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finding that plaintiff presented evidence that additional attorney who attended the mediation and trial participated "in a supporting role" rather than merely as a passive observer and declining to reduce the lodestar amount on that basis
Summary of this case from Trevino v. U.S. Bank Trust, N.A. (In re Trevino)Opinion
CAUSE NO. 1:19-CV-1192-LY
2021-11-12
Kristy MIDKIFF, Plaintiff, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant.
Amar B. Raval, Berg Plummer Johnson & Raval, LLP, Houston, TX, Ryan Hideki Opgenorth, Terrence J. Coleman, Azin Jalali, Pillsbury & Coleman LLP, San Francisco, CA, for Plaintiff. Ian H. Morrison, Julie M. Kamps, Seyfarth Shaw LLP, Chicago, IL, for Defendant.
Amar B. Raval, Berg Plummer Johnson & Raval, LLP, Houston, TX, Ryan Hideki Opgenorth, Terrence J. Coleman, Azin Jalali, Pillsbury & Coleman LLP, San Francisco, CA, for Plaintiff.
Ian H. Morrison, Julie M. Kamps, Seyfarth Shaw LLP, Chicago, IL, for Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION AND AWARDING ATTORNEY'S FEES, LITIGATION EXPENSES, AND POST-JUDGMENT INTEREST
LEE YEAKEL, UNITED STATES DISTRICT JUDGE
Before the court are Plaintiff Kristy Midkiff's Motion for Attorneys’ Fees and Costs (Doc. #88), Defendant Prudential Insurance Company of America's Response in Opposition to Plaintiff's Motion for Fees and Costs (Doc. #92), and Plaintiff's Reply in Support of her Motion for Attorneys’ Fees and Costs (Doc. #95). The motion, response, and reply were referred to the United States Magistrate Judge for a Report and Recommendation. See 28 U.S.C. § 636(b) ; Fed. R. Civ. P. 72 ; Loc. R. W. D. Tex. Appx. C, 1. The magistrate judge filed a Report and Recommendation on September 30, 2021 (Doc. #97), recommending that the court grant Midkiff's motion and award Midkiff $303,916.00 in attorney's fees, $6,733.78 in litigation expenses, and post-judgment interest.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure, a party may serve and file specific, written objections to the proposed findings and recommendations of the magistrate judge within 14 days after being served with a copy of the Report and Recommendation, and thereby secure a de novo review by the district court. The Prudential Insurance Company of America ("Prudential") filed objections on October 14, 2021 (Doc. #98), Midkiff filed a response on October 28, 2021 (Doc. #99), and Prudential filed a reply on November 4, 2021 (Doc. #100). In light of Prudential's objections, the court has undertaken a de novo review of the entire case file and finds that the magistrate judge's Report and Recommendation should be approved and accepted by the court for substantially the reasons stated therein.
Prudential filed an Opposed Motion for Leave to File Reply in Support of Objections to Report and Recommendation on November 4, 2021, attaching the reply (Doc. #100-1) to the motion. The court has reviewed and taken into consideration Prudential's objections, Midkiff's response, and Prudential's reply and will therefore grant Prudential's motion for leave to file a reply.
Prudential's objections raise arguments that the magistrate judge thoroughly addressed in the Report and Recommendation. Having reviewed the magistrate judge's analysis and the record in this case, this court agrees with the recommendation that Midkiff recover $303,916.00 in attorney's fees, $6,733.78 in litigation expenses, and post-judgment interest. Therefore, the court will overrule Prudential's objections.
12 The United States Code authorizes courts to award post-judgment interest on "any money judgment in a civil case recovered in a district court." 28 U.S.C. § 1961(a). The Court of Appeals for the Fifth Circuit has interpreted the term "money judgment" to include attorney's fees and costs. See Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542, 545 (5th Cir. 1983), overruled in part on other grounds by J.T. Gibbons, Inc. v. Crawford Fitting Co., 790 F.2d 1193 (5th Cir. 1986). The court must calculate post-judgment interest from the date of the judgment on the merits, which is May 6, 2021 for this cause (Doc. #86). See Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 332 (5th Cir. 1995). The applicable rate as published by the Board of Governors of the Federal Reserve System is 0.05% per annum. See 28 U.S.C. § 1961(a) ("Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.").
IT IS THEREFORE ORDERED that Defendant's Opposed Motion for Leave to File Reply in Support of Objections to Report and Recommendation filed November 4, 2021 (Doc. #100) is
GRANTED.
IT IS FURTHER ORDERED that Defendant's Objection to Report and Recommendation filed October 14, 2021 (Doc. #98) is
OVERRULED.
IT IS FURTHER ORDERED that the United States Magistrate Judge's Report and Recommendation (Doc. #97) filed in this cause is hereby APPROVED and ACCEPTED by the court.
IT IS FINALLY ORDERED that Plaintiff Kristy Midkiff's Motion for Attorneys’ Fees and Costs filed May 20, 2021 (Doc. #88) is GRANTED. Midkiff shall recover $303,916.00 in attorney's fees, $6,733.78 in litigation expenses, and post-judgment interest at the rate of 0.05% per annum.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
Before the undersigned is Plaintiff Kristy Midkiff's Motion for Attorney's Fees and Costs. Dkt. 88. After reviewing the filings, the relevant case law, and the parties’ respective responses, and replies, the undersigned issues the following report and recommendation.
I. BACKGROUND
Midkiff brought this case against Defendant Prudential Insurance Company of America in March 2019, arguing that Prudential wrongly denied her long-term disability and life-insurance benefits in violation of the Employee Retirement Income Security Act of 1974. 29 U.S.C. §§ 1001 - 1461. After a bench trial in November 2020, the District Court issued its findings of fact and conclusions of law reversing Prudential's denial of life-insurance and long-term disability benefits. Dkt. 79, at 16.
Midkiff then filed for entry of bill of costs and a motion for attorney's fees. Dkts. 87,1 88. In her motion for attorney's fees, Midkiff seeks $303,916.00 in attorney's fees and $6,733.78 in costs to "help ensure that plaintiffs, like Midkiff, can continue to find competent counsel." Dkt. 88, at 9; Dkt. 95, at 5. Prudential responded to Midkiff's motion, and Midkiff filed a reply. Dkts. 92, 95. Prudential does not dispute that Midkiff is entitled to fees, but rather argues that the amount requested by Midkiff "is outside the bounds of recovery allowed by law" and should be reduced to $78,096.73. Dkt. 92 at 8-9. In her reply, Midkiff argues that Prudential's challenges to her fee motion "reflects its ongoing determination to strong-arm the very individual whose interests it is supposed to protect." Dkt. 95, at 5.
II. LEGAL STANDARDS
ERISA expressly permits a federal court, in its discretion, to award reasonable attorney's fees and costs to either party in a case brought pursuant to ERISA. See 29 U.S.C. § 1132(g)(1) ; Hardt v. Reliance Standard Life Ins. Co. , 560 U.S. 242, 256, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010). Prudential concedes that Midkiff has prevailed on the merits of this case, and is entitled fees. Dkt. 92, at 8. Having found that Midkiff is eligible for a fee award under § 1132(g)(1), the undersigned calculates the lodestar fee by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers, and then determines whether case-specific circumstances warrant adjustment of the lodestar fee. Perez v. Bruister , Nos. 3:13cv1001-DPJ-FKB, 3:13cv1081-DPJ-FKB, 2015 WL 5712883, at *2 (S.D. Miss. Sept. 29, 2015), aff'd , 653 F. App'x 811 (5th Cir. 2016). There is a "strong presumption that the lodestar figure—the product of reasonable hours times a reasonable rate—represents a ‘reasonable’ fee." Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air , 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). The burden is on the party moving for attorney's fees to establish that their requested fees are reasonable. La. Power & Light Co. v. Kellstrom , 50 F.3d 319, 324 (5th Cir. 1995) (per curiam).
III. DISCUSSION
After modifying her initial request, Midkiff moves for $303,916.00 in attorney's fees and $6,733.78 in costs to account for fees accumulated since Midkiff filed her motion in May 2021. Dkts. 88, 95. In support of her motion, Midkiff provided affidavits with summaries of counsels’ experience, a bill summary with time entries for each attorney and paralegal who worked on the matter on behalf of Midkiff, and affidavits from other attorneys in the Northern District of California confirming the reasonableness of counsel's requested hourly rates. Dkts. 88-1-88-6. In its response, Prudential argues that Midkiff's counsel's hourly rates are unreasonable and the total number of hours is excessive. Dkt. 92, at 10-25. The undersigned will address each of Prudential's objections to Midkiff's request for attorney's fees in turn.
First, Prudential argues that Midkiff erroneously tied her attorneys’ hourly fees to prevailing rates in the Northern District of California, where this case was initially filed and where her counsel is located, rather than those in the Western District of Texas. Dkt. 92, at 10-14. As such, Prudential's argument goes, Midkiff's requested rates are excessive and unreasonable compared to rates charged by attorneys of similar skill levels and experience in the Western District of Texas. Id. at 14-18. Midkiff responds that her complaint was properly filed in the Northern District of California, and only transferred to this district because Prudential moved for the transfer under 28 U.S.C. § 1404(a). Dkt. 95, at 6-9. Because her case was properly filed in the Northern District of California and she has established that her requested hourly rates are reasonable in that district, Midkiff argues that her requested fees should not be reduced on this basis. Id.
Generally, the "relevant market for purposes of determining the prevailing rate to be paid in a fee award is the community in which the district court sits." Tollett v. City of Kemah , 285 F.3d 357, 368 (5th Cir. 2002). An out-of-district counsel's " ‘home’ rates should be considered as a starting point for calculating" the reasonable hourly billing rate where "abundant and uncontradicted evidence prove[s] the necessity of [the movant's] turning to out-of-district counsel." McClain v. Lufkin Indus., Inc. , 649 F.3d 374, 382 (5th Cir. 2011). Midkiff filed her case in the Northern District of California, and this case was transferred to the Western District of Texas for the convenience of the parties and witnesses under § 1404(a) upon motion by Prudential. Dkts. 33, 42. Prudential argues that the transfer of this case to this district under § 1404(a) was predicated on a finding that Midkiff improperly filed her case in the Northern District of California, but the record does not bear this out. See Dkt. 41. Prudential appears to argue either that Midkiff should have retained Texas counsel to initiate her lawsuit in California or that after the transfer of this case to this district, Midkiff had an obligation to retain new counsel in Austin, Texas to pursue her claims—yet cites no authority to support these contentions. Dkt. 92, at 12-13. Prudential further fails to grapple with the fact that, unlike in other cases where movants sought attorney's fees for out-of-district counsel where the case was initially filed in the forum district, here, in contrast, Midkiff's case was properly filed in another district and transferred here under § 1404(a). Dkt. 41; see e.g., McClain , 649 F.3d at 381.
The undersigned rejects Prudential's attempts to heighten Midkiff's burden by insisting that she prove that she could not have retained local counsel for a case that was properly filed in the Northern District of California. In any event, Midkiff has met her burden of showing the necessity of turning to out-of-district counsel. Indeed, her out-of-district counsel properly filed this case in the Northern District to California after her previous Texas-based counsel lost her administrative appeal. Dkt. 95, at 6. Further, Prudential offers no support for its contention that Midkiff was obligated to replace her counsel, or risk lowering her award, upon transfer to this district or that she had to pursue this case with counsel who had previously lost her administrative appeal. See Dkt. 92, at 12.
Courts have found the use of out-of-district prevailing rates proper where a case is transferred for the convenience of the parties and witnesses under § 1404(a), rather than for improper venue pursuant to § 1406(a). See e.g., Polk v. N.Y. State Dep't of Corr. Servs. , 722 F.2d 23, 25 (2d Cir. 1983) ("If the suit had been properly maintainable in the Southern District and transferred for ‘the convenience of parties and witnesses, in the interest of justice,’ counsel would normally be entitled to fees at the rate prevailing in h[er] home district."); Prison Legal News v. Inch , 411 F. Supp. 3d 1198, 1206 (N.D. Fla. 2019) ("Where the case is transferred pursuant to § 1404(a), counsel is entitled to fees at the rate prevailing in h[er] home district."); Strickland v. Truckers Express, Inc. , No. CV 95-62-M-JCL, 2007 WL 496368, at *7-8 (D. Mont. Feb. 12, 2007) (applying market rate in Birmingham, Alabama after case was transferred to Montana on the basis of § 1404(a) because "under those circumstances ... the Plaintiffs should not be penalized by a reduction" to their counsel's rates). Because this case was transferred under § 1404(a), and there is no "indication that the suit was filed in the high-rate district with little prospect of litigation there but in the hope of securing a high fee," the undersigned finds the prevailing rates in the Northern District of California to be appropriate in determining the reasonable market rate for Midkiff's counsel. Polk , 722 F.2d at 25.
Midkiff has demonstrated that her requested rates are in line with those prevailing in the Northern District of California, and Prudential does not contest their reasonableness for that district. Dkts. 88, 92. Midkiff presented affidavits, including summaries of the qualifications of attorneys involved in the litigation, as well as information regarding the "individual's litigation skills generally," to support her counsel's requested hourly fees. See Dkts. 88-1, 88-2, 88-3; Sprint Sols., Inc. v. Taylor , No. 3:14-CV-4124-M-BF, 2016 WL 446669, at *5 (N.D. Tex. Jan. 8, 2016), report and recommendation adopted sub nom. Sprint Sols., Inc. v. Joseph Taylor III , No. 3:14-CV-4124-M-BF, 2016 WL 427481 (N.D. Tex. Feb. 4, 2016). Midkiff also included affidavits from other attorneys practicing in the Northern District of California, who confirmed that the hourly rates her counsel charges are reasonable in that community. See Dkts. 88-4, 88-5, 88-6; Tollett , 285 F.3d at 368 ("Generally, the reasonable hourly rate for a particular community is established through affidavits of other attorneys practicing there."). Midkiff has thus established that her counsel's requested rates are aligned with those prevailing in the Bay Area for "similar services by lawyers of reasonably comparable skill, experience and reputation." McClain , 649 F.3d at 381 (citing Blum v. Stenson , 465 U.S. 886, 896 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ).
The undersigned next turns to Prudential's contention that the number of hours claimed by Midkiff are excessive compared to those in "average" ERISA cases, and include inappropriate time entries. Dkt. 92, at 19-25. The party seeking attorney's fees bears the burden of documenting the appropriate hours expended. Kellstrom , 50 F.3d at 324. The party requesting attorney's fees must also show that "billing judgment" was exercised, and that unproductive, excessive, or redundant hours were omitted from its requested amount. Walker v. U.S. Dep't of Hous. & Urban Dev. , 99 F.3d 761, 769 (5th Cir. 1996). The court should eliminate all hours that are excessive or duplicative. Watkins v. Fordice , 7 F.3d 453, 457 (5th Cir. 1993). The court may also reduce hours that are too vague to permit meaningful review. Kellstrom , 50 F.3d at 326. The hours that are not eliminated should be those "reasonably expended on the litigation." Watkin s, 7 F.3d at 457. If the party seeking fees does not show billing judgment, the court may reduce the award by a percentage to substitute for the exercise of billing judgment. Id.
Prudential argues that Midkiff's counsel's hours spent on this litigation are "wildly excessive in comparison to similar ERISA cases and [are] thus unreasonable." Dkt. 92, at 19 (citing Wegner v. Standard Ins. Co. , 129 F.3d 814, 823 (5th Cir. 1997) ). Midkiff responds that the large number of hours spent on this case was "largely dictated by Prudential's own actions, including its initial baseless dispute of the de novo standard of review, its multiple unnecessary motions, and its opposition to a streamlined briefing schedule." Dkt. 95, at 9-10. Midkiff also points out that Prudential "greatly inflat[ed]" the number of hours it claims are unwarranted by "double-counting" the same time entries in the four tables it presented with its motion showing the hours it claims are flawed. Id. at 11. Given that this case was procedurally more drawn out than other ERISA cases, at least in part because of Prudential's litigiousness, the undersigned declines to find that the overall hours billed by Midkiff's counsel should be reduced merely because other ERISA cases have been resolved faster.
Prudential further argues that Midkiff's counsel's time entries contain excessive or redundant entries. Dkt. 92, at 20. Specifically, Prudential challenges the 20.9 hours billed for researching demonstrative evidence, arguing these hours should be subtracted from Midkiff's fee award because demonstrative evidence was never presented to the Court, and is "unsupportable in the context of an ERISA claim for benefits where the court does not consider evidence outside the administrative record." Dkt. 92, at 20. As Midkiff points out, however, Prudential's argument ignores the fact that during the trial, her counsel used a "3-D printing of the spinal instrumentation that was implanted in Midkiff's spine" to clarify the surgical report in the administrative record, and Prudential did not object to her the use of this demonstrative aid during trial. Dkt. 95, at 11-12; Dkt. 95-1, at 6-7. The undersigned, therefore, declines to reduce Midkiff's counsel's fee award on this basis.
Prudential also contends that the hours billed for the presence of multiple attorneys at mediation and at the bench trial should be reduced because only one attorney should have been present. Dkt. 92, at 20-21. Midkiff responds that because more than one attorney was required at these proceedings, fees for these attorneys should not be considered duplicative, and notes that Prudential had the same number of attorneys appear at trial. Dkt. 95, at 11; Dkt. 95-1, at 5 ("Although I took on the lead at the mediation and most hearings, because of her grasp of the details of the case, I viewed [Ms. Jalali's] participation and involvement as critical in case a matter arose with which she was more familiar."); see id. ("I note that Prudential had two attorneys appear on its behalf at the bench trial hearing."). While Prudential is certainly correct that courts need not award fees for "hours spent in duplicative activity or spent in the passive role of an observer while other attorneys performed," here Midkiff has presented evidence that the additional attorney who attended the mediation and trial participated "in a supporting role" rather than merely as a passive observer. Dkt. 95-1, at 5; Flowers v. Wiley , 675 F.2d 704, 705 (5th Cir. 1982) ; Coleman v. Houston Indep. Sch. Dist. , 202 F.3d 264, 1999 WL 1131554, at *6 (5th Cir. 1999) (finding duplication where plaintiff did not allege that additional attorney "actively participated, even in a supporting role, during the deposition"); Walker , 99 F.3d at 768 ("[c]ompensation is sought for more than one attorney's time at depositions, hearings, negotiations, or other activities only if there was a legitimate need for the involvement of more than one attorney"). The undersigned thus also declines to reduce Midkiff's proposed lodestar amount on this basis.
Prudential next argues that Midkiff's counsel's bills are "rife with vague and block-billed entries" and should be reduced "by a minimum of 15% to account for the effect of block-billing." Dkt. 92, at 21-22; Dkt. 92-8. Midkiff responds that its billing entries are more descriptive than those approved by the Fifth Circuit in Kellstrom. Dkt. 95, at 12. In that case, the Fifth Circuit upheld the district court's refusal to reduce hours for entries "scanty as to subject matter," including vague entries such as "revise memorandum," "review pleadings," "review documents," and "correspondence." Kellstrom , 50 F.3d at 326 n.11. While the court noted that these vague entries lacked the "required specificity to support completely the fees requested," id. , the Fifth Circuit nonetheless approved a billing entry in another case for "legal research" because there was "nothing patently unreasonable about conducting preliminary research on a case once it is initiated," Coleman , 1999 WL 1131554, at *7. Here, none of Midkiff's counsel's time entries are as vague as those previously allowed by the Fifth Circuit, and the undersigned finds that in light of the overall case, the entries appear to be for hours "reasonably expended" in successfully litigating this case. Dkt. 92-8, at 2; cf. Hensley v. Eckerhart , 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ("The district court also should exclude from this initial fee calculation hours that were not ‘reasonably expended.’ ").
Prudential also complains that hours billed by paralegals or for other clerical tasks "are not recoverable overhead expenses," and in any event, include vague or block-billed entries. Dkt. 92, at 23-24. Initially, the undersigned rejects Prudential's argument that work performed by paralegals is not recoverable because either their tasks are not similar enough to those typically performed by lawyers or because they are block-billed. Dkt. 92, at 23-24; Dkt. 92-9. Contrary to Prudential's contentions, the paralegal time entries here are substantially more detailed than those found to be "woefully inadequate" in Walker , where the court confirmed that fees for paralegal time are recoverable if customary for the relevant legal market. 99 F.3d at 773 ("Fees for paralegal time are recoverable if such is the customary practice in the relevant legal market."); see also Kroll v. Kaiser Found. Health Plan Long Term Disability Plan , No. C 09-01404 LB, 2011 WL 13240371, at *7 (N.D. Cal. Aug. 25, 2011), report and recommendation adopted , No. C 09-01404 JSW, 2011 WL 13244861 (N.D. Cal. Oct. 26, 2011) (recommending award of paralegal fees in ERISA case). To the extent Prudential complains that Ms. Jalali's entries contain clerical tasks, the undersigned finds that almost of all of the entries highlighted by Prudential included tasks that, though routine, might have properly been performed by an attorney, and in any event, make up a miniscule portion of Midkiff's requested fees. See Dkt. 92-9. As such, the undersigned declines to subtract these fees from Midkiff's requested award.
Prudential next attacks Midkiff's request for online research costs. Midkiff, however, supports her request with cases in this district and others that have allowed for the recovery of online research costs. Dkt. 96, at 13-14. For example, the court in Camargo v. Trammell Crow Int. Co. found that online research costs were recoverable, reasoning that "[i]f this research had been done manually by an attorney sitting in the library reading through books rather than sitting before a computer screen, nobody would dispute that the attendant fees would be properly classified as attorney's fees and not costs." 318 F. Supp. 2d 448, 451 (E.D. Tex. 2004) ; see also Structural Metals, Inc. v. S & C Elec. Co. , No. SA-09-CV-984-XR, 2013 WL 3790307, at *12 (W.D. Tex. July 19, 2013), aff'd , 590 F. App'x 298 (5th Cir. 2014) ("The rationale is that allowing such fees ultimately results in a lower fee award because the attorney should be able to do the research more efficiently.").
On the other hand, some courts in this circuit have declined to award online research costs as attorney's fees, where they found them more properly characterized as "firm overhead," or where entries only described charges as "Westlaw research" without further detail. Chacon v. City of Austin, Tex. , No. A-12-CA-226-SS, 2015 WL 4138361, at *10 (W.D. Tex. July 8, 2015). Given that Fifth Circuit has not yet opined on this issue, and here counsel's request for online research costs are more detailed than those rejected in other cases (the charges here are broken up by month billed, Dkt. 88-1, at 47-48, 52), the undersigned declines to reduce Midkiff's requested fees on this basis since "such [research] fees are normally charged to the client." Structural Metals , 2013 WL 3790307 at *12 ("Courts have held that, if such fees are normally charged to the client, the court may award computer-assisted research costs as part of its attorneys’ fees award.").
Lastly, Prudential claims that Midkiff's counsel cannot recover fees associated with her "unsuccessful challenge to Prudential's motion to transfer venue," relying on case law standing for the proposition that a party may not recover fees for "hours spent on unsuccessful claims." Dkt. 92, at 24-25 (citing Hensley , 461 U.S. at 434, 103 S.Ct. 1933 ("the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee")). Midkiff responds that the cases cited by Prudential, and Fifth Circuit precedent generally, in fact hold that "a plaintiff who has won substantial relief should not have his attorney's fees reduced simply because the Court did not adopt each contention raised." Dkt. 95, at 14 (quoting Halupka v. Federal Express Corp. , No. 4:03-cv-350, 2006 WL 8441053, at *3 (E.D. Tex. June 22, 2006)) (citing Abrams v. Baylor Coll. of Med. , 805 F.2d 528, 536 n.10 (5th Cir. 1986) (citing Hensley , 461 U.S. at 440, 103 S.Ct. 1933 )). The undersigned agrees.
Prudential cites Johnson v. Big Lots Stores, Inc. , 639 F. Supp. 2d 696, 703 (E.D. La. 2009), for the proposition that a plaintiff may never recover fees associated with an unsuccessful motion. Dkt. 92, at 24-25. Yet the court in Johnson found that plaintiff's counsel could not recover for unsuccessful motions plaintiff filed as part of an unsuccessful effort to maintain a collective action, whereas here Midkiff seeks compensation for time spent briefing a motion to transfer filed by Prudential and unrelated to the merits of Midkiff's claims. Johnson , 639 F. Supp. 2d at 703. Given that Midkiff was successful on her claim, the undersigned finds that Midkiff's counsel may recover fees related to Prudential's motion to transfer. Dkts. 79, 86; Hensley , 461 U.S. at 440, 103 S.Ct. 1933.
Having found that Midkiff has met her burden of demonstrating that her counsel's requested fees are reasonable, and applying the "strong presumption that the lodestar figure" is reasonable, the undersigned will recommend granting her motion for attorney's fees in its entirety. Delaware Valley , 478 U.S. at 565, 106 S.Ct. 3088.
IV. RECOMMENDATIONS
For the reasons set forth above, the undersigned RECOMMENDS that the District Court grant Midkiff's Motion for Attorney's Fees, Dkt. 88, and award Midkiff, to recover from Prudential, $303,916.00 in attorney's fees, $6,733.78 in litigation expenses, and post-judgment interest.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n , 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within 14 days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C) ; Thomas v. Arn , 474 U.S. 140, 150-53, 106 S.Ct. 466, 88 L.Ed.2d 435 ; Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).