights suits for damages, . . . the awarding of nominal damages [ ] highlights the
plaintiff’s failure to prove actual, compensable injury.” Id. at 115. “When a plaintiff
recovers only nominal damages because of his failure to prove an essential element
of his claim for monetary relief, the only reasonable fee is usually no fee at all.” Id.
(citation omitted).
Here, Shelton sought compensatory damages, but she ultimately failed to
persuade the jury that Arce suffered any injury arising out of the defendants’
discrimination. As a result, she recovered only nominal damages, and “Farrar
counsels that denial of attorneys’ fees may be appropriate.” Shelton, 919 F.3d at 329.
But the Court’s inquiry does not end there. “‘[E]ven nominal damages can
support an award of attorneys’ fees’ if the litigation ‘achieved a compensable goal.’”
Id. at 329–30 (quoting Hopwood v. Texas, 236 F.3d 256, 278 (5th Cir. 2000)). The Fifth
Circuit decisions affirming fee awards in these limited cases “have focused on the
plaintiff’s accomplishments within the litigation itself, such as the deterrent value of
a jury verdict or the significance of a new legal precedent.” Id. at 331. The Court must
therefore determine whether—despite Shelton’s failure to establish one of the
elements of her claim for monetary damages at trial and her resulting failure to
The Court has already held that Shelton is a prevailing party. Hence, its analysis is
limited to reconsidering whether Shelton is entitled to attorneys’ fees and deciding
whether she may also recover those fees and costs incurred as a result of her appeal.
5
4
achieve more than nominal damages—she nonetheless accomplished a compensable
goal that entitles her to attorneys’ fees.
III.
Shelton argues that this litigation accomplished two compensable legal: (1)
that it set new legal precedent and (2) that she achieved a favorable jury verdict with
deterrent effects. With respect to her argument that Arce’s lawsuit has generated
significant legal precedent, the Court is unpersuaded.
Shelton relies on the fact that this case has been cited twice since trial
concluded. 6 First, in 2016, the plaintiffs in a disability-discrimination action cited this
Court in support of their motion for summary judgment. 7 The plaintiffs argued:
Defendants’ failure to provide qualified ASL interpreters to Plaintiffs
clearly violates the Rehabilitation Act and ADA. See Arce v. Louisiana,
No. 16-cv-14003, 2017 WL 6767200 (E.D. La., Dec. 18, 2018) (finding
defendants were liable under [the] Rehabilitation Act and ADA for
failing to provide qualified ASL interpreter to hard of hearing offender).
Levy v. La. Dep’t of Pub. Safety & Corr., Civil Action No. 16-542 (M.D. La.) R. Doc.
No. 55-31, at 15–16. But the Levy plaintiffs’ reference is dubious at best. They cited
to this Court’s one-sentence judgment following the jury’s verdict in this matter. 8
Although the descriptive parenthetical suggests that the Court found that the
defendants violated Arce’s rights, the Court made no such finding. Rather, the jury
made the finding, and the Court entered judgment accordingly.
R. Doc. No. 216, at 10–11.
Id. at 10 (citing Levy v. La. Dep’t of Pub. Safety & Corr., Civil Action No. 16-542
(M.D. La.) R. Doc. No. 55-31).
8 See R. Doc. No. 175.
6
7
5
Second, another section of the Court recently cited this Court’s ruling in
response to the motion to dismiss filed by the State of Louisiana in this case. 9 See
Pegues v. Bd. of Supervisors, No. 18-2407, 2018 WL 4076385, at *3 & nn.23, 26 (E.D.
La. Aug. 27, 2018) (Morgan, J.). According to Shelton, this Court’s order “clarified
complex legal issues regarding the Fourteenth Amendment and [s]tate [i]mmunity in
the context of ADA Title II cases.” 10 Even so, in the portion of this Court’s opinion
cited by Judge Morgan, the Court did not posit a novel theory or formulate a new
approach to the law; it simply summarized the law as it was already firmly
established by the Supreme Court. See id. (citing Arce v. Louisiana, No. 16-14003,
2017 WL 5619376, at *22 (E.D. La. Nov. 21, 2017) (Africk, J.)). In the same section of
this Court’s opinion, the Court did discuss the existence of a circuit split on a
particular sub-issue pertinent to the State of Louisiana’s motion—perhaps that
analysis is the “clarif[cation] of complex legal issues” to which Shelton alludes. But
Judge Morgan did not cite this Court for that discussion.
Moreover, the fact that this Court’s ruling has been cited once by another court
does not demonstrate that Shelton achieved a compensable legal goal. This cannot be
what the Fifth Circuit intended when it spoke of rewarding the creation of “significant
legal precedent.” Cf. Hopwood v. State of Tex., 999 F. Supp. 872, 878 (W.D. Tex. Mar.
20, 1998), aff’d in part and reversed in part, 236 F.3d 256 (5th Cir. 2000) (explaining
that the plaintiffs achieved a declaration by the Fifth Circuit that the University of
9
See R. Doc. No. 216, at 11.
Id.
10
6
Texas at Austin School of Law’s use of racial preferences served no compelling state
interests under the Fourteenth Amendment, a significant legal precedent).
Shelton also argues that it was necessary to obtain a jury verdict in her favor
in order to deter further ADA violations by the defendants. According to Shelton, both
defendants denied any wrongdoing up until, and through, trial. 11 As a result, Shelton
argues, the verdict was pivotal to holding the defendants accountable for
discrimination and protecting similarly situated deaf and hard-of-hearing individuals
in the future. 12 Shelton also argues that Arce’s lawsuit was the “primary impetus”
behind substantial policy changes implemented by each defendant. 13
In response, the defendants argue that the jury verdict is simply too vague to
serve as a deterrent. 14 They contend that the verdict in this matter resembles the
verdict in Farrar, which the Supreme Court described as “accomplish[ing] little
beyond giving petitioners ‘the moral satisfaction of knowing that a federal court
concluded that [their] rights had been violated’ in some unspecified way.’” 506 U.S.
at 114 (quoting Hewitt v. Helms, 482 U.S. 755, 762 (1991)). 15 Both defendants also
R. Doc. No. 216, at 4.
Id.
13 Id. at 8. To support her contention, Shelton relies on trial testimony from
representatives of both defendants. Id. at 4–7. Shelton asserts that the testimony
demonstrates that, before this litigation, neither defendant had a practice of
providing auxiliary aids to deaf or hard-of-hearing individuals and that both
defendants failed to adequately train their employees. Id. at 4. But the relevant
inquiry for purposes of determining whether this litigation achieved a compensable
goal is the defendants’ conduct after and as a result of this lawsuit.
14 R. Doc. No. 222, at 5; R. Doc. No. 223, at 6–8.
15 See R. Doc. No. 222, at 5.
11
12
7
argue that there is no evidence demonstrating that they took any action as a direct
result of the litigation. 16
With respect to Sheriff Lopinto, Shelton has failed to establish that this lawsuit
had any deterrent effect or that it prompted any significant policy changes. Shelton
points to the sheriff’s installation of a video relay service (“VRS”) system—effectively,
a videophone—at JPCC. 17 At trial, several witnesses testified regarding JPCC’s use
of auxiliary aids for deaf and hard-of-hearing individuals. Before 2017, JPCC relied
exclusively on TTY machines, which allow deaf or hard-of-hearing inmates to use the
telephone. Eventually, in large part as a result of the work of advocates like Scott
Huffman, who testified at trial, JPCC officials installed a VRS system as well.
Shelton argues that it was Huffman’s request that a VRS system be made
accessible to Arce while he was incarcerated that spurred the system’s installation. 18
First and foremost, although Huffman may have advocated on Arce’s behalf while he
was incarcerated at JPCC, there is no evidence that Huffman’s request was at all
related to Arce’s lawsuit or prompted by Arce’s counsel. Furthermore, Sheriff Lopinto
asserts both that his employees were working with deaf advocates like Huffman well
before Arce was a JPCC inmate and that none of the evidence establishes that the
VRS system was installed as a result of this lawsuit. 19
It is unclear from the record what event or combination of events finally
prompted the installation of a VRS system at JPCC. It is undisputed, however, that
Id. at 6; R. Doc. No. 223, at 6–7.
R. Doc. No. 216, at 9.
18 Id.
19 R. Doc. No. 223, at 6–7; R. Doc. No. 226, at 3.
16
17
8
Huffman had been advocating for the use of such a system since June or July of
2015—before Arce was first incarcerated in December of 2015 and well before this
lawsuit was filed in August of 2016. 20 Captain Bryan Bordelon, who was JPCC’s
assistant deputy administrator when Arce was incarcerated, testified that he was
interested in exploring the use of a VRS system because of the information provided
to him by Huffman in 2015, but there were bureaucratic and technical hurdles that
posed barriers to the system’s immediate installation. 21 For example, Bordelon and
At trial, Huffman and Shelton’s counsel, Andrew Rozynski, engaged in the
following exchange:
20
ROZYNSKI:
When was the first time that you had any contact
with [JPCC]?
HUFFMAN:
I would say June or July of 2015.
ROZYNSKI:
And could you please describe [ ] your initial contact
with [JPCC?]
HUFFMAN:
Sure. At the time I was on what I would call a video
phone campaign, an advocacy campaign for deaf and
hard of hearing persons. . . . I was reaching out to
various different prisons, jails advocating for
services for the deaf. So Jefferson Parish is one of the
prisons that I did contact . . . .
ROZYNSKI:
Okay. And do you recall who was the first person
that you had contact with at [JPCC] in June or July
of 2015? . . .
HUFFMAN:
Captain Bordelon. . . . I explained to him what video
phones were.
R. Doc. No. 213, at 85. Huffman testified that, after he became aware of Arce’s
incarceration and decided to contact JPCC on Arce’s behalf, he sent an e-mail
specifically to Captain Bryan Bordelon because he and Huffman had “already been
in communication.” Id. at 92.
21 See, e.g., R. Doc. No. 214, at 142, 145–46, 149, 214.
9
former Sheriff Normand Newell testified that installation ultimately required
approval by the parish. 22
The evidence clearly establishes that Bordelon and his superiors were working
toward acquiring and installing a VRS system before, during, and after Arce’s
incarceration. Because the VRS system was implemented before this case proceeded
to trial in December of 2017, Shelton cannot credibly argue that the jury’s verdict was
the “primary impetus” behind the system’s installation. 23 As to the effect of the
overall lawsuit, there is no convincing or direct evidence that it prompted the sheriff’s
decision to finally install the VRS system at JPCC, and the Court cannot conclude
that this litigation changed Sheriff Lopinto’s conduct or his office’s policies and
practices.
However, the State of Louisiana’s contention that it did not change its policies
as a result of Arce’s lawsuit defies the record. This is illustrated by the following
colloquy between Shelton’s counsel, Brittany Shrader, and Bobby Lee, Jr., the deputy
director for the Louisiana Department of Probation and Parole, during his deposition:
SHRADER:
In response to your awareness of this lawsuit, do you
intend to implement any additional policies?
LEE:
Yes, ma’am. We’re going to go back and relook at all
of our policies regarding deaf offenders, and we’ve
already started implementing new policies and new
training to assist in doing better communication [sic]
with the deaf offenders. 24
See id. at 110, 145–46. The VRS system was not installed until after Arce’s March
2016 release from JPCC. Id. at 173. In fact, according to Bordelon’s testimony, the
installation did not occur until the fall of 2017—over a year after Arce was released.
23 See R. Doc. No. 216, at 8, 9.
24 R. Doc. No. 190, at 234.
22
10
Although Shelton has yet to point this Court to a particular policy change
stemming from this litigation, the State of Louisiana’s own representative admitted
that Arce’s lawsuit prompted a change in its protocols and training. At a minimum,
the record reflects that this case “sent a message” to the State of Louisiana that its
failure to provide certain deaf and hard-of-hearing individuals with auxiliary aids
may constitute discrimination. See Guerrero v. Torres, 208 F.3d 1006, 2000 WL
177895, at *2 (5th Cir. 2000) (Table) (holding that attorneys’ fees were appropriate
because the jury verdict “sent a message to [the defendants] that the unjustified used
of force, even when a prisoner is not severely injured, is intolerable in a civilized
society”). Therefore, pursuant to Fifth Circuit guidance and considering the facts of
this case, Shelton is entitled to an award of attorneys’ fees in connection with her
counsel’s pre-appeal work, to be assessed solely against the State of Louisiana. 25
In its instructions to this Court, the Fifth Circuit focused in part on discrimination
cases in which it has affirmed a fee award when the plaintiffs sought monetary relief
but obtained only nominal damages. In Guerrero, 2000 WL 177895, at *1, the
plaintiff-inmate sued several correctional officers for their use of excessive force.
Although he achieved only nominal damages, the district court awarded attorneys’
fees. Id. Affirming the award, the Fifth Circuit relied on the district court’s finding
that “[the jury’s] verdict sent a message to [the defendants]” that unjustified uses of
force are “intolerable.” Id. at *2. Similarly, in Picou v. City of Jackson, 91 F. App’x
340 (5th Cir. 2004), the Fifth Circuit affirmed a fee award in a sex-discrimination
case because, although the plaintiff achieved only nominal damages, “she established
discrimination based on sex, which should serve as a deterrent to [the defendant] in
the future.” 91 F. App’x at 342.
25
In both Guerrero and Picou, the Fifth Circuit held that the district court had not
abused its discretion—deferring to the district court’s finding that the jury verdict
served a deterrent purpose. However, “[e]very nominal damages award has as its
basis a finding of liability” and, thus, a favorable jury verdict. Farrar, 506 U.S. at 118
(O’Connor, J., concurring). Guerrero and Picou do not preclude the Court from
finding—after an evaluation of the case-specific facts and the evidence in the record—
that the jury’s verdict in this matter had no value or deterrent effect. Based on its
11
IV.
The Court must now determine what constitutes a reasonable fee award.
“[T]he fee applicant bears the burden of establishing entitlement to an award . . . .”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Court will separately consider
Shelton’s request for those fees incurred prior to her appeal and her request for fees
incurred as a result of and following her appeal.
ATTORNEYS’ FEES FOR WORK COMPLETED
BEFORE SHELTON’S APPEAL
After a five-day jury trial, Shelton achieved a meager $2 in damages, yet
Shelton’s attorneys request almost half of a million dollars in fees for efforts
undertaken prior to Shelton’s appeal. The Court must ensure that an attorneys’ fees
award assessed against the State of Louisiana is reasonable, as the civil rights
litigation fee-shifting provisions were never intended to “produce windfalls to
attorneys.” Farrar, 506 U.S. at 115 (quoting Riverside v. Rivera, 477 U.S. 561, 580
(1986)).
Typically, to calculate a reasonable fee, courts in this circuit use the lodestar
method. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 323–24 (5th Cir. 1995). The
district court “multipl[ies] the reasonable number of hours expended on the case by
the reasonable hourly rates for the participating lawyers.” Migis v. Pearle Vision, Inc.,
135 F.3d 1041, 1047 (5th Cir. 1998). Then the district court considers whether the
lodestar should be adjusted based on the relative weight of the factors set forth in
familiarity with the parties and the record, the Court makes precisely that finding
with respect to Sheriff Lopinto.
12
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated
on other grounds, 489 U.S. 87 (1989). Saizan v. Delta Concrete Prods. Co., Inc., 448
F.3d 795, 800 (5th Cir. 2006). The Johnson factors are:
(1)
the time and labor required;
(2)
the novelty and difficulty of the issues in the case;
(3)
the skill requisite to perform the legal services properly;
(4)
the preclusion of other employment by the attorney due to
acceptance of the case;
(5)
the customary fee charged for those services in the relevant
community;
(6)
whether the fee is fixed or contingent;
(7)
time limitations imposed by the client or the circumstances;
(8)
the amount involved and the results obtained;
(9)
the experience, reputation, and ability of the attorneys;
(10)
the undesirability of the case;
(11)
the nature and length of the professional relationship with the
client; and
(12)
awards in similar cases. 26
Johnson, 488 F.2d at 717–19. The Supreme Court and the Fifth Circuit have stressed
that “the most critical factor” in determining a reasonable fee award is “the degree of
success obtained.” Migis, 135 F.3d at 1047 (quoting Farrar, 506 U.S. at 114).
“The lodestar may not be adjusted due to a Johnson factor, however, if the creation
of the lodestar amount already took that factor into account; to do so would be
impermissible double counting.” Saizan, 448 F.3d at 800.
26
13
However, as both this Court and now the Fifth Circuit have noted, “Farrar
provides the relevant legal framework in this case.” Shelton, 919 F.3d at 329. “[I]f ‘a
plaintiff has achieved only partial or limited success, the product of hours reasonably
expended on the litigation as a whole times a reasonable hourly rate’”—in other
words, the lodestar— “may be an excessive amount.” Farrar, 506 U.S. at 114 (quoting
Hensley, 461 U.S. at 436). The Supreme Court counsels that, “[w]here recovery of
private damages is the purpose of . . . civil rights litigation, a district court, in fixing
fees, is obligated to give primary consideration to the amount of damages awarded as
compared to the amount sought.” Id. (citation omitted). This comparison “promotes
the court’s ‘central’ responsibility ‘to make the assessment of what is a reasonable fee
under the circumstances of the case.’” Id. at 115 (quoting Blanchard v. Bergeron, 489
U.S. 87, 96 (1989)). When Farrar governs, as long as the court has “considered the
amount and nature of damages awarded, the court may lawfully award low fees . . .
without reciting the 12 factors bearing on reasonableness . . . or multiplying ‘the
number of hours reasonably expended . . . by a reasonable hourly rate.’” Id. (citations
omitted). 27
See Gordon v. Trane Co., 136 F.3d 1329, 1998 WL 44570, at *1 (5th Cir. 1998)
(echoing this approach); Smith v. Acevedo, No. 09-620, 2010 WL 11512274, at *1, 2 &
n.1 (W.D. Tex. Nov. 22, 2010), aff’d, 478 F. App’x 116 (5th Cir. 2012) (awarding only
nominal damages and reducing the requested fee award by almost 98% pursuant to
Farrar without calculating the lodestar); Velius v. Township of Hamilton, 466 F.
App’x 133, 138 (3d Cir. 2012) (“Whenever the trial court determines that . . . a low fee
is proper, Farrar eliminates the need to apply multi-factor tests or calculate the
lodestar” and “permits a district court to determine the amount of any low fee award
it deems is warranted by whatever means it chooses in its broad discretion.”); Mosley
v. Town of Pennington Gap, 995 F.2d 1063, 1993 WL 212484, at *2 (4th Cir. 1993)
(Table) (“Where the court finds the plaintiff has failed to prove an essential element
of the claim, resulting in nominal damages, it is not necessary for the court to follow
the customary procedures in calculating the fee.”); see also No Barriers, Inc. v. Brinker
27
14
Shelton did not request a specific amount of compensatory damages at trial.
Her settlement demands are the only indication of the monetary value she assigned
to her claims. 28 By Shelton’s own account, Arce and his father demanded
approximately $2 million from each defendant. 29 After Arce’s death, Shelton initially
continued to demand $4 million30 but eventually reduced her demand to $2 million—
$1 million per defendant. 31 Although Shelton did not request a specific damages
Chili’s Tex., Inc., 262 F.3d 496, 501 (5th Cir. 2001) (“[A] court need not explicitly
calculate the lodestar to make a reasonable award.”).
The Court considers only those negotiations referenced in the parties’ briefs and
evidenced in the record.
28
When the Court first considered Shelton’s request for attorneys’ fees, she argued that
the Court should not consider private settlement negotiations in determining her
degree of success. R. Doc. No. 184, at 6. The Court rejected Shelton’s position. R. Doc.
No. 192, at 4 n.19. As the Court noted, Shelton’s “position on her settlement demands
would leave the Court with no evidence as to the amount of compensatory damages
that she sought in this case—and without such evidence, the Court would be
hampered in its duty, when calculating a reasonable fee, ‘to give adequate
consideration to the result obtained relative to the fee award, and the result obtained
relative to the result sought.’” Id. (quoting Migis, 135 F.3d at 1048).
The Court further explained that, although the Fifth Circuit has yet to address the
applicability of Rule 408 of the Federal Rules of Evidence to motions for attorneys’
fees, the Third and Ninth Circuits have. Id. (citing Lohman v. Duryea Borough, 574
F.3d 163, 167 (3d Cir. 2009) and Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir.
2011)). The Third Circuit has concluded that “Rule 408 does not bar a court’s
consideration of settlement negotiations in its analysis of what constitutes a
reasonable fee award in a particular case” because “the use of such evidence as
bearing on the issue of what relief was sought by a plaintiff does not offend the clear
terms” of the rule. Lohman, 574 F.3d at 167. The Ninth Circuit has adopted the Third
Circuit’s reasoning. Ingram, 647 F.3d at 927.
29 See R. Doc. No. 184, at 5.
30 See R. Doc. No. 179, at 4; R. Doc. No. 184, at 5; see also R. Doc. No. 182-1, at 1 (an
e-mail from Shelton’s counsel to Sheriff Lopinto’s counsel in anticipation of the
October 2017 settlement conference in which Shelton’s counsel demanded $2 million
from each defendant on her behalf).
31 See R. Doc. No. 179-1, at 6.
15
award at trial, the amount she requested at a settlement conference held only two
months before trial reasonably approximates how she valued her case. See Lohman
v. Duryea Borough, 574 F.3d 163, 167 (3d Cir. 2009) (noting that evidence of
settlement negotiations “can be relevant when comparing what a plaintiff ‘requested’
to what the plaintiff was ultimately ‘awarded’”). 32
Despite Shelton’s demand, the jury awarded her, pursuant to the parties’
stipulation, what amounted to $1 for each defendant as a result of her failure to prove
that the defendants’ discrimination caused Arce any injury. In light of Shelton’s
extremely limited success, the Court concludes that an attorneys’ fee award of
$495,853.50 would not only be unreasonable but unconscionable. See Walker v.
United States Dep’t of Hous. & Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996)
(“[L]imited success requires a downward adjustment.”); Migis, 135 F.3d at 1048
(reversing the district court’s award of attorney’s fees because the plaintiff “sought
over twenty-six times the damages actually awarded” and, “[r]egardless of the effort
and ability of her lawyers, . . . these ratios are simply too large to allow the fee award
to stand”).
When the Fifth Circuit reviewed this Court’s denial of attorneys’ fees, it “decline[d]
to consider the course of settlement negotiations.” Shelton, 919 F.3d at 329. However,
the Fifth Circuit did not conduct a fee calculation analysis. The Fifth Circuit only
needed to determine whether Farrar governed, which did not require it to quantify
the amount of damages Shelton sought. By contrast, this Court has found that
attorneys’ fees are warranted, and it must determine a reasonable award. To comply
with the Supreme Court’s guidance—which requires the Court to compare the
amount of damages Shelton sought to the amount she was was awarded, Farrar, 506
U.S. at 114—the Court must look to the parties’ settlement negotiations; they provide
the only information regarding what Shelton hoped to achieve with respect to her
claim for damages at trial.
32
16
Being intimately familiar with the facts and history of this case, and having
assessed the applicable law, the evidence in the record, and the parties’ briefs—
including those memoranda submitted before Shelton’s appeal—the Court concludes
that a fee award of $40,945.02 is reasonable. This amount includes $20,945.02 in
requested litigation expenses, to which Shelton is entitled, 33 and $20,000 in
additional attorneys’ fees. A $40,945.02 award reflects Shelton’s limited success at
trial while still accounting for her counsel’s effort and the effect of the lawsuit on the
State of Louisiana, as well as the significance of civil rights litigation. 34
Pursuant to 42 U.S.C. § 12205, prevailing parties are entitled to the reimbursement
of “litigation expenses” as part of a reasonable fee award, which includes travel
expenses and expert witness fees. See R. Doc. No. 192, at 27-28. Shelton has requested
$12,357.68 in travel expenses and $8,587.34 in expert witness fees. See R. Doc. No.
181, at 1. The Court previously determined that these requests were reasonable and
properly documented and that they were necessary to the litigation. R. Doc. No. 192,
at 28–29. Consequently, these expenses, which total $20,945.02, are recoverable and
reflected in the Court’s final award.
33
As an aside, Shelton’s $495,853.50 request does not accurately reflect the lodestar
amount. The Court has reviewed the billing records submitted in support of Shelton’s
motion and finds that there is insufficient evidence of billing judgment. For example,
although Shelton contends that her New York attorneys reduced or struck
unproductive, excessive, or duplicative time entries, R. Doc. No. 176-1, at 15, there is
no record of such edits. “Billing judgment requires documentation of the hours
charged and of the hours written off as unproductive, excessive, or redundant.”
Saizan, 448 F.3d at 799 (emphasis added). Additionally, for the reasons explained
herein, the Court rejects Shelton’s argument that her New York attorneys should be
compensated at New York rates.
34
Out of an abundance of caution, however, the Court notes that, even if the lodestar
amount proffered by Shelton’s counsel was accurate, the Court would nonetheless
award the same fee, $40,945.02, based on the relative weight of the pertinent Johnson
factors and the Supreme Court’s instruction that “the most critical factor is the degree
of success obtained.” Hensley, 461 U.S. at 436.
17
ATTORNEYS’ FEES FOR WORK COMPLETED
IN CONNECTION WITH AND FOLLOWING SHELTON’S APPEAL
Shelton also moves the Court to award her $138,435.75 for work performed in
furtherance of her appeal on the limited issue of attorneys’ fees. 35 With respect to this
request, the Court will use the lodestar method to determine a reasonable award. 36
“As noted, the first step . . . is an evaluation of the number of hours reasonably
expended.” Kellstrom, 50 F.3d at 324. “The party seeking attorneys’ fees must present
adequately documented time records to the court.” Watkins v. Fordice, 7 F.3d 453,
457 (5th Cir. 1993). Additionally, the fee applicant “[has] the burden of showing the
reasonableness of the hours billed and that the attorneys exercised billing judgment.”
Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013).
As an initial matter, the Court issued its original order denying Shelton’s
motion for attorneys’ fees on March 1, 2018. 37 Shelton’s post-appeal brief includes
documentation of her counsel’s billing before that date. 38 Compensation for those
entries, which are dated beginning on January 8, 2018, are reflected in this Court’s
initial and aforementioned award, as they are entries associated with time Shelton’s
counsel spent on this case before her appeal. Accordingly, the Court has reduced the
See R. Doc. No. 215-1, at 15.
Although neither defendant disputes Shelton’s entitlement to appeal-related fees,
the Court notes that such fees are recoverable because Shelton prevailed on appeal.
See Bode v. United States, 919 F.2d 1044, 1052 (5th Cir. 1990); cf. Watkins v. Roadway
Express Inc., 45 F. App’x 325, 2002 WL 1899581, at *1 (5th Cir. 2002) (citing Norris
v. Hartman Specialty Stores, Inc., 913 F.3d 253, 257 (5th Cir. 1990)). Shelton was
successful in obtaining a remand with vacatur on the issue of attorneys’ fees.
Although, as discussed herein, Shelton was not meritorious on every issue, she is
nonetheless a prevailing party.
37 R. Doc. No. 192.
38 R. Doc. No. 215-1, at 1–2.
35
36
18
total hours in Shelton’s post-appeal brief, 361.69 hours, 39 by the number of hours for
work performed before March 1, 2018, which results in a total of 343.69 hours related
to her appeal.
Typically, “[b]illing judgment requires documentation of the hours charged and
of the hours written off as unproductive, excessive, or redundant.” Saizan, 448 F.3d
at 799; cf. Alberti v. Klevenhagen, 896 F.2d 927, 930 (5th Cir. 1990), vacated in part
on other grounds, 903 F.2d 352 (5th Cir. 1990) (“Ideally, billing judgment is reflected
in the fee application, showing not only hours claimed, but also hours written off.”);
Leroy v. City of Houston, 831 F.2d 576, 585 n.15 (5th Cir. 1987) (“Despite making
repeated findings that the attorneys exercised billing judgment in this case, the
billing records are completely devoid of any hours written off.”). Shelton asserts that
she reduced her fees by writing off “billing that was excessive or purely
administrative or not necessary for the appeal.” 40 However, she has not provided any
further information, and the invoice submitted in support of her request, which
includes itemized billing entries, does not include those entries that were reduced or
stricken.
In addition to the fact that Shelton has not provided evidence of billing
judgment, the purportedly edited entries suggest a lack of such judgment. To
illustrate, it appears that one attorney occasionally (but not always) reduced the
hours she spent traveling, whereas there is no such evidence for the other attorneys. 41
Id. at 14.
R. Doc. No. 216, at 13.
41 Compare, e.g., R. Doc. No. 215-1, at 11 (billing for the three and a half hours
Jennifer Karnes spent reviewing briefs on a flight despite her total travel time of six
39
40
19
Concerningly, Karnes’s entry for traveling to New Orleans is double billed. 42 “The
proper remedy for omitting evidence of billing judgment is a reduction of the award
by a percentage intended to substitute for the exercise of billing judgment.” Id.; see
also Dardar v. T&C Marine, L.L.C., No. 16-13797, 2018 WL 3950396, at *8 (E.D. La.
May 3, 2018) (Wilkinson, M.J.) (cataloging cases). Therefore, the Court will reduce
the lodestar appropriately. 43
The Court next determines the appropriate rates for each individual who
worked on the matter. Shelton requests hourly rates for each of her attorneys and the
paralegals as follows: 44
Attorney/staff member
Hourly rate
Andrew Rozynski
$500
Jennifer Karnes
$450
Juyoun Han
$350
Paralegals
$150
hours), with R. Doc. No. R. Doc. No. 215-1, at 11 (billing for all seven hours Juyoun
Han spent on “[t]ravel to New Orleans for oral argument”).
42 See 215-1, at 11 (two entries billing for Karnes’s trip to New Orleans on March 10,
2019—one for two and a half hours and one for three and a half hours).
43 See infra p. 25.
44 As an aside, and although this Court declines to award Shelton’s counsel New York
rates, “[s]atisfactory 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.” Cameron v. Greater New Orleans Fed. Credit
Union, No. 16-8514, 2017 WL 1426970, at *2 (E.D. La. Apr. 21, 2017) (Roby, M.J.)
(citing Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). Shelton has not provided the
Court with any information regarding what Karnes or Han have been awarded in
other lawsuits. With respect to Rozynski, his declaration includes references to one
prior case and one prior arbitration award—and Rozynski was awarded less than his
requested rate in both instances. See R. Doc. No. 215, at 3.
20
As a general rule, “‘reasonable’ hourly rates ‘are to be calculated according to
the prevailing market rates in the relevant community,’” McClain v. Lufkin Indus.,
Inc., 649 F.3d 374, 381 (5th Cir. 2011) (quoting Blum v. Stenson, 465 U.S. 886, 895
(1984)), not “the rates that ‘lions at the bar may command,’” Hopwood III, 236 F.3d
at 281 (quoting Leroy v. City of Houston, 906 F.2d 1068, 1079 (5th Cir. 1990)). The
relevant community is “the community in which the district court sits.” Tollett v. City
of Kemah, 285 F.3d 357, 368 (5th Cir. 2002) (quoting Scham v. Dist. Courts Trying
Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998), abrogated on other grounds, 532
U.S. 598 (2001)). Only “where . . . abundant and uncontradicted evidence prove[s] the
necessity of . . . out-of-district counsel” should such counsel’s “home” rates be
considered for the purposes of calculating the lodestar. McClain, 649 F.3d at 382.
Shelton argues that her New York-based attorneys should be compensated at
New York rates because of their special expertise in discrimination cases involving
deaf individuals and the necessity of their representation in this matter. In support
of this contention, Shelton submitted a declaration from John Veazey, who practices
disability civil rights law in Louisiana. 45 According to Veazey, “very few attorneys in
Louisiana handle” disability civil rights cases. 46 To the best of his knowledge, he and
only two other Louisiana attorneys “hold themselves out to accept and handle [these]
types of case[s].” 47 Veazey asserts that, “given the volume of work and money spent
in successfully prosecuting the case at bar, . . . it would have been extremely difficult,
R. Doc. No. 216-2, at 1.
Id. at 2.
47 Id.
45
46
21
if not impossible, for in-state counsel to have had the resources to litigate this matter
and obtain the successful result that [Shelton’s counsel] did.” 48
Veazey references the “[i]mportant and extremely convoluted points of law”
that had to be litigated before trial, but none of the issues raised and briefed in
pretrial motions were specific to deaf or hard-of-hearing individuals. This Court has
presided over a number of cases in which Louisiana attorneys prosecuted cases under
Title II of the ADA and/or the Rehabilitation Act, and many, if not all, are equipped
to analyze and argue the pretrial legal issues raised in this case. As the State of
Louisiana notes, the majority of the issues litigated—not only before but also during
trial—involved the same law and required the same analysis as any Title II case.
Second, and more importantly, none of the issues litigated before and during trial
were relitigated on appeal. 49 Shelton’s appeal pertained exclusively to the issue of her
entitlement to attorneys’ fees, an issue non-unique to discrimination cases and deaf
plaintiffs.
“Contrary to [Shelton’s] counsel’s appreciation of this case, [the Court] do[es]
not perceive it to have been extraordinarily difficult.” Hopwood III, 236 F.3d at 281.
In an affidavit submitted by one of Shelton’s local attorneys, Andrew Bizer, Bizer
cited the “difficult issues” involved in this case, his firm’s lack of experience with deaf
individuals, and “added costs of the litigation” to support the Court’s use of New York
Id. at 3–4.
Brief for the Appellant at 2, Shelton v. Louisiana, 919 F.3d 325 (5th Cir. 2019) (No.
18-30349) (“[T]he issues that give rise to the instant appeal is [sic] limited to the
District Court’s denial of Arce-Shelton’s attorney’s fees, not the judgment regarding
Arce-Shelton’s discrimination claims.”).
48
49
22
rates to compensate Shelton’s New York attorneys. But Bizer has yet to specify the
difficult issues or additional costs.
The Court has borne witness to the skill, expertise, and motion practice
required throughout the life of this matter, and it cannot justify permitting Shelton’s
New York counsel to be compensated at New York rates—especially in connection
with her appeal of the Court’s denial of attorneys’ fees. It is clear to the Court that
Shelton’s local counsel were fully capable of understanding how the relevant law
applied to the facts of this case. Furthermore, although Bizer attested that this case
was “especially problematic” because Arce was bipolar and because Arce passed away
during the pendency of this action, there is no indication that Shelton’s New York
counsel were more equipped to handle those particular issues or that those issues
required any specialized New York expertise. Finally, Shelton has not provided the
Court with any information specific to the issues litigated on appeal or any
explanation as to why the Court should award her appellate counsel, in particular,
New York rates.
There is simply no “abundant and uncontradicted” evidence sufficient to
overcome the general rule providing that local community rates govern. McClain, 649
F.3d at 382. Considering the affidavits filed alongside the parties’ initial briefing, the
declaration and documentation submitted by Shelton in April of 2019 following
remand, recent and comparable case law outlining the reasonable fees set by courts
in this district, and the Court’s knowledge of billing rates among Eastern District of
Louisiana lawyers, the Court concludes that Shelton’s New York counsel and their
support staff should be compensated at the following rates:
23
Attorney
Hourly rate
Andrew Rozysnki
$275 50
Jennifer Karnes
$175 51
Juyoun Han
$125 52
According to his declaration, Rozynski has been a partner since 2013. R. Doc. No.
215, at 2. He was admitted to practice law in 2012—meaning he has, at most, seven
years of experience as a practicing attorney. See id. at 3. He has litigated over 300
cases representing deaf individuals. Id. at 2. The Court concludes that Rozynski
should be compensated at a rate comparable to Shelton’s most experienced local
counsel, Andrew Bizer.
50
Bizer graduated from law school in 2003, and he has over fifteen years of experience.
R. Doc. No. 176-7, at 1–2. He specializes in disability discrimination cases, founded
his own law firm in 2008, and has been involved in over 300 ADA cases. Id. at 1–2.
According to Bizer, he is most frequently compensated at an hourly rate of $275. See
id. at 3. This comports with the compensation of other attorneys with comparable
skill and experience. See Gilmore v. Audubon Nature Inst., Inc.¸ 353 F. Supp. 3d 499,
508–09 (E.D. La. 2018) (Wilkinson, M.J.) (cataloging ADA cases in which attorneys
with thirteen to fifteen years of experience were awarded hourly rates of $275).
Like Rozynski, Karnes has been admitted to practice law in New York since 2012;
thus, she also has approximately seven years of experience. R. Doc. No. 215, at 3. She
focuses primarily on representing deaf individuals in discrimination cases. Id.
Shelton’s requested rate for Karnes is lower than her requested rate for Rozynski.
For a senior associate with Karnes’s experience in her specialty area, the Court finds
$175 to be an appropriate hourly rate in this community. See R. Doc. No. 176-7, at 69
(declaration of Shelton’s local counsel Garret DeReus, a junior partner who graduated
from law school in 2013 and has been involved in over 200 ADA cases, attesting that
his hourly rate is $175); see also Mark v. New Orleans City, No. 15-7103, 2017 WL
23764392, at *3 (E.D. La. May 4, 2017) (Knowles, M.J.) (awarding DeReus $175 per
hour when he had four years of experience); Gilmore, 353 F. Supp. 3d at 509
(awarding an hourly rate of $275 to attorneys who specialized in ADA cases and had
sixteen years of experience).
51
Han has been admitted to practice law in New York since 2016. Id. at 4. For a junior
associate with her experience in her specialty area, the Court finds that $125 is an
appropriate hourly rate in this community. Mark v. Sunshine Plaza, No. 16-455, 2018
WL 1282414, at *4 (E.D. La. Mar. 12) (Wilkinson, M.J.), approved and adopted, 2018
WL 1960022 (E.D. La. Apr. 26, 2018) (Morgan, J.) (awarding $125 per hour for
associates with five years of experience in an ADA case); Mark v. Covington City, No.
15-5977, R. Doc. No. 30, at 4 (E.D. La. July 8, 2016) (Zainey, J.) (awarding two
associates with three years of experience an hourly rate of $125 in an ADA case); See
52
24
Paralegals
$85 53
Based on the Court’s determination of the hours expended by each attorney
and each attorney’s corresponding hourly rate, the lodestar is calculated as follows:
Andrew Rozynski:
$275
x
55.80 hours
=
$15,345.00
Jennifer Karnes:
$175
x
84.94 hours
=
$14,864.50
Juyoun Han:
$125
x 188.85 hours
=
$23,606.25
x
=
$1,198.50
Paralegals:
$85
14.10 hours
$55,014.25 total
To reflect the lack of evidence related to billing judgment, the Court reduces that
amount by 15%, and it calculates the final lodestar amount to be $46,762.11. 54
Having calculated the lodestar, the Court must now determine whether it
should be adjusted. The most important factor for the Court to consider is the “degree
of success obtained.” Hensley, 461 U.S. at 436. Broadly, Shelton is a prevailing party
because the Fifth Circuit reversed this Court’s order denying her attorneys’ fees and
Herbert v. Audubon Comm’n, No. 15-5425, 2017 WL 5900978, at *2 (E.D. La. Nov. 30,
2017) (Lemelle, J.) (awarding $125 per hour for a third-year associate in an ADA
case).
See Miraglia v. Bd. of Supervisors of La. State Museum, No. 15-4947, 2017 WL
5177936, at *1 (E.D. La. Nov. 7, 2017) (Zainey, J.), aff’d, 901 F.3d 565 (5th Cir. 2018)
(awarding $75 per hour for a paralegal); Falls v. Bd. of Comm’rs of New Orleans Reg’l
Transit Auth., No. 16-2499, 2017 WL 2730781, at *10 (E.D. La. June 26, 2017) (Roby,
M.J.) (awarding $100 per hour for a paralegal); Norris v. Causey, No. 14-1598, 2016
WL 1046101, at *3 (E.D. La. Mar. 16, 2016) (Barbier, J.) (awarding $80 per hour for
a paralegal); Mark, 2017 WL 2374392, at *3 (awarding $90 per hour for a paralegal).
53
See Hopwood III, 236 F.3d at 279, 281 (affirming the district court’s fee award,
which included a 25% reduction for inadequate billing records and judgment); Saizan,
448 F.3d at 800 (affirming a 10% reduction of the lodestar because the plaintiff failed
to provide evidence of billing judgment); Dardar, 2018 WL 3950396, at *9 (reducing
the total by 15% to account for billing deficiencies).
54
25
ordered the Court to reconsider its decision. However, on remand, Shelton has been
unable to demonstrate that she achieved a compensable goal with respect to one of
the two defendants.
Furthermore, a closer look reveals that Shelton’s success on appeal was
limited: the Fifth Circuit rejected several of her arguments, as well as her proposed
remedy, and it disagreed with her on several foundational issues. First, Shelton
initially moved the Fifth Circuit to grant her attorneys’ fees. 55 Specifically, Shelton
requested that the Fifth Circuit “issue an order granting [her] motion for attorneys
fees . . . without remand.” 56 The Fifth Circuit declined. To the contrary, it “express[ed]
no opinion as to the propriety of awarding fees in this case.” Shelton, 919 F.3d at 331.
Brief for the Appellant, supra note 49, at 10 (“This Court should find that the
District Court abused its discretion, reverse the District Court’s ruling and grant
attorney’s fees to Appellant . . . .”).
55
Brief for the Appellant, supra note 49, at 48 (emphasis added). In the alternative,
Shelton requested that the Fifth Circuit “reserve [sic] the District Court’s ruling and
remand . . . for further calculation of costs and fees.” Id. Shelton points out that, at
oral argument, Judge Higginson asked her counsel, “You’re asking us to vacate [and]
remand so that the district judge applies the right law in terms of deciding whether,
under Farrar, despite the fact that you only got a dollar, there still is a significant
public victory?” He responded, “Absolutely, Your Honor, that’s correct of [sic] what
we’re seeking.” Oral Argument at 00:33, Shelton v. Louisiana, 919 F.3d 325 (5th Cir.
2019) (No. 18-30349), http://www.ca5.uscourts.gov/OralArgRecordings/18/1830349_3-11-2019.mp3.
56
However, there is no indication that Shelton formally abandoned her original position
that, instead of remanding the case, the Fifth Circuit should have simply awarded
her attorneys’ fees. Indeed, right up until oral argument, Shelton urged the Fifth
Circuit to enter an order granting her motion for attorneys’ fees. See Reply Brief for
the Appellant, at 14, Shelton v. Louisiana, 919 F.3d 325 (5th Cir. 2019) (No. 18-30349)
(“Arce-Shelton respectfully requests that this Court reverse the District Court’s
decision and issue an order granting Appellant’s motion for attorney’s fees and costs
as requested. Alternatively, Appellant requests that this Court remand to the District
Court for further calculation of an appropriate attorney’s fee award.”).
26
Second, Shelton argued that this case was not governed by the Supreme
Court’s decision in Farrar. 57 Shelton argued that this case was more like Sanchez v.
City of Austin, 774 F.3d 873 (5th Cir. 2014), and Riley v. City of Jackson, 99 F.3d 757
(5th Cir. 1996), cases in which the Fifth Circuit held that Farrar did not apply
because, in addition to nominal damages, the plaintiffs sought and obtained
injunctive relief. 58 The Fifth Circuit rejected Shelton’s argument, agreeing with this
Court “that Farrar provides the relevant framework” and expressly distinguishing
Sanchez and Riley. Shelton, 919 F.3d at 328–29.
Third, Shelton argued that this Court erred when it concluded that Shelton’s
primary objective in this lawsuit was the pursuit of monetary relief. 59 The Fifth
Circuit disagreed:
We do not question the sincerity of Shelton’s desire to vindicate the
rights of Arce and other deaf individuals through this lawsuit. But a
plaintiff’s subjective motivation in pursuing civil rights litigation is not
the relevant consideration. As the Supreme Court has explained,
“focusing on the subjective importance of an issue to the litigants” raises
“a question which is almost impossible to answer” and “is wholly
irrelevant to the purposes behind the fee shifting provisions.” . . . We
agree with the Fourth Circuit that “Farrar simply requires courts to
consider the relief that was sought by the plaintiff, not the relief that
was most important to the plaintiff.”
Id. at 329 (citations omitted). Consistent with this Court’s opinion, the Fifth Circuit
concluded that “Shelton sought compensatory damages,” received only nominal
Brief for the Appellant, supra note 49, at 16.
Id. at 15–16; Reply Brief for the Appellant, supra note 56, at 6–7.
59 Brief for the Appellant, supra note 49, at 21–22 (arguing that Arce and Shelton
pursued equitable remedies throughout the litigation and that “Arce-Shelton’s
remedies sought at trial does [sic] not represent the damages she sought throughout
the entirety of the lawsuit”).
57
58
27
damages, and “obtained no other judicial relief” and that, as a result, a denial of fees
may be appropriate. Id.
The Court finds that almost all of the Johnson factors are subsumed within
the Court’s calculation of the lodestar and the Court’s consideration of the “degree-ofsuccess” factor. See, e.g., Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010)
(noting that Supreme Court precedent suggests that “the lodestar figure includes
most, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee”
(quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566
(1986))). Thus, based on an extensive review of the parties’ briefs, the underlying facts
of the case, and Shelton’s limited success with respect to the issues she raised on
appeal as well as her arguments before this Court on remand, the Court finds that
an adjusted fee award of $36,762.11 is appropriate. 60 Adding to that the amount
Shelton’s counsel spent on travel expenses, which totals $2,092.80, the award for
appeal-related fees amounts to $38,854.91. 61
For clarity purposes, this figure stems from the following calculation: first, the
Court calculated the lodestar to be $55,014.25. To reflect a lack of billing judgment,
the Court reduced that figure by 15% to $46,762.11. Finally, to account for Shelton’s
lack of success, the Court further reduced the amount by $10,000 to $36,762.11. That
total, plus $2,092.80 in appeal-related costs, produces a sum of $38,854.91.
60
Travel expenses are recoverable as part of an attorneys’ fee award. See supra note
33. Shelton’s appellate counsel spent $1,489.80 on roundtrip airfare traveling from
New York to New Orleans for oral argument before the Fifth Circuit, R. Doc. No. 2153, at 12, 18, and they spent $603 on lodging while in New Orleans. (Shelton’s counsel
indicated that their lodging cost them $633—$211 per room for three rooms, one for
each attorney. R. Doc. No. 215-1, at 14. However, the receipts show that her counsel
were only charged $603 as a result of a $30 credit, which Shelton has not explained.
See R. Doc. No. 215-3, at 9.) Accordingly, in addition to the reduced lodestar amount,
Shelton is entitled to recover $2,092.80 in travel expenses, which are reflected in the
final amount calculated by the Court.
61
28
V.
Finally, the Court turns to Shelton’s final request for appeal-related costs. On
April 9, 2019, Shelton submitted a bill of costs to the Fifth Circuit in the requested
amount of $5,234.95. The Fifth Circuit’s Clerk of Court approved costs in the amount
of $753.46. 62 Shelton requests additional costs from this Court. 63
“[A] district court may not award costs unless it first determines ‘that the
expenses are allowable cost items and that the costs are reasonable, both in amount
and in necessity to the litigation.’” Katz v. State Farm Fire & Cas. Co., No. 06-4155,
2009 WL 3712588, at *1 (E.D. La. Nov. 4, 2009) (Vance, J.) (citation omitted). Federal
Rule of Civil Procedure 54(d)(1) provides that a “prevailing party” in federal court
“should be allowed” to recover their non-attorneys’-fee “costs.”
Title 28, United States Code, § 1920 “enumerates expenses that a federal court
may tax as a cost under the discretionary authority found in Rule 54(d).” Crawford
Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 441–42 (1987). These expenses are:
(1)
Fees of the clerk and marshal;
R. Doc. No. 227-2, at 1.
See R. Doc. No. 215-1, at 14–15. Although it appears that the Court has the
authority to reduce requested costs and expenses based on a party’s limited success,
see Cashman Equip. Corp. v. Rozel Operating Co., 569 F. App’x 283, 288–89 (5th Cir.
2014), neither defendant has objected to Shelton’s request for costs or moved the
Court to reduce the requested amount, and the Court declines to do so on its own
initiative.
62
63
Shelton requests reimbursement for expenses related to travel and acquiring
transcripts. As the Court has previously explained, however, travel expenses are not
recoverable under § 1920. R. Doc. No. 192, at 27 n.61 & 29 n.65; Coats v. Penrod
Drilling Corp., 5 F.3d 877, 892 (5th Cir. 1993). The Court has considered, and
awarded, Shelton’s request for travel expenses as part of her request for attorneys’
fees. See supra note 61. Thus, the award of costs discussed in this Part V includes
only the transcript costs.
29
(2)
Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
(3)
Fees and disbursements for printing and witnesses;
(4)
Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;
(5)
Docket fees under section 1923 of this title; and
(6)
Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
§ 1920; see also Mota v. Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 529 (5th
Cir. 2001). Because costs associated with obtaining trial transcripts are recoverable
under § 1920(2), and because the record reflects that Shelton relied on the transcripts,
the Court will award Shelton her related costs in the amount of $2,541.40. 64
VI.
To conclude, the Court reiterates the basic facts underlying Shelton’s request:
she sought as much as $4 million in compensatory damages for the discrimination
she alleged against the State of Louisiana and Sheriff Lopinto, but she achieved only
nominal damages and obtained no other judicially sanctioned relief. 65 Although the
Court has concluded that attorneys’ fees are warranted, such fees must be
reasonable—particularly in light of Shelton’s extremely limited success.
The Court therefore awards Shelton $40,945.02 in attorneys’ fees and expenses
for the work her counsel performed prior to her appeal. Because she has failed to
64
65
R. Doc. No. 215-3, at 1.
R. Doc. No. 192, at 32.
30
establish that she achieved a compensable public goal that has any connection to
Sheriff Lopinto, the State of Louisiana shall bear the full cost.
The Court also awards Shelton $38,854.91 for attorneys’ fees related to her
appeal, as well as $2,541.40 in appeal-related costs. Before the Fifth Circuit, both the
State of Louisiana and Sheriff Lopinto argued that Shelton was not entitled to any
award pursuant to Farrar. Although the Fifth Circuit declined to comment on the
appropriateness of a fee award, it nonetheless remanded the case for reconsideration,
rejecting the defendants’ argument that this Court’s judgment should be affirmed. In
other words, the State of Louisiana and Sheriff Lopinto lost on appeal, and they shall
each pay half of the total appeal-related award.
Accordingly,
IT IS ORDERED that Shelton’s motion for attorneys’ fees and costs is
GRANTED IN PART and DENIED IN PART, in accordance with this order.
IT IS FURTHER ORDERED that, for the work performed by Shelton’s
counsel prior to her appeal, she shall be awarded attorneys’ fees in the amount of
$40,945.02, assessed solely against the State of Louisiana, as well as post-judgment
interest at the federal statutory rate pursuant to 28 U.S.C. § 1961, beginning on the
date of this Court’s judgment on the merits, December 18, 2017, until judgment is
paid. 66
All of the parties agree that the accrual of post-judgment interest is governed by
Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir. 1983) (en banc),
overruled in part on other grounds, 790 F.2d 1193 (5th Cir. 1986). In Copper Liquor,
the Fifth Circuit held that an attorneys’ fee award “bear[s] interest from the date a
judgment is rendered making the award.” Id. at 543. “If a judgment is rendered that
does not mention the right to attorneys’ fees, and the prevailing party is
unconditionally entitled to such fees by statutory right, interest will accrue from the
66
31
IT IS FURTHER ORDERED that, for the work performed by Shelton’s
counsel in connection with her appeal, she shall be awarded attorneys’ fees in the
amount of $38,854.91 and costs in the amount of $2,541.40, as well as post-judgment
interest at the federal statutory rate pursuant to 28 U.S.C. § 1961, beginning on the
date of the Fifth Circuit’s judgment, March 26, 2019, until judgment is paid.
Of the appeal-related award, Sheriff Lopinto shall pay $20,698.15—one-half of
the amount of fees and costs awarded in connection with Shelton’s appeal. The State
of Louisiana shall pay the remaining $20,698.16.
New Orleans, Louisiana, June 4, 2019.
_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
date of judgment.” Id. at 544; see also Kellstrom, 50 F.3d at 331–32. Accordingly, the
Court will award Shelton interest on the pre-appeal award beginning from the date
of this Court’s judgment on the merits, December 18, 2017. The Court will award
interest on the award related to her appeal beginning from the date of the Fifth
Circuit’s judgment, March 26, 2019.
32
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