Meesook v. Grey Canyon Family Medicine, P.A. et al
Filing
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ORDER GRANTING 36 Motion for Attorney Fees. Signed by Judge Xavier Rodriguez. (rf)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
KATRINA MEESOOK,
Plaintiff,
VS.
GREY CANYON FAMILY MEDICINE,
P.A., BRIAN K. MACGILLIVARY,
M.D., INDIVIDUALLY, AND
FRANCESCA DICARLO,
INDIVIDUALLY,
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Civil Action No. 5:13-cv-729-XR
Defendants.
ORDER
On this date, the Court considered the motion for attorneys’ fees and costs made by the
Plaintiff Katrina Meesook in this litigation. Plaintiff asserts that she is the prevailing party and is
therefore entitled to an award of attorneys’ fees and costs pursuant to 29 U.S.C. § 216(b).
I. Factual and Procedural Background
This case arises out of Plaintiff Katrina Meesook’s former employment relationship with
Defendant, Grey Canyon Family Medicine, P.A. Plaintiff was employed by Grey Canyon as a
Medical Assistant between February 18, 2011 and August 12, 2013. During that time, Plaintiff
alleges that she worked an average of 22.5 hours of overtime per week for which she was not
compensated.
On August 14, 2013, Plaintiff filed an original complaint, alleging a cause of action under
the Fair Labor Standards Act (“FLSA”) to recover for unpaid overtime. Docket no. 1. See 29 U.S.C.
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§ 201 et. seq. On May 2, 2014, Plaintiff filed a motion for summary judgment. Docket no. 14. On
May 28, 2014, this Court entered summary judgement with regard to Defendant’s liability under the
FLSA for unpaid wages. Docket no. 15. The Court, however, also found that a genuine issue of
material fact existed with regard to the Defendant’s willfulness in failing to pay the due wages, and
so submitted this question to the jury. The jury returned a verdict in favor of Defendant on the issue
of willfulness. Docket no. 34. In the Court’s order following the jury verdict, the Court awarded
damages of $24,936.30 for the unpaid overtime and instructed Plaintiff to not claim attorney’s fees
for any costs incurred either in preparation for trial, or in trial itself, as Plaintiff was not the
prevailing party with regard to this aspect of the lawsuit.
II. The standard of eligibility for attorneys’ fees
The Fair Labor Standards Act requires the court to grant attorney’s fees to the prevailing
party, stating “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.” 29 U.S.C. § 216(b); see
e.g. Saizan v. Delta Concrete Products Company Inc., 448 F.3d 795, 799 (5th Cir. 2006) (Court
awarded attorney’s fees to plaintiff based upon their success at trial).
III. Amount of attorneys’ fees and costs
Having determined that Meesook is a prevailing party as to at least part of the claims in the
Original Complaint, the Court must determine the amount of the attorneys’ fee that is reasonable to
award under the circumstances. Meesook seeks attorneys’ fees in the amount of $62,440.00, and
costs of $752.08 for a total of $63,192.08.
A.
Attorneys’ Fees
Section 216(b) of the Fair Labor Standards Act provides a district court with the ability to
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award reasonable attorneys’ fees to the plaintiff. See 29 U.S.C. 216(b).1 “The most critical factor
in determining an attorney’s fee award is the degree of success obtained.” Saizan 448 F.3d at 799
(5th Cir. 2006) (quoting Singer v. City of Waco, Tex., 324 F.3d 813, 829 (5th Cir. 2003)). The
district court uses the lodestar method in order to determine reasonable attorney’s fees under the
See Saizan 448 F.3d at 799.
FLSA.
The lodestar method has a strong presumption of
reasonableness. Id. at 800. The lodestar is calculated by multiplying the number of hours reasonably
spent on a case by an appropriate hourly rate in the community for such work. Id. at 799.
Second, the court must determine whether the lodestar should be adjusted upward or
downward depending on the circumstances of the case by applying the factors provided in Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). After calculating the
lodestar, the court may decrease or enhance the amount based on the relative weights of the twelve
factors set forth in Johnson. See id. Of the Johnson factors, the court should give extra weight to
the time and labor involved, the customary fee, the amount involved and the result obtained, and the
experience, reputation, and ability of counsel. Migis v. Pearle Vision, 135 F.3d 1041, 1047 (5th Cir.
1998). However, “in 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.’” Saizan 448 F.3d at 799 (quoting Spegon v. Catholic Bishop of Chicago, 175 F.3d 544,
558 (7th Cir. 1999)). Furthermore, the court considers all of these factors while keeping in mind that
it is common for FLSA attorneys’ fees awards to significantly exceed the amount the plaintiff
recovers in unpaid wages. See e.g. Howe v. Hoffman-Curtis Partners LTD., LLP, 215 F. App’x.
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Though the attorney’s fee provision of the FLSA does not mention “prevailing party,” courts
typically cite prevailing party fee-shifting jurisprudence in FLSA cases. Saizan 448 F.3d at 799 n.7
(citing Tyler v. Union Oil Co. of Calif., 304 F.3d 379, 404 (5th Cir. 2002)).
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341, 342 (5th Cir. 2007) (per curiam) (finding that “given the nature of claims under the FLSA, it
is not uncommon that attorney fee requests can exceed the amount of judgment in the case by many
multiples,” and upholding the district court’s award of $129,805.50 in attorney’s fees with damages
of $23,357.30).
1)
Lodestar calculation – Reasonable number of hours
Plaintiff seeks attorney’s fees totaling $62,440.00 for 171.4 billed hours, which represents
130.6 hours of Mr. Welmaker’s time at $400/hour, and 40.8 hours of Mr. Parsons’ time at $250/hour.
To calculate the lodestar amount, the Court must first calculate the number of reasonably
compensable hours spent on the case. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324
(5th Cir. 1995). This calculation rests on whether the total number of hours claimed is reasonable
and whether specific hours claimed were reasonably expended. Alberti v. Klevenhagen, 896 F.2d
927, 933-34 (5th Cir. 1990). Excessive or duplicative time must be eliminated. Watkins v. Fordice,
7 F.3d 453, 457 (5th Cir. 1993). The burden to demonstrate the reasonableness of the hours spent
is on the fee applicant. Kellstrom, 50 F.3d at 324. In addition, plaintiffs are required to show that
billing judgment was exercised in arriving at the amount of attorneys’ fees claimed. Walker v. HUD,
99 F.3d 761, 769 (5th Cir. 1996). The Plaintiffs have provided documentation representing 220.15
actual hours2 that were spent working on the case. This amount has been reduced by the Plaintiff
to171.40 hours – a 22% reduction.
Only time spent pursuing a judicial remedy (whether a judgment on the merits or the
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There is a slight discrepancy of 0.4 hours between the hours indicated as excluded in
Plaintiff’s exhibit - attachment 2 (48.75 hours), and the sum of the hours excluded per attorney as
stated in Plaintiff’s motion (48.35 hours). For purposes of this order the Court used, 48.75, the
number represented in the itemized hours.
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equivalent of a court-ordered consent decree) can confer “prevailing party” status. See Buckhannon
Bd. And Care Home, Inc., v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598,
606 (2001) (explaining that “prevailing party” status “requires a judicial imprimatur” on the result
obtained). Thus, the Court declines to award attorneys’ fees for time spent pursuing the unsuccessful
claim. Here the Plaintiff spent extensive time preparing for and attending trial on the question of
Defendant’s willfulness in not paying Plaintiff’s rightful salary under the FLSA. The jury ultimately
found for the Defendant on the wilfulness issue, meaning the Plaintiff does not hold prevailing party
status with regard to that particular aspect of the overall litigation. In the August 15, 2014 order, the
Court instructed the Plaintiff to “clearly list time spent either preparing for trial or in trial, as fees
incurred for these activities may not be recovered in light of the adverse jury verdict on the only
issue presented at trial.” (emphasis added).
As a result, the Court excluded those hours.
Accordingly, the Court reduces the number of hours reasonably related to preparation for or
attendance at trial.
a)
Douglas Welmaker
The time records submitted for Douglas Welmaker reflect 141.2 hours actually worked.
These hours were reduced by the Plaintiff to 130.6 as part of their billing judgment adjustment.
The Court has carefully reviewed these time records and eliminated the time related to
discussing, researching, preparing, and actively engaging in trial on the issue of willfulness, in which
the Plaintiff was unsuccessful. Plaintiff argues that the “may not be recovered” language included
in the August 15, 2014 Order indicated only an intention by this Court to retain discretion over the
decision to either award fees or not. This is a misinterpretation of the Court’s language. The Court
clearly stated any hours related to the jury trial were not to be included in the Plaintiff’s claimed
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hours.
After careful review of Plaintiff’s submitted time records, the Court has determined that
approximately 35% of Mr. Welmaker’s claimed hours are attributable to preparation and planning
for trial, or to the trial itself. Therefore the Court reduces Mr. Welmaker’s hours by that proportion
to 84.89 hours.
b)
Michael Parsons
The time records submitted for Michael Parsons reflect 141.2 hours actually worked. These
hours were reduced by the Plaintiff to 40.8 as part of their billing adjustment.
The Court, once again, will exclude any hours expended either in preparation or planning for
trial, or at trial itself. After careful review of the time records submitted for Michael Parsons, the
Court concludes that approximately 35% of Mr. Parsons’ time was also spent in this manner, and
the Court therefore reduces his hours by that proportion to 26.52 hours.
2.
Lodestar calculation – Reasonable hourly rate
Having determined the number of reasonably compensable hours, the court must now “select
an appropriate hourly rate based on prevailing community standards for attorneys of similar
experience in similar cases.” Klevenhagen, 927 F.2d at 930 (quoting Sims v. Jefferson Downs
Racing Ass’n., 778 F.2d 1068, 84 (5th Cir. 1985)). The court is to determine the prevailing market
rates based upon the rates in the community in which the district court sits. Tollet v. City of Kemah,
285 F.3d 357, 68 (5th Cir. 2002). Generally, the reasonable hourly rate for a particular community
is established through affidavits of other attorneys practicing there. See, e.g., Watkins, 7 F.3d at 458
(party seeking fees submitted “affidavits from other attorneys in the community showing prevailing
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market rates in the community”).
Plaintiff asserts that $400/hour is a reasonable and customary rate for the type of work done
in this case by Douglas Welmaker, and that $250/hour is appropriate for Michael Parsons. In support
of this argument, Plaintiff has submitted a declaration by David G. Langenfeld, another attorney who
practices labor and employment law within the Western District of Texas. Mr. Langenfeld states that
both Mr. Welmaker’s rate of $400/hour, and Mr. Parsons’ rate of $250/hour are both “customary and
reasonable” for cases of this type within the Western District of Texas. Plaintiff also submitted a
declaration by Mr. Welmaker himself, claiming that in 2011 his then rate of $325/hour was approved
in Riddle v. Tex-Fin, Inc., 2011 WL 1103033 (S.D. Tex. March 22, 2011).
Based on the affidavits and evidence submitted by Plaintiffs attorneys, the Court finds that
the requested rates are reasonable. Accordingly, the Court calculates the lodestar at, and awards to
Meesook, $40,518.503:
Welmaker: 84.89 hours x $400 = $33,956
Parsons: 26.52 hours x $250 = $6,562.50
3.
Johnson factors
After calculating lodestar, the court may decrease or enhance the amount of attorney fees
based on the relative weights of the twelve factors found in Johnson. See Saizan, 448 F.3d at 800.
The Johnson factors include: (1) the time and labor required, (2) the novelty and difficulty of the
question, (3) the skill required to perform the legal service properly, (4) the preclusion of other
employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee
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Reduced from the original request of $62,440.00.
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is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount
involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10)
the “undesirability” of the case, (11) the nature and length of the professional relationship with the
client, and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. To the extent that any factors
are subsumed in the lodestar, they should not be reconsidered when determining whether an
adjustment to the lodestar is required. Migis, 135 F.3d at 1047. Of the Johnson factors, “the court
should give special heed to the time and labor involved, the customary fee, the amount of involved
and the result obtained, and the experience, reputation and ability of counsel.” Migis, 135 F.3d at
1047 (quoting Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990)).
Where “a plaintiff has achieved only partial or limited success, the product of hours
reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive
amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised
in good faith.” Saizan, 448 F.3d at 801 (citing Migis, 135 F.3d at 1048). Considering the relief
sought in the Original Complaint, this Court finds that the ultimate relief obtained was “limited.”
While Plaintiff did prevail in their general FLSA claim, they received an unfavorable jury verdict
with regard to the issue of willfulness. As a result, the Court will compare the result obtained with
the relief sought, as well as the fees sought in relation to the result obtained to determine if the
lodestar should be adjusted downward for “partial success.” See Migis, 135 F.3d at 1048.
The Summary Judgment Order addressed both Plaintiff’s claim for unpaid overtime under
the FLSA and the issue of wilfulness. Docket no. 15. The Court found no issue of material fact
existed with regard to the issue of unpaid overtime, finding in favor of the Plaintiff on that issue;
however, the Court also found that an issue of material fact existed in regard to the issue of
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wilfulness. On August 14, 2014, this issue was tried before a jury, who subsequently found in favor
of Defendant. In the August 15, 2014 Order, the Court granted liquidated damages for the Plaintiff.
The Court has already adjusted the hours to exclude time spent on the unsuccessful
willfulness claim. In addition, the Court finds that the ratio of the relief sought to the relief rewarded
and the ratio of the lodestar amount to the relief rewarded are not disproportionate. In this case, the
Plaintiff recovered $24,936.30, or approximately 81% of the amount sought in the Original
Complaint, which the Court finds does not require reduction of the related attorney’s fees. See
Springer v. City of Waco, Tex., 324 F.3d 813, 830 (5th Cir. 2003) (court upheld district court’s
decision not to reduce lodestar amount due to disparity between amount sought and actual amount
awarded); see also Saizan 448 F.3d at 799 (quoting Spegon v. Catholic Bishop of Chicago, 175 F.3d
544, 558 (7th Cir. 1999) (“in 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”)); see also Louisiana Power and Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th
Cir. 1995) (affirming the district court’s award of attorney’s fees and observing that the district
court's lodestar analysis is inspected primarily to ensure that “the court sufficiently considered the
appropriate criteria”) (emphasis in original). In addition, the attorney fee award here, $40,518.50,
is reasonably proportionate to the damages award on liability, $24,936.30. See Howe, 215 F. App’x.
at 342 (upholding the district court’s award of $129,805.50 in attorney’s fees with damages of
$23,357.30).
Considering the other Johnson factors, many of which were subsumed within the lodestar
analysis (e.g., time and labor required, skill required, attorneys’ customary fee, time constraints of
the case, and the experience, reputation, and ability of the attorneys), these additional factors will
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not be used to adjust the lodestar amount. With regard to the novelty and complexity of the issues,
the Court finds this to have been a relatively straightforward case in an area with which the attorneys
are familiar, and therefore this factor does not require an adjustment. As to whether the attorney had
to refuse other work to litigate this case, the attorneys may have invested considerable time on this
case during its duration, but there is no evidence that this work required them to refuse other work
or otherwise cost them valuable opportunities. Therefore, the Court finds no basis for adjusting the
lodestar amount.
B. Costs
Plaintiff seeks an award of $752.80 in costs, which includes $400 for Fees of the Clerk,
$334.08 for fees for service of summons and subpoenas, and $18.00 for Secretary of State research.
Title 28 U.S.C. § 1920 provides for an award of costs to include the fees of the clerk and/or docket
fees, and thus the Court will award the $400. This Court only permits taxing of costs for service of
process so much as they do not exceed cost of service by the Marshall. Denver v. Tex. Dept. of
Criminal Justice, No. SA-05-CA-185-XR, 2007 WL 294191, at *6 (W.D. Tex. Jan. 29, 2007). The
current cost of service is $55.00 so the Court will only permit the taxing of cost of service at $55.00.
The Supreme Court has ruled that expenses not enumerated in section 1920, such as Secretary of
State research, can be awarded only upon explicit statutory authorization found elsewhere. Mota v.
The Univ. of Tex. Houston Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001) (citing Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45 (1987)). The Court finds that 42 U.S.C. §
1973l(e) contains the necessary authorization, as it states that the court may award “a reasonable
attorney’s fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.”
The Court finds the Secretary of State research fees to be reasonable litigation expenses, and
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therefore awards the additional $18.00, for a total award of costs of $473.00.
IV. Conclusion
The Plaintiff’s Motion for Attorney’s Fees and Costs (docket no. 36) is GRANTED as stated
above. Plaintiff is awarded a reasonable attorneys’ fee in the amount of $40,518.50 and costs in the
amount of $473.00, for a total of $40,991.50.
It is so ORDERED.
SIGNED this 8th day of October, 2014.
_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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