Lighthouse Rescue Mission, Inc. v. The City of Hattiesburg, Mississippi
Filing
112
ORDER granting in part and denying in part Plaintiff's 105 Motion for Attorney's Fees. Defendant shall remit payment as stated in the order within twenty-one days of the entry of this order. Signed by District Judge Keith Starrett on September 5, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
LIGHTHOUSE RESCUE MISSION, INC.
V.
PLAINTIFF
CIVIL ACTION NO. 2:12-CV-184-KS-MTP
CITY OF HATTIESBURG,
MISSISSIPPI
DEFENDANT
MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants in part and denies in part
Plaintiff’s Motion for Attorney’s Fees [105]. Pursuant to the parties’ Agreed Order [104]
of June 30, 2014, and the civil contempt analysis below, the Court awards Plaintiff
$6,050.00 in attorney’s fees as compensation for its cost to enforce the previously
entered Agreed Orders [76, 99, 104].
A.
Background
This case involves claims under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”),1 the Fair Housing Act (“FHA”),2 and 42 U.S.C. § 1983. The
subject property is a women’s shelter operated by a local religious organization. On
November 7, 2013, the parties entered into an agreed order [76] settling the case. They
agreed that Defendant would “inspect Plaintiff’s property” and “provide and process
all necessary and required permits for a certificate of occupancy no later than
1
42 U.S.C. § 2000cc, et seq.
2
42 U.S.C. § 3601, et seq.
December 15, 2013.”
On March 12, 2014, Plaintiff filed a Motion for Contempt [86], claiming that
Defendant had not inspected the premises or issued any permits or a certificate of
occupancy (“CO”). Defendant responded [89] to the motion, and the Court held a
hearing on April 15, 2014, at which it heard testimony and argument concerning the
inspection process. The Court granted the motion for contempt in part and deferred
ruling in part [99]. The Court ordered Defendant to complete its inspection of the
premises and issue a building permit and temporary CO to Plaintiff on or before May
1, 2014. Upon completion of a “dorm mother” suite, Defendant was to issue a
permanent CO. The Court deferred ruling on the issue of fees until Defendant had
complied with the Court’s order.
On May 14, 2014, Plaintiff renewed its Motion for Contempt [100], representing
that the Defendant had once again failed to comply with the Court’s order. The Court
set a hearing [102] and ordered representatives of the parties with full decision-making
authority to appear. It also ordered Defendant to be prepared to present evidence –
including but not limited to relevant public records and the testimony of its employees
or agents with knowledge of Defendant’s inspection, permitting, and CO issuance
process with respect to Plaintiff and other parties.
Defendant responded [103] to the renewed Motion for Contempt. It denied
Plaintiff’s allegations and claimed that it had continually requested that Plaintiff
provide it with information necessary to conduct the inspections. Defendant contended
that Plaintiff had failed to comply with the Agreed Order’s [76] requirement that the
2
parties “cooperate with one another in good faith” and commit “any action with is
necessary” to consummate the agreement.
The parties and counsel appeared for a hearing on June 25, 2014. At the
suggestion of the Court, they were able to settle their disagreement and jointly reach
a plan of action to finally put this matter to rest. On June 30, 2014, the Court entered
the parties’ latest Agreed Order [104], which includes far more specific deadlines and
requirements than the previous ones. With respect to Plaintiff’s attorney fees for
enforcement of the settlement, the parties agreed that the Court would decide the issue
after a round of briefing. Plaintiff’s Motion for Fees [105] is now fully briefed and ready
for the Court’s review.
B.
Civil Contempt
The civil contempt analysis is relatively simple. To prove civil contempt, the
movant must demonstrate “(1) that a court order was in effect, and (2) that the order
required certain conduct by the respondent, and (3) that the respondent failed to
comply with the court’s order. To determine compliance with an order, the court simply
asks whether the respondent” did what the order required. FDIC v. LeGrand, 43 F.3d
163, 170 (5th Cir. 1995). “If he has not, the burden shifts to the respondent to rebut
this conclusion, demonstrate an inability to comply, or present other relevant
defenses.” Id. “Willfulness is not an element of civil contempt.” Petroleos Mexicanos v.
Crawford Enters., 826 F.2d 392, 401 (5th Cir. 1987). “In a civil contempt proceeding,
the movant bears the burden of establishing the elements of contempt by clear and
convincing evidence.” Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995).
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Defendant plainly failed to comply with the November 2013 Agreed Order [76].
The Order provided: “The City of Hattiesburg shall inspect Plaintiff’s property located
at 204 Eupora, Hattiesburg, Mississippi 39401 as a residential property . . . and
process all necessary and required permits for a certificate of occupancy no later than
December 15, 2013.” Defendant did not comply with these requirements, and it admits
as much in briefing.
Defendant contends, however, that it was unable to comply with the order. The
inability to comply with an order is a defense to civil contempt. United States v.
Rylander, 460 U.S. 752, 757, 103 S. Ct. 1548, 75 L. Ed. 2d 521 (1983). “Where
compliance is impossible, neither the moving party nor the court has any reason to
proceed with the civil contempt action. It is settled, however, that in raising this
defense, the defendant has a burden of production.” Id.
After two hearings on these issues, the Court is not convinced that Defendant
was unable to comply with the order [76]. Defendant argues that Plaintiff failed to
“provide the necessary responses” to inquiries regarding certain requirements for
issuing permits and a CO, but Plaintiff’s architect disputed this claim. Defendant also
argues that its building inspection department was “significantly short of personnel.”
However, in a teleconference held on June 24, 2014, the attorneys represented to the
Court that Defendant had issued over a thousand permits since the entry of the
original Agreed Order [76]. Furthermore, Defendant’s building inspector, Kevin Bates,
testified on April 15, 2014, that he was simply unaware of what had been negotiated
in the settlement, and that he would have made this matter a priority had he
4
understood its significance. Finally, it is noteworthy that the impediments to
Defendant’s compliance disappeared quickly after the Court’s last hearing on this
subject, which was the first hearing after the Court had granted Plaintiff a significant
fee award [98].
The bottom line is that Defendant agreed to “inspect Plaintiff’s property” and
“provide and process all necessary and required permits for a certificate of occupancy
no later than December 15, 2013.” For the reasons stated above, Defendant has not
carried its burden in proving that it was unable to move that process forward.
Therefore, the Court concludes that an award of fees is appropriate.3
C.
Fees
“Courts have, and must have, the inherent authority to enforce their judicial
orders and decrees in cases of civil contempt. Discretion, including the discretion to
award attorneys’ fees, must be left to a court in the enforcement of its decrees.” Cook
v. Ochsner Foundation Hospital, 559 F.2d 270, 272 (5th Cir. 1977); see also Rousseau
v. 3 Eagles Aviation, Inc., 130 F. App’x 687, 690 (5th Cir. 2005). “Compensatory civil
contempt reimburses the injured party for the . . . losses flowing from noncompliance
and expenses reasonably and necessarily incurred in the attempt to enforce
3
The Court also notes that Defendant endorsed an Agreed Order [104] which
grants in part and defers ruling in part on the Motion for Contempt [100]. The
Court only deferred ruling on the issue of fees, and Plaintiff withdrew its request
for actual damages and a punitive daily fine. The Agreed Order [104] does not deny
any aspect of Plaintiff’s Motion for Contempt [100]. Therefore, Defendant’s
agreement to the Order’s [104] entry can reasonably be construed as a tacit
admission of civil contempt. The same is true of the Agreed Order [99] entered May
1, 2014.
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compliance. An award of attorney’s fees is an appropriate sanction where a party
incurs additional expenses as a result of the other party’s noncompliance.” Rousseau,
130 F. App’x at 690 (punctuation and footnotes omitted).
As always, the Court uses the lodestar method to calculate an award of fees.
Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012).
The Court must first “determine the compensable hours from the attorneys’ time
records, including only the hours reasonably spent.” Shipes v. Trinity Indus., 987 F.2d
311, 319 (5th Cir. 1993). Then, the Court “must select an appropriate hourly billing
rate based on prevailing community standards for attorneys of similar experience in
similar cases.” Id. The Court then multiplies the number of compensable hours by the
hourly rate to produce the “lodestar” amount. Id.
After the determining the lodestar, the Court may adjust it to account for a
variety of factors. Id. at 320. The pertinent factors are:
(1) the time and labor involved; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal services properly; (4)
the preclusion of other employment by the attorney due to this case; (5)
the customary fee; (6) whether fee is fixed or contingent; (7) time
limitations; (8) the amount involved and results obtained; (9) the
experience, reputation, and ability of counsel; (10) the undesirability of
the case; (11) the nature and length of the professional relationship with
the client; and (12) awards in similar cases.
Id. at 320 n. 6 (citing Johnson v. Ga. Highway Express, 488 F.2d 714, 717-19 (5th Cir.
1974)). When applying the Johnson factors, the Court should “be careful, however, not
to double count a . . . factor already considered in calculating the lodestar . . . .” Id. at
320. The Court must also “explain with reasonable degree of specificity the findings
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and reasons upon which the award is based, including an indication of how each of the
Johnson factors was applied.” Id. Upward adjustments to the lodestar based on these
factors “are proper only in certain rare and exceptional cases supported by both specific
evidence on the record and detailed findings . . . .” Id.
Plaintiff requests $11,450.00 in attorney’s fees. Defendant presented several
objections, which the Court will address before it calculates a lodestar and applies the
Johnson factors.
1.
“Reviewed and Responded to Emails”
First, Defendant argues that the Court should exclude billing entries for email
review because they are excessive and vague. The Court “may properly reduce or
eliminate hours when the supporting documentation is too vague to permit meaningful
review.” La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 326 (5th Cir. 1995). There is
no precise standard of specificity, but the Court has the discretion to accept or reject
fee applications which are “not illuminating as to the subject matter” or “vague as to
precisely what was done.” Id. “Litigants take their chances when submitting such fee
applications, as they provide little information from which to determine the
‘reasonableness’ of the hours expended on tasks vaguely referred to as ‘pleadings,’
‘documents,’ or ‘correspondence’ without stating what was done with greater precision.”
Id. at 327.
Plaintiff’s billing statement [106-4] includes twenty-six entries labeled
“Reviewed and Responded to E-Mails,” accounting for 20.9 hours of billing. As these
entries provide no information demonstrating that they are connected to this matter,
7
the Court agrees that they should be disallowed for vagueness.
2.
January 26-27, 2014
Defendant argues that two entries on January 26-27, 2014, for reviewing the
complete record of this matter should be excluded. Defendant contends that it was
unnecessary for Plaintiff’s counsel to review the complete record because everything
that happened before the entry of the November 7, 2013, Agreed Order [76] is
irrelevant to the issue of civil contempt. The Court disagrees. Plaintiff’s current
counsel was not retained until well after November 7, 2013, and one could not
reasonably expect her to competently pursue the enforcement of the parties’ settlement
without some familiarity with the case’s factual and procedural background. This
objection is overruled.
3.
“Research Civil Contempt”
Defendant argues that entries on February 16 and 23, 2014 for fourteen hours
to research and prepare a civil contempt motion are excessive. The Court agrees.
Plaintiff’s counsel billed fourteen hours to research and prepare a motion for civil
contempt. As noted above, the civil contempt standard is relatively simple. This is not
a legal issue that requires significant expertise. Further, Plaintiff’s counsel should
have already been well-acquainted with the record, as addressed in Defendant’s
previous objection. The Court will reduce these time entries by fifty percent.
4.
Time Spent Seeking Resolution
Finally, Defendant argues that most of the hours billed prior to February 16,
2014 should be disallowed as they were spent seeking an extrajudicial resolution of this
8
dispute before filing the first motion for contempt. Defendant further argues that this
time was excessive, redundant, and unnecessary.
This objection is overruled. Plaintiff retained counsel to enforce a settlement
agreement with which Defendant failed to comply. It was both proper and advisable
for Plaintiff’s counsel to try to resolve the matter informally before filing a motion for
contempt. The amount of time spent was neither excessive nor unnecessary.4
5.
Lodestar Calculation
Having addressed Defendant’s objections, the Court can now calculate the
lodestar. Initially, the Court notes that 76.3 hours billed at an hourly rate of $125.00
per hour equals $9,537.50,5 rather than the $11,450.00 Plaintiff requested. Plaintiff’s
submissions do not explain this discrepancy or otherwise account for the additional
$1,912.50.6 The Court can not assess the reasonableness of those fees without some
form of documentation. Therefore, they are excluded from the lodestar.
Next, the Court reduces the lodestar by 20.9 hours for the vague “Reviewed and
Responded to Emails” billing entries throughout the billing statement, bringing the
4
The Court also notes that Defendant failed to cite any authority requiring
the disallowance of fees for time spent negotiating an out-of-court resolution in an
enforcement dispute like this. Furthermore, Defendant failed to specify which
entries were excessive, the reason they were excessive, or the degree to which they
were excessive.
5
(76.3 hours)($125.00 per hour) = $9,537.50
6
$11,450 – $9,537.50 = $1,912.50
9
total time to 55.4 hours.7 The Court further reduces the lodestar by seven hours for half
of the “Research Civil Contempt” billing from February 16 and 23, 2014, bringing the
total time to 48.4 hours.8
Defendant does not object to Plaintiff’s hourly rate of $125.00 per hour, and the
Court finds that it is an appropriate hourly billing rate based on prevailing community
standards for attorneys of similar experience in similar cases. Shipes, 987 F.2d at 319.
The lodestar, therefore, is $6,050.00.9
6.
Johnson Factors
The Court considered the Johnson factors, see Shipes, 987 F.2d at 320 n. 6, and
concluded that no further adjustments are required beyond those already addressed
in the lodestar analysis above. Id. at 320.
D.
Conclusion
For the reasons stated above, the Court grants in part and denies in part
Plaintiff’s Motion for Attorney’s Fees [105]. Pursuant to the parties’ Agreed Order [104]
of June 30, 2014, and the civil contempt analysis below, the Court awards Plaintiff
$6,050.00 in attorney’s fees as compensation for its cost to enforce the previously
entered Agreed Orders [76, 99, 104]. Defendant shall remit payment within twenty-one
(21) days of the entry of this order.
7
76.3 hours – 20.9 hours = 55.4 hours
8
55.4 hours – 7 hours = 48.4 hours
9
(48.4 hours)($125.00 per hour) = $6,050.00
10
SO ORDERED AND ADJUDGED this 5th day of September, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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