Haynes v. Wells Fargo Bank, N.A. et al

Filing 168

MEMORANDUM ORDER -. Signed by Magistrate Judge Roy S. Payne on 11/4/2015. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
BRAYLON HAYNES
v.
WELLS FARGO BANK, N.A.

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Case No. 2:08-CV-183-JRG-RSP

MEMORANDUM ORDER
Currently before the Court is Plaintiff’s Motion for Attorneys’ Fees and Litigation
Expenses With Respect to Plaintiff’s Motion to Compel (Dkt. No. 145), filed on August 31,
2015. The motion asks the Court to fix the fees and expenses ordered by the Court in the July
20, 2015 Memorandum Order (Dkt. No. 135) granting Plaintiff’s motion to compel. In that
Order the Court stated:
Defendant will be ordered to pay the expenses of the Plaintiff,
including attorney’s fees related to the filing and briefing of the
motion to compel and the preparation for and appearance at the
hearings. The Court does not consider the review and indexing of
the documents produced by Defendant to be related to the motion,
but rather to the preparation of the case for the class certification
hearing. Counsel are directed to meet and confer on the issue of
fees. If agreement cannot be reached, Plaintiff shall file a motion
to fix fees and expenses within 30 days.
The parties were not able to reach agreement about the amount of fees and expenses, and
Plaintiff has now asked the Court to award $231,170.00 in fees (for 640 billable hours) and
expenses of $6,398.59. Defendant argues that Plaintiff’s hours are excessive, duplicative and
often related to work beyond the scope of the Court’s award. Defendant contends that the
lodestar should be reduced to $89,120, and further reduced based on limited results to a total of
$53,472. Defendant also contends that the costs should be reduced to $1,103.55.
The parties agree that the Court should begin with the lodestar method described in the
Alexander v. City of Jackson case, 456 F.App’x 397 (5th Cir. 2011), and countless others. The

lodestar is determined by taking the number of hours of attorney time reasonably expended on
the matter and multiplying it by a reasonable hourly rate for each lawyer involved. Plaintiff has
provided evidence and both sides have provided argument on the hours and the rates. Both sides
also agree that the Court has discretion to increase or decrease the lodestar based on matters such
as the performance of counsel or the results achieved. Defendant argues that the Court should
apply the well known Johnson factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d
714 (5th Cir. 1974), whereas Plaintiff argues that those factors are not applicable to an award
under Rule 37. The Court always considers the Johnson factors in making an award of anything
other than the most minimal fees, and has done so fully here.
The biggest complicating factor for the fee award in this case is that the bulk of the time
spent by Plaintiff’s counsel was reviewing and analyzing the records produced by Defendant.
This was necessary in order to determine the sufficiency of the document production, but would
also have been necessary in large part to prepare the case for class certification and on the merits.
In other words, much of the time would have been necessary even if the production had been
sufficient from the outset.

Moreover, it is not all of the time spent dealing with the

insufficiencies of the production that is compensable. Determining what else is due from the
opponent is part of the discovery process. It is only once it has been determined that the
adversary will not cure the inadequacies in the production, and resort to the Court is undertaken,
that the time normally becomes compensable under Rule 37. It is for these reasons that the Court
directed that Plaintiff be awarded fees for work “related to the filing and briefing of the motion
to compel and the preparation for and appearance at the hearings.” (Dkt. No. 135 at 5). Based
on the record in this case, and on the evidence presented at the hearing, the Court finds that much
of the time reflected in the hourly billing records, attached to the Plaintiff’s Motion as Appendix

-2-

2, while productively spent, is more properly allocated to discovery than to the motion to compel
itself.
Defendant argues in its opposition that the fees should be reduced by 40% because the
Court only ordered Defendant to produce 3 of the 5 categories of relief requested by Plaintiff at
the close of the hearing. However, the results in this case should not be measured solely by the
Order rendered at the close of the hearing. As the Court noted in the Order:
The Court finds that the initial production by Defendant on March
2, 2015, was significantly deficient. Plaintiff’s Exhibit 23 details
the shortcomings in an effective fashion. Defendant’s Exhibit 29
demonstrates that Defendant made significant progress through its
supplemental productions through April, May and June of 2015,
but all of those productions were the result of the constant efforts
of Plaintiff’s counsel, including this motion.
Thus, the motion generated far more relief than was contained in the final Order. The Court will
not reduce the lodestar on that basis.
The Court finds that the hourly rates requested for the three senior counsel for Plaintiff
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are appropriate, but also finds that the rates for the two younger associates are somewhat higher
than appropriate in the relevant market. Having taken these matters into account, as well as the
applicable Johnson factors, the Court finds that the lodestar is $117,633.00.
Plaintiff will also be awarded the costs of the transcripts and court reporter fees in the
amount of $4,149.37. Accordingly,
IT IS ORDERED that Defendant pay to counsel for Plaintiffs within 30 days the sum of
$121,782.37 as the reasonable attorneys’ fees and expenses ordered in connection with the
Motion SIGNED this 3rd day of January, 2012.
to Compel.

SIGNED this 4th day of November, 2015.

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ROY S. PAYNE
- 3 - UNITED STATES MAGISTRATE JUDGE