Brothers Petroleum, LLC v. Wagners Chef, LLC et al

Filing 162

ORDER AND REASONS granting 143 Motion for Attorney Fees. Plaintiff is awarded $73,080 in attorney's fees and $5,788.18 in costs against Defendants Wagners Chef, LLC, Jadallah Enterprises, LLC, and Ahmed 1, LLC. Signed by Judge Carl Barbier on 7/1/20. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BROTHERS PETROLEUM,
LLC

CIVIL ACTION

VERSUS

17-6713

WAGNERS CHEF, LLC, ET
AL.

SECTION: “J” (1)

ORDER & REASONS
Before the Court are a Motion for Attorney’s Fees (Rec. Doc. 143) filed by
Plaintiff Brothers Petroleum, LLC, and an opposition thereto (Rec. Doc. 148) filed by
Defendants Wagners Chef, LLC, Jadallah Enterprises, LLC, and Ahmed 1, LLC.
Having considered the motion and memoranda, the record, and the applicable law,
the Court finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises from a dispute between a petroleum distributor, Plaintiff
Brothers Petroleum, LLC, and Defendant Wagners Chef, LLC, the retail operator of
a gas station and convenience store in New Orleans, Louisiana, concerning a supply
contract for the sale of fuel. While Plaintiff originally brought numerous claims that
involved additional parties, it proceeded to trial only on its claim under the Louisiana
Unfair Trade Practices Act (“LUTPA”) against Defendants herein.
At trial, the jury unanimously found that these three Defendants violated
LUTPA. Defendants Jadallah Enterprises, LLC and Ahmed 1, LLC then moved for

judgment as a matter of law under Rule 50(b), which the Court denied. 1 Plaintiff now
seeks to recover its attorney’s fees from Defendants.
PARTIES ARGUMENTS
Plaintiff seeks $91,440.00 in attorney’s fees, based on 304.8 hours of work
billed at $300 per hour. Although Plaintiff’s counsel, Joseph V. DiRosa Jr., typically
charges Plaintiff a customary rate of $175 per hour to serve as its general counsel,
Plaintiff argues that a higher rate is appropriate here because the customary services
provided by Mr. DiRosa, such as drafting leases and purchase agreements, are
typically far less challenging than the issues presented in this litigation and his
customary rate is well below that normally charged by attorneys with far less
experience than him. Mr. DiRosa has 44 years of experience, was formerly the Chief
Deputy City Attorney of the federal trial division for the City of New Orleans, and
has appeared before Louisiana district and appellate courts as well as this Court, the
U.S. Fifth Circuit Court of Appeals, and the U.S. Supreme Court.2 Plaintiff also seeks
$5,788.18 in costs.
Defendants oppose the requested amount of fees as excessive and not
reasonable. Defendants first contend that awarding attorney’s fees based on the
higher rate, rather than the customary rate, is not re asonable because using the
higher rate would result in Plaintiff receiving a windfall and essentially impose an
additional award of damages against Defendants, which is not the purpose of the
attorney’s fees provision in LUTPA. Defendants further contend that fees associated

1
2

(Rec. Doc. 159).
(Decl. of Joseph V. DiRosa Jr., Rec. Doc. 143-2, at 1-2).
2

with the dismissed claims and defendants should not be assessed against them, as
well as the fees for Plaintiff’s unsuccessful motion for reconsideration, appeal of the
Court’s order granting a motion to dismiss, petition for writ of mandamus, and motion
to dismiss affirmative defenses, which together amounted to 52 hours of work by
Plaintiff’s counsel.
LEGAL STANDARD
“State law controls both the award of and the reasonableness of fee s awarded
where state law supplies the rule of decision.” Mathis v. Exxon Corp., 302 F.3d 448,
461 (5th Cir. 2002). Accordingly, the Court will apply Louisiana law to Plaintiff’s
request for attorney’s fees.
LUTPA provides, in pertinent part: “In the event that damages are awarded
under this Section, the court shall award to the person bringing such action
reasonable attorney fees and costs.” LA. R.S. 51:1409(A). “An accepted method with
which to begin calculation of a fee award under Louisiana law is to multiply the hours
worked by an hourly rate the Court deems to be reasonable.” Bodin v. Butler, No. 073505, 2008 WL 5122354, at *5 (E.D. La. Dec. 4, 2008). Courts then consider the
following ten factors for determining the reasonableness of an award for att orney’s
fees:
(1) the ultimate result obtained; (2) the responsibility incurred; (3) the
importance of the litigation; (4) the amount of money involved; (5) the
extent and character of the work performed; (6) the legal knowledge,
attainment, and skill of the attorneys; (7) the number of appearances
involved; (8) the intricacies of the facts involved; (9) the diligence and
skill of counsel; and (10) the court’s own knowledge.

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Rivet v. State, Dep’t of Transp. & Dev., 96-145, pp. 11-12 (La. 9/5/96), 680 So. 2d 1154,
1161. These guidelines are permissive and consideration of all of them is not
necessary. Fourchon Docks, Inc. v. Milchem Inc., 849 F.2d 1561, 1568 (5th Cir. 1988).
DISCUSSION
An attorney’s customary billing rate, when not contested, is prima facie
reasonable. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995). An
attorney’s fee award should not provide a windfall to plaintiffs, but “the actual
amount paid in fees is not dispositive on the question of reasonable rates.” Id.; cf.
Rivet, 96-145 at 10-11, 680 So. 2d at 1160-61 (analyzing LA. R.S. 13:5111(A), which
limits an award to “reasonable attorney fees actually incurred”). “‘Should a fee
agreement provide less than a reasonable fee . . . , the defendant should nevertheless
be required to pay the higher [market-based] amount.’” Kellstrom, 50 F.3d at 328
(alterations in original) (quoting Blanchard v. Bergeron, 489 U.S. 87, 96 (1989)).
Accordingly, the Court rejects Defendants’ arguments that the rate should be
restricted to the actual rate charged by Plaintiff’s counsel. The Court also finds
unpersuasive the cases cited by Defendants showing that a rate of $200 per hour or
less is reasonable, as all those cases are over ten years old and thus not reflective of
today’s market.
Plaintiff’s proposed rate of $300 per hour is consistent with prevailing rates in
the local market for an attorney of Mr. DiRosa’s experience. See, e.g., Hernandez v.
U.S. Customs & Border Prot. Agency, No. 10-4602, 2012 WL 398328, at *15 (E.D. La.
Feb. 7, 2012) (collecting cases). Accordingly, the Court finds this rate to be reasonable.

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Turning next to the number of hours worked, the Court finds that Plaintiff
should not recover fees for its patently meritless motions, appeal, and mandamus
petition, none of which pertained to the LUTPA claims on which Plaintiff prevailed
at trial. On Plaintiff’s motion for reconsideration, the Court found that Plaintiff failed
to present any controlling precedent for one issue and used the motion to rehash one
argument Plaintiff’s counsel conceded at oral argument and another that was
unsupported by any evidence.3 The Court will deduct 21.2 hours for this motion. 4
Plaintiff’s motion to dismiss affirmative defenses, which the Court construed
as a motion to strike, was denied as untimely, as it was filed over a year after the
time period in Rule 12(f)(2) had expired. 5 The Court will deduct 10.3 hours for this
motion.6
Plaintiff’s attempted interlocutory appeal of the Court’s order granting several
motions to dismiss was meritless, as evinced by the Fifth Circuit’s dismissal for lack
of jurisdiction.7 It was also untimely, as it was filed almost three months after the
Court’s order was entered. For these reasons, the Court will also deduct the hours
related to Plaintiff’s motion to certify order as final judgment (which was not filed
until over a month after Plaintiff filed its notice of appeal). 8 The Court will deduct
14.7 hours for the appeal and motion.9

(Rec. Doc. 58, at 5-7).
(Rec. Doc. 143-2, at 8).
5 (Rec. Doc. 107).
6 (Rec. Doc. 143-2, at 11).
7 (Rec. Doc. 64).
8 (Rec. Doc. 62).
9 (Rec. Doc. 143-2, at 9).
3
4

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Plaintiff’s petition for writ of mandamus sought to overturn the Court’s order
denying Plaintiff’s motion to certify order as final judgment and was denied without
reasons by the Fifth Circuit.10 The Court will deduct 15 hours for the petition. 11
After these deductions, the number of hours worked is reduced to 243.6. Based
on a rate of $300 per hour, the total fee award would be $73,080. The Court finds this
amount to be reasonable and does not require further consideration of the factors
listed in Rivet beyond what has been incorporated in the above analysis. The Court
also finds that Plaintiff’s request for $5,788.18 in costs is reasonable and should be
awarded.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Attorney’s Fees (Rec.
Doc. 143) is GRANTED, and Plaintiff is awarded $73,080 in attorney’s fees and
$5,788.18 in costs against Defendants Wagners Chef, LLC, Jadallah Enterprises,
LLC, and Ahmed 1, LLC.
New Orleans, Louisiana, this 1st day of July, 2020.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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11

(Rec. Doc. 72).
(Rec. Doc. 143-2, at 9).
6