Brassfield v. Evergreen Hauling, LLC et al

Filing 34

ORDER granting 33 Motion for Settlement and Dismissing Case with Prejudice. Signed by District Judge Michael P. Mills on 4/22/2019. (lpm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JIMMY BRASSFIELD

PLAINTIFF

VS.

CAUSE NO. 1:17cv175-MPM-DAS

EVERGREEN HAULING, LLC and
JOHN DOES 1-20, Individually

DEFENDANT
ORDER

The parties have filed a joint motion to approve a settlement in the above-entitled action,
and, as part of that motion, they have requested that this court determine the appropriate award of
attorneys’ fees for counsel for plaintiff. This court notes at the outset that few calls are more
worrisome to judges than having to assess attorneys’ fees, given that doing so requires them to
evaluate, and at times second-guess, decisions made by counsel with regard to their handling of a
case. This court has the highest personal and professional regard for counsel for both plaintiff
and defendant, and it would ideally prefer not to have to address these issues. Nevertheless, the
parties have agreed that it is necessary for this court to resolve these matters, and, that being the
case, it has no option but to do so.
The issue of attorneys’ fees has been the primary hindrance to settling this case, since
defendant Evergreen Hauling, LLC (“Evergreen”) expressed a willingness in April 2018 to pay
plaintiff Jimmy Brassfield the full amount in backpay which he claimed in this FLSA overtime
action. In an April 6, 2018 letter to plaintiff’s counsel, defense counsel wrote that:
If we assume that your calculation is correct and he is owed $770 in back wages for every
eight- week period of his 18 months of employment, the most in back wages he could
recover for his 18 months of employment is $6930. To resolve this case quickly and
avoid the inefficiency of exchanging multiple offers, Evergreen will pay him this amount
in exchange for his dismissal with prejudice of this case and his execution of a release of
all claims against the company.

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[Defendant’s exhibit 4]. This $6930 in backpay which defendant offered in April 2018 was the
exact amount which it ultimately paid plaintiff in the settlement in this case, and defendant
argues, persuasively in this court’s view, that the amount of fees sought by plaintiff’s counsel is
excessive. This is particularly true considering that many of these fees relate to work which,
plaintiff’s counsel concedes, was performed after the April 6 offer.
In his April 6 letter, counsel for defendant stated his opinion that the $15,000 in
attorneys’ fees which counsel for plaintiff was seeking at the time was excessive and that
Evergreen was not prepared to pay him that amount. [Id.]. Largely because of the dispute over
attorneys’ fees, this request has only grown in the intervening months, and counsel for plaintiff
now seeks for this court to award him $25,200 in fees.
It should be noted, however, that counsel’s time after the April 6 offer was not
exclusively spent on pursuing his own recovery of fees. A complication in the settlement arose
when plaintiff indicated to defendant that he had never wanted to file a lawsuit in the first place.
In a May 14, 2018 e-mail to counsel for plaintiff, defense counsel wrote that:
Howard – We need to talk. I tried to call you back Friday. When our guy handed the
letter to Brassfield, Brassfield told him he did not want to bring this lawsuit in the first
place and said he had made it clear to you that he had no interests in pursuing it.
Needless to say, Evergreen is upset because they believe this was solely attorney driven.
I told them I would talk to you. Based on what Brassfield said, I don’t believe they will
pay anything at this point, and I certainly don’t think we have a deal.
[Defendant’s exhibit 6]. It seems clear to this court that this complication did require some time
and attention on the part of plaintiff’s counsel, but it appears from his timesheets that most of his
time was devoted to other matters.
In taking exception to the amount of attorneys’ fees requested by plaintiff, defendant also
emphasizes that his counsel has already been awarded $6,000.75 in attorneys fees and $500 in
costs in a companion case filed before Judge Davidson. Jesse Hendrix v. Evergreen Hauling,
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LLC, et al., No. 1:18cv114-GHD-DAS. In Hendrix, which arises from a complaint almost
identical to the one in this case, counsel for plaintiff had requested that he be awarded $8,700 in
fees and $575 in costs, based on twenty-nine hours of work billed at a rate of $300 per hour.
[Docket entry 19 at 1]. In substantially reducing this amount, Judge Davidson wrote that:
Here, Hendrix's counsel provides no proof that he wrote off unproductive, excessive, or
redundant hours. In fact, the bill submitted shows he did not. For example, the June 5,
2018 entry bills two hours for drafting the complaint, summons, proof of summons, and
certificate of service. While two hours on its face may be reasonable for such tasks, as
Evergreen points out, the complaint in this case is almost virtually identical to the
complaint filed by Hendrix's counsel in another matter against Evergreen. See Compl.
[1], Brassfield v. Evergreen Hauling, LLC, Civil No. 1:17-cv-00175-MPM-DAS.
This is turn highlights another issue with the billing requests. Hendrix's counsel was
representing another FLSA plaintiff in a case against Evergreen. The emails and
correspondence between Hendrix's and Evergreen's counsel provided to the Court
indicate that Hendrix's counsel worked on these matters simultaneously. If counsel spent
time working on both matters at once, he cannot bill that full amount of time to both
clients; to do so would constitute double-billing. But the billing request is silent as to
whether and how counsel allocated the hours between the two clients.
Hendrix v. Evergreen Hauling, 2019 WL 138160, at *2–3 (N.D. Miss. Jan. 8, 2019)
Judge Davidson thus noted the existence of the instant action before this court, and he
concluded that it would be inappropriate to allow counsel to be paid twice for the same work.
This court finds Judge Davidson’s analysis to be persuasive, and it agrees that some downward
reduction in the amount of attorneys’ fees is appropriate based upon the fact that a number of
matters, including the drafting of virtually identical complaints, were made far easier by the
Hendrix litigation, for which plaintiff has already been compensated. That aside, this court
emphasizes that plaintiff is seeking a far larger sum of attorneys’ fees in this case than in
Hendrix, even though the number (and nature) of the docket filings in the two cases are very
similar. Once again, counsel for plaintiff is seeking $25,200 in attorneys’ fees in this case, and
this court finds this to be a surprisingly large sum for a case which settled even before most

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discovery had been completed. This court therefore believes that a much greater reduction in the
requested amount of attorneys’ fees is appropriate in this case than in Hendrix.
In so stating, this court notes that the amount of attorneys’ fees which plaintiff’s counsel
is seeking in this case is similar to fee requests which it has seen in cases which have been fully
litigated through trial. In Young v. Bd. of Supervisors of Humphreys Cty., Mississippi, 2018 WL
5807637 (N.D. Miss. 2018), for example, this court recently considered the issue of attorneys’
fees in a case which, unlike this one, had been fully litigated. In Young, the counsel for plaintiff
asserted that he had performed an amount of work equivalent to $33,000 in attorneys’ fees for a
case in which discovery had been completed, Rule 12 motions to dismiss and Rule 56 motions
for summary judgment had been litigated, and a full jury trial had been conducted. [See Young
docket, case number 4:16cv66]. Nevertheless, recognizing that the jury’s award of $25,000 in
damages against Humphreys County was less than had been sought, counsel for plaintiff sought
for this court to only award him $15,000 in attorneys’ fees. Young, 2018 WL 5807637, at *2.
This court agreed that, considering the limited success obtained by plaintiff, this was a
reasonable sum of attorneys’ fees, and it entered a judgment in this amount. Id.
It is very much unclear to this court why, if the counsel for plaintiff in Young was able to
fully litigate a case through trial for $33,000 in attorneys’ fees (of which he sought only $15,000)
plaintiff’s counsel in this case was able to incur over $25,000 in attorneys’ fees for a case in
which the docket is comparatively empty. Indeed, the docket reveals that, aside from the eightpage complaint which initiated this case (and Hendrix), the only substantive briefing completed
by counsel involved his present attempts to secure compensation for himself. Based on
counsel’s timesheets, it appears that the limited discovery which took place in this case did not
include any depositions and was limited to initial disclosures and the preparation of

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interrogatories and requests for production of documents. Under these circumstances, this court
can only conclude that the fee request in this case is excessive.
Having given its general impression of the attorneys’ fee issue in this case, this court now
turns to the specific law in this context, much of which involves factors duplicative of the
considerations stated above. To determine whether Brasfield’s fees request is reasonable, the
court must first perform a lodestar calculation and then consider the request in light of the factors
identified in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974).
Courts calculate a “lodestar” by multiplying the hours reasonably spent on the case by an
appropriate hourly rate. Id. (citing Heidtman v. Cty. of El Paso, 171 F.3d 1038, 1043 (5th Cir.
1999)). Courts may then adjust that amount based on the twelve factors set forth in Johnson.
These twelve Johnson factors are: (1) the time and labor required for the litigation; (2)
the novelty and complication of the issues; (3) the skill required to properly litigate the issues;
(4) whether the attorney had to refuse other work to litigate the case; (5) the attorney's customary
fee; (6) whether the fee is fixed or contingent; (7) whether the client or case circumstances
imposed any time constraints; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) whether the case was “undesirable;” (11)
the type of attorney-client relationship and whether that relationship was long-standing; and (12)
awards made in similar cases. Johnson, 488 F.2d at 717–18. While “the most critical factor in
determining an attorney’s fee award is the degree of success obtained,” Saizan, 448 F.3d at 799,
“‘a low damages award alone ... should not lead the court to reduce a fee award.’” Black v.
SettlePou, P.C., 732 F.3d 492, 503 (5th Cir. 2013) (quoting Saizan).
Crucially, plaintiff’s own briefing does not attempt to portray his minor recovery in this
case as a success; to the contrary, he asserts that he was entitled to much more and was forced to

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take defendant’s “take it or leave it” offer based on his financial hardships. [Reply brief at 10].
Clearly, this is a damaging admission, given that, to reiterate, “the most critical factor in
determining an attorney’s fee award is the degree of success obtained.” Saizan at 799.
Considering that plaintiff himself does not seek to characterize this lawsuit as a successful one, it
is unclear to this court why his counsel should be entitled to such an extraordinary large recovery
of fees. Moreover, it appears that the primary reason for the limited success which plaintiff did
have in this case was defendant’s conclusion, at any early point in the litigation, that it would be
cheaper for it to simply pay him the overtime he requested than to litigate this case. Certainly,
nothing leads this court to believe that the various “reviews” of the file performed by counsel had
a significant role in bringing defendant to the settlement table.
Plaintiff argues that an hourly rate of $300/hour in this case is appropriate, and this court
does not take issue with this argument. However, determining the amount of hours reasonably
spent on this case is exceedingly difficult, considering the sheer vagueness of the timesheets
submitted by plaintiff’s counsel. As noted by Judge Davidson in Hendrix:
Second, the Court [finds] that the remaining 25.25 hours should be reduced because
Hendrix's counsel failed to demonstrate billing judgment and submitted vague, blockbilled entries. “[P]laintiffs seeking attorney's fees are charged with the burden of
showing the reasonableness of the hours billed and, therefore, are also charged with
proving that they exercised billing judgment.” Saizan, 448 F.3d at 799 (citing Walker v.
City of Mesquite, 313 F.3d 246, 251 (5th Cir. 2002)).
Hendrix, 2019 WL 138160 at *2. Judge Davidson’s observations regarding the vagueness of
counsel’s timesheets could have likewise been made regarding the timesheets in this case.
Plaintiff’s counsel submits that he spent eighty-four (84) hours on this case, but, as discussed
below, the overwhelming majority of his timesheet entries involved his “review” of the “file”
and various e-mails, most of which were billed in half-hour increments, with no attempt to
explain exactly how the “reviews” advanced the litigation of the case. When this court is
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confronted with billing entries of this nature, it makes it virtually impossible for it to evaluate
whether the “reviews” in question were truly necessary and added anything of substance to the
prosecution of the case.
As quoted above, the first three Johnson factors are “(1) the time and labor required for
the litigation, (2) the novelty and complication of the issues and (3) the skill required to properly
litigate the issues.” In the court’s view, these factors all support a reduction of the claimed
amount of attorneys’ fees, since it does not require a great amount of either time or expertise to
prevail in a case which the defendant had decided to settle early on in the litigation. True
enough, there was a complication in the settlement attributable to plaintiff’s statement to his
employer that he had not wanted to bring suit in the first place. [Defendant’s exhibit 6]. Counsel
for plaintiff attributes this hesitancy to plaintiff’s fear of retaliation, and this court does believe
that counsel deserves some credit in prevailing upon his client to continue with the case and
accept the settlement. This court will duly grant counsel that credit, but it does not appear that
overcoming this obstacle required any great amount of time on his part. This court does not
regard any of the next four Johnson factors, namely “(4) whether the attorney had to refuse other
work to litigate the case; (5) the attorney's customary fee; (6) whether the fee is fixed or
contingent;” or “(7) whether the client or case circumstances imposed any time constraints” as
requiring any adjustment in the fee calculations in this case.
Of the remaining Johnson factors, this court regards the eighth and twelfth ones as
supporting a reduction of the attorneys’ fee award in this case, for reasons which it has already
explained above but will briefly reiterate.1 As to the issue of “the amount involved and the

As noted previously, the remaining Johnson factors are (9) the experience, reputation, and
ability of the attorneys; (10) whether the case was “undesirable;” (11) the type of attorney-client
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results obtained,” this court notes that the settlement in this case involved a payment to plaintiff
of only $6,930, and defendant expressed a willingness to pay this amount early in the litigation.
Plaintiff correctly notes that there is no strict rule of proportionality in determining attorneys’
fees in FLSA cases, but this remains one of the relevant Johnson factors, and it is therefore
appropriate that this court address it. It certainly strikes this court as eye-opening that counsel is
seeking almost four times the recovery for himself as he obtained for his client. As to the twelfth
factor of “awards made in similar cases,” this court reiterates its impression that awarding over
$25,000 in attorneys’ fees for a case which settled at such an early stage of the litigation and
which had such limited success is out of line with fee awards in other cases before it.
Considering plaintiff’s limited success in this case, the limited amount of discovery
which was performed, the duplicative nature of much of the work in Hendrix, and defendant’s
stated willingness to settle it at any early stage of the proceedings, this court concludes that an
award of nine thousand dollars ($9,000) in attorneys’ fees is appropriate. This amount is
somewhat greater than the amount awarded by Judge Davidson in Hendrix, but not dramatically
so. While counsel asserts that he spent much more time in this case, the dockets in the two cases
are, to reiterate, almost identical. Moreover, the results obtained by the plaintiffs in the two
cases are very similar. This being the case, this court does not believe that counsel’s request for
almost four times greater fees in this case than in Hendrix is, by any means, appropriate. At the
end of the day, the proof of the pudding is in the eating, and this court sees nothing in either
plaintiff’s limited success in this case or in the legal work product reflected on the docket and
exhibits in this case which would justify anything close to $25,000 in attorneys’ fees. While

relationship and whether that relationship was long-standing. This court does not regard any of
these factors as supporting an adjustment of the claimed attorneys’ fees.
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there is certainly nothing magical about the sum of $9000, it is the sum which this court, upon
reflection, believes best reflects the legal work performed in this case.
Turning to the issue of costs, 28 U.S.C. § 1920 permits the taxing of costs for “fees for
exemplification and the costs of making copies of any materials where the copies are necessarily
obtained for use in the case.” Further taxation of costs for reasonable litigation expenses, including
process server fees, is permitted under FLSA. Sales v. Bailey, No. 2:12-CV-00056-SA-SAA, 2015
WL 1825060, at *6 (N.D. Miss. Apr. 22, 2015) (citing 29 U.S.C. § 216(b)). As it did in Hendrix,
defendant challenges plaintiff’s $75 expense described only as “Copies, Fax, and Telephone,”
writing that “there is no indication how many copies were made, the rate at which reimbursement
is sought, or if the copies were even necessary.” Like Judge Davidson in Hendrix, 2019 WL
138160, at *4, this court finds this argument persuasive, and it will accordingly deduct $75 from
the costs sought by plaintiff, for a total of $800 in costs.
For the reasons discussed above, this court awards plaintiff $9000 in attorneys’ fees, $800
in costs and $1,875 in expert witness fees, for a total of $11,675. The settlement reached between
the parties is hereby approved, and this case is dismissed with prejudice.
This the 22nd day of April, 2019

/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI

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