Opinion
CIVIL ACTION NO: 02-3531 SECTION: "J" (4)
December 30, 2003
ORDER AND REASONS
On September 10, 2003, the defendant, Unified Staffing Associates, Inc. ("Unified"), filed a Motion to Compel Discovery Responses (doc. # 14) seeking an order compelling the plaintiff, Tasch, Inc., to respond to the discovery propounded to the plaintiff on June 4, 2003. A hearing on the motion was held on October 1, 2003. The plaintiff did not file any opposition to the motion or appear before the Court on the hearing date to state any opposition.
The Court granted the motion as unopposed, with costs. With respect to fees and costs, the Court directed the defendant to submit the documentation required by Local Rule 54.2 no later than October 8, 2003. The Court further ordered that any opposition be filed no later than October 10, 2003.
Rec.Doc. No. 23.
On October 8, 2003, Unified filed a Motion for Attorney Fees and Costs (doc. # 28). The defendant seeks to recover fees and costs in the amount of $1,425.00 for 9.5 hours expended in bringing the motion to compel. Upon review of the information submitted, however, the Court found that the defendants failed to submit sufficient information for the Court to make a determination of the "reasonable hourly rate."
Though the defendants did not explicitly inform the Court of the hourly rate charged by the participating attorney, $1,425.00 for 9.5 hours equals exactly $150.00 per hour.
Thereafter, the Court ordered counsel for the defendant to provide the Court with (1) an affidavit attesting to his education, background, skills and experience and (2) sufficient evidence of rates charged in similar cases by other local attorneys with similar experience, skill and reputation no later than October 28, 2003.
Rec. Doc. No. 29.
On October 28, 2003, counsel for the defendant submitted the information requested by the Court. Prior to the defendant's supplemental submission, the plaintiff filed a letter with the Court stating that there is no objection to the defendant's motion for attorney fees. The Court is now ready to rule on the amount of attorney's fees that should be awarded.
Rec. Doc. No. 36.
Rec. Doc. No. 35.
I. Background
The plaintiff filed the instant breach of contract action alleging that the defendants', Unified and Zurich American Insurance Company ("Zurich"), breach of contract and failure to provide Worker's Compensation benefits caused the plaintiff monetary damages. The plaintiff alleges that it entered into an employee leasing agreement in September of 1997 with Unified, agreeing that the contract could not be cancelled without thirty (30) days notice and that Unified would insure those employees leased to Tasch for risks of Worker's Compensation.
The plaintiff further alleges that Zurich provided the insurance covering Worker's Compensation risks for the benefit of Unified and Tasch, and the certificates of insurance issued by Zurich and/or its agent, named Tasch as an additional insured. The plaintiff allegedly withheld approximately $75,000.00 from Unified because of a dispute related to an employee's injury for which insurance coverage was denied. Subsequently, Unified terminated the employee-leasing contract retroactive to April 7, 2002, and further denied insurance coverage to another employee who was injured during the retroactive period.
The plaintiff also alleges that after Unified terminated the contract, Zurich cancelled its certificate of insurance issued to customers of the plaintiff, resulting in the rejection of the plaintiff's low bid for a subcontract. As a result, the plaintiff allegedly suffered loss profits in the amount of $309,075.00.
Pursuant to discovery in this matter, Unified propounded Interrogatories and Requests for Production of Documents to the plaintiff on June 4, 2003. After more than 30 days passed, counsel for Unified scheduled a Rule 37 Conference with the plaintiff for the purpose of resolving the dispute without court intervention. The plaintiff failed to participate in the conference. Subsequently, Unified filed a motion to compel seeking an order compelling the production of documents and an assessment of costs and fees against the plaintiff for its failure to respond to the requests.
The plaintiff did not oppose the motion to compel and did not appear for the hearing to state any opposition. The Court found that fees should be assessed against the plaintiff for failing to respond to the defendant's requests. II. Analysis A. Rule 37
Motions to compel discovery responses are governed by Rule 37 of the Federal Rules of Civil Procedure. That rule provides that "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." FED. R. Civ. P. 37(a)(2). Rule 37(a)(4)(A), which governs sanctions under the rule, requires the award of reasonable expenses, including attorney's fees, unless the motion to compel discovery was unjustified or other circumstances make the award unjust. Lischka v. Tidewater Services, Inc., 1997 WL 27066, at *4 (E.D. La. Jan. 22, 1997). The rule provides:
If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
The defendant, Unified, seeks to recover fees and costs in the amount of $1,425.00 in attorney's fees incurred in bringing the motion to compel. The defendant is represented by Chadwick W. Collings. Mr. Collings contends that he expended 9.5 hours at an hourly rate of S150.00 in bringing the Motion to Compel.
The plaintiff does not oppose the itemization of costs submitted by the defendant, the hours expended on bringing the motion, or the hourly rate requested by the defendant. B. Standard
The determination of a reasonable attorney's fee award involves a two-step process. See Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999). The court must first determine the "lodestar" by multiplying the reasonable number of hours expended and the reasonable hourly rate for each participating attorney. See Hensley, 461 U.S. at 433. This "lodestar" method serves as the initial estimate of a reasonable attorney's fee. Blum v. Stenson, 465 U.S. 886, 888 (1984).
The second step involves the application of twelve factors the Fifth Circuit applies in determining what amount is warranted. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (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 is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount of money 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.
Once the lodestar is computed by multiplying the reasonable number of hours by a reasonable hourly rate, the court may adjust the lodestar upward or downward depending on its analysis of the twelve factors espoused in Johnson. Dodge v. Hunt Petroleum Corp., 174 F. Supp.2d 505, 508 (N.D. Tex. 2001). Thus, in light of the Johnson factors, the Court may reduce the award resulting from the lodestar calculation if the documentation of hours worked is inadequate or if the calculation includes hours that were not "reasonably expended." See Hensley, 461 U.S. at 433-34. C. The Lodestar 1. Reasonable Fee
The party seeking attorney's fees has the burden of establishing the reasonableness of the fees by "submitting evidence supporting the hours worked and the rates claimed." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3rd Cir. 1990) (citing Hensley, 461 U.S. at 433). Thus, counsel for the defendant "must produce satisfactory evidence-in addition to [his] 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." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984); Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
The Court must determine the reasonable number of hours expended in the litigation and the reasonable hourly rate for the participating attorneys. See Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The lodestar is then computed by multiplying the number of hours by the reasonable hourly rate. Id. 2. Reasonable Hourly Rate
Attorneys' fees are to be calculated at the prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 895 (1984). "For the purposes of determining lodestar for attorney fees, relevant `community' is one in which [the] district court sits regardless of [the] fact that much of the work must be performed away from district court's community or that high-priced attorneys come into jurisdictions with much lower market rates . . ." Donnell v. United States, 240 F.2d 682 (D.C. Cir. 1982).
The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987). Satisfactory evidence of the reasonableness of the rate, at a minimum, is more than the affidavit of the attorney performing the work. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Blum, 465 U.S. at 896 n. 11)). It must also speak to rates actually billed and paid in similar lawsuits. Thus, testimony that a given fee is reasonable is not satisfactory evidence of market rates. See Hensley, 461 U.S. at 439 n. 15.
Evidence of rates may be adduced through direct or opinion evidence as to what local attorneys charge under similar circumstances. The weight to be given to the opinion evidence is affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breath of the sample of which the expert has knowledge. Norman, 836 F.2d at 1299.
Here, the defendant's counsel, Chadwick W. Collings ("Collings"), contends that his hourly rate is $150.00. As proof of the reasonableness of the rate charged, the defendant provided the affidavit of Collings, the attorney performing the work, and William J. Faustermann, an attorney in Slidell, Louisiana.
a. Affidavit of Chadwick W. Collings
Collings states that he is a 1997 graduate of the LSU Law Center, and has been admitted to the Louisiana bar since April of 1998. Collings further states that prior to his general practice with the Thornhill Law Firm in Slidell, he worked with two other law firms mainly practicing insurance defense litigation. Collings states that his current hourly rate is $150.00 per hour, which he believes to be a competitive rate in the greater New Orleans area given his experience.
b. Affidavit of William J. Faustermann
In addition to the Collings' affidavit, the defendant submitted the affidavit of William Faustermann ("Faustermann"). Faustermann states that he is an attorney who is licensed to practice law in Louisiana, and has had a general practice in Slidell for the past twenty-four years. Faustermann further states that his current hourly rate is $190.00 per hour. Faustermann also states that he is familiar with Collings' background and experience and he believes Collings' hourly rate of S1 50.00 per hour is an appropriate rate for the Slidell area.As an initial matter, the Fifth Circuit has held that "when an attorney's customary billing rate is the rate at which the attorney requests the lodestar be computed and that rate is within the range of prevailing market rates, the court should consider this rate when fixing the hourly rate to be allowed. When that rate is not contested, it is prima facie reasonable." Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995). The rate requested by Collings is prima facie reasonable because it is not contested by the plaintiff.
Further, a review of cases decided in this Court reveals that an award of S150.00 per hour is reasonable here. In Cross Equipment Ltd. v. Hyundai Merchant Marine (America) Inc., the Court found that the hourly rate of $150.00 charged by the lead attorney who had primarily practiced maritime law for 24 years was reasonable. The Court took judicial notice of the fact that this rate is "indeed fair and reasonable and `below-market' for attorneys with comparable maritime experience practicing maritime law in New Orleans." 1999 WL 169433 at *1 (E.D. La. 1999). see also Smith v. Berry Co., No. 96-1899, 1997 WL 736697, at *4 (E.D. La. Nov. 21, 1997) (holding that S150.00 per hour was reasonable in an employment discrimination action after finding that counsel had practiced employment discrimination law for eleven years and had become an authority in the field); see also United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 46 F. Supp.2d 546, 569 (E.D.La. 1999), vacated on other grounds, 244 F.3d 486 (5th Cir. 2001) (awarding high end hourly rates of $250.00, $175.00 and $150.00 for partner-level attorneys in quit claim case because of the particular difficulty of the case and the lucrative and less risky business the lawyers were precluded from accepting); Police Ass'n of New Orleans v. City of New Orleans, 951 F. Supp. 622, 628 (E.D. La. 1997) (holding that $150.00 per hour was reasonable in a Section 1983 action based upon plaintiffs' counsel's 22 years of experience as a civil rights attorney and the Judge's own knowledge of attorney's fees in this district).
Considering the foregoing, the Court finds that the rate of $150.00 appears to be reasonable based on Collings' qualifications and experience and the prevailing market rates in this legal community at the time he performed the work.
3. Reasonable Number of Hours Expended
The party seeking attorneys' fees must present adequately documented time records to the court. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded from any award of attorney's fees. Raspanti v. United States Dept. of the Army, 2001 WL 1081375, at *6. Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, or redundant hours" when seeking fee awards. Id. (citing Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996)). The fee seeker's attorneys are "charged with the burden of showing the reasonableness of the hours they bill and, accordingly, are charged with proving that they exercised billing judgment." Walker, 99 F.3d at 770. When billing judgment is lacking, the court must exclude from the lodestar calculation the hours that were not reasonably expended. Hensley, 461 U.S. at 434.
a. Hours Not Expended on Motion to Compel
Although the plaintiff filed no opposition to the time entries submitted by the defendant, the Court finds that one of the time entries submitted by the defendant is not in connection with the motion to compel. On May 27, 2003, the defendant claims to have spent 1.5 hours reviewing the file and drafting discovery requests to the plaintiff. However, these expenses would have been incurred in the discovery process regardless of the fact that the defendant later found the need to file the motion to compel. Therefore, the Court will reduce the number of hours Collings submitted by 1.5 hours for this particular time entry.
b. Excessive/Duplicative Hours
A review of the time sheets submitted by Collings indicates that one of the entries is excessive. On October 1, 2003, Collings claims to have expended 5 hours preparing for, traveling to and from, and attending the motion to compel hearing.
i. Travel time
Counsel for the defendant did not specify the amount of time that he allocated to travel to and from the hearing on the motion to compel. However, his office is located in Slidell, Louisiana, roughly 35 miles from New Orleans. The Court's own research reveals that travel from Collings' office to the Eastern District of Louisiana takes approximately 45 minutes. The Court, however, will allow one hour each way for travel, taking into account possible travel delays.
See http://www.mapquest.com. The Court obtained the mileage and time by requesting driving directions from Collings' office to the Courthouse for the Eastern District of Louisiana.
The defendant requests reimbursement at Collings' full hourly rate for the time expended by traveling to New Orleans for the hearing. However, attorney travel time should be compensated at a lower rate than legal work. Courts in this Circuit typically compensate travel time at 50% of the attorney's rate in the absence of documentation that any legal work was accomplished during travel time. Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) (in Voting Rights Act case involving legislative redistricting, compensation for attorneys travel time was awarded at one half of the hourly rate allowed for the attorneys); Jiminez v. Paw-Paw's Camper City, Inc., 2002 WL 257691, at *23 (E.D. La. Feb. 22, 2002) (awarding attorney fees for travel time at one-half of normal hourly rate in employment discrimination case); Paul v. CMC Manufacturing, Inc., 1998 WL527102, at *2 (N.D. Miss. Aug. 6, 1998) (travel time should be billed at one-half the hourly rate of the lawyer involved); Jackson v. Capital Bank Trust Co., 1994 WL 118332, at *26-27 (E.D. La. March 30, 1994).
The defendant provided no documentation that any legal work was accomplished during travel time in this case. Therefore, Collings' rate for the time entries that reflect travel time will be reduced by 50%. The defendant may recover for 2 hours at a rate of $75.00. Accordingly, for the two hours allocated by the Court for travel, the defendant is entitled to attorney's fees in the amount of $150.00.
The 2 hours represents the approximate amount of time it should have taken Collings to travel to and from New Orleans from Slidell, Louisiana.
ii. Hearing on motion to compel
Counsel for the defendant further did not specify the amount of time that he allocated to attending the hearing on the motion to compel. However, after reviewing a tape recording of the hearing, the Court finds that the hearing lasted for one hour. The Court will allow the defendant to recover fees for this hour expended at the hearing on the Motion to Compel.
iii. Preparation for the hearing on the motion to compel
Again, the defendant seeks to recover fees for time expended for preparing for the hearing on the motion to compel, but does not specify the amount of time that was allocated to this particular task. Notwithstanding this, the defendant has not provided the Court with information specifying what "preparation" for the hearing on the motion involved. Nor has the defendant provided any information to establish that the time expended for such "preparation" was necessary and reasonable. Therefore, the defendant will not be allowed to recover fees for time spent generally on preparation.As such, the defendant will be allowed to recover fees for 3 hours of the 5 hours requested in the October 1, 2003, time entry. In summary, the 9.5 hours requested by the defendant will be reduced by a total of 3.5 hours. Therefore, the lodestar amount of reasonable hours multiplied by the reasonable rates set forth above is generally reasonable in this case.
4. The Johnson Factors
"The lodestar . . . is presumptively reasonable", and should be enhanced or reduced only in exceptional cases. Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) (citing City of Burlington v. Dague, 505 U.S. 557, 567 (1992)). After carefully reviewing the record, the Court finds that the Lodestar amount is reasonable and finds that no further reduction or enhancement is required. In making this recommendation, the Court has considered and applied the factors articulated in Johnson as required by the Fifth Circuit.
Accordingly,
IT IS ORDERED that the Motion Attorney Fees and Costs (doc. #28) is GRANTED. The defendant is entitled to recover for 4 hours at an hourly rate of $150.00, and 2 hours at an hourly rate of $75.00, or an amount of $750.00.