Batiste v. Lewis et al

Filing 129

ORDER: IT IS ORDERED that the 91 Motion to Fix Attorney's Fees is GRANTED and that the Plaintiff is awarded reasonable attorney's fees in the amount of $3,554.00. IT IS FURTHER ORDERED that Plaintiff Paul Batiste and his counsel shall satisfy their obligation to the Plaintiff no later than twenty-one (21) days after the signing of this order. Signed by Magistrate Judge Karen Wells Roby on April 11, 2019. (mp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PAUL BATISTE d/b/a ARTANG
PUBLISHING, LLC, a Louisiana Limited
Liability Company

CIVIL ACTION

VERSUS

NO: 17-4435

RYAN LEWIS, BEN HAGGERTY,
Professionally known as MACKLEMORE,
Professionally and collectively known as
MACKLEMOE AND RYAN LEWIS,
Individuals, MACKLEMORE PUBLISHING,
RYAN LEWIS PUBLISH, MACKLEMORE, LLC
ALTERNATIVE DISTRIBUTION ALLIANCE,
ANDREW JOSLYN, ALLEN STONE, ANDREW JOSLYN
MUSIC, LLC, STICKY STONES PUBLISHING

SECTION: AF@ (4)

ORDER
Before the Court is Motion to Fix Attorneys’ Fees (R. Doc. 91). The motion is opposed. R.
Doc. 99. The motion was heard on the briefs.
I.

Factual Summary
This is copyright infringement case was filed by Paul Batiste, a New Orleans jazz musician

that is the founding member and owner of Artang Publishing, LLC and the Batiste Brothers Band. Id.
at p. 2. Defendants Ryan Lewis and Ben Haggerty are a famous hip-hop duo known as “Macklemore
and Ryan Lewis,” who have achieved international success for their singles “Thrift Shop” and “Can’t
Hold Us. Id.” Defendants have also received several Grammy awards, including those for best new
artist, best album, and best rap performance for their single “Thrift Shop.” Id.
Plaintiff alleges that defendants willfully infringed on his copyrights by using unauthorized
samples and copying elements of eleven of plaintiff’s original songs in the composition of “Thrift

Shop,” “Can’t Hold Us,” “Need to Know,” “Same Love,” and “Neon Cathedral.” Id. Plaintiff also
sued several others who were credited with writing the songs, and the publishing companies who own
the rights to the compositions. Id. Plaintiff contends, inter alia, that he is entitled to actual damages
and defendants’ profits in connection with the infringed copy-righted songs. R. Doc. 40 at p. 13-22.
Discovery in this case was a bit taxing. Nonetheless, the Court issued an Order & Reasons
(R.Doc. 89, revised order) on the Defendants Motion to Compel finding that not only was the Plaintiff
required to respond to the written discovery but also to supplement his discover responses.
Additionally, the court found that due to the failure to adequately respond and in face of the
unopposed motion to compel that attorney’s fees were appropriate.
II.

Standard of Review
The Supreme Court has indicated that the “lodestar” calculation is the “most useful starting

point” for determining the award of attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The lodestar equals “the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Id. The lodestar is presumed to yield a reasonable fee. La. Power & Light
Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). After determining the lodestar, the Court must
then consider the applicability and weight of the twelve factors set forth in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). 1 The Court can make upward or downward
adjustments to the lodestar figure if the Johnson factors warrant such modifications.

See Watkins v.

1
The twelve Johnson factors are: (1) the time and labor involved; (2) the novelty and difficulty of the questions;
(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 professional relationship with the client; and (12) awards in similar cases. See Johnson, 488
F.2d at 717-19.

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Fordice, 7 F.3d 453, 457 (5th Cir. 1993). However, the lodestar should be modified only in
exceptional cases. Id.
After the calculation of the lodestar, the burden then shifts to the party opposing the fee to
contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended
“by affidavit or brief with sufficient specificity to give fee applicants notice” of the objections.

Rode

v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
III.

Analysis
A. Reasonableness of the Hourly Rates
Defendants seek to recover the attorney’s fees for Erin Dennis (“Dennis”) of Loeb & Loeb

LLP and Mary Elen Roy (“Roy”) and Dan Zimmerman (“Zimmerman”) of Phelps Dunbar as a result
of work performed on one Motion to Compel. The rates billed to the client range from $250 to $375.
The Plaintiff contends that the rates charged by the Loeb & Loeb LLP attorneys exceed the
rates available in the New Orleans Market. The Plaintiff contends that reasonable rates are $200 per
hour for partner level and $150 per hour for associates. Therefore, Batiste contsends that the
reasonable rates are less than the rates sought by defense counsel.
Attorney=s fees must be calculated at the Aprevailing market rates in the relevant community”
for similar services by attorneys of reasonably comparable skills, experience, and reputation. Blum v.
Stenson, 465 U.S. 886, 895 (1984). The applicant bears the burden of producing satisfactory evidence
that the requested rate is aligned with prevailing market rates. See NAACP v. City of Evergreen, 812
F.2d 1332, 1338 (11th Cir. 1987). Satisfactory evidence of the reasonableness of the rate necessarily
includes an affidavit of the attorney performing the work and information of rates actually billed and
paid in similar lawsuits. Blum, 465 U.S. at 896 n.11. However, mere testimony that a given fee is

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reasonable is not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439 n.15.
Rates may be adduced through direct or opinion evidence as to what local attorneys charge
under similar circumstances. The weight to be given to the opinion evidence is affected by the detail
contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of
case and client, and breadth of the sample of which the expert has knowledge. Norman v. Hous.
Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); see also White v. Imperial
Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28, 2005) (recognizing that
attorneys customarily charge their highest rates only for trial work, and lower rates should be charged
for routine work requiring less extraordinary skill and experience).
Defendants have attached affidavits from the attorneys who worked on the motion. (R. Docs.
91-2). Christian D. Carbone (“Carbone”), is a partner with the law firm of Loeb & Loeb and he
states that he supervises Erin Smith Dennis, who is the associate that performed the work on the
underlying Motion to Compel. Carbone is not seeking a fee award.
Carbone attests that Dennis has been licensed by the New York bar since May 2014, or five
years. He indicates further that she is graduate of both Davidson College and Columbia University
Law School where she graduated with honors. According to Ms. Roy and Mr. Carbone, Ms. Dennis’
hourly rate is $250.00. (R. Doc. 91-3, 3)
Mary Ellen Roy, a partner with Phelps Dunbar LLP, also counsel for the defendants submitted
an affidavit. (R. Doc. 91-3) Ms. Roy states that she is a graduate of Harvard Law School and a
member of the bar since 1984. She indicated that she is also Chair of the Louisiana State Bar
Association Intellectual Property Litigation. Id.
$375.00.

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She further indicates that her billing rate was

She states that she personally worked on the motion with Dan Zimmerman, Chris Carbone
and Erin Smith Dennis. (R. doc. 91-3, P.2)

Zimmerman is a staff attorney and 1982 graduate of

Tulane University School of Law, who practices at Phelps Dunbar and according to Ms. Roy his
hourly billing rate is $290.00. Id.
Batiste contends that the rates sought are not consistent with the market rate. For example,
an associate with eight years of service is $150.00, with thirty years of service is $225 and $350 for
partner level work. Batiste contends that the rates should be adjusted accordingly.
Where an attorney’s customary billing rate is the rate at which the attorney requests the
lodestar to be computed and that rate is within the range of prevailing market rates, the court should
consider this rate when fixing the hourly rate to be allowed. When that rate is not contested, it is
prima facie reasonable.” La. Power & Light, 50 F.3d at 328.
Satisfactory evidence of the reasonableness of the rate, at a minimum, is more than the
affidavit of the attorney performing the work. Norman, 836 F.2d at 1299 (citing Blum, 465 U.S. at
896 n .11)). It must also speak to rates actually billed and paid in similar lawsuits. Thus, mere
testimony that a given fee is reasonable is not satisfactory evidence of market rates. See Hensley, 461
U.S. at 439 n. 15. Having considered the affidavit submitted by the mover, the Court finds that is
not adequate because it does not speak to the rates actually billed and paid in similar lawsuits.
However, this does not end the inquiry. The Court will proceed to look at the market rate for the New
Orleans area given the years of experience of the billing attorneys.
Rates may be adduced through direct or opinion evidence as to what local attorneys charge
under similar circumstances. The weight to be given to the opinion evidence is affected by the detail
contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of

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case and client, and breadth of the sample of which the expert has knowledge. Norman v. Housing
Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); see also White v. Imperial
Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28, 2005) (recognizing that
attorneys customarily charge their highest rates only for trial work, and lower rates should be charged
for routine work requiring less extraordinary skill and experience).
Roy and Zimmerman’s years of experience are similar. Roy has been practicing 35 years and
Zimmerman some 36 years. Roy’s rate is $375 per hour and Zimmerman’s rate is $290 per hour. See
Bd. of Supervisors of La. State Univ. v. Smack Apparel Co., No. 04–01593, 2009 WL 927996, at *4–
5 (E.D. La. Apr. 2, 2009) ($325.00 per hour was a reasonable hourly rate for an attorney with ten
years of specialized experience in trademark litigation, and for an attorney who had twenty-nine years
of experience, but not in the particularized field of intellectual property law.); See also Who Dat Yat
Chat, LLC v. Who Dat. Inc., 838 F. Supp. 2d 516 (E.D. La. Jan. 19, 2012). Considering that Roy and
Zimmerman are specialists in the substantive area and further that there are no other cases on point
in this market, the Court will accept their rates as reasonable.
Regarding Ms. Dennis her rate of $250 with just five years’ experience. The Court, however
finds that a rate of $200 is reasonable for an attorney with this limited number of years of experience.
B. Determining the Reasonable Hours Expended
Four attorneys worked on the drafting of the subject Motion to Compel which was not
particularly complex. It consisted of eleven pages and identified the areas where Batiste had failed
to respond. Interestingly, the entire discovery had not been responded to such that the objections
were waived and in fact was not opposed. There were five pages of background and a two-page
preliminary statement. Nonetheless, the defendants seek an attorney fee award of $6,628.00.

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The billing entries show that multiple attorneys were drafting and reviewing the discovery for
the defendants. Dennis spent 18.4 hours editing the factual section of the opposition to the Motion to
Compel and meetings between counsel. Mary Ellen Roy (3.0 hrs.) also indicates that she too worked
on the Motion to Compel along with Zimmerman (6.60 hrs.). The total hours billed for working on
a draft of the non-complex Motion to Compel between the three lawyers is 28.0 hours.
Duplicate billing under a fee-shifting statute is not per se unreasonable, as long as the award
for time spent by two or more attorneys "reflects the distinct contribution of each lawyer to the case
and the customary practice of multiple-lawyer litigation." Thomas v. Frederick, No. 87-1950, 1992
WL 17273, *1 (W.D. La. Jan. 29, 1992) (citing Johnson v. University of University of Alabama, 706
F.2d 1205, 1208 (11th Cir. 1983)).
The District Court has considerable discretion in this area because of its familiarity with the
case and the attorney's work. See Associated Builders & Contractors, Inc. v. Orleans Parish School
Bd., 919 F.2d 374, 379 (5th Cir. 1990); Berberena v. Coler, 753 F.2d 629, 633 (7th Cir. 1985). A
central factor in evaluating the necessity of multiple attorneys at court hearings or trials is the degree
to which each attorney participated in or contributed to the proceedings. West Virginia University
Hosp., Inc. v. Casey, 898 F.2d 357, 365 (3rd Cir. 1990).
C. Reasonable Attorney’s Fees
The party seeking attorney=s fees bears the burden of establishing the reasonableness of the
fees by submitting adequate documentation and time records of the hours reasonably expended and
proving the exercise of billing judgment. Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir.
1997). Attorneys must exercise Abilling judgment@ by excluding time that is unproductive, excessive,
duplicative, or inadequately documented when seeking fee awards. Walker v. United States Dep=t of

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Housing & Urban Dev., 99 F.3d 761, 769 (5th Cir.1996). Specifically, the party seeking the award
must show all hours actually expended on the case but not included in the fee request. Leroy v. City
of Houston, 831 F.2d 576, 585 (5th Cir. 1987). Hours that are not billed properly to one’s client also
are not properly billed to one’s adversary. Hensley, 461 U.S. at 434. 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. Alternatively, this Court can conduct a line-by-line analysis of the time
report. See Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642 (5th Cir. 2002).
The Court has reviewed the contemporaneous billing sheets and finds that the following
entries are unreasonable as they are duplicative, or block billed:
Dennis’ entry for January 19, 2019 of 4.7 is excessive and therefore reduced to 2.7.
Additionally, the entry for January 20, 2019 of 6.1 is excessive, blocked bill and therefore reduced to
3.1. Therefore, Dennis’s reasonably billed hours total 6.2 hours and Zimmerman’s reasonably billed
hours are 4.10 hours because of the -2.50 hours in duplicate billing.
Additionally, as to Dennis, the actual hours billed totaled 18.4 but she only was seeking 11.2
hours. The Court construes the difference between the two numbers as Dennis’ exercise of billing
judgment and therefore it will be reflected as such in the calculation.

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Date

Tas k

Dennis

1/17/2019 Attn to review of MTC; meeting with Carbone Slavin
1/18/2019 Revis ing previous ly drafted MTC, meeting Slavin
Corres pondence with oppos ing couns el re: whether to
reques t s anctions for plaintiff’s failure to res pond
Corres pondence w/ co couns el re meaning of Court
Order and ramification
Corres pondence with co couns el on MTC dis covery
Comment on draft MTC
1/19/2019 Drafting fact section of opp’n to MTC
Legal Res earch and review of Corres pondence with cocouns el
1/20/2019 Attn to revising MTC; revising opp’n to MTC.
Strategize with co-couns el re: various is s ues rais ed by
motions .
1/21/2019 Revising MTC and Opp’n to MTC, emails to team
Work on def. mtn to compel dis covery from P.
Strategize with co-couns el re: s ame
Telephone conf with co-couns el re: hearing on Mtn to
1/22/2019 compel
1/22/2019 Follow-up to e-filings of Def. Mtn to Compel
1/22/2019 Meeting w/ S. Salvin

0.10
0.10
0.10
0.30
4.70

1.10
0.60

6.10

0.50
0.10

3.40

2.50
0.60
0.20
0.10
0.20

0.30
0.20
0.20

Review corres pondence re MTC
Receipt and review of corres pondence with Plaintiff’s
couns el
Telephone conf with co-couns el Mr. Carbone re Hearing
on
Defendants
mtn
to
compel
dis covery;
Corres pondence with co-couns el Carbone re: s ame
Review court rules re: failure to oppos e mtn to compel.

0.10
0.10

0.20
0.20

Receipt and review of corres pondence from Co-couns el

0.10

Confer with Zimmerman re hearing on MTC

2/6/2019

Zimmerman

2.70

1/23/2019 Corres pondence with co-couns el
2/1/2019 Corres pondence with co-couns el Re: Mtn to Compel

2/4/2019

Roy

1.20

0.10

Correps ondence re preparation for hearing on MTC

0.30

Attend Court and meeting on MTC

1.30

Draft report on communication re court atendance

0.30

Total Hours Billed

18.40

Billing Judgment Deduction taken by Attorney
Exces s Billing deducted by Court

6.20

6.60

-5.00

Total Allowable Billable Hours

3.00

-7.20

Allowable Rate

-2.50
3.00

$200.00
$1,240.00

Total Fee
TOTAL FEE AWARDED

4.10

$375.00
$1,125.00

$290.00
$ 1,189.00

$

3,554.00

D. Johnson Factors
As indicated above, after the lodestar is determined, the Court may then adjust the lodestar
upward or downward depending on the twelve factors set forth in Johnson, 488 F.2d at 717-19. To
the extent that any Johnson factors are subsumed in the lodestar, they should not be reconsidered
when determining whether an adjustment to the lodestar is required. Migis v. Pearle Vision, Inc., 135
F.3d 1041, 1047 (5th Cir. 1998).
The Court considering the Johnson factor, finds the amount awarded is sufficient and not
requiring a downward departure.

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IV.

Conclusion
Accordingly,
IT IS ORDERED that Motion to Fix Attorney’s Fees (R. Doc. 91) is GRANTED and that

the Plaintiff is awarded reasonable attorney’s fees in the amount of $3,554.00.
IT IS FURTHER ORDERED that Plaintiff Paul Batiste and his counsel shall satisfy their
obligation to the Plaintiff no later than twenty-one (21) days after the signing of this order.

New Orleans, Louisiana, this 11th day of April 2019.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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