Active Mortgage, LLC v. Trans Union, LLC et al

Filing 220

RULING AND ORDER - granting 172 Motion for Attorney Fees. Signed by Judge James J. Brady on 3/20/2013. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ACTIVE MORTGAGE, LLC
CIVIL ACTION
VERSUS
NO. 09-986-JJB
TRANS UNION, LLC, ET AL
RULING AND ORDER ON MOTION FOR ATTORNEY’S FEES
This matter is before the Court on a Motion for Attorney’s Fees by First
Advantage Credco, LLC (Doc. 172). Plaintiff, Active Mortgage, LLC, filed multiple briefs
in opposition (Docs. 177, 204, and 216). Credco filed multiple briefs in support of its
Motion (Docs. 184, 198, 207, 215, and 219). The Court has jurisdiction pursuant Title
28 of the United States Code, Section 1332. Oral argument is unnecessary.
I.

Background

The facts and procedural history of this case are as follows. A more complete
description of the facts and procedural history may be found in the Court’s February 1,
2013 Ruling and Order (Doc. 212). This lawsuit included claims by Active against
Credco alleging that (1) Credco breached the implied covenant of good faith and fair
dealing; (2) it detrimentally relied on Credco’s decision to provide Plaintiff with credit
reports; and (3) Credco had engaged in unfair trade practices under the Louisiana
Unfair Trade Practices Act (“LUTPA”). Doc. 102. This Court dismissed Active’s claims
through rulings on a motion to dismiss and a motion for summary judgment, and
entered a Judgment in favor of Credco and against Active, which the Fifth Circuit
affirmed. Doc. 129, at 12–13; Doc. 139; Doc. 201, at 6–8. Credco timely filed the
instant Motion for Attorney’s Fees on March 2, 2012.

1

The Court issued a Ruling and Order on this Motion on February 1, 2013, ruling
Active is the prevailing party in this litigation, including on Active’s claim for breach of
the implied covenant of good faith and fair dealing, Credco’s refusal to settle has no
bearing on whether it may recover attorney’s fees or whether its claimed fees are
reasonable, the contract between the parties entitled Credco to attorney’s fees in
defending the tort claims in this litigation, Credco’s national counsel are not participating
attorneys in this litigation and are not entitled to attorney’s fees, and Active could not
fully contest the reasonableness of the Credco’s claimed fees, since Credco’s bills were
redacted and filed under seal. Doc. 212, at 3–8. The Ruling and Order ordered counsel
for Credco to provide copies of its local counsel’s attorney’s fees bills for this lawsuit to
Active within five days of the issuing of the Ruling and Order, and allowed Active to file
a supplemental opposition brief within ten days of receiving the bills, solely addressing
the issue of reasonableness.

Id. at 8.

As the litigation over attorney’s fees has

proceeded, the amount of attorney’s fees sought by Credco has risen to $92,034.46.1
Doc. 215, ¶ 1. Credco seeks attorney’s fees of $275 per hour per partner and for
experienced of-counsel attorneys, $220 per hour for associates, and $100 per hour for
paralegals. Doc. 172-1, at 8.
II.

Reasonableness of Attorney’s Fees

The Court now addresses what constitutes reasonable attorney’s fees in this
case. The parties agree the “lodestar” test is used to determine the reasonableness of
attorney’s fees in the Fifth Circuit. Heidtman v. County of El Paso, 171 F.3d 1038, 1043
(5th Cir. 1999). “A lodestar is calculated by multiplying the number of hours reasonably

1

As Credco cannot recover attorney’s fees for its national counsel, this is the amount claimed by its local
counsel. Doc. 212, at 7.

2

expended by an appropriate hourly rate in the community for such work.” Id. After
performing this calculation, the Court may decrease or enhance the lodestar based on
the relative weights of twelve factors described in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). Id.
The Johnson factors are: (1) the time and labor required; (2) the novelty
and difficulty of the issues; (3) the skill required to perform the legal
services properly; (4) the preclusion of other employment by the attorney;
(5) the customary fee; (6) whether the fee is fixed or contingent; (7) the
time limitations imposed by the client or circumstances; (8) the amount
involved and 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) the award in
similar cases.
Id. at 1043 n. 5.

A Johnson factor may not be used to adjust the lodestar if the

formation of the lodestar award already accounted for the factor. Id. at 1043. “The
lodestar . . . is presumptively reasonable and should be modified only in exceptional
cases.” Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
A. Hours Expended
“[T]he fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.”2 Hensley v. Eckerhart,
461 U.S. 424, 437 (1983). “The fee applicant has the burden of presenting adequate
documentation of the hours reasonably expended.” League of United Latin American
Citizens No. 4552 v. Roscoe Independent School District, 119 F.3d 1228, 1233 (5th Cir.
1997). “[T]he burden of proof of reasonableness of the number of hours is on the fee
applicant, and not on the opposing party to prove their unreasonableness.” Leroy v.
City of Houston (Leroy I), 831 F.2d 576, 586 (5th Cir. 1987). “The applicant should

2

Active does not contest the reasonableness of the rates charged by Credco’s counsel, so the Court
need not address this issue.

3

exercise “billing judgment” with respect to hours worked, and should maintain billing
time records in a manner that will enable a reviewing court to identify distinct claims.”
Hensley, 461 U.S. at 437. “If the applicant's documentation of the hours claimed is
vague or incomplete, the district court may reduce or eliminate those hours. Id. Hourly
records are not too vague if they contain the date, the number of hours spent
(calculated to a tenth of an hour), and a short but thorough description of the services
rendered by each attorney. Id. “Hours which, though actually expended, nevertheless
are excessive, redundant, or otherwise unnecessary, or which result from the case
being overstaffed, are not hours reasonably expended and are to be excluded from this
calculation. Leroy v. City of Houston (Leroy II), 906 F.2d 1068, 1079 (5th Cir. 1990).
III.

Analysis

Active argues the following in contesting the reasonableness of Credco’s claimed
fees. The amount Credco claims for work on appeal and in seeking attorney’s fees is
unreasonable since it is forty-seven percent of its total time claimed, the appeal
consisted of limited activity, and it is illogical for Credco to be allowed to recover
$18,763.00 in pursuit of recovering its own attorney’s fees. The only activity during the
time period between Credco’s Motion for Attorney’s Fees and December 11, 2012 was
Active’s appeal to the Fifth Circuit, and an appellee brief, one motion, and a
memorandum with the Court. Active cites Leroy v. City of Houston (Leroy II) in support
of its proposition that the amount claimed is excessive.

See 906 F.2d at 1081–82

(finding excessive the charging of more than 540 hours, when the end product during
the relevant time period was only a sixty-eight page appellee’s brief and an hour long
oral argument). Credco has not met its burden of establishing reasonableness, it shows

4

no evidence of time written off as excessive or unproductive, and Credco’s counsel’s
bills contain several instances of likely duplicative or redundant work.

Regarding

duplicity and redundancy, Active specifically claims Credco’s counsel billed for
reviewing redacted bills on August 15, 2011, while a time entry for a paralegal redacting
bills appears on October 19, 2011. The next bill redacting entry shows an attorney
billed at $275 per hour, when the bills were previously redacted at a significantly lower
rate.

Finally, fees charged for paralegals should be denied in their entirety or

significantly reduced. Credco has not produced any evidence to justify the separate
billing for the work of its paralegals, claiming the Fifth Circuit’s decision in League of
United Latin American Citizens No. 4552 v. Roscoe Independent School District, and
the United States Court of Federal Claims, Office of the Special Masters’ decision in
Caves v. Secretary of Health and Human Services, No. 07-443V, 2012 WL 6951286
(Fed. Cl. Dec. 20, 2012), support this. 119 F.3d 1228.
Credco argues the following in response. With regard to fees claimed between
the time of its Motion for Attorney’s Fees and December 11, 2012, Active fails to take
into account settlement conferences scheduled by the Fifth Circuit, and Credco’s
Motion, memorandum in support, and reply brief in support of Credco’s Motion for
Attorney’s Fees. During this time, Credco’s attorney’s actions averaged only fourteen
hours per month.3

Furthermore, Active wrongly represents the actions taken by

Credco’s counsel.

Twenty-seven of the first thirty entries Active claims relate to

Credco’s counsel’s appeal work either deal with settlement or actions taken in the
district court, and ten percent of the entries Active characterizes as related to appeal do

3

This figure was presented prior to the Court’s ruling denying fees for Credco’s national counsel, so the
figure is presumably inclusive of time spent by Credco’s local and national counsel.

5

not belong in that category. Active made the same mistake categorizing entries as
attorney’s fees, as four of the entries, November 15, 2012, November 29, 2012, April
17, 2012, and April 30, 2012, involve settlement issues. An additional three entries,
March 1, 2012, March 23, 2012, and March 26, 2012, relate to other issues in addition
to attorney’s fees. Active’s arguments about its bills being imbalanced are at best,
misleading, since Credco’s national counsel spent significant time working on this case
in the district court, and very little working on the appeal. Active has failed to present
the Court with any authority that supports Active’s “percentage method” of determining
the reasonableness of fees incurred.
Credco further argues the following.
Credco’s bills are unreasonable.

Active fails to demonstrate that any of

Regarding Active’s claims of duplicity and

redundancy, the first entry referred to is a reference to Credco’s local counsel’s review
of Credco’s national counsel’s bills that had already been redacted, and the two entries
referenced involved two sets of attorney fee invoices. Active unreasonably multiplied
and extended this case and created a situation in which Credco had to file multiple
memoranda. Credco’s counsel asserts it made every effort to avoid duplication.
Entitlement of Credco to attorney’s fees has already been established. Credco’s
counsel presented the Court and Active with detailed billing records containing the date,
the number of hours spent (calculated to the tenth of an hour), and a short but thorough
description of the services rendered in each instance. These records are adequate
documentation of hours reasonably expended, and allow the court to identify distinct
claims.

6

The Court agrees with Credco that the percentage of its attorney’s fees claimed
for work on appeal and in pursuit of attorney’s fees does not, on its own, make the
amount of fees claimed unreasonable. The Court is also understanding of Credco’s
assertion that the percentages of time it spent are unbalanced, since it and Credco’s
national counsel engaged in different amounts of work in different stages of the case. 4
This aspect of the case further detracts from Active’s argument.
Nor are the fees claimed excessive due to similarity to Leroy II. Leroy II found
excessive the charging by attorneys of more than 540 hours, when the end product
during the relevant time period was only a sixty-eight page appellee’s brief and an hour
long oral argument. 906 F.2d 1068, 1081–82. The bills presented to the Court by
Credco identify 113.6 hours spent from March 1, 2012, the day before the filing of the
Motion for Attorney’s fees, until the present. This amount is a far cry from the 540 or
more hours deemed excessive in Leroy II. Other than stating what happened in Leroy II
and arguing the amount claimed is excessive, Active does not present authority or
reasons based on authority to support its argument. Furthermore, Credco’s counsel
have engaged in more work during the relevant time period than the attorneys in Leroy
II.
The Court now addresses Active’s claim of duplicity and redundancy, that
Credco’s counsel billed for reviewing redacted bills on August 15, 2011, while a time
entry for a paralegal redacting bills appears on October 19, 2011.

In light of the

descriptions of services rendered in these bills, the Court does not find them duplicitous.
The August 15, 2011 entry references Credco’s local counsel reviewing Credco’s

4

The fact that the Court is not awarding attorney’s fees to Credco’s national counsel does not affect this
understanding.

7

national counsel’s redacted bills, while the October 19, 2011 entry involves redacting
Credco’s local counsel’s bills. That being said, the Court finds it improper for Credco to
recover for the August 15, 2011 entry—4/10 of an hour, equating to $110.00—for
redacting Credco’s national counsel’s bills, as Credco cannot recover fees for its
national counsel.
The Court next addresses Active’s argument that fees charged for paralegals
should be denied in their entirety or significantly reduced, since Credco has not
produced any evidence to justify the separate billing for the work of its paralegals,
based on League of United Latin American Citizens No. 4552 v. Roscoe Independent
School District and Caves v. Secretary of Health and Human Services. League of
United Latin American Citizens No. 4552 stated the party seeking attorney’s fees for
paralegals has the burden of showing that its billing comported with the prevailing
practice in the relevant market of billing separately for paralegals. 119 F.3d at 1235.
Caves stated “the fee applicant bears the burden of establishing the hours expended.”
2012 WL 6951286, at *5. However, this part of Caves involved the specificity of time
entries for paralegals, so notwithstanding the fact that the case is not mandatory
authority on the Court, it does not address the issue for which Active references it.
Credco satisfies its burden under League of United Latin American Citizens No. 4552 by
presenting this Court’s ruling in Netherland v. City of Zachary, La., 07-409, 2009 U.S.
Dist. WL 3257360, at *2–3 (M.D. La. Oct. 8, 2009), which set a reasonable rate for
paralegals, and composed the lodestar by separately calculating the fees for paralegals.
Therefore, the Court will include Credco’s paralegal fees in the lodestar calculation.

8

The entries in the bills provided by Credco, excluding the August 15, 2011 entry
for 4/10 of an hour, will be used to calculate the lodestar. The bills provided by Credco
include time entries for 309.1 hours for partners, 9.4 hours for associates, and 21 hours
for paralegals. 309.1 hours multiplied by $275, the hourly rate for partners, equals a
subtotal of $85,002.50. 9.4 hours multiplied by $220, the hourly rate for associates,
equals a subtotal of $2,068.00.

21 hours multiplied by $100, the hourly rate for

paralegals, equals a subtotal of $2,100.00. Added together, these subtotals equal a
total of $89,170.50. This figure, minus the $110.00 which Credco may not recover,
comes to a final total of $89,060.50.
Neither party argues for the Court to adjust the lodestar using any of the Johnson
factors. As the Court does not believe this to be an exceptional case, the lodestar will
not be adjusted using the Johnson factors.
IV.

Conclusion

Accordingly, First Advantage Credco LLC’s Motion for Attorney’s Fees (Doc. 172)
is GRANTED.
IT IS HEREBY ORDERED that Defendant First Advantage Credco, LLC is
awarded attorney’s fees in the amount of $89,060.50.
Signed in Baton Rouge, Louisiana, on March 20, 2013.





JAMES J. BRADY, DISTRICT JUDGE

9