Carter v. Subway Store #6319 et al

Filing 86

OPINION AND ORDER Granting 84 Petition for Attorney Fees filed by Jet's Pizza in $4,000 and $27,157 for defendant Subway Stores. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHNNIE LEE CARTER,
Plaintiff,
Case No. 11-15158
v.
Honorable Patrick J. Duggan
SUBWAY STORE #6319, SUBWAY
STORE #41985, SUBWAY STORE
#45476, JET’S PIZZA, DOMINIQUE
LATRELL THOMAS, and JASMINE
LASHAWN JONES,
Defendants.
/
OPINION AND ORDER
At a session of said Court, held in the U.S.
District Courthouse, Eastern District
of Michigan, on May 1, 2012.
PRESENT:

THE HONORABLE PATRICK J. DUGGAN
U.S. DISTRICT COURT JUDGE

Johnnie Lee Carter (“Plaintiff”) filed this pro se action pursuant to the False Claims
Act, 31 U.S.C. § 3701 et seq., alleging that Defendants Dominique Latrell Thomas and
Jasmine Lashawn Jones presented false claims to the government in order to obtain food
stamps. Plaintiff also named as defendants the above-listed Subway stores and a Jet’s
Pizza store,1 alleging that these stores conspired to pay employees “off the books,”

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The Subway stores are operated by Chios Enterprises, L.L.C., Davision & Mound Petro,
Inc., and Eastern Mini Mart, Inc. (collectively, “Subway Stores”), while the Jet’s Pizza
store is operated by Yamarino, Inc. (“Jet’s Pizza”).

conspired to hire employees without an “Employment Eligibility Verification,” and failed
to report wages or remit employment taxes to the Internal Revenue Service.
Subway Stores and Jet’s Pizza moved to dismiss the claims against them pursuant to
Federal Rule of Civil Procedure 12(b)(6), and in an Opinion and Order dated February 29,
2012, the Court granted these Defendants’ motions.2 Subway Stores and Jet’s Pizza also
requested an award of their reasonable attorneys’ fees and costs pursuant to 31 U.S.C. §
3730(d)(4). This statute provides:
If the Government does not proceed with the action and the person bringing the
action conducts the action, the court may award to the defendant its reasonable
attorneys’ fees and expenses if the defendant prevails in the action and the
court finds that the claim of the person bringing the action was clearly
frivolous, clearly vexatious, or brought primarily for purposes of harassment.
31 U.S.C. § 3730(d)(4). The Court noted that the United States Attorney’s Office for the
Eastern District of Michigan had declined to pursue Plaintiff’s claims. The Court found
that Plaintiff’s claims were frivolous and brought for the purpose of harassment, rather
than addressing fraud on the government. See 2/29/2012 Op. & Order at 10-11. The
Court accordingly awarded Subway Stores and Jet’s Pizza the reasonable attorneys’ fees
and expenses incurred in defending this suit. The Court directed these Defendants to
submit a detailed statement of fees and expenses. Defendants filed their statements of
expenses on March 14, 2012 and March 21, 2012, respectively. Subway Stores has
requested an award of $26,807 in attorneys’ fees and $350 in costs, while Jet’s Pizza has

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The Court’s order also addressed a number of other motions filed by Plaintiff, including
a motion to remand this case to state court, a motion to strike Subway Stores’ response to
his motion to remand, and a motion to seal his Second Amended Complaint.
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requested $4,000 for its attorney’s fee.
“In an attorneys’ fee case, the primary concern is that the fee awarded be
‘reasonable.’” Gonter v. Hunt Valve Co., 510 F.3d 610, 616 (6th Cir. 2007) (citing Reed v.
Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)). “A reasonable fee is ‘one that is adequate to
attract competent counsel, but . . . [does] not produce windfalls to attorneys.’” Reed, 179
F.3d at 471 (quoting Blum v. Stenson, 465 U.S. 886, 897, 104 S. Ct. 1541, 1548 (1984))
(alteration in original). “The starting point for determining a reasonable fee is the lodestar,
which is the product of the number of hours billed and a reasonable hourly rate.” Gonter,
510 F.3d at 616 (citing Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S. Ct. 1933, 1939
(1983)). The Court may consider a number of other factors in determining whether an
increase or decrease from the lodestar is warranted, including:
(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
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.
Hensley, 461 U.S. at 434 n.9, 103 S. Ct. at 1940 n.9. The Court must provide a clear and
concise explanation of its reasons for the fee award. Gonter, 510 F.3d at 616.
“A trial court, in calculating the ‘reasonable hourly rate’ component of the lodestar
computation, should initially assess the ‘prevailing market rate in the relevant
community.’” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 350 (6th Cir. 2000)
(quoting Blum, 465 U.S. at 895, 104 S. Ct. at 1547). “[T]he ‘prevailing market rate’ is that

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rate which lawyers of comparable skill and experience can reasonably expect to command
within the venue of the court of record.” Id. (citing Hudson v. Reno, 130 F.3d 1193, 1208
(6th Cir. 1997)). The prevailing market rate should not exceed the amount necessary to
cause competent legal counsel to perform the work required. Gonter, 510 F.3d at 616
(citing Coulter v. Tennessee, 805 F.2d 146, 148-49 (6th Cir. 1986)).
Subway Stores is represented by counsel from a large Detroit-based law firm. Its
counsel has requested the following hourly rates: $300 for Maureen Rouse-Ayoub, a
partner with approximately twenty years of experience in employment litigation; $190 for
Jonathan Young, an associate with three years of experience in litigation; and $180 for
Nathan Dupes, an associate with less than one year of experience in litigation. Subway
Stores asserts that these rates are supported by the State Bar of Michigan’s 2010
Economics of Law Practice summary report. See Subway Stores Br. Ex. 6. This report
provides that for law firms with more than 50 attorneys, billing rates range from $215
(25th percentile) to $400 (75th percentile). Id. at 8. The report also provides ranges of
$250 (25th percentile) to $350 (75th percentile) for partners and $153 (25th percentile) to
$228 (75th percentile) for associates. Id. at 7-8. With respect to employment litigation
(defendant), the State Bar report indicates a billing range of $200 (25th percentile) to $300
(75th percentile). This Court has previously found billing rates of up to $300 reasonable
for experienced attorneys in the context of employment litigation. See Auto. Support Grp.,
LLC v. Hightower, 2012 WL 32733, at *3 (E.D. Mich. Jan. 6, 2012). These figures lead
the Court to conclude that the billing rates for Attorneys Rouse-Ayoub, Young, and Dupes
are reasonable for the Detroit market.
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Jet’s Pizza is represented by Joseph Langlois, an attorney with approximately 22
years of experience, including litigation in state and federal courts. He practices in a small
law firm in the metro Detroit area, and requests a billing rate of $250 per hour. The State
Bar report indicates a typical billing range of $175 (25th percentile) to $253 (75th
percentile) for two-person law firms. Given Mr. Langlois’s experience, the Court believes
that a rate of $250 is not excessive for the type of work performed in this litigation.
The Court next considers the number of hours billed by the attorneys listed above.
The total hours billed are as follows: Maureen Rouse-Ayoub, 72.24 hours; Jonathan
Young, 5.00 hours; Nathan Dupes, 23.25 hours; and Joseph Langlois, 16.00 hours. The
attorneys have each provided the Court with a detailed itemization of the hours billed.
The Court first notes that Plaintiff filed numerous pleadings and motions in this case,
increasing the time required to adequately respond to his claims. The Court’s review of
the docket in this case indicates 55 separate entries attributable to Plaintiff during the sixweek period beginning November 29, 2011. See Subway Stores Br. Ex. 1.
The Court has also considered the impact of joint representation in this case and the
efforts of defense counsel to minimize redundant filings. The three Subway defendants
obtained joint representation, and their counsel often coordinated with Mr. Langlois, who
joined in motions and responses. Mr. Langlois has acknowledged that this coordination
reduced the time required to represent Jet’s Pizza in this litigation. The Court is satisfied
that these factors minimized the number of hours necessary to adequately defend against
Plaintiff’s claims.
For these reasons, the Court concludes that the hours billed by counsel for Subway
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Stores and Jet’s Pizza are not excessive. The Court has also reviewed the itemization of
attorney’s fees, and believes that counsel reasonably assigned the less complex tasks in
this litigation to less-experienced attorneys whose billing rates were correspondingly
lower. This practice further supports the Court’s conclusion the amount billed does not
exceed that necessary to cause competent legal counsel to perform the work required. See
Gonter, 510 F.3d at 616. Based on the hourly rates set forth above, the Court calculates a
lodestar amount of $26,807 for Subway Stores and $4,000 for Jet’s Pizza.
The Court has considered the factors that would warrant an increase or decrease from
the lodestar, but finds that no adjustment is necessary in this case. Counsel obtained a
prompt dismissal of Plaintiff’s claims, and the Court believes that the award of attorneys’
fees set forth above is reasonable compensation for their efforts.
Turning to the matter of costs, Subway Stores seeks to recover the $350 filing fee
incurred in removing the suit to this Court. Such fees are recoverable pursuant to the
Eastern District of Michigan’s Bill of Costs Handbook. Subway Stores has submitted
documentation indicating that this fee was paid on November 22, 2011. See Subway
Stores Br. Ex. 2 at 20. The Court therefore awards Subway Stores costs in this amount.
Accordingly,
IT IS ORDERED that Defendant Subway Stores is awarded attorneys’ fees and
costs in the amount of $27,157;
IT IS FURTHER ORDERED that Defendant Jet’s Pizza is awarded attorney’s fees
in the amount of $4,000.
SO ORDERED.
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s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Johnnie Lee Carter
12273 Moran Street
Detroit, MI 48212
Jonathan A. Young, Esq.
Maureen Rouse-Ayoub, Esq.
Joseph L. Langlois, Esq.

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