Luv N Care Ltd v. Groupo Rimar

Filing 45

MEMORANDUM RULING re 36 MOTION for Attorney Fees For Appeal filed by Groupo Rimar. Signed by Judge Robert G James on 1/12/17. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

LUV N’ CARE, LTD.

CIVIL ACTION NO. 15-2349

VERSUS

JUDGE ROBERT G. JAMES

GROUPO RIMAR, AKA SUAVINEX

MAG. JUDGE KAREN L. HAYES

RULING
Pending before the Court is a Motion for Attorneys’ Fees for Appeal (“Motion for Attorneys’
Fees for Appeal”) filed by Defendant Groupo Rimar a/k/a Suavinex (“Suavinex”). [Doc. No. 36].
Suavinex moves the Court for an award of attorneys’ fees against Plaintiff Luv N Care, Ltd. (“LNC”)
for the time spent litigating the appeal.
I.

FACTUAL AND PROCEDURAL BACKGROUND
This case arises from the Parties’ dispute over provisions of a 2012 Termination Agreement

and Mutual Release (“2012 Termination Agreement”) in this Court. On August 14, 2014, LNC filed
suit against Suavinex for the alleged violations of certain provisions of the 2012 Termination
Agreement. (“Suavinex I”). Weeks after the amendment deadline had passed, on May 15, 2015, LNC
attempted to amend the Complaint to add the instant claim. [Case. No. 14-2491, (“Suavinex I”) Doc.
No. 35]. On June 17, 2015, Magistrate Judge Karen L. Hayes denied the motion on grounds of
untimeliness and futility. (Suavinex I, [Doc. No. 54]). LNC did not appeal Magistrate Judge Hayes’
Order to this Court.
On September 9, 2015, LNC filed the instant Complaint. (“Suavinex II”). On January 11,
2016, Suavinex filed a “Motion to Dismiss, or in the Alternative Rule 12(c) Motion for Judgment

on the Pleadings” in Suavinex II. [Doc. No. 4]. On February 26, 2016, Magistrate Judge Hayes issued
a Report and Recommendation [Doc. No. 15] in which she recommended dismissing LNC’s claims
in Suavinex II on three separate grounds: (1) res judicata; (2) insufficient service of process; and (3)
no breach of contract as a matter of law. On May 13, 2016, the Court issued a Judgment adopting
the findings and conclusions set forth in Magistrate Judge Hayes’ Report and Recommendation to
the extent she recommended that the Court dismiss LNC’s claims on res judicata grounds. [Doc. No.
24].
On May 16, 2016, LNC filed a notice of appeal of the Judgment to the United States Court
of Appeals for the Fifth Circuit. [Doc. No. 26]. On September 13, 2016, the Fifth Circuit dismissed
the appeal pursuant to a motion filed by LNC. [Doc. No. 35].
On September 23, 2016, Suavinex filed the instant Motion for Attorneys’ Fees for Appeal
under paragraph 5.9 of the 2012 Termination Agreement. [Doc. No. 36]. On September 29, 2016,
LNC filed a memorandum in opposition. [Doc. No. 38]. On October 5, 2016, Suavinex filed a reply
memorandum [Doc. No. 39] and LNC filed a sur-reply on October 11, 2016. [Doc. No. 44].
II.

LAW AND ANALYSIS
It is well settled in Louisiana law that a prevailing litigant may not recover his attorneys’ fees

unless provided for by statute or contract. General Motors Acceptance Corp. v. Meyers, 385 So.2d
245, 247 (La. 1980) (citing Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959)). Suavinex
seeks “reasonable attorney’s fees” in the amount of $14,080.00 as the “prevailing party” under the
2012 Termination Agreement. [Doc. No. 36-1]. The 2012 Termination Agreement provides:
The prevailing party in a claim in a court of competent jurisdiction arising under this
agreement against another Party shall be entitled to collect reasonable attorney’s fees
incurred in connection with the claim or suit in the underlying matter. For purposes
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of this Section, a Party shall be considered the prevailing party if the court of
competent jurisdiction has reached a decision which is substantially closer to one
Party’s original claims or defenses, taken as a whole, than the opposing Party;
provided that if the decision is not clearly substantially closer to one party’s original
claims or defenses, taken as a whole, than the opposing Party, none of the Parties
shall be entitled to collect attorney’s fees.
(Suavinex I, [Doc. No. 64-8, p. 6]).
The Fifth Circuit dismissed the appeal with prejudice pursuant to LNC’s motion. [Doc. No.
35]. The Court concludes that Suavinex is the prevailing party because the Court’s Judgment in the
underlying matter is substantially closer to Suavinex’s claims and defenses. Therefore, Suavinex is
entitled to collect reasonable attorneys’ fees incurred in connection with LNC’s appeal.
The express language of the 2012 Termination Agreement dictates that Louisiana law
governs the Court’s award of attorneys’ fees in this case. Under Louisiana law, a “reasonable
attorney’s fee is determined by the facts of an individual case. In making awards for attorney’s fees,
the trial court is vested with great discretion . . . .” Richardson v. Parish of Jefferson, 98-625 (La.
App. 5 Cir. 1999); 727 So.2d 705, 707 (citations omitted). “The fundamental measure of attorney’s
fees is reasonableness, considering the factors set forth by Rules of Professional Conduct R. 1.5 [now
Rule 1.5(a)].” Mayeur v. Campbell, 94-2263 (La. App. 1 Cir. 1995); 666 So.2d 366, 370.
Louisiana courts take the following factors into consideration when examining the
reasonableness of attorneys’ 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. Silver Dream, LLC v. 3MC, Inc., 10-3658, 2011 WL

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5878142, at *2 (E.D. La. Sept. 8, 2011).
These factors are essentially the same as those the Fifth Circuit articulated in Johnson v.
Georgia Hwy. Express, Inc., 488 F.2d 714 (5th Cir. 1974), to help courts analyze whether a fee
award is reasonable. “Because the fundamental requirement of reasonableness and the factors used
under Louisiana law are substantially similar to the federal lodestar method,” the Court uses the
federal lodestar analysis to determine the reasonable amount of attorney’s fees. See Silver Dream,
LLC, 10-3658, 2011 WL 5878142 at *3 (utilizing federal lodestar method to determine reasonable
fee award under Louisiana law).
Under the federal approach, there are two steps in arriving at a reasonable attorney’s fee.
First, the Court determines the lodestar amount by multiplying the number of hours reasonably
expended by an appropriate rate in the community for such work. Shipes v. Trinity Indus., 987 F.2d
311, 319-20 (5th Cir. 1993). Next, the court considers whether to raise or lower the lodestar. This
undertaking requires the court to consider the Johnson factors to ensure the fee’s reasonableness. 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 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) the award in similar cases.

488 F.2d at 718.
A.

Calculating a Reasonable Hourly Rate

Attorneys’ fees must be calculated at the prevailing market rates in the relevant community

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for similar services by attorneys of reasonably comparable skills, experience, and reputation.
Johnson v. City of Monroe, 06-0635, 2007 WL 4680476 at *2 (W.D. La. Nov. 27, 2007). The
relevant legal market is the community where the district court sits. Tollett v. City of Kemah, 285
F.3d 357, 368 (5th Cir. 2002). The party seeking attorneys’ fees bears the burden of producing
satisfactory evidence that the requested rate is aligned with prevailing market rates. Wells v. Regency
Hosp. Co., 07-3775, 2008 WL 5273712 at *2 (E.D. La. Dec. 15, 2008) “A district court may not
simply rely on its own experience in the relevant legal market to set a reasonable hourly billing rate.”
Worldcom, Inc. v. Automated Communications, Inc., 75 F.Supp.2d 526, 531 (S.D. Miss. 1999). A
United States District Court for the Middle District of Louisiana described the proof necessary to
establish the prevailing market rate:
“[A] mere conclusory statement that [a] fee [is] reasonable” is insufficient for
calculating the lodestar fee. 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,
as well as “affidavits of other attorneys practicing [in the community in question] (the
party seeking fees submitted “affidavits from other attorneys in the community
showing the prevailing market rates in the community”).
Heck v. Buhler, 07-00021, 2014 WL 2003270, at *2 (M.D. La. May 15, 2014) (citations omitted).
Here, Suavinex seeks attorneys’ fees for three attorneys:
1.

Mr. Altherr (“Altherr”) who is seeking $200 per hour;

2.

Mr. Roth (“Roth”) who is seeking $200 per hour;

3.

Mr. Rothman (“Rothman”) who is seeking $150 per hour.

LNC does not contest the reasonableness of the hourly rates asserted by Suavinex, and the
Court found these same rates reasonable in Suavinex I. (Suavinex I, [Doc. No. 64-8, p. 6]). The Court
will adopt Suavinex’s proposed rates of $150 per hour for associates and $200 per hour for partners.
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B.

Hours Reasonably Expended

The lodestar formula’s second component is designed to unveil the number of hours the feeseeking party reasonably expended on the litigation. The party seeking attorneys’ fees bears the
burden of establishing the reasonableness of the fees by submitting adequate documentation and time
records of the hours reasonably expended. The fee-seeking party must also show it exercised “billing
judgment” by excluding time that is unproductive, excessive, duplicative, or inadequately
documented. Alberti v. Klevenhagen, 896 F.2d 927, 930 (5th Cir. 1990).
Here, LNC first argues that Suavinex spent an inappropriate amount of time in its appellate
brief on issues that were not raised on appeal by LNC. [Doc. No. 38, p. 1]. LNC acknowledges that
the Fifth Circuit may consider any ground urged at the district court level, not just issues raised on
appeal. However, LNC argues that “it should not have been necessary for the Defendant to spend
more (54%) of its Appellate Brief argument on the two other much weaker grounds in its Brief to
the Fifth Circuit Court of Appeals. . . .” [Doc. No. 40, p. 1].
The Court does not agree with LNC’s contention that the focus of Suavinex’s brief was
inappropriate. There is no evidence that Suavinex expended the requested hours in bad faith or for
the sole purpose of increasing a prospective award of attorneys’ fees. Thus, the argument provides
no support for a finding that the requested hours are unreasonable.
Next, LNC contends that it was inappropriate to have a new associate “do a memo on the
history of the cases and charge seven hours for the same.” [Doc. No. 38, p. 3]. However, the Court
does not find it unreasonable to use an associate to review and organize the procedural history of the
case.
Finally, LNC argues that Suavinex’s request for an award of 40.5 hours for Mr. Roth’s
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preparation of the appellate brief is excessive because he spent 17.5 hours on the same issues in
Suavinex’s Motion to Dismiss at the district court level. [Doc. No. 38, p. 3]. A review of the invoice
attached to Defendant’s Motion for Attorneys’ Fees for Appeal reveals that Mr. Roth spent 3.5 hours
reviewing LNC’s brief and 37.5 hours drafting the twenty-two page appellate brief. [Doc. No. 36-4,
p. 3]. Suavinex contends that Mr. Roth spent additional time on the appellate brief because the
content and form requirements of an appellate brief are different than those of the district court level.
[Doc. No. 39, p. 2]. Moreover, Suavinex contends that the cases cited at the district court level must
be updated and Shepardized. Id.
The Court finds that a reduction to the amount of hours spent by Mr. Roth on the appellate
brief is appropriate in light of the fact that much of the research and content contained in the brief
had already been completed at the district court level. Additionally, the tasks Suavinex contends
required additional hours on the appellate brief, such as Shepardizing cases and adhering to appellate
form requirements, did not have to be completed by a partner. Those tasks could have been
completed by either an associate or a paralegal. Therefore, the Court will reduce Suavinex’s
requested hours for Mr. Roth’s preparation of the appellate brief by 1/4 to 30.38 hours. After Mr.
Roth’s reduction, the total hours reasonably expended by defense counsel on appeal is 63.28 hours.
Name

Hours Claimed

Hours Awarded

Billing Rate (per
hour)

Awarded Fee

Mr. Altherr

20.9

20.9

$200

$4,180

Mr. Roth

40.5

30.38

$200

$6,076

Mr. Rothman

12

12

$150

$1,800

Total

73.4

63.28

After applying the deduction, the combined lodestar is $12,056.00.
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$12,056

3.

Applying the Johnson Factors to the Lodestar

Generally, the lodestar formula yields a reasonable fee award; indeed, the lodestar amount
is presumptively reasonable and courts should not alter it absent extraordinary circumstances. See
Coe v. Chesapeake Exploration, LLC, 09-290, 2011 WL 4366728, at *6 (E.D. Tex. Sep. 15, 2011).
The Court recognizes that the analysis set forth above, and particularly the interplay of the lodestar
analysis and the Johnson factors, has recently been called into question. See Perdue v. Kenny A., 559
U.S. 542, 552 (2010); S&H Indus., Inc. v. Selander, No. 3:11-cv-2988, 2013 WL 6332993, at *2-*3
(N.D. Tex. Dec. 5, 2013). However, the United States Court of Appeals for the Fifth Circuit, without
comment or reference to the United States Supreme Court’s decision in Perdue, continued to utilize
the approach laid out by this Court. See Black v. SettlePou, P.C., 732 F.3d 492, 502-03 (5th Cir.
2013).
This is not an exceptional case where the lodestar formula fails to provide a reasonable
attorneys’ fee. In light of those circumstances, the Court finds no reason, based on any of the
Johnson factors, to modify the $12,056.00 lodestar amount, as to which there is a strong presumption
of reasonableness. See Perdue, 559 U.S. at 552. Therefore, the Court awards Suavinex attorneys’
fees in the amount of $12,056.00.
III.

CONCLUSION
For these reasons, Suavinex’s Motion for Attorneys’ For Appeal [Doc. No. 36] is GRANTED

IN PART and DENIED IN PART. An award of $12,056.00 in attorneys’ fees is entered in favor of
Defendant Suavinex and against Plaintiff LNC.

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MONROE, LOUISIANA, this 12th day of January, 2017.

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