Progressive Waste Solutions of LA, Inc. v. Lafayette

Filing 126

RULING ON ATTORNEYS' FEES. For the reasons assigned herein, the Court hereby awards the sum of $5,138.75 to Laborde and Mandich, and awards $5,163.75 to Torian for attorney's fees, and $1,046.25 in expenses, for a total of $11,348.75.IT IS SO ORDERED. Signed by Magistrate Judge C Michael Hill on 11/5/2014. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
PROGRESSIVE WASTE SOLUTIONS OF LA., INC.

*CIVIL NO. 6:12-0851

VERSUS

*JUDGE HAIK

LAFAYETTE CITY-PARISH
CONSOLIDATED GOVERNMENT
HILL

*MAGISTRATE JUDGE

RULING ON ATTORNEYS’ FEES
Pending before the undersigned is the determination of the amount of attorney’s
fees and expenses owed by plaintiff, Progressive Waste Solutions of LA, Inc.
(“Progressive”), to defendant, Lafayette City-Parish Consolidated Government (“LCG”),
pursuant to the Memorandum Ruling on Motion for Contempt and Sanctions and Order
dated October 22, 2014. [rec. doc. 118].
By the Order, the undersigned imposed the following sanctions against counsel for
Progressive pursuant to Rule 37, F.R.Civ.P.:
1. The costs and attorney’s fees incurred by LCG with the filing and
bringing of the Motion for Contempt and Sanctions filed by LCG [rec. doc.
103], as well as the costs and fees of counsel in attending the hearing on the
motion;
2. The costs and attorney’s fees for the taking of the deposition of
Progressive’s Area Manager, Bruce Emley (“Emley”), and District
Manager, Mike Dingler (“Dingler”), on September 30, 2014, and
3. The costs and attorney’s fees for the re-deposition of Emley, Dingler,
and/or any other appropriate representative of Progressive with knowledge
of Progressive’s financial and related documentation for operations at the
Duson facility made appropriate by the production of the financial
information ordered hereby.

The undersigned further ordered counsel for LCG to furnish an affidavit setting
out the fees and expenses for items 1 and 2 above.
On October 31, 2014, counsel for LCG, Cliffe E. Laborde, III (“Laborde”) and
Robert E. Torian (“Torian”), filed Affidavits Relative to Attorney’s Fees and Costs
Incurred in Connection with the Depositions of Bruce Emley and Mike Dingler and
Lafayette City-Parish Consolidated Government’s Motion for Contempt and Sanctions.
[rec. doc. 122].1 Progressive filed a response on October 30, 3014. [rec. doc. 119]. On
November 4, 2014, LCG filed a memorandum in response to Progressive’s brief. [rec.
doc. 125]. This Ruling follows.
Law and Analysis
GUIDELINES FOR ATTORNEYS’ FEES AND EXPENSES CALCULATION
LCG seeks costs and attorney’s fees pursuant to the undersigned’s Order.
Progressive objects to the amount requested on the grounds that some of the fees
requested in the affidavits are duplicative and excessive.
A fee award is governed by the same law that serves as the rule of decision for
substantive issues in the case. Chevron USA, Inc. v. Aker Mar. Inc., 689 F.3d 497, 505
(5th Cir. 2012) (citing Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002)). In
diversity cases such as this one, attorney's fee awards are governed by state law.
Northwinds Abatement, Inc. v. Employers Ins. of Wausau, 258 F.3d 345, 353 (5th Cir.
1

The Affidavits were originally sent directly to the undersigned and then filed into the
record pursuant to the Court’s instruction.
2

2001); Mid-Continent Casualty Co. v. Chevron Pipe Line Co., 205 F.3d 222, 230 (5th Cir.
2000). In this case, Louisiana law applies.
In Louisiana, the amount of an attorneys'-fees award is governed by Rule 1.5 of the
Rules of Professional Conduct. Chevron USA, Inc. v. Aker Mar. Inc., 689 F.3d 497, 505
(5th Cir. 2012) (citing State Dep't of Transp. & Dev. v. Williamson, 597 So.2d 439, 442 n.
9 (La.1992)). The factors therein are very similar to those used in the federal “lodestar”
method as set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th
Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct.
939, 103 L.Ed.2d 67 (1989); La. Power & Light Co. v. Kellstrom, 50 F.3d 319 (5th
Cir.1995); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564 (5th Cir. 2006).
Determination of reasonable attorney’s fees involves a two-step procedure.
Kellstrom, 50 F.3d at 324 ((citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.
1933, 1939, 76 L.Ed.2d 40, 51 (1983)). Initially, the district court must determine the
reasonable number of hours expended on the litigation and the reasonable hourly rates for
the participating lawyers. Id. Then, the district court must multiply the reasonable hours
by the reasonable hourly rates. Id. The product of this multiplication is the lodestar,
which the district court then either accepts or adjusts upward or downward, depending on
the circumstances of the case, after assessing the dozen factors set forth in Johnson.
Wegner v. Standard Insurance Company, 129 F.2d 814, 822 (5th Cir. 1997).

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Issues and Analysis
The focus now turns to the fees requested by LCG’s counsel. Laborde seeks
$1,718.75 in fees for attorney’s fees incurred in taking the depositions of Emley and
Dingler (6.25 hours by Laborde x $275.00 per hour); $5,225.00 in fees for preparing
LCG’s Motion for Contempt and Sanctions (19.00 hours by Laborde x $275.00 per hour);
$560.00 in fees for researching for the motion (3.5 hours by Marc Mandich x $160.00 per
hour), and $385.00 in fees for attending the hearing on the motion (1.4 hours by Laborde
x $275.00 per hour). Torian seeks fees in the amount of $1,406.25 for the taking the
depositions of Emley and Dingler (6.25 hours by Torian x $225 per hour); $1,047.10 in
court reporter fees for those depositions; $3,757.50 for researching and drafting the
motion (16.7 hours by Torian x $225 per hour), and $315.00 for attending the hearing on
the motion (1.40 hours by Torian x $225 per hour).
Reasonable Hours Expended by Laborde and Torian
In determining the number of hours billed for purposes of calculating the lodestar,
the Court must determine whether the requested hours expended by counsel were
reasonable in light of the facts of the case and the work performed. Guity v. Lawson
Envtl. Serv., LLC, — F.Supp.3d —, 2014 WL 4723295, *3 (E.D. La. Sept. 23, 2014)
(citing Hernandez v. U.S. Customs and Border Protection Agency, 2012 WL 398328, *14
(E.D. La. Feb. 7, 2012)). The burden of proving the reasonableness of the hours

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expended is on the fee applicant. Mota v. University of Houston Health Science Center,
261 F.3d 512, 528 (5th Cir. 2001).
The Court must also determine whether the records show that the movant's counsel
exercised billing judgment and should exclude all time billed for work that is excessive,
duplicative, or inadequately documented. Guity, at *2. A careful review of all of the
entries reveals that some were duplicative or excessive.
The undersigned notes instances of duplicative work by Laborde and Torian,
particularly the entries for having both attorneys appear at the same court proceedings and
prepare the same pleadings. For example, Laborde and Torian each billed 6.25 hours for
taking the depositions of Emley and Dingler, and 1.40 hours for attending the hearing on
the motion for contempt and for sanctions. Additionally, Laborde billed 19.00 hours for
preparing for the motion for contempt and for sanctions, while Torian billed 16.7 hours
for researching and drafting the same motion.
The undersigned finds that the billing of both attorneys for attending the hearing is
duplicative; therefore, Torian’s time is excluded, since Laborde conducted the entirety of
the argument. Further, I find that Laborde’s billing of 19.00 hours for preparing the
motion is excessive, and I therefore reduce that to 9.0 hours. The undersigned notes that
three attorneys for Progressive also prepared briefs related to the motion for contempt and
for sanctions; thus, the remaining time for Torian, Laborde and Mandich will be allowed.2
2

The Court further notes that multiple counsel for the plaintiff have attended virtually
every hearing and every conference call.
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Hourly Rates Claimed
In determining the hourly rates for purposes of calculating the lodestar, the Court
must determine a reasonable rate for each attorney at the prevailing market rates in the
relevant community for similar services by attorneys of reasonably comparable skills,
experience, and reputation. Hernandez, 2012 WL 398328 at *14 (citing Blum v. Stenson,
465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The burden is on the fee
applicant to submit satisfactory evidence that the requested rate is aligned with prevailing
market rates. Wheeler v. Mental Health & Mental Retardation Auth. of Harris County,
Tex., 752 F.2d 1063, 1073 (5th Cir. 1985).
Progressive has no objection to the rate billed by LCG’s attorneys. Based on the
skill, experience and reputation of counsel, I find that the rates billed are reasonable.
Johnson Analysis
Next, the second step allows the Court to make downward adjustments, or in rare
cases, upward adjustments, to the lodestar amount based upon consideration of the twelve
Johnson factors. The twelve Johnson factors are the following: (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)

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the “undesirability” of the case; (11) the nature and length of the professional relationship
with the client, and (12) awards in similar cases. Johnson, 488 F.2d at 717.
Courts apply a “strong presumption that [the lodestar] figure is reasonable.”•
Hernandez, 2012 WL 398328, at *16. Nevertheless, the Court must still consider the
twelve Johnson factors. Although the Court need not be “meticulously detailed” in its
analysis, it must nonetheless articulate and clearly apply the twelve factors to determine
how each affects the lodestar amount. The Court should give special consideration to the
time and labor involved, the customary fee, the amount involved and the results obtained,
and the experience, reputation, and ability of counsel. However, to the extent that a factor
has been previously considered in the calculation of the benchmark lodestar amount, a
court should not make further adjustments on that basis. Id. (internal citations omitted).
A listing of the factors and analysis of each factor as it applies in this case follow.
(1) Time and labor involved: the lodestar adequately compensates time and labor
involved. (2) Novelty and difficulty of the questions: discovery-related motions are
regularly before this Court. (3) The skill required to perform the legal services properly:
the hourly rate adequately compensates counsel for the level of skill required to handle
this case competently. (4) Preclusion of other employment: no evidence was offered to
establish that this case precluded handling of other cases. (5) Customary fee: the hourly
rates fall within the range in this market. (6) Fixed or contingent fee: this case was billed

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on an hourly basis; thus, this factor does not justify adjustment.3 (7) Time limitations: no
evidence was adduced on this point.4 (8) The time involved and the results obtained: this
discovery dispute was resolved within three months; thus, the lodestar adequately
compensates for this factor; however, as the Supreme Court has greatly limited the use of
this factor, and no specific evidence has been introduced in support, the lodestar requires
no adjustment. Walker, 99 F.3d at 771. (9) The experience, reputation and ability of
counsel: the lodestar adequately compensates for this factor. (10) The undesirability of
the case: no evidence was adduced on this point. (11) The nature and length of the
professional relationship with the client: no evidence was adduced on this point. Thus,
the lodestar adequately compensates for this factor. (12) Awards in similar cases:
Counsel has not cited any in the motion for attorney’s fees. The lodestar is presumptively
reasonable and should be modified only in exceptional cases. City of Burlington v.
Dague, 505 U.S. 557, 112 S.Ct 2638, 2641, 120 L.Ed.2d 449 (1992). This is not such a
case; the lodestar requires no adjustment.

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In Walker, 99 F.3d at 772, the Fifth Circuit noted that the Supreme Court has barred any
use of the sixth factor. See City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638,
2643, 120 L.Ed.2d 449 (1992); Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir.), cert.
denied, 510 U.S. 991, 114 S.Ct. 548, 126 L.Ed.2d 450 (1993).
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The seventh factor is subsumed in the number of hours reasonably expended. Walker, 99
F.3d at 772.
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Expenses
Finally, the request for costs and expenses totaling $1,046.25 in costs and expenses
for deposition costs must be addressed. Progressive does not object to the amount of
expenses incurred. Accordingly, I award the full amount of $1,046.25 in costs and
expenses.
CONCLUSION
For the reasons assigned hereinabove, the Court hereby awards the sum of
$5,138.75 to Laborde and Mandich, and awards $5,163.75 to Torian for attorney’s fees,
and $1,046.25 in expenses, for a total of $11,348.75.
IT IS SO ORDERED.
Signed this 5th day of November, 2014, at Lafayette, Louisiana.

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