Wiemer v. Rubino et al

Filing 243

ORDER granting in part and denying in part 209 Motion for Attorney Fees Signed by District Judge Louis Guirola, Jr on 06/12/2019 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ROBERT WIEMER

PLAINTIFF

v.

CAUSE NO. 1:16CV99-LG-RHW

DENISE RUBINO

DEFENDANT

ORDER GRANTING IN PART DR. DENISE RUBINO’S MOTION FOR
ATTORNEYS’ FEES AND COSTS AGAINST NATHAN PRESCOTT
BEFORE THE COURT is [209] Dr. Denise Rubino’s Motion For Attorneys’
Fees And Costs Against Nathan Prescott, Esq. Rubino seeks $48,848.85 in
attorneys’ fees and costs incurred after Prescott filed a meritless motion to
reconsider on Wiemer’s behalf. Rubino’s Motion has been fully briefed, and after
due consideration of the parties’ submissions, the Court awards Rubino $6656.00 in
attorneys’ fees and $238.50 in costs.
BACKGROUND
Rubino filed this Motion after the Court granted her motion for Rule 11
sanctions against Prescott and awarded her reasonable attorneys’ fees and costs
incurred “for preparing the Rule 11 motion, the reply in support of the Rule 11
motion, and the opposition to the motion to reconsider.” (Order Granting Mot. for
Sanctions 7, ECF No. 207.) “District courts have considerable discretion to
determine the appropriate sanction for litigants who violate Rule 11.” M2 Tech.,
Inc. v. M2 Software, Inc., 748 F. App’x 588, 590–91 (5th Cir. 2018), cert. denied sub
nom. King Law Grp., PLLC v. M2 Tech., Inc., 139 S. Ct. 1273 (2019). The district

court’s calculation of attorneys’ fees and expenses is reviewed for clear error. Id.
The Supreme Court has made clear that the party seeking sanctions “may recover
‘only the portion of his fees that he would not have paid “but for” the misconduct.’”
Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186-87 & n.5 (2017)
(emphasis added) (quoting Fox v. Vice, 563 U.S. 826, 836 (2011)).
DISCUSSION
A. Attorneys’ Fees
“As always, the Court uses the lodestar method to calculate an award of fees.”
Lighthouse Rescue Mission, Inc. v. City of Hattiesburg, Miss., No. 2:12-CV-184-KSMTP, 2014 WL 4402229, at *3 (S.D. Miss. Sept. 5, 2014) (citation omitted). The
lodestar is calculated by multiplying the number of hours reasonably expended on
the litigation by the reasonable hourly billing rate. Id.; see Hensley v. Eckerhart,
461 U.S. 424, 433 (1983). “[T]he lodestar method yields a fee that is presumptively
sufficient.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (citations
omitted).
The Court adopts the hourly rates it has found reasonable for the involved
attorneys and paralegal in its contemporaneous order granting Rubino’s motion for
attorneys’ fees against Wiemer. After review of the attached invoices, however, the
Court finds the number of hours requires adjustment.
First, the forty-four hours claimed by the Tremblay law firm will be excluded
from the lodestar calculation. The Tremblay invoices contain entries for work on
issues that appear to be unrelated to the Rule 11 motion or the reconsideration

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motion. When the entries do appear related, they generally concern review of work
and communications by the lead attorney, Michael Held of the Phelps Dunbar firm.
The hours expended by the Tremblay firm are not reimbursable because they are
excessive and duplicative for purposes of the lodestar calculation.
Next, the Phelps Dunbar firm claims a total of 108.1 attorney hours and 20.3
paralegal hours for work on the Rule 11 motion and response to the motion for
reconsideration, resulting in fees of $25,300.50. This number of hours seems
excessive given the status of the case at that point. Wiemer’s failure to cooperate
with his discovery obligations had been brought to the Court’s attention a number
of times. What was missing was evidence that this failure was deliberate, rather
than inadvertent as Wiemer claimed in his reconsideration motion. Once Rubino
obtained copies of Wiemer’s communications with his former counsel, she had the
evidence necessary to show that the motion to reconsider was meritless and that
Prescott had engaged in sanctionable conduct by pursuing it. The communication
records were voluminous, and review of them was only necessary because Prescott
filed the motion to reconsider. But the legal issues were neither novel nor difficult,
and it appears to the Court that the case was overstaffed, particularly to the extent
that the Tremblay firm was involved. Excluding entries that include or consist of
tasks involving the Tremblay firm results in total attorney hours of 80.9, of which
66.8 are attributed to Michael Held and 14.1 are attributed to Christine Whitman.
Further reduction of this time is appropriate. Rubino’s response to the
motion for reconsideration focused on the contradictions between Wiemer’s

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assertions in the motion to reconsider and the communication records; there is very
little law cited. Rubino’s Rule 11 motion is based on these same contradictions, plus
Prescott’s failure to withdraw the motion for reconsideration when the
contradictions were brought to his attention. Recounting and documenting the
course of events was surely a tedious exercise, but eighty hours of attorney time to
arrive at the filed briefs is excessive – even accounting for the difficulty Rubino
experienced obtaining the communication records in the first instance. See, e.g.,
Worrell v. Hous. CanA Acad., 287 F. App’x 320, 327 (5th Cir. 2008) (approving as
reasonable twelve hours for “making numerous telephone calls, writing several
letters, and drafting a motion to dismiss, a motion for sanctions, and accompanying
briefing”); Turner v. Aurora Australis Lodge, No 1:13cv1-SA-DAS, 2014 WL
5422170, at *2 (N.D. Miss. Oct. 22, 2014) (hours reduced from 34.6 to 9.5 for
response to motion to dismiss, motion for sanctions, and reply to motion for
sanctions). Additionally, the Court finds no evidence that Phelps Dunbar exercised
billing judgment. “Billing judgment requires documentation of the hours charged
and of the hours written off as unproductive, excessive, or redundant.” Saizan v.
Delta Concrete Prod. Co., 448 F.3d 795, 799 (5th Cir. 2006).
For all of these reasons, the Court will reduce the compensable attorney
hours to twenty-five; twenty of those hours at Held’s billing rate of $210 per hour
and five hours at Whitman’s billing rate of $200 per hour. The Court also reduces
paralegal hours to 11.2, which excludes time entries that either cannot be tied to
the reconsideration or Rule 11 issues (such as those concerning Wiemer’s tax

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returns and business records); are vague; or concern communication with the
Tremblay firm. The lodestar calculations are $4200 for Held, $1000 for Whitman,
and $1456 for paralegal Safaya. None of the Johnson factors require further
adjustment of the lodestar amounts. Prescott will therefore be required to pay
reasonable attorneys’ fees of $6656.00.
B. Costs
Rubino seeks $3748.35 in costs, consisting entirely of printing and copying
costs between January 2018 and August 2018. In support, Rubino provides Michael
Held’s declaration that these costs were “incurred as a direct result of opposing Dr.
Wiemer’s Motion to Reconsider [Doc. 182], and preparing Dr. Rubino’s Rule 11
Motion [Doc. 186 and 187] and the Reply in Support of the Rule 11 Motion [Doc.
192].” (Held Aff. 1, ECF No. 209-1.) Held further states that the “costs are
reasonable, based on charges in other cases which I have handled, and were
necessary.” (Id.) Rubino also provided a spreadsheet of all of Phelps Dunbar’s costs
for the period between January and August 2018. (Rubino Mot. Atty Fees & Costs
Against Prescott, Ex. A-2, ECF No. 209-3.) Review of the spreadsheet shows that
almost all of the listed printing and copying costs are internal, and the bulk of the
cost - $3509.85 - is in one entry on March 2 for 23,399 copies. (Id. at 2.)
“[R]eproductions necessarily obtained for use in the case are included within
taxable costs, provided that the prevailing party demonstrates that necessity.”
Fogleman v. ARAMCO (Arabian Am. Oil Co.), 920 F.2d 278, 286 (5th Cir. 1991).
The district court must make a factual determination of whether copies were

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necessarily obtained for use in the case. Id. See also Gagnon v. United
Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010). The Court’s award of costs
is a matter of its discretion. See Mota v. Univ. of Tex. Hous. Health Science Ctr.,
261 F.3d 512, 529 (5th Cir.2001).
In the Court’s view, Rubino’s request for copying fees is extraordinarily high
for the issues addressed by the Rule 11 sanctions and reconsideration motions. The
email records used to show Wiemer’s knowledge of the progression of the case were
voluminous, but Rubino does not attempt to show that they approached twentythree-thousand pages. Nor is there any way for the Court to determine which of the
copies were necessarily for use in the reconsideration and sanctions motions, as the
default judgment damages hearing was also approaching during this time period.
The Court therefore excludes the large March 2, 2018 copy expense, but allows the
remainder claimed. The costs award is reduced to $238.50.
IT IS THEREFORE ORDERED AND ADJUDGED that Dr. Denise
Rubino’s Motion For Attorneys’ Fees And Costs Against Nathan Prescott, Esq. is
GRANTED to the extent that Prescott must pay Rubino reasonable attorneys’ fees
of $6656.00 and costs of $238.50. Any other request for relief is denied.
SO ORDERED AND ADJUDGED this the 12th day of June, 2019.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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