Moody v. Associated Wholesale Grocers, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DE’ON MOODY CIVIL ACTION

VERSUS NO: 17-10290

ASSOCIATED WHOLESALE GROCERS, SECTION: “H” (4)

INC.

ORDER

Before the Court is Defendant’s Motion for Attorney’s Fees (R. Doc. 98) filed by

Defendant Associated Wholesale Grocers, Inc. (“AWG”), seeking an order from the Court to fix

attorneys’ fees in the amount of $1,953.00. The motion is unopposed. The motion was submitted

on September 25, 2019.

I. Background

On August 30, 2019, the Court granted Defendant’s Motion to Compel Discovery (R. Doc.

87) as unopposed. Defendant now seeks an order awarding attorney’s fees for having to obtain an

order compelling the Opt-In Plaintiffs to respond to discovery requests pursuant to Federal Rule

of Civil Procedure 37. The matter is an action by 18 current and former employees of Defendant

Associated Wholesale Grocers who were employed as supervisors and treated as exempt

employees under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Since the filing of this

instant motion, the District Judge has decertified the action dismissing all Opt-In Plaintiffs without

prejudice. R. Doc. 128.

As to this instant action, Defendant seeks an award of attorney’s fees for Defendant’s

enrolled counsel of records, Attorney Eric R. Miller. R. Doc. 98. Specifically, Defendant seeks a

total of $1,953.00 for 6.20 reasonably expended hours pursuing its Motion to Compel. R. Doc. 98-

2, p. 3. No opposition has been filed contesting the reasonableness of the hours expended or the

reasonableness of the attorney’s rate.

II. Standard of Review

The Supreme Court has specified that the “lodestar” calculation is the “most useful starting

point” for determining the award for attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). Lodestar is computed by “. . . the number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate.” Id. The lodestar calculation, “. . . provides an objective

basis on which to make an initial estimate of the value of a lawyer’s services.” Id. Once the lodestar

has been determined, the district court must consider the weight and applicability of the twelve

factors delineated in Johnson. See Watkins v. Forcide, 7 F.3d 453, 457 (5th Cir. 1993).1

Subsequently, if the Johnson factors warrant an adjustment, the court may make modifications

upward or downward to the Lodestar. Id. However, the Lodestar is presumed to be a reasonable

calculation and should be modified only in exceptional circumstances. Id. (citing City of

Burlington v. Dague, 505 U.S. 557, 562 (1992)).

The party seeking attorney’s fees bears the burden of establishing the reasonableness of the

fees by submitting “adequate documentation of the hours reasonably expended” and demonstrating

the use of billing judgement. Creecy v. Metro. Prop. & Cas. Ins. Co., 548 F. Supp. 2d 279, 286

(E.D. La. 2008) (citing Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir.1997)).

1 The twelve Johnson factors are (1) the time and labor involved; (2) the novelty and difficulty of the questions; (3)

the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due

to this case; (5) the customary fee; (6) whether fee is fixed or contingent; (7) time limitations; (8) the amount

involved and results obtained; (9) the experience, reputation and ability of counsel; (10) the “undesirability” of the

case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974).

III. Reasonable Hourly Rate

The “appropriate hourly rate . . . is the market rate in the community for this work.” Black

v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing Smith & Fuller, P.A. v. Cooper Tire

& Rubber Co., 685 F.3d 486, 490 (5th Cir.2012)). Moreover, the rate must be calculated “at the

‘prevailing market rates in the relevant community for similar services by attorneys of reasonably

comparable skills, experience, and reputation.’” Int’l Transp. Workers Fed’n v. Mi-Das Line, SA,

13–00454, 2013 WL 5329873, at *3 (E.D. La. Sept. 20, 2013) (quoting Blum v. Stenson, 465 U.S.

886, 895 (1984)). The applicant bears the burden of producing satisfactory evidence that the

requested rate is aligned 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 necessarily includes an affidavit of

the attorney performing the work and information of rates actually billed and paid in similar

lawsuits. Blum, 465 U.S. at 896 n.11. However, mere testimony that a given fee is reasonable is

not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439 n.15. Finally, if the hourly

rate is not opposed, then it is prima facie reasonable. Powell v. C.I.R., 891 F.2d 1167, 1173 (5th

Cir. 1990) (quoting Islamic Ctr. of Mississippi v. City of Starkville, 876 F.2d 468, 469 (5th Cir.

1989)).

Here, Defendants seek to recover the attorney’s fees for Attorney Eric R. Miller with The

Kullman Firm, ALPC at an hourly rate of $315.00. Miller has provided an affadvit attesting that

he has practiced almost exclusively in the area of labor and employment law since his graduation

from LSU Law School in 1990. R. Doc. 98-2. Miller is licensed in Louisiana, since 1992, and

Texas, since 1990. Id. Miller is also Board Certified in Labor and Employment Law by the Texas

Board of Legal Specializations since 1996. Id. In addition, Miller represents that he is a regular

speaker at labor and employment seminars and that he has authored various papers, articles, and

legal surveys on various labor law and employment topics. Id.

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 breadth of the sample of which the expert has knowledge.

Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); see also

White v. Imperial Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28,

2005) (recognizing that attorneys customarily charge their highest rates only for trial work, and

lower rates should be charged for routine work requiring less extraordinary skill and experience).

In support of this request, Defendant cites to, inter alia, Soonhee Kim v. Ferdinand, No.

CV 17-16180, 2018 WL 1635795, at *4 (E.D. La. Apr. 5, 2018) (finding attorneys’ rates, ranging

from $355.00 to $550.00, reasonable), Mr. Mudbug, Inc. v. Bloomin' Brands, Inc., No. CV 15-

5265, 2017 WL 736044, at *2 (E.D. La. Feb. 24, 2017), aff'd sub nom. Mr. Mudbug, Inc. v.

Bloomin Brands, Inc., No. CV 15-05265, 2017 WL 2274954 (E.D. La. May 25, 2017) (finding

hour rate of $300 for attorney with 17 years of experience reasonable), and Offshore Marine

Contractors, Inc. v. Palm Energy Offshore, LLC, No. CIV.A. 10-4151, 2014 WL 5039670, at *8

(E.D. La. Sept. 25, 2014) (finding that hourly rates of $325, $275, and $225 for attorneys with 19,

7, and 4 years of experience, respectively, reasonable).

Given Attorney Miller’s qualifications and nearly thirty (30) years of experience, and as

the hourly rate of Attorney Miller was not contested by Plaintiffs, the rate of the billing attorney

is deemed reasonable. See Powell v. C.I.R., 891 F.2d 1167.

IV. Hours Reasonably Spent on Litigation

Next, the Court must determine the reasonable time expended on the litigation. The party

seeking the fee bears the burden of documenting and supporting the reasonableness of all-time

expenditures that compensation is sought. Hensley, 461 U.S. at 437. The “[c]ounsel for the

prevailing party should make a good faith effort to exclude from fee request hours that are

excessive, redundant, and otherwise unnecessary…” Id. at 434. Hours that are not properly billed

to one’s client also are not properly billed to one’s adversary. Id. The Supreme Court calls on fee

applicants to make request that demonstrate “billing judgement”. Id. The remedy for failing to

exercise “billing judgment” is to exclude hours that were not reasonably expended. See Hensley,

461 U.S. at 434; Walker v. City of Mesquite, 313 F.3d 246, 251 (5th Cir. 2002) (quoting Walker v.

HUD, 99 F.3d 761, 770 (5th Cir.1996)) (“If there is no evidence of billing judgment, however,

then the proper remedy is not a denial of fees, but a reduction of ‘the hours awarded by a percentage

intended to substitute for the exercise of billing judgment.’”). Alternatively, this Court can conduct

a line-by-line analysis of the time report. See Green v. Administrators of the Tulane Educational

Fund, 284 F.3d 642, 662 (5th Cir.2002) overruled on other grounds by Burlington Northern and

Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

When the motion for attorney’s fees is in connection to a Rule 37(a) motion to compel, the

reasonable hours are further limited to only those hours directly connected to the motion to compel.

Stagner v. W. Kentucky Navigation, Inc., No. CIV.A. 02-1418, 2004 WL 253453, at *6 (Roby, K.)

(E.D. La. Feb. 10, 2004) (“However, Rule 37(a) does not contemplate costs incurred by the party

in the normal course of litigation, absent a direct relation to the motion to compel.”).

The Court, as an initial matter, notes that Attorney Miller states that he has exercised billing

judgment. R. Doc. 98-1, p. 6 and R. Doc. 98-2, p. 2 (Miller noting that he expended 5.8 hours for

the benefit of AWG). In sum, Miller attests that he spent a total 6.2 reasonable hours on the motion

to compel. The Court will proceed with determining the reasonableness of the hours billed.

First, the Court notes that Local Rule 54.2 requires contemporaneous billing records. LR

54.2. The Fifth Circuit has consistently held the Court may “reduce the number of hours awarded

if the documentation is vague or incomplete.” Louisiana Power & Light Co. v. Kellstrom, 50 F.3d

319, 324 (5th Cir. 1995) (finding ten percent reduction appropriate for inadequate documentation

of the hours and fees requested) (citing Alberti v. Klevenhagen, 896 F.2d 927, 931 (5th Cir.),

opinion vacated in part on reh'g on other grounds, 903 F.2d 352 (5th Cir. 1990) (finding no error

in reducing total time by percentage when billing hours were based on reconstructed time records)

and Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987) (reducing where the

documentation and recordkeeping of hours is inadequate, and attorney simply purports to have

exercise billing judgment).

Here, while Attorney Miller submitted daily time records, Miller altered the time records

before submitting them to the Court and deleted 5.8 hours from his time entries. A

contemporaneous time record reflects those records “living, occurring, or existing at the same

time” and not breakdown records altered after the fact. See Contemporaneous, Black's Law

Dictionary (11th ed. 2019). While Attorney Miller states that he exercised billing judgment, it is

difficult for the Court to make an assessment and verify that claim when Defendant only provides

the Court with an excerpt of the billing records. Defendant’s Motion to Compel (R. Doc. 87) is

two (2) pages in length and Defendant’s corresponding memorandum in support is three and a half

(3.5) pages in length with minimal law and legal analysis. Still, because of the detailed nature of

the excerpted portion of the billing records, the Court gives Defendant the benefit of the doubt.

Next, the Court notes the entry made on July 16, 2019 for 0.8 hours. R. Doc. 98-2, p. 2.

Miller attests during this time he “[d]eveloped deposition and discovery strategy based on

opposing counsel’s failure to respond to repeated requests.” Id. “While Rule 37(b) allows a court

to assess sanctions against a party for failure to obey an order compelling the party to provide or

permit discovery, Rule 37(a) only allows a court to award fees and expenses incurred in securing

the order compelling discovery.” Stagner v. W. Kentucky Navigation, Inc., No. CIV.A. 02-1418,

2004 WL 253453, at *6 (E.D. La. Feb. 10, 2004) (citing American Hangar, Inc. v. Basic Line, Inc.

105 F.R.D. 173, 175-76 (D.Mass.1985) (Rule 37(a) only provides for the expenses in bringing the

motion, not for expenses relating to the underlying discovery dispute)).

Irrespective of whether the Opt-In Plaintiffs provided discovery responses, Defendant

would have needed to develop a deposition and discovery strategy based on those responses, or,

as in this case, nonresponses. That the development of Defendant’s deposition and discovery

strategy had to be modified due to the Opt-In Plaintiffs’ nonresponse is an expense more related

to the underlying discovery dispute, and not an expense directly related to Defendant’s bringing

the motion to compel. As such, Rule 37(a) does not allow the Court to award Attorney Miller this

fee. The Court, accordingly, will deduct 0.8 hours from Defendant’s total resulting in 5.4

reasonable hours expended.

Finally, the Court notes the entry made on July 29, 2019 for 0.4 hours. R. Doc. 98-2, p. 3.

Miller attests during this time he “[d]rafted motion to expedite motion to compel written

discovery.” In addition, the entry made on August 9, 2019 included the allocation of time to “revise

and finalize motion to expedite.” While Defendant filed its Ex-Parte Motion to Expedite Hearing

on its Motion to Compel (R. Doc. 88) on August 9, 2019, on August 15, 2019, before the Court

made a ruling as to Defendant’s motion to expedite, Defendant’s sought the motion be withdrawn.

R. Doc. 93.

Rule 37(a) specifically provides that “[i]f the motion is granted” the Court should assess

reasonable expenses incurred in making the motion, including attorney’s fees. Fed. R. Civ. Pro.

37(a)(5)(A) (emphasis added). Here, Defendant’s motion to expedite was never granted;

Defendant’s withdrew the motion before the Court had the opportunity to review the merits of

such. As a result, the Court subsequently denied Defendant’s Motion to Expedite Hearing on Its

Motion to Compel (R. Doc. 88) as moot. The Court cannot grant an award of attorney’s fees for

unsuccessful claims. See Johnson v. Big Lots Stores, Inc., 639 F. Supp. 2d 696, 700 (E.D. La.

2009) (“to arrive at a reasonable fee award” the Court should “eliminat[e] certain hours related to

unsuccessful claims or by reducing the fee award to account for plaintiffs' limited success.). The

Court, accordingly, will deduct 0.4 hours for the July 29, 2019 entry and 0.125 hours for the August

9, 2019 entry, resulting in 4.875 reasonable hours expended.

V. Lodestar Calculation

Given the foregoing reasonable rate and hours, the Court calculates the following Lodestar

amount for Attorney Miller as:

Reasonable Hourly Reasonable Hours

Attorney Rate Expended Lodestar Amount

Eric R. Miller $315.00 4.875 $1,535.63

Total: $1,535.63

The total Lodestar amount then is $1,535.63

VI. Adjusting the Lodestar

After the lodestar is determined, the Court may then adjust the lodestar upward or

downward depending on the twelve factors set forth in Johnson, 488 F.2d at 717-19. However,

“the Supreme Court has limited greatly the use of the second, third, eighth, and ninth factors for

enhancement purposes, and accordingly, the Fifth Circuit has held that ‘[e]nhancements based

upon these factors are only appropriate in rare cases supported by specific evidence in the record

and detailed findings by the courts.’” Wells Fargo Equip. Fin., Inc. v. Beaver Const., LLC, No.

CIV. 6:10-0386, 2011 WL 5525999, at *3 (W.D. La. Oct. 18, 2011) (citing Walker v. U.S.

Department of Housing and Urban Development, 99 F.3d 761, 771–72 (5th Cir. 1996)). In such,

the entry made on August 9, 2019 Finally, to the extent that any Johnson factors are subsumed in

the lodestar, they should not be reconsidered when determining whether an adjustment to the

lodestar is required. Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). The Court

has carefully evaluated the Johnson factors and finds no adjustment of the lodestar is warranted.

VII. Responsibility for Payment

Rule 37 provides that the Court must assess the payment of reasonable expenses incurred

in making the motion on “the party or deponent whose conduct necessitated the motion, the party

or attorney advising that conduct, or both.” Fed. R. Civ. Pro. 37(a)(5)(A). Rule 37 carries with it

the inherent duty of the Court to ascertain who is at fault for the discovery misconduct. See S. U.S.

Trade Ass'n v. Unidentified Parties, No. CIV.A. 10-1669, 2012 WL 262560, at *3 (Roby, K) (E.D.

La. Jan. 30, 2012) (citing Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1019 (5th Cir. 1981)

(reviewing record for fault where named plaintiffs in the suit seek to avoid liability by shift blame

for motion to compel to their attorneys)).

Here, the Court has reviewed the records extensively and has ascertained that the Opt-In

Plaintiffs enrolled counsel of record, Chad A. Danenhower and Dale Edward Williams,

necessitated the motion. Even since the filing of this motion, the Court has extensively dealt with

the attorney’s failure to provide response to the requested discovery in the matter they initiated.

See R. Doc. 100, Motion for Sanctions. In fact, in a supplemental memorandum explaining their

failure to the Court, Chad A. Danenhower details improper intake procedure. See R. Doc. 127.

For instances, for one of the Opt-In Plaintiffs of issue, Rogest Montegue, Danenhower

suggests he only ever received communication from Monetgue via an SMS email with an already

completed Opt-In Form. R. Doc. 127, p. 2. Review of this document shows absolutely no client

information was obtained by Danenhower. R. Doc. 74. With this single, transitory means of

communication, the Court has no doubt as to why communication between the Opt-In Plaintiffs

disintegrated. A simple internet search demonstrates that standard law firm intake procedure

includes obtaining a full name, social security number, residential and employment addresses, and

driver’s license number.2 There are ethical obligations on attorneys to obtain this information to

stay in contact with their clients and so to be able to communicate necessary information such as

case status, fee agreements, pending discovery requests and motions, etc.

In consideration of this, while Defendant seeks an order assessing the fees on Opt-In

Plaintiffs Albert Troyani, Antonio Robinson, Dana Womack, Darryl Brandon Taylor, Jeffrey Tait,

Jermaine Bell, Keith Ingraham, Kurt Bookhardt, Paul Weathersby, Roland Wilson, Ronald Stout,

Scott Kinley, Tanya Corwin, Ward Gonzalez, William Bobbitt, and Rogest Montegue, the Court

is of the opinion that the failure to respond to discovery is due to the failure of counsel to take

adequate contact information during the file intake process. Accordingly, the Court shall order

counsel for the Opt-In Plaintiffs, Chad A. Danenhower and Dale Edward Williams, to satisfy this

obligation.

VIII. Conclusion

Accordingly,

2 See, e.g., https://practice.findlaw.com/how-to-start-a-law-firm/how-to-perform-solo-and-small-law-firm-client-

intake.html

IT IS ORDERED that the Defendant’s Motion for Attorney’s Fees (R. Doc. 98) is

GRANTED. Defendant is awarded reasonable attorneys’ fees and expenses in the amount of

$1,535.63.

IT IS FURTHER ORDERED that Counsel for the Opt-In Plaintiffs, Chad A.

Danenhower and Dale Edward Williams, shall satisfy its obligation to Defendants no later than

twenty-one (21) days from the issuance of this Order.

New Orleans, Louisiana, this 6th day of December 2019.

KAREN WELLS “ak

CHIEF UNITED STATES MAGISTRATE JUDGE

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