Mascarella v. CPlace University SNF, LLC et al

Filing 97

RULING granting 79 Motion For Attorney's Fees, Litigation Expenses and Costs, with respect to attorney's fees as adjusted by the Court. The matter of costs and expenses is referred to the Clerk's Office. Signed by Judge Shelly D. Dick on 1/27/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
KRISTIE A. MASCARELLA

CIVIL ACTION NO.

VERSUS

13-642-SDD-RLB

CPLACE UNIVERSITY SNF, LLC
d/b/a AFFINITY NURSING & REHAB
CENTER; CPLACE COLONIAL RC, LLC
d/b/a COLONIAL CARE RETIREMENT
CENTER; and TRADITIONS SENIOR
MANAGEMENT, INC.
RULING
This matter is before the Court on the Motion for Attorney’s Fees, Litigation
Expenses and Costs1 filed by the Plaintiff, Kristie A. Mascarella (“Plaintiff”). Defendants,
CPlace University SNF, LLC, d/b/a Affinity Nursing & Rehab Center (“Affinity”) and
Traditions Senior Management, Inc. (“Traditions”) (or “the Defendants”) have filed an
Opposition2 to this motion, to which Plaintiff filed a Reply.3 For the following reasons, the
Court finds that Plaintiff’s motion should be granted.
I.

FACTUAL BACKGROUND
Plaintiff in this case brought suit against the Defendants alleging violations of the

Americans with Disabilities Act (“ADA”) and the Louisiana Employment Discrimination
Law. A jury trial was held in this matter from July 20, 2015 through July 22, 2015. The
jury returned a verdict in Plaintiff’s favor, finding that she proved by a preponderance of

1

Rec. Doc. No. 79.
Rec. Doc. No. 83.
3
Rec. Doc. No. 88.
2

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DG, NLT

the evidence that the Defendants failed to reasonably accommodate her disability, and
that the Plaintiff would not have been terminated but for her requests for
accommodations.4 The jury awarded Plaintiff $100,000.00 in past pain and suffering,
inconvenience, mental anguish, and loss of enjoyment of life.5 The jury awarded Plaintiff
$100,000.00 for future pain and suffering, inconvenience, mental anguish, and loss of
enjoyment of life.6 For lost wages and benefits from August 8, 2012 to the date of the
verdict, the jury awarded $90,000.00.7 However, the jury also found that Plaintiff failed to
mitigate her damages and reduced her award by $25,000.00.8 Lastly, the jury awarded
the Plaintiff $275,000.00 in punitive damages.9
Both parties filed several post-trial motions which the Court has previously
addressed. The only remaining motion is Plaintiff’s request for attorney’s fees and costs
as a prevailing party.
II.

ATTORNEY’S FEES
Considering that a jury rendered a verdict in favor of Plaintiff and awarded

damages in the amount of $540,000.00, it is undisputed that Plaintiff is a “prevailing party”
under the ADA. Plaintiff seeks attorney’s fees in the amount of $338,602.61 and costs in
the amount of $5,883.11.10 The Defendants dispute Plaintiff’s requested attorney’s fees
and costs arguing that: (1) proffered expert declarations should be excluded; (2) the
requested fees are unreasonable and should be reduced based on Plaintiff’s partial

4

Rec. Doc. No. 58.
Id.
6
Id.
7
Id.
8
Id.
9
Id.
10
Plaintiff amended this amount in her Reply brief, Rec. Doc. No. 88, p. 8.
5

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success; and (3) the claimed costs are excessive.
A.

Plaintiff’s Expert Declarations

Defendants contend Plaintiff’s declarations submitted in support of attorney’s fees
should be stricken because they: were not disclosed as experts in initial disclosures, fail
to address the prevailing market rates in the locality, fail to address years of litigation
experience of attorneys, and fail to address the nature and complexity of ADA cases.
Plaintiff submits these types of declarations are routinely submitted in cases where
requests for attorney’s fees have been made, and further, the declarations provided are
detailed with the declarants’ experience, current positions, and knowledge of charging
fees within the community. Plaintiff cites to a recent case from the Middle District of
Louisiana wherein Judge Jackson acknowledged the “critical” nature of affidavits
submitted for the same purpose in denying a motion to strike those affidavits.11
The Court finds that Plaintiff’s submitted Declarations are acceptable and helpful
to the Court in determining the proper amount of attorney’s fees in this matter. Moreover,
as set forth below, the Court has not relied solely on the evidence submitted by counsel
but has also surveyed a wealth of jurisprudence from the Middle and Eastern District
Courts of Louisiana in reaching its determination of a fair, appropriate hourly rate in this
case.
B. The Lodestar Approach
A court's discretion in fashioning a reasonable attorney's fee is broad and
reviewable only for an abuse of discretion, i.e., it will not be reversed unless there is strong

11

Advocacy Center v. Cain, 2014 WL 1246840, at *3 (M.D. La. Mar. 24, 2014).

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evidence that it is excessive or inadequate, or the amount chosen is clearly erroneous.12
To determine a reasonable fee, a court must provide a concise but clear explanation of
its reasons for the fee award, making subsidiary factual determinations regarding whether
the requested hourly rate is reasonable, and whether the tasks reported by counsel were
duplicative, unnecessary, or unrelated to the purposes of the lawsuit.13 The Fifth Circuit
has noted that its “concern is not that a complete litany be given, but that the findings be
complete enough to assume a review which can determine whether the court has used
proper factual criteria in exercising its discretion to fix just compensation.”14
In assessing the reasonableness of attorneys' fees, the court must first determine
the “lodestar” by multiplying the reasonable number of hours expended and the
reasonable hourly rate for each participating attorney.15 The party seeking the fee bears
the burden of proof on this issue.16
1. Reasonable Hours Expended
The Court begins by determining whether the number of hours claimed by
Plaintiff’s attorneys is reasonable.17 Local Rule 54 provides specific guidance regarding
how this burden is met, stating: “the party desiring to be awarded such fees shall submit
to the court a contemporaneous time report reflecting the date, time involved, and nature
of the services performed. The report shall be in both narrative and statistical form and

12

Hopwood v. State of Texas, 236 F.3d 256, 277, n. 79 (5th Cir. 2000); Hensley v. Eckerhart, 461
U.S.424, 436–37 (1983).
13
Hensley, 461 U.S. at 437–39; Associated Builders & Contractors, 919 F.2d at 379.
14
Brantley v. Surles, 804 F.2d 321, 325–26 (5th Cir.1986).
15
See Hensley, 461 U.S. at 433; Green v. Administrators of the Tulane Educ. Fund, 919 F.2d 374, 379 (5th
Cir. 1990); Migis v. Pearle Vision, Inc., 135 F.2d 1041, 1047 (5th Cir.1998); La. Power & Light Co. v.
Kellstrom, 50 F.3d 319, 324 (5th Cir.1995).
16
See Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir.1996); Kellstrom, 50 F.3d at 324; In re Smith, 996
F.2d 973, 978 (5th Cir.1992).
17
Migis, 135 F.3d at 1047.

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provide hours spent and justification thereof.”18 “Where the documentation of hours is
inadequate, the district court may reduce the award accordingly.”19
Here, attorneys Campbell and Brady have provided detailed performance logs of
the services provided by counsel that complies with Local Rule 54. The Court finds that
the logs demonstrate that Campbell and Brady exercised proper judgment in billing for
services necessary in the ordinary course of litigation. The Court finds the log entries
consistent with the timeline and filings in this case and typical with respect to the duties
necessary in such a case.

The Court did not find the entries to be duplicative,

unnecessary, or overly broad. Additionally, both Campbell and Brady submitted affidavits
attesting that hours worked by other attorneys and paralegals were not included in their
submissions.20 Campbell and Brady also contend they excluded from their performance
logs time for intra-office meetings and conferences on this matter.
The Court has considered Defense counsel’s assertions that Plaintiff’s counsel
have submitted redundant, duplicative texts, emails, and phone calls and excessive hours
for briefing summary judgment and post-trial motions; however, the Court is satisfied that
Campbell and Brady have provided adequate evidence supporting the hours expended
on the case for each attorney. The Court is also unpersuaded by Defense counsel’s
argument that, because he only spent 210.4 hours on this case compared to Plaintiff’s
counsel’s approximately 1,100 hours, the inexperience of Plaintiff’s counsel clearly
accounted for the disparity, and the hours should be greatly reduced. Counsel for the

18

M.D. La. LR54(b).
Cooper v. Pentecost, 77 F.3d 829, 832 (5th Cir. 1996) (quotation marks omitted); see also Kellstrom, 50
F.3d at 324 (“[A] district court may reduce the number of hours awarded if the documentation is vague or
incomplete.”).
20
See Rec. Doc. Nos. 79-2, p.2, ¶ 3 & 79-3, p. 2, ¶ 3.
19

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Defendants may have billed fewer hours, but the Defendants also lost the majority of the
case. Furthermore, “[t]hat defense counsel spent significantly less time on this case than
did counsel for the plaintiff[ ] is irrelevant so long as all compensated work was necessary
and performed in an expeditious manner.”21 The Court is satisfied that the explanations
provided by Plaintiff’s attorneys are sufficient to establish entitlement to the fees sought.
2. Reasonable Hourly Rates
The Court must also determine if the hourly rates of $300/hour for Attorneys
Campbell and Brady are reasonable given counsel’s ability, competence, experience, and
skill. Plaintiff contends that both Campbell and Brady are partners in their respective law
firms and have extensive experience in complex and novel litigation matters, including
employment cases.22 Campbell has been practicing in Louisiana for 13 years, and Brady
has been practicing in Louisiana for “over 16 years.”23
An attorney's reasonable hourly rate should be “in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience and
reputation.”24 The Fifth Circuit has emphasized that “the relevant market for purposes of
determining the prevailing rate to be paid in a fee award is the community in which the
district court sits.”25
The party seeking attorney's fees has the burden of producing satisfactory

21

LaBarge Pipe & Steel Co. v. First Bank, 2011 WL 3841605 at *4 (M.D. La. Aug. 29, 2011)(quoting
Harkless v. Sweeny Independent School District, 608 F.2d 594, 598 (5th Cir.1979)(internal quotation marks
omitted).
22
Rec. Doc. Nos. 79-2 & 79-3.
23
Rec. Doc. No. 79-3, ¶ 2.
24
Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984); see also Leroy v. City of Houston, 906 F.2d 1068,
1078–79 (5th Cir.1990) (“In evaluating an attorneys' fees award, we are guided by the overriding principles
that a reasonable attorney's fee is one that is adequate to attract competent counsel, but that does not
produce windfalls to attorneys ....” (quotation marks and alterations omitted)).
25
Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002) (quotation marks omitted).

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evidence that the requested rate is aligned with the prevailing market rate.26 “[A] mere
conclusory statement that [a] fee [is] reasonable” is insufficient for calculating the lodestar
fee.27 Rather, “[t]o inform and assist the court in [determining the reasonable rate],” the
fee applicant should produce an affidavit of the attorney performing the work, information
of rates actually billed and paid in similar lawsuits,28 as well as “affidavits of other
attorneys practicing [in the community in question].”29 In addition to the community rate,
“a court considers the attorneys' regular rates” when determining a reasonable rate.30
Under the case law considered by the Court,31 which includes cases in the Middle
and Eastern District Courts of Louisiana,32 the Court finds that the requested rates of $300
26

Kellstrom, 50 F.3d at 324.
See Hensley, 461 U.S. at 440.
28
See Blum, 465 U.S. at 896 n. 11.
29
Tollett, 285 F.3d at 368. See, e.g., Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir.1993) (party seeking fees
submitted “affidavits from other attorneys in the community showing the prevailing market rates in the
community”).
30
Kellstrom, 50 F.3d at 328.
31
Overman v. City of East Baton Rouge, Civ. A. No. 13-614, 2015 WL 7459988, *4 (M.D. La. Nov. 24,
2015)(court awarded $225 an hour in an employment discrimination case to an attorney with more than 30
years of experience); Advocacy Center v. Cain, Civ. A. No. 3:12-00508, 2014 WL 1246840 at *6 (M.D. La.
Mar. 24, 2014)(approving $350 and $275 per hour rates based on experience and expertise of attorney);
Alexander v. Ace American Ins. Co., Civ. A. No. 14-370, 2014 WL 4163756 at *2 (E.D.La. Aug. 19, 2014)
(sanctioning $250/hour for attorney with ten years of experience and $200/hour for attorney with four years’
experience); Cox. v. Precision Surveillance Org., Civ. A. No. 13–6600, 2014 WL 1785350 at *2 (E.D.La.
May 5, 2014) (sanctioning $275.00/hour for attorney with ten years’ experience); Barrack v. Pailet, Meunier
& LeBlanc, L.L.P., Civ. A. No.12-2776, 2013 WL 6198861 (E.D.La. Nov. 27, 2013) (approving $250/hour
for attorney with 24 years’ experience); Cole v. Orleans Parish Sheriff's Office, 2013 WL 5557416 at *4
(E.D.La. Oct. 8, 2013) (reducing hourly rates from $300/hour to $275/hour for attorney with 34 years’
experience and from $300/hour to $250/hour for attorney with 29 years’ experience); Foley v. SAFG
Retirement Servs., Inc., Civ. A. No. 10-2827, 2012 WL 956499 at * 2 (E.D .La. Mar. 20, 2012) (reducing
hourly rates from $450/hour to $350/hour for attorney with 30 years’ experience and from $300/hour to
$275/hour for attorney with eight years of experience); Constr. Courht, Inc. v. Jenkins, Civ. A. No. 11-1201,
2001 WL 3882271 at *4 (E.D.La. July 29, 2011) (approving $350/hour for partners with 30 and 36 years of
experience); Entergy La., L.L.C. v. The Wackenhut Corp., Civ. A. No. 09–7367, 2010 WL 4812921 (E.D.La.
Nov. 17, 2010) (awarding $175.00/hour to attorney with 16 years of experience); Wilson v. Tulane Univ.,
2010 WL 3943543 (E.D.La. Oct. 4, 2010) (awarding $250.00/hour and $160.00 hour to attorneys with 25
and four years of experience respectively).
32
The prevailing market fee is generally determined by affidavits filed by attorneys practicing in the area.
Ball v. LeBlanc, 2015 WL 4454779 at *3 (M.D. La. July 20, 2015), quoting Tollett, 285 F.3d at 368. However,
markets of comparable sizes can be informative in determining the prevailing market rate of another district.
See e .g., Strogner v. Sturdivant, No. 10–125–JJB–CN, 2011 WL 6140670, at *2 n. 4 (M.D.La. Dec. 9,2011)
(finding that the rate in New Orleans could help determine the rate in Baton Rouge because after Hurricane
27

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per hour for both attorneys is slightly high. The Court finds that $250.00 per hour is a
reasonable rate for the services of Campbell and Brady in light of the prevailing market
rates in Baton Rouge and New Orleans.
3. The Johnson Factors
The Court must next consider whether the lodestar calculation should be adjusted
upward or downward, depending on the circumstances of the case and the factors set
forth in Johnson v. Georgia Highway Express, Inc.33 The twelve factors are: (1) the time
and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to
perform the legal service properly, (4) the preclusion of other employment by the attorney
due to acceptance of the case, (5) the customary fee, (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.34
Several of these factors have already been addressed above; however, the
Defendants pay particular attention to the results obtained and argue that, because
Plaintiff only achieved “limited success,”35 the award should be adjusted downward by 40
or 50%. Defendants contend this reduction is appropriate because Plaintiff voluntarily
dismissed one defendant at the start of trial and because the jury found no liability on her

Katrina, the size of New Orleans and Baton Rouge became more comparable); Advocacy Center v. Cain,
2014 WL 1246840, at *7 n. 6 (same).
33
488 F.2d 714 (5th Cir.1974). See Green, 284 F.3d at 661; Cobb v. Miller, 818 F.2d 1227, 1232 (5th
Cir.1987).
34
Johnson, 488 F.2d 714, 717–19.
35
Rec. Doc. No. 83, p. 4.

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claim of disability discrimination.
In Hensley v. Eckerhart,36 the Supreme Court of the United States found that an
attorneys' fees and costs award should be reasonable in light of the level of success. The
court stated that “[a] reduced fee award is appropriate if the relief, however significant, is
limited in comparison to the scope of the litigation as a whole.”37 However, the Hensley
Court also held that, “[w]here a plaintiff has obtained excellent results, his attorney should
recover a fully compensatory fee … In these circumstances the fee award should not be
reduced simply because the plaintiff failed to prevail on every contention raised in the
lawsuit.”38
While it is true that the jury reduced Plaintiff’s damages by $25,000.00 for failure
to mitigate, and the jury did reject Plaintiff’s claim of disability discrimination, the Court
cannot find that Plaintiff obtained limited success in light of the $540,000.00 award
Plaintiff received on the claims she won. First, Plaintiff established that the Defendants
operated as a single business enterprise, which is not a routine issue in every ADA case.
Second, the Court agrees with Plaintiff’s counsel’s contention that there is no indication
that the jury would have awarded Plaintiff any more or any less had they found
Defendants liable on the disability discrimination claim, as the verdict form did not ask for
particularized damages for each individual claim but rather sought an overall amount for
compensatory damages. Moreover, the Hensley Court held that, where a plaintiff’s claims
for relief
involve a common core of facts or will be based on related legal theories ...,
much of counsel's time will be devoted generally to the litigation as a whole,
36

461 U.S. 424 (1983).
Id. at 440.
38
Id. at 435-436.
37

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making it difficult to divide the hours expended on a claim-by-claim basis.
Such a lawsuit cannot be viewed as a series of discrete claims. Instead the
district court should focus on the significance of the overall relief obtained
by the plaintiff in relation to the hours reasonably expended on the
litigation.39
The Court finds that this is precisely the type of case contemplated above in Hensley.
Regarding the remaining Johnson factors, the Court finds that these factors do not
warrant any additional adjustment from the lodestar amount. Indeed, many of these
factors were subsumed in the original lodestar estimate. Accordingly, having adjusted
the reasonable rate per hour to $250.00 for both Brady and Campbell, the Court
determines that a fee award of $275,662.50 is reasonable compensation for the attorneys'
efforts in this case.
C. Costs
In accordance with Local Rule 54(a), the Court will refer the matter of costs and
expenses to the Clerk of Court’s Office.
III.

CONCLUSION
For the reasons set forth above, the Motion for Attorney’s Fees, Litigation

Expenses and Costs40 is GRANTED with respect to attorney’s fees as adjusted by the
Court. The matter of costs and expenses is referred to the Clerk’s Office.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on January 27, 2016.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
39
40

Id. at 435.
Rec. Doc. No. 79.

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