Rebollar v. Ortega Medical Clinic, P.L.L.C. et al
Filing
33
MEMORANDUM AND ORDER (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)
Case 4:18-cv-00846 Document 33 Filed on 08/22/19 in TXSD Page 1 of 14
United States District Court
Southern District of Texas
ENTERED
August 22, 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MERARI REBOLLAR,
Plaintiff,
v.
ORTEGA MEDICAL CLINIC,
P.L.L.C., et al.,
Defendants.
§
§
§
§
§
§
§
§
David J. Bradley, Clerk
CIVIL ACTION NO. 4:18-0846
MEMORANDUM AND ORDER
ON ATTORNEY FEES AND COSTS
Before the Court in this sexual-harassment lawsuit is Plaintiff Merari
Rebollar’s Application for Attorneys’ Fees and Costs (“Motion”) [Doc. # 30].
Defendants have responded,1 and Rebollar replied.2
The Motion is ripe for
decision. Based on the parties’ briefing, pertinent matters of record, and relevant
legal authority, the Court grants in large part Rebollar’s Motion and awards
Rebollar $66,180.50 in attorney fees and $6,528.52 in costs.
I.
BACKGROUND
Plaintiff Merari Rebollar initiated this lawsuit on March 16, 2018, against
her former employers, Defendants Ortega Medical Clinic, P.L.L.C., Juan Antonio
Ortega-Mora M.D., P.A., and Juan A. Ortega, M.D. (collectively, “Defendants”).3
1
Defendants’ Response to Plaintiff’s Application for Attorneys’ Fees (“Response”)
[Doc. # 31].
2
Plaintiff’s Reply in Support of Plaintiff’s Application for Attorneys’ Fees and
Costs (“Reply”) [Doc. # 32].
3
Original Complaint [Doc. # 1].
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Rebollar alleges that while she was employed by Defendants as a medical assistant,
she was assaulted in violation of Texas law and subjected to sexual harassment, a
hostile work environment, gender discrimination, and constructive discharge in
violation of Title VII of the Civil Rights Act of 1964.4
On the same day Plaintiff Rebollar filed her suit in federal court, counsel for
Rebollar filed a separate employment-related lawsuit against Defendants in Texas
state court on behalf of Melissa Nieto.
Nieto worked as receptionist for
Defendants and similarly alleges that Defendants subjected her to gender
discrimination, sexual harassment, a hostile work environment, and retaliation.
On January 31, 2019, during the very first deposition taken in this case, the
parties agreed to use all discovery conducted by deposition in both Rebollar’s and
Nieto’s cases, obviating the need to conduct each deposition twice.5 In total, nine
depositions were conducted in connection with Rebollar’s lawsuit.6 Counsel billed
to Rebollar’s case seven of these depositions.7
On February 18, 2019, Rebollar filed a partially unopposed motion for leave
to amend her complaint to add Nieto as an additional plaintiff.8
On February 27, 2019, Defendants filed a response to Rebollar’s motion for
leave to amend.9 Defendants represented they were not opposed to joining Nieto
4
First Amended Complaint [Doc. # 4], ¶¶ 6.1-6.7.
5
Affidavit of Lionel M. Schooler [Doc. # 31-6], at 2.
6
Listing of Deposition References to Nieto and Rebollar [Doc. # 31-7].
7
Reply at 4.
8
Plaintiff’s Motions for Rule 20 Joinder and for Leave to Amend Complaint Under
Rule 15 [Doc. # 21].
2
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as a plaintiff in this case, but were opposed to the addition of specific allegations in
the proposed complaint which did not track the allegations in Nieto’s state court
petition.10
On March 5, 2019, Rebollar filed a reply in support of her motion, asserting
that the additional allegations should be allowed because Defendants would suffer
no undue prejudice from their addition to this suit.11
On March 13, 2019, Defendants filed an amended response, contending they
now opposed any amendment to join Nieto to this lawsuit.12
In a Memorandum and Order [Doc. # 27], dated March 14, 2019, the Court
denied Rebollar’s motion to amend.
On April 29, 2019, Rebollar accepted Defendants’ Federal Rule of Civil
Procedure 68 Offer of Judgment on her claims.13 On June 14, 2019, the Court
entered Final Judgment, ordering Defendant Antonio Ortega-Mora, M.D., P.A., to
pay to Rebollar $60,000, plus attorney fees and costs.14
9
(continued…)
Defendants’ Response in Partial Opposition to Plaintiff’s Motion for Rule 20
Joinder and for Leave to Amend Complaint Under Rule 15 [Doc. # 24].
10
Id. at 2.
11
Plaintiff’s Reply to Defendants’ Partial Opposition to Plaintiff’s Motion for Leave
to Amend Complaint [Doc. # 25].
12
Defendants’ Revised Response Opposing Plaintiff’s Motions for Rule 20 Joinder
and for Leave to Amend Complaint Under Rule 15 [Doc. # 26].
13
Plaintiff Merari Rebollar’s Notice of Acceptance of Defendants’ Rule 68 Offer of
Judgment [Doc. # 28].
14
Final Judgment Pursuant to Offer of Judgment [Doc. # 29].
3
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Rebollar seeks $67,145 in attorney fees and $6,528.52 in costs and other
litigation-related expenses.
Defendants challenge $30,930 of Rebollar’s attorney fees. Defendants assert
that Rebollar’s attorney fee recovery should be reduced by $9,645 based on vague
or inadequately described billing entries; reduced by $6,080 based on excessive
and unnecessary work; reduced by $9,925 based on dual work for both Rebollar
and Nieto’s cases; and reduced by $5,280 based on work performed on Rebollar’s
unsuccessful motion to amend. Defendants further assert that Rebollar’s cost
request should be reduced by $3,136.20.
II.
ATTORNEY FEES
A.
Legal Standard
Under Title VII, a prevailing plaintiff may recover “a reasonable attorney’s
fee (including expert fees) as part of the costs.” See 42 U.S.C. § 2000e-5(k). In
the Fifth Circuit, “[t]he first step in determining statutorily authorized attorneys’
fees is to calculate a ‘lodestar’ amount.” McClain v. Lufkin Indus., Inc., 519 F.3d
264, 284 (5th Cir. 2008); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th
Cir. 1998). There is a “strong presumption” that the lodestar amount—the product
of reasonable hours and a reasonable rate—represents a reasonable fee. See Black
v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013).
After calculating the
lodestar, “[t]he court must then consider whether the lodestar should be adjusted
upward or downward, depending on the circumstances of the case and the [12]
factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th
Cir. 1974).” McClain, 519 F.3d at 284.15
15
The twelve Johnson factors are:
(1) the time and labor involved;
(2) the novelty and difficulty of the questions;
(continued…)
4
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“The fee applicant bears the burden of proving that the number of hours and
the hourly rate for which compensation is requested is reasonable.” Riley v. City of
Jackson, 99 F.3d 757, 760 (5th Cir. 1996). “A district court must ‘explain with a
reasonable degree of specificity the findings and reasons upon which the award is
based.’” Id. (quoting Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990)).
B.
Reasonable Rates
Rebollar was represented in this lawsuit by Todd Slobin and Dorian
Vandenberg-Rodes.
Rebollar asserts that Slobin’s reasonable rate for
employment-related cases is $500 per hour and Vandenberg-Rodes’s is $300.
Defendants do not challenge these rates.
The Court agrees these rates are
reasonable in light of the attorneys’ experience and knowledge of employment law.
Accordingly, the Court will award Rebollar attorney fees at her counsel’s
requested rates.
(continued…)
(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; and,
(12) awards in similar cases.
Von Clark v. Butler, 916 F.2d 255, 258 n.3 (5th Cir. 1990) (citing Johnson, 488
F.2d at 717-19). “The court, however, may not adjust the lodestar figure based on
a Johnson factor already taken into account during the initial calculation.”
Ramirez v. Lewis Energy Grp., L.P., 197 F. Supp. 3d 952, 956 (S.D. Tex. 2016).
5
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C.
Reasonable Time
1.
Rebollar Is Entitled to Recover Counsel’s Billed Time for
Depositions
Defendants argue Rebollar should not be permitted to “frontload” a fee
recovery for counsel’s work performed on behalf of both Nieto and Rebollar.
Defendants submitted a chart identifying the pages of each deposition transcript
where there is a specific reference to Nieto or Rebollar.16 Defendants contend that
the chart reveals that Rebollar’s counsel discussed at each deposition matters
pertaining to both Rebollar and Nieto. To rectify the situation, Defendants request
the Court cut by 50% counsel’s time for all depositions and deposition preparation.
The Court is unpersuaded that a 50% reduction is warranted. A prevailing
plaintiff is entitled to attorney fees for work on claims “inextricably intertwined”
with her prevailing claims when “it would be impossible to segregate all of the
time for purposes of making a determination of attorney’s fees.” See Mota v. Univ.
of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 528 (5th Cir. 2001). “Where time
spent on unsuccessful issues is difficult to segregate, no reduction of fees is
required.” See Abell v. Potomac Ins. Co. of Ill., 946 F.2d 1160, 1169 (5th Cir.
1991). Claims are so intertwined when they “involve a common core of facts or
will be based on related legal theories.” See Hensley v. Eckerhart, 461 U.S. 424,
434-35 (1983) (emphasis added).
Counsel’s time spent deposing witnesses with respect to Nieto’s claims is
recoverable because the time is “inextricably intertwined” and “impossible to
segregate” from Rebollar’s prevailing claims.
See, 261 F.3d at 528.
Each
deponent gave testimony relevant to Rebollar’s claims. Defendants’ only example
16
Listing of Deposition References to Nieto and Rebollar [Doc. # 31-7].
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of a deponent whose testimony was not intertwined with Rebollar’s case—Ana
Fernandez—is unpersuasive. Defendants contend that Fernandez testified that she
did not know Rebollar, had never spoken to Rebollar, and had no personal
knowledge of any incident involving Defendant Ortega and Rebollar. Defendants
do not contest, however, that Fernandez testified that when she saw Ortega for a
medical consultation, Ortega touched her inappropriately and without her consent
during the consult, testimony that generally would support Rebollar’s allegations
of Ortega’s non-consensual touching.
The Court is unpersuaded that the risk Defendants will be required to pay
attorney fees twice for the same work justifies preemptively reducing Rebollar’s
attorney fee award. Rebollar’s counsel represents that they carefully segregated
their time and did not bill to Rebollar’s case any time unique to Nieto’s claims,
such as meeting or emailing with Nieto when the communications did not involve
Rebollar.17 Counsel further represents that they are not billing in Nieto’s lawsuit
costs and fees incurred after Rebollar’s acceptance of the Offer of Judgment.
Moreover, neither party has represented to the Court the status of Nieto’s lawsuit
and the Court will not speculate as to her likelihood of success. Accordingly, any
chance that Defendants will be required to pay attorney fees to Nieto is inherently
speculative. Finally, “double recovery” may be argued if, as, and when Nieto
prevails on her claims.18
17
Reply at 3.
18
In any event, to the extent there could be a double recovery, the result would be at
least partially attributable to Defendants’ opposition to joinder of Nieto in this
lawsuit.
7
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Because the time billed for depositions is inextricably intertwined with
Rebollar’s prevailing claims, the Court will award Rebollar attorney fees for all
time counsel billed related to depositions in this case.
2.
Counsel’s Time Spent on Pre-Lawsuit Work Is Recoverable
Defendants appear to argue that counsel’s 52 hours of work during
administrative
proceedings
before
the
Equal
Employment
Opportunity
Commission (“EEOC”) is not recoverable. Defendants do not cite authority for
this proposition.
The Court is unpersuaded that time billed during mandatory EEOC
administrative proceedings is not compensable.
The Court’s research has not
revealed any case holding that a plaintiff who prevails on Title VII claims in court
is not entitled to attorney fees for time counsel spent exhausting her administrative
remedies before the EEOC on those prevailing claims. Instead, federal courts
appear uniformly to hold that district courts have discretion to award attorney fees
for work performed on behalf of Title VII plaintiffs during the statutorily required
EEOC administrative process. See Mills v. City of Shreveport, No. 5:17-1088,
2019 WL 2579158, at *10 (W.D. La. June 21, 2019) (noting that the Title VII
plaintiff “could seek to recover attorneys’ fees related to the administrative process
before the EEOC, a prerequisite to suit”); Hale v. Napolitano, No. SA-08-CA-106XR, 2009 WL 10699363, at *2 n.2 (W.D. Tex. Nov. 23, 2009) (“Courts have held
that, in the exercise of discretion, ‘[a] court is allowed to award attorneys’ fees that
properly cover work performed in administrative hearings that are prerequisites to
federal court action.’” (alteration in original) (quoting Dixon v. Int’l Broth. of
Police Officers, 434 F. Supp. 2d 73, 79 (D. Mass. 2006))); 45C AM. JUR. 2d Job
Discrimination § 2663 (“Plaintiffs who do not prevail at the administrative stage of
Title VII processing . . . also may be awarded attorney’s fees for administrative
8
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proceedings if they ultimately prevail in court.” (footnotes omitted)); 1 CHARLES R.
RICHEY, MANUAL ON EMPLOYMENT DISCRIMINATION § 7:39 (“It remains clear that
fees are available for work performed in connection with a mandatory
administrative process if the party eventually prevails in court.”). Cf. N.Y. Gaslight
Club, Inc. v. Carey, 447 U.S. 54, 71 (1980) (holding Title VII plaintiff who
prevailed during mandatory state administrative proceedings was entitled to
attorney fees for those proceedings); Bogan v. City of Boston, 489 F.3d 417, 427
(1st Cir. 2007) (“[F]ees incurred in ancillary state proceedings that are necessary to
pursue a federal civil rights action are recoverable, while fees incurred during
proceedings that are unnecessary for bringing the federal action are not.” (citations
omitted)). Because exhaustion of administrative remedies before the EEOC is a
prerequisite to pursuing a Title VII suit, see Taylor v. Books A Million, Inc., 296
F.3d 376, 378-79 (5th Cir. 2002), the Court has discretion to award Rebollar
attorney fees accrued during the EEOC process. Defendants do not contest the
reasonableness of the 52 pre-lawsuit hours billed before the EEOC. The Court
concludes those pre-suit hours spent by counsel were reasonable.
3.
Counsel’s Time Spent Conferring with Co-Counsel Is
Limited and Thus Recoverable
Defendants challenge as excessive time entries related to conferences
between Rebollar’s two attorneys, Todd Slobin, a senior partner at Shellist Lazarz
& Slobin LLP, and Dorian Vandenberg-Rodes, a mid-level associate at that firm.
Defendants contend Rebollar’s counsel billed 18.1 hours in unnecessary
conferences and Rebollar’s fee recovery should be reduced by $6,080.00 as a
result.
The Court is unpersuaded. The Court concludes that Rebollar’s counsel
generally exercised billing judgment.
Slobin and Vandenberg-Rodes’s billing
9
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records do not include any time in conferences spent with other attorneys at their
firm. Furthermore, Rebollar’s attorneys did not bill for every conversation or
correspondence between themselves and Rebollar, or with defense counsel.
Rebollar’s counsel’s billing records did not include work performed by paralegals
or legal assistants, even though their collective time totaled 18 hours. Counsel’s
billing records reflect billing in 0.1 hour increments (i.e., 6 minutes), rather than in
0.25 hour increments (i.e., 15 minutes).
The Court’s review of counsel’s billing
records reveals that most Rebollar’s attorney to attorney conferences were brief,
ranging from six to twelve minutes. The Court concludes that such conferences
were necessary and efficient. Vandenberg-Rodes performed the vast majority of
work on the case (180.65 of the 206.55 hours requested). The brief conferences
between Vandenberg-Rodes and Slobin allowed counsel to prosecute Rebollar’s
case without requiring substantial participation by Slobin, who commands a $200
higher billable rate than Vandenberg-Rodes.
4.
Vague or Inadequately Described Entries
Defendants contend that several time entries—such as those stating “confer
with client,” “confer with [co-counsel],” or “confer with EEOC”—are vague or
inadequately describe the legal work performed in this case. Defendants challenge
a portion of these entries and request the Court reduce counsel’s billable time by
28.85 hours for a fee reduction of $9,645.
The Court is persuaded by Defendants’ argument in part. A “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, 324 (5th Cir. 1995). “Plaintiff’s counsel, of course, is not required to record
in great detail how each minute of his time was expended.” Hensley, 461 U.S. at
10
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437 n.12.
“But at least counsel should identify the general subject matter of his
time expenditures.” Id.
The Court’s review of Rebollar’s counsel’s billing records reveals that
counsel, in general, carefully accounted for their time. There is no frequent block
billing and entries are separated based on the type of work performed. The overall
time spent on particular tasks is reasonable. While entries concerning counsel’s
conferences with each other and communications with Rebollar are not descriptive,
the length and number of communications generally do not appear excessive. To
account for these vague entries, the Court will reduce Rebollar’s fee recovery with
respect to the challenged entries by ten percent. See La. Power & Light Co., 50
F.3d at 327 (“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.”). Cf.
Fralick v. Plumbers & Pipefitters Nat. Pension Fund, No. 3:09-CV-0752-D, 2011
WL 487754, at *7 (N.D. Tex. Feb. 11, 2011) (“Based on the number of vague
descriptions and the inability to determine whether billing by the quarter-hour is
reasonable, the court applies a 10% reduction.”). Accordingly, the Court reduces
the lodestar figure by $964.50.19
19
The Court recognizes that these entries may be vague to avoid disclosure of
attorney-client protected or work product information. However, counsel could
address this concern by including in the time entries brief references to topics
covered, and later redact the protected information when seeking recovery of fees.
11
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5.
Rebollar May Recover for Time Spent Litigating the
Motion for Leave to Amend
Defendants contend that Rebollar’s counsel’s 16 hours spent attempting to
consolidate Rebollar and Nieto’s cases is not recoverable because Rebollar’s
counsel was unsuccessful with respect to the joinder motion.
The Court is unpersuaded. Defendants originally agreed to the idea of
consolidating Rebollar and Nieto’s cases, causing Rebollar to file the motion for
leave to amend. Defendants’ change in position to oppose the motion, which
created more work for Rebollar’s counsel, does not warrant a reduction in
Rebollar’s recoverable time.
D.
The Johnson Factors Do Not Warrant an Adjustment of the
Lodestar Figure
Neither party contends that the Johnson factors warrant an adjustment from
the lodestar figure.
Accordingly, neither party overcomes the “strong
presumption” that the lodestar figure represents a reasonable fee. See Black, 732
F.3d at 502. Accordingly, the Court will award Rebollar the lodestar figure of
$66,180.50 in attorney fees.
III.
COSTS
A.
Legal Standard
Under 28 U.S.C. § 1920, a court “may tax as costs the following”: (1) fees of
the clerk and marshal; (2) fees for printed or electronically recorded transcripts
necessarily obtained for use in the case; (3) fees and disbursements for printing and
witnesses; (4) fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the case; (5) docket
fees under section 1923 of this title; and (6) compensation of court appointed
experts, compensation of interpreters, and salaries, fees, expenses, and costs of
special interpretation services. See 28 U.S.C. § 1920. In addition, the Fifth Circuit
12
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“has interpreted the ‘attorney’s fee’ allowed by [Title VII] to include ‘reasonable
out-of-pocket expenses incurred by the attorney which are normally charged to a
fee-paying client, in the course of providing legal services,’ such as postage,
photocopying, paralegal services, long distance telephone charges, and travel
costs.” See Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 529 (5th
Cir. 2001).
B.
Rebollar Is Entitled to $6,528.52 in Costs
Defendants contend that only $3,392.32 of Rebollar’s cost request is
properly taxable under 28 U.S.C. § 1920. Defendants contend 28 U.S.C. § 1920
compels the exclusion of taxation to Defendants of any cost for items such as those
identified as “parking,” “meal,” “research,” “postage,” or “fax costs.”
The Court is unpersuaded that the challenged costs are not recoverable.
Under Title VII, a prevailing plaintiff may recover “a reasonable attorney’s fee
(including expert fees) as part of the costs.” See 42 U.S.C. § 2000e-5(k). The
Fifth Circuit has interpreted the “attorney’s fee” in Title VII to include “reasonable
out-of-pocket expenses incurred by the attorney which are normally charged to a
fee-paying client, in the course of providing legal services.” See Mota, 261 F.3d at
529. District courts in this Circuit have held that, under the FLSA, which contains
a fee and cost shifting provision analogous to Title VII, “[r]eimbursement for
travel, meals, lodging, photocopying, long-distance telephone calls, computer legal
research, postage, courier service, mediation, exhibits, document scanning, and
visual equipment are types of litigation expenses that are recoverable . . . as part of
an attorneys’ fee award.” See Hilton v. Executive Self Storage Assocs., Inc., No.
CIV.A. H-06-2744, 2009 WL 1750121, at *16 (S.D. Tex. June 18, 2009) (quoting
Quintanilla v. A & R Demolition Inc., No. H-04-1965, 2007 WL 5166849, at *9
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(S.D. Tex. May 7, 2007)). The Court likewise concludes that Rebollar’s is entitled
to recover the entirety of her requested costs.
IV.
CONCLUSION AND ORDER
Because Rebollar is entitled to nearly all her attorney fee request and her
whole cost request, it is hereby
ORDERED that Plaintiff Merari Rebollar’s Application for Attorneys’ Fees
and Costs [Doc. # 30] is GRANTED in major part and Plaintiff Rebollar is
awarded $66,180.50 in attorney fees and $6,528.52 in costs.
SIGNED at Houston, Texas, this 22nd day of August, 2019.
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE
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