Reyes et al v. Stone

Filing 101

ORDER GRANTING IN PART 92 Motion for Attorney Fees. Signed by Judge David A. Ezra. (aej)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
EDWARD F. REYES and BRYANT
HOUSTON,

)
)
)
Plaintiffs,
)
)
vs.
)
)
BILLIE ODELL STONE,
)
)
Defendant.
)
________________________________ )

NO. SA: 11–CV–110–DAE

ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEY’S
FEES
On April 6, 2014, Plaintiffs filed a Motion for Attorney’s Fees. (Dkt.
# 92.) Defendant did not file a response in opposition. After careful consideration
of the motion, the Court GRANTS IN PART Plaintiffs’ Motion (Dkt. # 92).
BACKGROUND
Plaintiffs filed suit against Defendant alleging causes of action under
the Fair Labor Standards Act (“FLSA”) for failure to pay overtime and for
retaliatory termination. The Court granted summary judgment to Plaintiffs on their
causes of action for failure to pay overtime compensation. (Dkt. # 38). The case
proceeded to trial on March 11, 2014, and a jury found that Plaintiffs had been
terminated in retaliation for filing a complaint in federal court regarding their
1

FLSA claims. (Dkt. # 85.) Plaintiffs request a total of $23,252.50 in attorney’s
fees and $1,587.77 in costs.
LEGAL STANDARD
Under the FLSA, a district court “may award reasonable attorney’s
fees to the prevailing party.” Saizan v. Delta Concrete Products Co., Inc., 448 F.3d
795, 799 (5th Cir. 2006). In the Fifth Circuit, attorney’s fees, including those
incurred in connection with FLSA cases, are calculated pursuant to the “lodestar
method.” Id. Pursuant to this method, an award is calculated by”[m]ultiplying the
number of hours reasonably spent on the case by an appropriate hourly rate in the
community for such work . . . .” Id.
Once the lodestar is obtained, a court may then adjust the amount after
examining the twelve factors enunciated in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974). These factors include: (1) the time and labor
required; (2) the novelty and difficulty of the questions; (3) the skill required to
perform the legal services properly; (4) the preclusion of other employment by the
attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is
fixed or contingent; (7) time limitations imposed by the client or circumstance;
(8) the amount involved and the results obtained; (9) the experience, reputation,
and ability of the attorney; (10) the undesirability of the case; (11) the nature and

2

length of the professional relationship with the client; and (12) awards in similar
cases. Id. at 717–19.
The Fifth Circuit maintains that courts should additionally focus on
the degree of success obtained by the attorney. See Saizan, 448 F.3d at 799.
However, “[i]n a lawsuit initiated under the FLSA, an attorney’s failure to obtain
every dollar sought on behalf of his client does not automatically mean that the
modified lodestar amount should be reduced.” Id. (internal quotation marks
omitted).
DISCUSSION
Plaintiffs’ attorney, Kerry O’Brien, provided a log of the hours
expended in this case. In total, O’Brien billed 77.1 hours and his legal assistant
billed 10.30 hours. (Dkt. # 92 ¶ 2.) O’Brien also states that a reasonable and
customary rate for work in Travis County is $300.00 per hour for attorneys and
$125.00 for legal assistant work. O’Brien notes that he billed travel time at
$100.00 per hour rather than his customary $300.00 rate. O’Brien states he has
practiced law for over a decade, and his legal assistant has over 20 years of
experience as a paralegal. Additionally, O’Brien points out that all the relief
sought by his clients was awarded either by the Court or the jury.
After a careful review of the time claimed to have been expended by
O’Brien and his firm, the Court finds the number of hours to be reasonable. The
3

case was ongoing for three years, with numerous motions filed and a trial.
Although the Court does not discount Mr. O’Brien’s experience, it
appears that what is considered a reasonable rate in the Western District of Texas
is somewhat lower than $300.00 per hour. Martinez v. Bank of America N.A., No.
SA–12–CV–785–XR, 2013 WL 5173655 (W.D. Tex. 2013) (finding rates of
$268.00 per hour for an attorney with more than twenty-one years of experience
and $205.00 per hour for an attorney with three to six years of experience
reasonable); Saldana v. Zubha Foods, LLC, Cv. No. SA:13–CV–00033–DAE,
2013 WL 3305542 (W.D. Tex. 2013) (finding a rate of $275.00 per hour to be
reasonable for an attorney with nearly twenty years of experience and a rate of
$120 per hour to be reasonable for a paralegal with more than twenty years of
experience); Caldwell Indep. Sch. Dist. V. L.P., 994 F. Supp. 2d 811 (W.D. Tex.
2012) (finding billing rates between $250 and $285 to be reasonable for the
Austin-Round Rock area); but c.f., Davis v. Perry, 991 F. Supp. 2d 809 (W.D. Tex.
2014) (finding billing rates of over $300 acceptable in the Western District of
Texas market for a complex redistricting case).
After reviewing the rates customarily awarded in the Western District
of Texas, the Court finds that a rate of $260.00 per hour to be more representative
of customary rates for an attorney with Mr. O’Brien’s experience and $120.00 per

4

hour to be an appropriate rate for legal assistant work. Therefore, the Court
recalculates the proposed lodestar as follows:
From Mr. O’Brien’s submission, he spent a total of 77.1 hours
pursuing this case. Of this time, he billed three hours for travel time on September
4, 2012. Additionally, although Mr. O’Brien did not explicitly breakdown his
travel time to and from trial, it states that Mr. O’Brien did travel to and from San
Antonio for trial on both days. The Court shall assume that each day, Mr. O’Brien
expended two of the billed hours traveling. Therefore, Mr. O’Brien is entitled to
(70.1 * $260.00) = $18,226.50 in attorney’s fees for his work on this case and
(7*$100.00) = $700.00 for his travel time. Additionally, Mr. O’Brien is entitled to
an award of (10.3*$120.00) = $1,236.00 for the work performed by his legal
assistant. The lodestar, therefore, is $20,162.00.
Next, the Court must address the twelve factors laid out in Johnson to
determine whether the lodestar should be adjusted. However, if these factors were
accounted for in the initial calculation of the lodestar, they cannot form the basis
for any additional adjustment. Saizan v. Delta Concrete Products Co., Inc., 448
F.3d 795, 800 (5th Cir. 2006) (“The lodestar may not be adjusted due to a Johnson
factor, however, if the creation of the lodestar already took that factor into account;
to do so would be impermissible double counting.”)

5

A.

The time and labor required
The Court finds that this case did not require an excessive amount of

time to warrant an adjustment to the lodestar.
B.

The novelty and difficulty of the questions
The Court finds that the questions presented in this case were not

novel or exceptionally difficult; therefore, the Court will not adjust the lodestar on
this basis.
C.

The skill required to perform the legal services properly
The Court finds that counsel displayed commendable skill in the

prosecution of this case. However, the lodestar will not be adjusted on account of
this factor because the Court already factored it in to determine his reasonable
hourly rate.
D.

The preclusion of other employment by the attorney due to acceptance
of the case
The Court notes that this case did not require an excessive time

commitment. Therefore, the Court finds that this factor does not warrant an
adjustment of the lodestar.
E.

The customary fee
The Court has already taken into account the customary fees awarded

in similar cases in determining the reasonable hourly rate. Therefore, no further
adjustment to the lodestar is warranted.
6

F.

Whether the fee is fixed or contingent
The Court finds that the lodestar does not need to be adjusted on the

basis that this suit was handled on a contingent fee basis.
G.

Time limitations imposed by the client or circumstance
The Court finds that although Plaintiffs’ counsel did devote

significant time to this case, it is not necessary to adjust the lodestar on this basis.
H.

The amount involved and the results obtained
The Court finds that the amount involved does not warrant an

adjustment to the lodestar. The Court already took the results obtained into
account in determining the reasonable hours expended, therefore the lodestar will
not be adjusted on this basis.
I.

The experience, reputation, and ability of the attorney
The Court has already taken the experience, reputation, and abilities

of the attorney involved into account in determining the reasonable hourly rate.
J.

The undesirability of the case
The Court notes that an FLSA case with only two plaintiffs may be

less desirable than multi-party cases due to smaller potential awards of damages.
However, the Court does not find that the lodestar should be adjusted on this basis.

7

K.

The nature and length of the professional relationship with the client
The Court finds that this factor does not warrant an adjustment to the

lodestar.
L.

Awards in similar cases
The Court has already taken awards in similar cases into account in

determining the reasonable hourly rates awarded to Plaintiffs’ attorneys.
Therefore, no additional adjustment to the lodestar is necessary.
After taking each of these adjustments into account, the Court finds
that Plaintiffs’ are entitled to $20,162.00 in attorney’s fees. Additionally, the
Court finds that the costs requested by Mr. O’Brien are reasonable. Therefore, the
Court awards $1,587.77 in costs.
CONCLUSION
For the reasons stated above, the Court GRANTS IN PART
Plaintiffs’ Motion for Attorney’s Fees and Costs (Dkt. # 92). The Court awards
Plaintiffs $20, 162.00 in attorney’s fees and $1,587.77 in costs.
IT IS SO ORDERED.
DATED: September 29, 2014, San Antonio, Texas.

_____________________________________
David Alan Ezra
Senior United States Distict Judge
8