Nickelson et al v. Progressive Community Care, LLC et al

Filing 37

ORDER AND REASONS: IT IS ORDERED that plaintiffs' 30 motion for attorney's fees is GRANTED IN PART and DENIED IN PART, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 7/30/2019. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LA’OTIS NICKELSON, ET. AL.

CIVIL ACTION

VERSUS

NO. 18-4147

PROGRESSIVE COMMUNITY CARE
CENTER, LLC ET. AL.

SECTION “B”(1)

ORDER AND REASONS
Before the Court are plaintiffs La’Otis Nickelson, Shondreca
Sanders, Roylena Humphreys, and Amber Trepagnier’s (collectively
“plaintiffs”) motion for attorney’s fees (Rec. Doc. 30) and Clerk of
Court’s bill of costs (Rec. Doc. 33). For the reasons below,
IT IS ORDERED that plaintiffs’ motion for attorney’s fees is
GRANTED IN PART and DENIED IN PART. Defendants are hereby ordered to
pay

plaintiffs

$3,628.12

in

reasonable

fees 1

and

$640.00

in

recoverable costs, for a total of $4,268.12.
FACTS AND PROCEDURAL HISTORY
This is a collective action to recover unpaid earned wages. See
Rec. Doc. 1. Plaintiffs brought this action on behalf of themselves
and others similarly situated to them to recover unpaid earned wages
from defendants Progressive Community Care Center, LLC and Keyorka

1

The calculation of the lodestar is as follows:
Reasonable Hours x Rate = Total
16.875 x $215 per hour = $3,628.12

1

Dennis,

who

is

the

manager,

owner,

and

registered

agent

of

Progressive Community Care Center, LLC. See id. at 1.
Plaintiffs

worked

for

defendants

as

mental

health

professionals. See id. at 2. Plaintiffs allege that beginning in or
around December 2015, defendants started paying them irregularly.
See id. Defendants told plaintiffs that there were stops in payment
because there were changes in providers, changes were taking place
in the payroll system, and changes at the state level were creating
financial hardships. See id. Plaintiffs allege that when employees
complained about not being compensated, defendants threatened to
terminate them. See id. Plaintiffs waited approximately 18 months to
receive full compensation for the hours that they had worked. See
id. at 3.
The

Department

of

Labor

was

notified

of

defendants’

pay

irregularities in or around October 2017. See id. Defendants failed
to respond to notices sent by the Department of Labor. See id.
Plaintiffs

allege

that

defendants

repeatedly

promised

through

written correspondences to pay plaintiffs; however, defendants never
paid plaintiffs all of the wages that they earned from December 2015
through their respective last day. See id.
On April 23, 2018, plaintiffs filed their complaint. 2 See Rec.
Doc. 3. Proof of serving summons and complaint upon defendants was
filed on May 8, 2019, showing a service date of May 4, 2018. Rec.

2

Defendants did not file an answer.
2

Docs. 11-12.

On June 21, 2018, plaintiffs filed an affidavit from

their process server attesting to proof of service upon defendants
on May 4, 2018. Rec. Doc. 16-1.
Court

granted

plaintiffs’

On August 16, 2018, the Clerk of

motion

for

entry

of

default

as

to

defendants. See Rec. Doc. Nos. 16, 19. On March 15, 2019, this Court
entered judgment in favor of plaintiffs in the total amount of
$28,650.00 plus judicial interest until the judgment is paid, plus
reasonable attorney fees and costs associated with this action. See
Rec. Doc. 25. On April 5, 2019, plaintiffs filed a motion for
attorney’s fees. 3 See Rec. Doc. 30. On May 17, 2019, the Clerk of
Court submitted a bill of costs. See Rec. Doc. 33.
Plaintiffs contend that, pursuant to the Fair Labor Standards
Act (“FLSA”), they are entitled to attorney’s fees in the amount of
$4,031.25 for 18.75 hours of attorney time. Counsel for plaintiffs
expended 18.75 hours to bring this cause of action to closure.
Counsel’s billing rate of $215.00 per hour is his customary rate for
litigating federal cases and within the range of rates for attorneys
with similar experience, skill, and ability. Therefore, this Court
should enter a judgment awarding plaintiffs attorney’s fees in the
amount of $4,031.25. 4 See Rec. 30-1 at 2.
LAW AND FINDINGS
A. FLSA Fee Shifting

3
4

Defendants did not file an opposition.
Defendants did not file an opposition.
3

In 1938, Congress enacted the FLSA to protect the laboring
public from unfair labor practices. See 29 U.S.C. § 202. Pursuant to
the FLSA, courts shall “allow a reasonable attorney’s fee to be paid
by the defendant, and costs of the action” when a judgment is awarded
to the plaintiff. 29 U.S.C. § 216(b). A default judgment was entered
in favor of plaintiffs. See Rec. Doc. 25. Accordingly, reasonable
attorney’s fees and costs shall be paid by defendants to plaintiffs.
See e.g., Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of
Health

&

Human

Res.,

532

U.S.

598,

604

(2001)

(“[E]nforceable

judgments on the merits and court-ordered consent decrees create the
“material alteration of the legal relationship of the parties”
necessary to permit an award of attorney's fees.”). However, it
remains to determine what fees and costs, if any, are reasonable.
B. Calculation of Lodestar
Courts in this Circuit use the lodestar method for determining
an appropriate attorneys’ fee award under the FLSA. See Saizan v.
Delta Concrete Products Co., Inc., 448 F.3d 795, 799 (5th Cir. 2006).
The lodestar method consists of two steps. See Louisiana Power &
Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The first
step is to determine the reasonable number of hours expended on the
litigation and the reasonable hourly rates for the participating
attorneys. See id. The second step is to multiply the determined
hours by the determined rate. See id. The resulting product is the
lodestar. See id.

4

The lodestar may be accepted as is or adjusted. See Johnson v.
Georgia Highway Exp., 488 F. 2d 714, 717-19 (5th Cir. 1974). There
are twelve factors to consider in establishing whether to accept or
adjust the lodestar. See id. Those twelve factors are:
(1) the time and labor involved; (2) the novelty and
difficulty of the questions involved; (3) the skill
requisite to perform the legal services properly; (4) the
preclusion of other employment by the attorney due to this
case; (5) the customary fee; (6) whether the fee is fixed
or contingent; (7) time limitations; (8) the amount
involved and results obtained; (9) the experience,
reputation.
And
ability
of
counsel;
(10)
the
undesirability of the case; (11) the nature and length of
the proceedings; and (12) awards in similar cases. See id.
However, “to the extent that any Johnson factors are subsumed in the
lodestar, they should not be reconsidered when determining whether
an adjustment to the lodestar is required.” Migis v. Pearle Vision,
Inc., 135 F.3d 1041, 1047 (5th Cir. 1998).
a. Reasonable Hours Expended
“[T]he
entitlement

fee
to

applicant
an

award

bears

and

the

burden

documenting

the

of

establishing

appropriate

hours

expended . . ..” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). In
documenting the hours expended, attorneys should “exercise billing
judgment

by

excluding

time

that

is

unproductive,

excessive,

duplicative, or inadequately documented when seeking fee awards.”
Creecy v. Metro. Prop. & Cas. Ins. Co., 548 F. Supp. 2d 279, 286
(E.D. La. 2008). “The remedy for failing to exercise billing judgment

5

is to reduce the hours awarded as a percentage and exclude hours
that were not reasonably expended.” Id.
Courts may eliminate hours that are excessive, duplicative, and
too vague to permit meaningful review. See Johnson v. Big Lots, 639
F. Supp. 2d 696, 792 (E.D. La. 2009). Court may also deduct time
spent

on

unsuccessful

or

unnecessary

pleadings,

discovery,

or

memoranda. See White v. Imperial Adjustment Corp., 2005 U.S. Dist.
LEXIS

13382

*1,

*34

(E.D.

La.

2005).

“The

Fifth

Circuit

has

repeatedly determined that bald assertions regarding the exercise of
billing judgment are insufficient.” See Dardar v. T&C Marine, L.L.C.,
2018 U.S. Dist. LEXIS 139837, at *17 (E.D. La. 2018).
Plaintiffs submit a declaration of their counsel and time
records to establish an amount for the fee award. See Rec. Doc. Nos.
30-2, 30-3. The declaration and time records exhibit the following
total:
Total Hours:

18.750

The time entries are generally well documented; however, some
entries are duplicative and vague. Examples of the latter include:
“communication,

L.

Nickelson”,

“meeting,

Trepagnier,

Nickelson,

Sanders, Humphreys”, and “motion extension of time”. See Rec. Doc.
30-3 at 1-2. Obviously, counsel must communicate with the client(s)
on

a

regular

basis

but

without

further

explanation

concerning

counsel’s communications with his client(s), a meaningful review of
the entries is limited. It is also impossible to decipher from the

6

“motion

extension

of

time”

entry

whether

counsel

was

reading,

drafting, or filing the mentioned motion. Counsel declares that
“[a]ll events billed were necessary to further the litigation without
unnecessary duplication of effort or unreasonable expending of time”
but does not does provide the Court with evidence of their own
applied billing judgment. See Dardar, 2018 U.S. Dist. LEXIS 139837
at *18 (“Braud has provided no comparison of the hours actually
worked to the hours written off and thus has not established by
competent evidence that its counsel fully wrote off all unproductive,
excessive or redundant hours.”). Therefore, a limited reduction is
warranted.
Accordingly, the Court will apply a ten percent reduction to
the hours that plaintiffs submitted. See Pruett v. Harris County
Bail Bond Dd., 499 F.3d 403, 418 (5th Cir. 2007)(stating that courts
may use their equitable discretion to reduce an award); see, e.g.,
Saizan, 448 F.3d at 800 (10% reduction for vagueness, duplicative
work and lack of billing judgment). With that, the result is as
follows:
Total Reasonable Hours:

16.875

b. Reasonable Hourly Rate
Reasonable fees are calculated based on the prevailing market
rate in the relevant community for similar services by attorneys of
reasonably comparable skill and experience. See Blum v. Stetson, 465
U.S. 886, 895 (1984). “Determination of the reasonable hourly rate

7

for

a

particular

community

is

generally

established

through

affidavits of other attorneys practicing there.” Chisholm v. Hood,
90 F. App'x 710 (5th Cir. 2004). These determinations of rates are
performed on case-by-case basis. See id.
To

establish

that

their

counsel’s

rate

is

reasonable,

plaintiffs submit a declaration of their counsel. See Rec. Doc. 302. The declaration highlights counsel’s skill and experience as well
as a certification of the hourly billing rate. See id. at 1-2.
Specifically, the submission declares that counsel for plaintiffs is
a

solo

practitioner;

has

been

practicing

in

federal

courts

of

Louisiana for 9 years; and has represented clients in a variety of
federal cases, including those brought in accordance with the FLSA,
Title

VII,

and

§

1983.

See

id.

at

2.

Counsel

for

plaintiffs

previously certified an hourly billing rate as $215 in Civil Action
No. 15-2515. See id. at 2 fn. 1. In this District, rates from $200
to $400 per hour have been found to be reasonable for FLSA work in
the New Orleans community, depending on counsel’s experience. See,
e.g., Funez v. EBM, 2018 U.S. Dist. LEXIS 177529, *11 (E.D. La.
2018); Smith v. Manhattan Mgmt. Co., LLC, 2016 U.S. Dist. LEXIS
30814, at *7 (E.D. La. 2016); Altier v. Worley Catastrophe Response,
LLC, 2012 U.S. Dist. LEXIS 6391, 2012 WL 161824, at *68 (E.D. La.
2012). Accordingly, the requested hourly rate of $215.00 is found
reasonable.
c. Johnson Factors

8

In analyzing the lodestar, Johnson factors were considered.
That consideration resulted in a reduction of the reasonable
hours expended in this litigation. There is no need for the Court
to reconsider the Johnson factors for a second time. See Migis,
135 F.3d at 1056.

C. Costs
The Clerk of Court’s bill of costs exhibits a total of $640.00. 5
See Rec. Doc. 33. Title 28 U.S.C. § 1920 provides that a court may
tax the following costs:
[F]ees of the clerk and marshal; fees of the court reporter
for all or any part of the stenographic transcript
necessarily obtained for use in the case; fees and
disbursements for printing and witnesses; fees for
exemplification and copies of papers necessarily obtained
for use in the case; docket fees; compensation of courtappointed
experts,
interpreters,
and
special
interpretation services.
Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 529
(5th Cir. 2001). Counsel for plaintiffs is seeking the following
costs:
Fees of the Clerk:

$400.00

Services Fees:

$240.00

Upon review of the bill of costs and findings by the Clerk of Court,
there is sufficient basis for awarding $640.00 as recoverable costs
under law. See Rec. Doc. 33.

5

Other costs in the amount of $4.05 were not included in the total amount. See
Rec. Doc. 33.
9

New Orleans, Louisiana this 30th day of July, 2019

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

10