Sales et al v. Bailey et al

Filing 71

MEMORANDUM OPINION re 70 Order on Motion for Attorney Fees. Signed by District Judge Sharion Aycock on 04/22/2015. (geb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
DELTA DIVISION
KENDRICK SALES, Individually,
WILLIAM E. WHITE, JR., Individually,
WAYNE TUBBS, JR., Individually,
And on Behalf of Others Similarly Situated

PLAINTIFFS

V.

CIVIL ACTION NO.: 2:12-CV-00056-SA-SAA

JAMES BAILEY,
DELTA PRODUCTS TREE SERVICE, LLC,
And MS RIGHT OF WAY PROFESSIONALS, LLC

DEFENDANTS

MEMORANDUM OPINION
Plaintiffs prevailed in an action under the Fair Labor Standards Act (“FLSA”). At the
Court’s direction, Plaintiffs have filed a Motion for Attorneys’ Fees and Costs [68]. Defendants
have filed no response, and the motion is now ripe. Upon consideration of the motion, responses,
rules, and authorities, the Court finds as follows:
Factual and Procedural Background
Eleven employees collectively brought suit against James Bailey, Delta Products Tree
Service, LLC, and MS Right of Way Professionals, LLC to recover unpaid overtime
compensation and liquidated damages under the Fair Labor Standards Act (“FLSA”). See 29
U.S.C. § 216(b). Following a three day bench trial, the Court found in favor of the Plaintiffs and
awarded them a total of $29,623.12. In the present motion, Plaintiffs request more than $85,000
in attorneys’ fees and more than $6,000 in costs and expenses. The Court addresses each request
in turn.

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Attorneys’ Fees
Lodestar Method
The Court shall “allow a reasonable attorney’s fee to be paid by the defendant” to the
prevailing parties in a suit under the FLSA. 29 U.S.C. § 216(b) (emphasis added). The first step
in determining the appropriate fee award is the lodestar calculation. Saizan v. Delta Concrete
Products Co., 448 F.3d 795, 799 (5th Cir. 2006). This entails “[m]ultiplying the number of hours
reasonably spent on the case by an appropriate hourly rate in the community for such work” to
arrive at the lodestar amount. Id.
Hours Reasonably Spent
Plaintiffs have requested compensation for a total of 347 hours spent by three different
attorneys and one legal assistant. The individuals seeking compensation “bear[] the burden of
establishing entitlement to an award . . . .” La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324
(5th Cir. 1995) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d
40 (1983)). The Court “must determine whether the hours claimed were ‘reasonably expended on
the litigation.’” Id. (citation and quotation omitted). To demonstrate that hours spent were
reasonable, Plaintiffs must show “they exercised billing judgment.” Saizan, 448 F.3d at 779. This
requires “documentation of the hours charged and of the hours written off as unproductive,
excessive, or redundant.” Id.
Plaintiffs have provided a detailed list, accounting for two-and-a-half years’ time spent
on the case in four hundred forty-seven entries, fifty-two of which contain only “written-off”
hours for which they do not seek to recover. Within each entry, Plaintiffs have listed a detailed
description of the work performed, the individual who executed the task, the date, hourly rate,
time billed, and time not credited. The Court finds that this detailed accounting constitutes
sufficient evidence of billing judgment.
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Regardless of billing judgment, however, the time spent by the legal assistant for
Plaintiffs’ counsel, Dolores Luna, is not recoverable insofar as it is considered purely clerical
work. Coleman v. Houston Indep. Sch. Dist., 202 F.3d 264, 1999 WL 1131554, at *9 (5th Cir.
1999) (citing Allen v. U.S. Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982)). Rather, to be
recoverable, time spent by a legal assistant must be similar to that typically performed by
lawyers. Id.
Examples of purely clerical tasks that have been held not recoverable are seeking pro hac
vice admission, U.S. ex rel. Rigsby v. State Farm Fire & Cas. Co., 2014 WL 691500, at *1 (S.D.
Miss. Feb 21, 2014), assisting with the filing and service of briefs, formatting an appendix to a
brief, Davis v. Perry, 2014 WL 172119, at *1 (W.D. Tex. Jan. 15, 2014), drafting cover letters to
the court, calendaring deadlines, filing appearance forms, ordering transcripts, reorganizing
materials, and filing notices of an address change. Black v. SettlePou, PC, 2014 WL 3534991, at
*6 (N.D. Tex. July 17, 2014).
Ms. Luna made travel preparations, arranged for interpretive services, informed Plaintiffs
of the scheduling of various events throughout the litigation, and compiled information for the
Plaintiffs’ travel expenses. This work, which took 8.55 hours in total, closely resembles the
clerical tasks that have been held not recoverable as part of the award of attorneys’ fees.
Conversely, Ms. Luna also made several phone calls and sent several emails to the Plaintiffs
relating to the merits of their wage claims. On the days of trial, she accompanied the Plaintiffs
before, during, and after court. She also provided interpretive assistance at trial. The Court finds
these actions to be similar to work performed by lawyers, and thus recoverable as part of the fee
award.

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The Plaintiffs’ request is accordingly reduced by 8.55 hours. Aside from this reduction,
the Court finds the proposed hours spent to be reasonable.
Appropriate Hourly Rates
The Court must next determine whether the rates proposed by Plaintiffs are reasonable in
light of the prevailing market rates for the community in which the district court sits. Tollet v.
City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002). The Fifth Circuit has instructed that the
reasonable rate is usually established by affidavits of other attorneys practicing in the district. Id.
(citing Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir. 1993)). In embarking on the reasonableness
inquiry, the Court is also to consider the “special skill and experience of counsel . . . .” Walker v
U.S. Dep’t of Housing & Urban Dev., 99 F.3d 761, 771 n.12 (5th Cir. 1996).
Plaintiffs request hourly rates of $250 for Philip Stroud, the founding partner of Stroud
Law Firm, PC and $300 for William Ryan, a partner at Donati Law Firm, LLP. To demonstrate
the reasonableness of these rates, Plaintiffs have submitted affidavits concerning their respective
levels of experience. Mr. Ryan averred that he has been practicing since 1991, has succeeded in
more than twenty bench and jury trials, and is frequently asked to serve as co-counsel in wage
and hour cases such as the present action. Mr. Ryan also states that he has argued three cases
before the Sixth Circuit Court of Appeals, as well as ten cases before the Tennessee Supreme
Court. According to the affidavit of Mr. Stroud, he has been practicing since 1997, is currently
the managing partner at his law firm, and routinely represents plaintiffs in state and federal
litigation.
Additionally, Plaintiffs have submitted a declaration from Jim Waide, an attorney based
in Tupelo, Mississippi, who possesses significant experience litigating in this Court and others.
In it, Mr. Waide states:

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based on my knowledge of the legal market, the hourly rate of $300 sought by
Mr. Ryan and the hourly rate of $250 sought by Mr. Stroud is in line with the
prevailing market rate for attorneys representing multi-plaintiffs in employment
cases particularly in light of the skill and experience of Messrs. Ryan and Stroud.
District courts within the Fifth Circuit have held even higher rates to be reasonable in
FLSA actions for partner-level attorneys. See Meesook v. Grey Canyon Family Med., PA, 2014
WL 5040133, at *3-*4 (W.D. Tex. Oct. 8, 2014) (finding that a $400 hourly rate was
reasonable); Roussel v. Brinker Intern., Inc., 2010 WL 1881898, at *3 (S.D. Tex. 2010), aff’d,
441 F. App’x 222, 234 (5th Cir. 2011) (finding rates of up to $500 per hour to be reasonable);
Johnson v. Big Lots Stores, Inc., 639 F. Supp. 2d 696, 702 (E.D. La. 2009) (finding $300 per
hour to be a reasonable rate). In light of the experience listed, the asserted community rates, and
the rates upheld by other courts within the Fifth Circuit, the Court determines the fees of Mr.
Stroud and Mr. Ryan to be reasonable.
Plaintiffs have also requested hourly rates of $125 for Ms. Luna and $175 for an associate
Janelle Osowski, but they have submitted no evidence to demonstrate that these rates are in line
with those charged in the community. Yet, as noted above, Defendants have not filed a response
in opposition to this motion. The Fifth Circuit has upheld fees as reasonable for the sole fact that
they were uncontested. See Tollett, 285 F.3d at 369 (“[O]nly because the [defendant] has not
contested [the fee], we hold that, based on [plaintiff’s] counsel’s affidavit, the reasonable hourly
rate is $300.”); Baulch v. Johns, 70 F.3d 813, 818 n.8 (5th Cir. 1995) (approving requested rate
of $250-$330 per hour without commenting on “whether the rate claimed would be reasonable in
other cases in the Dallas area” because “the specifics [of the fee] were not subject to adversarial
testing”).
Moreover, the Court notes that Ms. Luna’s and Ms. Osowski’s proposed hourly rates of
$125 and $175 respectively are significantly lower than the hourly rates the Court finds
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reasonable for Mr. Stroud and Mr. Ryan. Additionally, equivalent or greater rates have been held
reasonable by district courts within the Fifth Circuit. See Humphrey v. United Way of Tex. Gulf
Coast, 802 F. Supp. 2d 847, 863 (S.D. Tex. 2011) (finding $125 per paralegal hour to be
reasonable and finding $225 per associate hour to be reasonable); Roussel, 2010 WL 1881898, at
*3 (awarding $125 per hour for a paralegal and $250 per hour for associates); Johnson, 639 F.
Supp. 2d at 701-02 (awarding $225 per hour for associate). The Court accordingly finds Ms.
Luna’s and Ms. Osowski’s proposed rates to be reasonable.
Other than the reduction for Ms. Luna’s time spent performing non-legal work, the Court
finds the Plaintiffs’ proposed hours spent and hourly rates to be reasonable and appropriate. The
following table represents the adjusted lodestar figure.
Position

Hours

Hourly Rate

Fees

William Ryan

Partner

186.4

$3001

$55,920

Philip Stroud

Partner

72.7

$250

$18,175

Janelle Osowski

Associate

21

$175

$3,675

Dolores Luna

Legal Assistant

58.35

$125

$7,293.75

Total

$85,063.75

Johnson Factors
After calculating the lodestar amount, the Court must determine whether a further
adjustment is warranted by utilizing the factors set forth in Johnson v. Ga. Highway Express,

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As discussed above, the Plaintiffs request that Mr. Ryan be compensated at a rate of $300 per hour. Yet, in what
the Court views as a mere clerical error, the Plaintiffs’ billing documentation mistakenly lists the rate as $350 per
hour for 28.5 of the 186.4 hours spent by Mr. Ryan. This table correctly reflects the requested rates as applied to the
documented hours spent.

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Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).2 These are: (1) time and labor required, (2) novelty
and difficulty of the questions, (3) skill required to perform the legal service properly, (4)
preclusion of other employment by the attorney due to acceptance of the case, (5) customary fee
charged, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or
the circumstances, (8) amount involved and the results obtained, (9) experience, reputation, and
ability of the attorneys, (10) undesirability of the case, (11) nature and length of the professional
relationship with the client, and (12) fee awards in similar cases. Id. Notwithstanding these
factors, however, a strong presumption of reasonableness attaches to the amount generated by
the lodestar method. City of Burlington v. Dague, 505 U.S. 557, 562, 112 S. Ct. 2638, 120 L. Ed.
2d 449 (1992); Saizan, 448 F.3d at 800.
The Fifth Circuit has cautioned that courts should refrain from considering factors that
are subsumed within the lodestar analysis. Migis v. Pearle Vision, 135 F.3d 1041, 1048 (5th Cir.
1998) (citation omitted). Both the Supreme Court and Fifth Circuit have held that Johnson
factors two, three, eight, and nine are “presumably fully reflected in the lodestar amount.”
Walker, 99 F.3d at 771-72 & n.12 (quoting Pennsylvania v. Del. Valley Citizens’ Council for
Clean Air, 478 U.S. 546, 565, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986)). The Fifth Circuit has
held the seventh factor to be subsumed into the lodestar analysis. Id. at 772. In addition to these
factors presumed to be included in the analysis, the Court’s inquiry into the appropriate lodestar
amount in the present case involved factor one—time and labor required, as well as factor five—
the fee customarily charged. See e.g., Meesook, 2014 WL 5040133, at *5; John E. Raymond,
Inc. v. Blair, 2012 WL 1135778, at *7 (E.D. La. Jan. 10, 2012).
Additionally, since Johnson was decided, the Supreme Court has instructed courts not
consider the sixth factor—whether the fee is fixed or contingent. Id. (citing City of Burlington,

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Plaintiffs do not seek an upward enhancement.

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505 U.S. at 567, 112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992)). This leaves the Court to consider
Johnson factors four—preclusion of other employment, ten—undesirability of the case, eleven—
nature and length of relationship, and twelve—similar fee awards.
There is no evidence that Plaintiffs’ counsel was precluded from accepting other
employment as a result of this case. Thus, while many hours were undoubtedly spent, the Court
finds nothing unusual justifying a downward departure or an upward enhancement based on the
fourth factor. Additionally, although the presence of eleven total plaintiffs, several of whom were
non-English speaking, added to the complexity of the litigation, the Court has been made aware
of no circumstances that rendered this case “undesirable” for purposes of the tenth factor. The
Court likewise finds nothing out of the ordinary concerning the nature or length of relationship
between the attorneys and clients and thus no reason to depart from the lodestar amount in regard
to the eleventh factor.
As to the final factor, fees awarded in similar cases, the Fifth Circuit has noted that
“[g]iven the nature of claims under the FLSA, it is not uncommon that attorney fee requests can
exceed the amount of judgment in the case by many multiples.” Howe v. Hoffman-Curtis
Partners Ltd., 215 F. App’x 341, 341-42 (5th Cir. 2007). Indeed, in FLSA actions, the Fifth
Circuit has affirmed $250,750 in attorneys’ fees when the plaintiffs recovered $180,000, Singer
v. City of Waco, Tex., 324 F.3d 813, 829-30 (5th Cir. 2003),3 fees of $129,805.50 compared to
$23,357.30 in damages, Howe, 215 F. App’x at 341-42, fees of $51,750 when plaintiffs
recovered judgments totaling $4,697.79, Lucio-Cantu v. Vela, 239 F. App’x 866, 867-68 (5th
Cir. 2007), and $9,250 in attorneys’ fees even though plaintiff was awarded only $1,181. Cox v.

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These figures from Singer are drawn from the district court’s opinion in that case. Singer v. City of Waco, Tex.,
2001 WL 34773880, at *5 (W.D. Tex. Nov. 13, 2001).

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Brookshire Grocery Co., 919 F.2d 354, 358 (5th Cir. 1990). The lodestar amount here, after
adjustment for the non-recoverable legal assistant fees, is $85,063.75 compared to the
$29,623.12 judgment for unpaid wages and liquidated damages. The Court finds this ratio to fall
within the range permitted by Fifth Circuit authority such that the twelfth factor does not justify a
departure from the lodestar amount.
Thus, after consideration of the Johnson factors and in light of the Defendants’ failure to
respond, the Court declines to make a further downward adjustment or upward enhancement.
The adjusted figure of $85,063.75 represents the final award of attorneys’ fees.
Costs and Expenses
Plaintiffs also request costs and expenses in the amount of $6,029.55 for the following:
filing fees, trial transcript fees, witness fees, copy charges, interpreter expenses, process-service
fees, travel expenses, and postage. The Federal Rules of Civil Procedure provide that costs
“should be allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1) (emphasis added); see also
Cheatham v. Allstate Ins. Co., 465 F.3d 578, 586 (5th Cir. 2006) (“There is a strong presumption
under Rule 54(d)(1) that the prevailing party will be awarded costs.”). The Supreme Court and
Fifth Circuit have held that, when awarding costs under Rule 54, district courts should only
allow costs specifically recoverable as taxing costs under 28 U.S.C. § 1920 unless there is
contractual or statutory authorization for additional costs or expenses. Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S. Ct. 2494, 96 L. Ed. 2d 385 (1987); Gagnon v.
United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010). The categories enumerated in
Section 1920 are: (1) fees of the clerk and marshal, (2) fees for printed or electronically recorded
transcripts, (3) fees and disbursements for printing and witnesses, (4) fees for exemplification

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and costs to make necessary copies of materials, (5) docket fees, and (6) compensation for court
appointed experts, for interpreters, and costs related to special interpretation services.
As this Court has previously explained, a filing fee, like that requested here, “is a ‘fee of
the clerk’ which is typically allowed as part of costs under Section 1920.” Card v. State Farm
Fire & Cas. Co., 126 F.R.D. 658, 660 (N.D. Miss. 1989) aff'd, 902 F.2d 957 (5th Cir. 1990).
Likewise, the requested trial transcript fee is recoverable under Section 1920(2); the witness fees
are recoverable under Section 1920(3); the copy charges related to the litigation are recoverable
under Section 1920(4); and interpreter expenses are recoverable under Section 1920(6). The
Court finds the Plaintiffs’ requests for costs as to these categories to be well taken.
However, other costs and expenses requested fall beyond the scope of Section 1920.
Although process service fees are sometimes considered fees of the marshal recoverable under
Section 1920(1), the Fifth Circuit does not consider amounts paid to private process-servers, like
those persons effecting service here, to be recoverable as taxing costs. Marmillon v. Am. Intern.
Ins. Co., 381 F. App’x 421, 431 (5th Cir. 2010). Additionally, Section 1920 makes provision
neither for travel expenses not included as part of a witness fee, Coats v. Penrod Drilling Corp., 5
F.3d 877, 891 (5th Cir. 1993), nor for postage. Kmart Corp. v. Kroger Co., 2014 WL 3510488, at
*10 (N.D. Miss. July 14, 2014). Therefore, in order for the Court to award these expenses, there
must be a different statutory or contractual basis for doing so. Gagnon, 607 F.3d at 1045.
Plaintiffs argue that the FLSA provides such authorization for recovery of the processservice expenses, travel expenses, and postage as reasonable out-of-pocket expenses. Indeed, the
Fifth Circuit has held that the Age Discrimination and Employment Act (“ADEA”) provides
such authorization. West v. Nabors Drilling USA, Inc., 330 F.3d 379, 395-96 (5th Cir. 2003).
Further, the FLSA and ADEA share a remedial scheme. 29 U.S.C. § 626(b) (incorporating the

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FLSA’s enforcement and remedial provisions into the ADEA). Thus, by extension, the Court
finds that the FLSA also grants authorization for recovery of reasonable out-of-pocket expenses.
29 U.S.C. § 216(b) (directing the Court to award attorneys’ fees “and costs of the action”); see
also Johnson, 639 F. Supp. 2d at 709 (“Courts have held that costs awarded under the FLSA
include all reasonable out-of-pocket expenditures.”).
Plaintiffs seek to recover a total of $95 for serving three separate defendants with
process, hotel expenses at a rate of approximately $80 per room per night, gasoline at a total of
$50.61, and copy charges of $220.50. Considering the number of plaintiffs represented in this
case, the fact that the case was not resolved until after a full trial on the merits, and the relatively
modest amounts requested,4 the Court finds that the proposed out-of-pocket expenses are
reasonable.
Accordingly, the Court finds that Plaintiffs’ requests for costs is well taken, both as to the
taxing costs authorized by Section 1920 and as to the reasonable out-of-pocket expenses
authorized by the FLSA. Plaintiffs’ request for $6,029.55 in costs and expenses is GRANTED.
Conclusion
The Plaintiffs’ Motion for Attorneys’ Fees and Costs [68] is GRANTED IN PART and
DENIED IN PART. Plaintiffs are awarded $85,063.75 in attorneys’ fees and $6,029.55 in taxing
costs and reasonable out-of-pocket expenses. A separate order to that effect shall issue this day.
SO ORDERED, this 22nd day of April, 2015.

/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE

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For example, Plaintiffs in an FLSA case in the Southern District of Louisiana requested $142,435.57 in total costs,
including $30,000 in copy charges following a two day trial in which two plaintiffs prevailed. Johnson, 639 F. Supp.
2d at 709. Although the Court did not grant the request in its entirety, it nonetheless awarded $64,096.01 in total
costs. Id. at 709-10.

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