Alvarez v. Department of the Army

Filing 124

ORDER GRANTING IN PART 117 Motion for Attorney Fees. Based on the foregoing, Plaintiffs Motion for Attorneys Fees and Costs is GRANTED IN PART as modified by this Order. Specifically, the Court awards the following: 1. $126,770.00 in attorneys fees as described above; and 2. $4,223.65 in chargeable costs. Signed by Judge Alan D Albright. (am) Modified on 4/6/2020 (am).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
GILBERTO ALVAREZ,
Plaintiff,
v.
RYAN D. MCCARTHY, IN HIS
OFFICIAL CAPACITY AS
SECRETARY OF THE DEPARTMENT
OF THE ARMY;
Defendant.

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CIVIL NO. 6-16-CV-00172-ADA

ORDER
Before the Court is Plaintiff Gilberto Alvarez’s Motion for Attorneys’ Fees and Costs
(ECF No. 117). Defendant filed a timely Response to the Motion on March 27, 2020 (ECF No.
121), and Plaintiff filed a Reply (ECF No. 122). After reviewing the parties briefing, the
applicable law, and the case file, the Court GRANTS Plaintiff’s Motion but reduces the amount
of fees that Plaintiff is seeking for the reasons set forth in the Order below.
I.

BACKGROUND

This was not a complex or unusually contentious case. After a successful jury verdict,
Plaintiff filed the present Motion on March 9, 2020, seeking what Plaintiff claims are reasonable
attorneys’ fees pursuant to 42 U.S.C. § 2000e-5(k). The Defendants do not oppose the award of
attorneys’ fees, but they do oppose the amount of fees Plaintiff is seeking. The award of
attorneys’ fees sought by Plaintiff is approximately three times the amount of the jury’s verdict
and more than two times the amount of the Court’s judgment. Defendant opposes the Motion and
argues that Plaintiff’s claimed hours, rates, and costs are excessive and should be reduced. Def.s’
Resp., ECF No. 121 at 1.

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II.

LEGAL STANDARD

The Supreme Court has established a “strong presumption” that the lodestar–the product
of multiplying hours reasonably expended by a reasonable hourly rate–represents “the reasonable
fee” to which a prevailing plaintiff is entitled. Perdue v. Kenney A., 559 U.S. 542, 553–54
(2010). This method yields an award that roughly approximates what the attorney would have
received if representing a client who paid by the hour. Perdue, 559 U.S. at 551. The lodestar’s
components are fact-findings that an appellate court would review only for clear error. Saizan v.
Delta Concrete Prods., 448 F.3d 795, 800 (5th Cir. 2006).
In the Fifth Circuit, courts apply a two-step method for determining a reasonable
attorney’s fee award, beginning with calculating the “lodestar.” Combs v. City of Huntington,
829 F.3d 388, 391–92 (5th Cir. 2016) (citing Jimenez v Wood Cty, 621 F.3d 372, 379 (5th Cir.
2010)), on reh’g en banc, 660 F.3d 841 (5th Cir. 2011). The court must first calculate the
lodestar, “which is equal to the number of hours reasonably expended multiplied by the
prevailing hourly rate in the community for similar work.” Id. In calculating the lodestar, “[t]he
court should exclude all time that is excessive, duplicative, or inadequately documented.” Id. at
379-80. Though the lodestar is presumed reasonable, see Perdue, 559 U.S at 553-54, the court
may enhance or decrease it based on the twelve Johnson factors. See Jimenez, 621 F.3d at 380.1
“The court must provide ‘a reasonably specific explanation for all aspects of a fee
determination.’” Id. (quoting Perdue, 559 U.S. at 558). The court must determine the number of

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The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the issues in the case; (3)
the skill requisite 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 charged for those services in the relevant community; (6) whether
the fee 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.

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hours reasonably expended on the litigation multiplied by a reasonable hourly rate. La. Power &
Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).
As the party requesting fees, Plaintiff bears the burden of establishing the reasonableness
of the fees and costs by submitting adequate documentation – namely, time records, affidavits,
and the like. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A court can also consider the
various factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974)—referred to as the “Johnson factors”—and may adjust the lodestar upward or downward
depending on the weight it allots to those factors. Black v. SettlePou, P.C., 732 F.3d 492, 502
(5th Cir. 2013). As the fee applicant, Plaintiff “bear[s] the burden of showing that ‘such an
adjustment is necessary to the determination of a reasonable fee.’” Walker v. U.S. Dep't of Hous.
& Urban Dev., 99 F.3d 761, 771 (5th Cir. 1996).
III.

ANALYSIS

A. This Was Not a Complex Case.
This was not a complex case. Indeed, as the case proceeded from filing to trial the
Plaintiff initially narrowed his complaint to a single claim of retaliation. Jury selection lasted half
a day. Recognizing the simplicity of the issues involved, the Court allotted just two days for trial.
See ECF No. 81 (limiting trial time to 5 hours per side). The case involved one plaintiff making
claims that were very straight forward and well established in the law. Only seven fact witnesses
were called at trial. Neither side called an expert witness. There were no novel or complex legal
theories or issues. There were no substantial disputes concerning discovery. This Court is
mindful that in Cobb v. Miller, the Fifth Circuit explained that “[i]n the absence of other Johnson
factors justifying a reduction in a fee award, a district court should not reduce the fee award
solely because of a low damages award,” because “[s]uch an approach would lead to a

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proportionality requirement between the amount of attorney's fees and the amount of damages.”
818 F.2d 1227, 1235 (5th Cir. 1987). This Court rejects any analysis that is based only on
proportionality.
The Court has considered the simplicity of the case and the issues involved in conducting
its lodestar analysis. This Johnson factor (“novelty and difficulty of issues” in the case) has a
bearing on the market rate and on whether the hours were reasonably spent and may be a basis
for adjusting the lodestar. Rodriguez v. City of Houston, No. H–06–2650, 2009 WL 10679670
(S.D. Tex. Dec. 22, 2009) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The case of
Schaeffer v. Warren Cty., Mississippi, is analogous to the present case. No. 3:14-CV-945-DPJFKB, 2017 WL 5709640, at *1 (S.D. Miss. Nov. 27, 2017), aff’d, 744 F. App’x 871 (5th Cir.
2018). In Schaffer, the plaintiff alleged age-based discrimination, deprivation of overtime
compensation under the Fair Labor Standards Act, and retaliation. Id. There, as here, only the
retaliation claim survived, and only the retaliation claim was tried to verdict. Id. As in this case,
the jury found for the plaintiff and awarded him approximately $100,000 in damages. In
conducting the lodestar analysis, the Schaeffer court determined that the single-claim retaliation
case was “simple”, and the rates should accordingly be adjusted downward. Id. The Schaeffer
court ultimately awarded plaintiff a total amount of $8,961.19 in attorneys’ fees. In contrast,
here, Plaintiff seeks 33 times that amount, or $300,608.50.
Other courts in the Fifth Circuit have similarly held that employment cases with just one
or even two claims are “simple” and do not warrant attorneys’ fees award anywhere in the
ballpark of what Plaintiff now seeks. See Faulk v. Duplantis, No. CIV.A. 12-1714, 2015 WL
3539637, at *1 (E.D. La. June 4, 2015) (in a single-claim retaliation case that was tried to verdict
twice, finding that the “case was not complex and awarding a total of $65,137.50 in fees);

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Halupka v. Federal Express Corp., No. 4:03-cv-350, 2006 WL 8441053, at *4 (E.D. Tex. Jun.
22, 2006) (downward adjustment of lodestar was appropriate in two-plaintiff racial
discrimination and hostile work environment case because “Fifth Circuit law . . . regarding the
claims brought by both Plaintiffs is rather well settled [and] [t]he Plaintiffs’ claims were not
necessarily novel or complex.”).
Here, as in Schaeffer, Faulk, and Halupka, the Court should view the lodestar analysis
through this lens. The hours expended and the hourly rates claimed by Plaintiff are
disproportionate—not only to the verdict—but also to the needs of the case.
B. The Hours Expended are Unreasonable and Excessive.
The hours expended by Plaintiff’s legal team were unreasonable and unnecessary. The
Government challenges the following “buckets” of attorneys’ fees. It argues that the Court
should exclude (1) pre-trial, trial, and post-trial hours reflecting duplication of efforts by the five
attorneys working on the case, (2) all hours related to the presentation of witnesses Gayle
Johnson and Rex Thomas, and (3) hours related to an unnecessary focus group conducted by
Plaintiff. The Court will address each of these individually.
i.

The Retention of Five Attorneys from Three Law Firms Resulted in
Redundant and Unnecessary Hours.

Given that this was a single-plaintiff, single-claim case, with few witnesses, no novel
legal issues, which culminated in a 10-hour trial, it was unreasonable and inefficient for Plaintiff
to retain five attorneys from three different law firms in three different cities. The Supreme Court
has explained that “[c]ases may be overstaffed, and . . . [c]ounsel for the prevailing party should
make a good faith effort to exclude from a fee request hours that are excessive, redundant, or
otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such
hours from his fee submission.” Hensley, 461 U.S. at 434. Here, Plaintiff over-staffed the case
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and failed to make a good faith effort to exclude excessive, redundant, and otherwise
unnecessary hours resulting from that overstaffing. In total, Plaintiff claims 568 hours in this
case.
The Defendant submitted an Exhibit (Exhibit A) in which articulated the specific hours
which Defendant asks the Court to exclude as duplicative, excessive, and unnecessary as a
function of over-staffing. The Court will use this as a template to make clear which hours it
intends to disallow.
1. Pre-Trial Excess Hours
Mr. Walsh handled the case solo from March 25, 2015 until October 17, 2017. Mr.
Castellanos was added to the legal team and reviewed a response to a second motion to dismiss.
Mr. Castellanos and Mr. Dama had limited interactions on the case until 2019. It appears from
the billing records that they began their substantial billing related to the utilization of a focus
group. Mr. Castellanos, Ms. Wheeler, and Mr. Walsh all charged fees for reviewing the case and
for trial preparation. With respect to pre-trial preparation, Defendants have identified the
following duplicative billing entries: 1) each time the legal team met, the individual attorneys
each charged for the meeting; 2) Ms. Wheeler spent 3.6 hours preparing an opening statement for
the focus group, while Mr. Walsh has 10 separate entries containing opening statement
preparation; 3) Ms. Wheeler required 14.3 hours to review the pleadings and certain depositions
to prepare for trial; and 4) almost every pre-trial document was reviewed and revised (sometimes
multiple times) by three different attorneys, creating additional redundancies in a simple and
straightforward case. The Court finds that while counsel for Plaintiff may have believed that this
type of duplication (if that is the correct words since three attorneys were each repeating the
same tasks) was necessary to prepare for trial, the Court does not believe that all of these fees are

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reasonable or necessary. Therefore, the Court will award attorneys’ fees for the work of any
single attorney on any single task but not three times the fees.
2. Excess Hours at Trial
At trial, Plaintiff was represented throughout the trial by three attorneys. The total cost
for the mere presence of these attorneys at trial was $47,425.50. When more than one attorney is
involved, “the possibility of duplication of effort along with the proper utilization of time should
be scrutinized.” Johnson, 488 F.2d at 717. Specifically, the “time of two or three lawyers in a
courtroom or conference when one would do may be obviously discounted.” Abrams v. Baylor
College of Medicine, 805 F.2d 528, 535 (5th Cir. 1986); Flowers v. Wiley, 675 F.2d 704, 705
(5th Cir. 1982). The chance for inefficiency and duplication of effort is enhanced where, as here,
the various attorneys are located in three different firms across three different cities.
The Court finds that the Government is reasonable in their objections with respect to this
issue. The Court understands that in most if not all cases it takes at least two attorneys at trial.
The case could have been tried by Mr. Walsh and Mr. Castellanos only. Mr. Walsh and Mr.
Castellanos handled the bulk of the case presentation. The Court agrees that the additional
attorneys’ fees charged by Mr. Dama and Ms. Wheeler are not reasonable and cannot find that
they were necessary. Although Ms. Wheeler did present two witnesses at trial (exhibiting both
skill and preparation), the testimony of those two witnesses was irrelevant to the sole cause of
action in this case (as described in greater detail in the section below). Even if they were not
irrelevant, the case does not justify the retention of Ms. Wheeler when Mr. Walsh and Mr.
Castellanos were perfectly capable of questioning those witnesses. Accordingly, the Court
excludes the time that Ms. Wheeler expended in getting up to speed on the case once she joined
the legal team through the time of trial.

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Because the witnesses could have been handled at trial by other counsel more familiar
with the case, the Court finds that the hours billed by Ms. Wheeler spent reviewing deposition
transcripts of witnesses she did not take should be excluded. The Court also finds that her time
spent reviewing the pleadings and the file may have been necessary for her to prepare for those
witnesses but they were not reasonable and necessary in the sense of being recoverable given
that other counsel on the trial team would not have had to expend those hours.
3. Post-Trial Excess Hours
The Government contends that there was duplication of effort by counsel for Plaintiff in
the post-trial phase. For example, every single post-trial motion and response was reviewed and
revised by three different attorneys, creating additional redundancies. The Court agrees that this
is excessive and unnecessary.
The Government also challenges the involvement of Mr. McKnight in the preparation of
the Motion for Attorneys’ Fees. The Court agrees that the decision to have a fifth attorney is
illogical here—not because it is a fifth attorney (although that too is questionable)—but because
having an attorney who had no involvement in the litigation necessarily increased, rather than
decreased, the efficiency of the preparation of the Motion. This decision made it unavoidable that
Mr. McKnight would be required to get up to speed on case background and procedural history.
Mr. Castellanos or Mr. Walsh could have prepared the fee motion and attached declarations. A
paralegal obviously could have prepared the necessary documentation. The Government notes
that the Motion for attorneys’ fees filed in this case closely resembles that which was filed in a
previous Motion for Attorney’s Fees filed by Mr. Walsh and Mr. McKnight.

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ii.

The Hours Expended on Witnesses Gayle Johnson and Rex Thomas Should
be Excluded.

The Government contends that all hours related to the presentation of witnesses Gayle
Johnson and Rex Thomas should be excluded. Ms. Johnson testified regarding the veteran’s
preference regulations, hiring procedures, and candidate-ranking system at Fort Hood. Mr.
Thomas testified regarding the EEO complaint process at Fort Hood. The Government contends
that their testimony was not probative of any relevant fact. The sole question on liability for the
jury was:
“Do you find that plaintiff Gilberto Alvarez would have been given a
promotion to the position of supervisor of the Fort Hood brace shop but for filing
a complaint with the Fort Hood EEO alleging national origin discrimination?”
See Jury Instructions and Verdict Form, Dkt. 91 at 7. The question for the Court is
whether the testimony of Ms. Johnson or Mr. Thomas was relevant or necessary for the Plaintiff
to persuade the jury how to resolve any factual dispute.
It is critical to note that the Government never disputed that Mr. Alvarez had previously
filed an EEO complaint, that the EEO complaint was a protected activity, or that Mr. Alvarez did
not receive the promotion to supervisor of the Brace Shop. Had the Government done so,
obviously this would have made the testimony of these witnesses necessary. But the government
did not. As a result, there was but a single issue for the jury to decide: causation. The testimony
of Ms. Johnson and Mr. Thomas was unrelated to causation. While the Court is reluctant to
question the decision made by trial counsel as to which witnesses to call, the Court finds that in
this instance, Plaintiff’s decision to call these witnesses was unnecessary, and hours associated
with their presentation should be excluded from any fee award. Therefore, the hours related to
Ms. Johnson and Mr. Thomas as excessive and unnecessary.

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iii.

The Hours Expended and Costs Related to the Focus Group Should be
Excluded.

The Court will exclude the roughly $35,893.60 in time and costs Plaintiffs expended on a
focus group for this straightforward employment case. See Rodriguez v. City of Houston, No. H–
06–2650, 2009 WL 10679670 (S.D. Tex. Dec. 22, 2009). Rodriguez was a more complicated
civil rights case, but even there, the court found “while it is commendable that counsel made
efforts to be well prepared for trial, the fees sought for the mock trial were not necessary and the
fees demanded for the jury consultant are not reasonable given the large number of lawyers
staffing this case.” Id.; see also Beach v. Wal-Mart Stores, Inc., 958 F. Supp. 2d 1165 (D. Nev.
2013) (fees associated with focus group in simple slip and fall action was not reasonable and
necessary, and thus would not be included in attorney fee award); Axel v. Griffin, No. 12-1019
DSD/AJB, 2014 WL 896727, at *2 (D. Minn. Mar. 6, 2014) (in excessive force case against
police department, finding “the hours associated with the . . . focus group . . . to be
unnecessary.”). In excluding the hours and costs associated with the focus group, the Axel court
“note[d] its familiarity with the requirements of trial preparation and strategy for trial lawyers”
and added that “[a]lthough [plaintiff’s] attorneys may have believed that such a focus group was
necessary for trial preparation, the court finds that such an expense was not necessary in this
relatively simple case.” Id. (emphasis added). Here, as in Rodriguez, Beach, and Axel, the hours
and costs related to the focus group were unnecessary and should be excluded in their entirety,
even if Plaintiff believed that the focus group was necessary.
C. Plaintiff’s Requested Hourly Rates are Unreasonable and Excessive.
The Government challenges the hourly rates charged by Plaintiff’s counsel. An attorney’s
affidavit alone cannot support a rate’s reasonableness. See Blum v. Stenson, 465 U.S. 886, 896
n.11 (1984) (“the burden is on the fee applicant to produce satisfactory evidence–in addition the
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other attorney’s own affidavits–that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience, and
reputation”). Courts in the Fifth Circuit must employ their “‘own knowledge and experience
concerning reasonable and proper fees and may form an independent judgment with or without
the aid of witnesses as to value.’” Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940).
Importantly, “[h]ourly rates are to be computed according to the prevailing market rates in the
relevant legal market, not the rates that ‘lions at the bar may command.’” See Hopwood v. Texas,
236 F.3d 256,281 (5th Cir. 2000).
1. As Other Courts Within this District Have Done, This Court Will Give Significant
Weight to the State Bar of Texas Hourly Fact Sheet Publication.
Defendant asks the Court to determine the appropriate range of fees based on the State
Bar of Texas Hourly Fact Sheet publication, which provides “data collected on the hourly rates
of 4,260 licensed and practicing, full-time private practitioners who provided hourly rate
information for the calendar year 2015.”2
Plaintiff argues that the State Bar’s Fact Sheet is “stale” and should be disregarded by the
Court. The Government cites directs the Court to a decision entered in January by a district court
in the WDTX. In fact, as recently as January 2020, a court within the Western District of Texas
relied upon the Fact Sheet to gauge the reasonableness of rates. See Halprin v. Fed. Deposit Ins.
Corp., No. 5:13-CV-1042-RP, 2020 WL 411045, at *7 (W.D. Tex. Jan. 24, 2020) (taking judicial
notice of State Bar’s 2015 hourly rate fact sheet and using it to calculate a reasonable hourly
rate). See also Joe Hand Promotions, Inc. v. Ramirez, No. 7:18-CV-346, 2020 WL 43495, at *6
(S.D. Tex. Jan. 3, 2020) (in January 2020, comparing Plaintiff’s claimed rate with State Bar’s

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See
https://www.texasbar.com/AM/Template.cfm?Section=Archives&Template=/CM/ContentDisplay.cfm&ContentID=
34182, State Bar of Texas Dept. of Research and Analysis Hourly Fact Sheet.

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2015 hourly rate fact sheet in determining whether attorney’s rate was reasonable); Furlow v.
Bullzeye Oilfield Servs., LLC, No. SA-15-CV-1156-DAE, 2019 WL 1313470, at *3 (W.D. Tex.
Jan. 3, 2019), report and recommendation adopted, No. 5:15-CV-1156-DAE, 2019 WL 1313454
(W.D. Tex. Jan. 29, 2019) (in January 2019, using the 2015 hourly rate fact sheet as baseline for
reasonableness and determining that Plaintiff failed to justify an “upward departure . . . [from]
the State Bar of Texas Rate Survey median hourly rate”). Thus, the Court will use the State Bar
Fact Sheet to gauge the reasonableness of Plaintiff’s rates.
2. The State Bar’s Fact Sheet has been and remains a viable barometer of a rate’s
reasonableness.
Here, Plaintiff’s counsel seeks rates ranging from $350/hour to $585/hour. According to
the State Bar’s Fact Sheet, the median hourly rate for a labor and employment attorney is
significantly less: $280/hour in the Dallas-Fort Worth-Arlington MSA and $300/hour in the
Austin-Round Rock MSA (for this metric, there is no median rate listed for Waco, which is
included in the Central Texas MSA). See Ex. B at 10 (Hourly Rates by Practice Area by
Geographic Region). The unreasonableness of Plaintiff’s claimed rates is also apparent when
compared against the State Bar’s data on median rates for attorneys by region and based on years
of practice and firm size. See Ex. B at 12–13 (Hourly Rates by Years of Experience and Firm
Size).
The State Bar Fact Sheet rates for the Waco and the Central Texas MSA are in line with
those prevailing in the community for similar services by lawyers of reasonably comparable
skill, experience, and reputation. Plaintiff’s claimed rates of $350 to $585 per hour are not in
line, and the Court will reduce the rates accordingly.

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3. The Court Will Decline Plaintiff’s Invitation to Follow Johnson v. Southwest Research
Institute.
The Government contends that counsel for the Plaintiff seeks roughly double the rate
identified by the State Bar of Texas Department of Research and Analysis for attorneys in this
region with the same number of years of experience and within similar firms in terms of size.
Plaintiff asks the Court to ignore the State Bar’s Fact Sheet and all of the courts in this district
which have used and continue to use the Fact Sheet as a measure of reasonableness. Instead,
Plaintiff asks the Court to follow Johnson v. Southwest Research Institute. 2019 WL 4003106
(W.D. Tex. Aug. 23, 2019) appeal dismissed sub nom. No. 19-50845, 2020 WL 1188100 (5th
Cir. Jan. 14, 2020). The Court finds that it is premature to assume that the determination made by
the district court or the method the Court employed in determining the appropriate rates for
counsel in Johnson is acceptable in the Fifth Circuit.
If anything, the cases relied in by the court in Johnson makes it more difficult for the
Plaintiff to succeed in persuading this Court that their fees were reasonable given the type of case
this was and the issues which were tried. See MidCap Media Fin., LLC v. Pathway Data, Inc.,
No. 15-60, 2018 WL 7890668, at *2 (W.D. Tex. Dec. 19, 2018) (court awarded fees ranging
from $325 to $755 per hour for attorneys at Haynes & Boone LLP, a firm with more than 575
lawyers, and case involved breach of contract); Xpel Techs. Corp. v. Carlas Int’l Auto.
Accessory, Ltd., No. 16-1308, 2017 WL 9362801, at *9 (W.D. Tex. Nov. 27, 2017) (court
awarded a $545 hourly rate for attorneys at Dykema, a national law firm with 13 offices and over
400 lawyers, in a trademark infringement case, not an employment discrimination case); City of
San Antonio v. Hotels, com, L.P., No. 6-381, 2017 WL 1382553, at *11 (W.D. Tex. Apr. 17,
2017) (court awarded attorney’s fees at rate of $350 to $475 hourly, but attorneys practiced at
large law firms Bracewell LLP and McKool Smith LLP, in class action related to hotel
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occupancy laws, which court deemed was a “specialized type of litigation”); Sierra Club v.
Energy Future Holdings Corp., No. 12-108, 2014 WL 12690022, at *6 (W.D. Tex. Aug. 29,
2014) (court awarded an out-of-district counsel in a Clean Air Act case $925 per hour based on
home market of Washington D.C.).
In sum, all of the hourly rates upon which the Johnson court relied were rates awarded to
attorneys in national and international law firms with hundreds of attorneys. Of greater import to
this Court is the fact that each of those cases required some form of specialization on the part of
counsel. That is not to say that employment litigation cannot require a great deal of
sophistication or specialization. The point is that this litigation was devoid of any necessity for
Plaintiff’s counsel to have any specialized training nor were there any issues involved that were
complex.
The State Bar Fact Sheet demonstrates that the size of the law firm is a relevant
consideration when it comes to rates. See Ex. B at 13 (Hourly Rates by Firm Size). There can be
a several hundred dollar per hour difference between the rates charged by lawyers practicing inattorney firms with only two attorneys and those charged by lawyers in 500-attorney firms.
Moreover, the rates considered by the Johnson court were rates applicable to markets other than
Waco and in cases involving more complex legal and factual issues than this case.
The Court must apply its “own knowledge and experience concerning reasonable and
proper fees and must form an independent judgment.” Campbell, 112 F.2d at 144. The State Bar
Fact sheet remains the baseline for reasonableness in forming this judgment. Plaintiff has failed
to justify an “upward departure . . . [from] the State Bar of Texas Rate Survey median hourly
rate.” See Furlow, 2019 WL 1313470, at *3. Accordingly, the Court will apply hourly rates
similar to those included in the State Bar Fact Sheet for the Central Texas MSA.

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Based on the forgoing analysis, the Court believes a reasonable hourly rate based on the
practice area, firm size, geographic region, and case difficulty to be $350.00 per hour. Recently,
the Court awarded a similar fee in breach of contract and franchise case that was more complex
than the current case. See Williams v. Aire Serv, LLC, 6:18-CV-00304-ADA, ECF No. 78.
Additionally, the attorney in Williams was a senior partner at a larger firm than Plaintiff’s
counsel and had more experience. Therefore, the Court finds that a reasonable hourly rate for this
case is $350.00 per hour.
D. Costs
The Court next addresses Defendants argument that the Court must make reductions of
the following costs:
• Attorney Travel and Subsistence: The attorneys in this case request reimbursement for travel,
hotel, and subsistence. There is no authority that allows for reimbursement of these costs. See 28
U.S.C. § 1920. Although 28 U.S.C. § 1821 provides for certain per diem and mileage expenses,
these are specifically limited to witnesses. Nothing in these statutes provides for the payment of
travel expenses to the attorneys in this case who are also claiming an hourly rate. The Court will
not award these as costs.
• Costs Associated with Duplication of Efforts: Defendant also objects to the costs incurred as
a function of Plaintiff’s over-staffing. The Defendant argues that Westlaw research charges also
likely include duplicative efforts because counsel’s time entries reflect redundant research
projects. The Court finds that this concern is unfounded and will award the Plaintiff all of
claimed Westlaw charges.
• Costs Related to the Focus Group: Plaintiff seeks approximately $6,400 in costs associated
with the focus group. As discussed above, the focus group was unnecessary and excessive

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considering the level of complexity in this case. More importantly, even had the Court
determined that the use of a focus group was necessary it would not find this to be a cost that
should be reimbursed. Accordingly, Defendant the Court excludes all costs related to the focus
group.
IV.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion for Attorneys’ Fees and Costs is GRANTED IN
PART as modified by this Order. Specifically, the Court awards the following:
1. $126,770.00 in attorneys’ fees as described above; and
2. $4,223.65 in chargeable costs.
SIGNED this 6th day of April 2020.

ALAN D ALBRIGHT
UNITED STATES DISTRICT JUDGE

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