Alvarez, et al v. AMB-Trans Inc. et al

Filing 89

ORDER GRANTING IN PART AND DENYING IN PART 87 Motion for Attorney Fees. Signed by Judge Xavier Rodriguez. (rf)

In the United States District Court
for the
Western District of Texas
DAVID ALVAREZ, ET AL.
v.
AMB-TRANS INC., ET AL.

§
§
§
§
§

SA-11-CV-179-XR

ORDER
On this day came on to be considered Plaintiffs’ motion for attorneys’ fees (docket no.
87). The motion is granted in part and denied in part as follows:
In this case the Court, after conducting a bench trial, found that Defendants violated the
Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. The Court found that Plaintiff Alvarez
suffered actual unpaid wages in the amount of $35,157.10, Plaintiff Gleed suffered actual unpaid
wages in the amount of $14,787.80, and Plaintiff Crist suffered actual unpaid wages in the
amount of $5,343.70. Plaintiffs were also awarded liquidated damages in an amount equal to the
unpaid wages. Accordingly, all three Plaintiffs received a total award of $110,577.20.
Counsel for Plaintiffs has now filed an affidavit seeking attorneys’ fees in the amount of
$88,117.50. In their motion, Plaintiffs request that the Court adjust the lodestar upward by
twenty-five percent because of the “Defendants [sic] insubordinate intent to require that this case
be forced to trial” and refusal to “engage in any effective or good faith settlement negotiations.”
Analysis
The relevant provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b),
provides that the “court in such action shall, in addition to any judgment awarded to the plaintiff
or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant.” The language of the
statute thus mandates that the Court award attorney's fees to the prevailing party, but gives the

Court discretion in deciding what is reasonable. Defendants do not dispute that Plaintiffs are
prevailing parties.
The computation of reasonable attorneys' fees involves a three step process: (1)
determine the nature and extent of the services provided by Plaintiff's counsel; (2) set a value on
those services according to the customary fee and quality of the legal work; and (3) adjust the
compensation on the basis of the other Johnson factors that may be of significance in the
particular case. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir.
1974); Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1092 (5th Cir. 1982). Steps one
and two result in a computation of the “lodestar” amount. Both the hours worked and the hourly
rate must be reasonable, and the Court considers only the hours spent on the successful claims.
See Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983). In the final step, the lodestar is adjusted
on the basis of the other factors enumerated in Johnson. That is, once the basic fee is calculated,
the Court may adjust the amount upward or downward. This adjustment is made by applying the
factors identified in Johnson. Rarely are all factors applicable, however, and a trial judge may
give them different weights. Id.
In their motion and the supporting affidavit, Plaintiffs seek recovery of attorneys’ fees as
follows:
Lead Attorney Glenn D. Levy

$385/hour

205.5 hours

$79,117.50

Support Attorney Larry Gee

$300/hour

30 hours

$9,000

Paralegal Adriana Lozano

$75/hour

4.7 hours

$01

Defendants respond that Plaintiffs’ counsel’s time entries include “very little detail.” In
addition, they argue that Plaintiffs’ counsel failed to exercise “billing judgment” and has
improperly included time for numerous entries where the work was not performed. In addition,
1

Apparently, Plaintiffs are foregoing any recovery of paralegal fees.
2

Defendants argue that counsel improperly included time for electronically filing documents with
the court, a clerical task. Defendants also argue that the rates requested are excessive for the San
Antonio area and should be closer to “$200 or $325 per hour.”
Each of the Johnson factors has been considered by the Court and evaluated and weighed
in light of the entire record in this case. The factors have also been weighed in light of this
Court's experience in this type of litigation.
The Court finds that the requested amount is somewhat excessive. Portions of the time
record summaries submitted by counsel are nonspecific and thus unacceptable. See Leroy v. City
of Houston, 831 F.2d 576, 585 (5th Cir.), cert. denied, 486 U.S. 1008 (1988) (stating that billing
records that are scanty or lack explanatory detail are unacceptable). As a result, the Court
considers and makes findings concerning each of the Johnson factors as follows:
A. The time and labor involved.
Having examined the time records and affidavits submitted by counsel, the Court finds
that the hours of attorney time purportedly expended in this case are not within the range of
reasonableness for the tasks performed in connection with this litigation.

As noted by

Defendants’ counsel there were a number of time entries for work not performed or for clerical
tasks. Further, this was a relatively simple case of whether or not the Plaintiffs were properly
paid overtime pursuant to the FLSA.
B. The novelty and difficulty of the questions.
The factual and legal issues in this case were neither difficult nor unusual especially
given that Plaintiffs’ counsel is board certified in the area of labor and employment law. This
case did not present any novel or difficult questions which counsel should not have anticipated in
preparing for trial.

3

C. The skill requisite to perform the legal service properly.
The Court finds that counsel were adequately skilled and otherwise qualified to pursue
this case.
D. The preclusion of other employment by the attorneys due to acceptance of this case.
This was not a complex case and should not have caused counsel to limit the number of
cases counsel could handle at any given time. The case did not involve a demanding area of the
law and if counsel chose to spend a considerable amount of time on this case to the exclusion of
others, it was a choice, not necessitated by the nature of the case.
E. The customary fee.
The court finds that the hourly rates submitted by counsel appear to be higher than the
customary fee for the San Antonio area.
The Court further takes judicial notice that the State Bar of Texas Department of
Research and Analysis compiles an Annual Hourly Rate Report detailing attorney hourly rates
by years in practice, location and type of practice. 2

Based on the latest report available

(analyzing rates charged during 2011), the Court finds that in 2011, the median rate for attorneys
of experience such as Mr. Levy and Mr. Gee was $268 per hour. The Court finds that an hourly
rate of $268 represents a reasonable and customary hourly rate. The Court notes that with regard
to paralegal hourly rates, the State Bar of Texas Legal Assistant Division has surveyed its
membership, and the median hourly rate for a paralegal has been found to be $107. 3 Although
Plaintiffs referenced Ms. Lozano’s $75 rate, they have requested no paralegal fees.

2

http://www.texasbar.com/Content/NavigationMenu/AboutUs/ResearchandAnalysis/DemographicEconomicTrends/
default.htm
3

Id.
4

F. Whether the fee is fixed or contingent (The Risk Factor).
Neither party provided the Court with a copy of any agreement between Plaintiffs and
their counsel. Nevertheless, a “district court is not bound by ... the agreement of [counsel with
his client] as to the amount of attorneys' fees.” Copper Liquor, Inc. v. Adolph Coors Co., 684
F.2d at 1089.

Furthermore, allotting an enhancement for a contingency factor has been

criticized. Id. at 1097 n. 30. The complexity and difficulty of the issues in this case were not
substantial. Despite Plaintiffs’ assertion that FLSA cases are “undesirable” to many attorneys,
this case was brought under the FLSA where the burden of complying with various regulations
fall on the employer. See Docket number 51. The risks undertaken and successfully met by
counsel for Plaintiffs were not so enormous as to justify an upward adjustment of the lodestar
amount.

In addition, Plaintiffs’ argument that Defendants should somehow be financially

punished for trying this case is rejected. Given the differences of opinion regarding the number
of hours actually worked by Plaintiffs, Defendants were entitled to a trial. Indeed, they were
entitled to a trial on the merits, notwithstanding their failure to appreciate the exacting burden of
wage and hour regulations applicable to their business.
Based on the foregoing, the Court finds that a reasonable award for attorneys’ fees is as
follows:
Lead Attorney Glenn D. Levy

$268/hour

205.5 hours4 $79,117.50

Support Attorney Larry Gee

$268/hour

30 hours

4

$9,000

In their motion and the supporting affidavit, Plaintiffs seek 205.5 hours for Attorney Levy. After deducting
numerous hours for incorrect or excessive time entries, the Court’s calculation indicates that reasonable hours for
Levy equal 230.3 hours. However, inasmuch as Levy only seeks recovery for 205.5 hours, the award will be limited
to the initial request.
5

Conclusion
Plaintiffs’ motion for attorneys’ fees (docket no. 87) is granted in part and denied in part.
Plaintiffs are awarded attorneys’ fees of $88,117.50.

Plaintiffs submitted no bill of costs.

Accordingly, recovery of court costs is waived.
SIGNED this 4th day of March, 2013.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

6