The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAPHNE FLEMING AND CIVIL ACTION
BRINTNEY JONES
VERSUS NO: 19-2348
ELLIOTT SECURITY SOLUTIONS, SECTION: "T" (4)
LLC; IAN KENNARD AND DARRIN
SR.
ORDER & REASONS
Before the Court is Plaintiffs Daphne Fleming and Britney Jones (collectively “Plaintiffs”)
Plaintiffs’ Motion to Set Attorneys’ Fees and Costs (R. Doc. 114), requesting fees and costs in
the amount of $99,109.54 is reasonable and fair under the Fair Labor Standards Act, 29 U.S.C.
201, et seq. (“FLSA”).
I. Factual Summary
Plaintiffs are former employees of Defendants who assert that Defendants failed to pay
overtime in accordance with the Fair Labor Standards Act (“FLSA”), failed to timely pay Plaintiffs
wages, and failed to pay Plaintiffs’ final wages in accordance with the Louisiana Final Wage
Payment Act, La. R.S. 23:631, et seq. (“WPA”). Plaintiffs worked for Defendants from late 2017
until around the beginning of 2019. Plaintiffs further allege that Defendants improperly deducted
the cost of equipment, uniforms, licenses, and other costs from their paychecks, which resulted in
them not being paid at the overtime rate for the hours worked more than 40 hours per week.
After litigating for three years, the parties settled the claims on March 1, 2021 for a
recovery of $17,356.12. R. Doc. 103. Plaintiffs now seek to recover $99,109.54 as a fee request.
This motion is hotly contested.
II. Standard of Review
The FLSA provides that “[t]he court in [an FLSA action for unpaid overtime or minimum
wages] shall, in addition to any judgment awarded to the plaintiff or plaintiffs, shall award
reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. 216(b).
The purpose of this provision is to encourage private litigators to act as “private attorneys general”
on behalf of enforcement of the civil rights laws so as to ensure that plaintiffs would be able to
obtain competent legal representation for the prosecution of legitimate nonpayment claims.
Newman v. Piggie Park Enters., 390 U.S. 400, 401-02 (1968).
The criteria to be applied in determining the proper amount of fees to be awarded are
articulated for this Circuit in, Johnson v. Georgia Highway Express, Inc. 488 F.2d 714 (5th
Cir.1974). The Supreme Court has indicated that the “lodestar” calculation is the “most useful
starting point” for determining the award of attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). The lodestar equals “the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Id. The lodestar is presumed to yield a reasonable fee. La.
Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).
After determining the lodestar, the Court must then consider the applicability and weight
of the twelve factors set forth in, Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974). The Court can make upward or downward adjustments to the lodestar figure if the
Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.
1993). However, the lodestar should be modified only in exceptional cases. Id.
After the calculation of the lodestar, the burden then shifts to the party opposing the fee to
contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended
“by affidavit or brief with sufficient specificity to give fee applicants notice” of the objections.
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
III. Analysis
A. Reasonableness of Hourly Rates
Plaintiffs’ counsels are Jody Jackson (“JFJ”) and Mary Bubbett Jackson (“MBJ”).
Plaintiffs contend that their counsel Mr. Jackson and Mrs. Mary Jackson have in excess of 17 years
of experience in civil litigation and have acted as lead counsel in the litigation of nearly 70 FLSA
cases (many of which were collective actions) across three states.1
Mr. Jackson was admitted to practice law in Louisiana in 2004 and he is also admitted to
practice in Alabama. Mrs. Jackson was admitted to practice in Louisiana in 2004. R. Doc. 114-2.
She has primarily practiced in the employment law area including FLSA. Mrs. Jackson indicates
in her affidavit that she and her husband are the only attorneys in the firm. She also indicated that
due to the lack of fulltime administrative staff she and her husband handle administrative tasks
which they do not bill for. Id.
Plaintiffs’ counsel contend that their hourly rate is based upon the prevailing market rates
in the New Orleans area for attorneys of comparable experience. Plaintiffs’ counsel maintained
contemporaneous, time records regarding their work in this litigation. Plaintiffs’ counsel
represented that a non-redacted copy can be provided for the Court to review in camera if
requested. They bill in tenth of an hour increments at an hourly rate of $350.00.1
Defendants contend that Plaintiffs’ counsel have failed to prove the reasonableness of their
hourly rate for their counsel in this simple, two plaintiff, wage and hour dispute which did not even
result in conditional class certification. R. Doc. 120-2. The Defendants contend that the burden of
demonstrating the hourly rate lies with the party seeking attorney fees and they failed to do so. Id.
The Defendants contend that notably absent from the affidavit of Mr. Jackson is any attestation
1 Plaintiffs counsels’ firm is small size and does not employee fulltime administrative staff, there are times that
attorneys in our firm must handle tasks that are more administrative in nature. However, they do not bill for that time.
that $350.00 is the customary billing rate for him or Mrs. Jackson. Id. Additionally, the Defendants
contend that conspicuously absent is any attestation from Mr. Jackson that a Court has approved a
$350.00 hourly rate for either lawyer. Id.
Defendants further point out that Plaintiffs’ counsel provided only one declaration, from
Mr. John O. Pieksen, Jr., in support of the requested hourly rate of $350.00. Moreover, they
contend that, while the affidavit indicates that an hourly rate of $350.00 is reasonable for FLSA
work, he fails to specify whether that rate is reasonable for the instant case. Consequently, the
Defendants contend that his affidavit is not sufficient evidence of the reasonableness of their rates
in this “simple wage and hour dispute with only two plaintiffs” and is insufficient as a matter of
law. Id.
Attorney’s fees must 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). 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). 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. 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.
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.Housing Auth. of City of Montgomery, 836 F.2d 1292 (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).
Where “an attorney’s customary billing rate is the rate at which the attorney requests the
lodestar to 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.” La. Power & Light, 50 F.3d at 328, Trahan v. Crown Drilling, Inc.,
No.2011 WL 3320531, at *4 (E. D. La. July 13, 2011) (Roby, M.J.) (finding attorney's requested
rate reasonable because it was not challenged by the opposing party).
The evidence shows that Plaintiffs’ counsel have not complied with the requirements of
the lodestar regarding support for their hourly rate. First, only one of the two lawyers provided an
affidavit, Mr. Jackson. In the affidavit, he attests that the $350.00 hourly rate is appropriate for
Mrs. Jackson and is in line with similarly experienced attorneys in FLSA matters. Mr. Jackson
attests that Mrs. Jackson has practiced employment law for 10 years with a focus on FLSA
litigation. However, she has been licensed for 17 years. R. Doc. 114-2. Mr. Jackson makes no
mention of Mrs. Jackson’s educational background and only mentions her experience and
admissions to both Louisiana and Florida bars. Id.
Mr. Jackson also fails to mention his educational background but indicates that he has been
licensed to practice law for in Louisiana 17 years as well. Id. Like, Mrs. Jackson, he indicates that
FLSA litigation is one of the main focuses of his legal practice. Id. He attempts to render an opinion
that the hours billed were reasonable. Id. Mr. Jackson does not attest that $350.00 per hour is the
rate actually billed either by he or Mrs. Jackson, only that he thinks that they are reasonable. Id.
Further, they include citations to a sundry of cases that are indicative of their experience.
However, they do not indicate which, if any, of these cases are FLSA cases where they were
awarded a rate of $350.00 which is their burden to do. Having reviewed the cases cited by the
Plaintiffs, none of them reference a rate of $350.00.2 In Bridges v. Personal Touch Health Care
Services, a case which was decided on a default judgment, the plaintiffs’ attorneys were awarded
an hourly rate of $300.00. No. 17-12423, 2018 WL 4104228, (E.D. La. Aug. 29, 2018). Also, in
Berry’s Reliable Resources v. Bacon, after considering Plaintiffs’ counsel’s request for a $350.00
rate determined that $300.00 per hour was consistent with the market rate. No. 19-12317, 2020
WL 9440406, (E.D. La. Nov. 30, 2020).
In considering the Plaintiffs’ attorneys request for $350.00 per hour rate, the Court finds
that the affidavits of Mr. Jackson and Pieksen are deficient. The affidavits failed to say: (1) what
the Jackson’s customary rate is in cases of this type and (2) Pieksen failed to say what the
customary rates were for attorneys with the same experience as the Jackson’s in FLSA cases.
Having determined that counsel has failed to meet their burden, the Court will look to cases in this
district to determine a reasonable rate in this district.
The Defendants contend that a blended rate should be used because Plaintiffs’ counsel
performed associate level work requiring less skill. The Defendant also points out that Plaintiffs’
counsel billed for routine clerical or secretarial work including filing documents, calendaring
dates, preparing notices of deposition, and service of the complaint. Consequently, Defendants
contend that an hourly rate of $250.00 should be used to account for the attorneys associate or
administrative work.
2 Many of the cases identified in footnote 1 have settled, but the settlement amounts were not always available in the
record. The cases where settlement information was available are Pace et. al v. Maximum Staffing, No. 10-2832
EDLA(Settlement amount $75.000 and attorney’s fees paid $25,612.32); Surjani v. Hollywood, 12-2859 R. doc. #14
(Settlement amount $173,090.32, attorneys fees $52, 520.00 identified in settlement approval request). Only one case
involved a reasonable fee determination, in DeIvory, et.al v. Manhattin Management, 14-2623(B)(2), EDLA
(Settlement amount $22,326.78, attorney’s fees awarded by the court $37, 931.99 with reasonable hourly rate of
$200.00).
While there may be entries that reflect associate level or administrative level work, the
Court can account for these hours in its analysis of whether the hours billed were reasonable. The
Court, therefore, declines to use a hybrid rate for all of Plaintiffs’ counsels’ work as requested by
Defendants. Nevertheless, the Court finds that an hourly rate of $300.00 is more indicative of the
prevailing market rate in this district for the relevant experience of counsel in this matter. See Bode
v. Kenner City, No. CV 17-5483, 2018 WL 4701541, at *7 (E.D. La. Oct. 1, 2018) (approving a
$200.00 hourly rate for an associate with four years of experience and a $270.00 hourly rate for
attorney with 16 years of experience); Warder v. Shaw Grp., Inc., 2016 WL 3447950, at *2-3 (E.D.
La. June 23, 2016) (using lodestar for discovery sanction and awarding hourly rates of $325 for
partner with 14 years of experience and $300 for an associate who had 20 years of experience in
complex commercial litigation). See, e.g., Hubert v. Curren, No. 18-7069, 2018 WL 4963595
(E.D. La. Oct. 15, 2018) (reducing rate of partner with 17 years’ experience from $400.00/hour to
$300.00/hour as prevailing rate in this district); Bode v. Kenner City, No. CV 17-5483, 2018 WL
4701541, at *7 (E.D. La. Oct. 1, 2018). See also Bill Jones v. New Orleans Physician Hospital
Organization, 2019 WL 677029 (E.D. La. Dec. 2019) (where the Court approved a $300.00 per
hour rate for attorney with 17 years of experience).
Further, Plaintiffs’ counsel has previously been awarded fees in FLSA cases at a rate of
$300.00 per hour. See Morales, et al. v. LMK Baton Rouge Construction, LLC, et al., No. 15-639,
2017 WL 2304753 (M.D. La Jan. 13, 2017) (R. Doc. 115, 116), Oct. 4, 2017; Griffis v. UV
Logistics, LLC, No. 15-2740 (W.D. La. Apr. 2, 2019) (R. Doc. 42); Sauls v. Willie’s Chicken
Shack, LLC, No. 16-16596, (E.D. La. May 11, 2019) (R. Doc. 83). Having determined the
reasonable rate is $300.00 per hour, the Court will proceed with its review of the billing sheets.
B. Reasonable Hours.
The party seeking attorney’s fees bears the burden of establishing the reasonableness of the
fees by submitting adequate documentation and time records of the hours reasonably expended
and proving the exercise of billing judgment. Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th
Cir.1997). Attorneys must exercise billing judgment by excluding time that is unproductive,
excessive, duplicative, or inadequately documented when seeking fee awards. Id. (citing Walker
v. United States Dep’t of Housing & Urban Dev., 99 F.3d 761, 769 (5th Cir.1996). Specifically,
the party seeking the award must show all hours actually expended on the case but not included in
the fee request. Leroy v. City of Houston, 831 F.2d 576, 585 (5th Cir. 1987).
Hours that are not billed properly to one’s client also are not properly billed to one’s
adversary. Hensley, 461 U.S. at 434. The remedy for failing to exercise billing judgment is to
reduce the hours awarded as a percentage and exclude hours that were not reasonably expended.
Id. 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 (5th Cir. 2002).
After careful consideration of the billing entries on Plaintiffs’ fee application, the Court
finds that they are not reasonable as stated. As such, the next issue is how to calculate an
appropriate, reasonable fee amount. To that end, the Court may either conduct a line-by-line
analysis of the bill submitted, or else reduce the award by a reasonable percentage. Given the fact
that Plaintiffs’ counsel has submitted an itemized list of billable entries, as well as the fact that
these entries are reasonably delineated, the Court will conduct a line-by-line analysis of the bill in
question to determine whether it is reasonable.
C. Unsuccessful Work
Plaintiffs concede that their counsel engaged in some work which was unsuccessful;
namely the motion for conditional certification. Consequently, they exercised limited billing
judgment in the amount of 20.60 hours or $7,210.00 deducted from the reasonable fee
determination. Plaintiffs also contend that Defendants’ actions have repeatedly increased the fees
in this matter referencing the Rule 68 Offer of Judgment and the manner in which the offer was
made. R. Doc. 114-1. They further contend that it was difficult for them to evaluate the adequacy
of the settlement until after August 27, 2020. The Plaintiffs also reference that four days after the
Offer of Judgment, they submitted a counteroffer which lead to an additional 20 hours, however
they continued to demand $29,452.54 in attorney fees. Id.
Defendants, however, point out that Plaintiffs’ counsel engaged in more unsuccessful work
than what they deducted. For example, Plaintiffs’ counsel worked on the original complaint an
amended complaint, and unnecessary discovery including deposing the Defendant company’s
owner, and deposing one witness in two instances: as a fact and 30(b)(6) witness. R. Doc. 120-2.
Defendants point out that an Offer of Judgment of $17,750 was filed before the depositions took
place and before the dispositive motion deadline. Defendants further point out that at the time of
the Offer of Judgment the attorney’s fees incurred according to Plaintiffs was $29,452.54.
Ultimately Plaintiffs accepted $17,356.12 in settlement, which was less than what was offered in
the Offer of Judgment. R. Doc. 120-2, p. 6.
Defendants further contend that after the Offer of Judgment was filed they filed a Motion
for Partial Summary Judgment which was granted in part, dismissing with prejudice Plaintiffs’
claims under the FLSA related to alleged improper kickbacks and Fleming’s claim under the WPA
for Defendants’ alleged failure to pay him at the applicable overtime rate. R. Doc. 120-2.
Defendants also contend that Plaintiffs unreasonably and unsuccessfully opposed a request
for continuance of the hearing date on the Motion to Conditionally Certify FLSA Collective
Action. Id. Defendants contend that Plaintiffs engaged in excessive discovery because they
received the pay records and time sheets but insisted on taking the deposition of the two owners,
with one owner being deposed twice. The Defendants contend that these depositions were not
proportional to the needs of the case and did not benefit the case either.
As taught by the Supreme Court decades ago in Hensley, “the most critical factor is the
degree of success obtained” when determining the proper fee award. 461 U.S. at 436. Work on any
unsuccessful claims is not “deemed to have been ‘expended in pursuit of the ultimate result
achieved.’” Id. at 435. Therefore, an award to a prevailing party requires that any “unrelated claims
be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for
services on the unsuccessful claim.” Id. The burden is on the moving party to establish entitlement
to attorneys' fees. The Defendants challenges the successfulness of several of the pleadings filed
by the Plaintiff. Having set forth the claims, the Court will proceed with its review.
1. Complaint, Amended Complaint, and Motion to Dismiss
Plaintiffs’ counsel points out that the work performed during the initial phase of the
litigation included an initial legal and factual investigation, the drafting of the original complaint,
communication with the clients, and other case initiating matters. They contend that the hours
billed at the beginning phase of the matter were 23.1 hours. R. Doc. 114-1, p.5.
Defendants contend that the original complaint filed by Plaintiffs included vague factual
allegations, threadbare recitations of law, and failed to place them on notice of the specific dates
in which Plaintiffs were allegedly underpaid. They also contend that because of the deficiency in
the pleading they filed a Motion to Dismiss or alternatively a Motion for a More Definite statement
which was granted. R. Doc. 24 (Order); R. Doc. 25 (Judgment).
A party may recover for time spent on unsuccessful motions so long as it succeeds in the
overall claim. Edwards v. Aaron Rents, Inc., 482 F.Supp.2d 803, 812 (W.D.Tex.2005) (quoting
DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421, 434 (5th Cir.2003); Barrow v. Greenville Indep.
Sch. Dist., No. 3:00–CV–0913–D, 2005 U.S. Dist. LEXIS 34557, at *34, 2005 WL 1867292 (N.
D.Tex. Aug.5, 2005) (citing Hensley, 461 U.S. at 434–35; Von Clark v. Butler, 916 F.2d 255, 259
(5th Cir.1990)), aff'd, 2007 U.S. App. LEXIS 24778 (5th Cir. Oct. 23, 2007), cert. denied, 128 S.
Ct. 255. Furthermore, work on the unsuccessful claim must relate to the work on the successful
claim, in order to merit such compensation. Medina v. District of Columbia, 864 F. Supp. 2d 13
(U.S. District of Columbia, April 23, 2012).
The record confirms that after the Motion to Dismiss, the District Judge granted the motion
requiring the Plaintiffs’ counsel to file an amended complaint providing additional facts because
the original complaint did not state a claim. The facts were to provide adequate notice of the claim.
R. Doc. 24. The hours associated with the drafting of the original complaint and the response to
the motion to dismiss totals 10.3 hours.3 These 10.3 hours did not benefit the case and will
therefore be disallowed.
3 2/28/19 MBJ 1.70 hours; 2/28/19 JFJ 0.50 hours; 3/2/19-.80 hours; 3/13/19 MBJ 1.00 hours; 7/26/19-JFJ 0.50 hours;
8/6/19-MBJ 0.50 hours; 8/7/19 MBJ 2.0 hours; 8/7/19 JFJ 0.50 hours; 8/12/19 MBJ .70 hours; 8/13/19 MBJ .50
hours; 8/20/19- JFJ .60 hours; 1/22/20- JFJ 1.0 hours
Plaintiff also billed 3.4 hours for the drafting on the amended complaint.4 First, the Court
notes that counsel would not have had to amend the complaint, if the initial complaint was
sufficient to give Defendants adequate notice of a claim. Additionally, having reviewed both the
initial and amended complaint, the Court finds that they are substantially similar as such, the hours
billed for the amended complaint will be cut by 50% to 1.7 hours.
2. Opposition to Motion to Continue Submission Date and Motion for
Conditional Certification
Plaintiffs’ counsel concede that they filed a Motion for Conditional Certification and a
Motion for Reconsideration, which were not granted, but argue that they should not be penalized
for those actions. R. Doc. 114-1. Plaintiffs’ counsel contend that they are obligated to represent
their client zealously which does not mean that the pleading they filed was frivolous.
Defendants, on the other hand, contend that Plaintiffs’ Motion to Conditionally Certify was
woefully deficient as shown by the Court’s denial of the request despite the “lenient standard.” R.
Doc. 120-2. Defendants contend that Plaintiffs failed to provide even modest factual support to
show that similarly situated individuals existed. Id. Defendants also contend that after Plaintiffs
filing of an ill-fated, ten-page Motion for Reconsideration of the Court’s denial, offering untimely,
two purportedly similarly situated employees of the Defendants’, the Court denied the request. Id.
The Defendants further point out that despite their reasonable request, Plaintiffs’ counsel
unreasonably and unsuccessfully opposed extending the submission date on their Motion to
Conditionally Certify. Plaintiffs’ counsel do not address the objection to the Motion to Continue.
4 2/6/2020 MBJ 0.80 hours; 2/7/2020 MBJ 0.80hours; 2/10/2020 MBJ 1.5 hours; 2/12/2020 JFJ 0.30 hours.
The record shows that the Motion to Certify was filed on May 8, 2019 and the Defendants
requested a brief continuance of two weeks. According to the pleading, the Defendants attempted
to contact the Plaintiffs two to three times but were unsuccessful. After being unsuccessful in
getting their consent, they sought relief from the court.
Plaintiffs opposed the request for the two-week extension because the Defendants did not
provide good cause. There was no apparent consideration to the short extension requested. The
Court after considering the position of the parties granted the motion. Therefore, the time allocated
to opposing the briefly continued briefing deadline will be excluded.
According to the Plaintiffs’ brief they have exercised billing judgment to excluded 20.60
hours reflecting the time spent on that motion. However, they did not provide a listing of the
corresponding billing entries. Additionally, the billing records indicate that hours in association
with the Motion for Conditional Certification, the Motion to Reconsider, and opposition to the
request for extension actually totaling 21.3 hours will be disallowed. 5
3. Discovery
Plaintiffs’ counsel next point out that they exchanged initial written discovery and spent
time drafting discovery requests which resulted in the production of a significant number of
documents. R. Doc. 114-1. Plaintiffs’ counsel contends that in reviewing the production they
realized that the Defendants had inadvertently included privileged documents and immediately
notified them allowing them to clawback the documents. Id. Plaintiffs’ counsel suggest that they
5 4/14/20 MBJ 2.70 hours; 4/15/20 MBJ 1.00 hours; 4/20/20 MBJ .60 hours; 5/8/20 MBJ 3.00 hours; 6/3/20 JFJ 1.00
hours; 6/8/20 MBJ 2.70 hours; 7/23/20 JFJ 2.00hours; 7/24/20 JFJ+MBJ 3.00; 7/27/20 MBJ 3.20 hours; 8/7/20 MBJ
.80 hours; 8/13/20 MBJ 1.30 hours.
“had to take six depositions” in this matter which included the two claimants. Id. Plaintiffs’ counsel
confirm that they deposed three Defendants, as well as, three other people identified by the
Defendants as responsible for the implementation of payroll polices, recording hours, and ensuring
that Plaintiffs were paid. Id. Plaintiffs acknowledge that their attorneys spent 158.3 hours on
discovery matters. Id. at. 14.
The Defendants contend that the hours claimed by the Plaintiffs and their attorneys are not
reasonable because they are excessive and do not reflect proper billing judgment. R. Doc. 120-2,
p.16. Defendants contend that despite the straightforward nature of the claims and having received
the claimants pay records and timesheets, they insisted on deposing the company owners. One
owner was deposed twice (30(b)(6) & individually) and the other once. The Defendants contend
that the discovery did not increase the value or success of the case because the case settled for less
than the amount proposed in the Offer of Judgment. Defendants also contend that counsels’ fees
increased by $42,730 in one month because of the “unnecessary discovery”.
In assessing whether the deposition testimony taken after the Offer of Judgment aided the
case, the Court finds that they do. For example, the Defendants filed a Motion for Summary
Judgement at which point Plaintiffs’ attorneys used the 30(b)(6) deposition of Avery Peterson to
secure testimony that they did not pay Plaintiffs overtime and missed paying them on two
occasions. See R. Doc. 88 (Order denying the request to dismiss these two claims); See Ex. A, p.
112-114, 116-117. Having determined that the depositions were necessary and appropriate, the
Court will now review the entries.
The time sheets regarding the depositions are somewhat vague. While it appears that
depositions were taken of Devona Green, Dayone Elliott, Avery Peterson, Ian Kennard, Darrian
Elliott, and a 30(b)(6) took place, the entries for preparation do not correlate the prep time with the
individual witnesses. Rather the problematic entries simply say, “Prepare for Deposition” or
“Attended Depostion”. Several of the entries were for the combined preparation by Plaintiffs’
counsel which is inappropriate and qualifies as block billing. The Plaintiffs’ attorneys billed 71.6
hours for unidentified deposition preparation or attending depositions.6 The deposition transcripts
show that both attorneys billed for preparation but only one lawyer for the Plaintiffs participated
in either the 30(b)(6) deposition or the Plaintiffs’ deposition. Therefore, the Court finds that these
entries are not only duplicative, they are also vague. The Court finds that a 50% reduction is
appropriate. Therefore, 35.8 hours are reasonable for the vague entries related to depositions.
4. Rule 68 Offer and Settlement Negotiations
Plaintiffs contend that Defendants repeatedly failed to take any steps to mitigate their
potential exposure for liability for fees, despite repeated warnings that the fees were increasing.
R. Doc. 120-2. Plaintiffs point out that the Defendants were warned that the fees and costs were
going to exponentially increase if the parties could not resolve the matter before taking multiple
depositions. Id. Plaintiffs contend that they offered to resolve the matter and reduced their demand
to approximately $30,000 for the claim and attorney’s fees. Id. Instead Defendants made an offer
of judgment of $17,750 for the claimants and reserved the fee issue for the Court to resolve. Id.
6 8/4/20 MBJ 2.00 hours; 8/6/20 JFJ 4.10 hours; 8/7/20 MBJ 1.40 hours; 8/10/20 JFJ 6.00 hours; 8/11/20 MBJ +JFJ
16.00 hours; 8/12/20 MBJ +JFJ 8.40 hours; 8/13/20 MBJ 3.2 hours; 8/13/2020 JFJ 9.5 hours; 8/14/20 MBJ + JFJ
14.00 hours; 8/17/20 MBJ 7.00 hours
The Defendants contend that they did not fail to mitigate their exposure to additional fees
and costs because they made an Offer of Judgment on August 6, 2020 and reserved the question
of attorneys’ fees until the claimant’s issues were resolved. R. Doc. 120-2. They proposed that the
fee determination be resolved by contradictory motion, such as what the Court is doing now. Id.
Moreover, the Defendants suggest that the Offer of Judgement was made before the depositions
were taken and the claimants dispute ultimately resolved for less than the August 2020 offer. Id.
The Defendants also contend that the Plaintiffs’ attorneys manufactured an excuse for not
accepting the Offer of Judgment because they “believed they could turn this simple case into a
larger class action.” Id. at. 7. The Defendants contend that the explanation for declining the Offer
of Judgment shifted to a rejection because it was provided in a “lump sum” with no explanation
of the calculation or allocation between the Plaintiffs. Id. The Defendants argue that there is no
requirement that an Offer of Judgment include calculations or allocations between the parties. Id.
Additionally, the Defendants contend that the Plaintiffs’ attorneys had access to the pay records
and could easily determine the proportion of the settlement due each claimant. Id.
The record shows that six months passed between the time the Offer of Judgment was made
and the case resolved for $17,356.12 which was $393.88 less than the amount the defendants
offered in August 2020. While the Plaintiffs claim that they were not able to properly evaluate the
offer, they do not explain why they were not able to. They acknowledge earlier in their submission
that they acquired the wage and time records, so they were in a position to evaluate the loss their
clients sustained.
Further, Defendants contend that they ultimately provided Plaintiffs with a breakdown on
September 4, 2020 at which time the offer had expired or been revoked. The Plaintiffs point out
that they were facing a discovery deadline of August 17, 2020 and needed to prepare for trial. R.
Doc. 114-1. The record shows that the case settled on February 23, 2021 and the Trial was set on
March 29, 2021. R. Doc. 85 & 103. The Defendants therefore seek a percentage reduction because
the additional work did not result in an increase in the recovery.
In considering this issue, the Court notes that the Offer of Judgment should not preclude
all hours billed after its filing because additional work was warranted. For example, the Defendants
filed a motion in limine on August 18, 2020 which required the Plaintiff to oppose the motion. R.
Doc. 71. Having reviewed the 4.6 hours; the Court finds that these hours are reasonably billed. 7
5. Vague Entries and Administrative Tasks
The Defendants also contend that certain entries billed by the Plaintiffs’ attorneys were
vague. Having previously addressed the work on the depositions the Court has one additional
entry, identified as “5/18/202-JFJ-Rule 37, prep and debrief-1.7 hours” to consider. See R. Doc.
120-2. The Court agrees that this entry is vague, and the 1.70 hours will therefore be disallowed.
Entries regarding telephone calls or communications with notations of, “8/6/2020-JFJ- Call
with witness Keisha Forrester-0.90 hours,” “5/20/2019-JFJ-Phone call from Atty John Robert
Ellis-1.50 hours,” and “7/14/2020-MBJ-Strategy re deposition dates-0.30 hours” are each vague.
These entries which total 2.70 hours will be disallowed.
7 See 8/23/20 MBJ 2.10 hours; 8/24/20 MBJ 1.30 hours; 8/25/20 MBJ 1.20 hours. R. doc. 114-2.
Plaintiffs contend that they did not bill for basic administerial tasks and point to the 0.0
entries in the invoices. As a general rule, time that would not be billed to a client cannot be imposed
on an adversary. Levy v. Global Credit and Collection Corp. Eyeglass, No. 10-4229, 2011 WL
5117855, *6 (D. N. J. Oct. 27, 2011). Thus, administrative tasks, which are not the type normally
billed to a paying client, may not be recovered by a party through a fee petition.” Id. Administrative
tasks generally include, but are not limited to, opening a file in a database, entering case updates
in a management system, mailing letters, copying documents, calendaring deadlines, confirming
contact information, and talking with a process server or court clerk. See, e.g., Id.
The billing records show that Plaintiffs’ counsel missed several administrative tasks and
billed for them. Plaintiffs’ attorneys concede in the billing records that they billed for, “6/24/2019-
JFJ-Drafted FOIA request-0.20 hours,” “8/13/2019-MBJ-Filing an opposition to a motion to
dismiss-0.50 hours,” and “3/16/2020-MBJ-Drafting, circulating, filing a status report-0.50 hours.”
Additionally, they billed for, “4/10/2020-JFJ-Call Scheduling Order-1.00 hours, and “2/5/2021-
JFJ-Pull deposition transcript portions for use at trial in 30(b)(6)-2.50 hours.”
Further, the Plaintiffs indicate the Defendants attempted to dodge service. There are seven
(7)time entries regarding service with time billed and three (3) without time billed. The attorneys
noted “3/19/219-MBJ-Follow up with process server re ducking service-0.70 hours,” “4/12/2019-
MBJ-Request summons for any employee due to ducking service-0.60 hours,” “4/4/2019-MBJ-
Communication with process server-0.70 hours,” “4/29/2019-MBJ-Arrange for second service
attempt due to ducking service-0.60 hours,” “5/8/2019-MBJ-Followed up re service due to ducking
service-0.50 hours.” Also, there was an entry for “6/13/2019-MBJ-Arranging for re-service due
to ducking service-0.50 hours.” The arranging for service of a summons is clerical and therefore
shall be disallowed.
The Court notes that the Defendants referenced additional entries as administrative
however, the Court disagrees with their contention. Having already addressed entry “8/13/2019-
MBJ-Filing an opposition to a motion to dismiss-0.50 hours,” it will not be calculated in this total,
therefore, the 7.80 hours will be disallowed for administrative tasks. The total disallowed hours
for vague and administrative task is 12.2.
6. Partial Summary Judgment and Rule 54(b) Certification
Plaintiffs counsel generally contend that the work performed on the case was reasonable. The
Defendants point out that after the Plaintiffs rejected the August 6, 2020 Offer of Judgment, the
Defendants filed a motion seeking partial summary judgment on August 19, 2020. The motion
was granted in part on November 9, 2020 dismissing with prejudice Plaintiffs’ claims under the
FLSA related to alleged improper deductions and kickbacks. Also dismissed was Plaintiff
Fleming’s claim under the WPA for Defendants alleged failure to pay him at the applicable
overtime rate.
After being dissatisfied with the result and missing the deadline for filing a motion to
reconsider, the Plaintiffs instead moved for a Rule 54(b) certification of the Court’s Order to secure
interlocutory review of that ruling.
The record shows that the Rule 54(b) was filed and for some unknown reason never ruled
upon by the Court. It could not have benefitted the case because it seemingly was overlooked by
the Court. R. Docs. 93, 95, 99. Further, three months later the case settled. R. Doc. 103. Therefore,
these 3.30 hours8 will be excluded.
D. Plaintiffs’ Counsel and Entry Level Work
Defendants next contend that the 11.3 hours billed for reviewing the Defendants document
production was routine entry level work and should have been billed at a reduced rate. However,
having considered these entries the Court finds that this work is more appropriately billed at
$120.00 hour.
In In Re Educ. Testing Serv. Praxis Principles of Learning & Teaching, Grades 7-12 Litig.,
447 F. Supp. 2d 612 (E.D. La. 2006), when setting the reasonable rate, District Judge Vance used
a blended rate. In so doing, she noted that the blended rate reflected “that not all of the work
involved should have been performed by the highest-level attorneys.” Id. at 633. She further
observed that “given the stage of the proceeding, most of the legal work before settlement involved
tasks such as research, drafting, and document review, which reasonably should have been
performed by associate-level attorneys.” Id.
The Court further observes that Plaintiffs’ attorneys engaged in paralegal work which is
also more appropriately billed at $120.00 hour. Examples include the following entries:
“7/31/2020-JFJ-Pulled and reviewed documents for use in deposition-0.40 hours,” “8/9/2020-JFJ-
Finalize pulling all documents for use in depositions all week and give to court reporter- 2.30
hours,” “8/14/2020-JFJ-Provide court reporter with additional documents for use at depositions-
8 12/3/20 MBJ 2.10hrs; 12/8/20 MBJ 0.60hours; 12/21/20 MBJ 0.60hours
0.30 hours,” “2/5/2021-JFJ- Pull deposition transcript portions for use at trial in 30(b)(6)
deposition- 2.50 hours.” The following entry, “2/5/2021- JFJ- Pull deposition transcript portions
for use at trial in 30(b)(6) deposition- 2.50 hours,” has already been disallowed and will not be
considered here. Therefore 14.3 hours will be billed at $120.00 per hour given the nature of the
work performed.
E. Block Billed Entries
Plaintiffs contend that they have not engaged in block billing, because they did not bill
blocks of time for accomplishing several discrete and unrelated tasks. R. Doc. 127. Plaintiffs’
counsel further contends that while some entries cover multiple tasks, they did not enter “the total
daily time spent working a case, rather than itemizing the time expended on specific tasks.” Id.
Plaintiffs’ counsel further contend that while some of their entries consist of the phrase “legal
research” or usage of the word “prepare” that their entries clearly show what was researched
drafted or reviewed which allows the Court and opposing counsel to ascertain how much time was
spent on which activity.
Defendants contend that Plaintiffs’ counsel included numerous block-billed entries which
makes it impossible for the Court to determine the reasonableness of the hours spent on each task.
The Defendants contend that the block-billed entries should be reduced. See Verizon Business
Global LLC v. Hagan, No-07-0415, 2010 WL 5056021, (E.D. La. Oct. 22, 2010). The Defendants
point out that the Plaintiffs’ counsel routinely block billed administrative and clerical work with
substantive work. The Court will proceed with its review of the alleged block billed entries.
a. Administrative and Substantive Work Combined
The Defendants contend that the following time records were blocked billed:
6/8/2020 |MBJ |Draft and file Reply Brief mtn for Cert | 2.70|$945.00
5/8/2020 MBJ Finalize and file motion for conditional certification 3.00| $1,050.00
6/4/2020 |MBJ | Edit and Circulate status report | 0.30|$105.00 |
7131/2020__|JFJ Pull and review documents for use in depositions - BATES 126 - 130, 1620-1626 .1634 2866 0.40]$140.00
Draft 30b6 Outline, pull all exhibits for use, confirm email correspondence for use, prep Ellis emails for use,
8/6/2020 JFJ provide video link for deposition 4.10|$1,435.00
8/25/2020 MBJ Finalize and file opposition to MSJ 6.30}$2,205.00
11/25/2020 MBJ Draft and circulate status report 0.50| $175.00
Finalize and file motion to certify judgment 0.60|$210.00
[2/19/2021 |JFJ+MBJ [Prep and send reply letterre settlement YT .00/$350.00
A review of the records confirm that Plaintiffs’ counsel combined administrative time with
lawyer time but did not distinguish between the two. Consequently, it is difficult for the Court to
determine how much time was allocated to which activity. However, the Defendants also
seemingly attack entries that were previously disallowed and will not be considered here. °
Therefore, the combined administrative and legal work which total 11 hours will be discounted by
35% to 7.15 hours.
b. Research and Substantive Work Combined
Plaintiffs’ attorneys contend that even though their time sheets include the usage of terms
such as “prepare” or “legal research” or “review,” this does not mean that the entry falls within the
purview of lacking the exercise of billing judgment. R. Doc. 127. They further contend that there
was no risk that the Defendants were confused or unable to tell the activities which they billed for
as they devote significant time to advise the Court about the entries and what they relate to. They
contend further that any suggestion that these entries should be reduced for blocked billing,
vagueness or lack of discretion is “blatantly without merit”. Jd.
The contested entries are as follows:
jar2a/2020[JFJ |Research for opposition toDsMSJ—0 T4401 $ 7,540.00
[8/23/2020 |Research □□□□□□□□□□□□□□□□□□□□□□□ 10) $385.00
37212021 _|JFJ Research andstategyonfeeissue CC 88 $630.00
The court further notes that the following entries were challenged previously by the Defendants and therefore not
included in this portion of the analysis: 3/16/2020 MBJ .50 hours, 5/8/20 MBJ 3.00 hours, 6/8/20 MBJ 2.70 hours.
7/31/2020 JFJ .40 hours; 8/6/20 JFJ 4.10 hours, 12/8/20 MBJ 0.60 hours. .
22
A quick review of these entries confirm that the entries were either relatively vague or that block
billing occurred. For example, there is no indication of the issue that was researched in opposing
the summary judgment or the motion in limine. Further, it is unclear just what the issue that was
researched regarding the interlocutory appeal or the motion for attorneys’ fees. It also is not lost
on the Court that given the years of the Plaintiffs’ attorneys experience in submitting fee
applications that their knowledge of the law regarding the same should have been pretty solid
except for nuanced issues. Having addressed, ““7/23/2020-JFJ-Research interlocutory appeal- 2.0
hours,” it is not taken into consideration here. The total hours billed for the contested research
equals 12.8 hours and will be discounted by 35%. The discounted hours to be allowed equal 8.32
hours.
c. Myriad of other tasks contested
Defendants next contest a myriad of other entries purportedly because they are blocked
billed.
[er7/2020 JFJ Receive and review Elliott Request for 30(b)(6) Conference and Objections, prepare response to objections 0.80 | $280.00
|si10/2020 _|JFJ___| Deposition prep for Devona Green, Dayone Elliott, Avery Peterson, lan Kennard, Darrin ELliott and 30(6(6) __|_6.00|$2,100.00_|
8/10/2020 JFJ Prepared Daphne Fleming and Brintney Jones for deposition 2.00 /$700.00
MBJ+JFJ [Prepared for and attended depositions 16.00/$5,600.00
8/12/2020 MBJ+JFJ |Prepared for and attended depositions 8.40|$2,940.00
8/13/2020 |JFJ_ | Review and notes on Exhibits produced by Dforuse atplaintiffdepositions | S40 $140.00
8/14/2020 MBJ+JFJ [Prepared for and attended depositions of Ds witnesses 14.00| $4,900.00
) facet oes ealeew
8/28/2020 JFJ of settlement conference and plan going forward, received new settlement authority for Jones $210.00
$280.00__|
[11/30/2020 [MBJ___|Correspondence with defense cousnel re status report; strategy andeditstosame_ 0.701 $245.00
11/30/2020 JFJ Research Rule 38. Right to a Jury Trial; Demand, reply to Defendant emails regarding same 1.40]$490.00
23
[zizelzore MBJ | Draft, review and revise complaint and final wage payment letter 1.70 $595.00
2/28/2019 |Edits to Complaint / Inital Itr 0.50 /$175.00
Review and notes to MBJ - ORDER granting [11] Motion to Dismiss for Failure to State a Claim, as set forth in
1/22/2020 JFJ document 1.00] $350.00
Finalize Plaintiffs’ Initial Disclosures and First Set of
3/3/2020 JFJ interrogatories 0.50/$175.00
14/2020 JFJ Analysis and notes to file re Rogs and RFPs to P 0.30]$105.00
3/16/2020 _|JFJ__|Review Answer. notes to file, review Joint status report, D inserts. confirmation willfile _] _0.50]$175.00__|
| Review 300 bats stamped docs, notes to file, Defendants’ Responses to Fleming et al.'s Written Discovery
lies |Requests 2.10/$735.00
fee
5/13/2020 JFJ Proceeding, strategy regarding same 0.30 /$105.00
5/18/2020 JFJ Confirm status report due date, New voicemail from BRANDON DAVIS 0.20/$70.00
|6/10/2020 MBJ | Draft supplemental discovery responses; call with client re same | 2.80|$980.00 |
[722020 □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ 20] 870.00
7/31/2020 MBJ Draft, review and revise Wilness and Exhibit List 3.70|$1,295.00
8/1/2020 JFJ Review D W/E List, notes to MBJ, file 0.40| $140.00
Again, a review of these entries confirm that the Plaintiffs’ attorneys engaged in multiple
tasks per entry. For example, the entry on March 3, 2020 by JFJ indicates, “Finalize Plaintiffs’
Initial Disclosures and First Set of Interrogatories,” has a time entry was 0.50 hours however, it is
unclear how much time was spent on each discreet task. Another example is the entry for August
10, 2020 by JFJ, “Deposition prep for Devona Green, Dayone Elliott Avery Peterson, Ian Kennard,
Darrin Elliott and 30(b)(6),” with a time entry of 6.0 hours. The manner in which this entry was
fashioned makes it impossible to determine the length of time it took to prepare for each deposition.
The other entries highlighted above likewise have combine tasks but only one-time entry. The total
hours for the myriad of tasks is 25.2 hours which will be discounted by 35% for a total of 16.38
hours.!°
F. Attorney’s Fees Hours
10 The Court has previously addressed the following entries: 2/28/2019 MBJ 1.70 hours; 2/28/2019 JFJ 0.50 hours;
7/26/2019 JFJ 0.50 hours; 1/22/2020 JFJ 1.00 hours; 5/18/2020 1.7 hours; 8/10/2020 JFJ 6.00 hours; 8/11/2020 MBJ
+JFJ 16.00 hours; 8/12/2020 MBJ+ JFJ 8.40 hours; 8/14/2020 MBJ+JFJ 14.00 hours
24
Plaintiffs contend that the hours they billed for their work was appropriate. They contend
that Defense counsel billed for similar services but, they do not have the Defendants’ invoices to
compare the entries.
The Defendants contend that the Court should exercise its discretion to reduce or eliminate
fees related to time spent litigating the fee request. The Defendants point out that a comparison
between the hours spent on the merits and the hours spent on the fee petition is a factor to be
considered. They further point out that the Plaintiffs’ counsel spent more time on the fee motion
than any substantive motion. For example, the Defendants point out that the Plaintiffs’ attorneys
spent 17 hours on the fee motion and only 7.9 hours on their Motion for Conditional Certification
and 9.5 hours on their Motion for Reconsideration; both of which were unsuccessful.!! Noticeably
absent from the Defendants’ analysis is the fact that the Plaintiffs’ attorneys spent 21.5 hours
defending against the defendants Motion for Partial Summary Judgment. !* R. Doe. 73.
The record shows that the Motion for Attorney’s Fees consisted of 23 pages and thirty
exhibits. See R. Doc. 114. The original application required the preparation of affidavits for the
lawyers and it included the references to cases they have handled establishing their expertise in
handling FLSA matters. The record also shows that the Defendants challenged as many entries as
possible warranting a reply from the plaintiffs which was 10 pages. R. Doc. 127.
In reviewing these entries, the Court first takes note of Plaintiffs’ counsel extensive
experience in handling FLSA matters. Additionally, Plaintiffs’ counsel has experience with fee
applications having filed a Motion for Attorney’s Fees Delvory, et.al v. Manhattan Management,
11
we wo? JFJ Research and stalegy on fee asue 1.80 | $630.00 |
srigeo2) [Mey [Draft review ard review Motion tor Foose 000820189, 920.00_ |
$1435.00 |
| 2 $2100.00 |
5/2021 haa Gratt, teview and fowae Motion br Foos 1. | S08 5 et |
08/23/20 JFJ 4.40 hours; 08/23/20 MBJ 3.40 hours; 08/23/20 JFJ 1.10 hours; 08/24/20 MBJ 5.50 hours; 08/25/20
MBJ 6.30 hours; 08/25/20 JFJ .80 hours.
25
14-2623(B)(2). R. Doc 95-1 (No. 14-2623). When comparing the two motions, the Court finds
similarities, including, passages that are substantially similar or the same. As such, the Court finds
that time billed for this motion was excessive. Having already addressed the 1.80 hours Plaintiff's
counsel spent researching the fee issues, it will not be considered here. Therefore, the Court will
reduce the 15.2 hours spent on the Motion for Attorney Fees by 50% to 7.6 hours.
G. Duplicative Work
Next, the Defendants contend that Mr. Jackson (“JFJ”) and Mrs. Bubbett Jackson (““MBJ”)
on occasion performed duplicative work. R. Doc. 120-2. The Defendants contend that the amount
of time associated with both lawyers has been doubled. The Defendants contend that not a single
entry which lists “JFJ + MBJ” includes an odd number and the time billed for depositions were
doubled; therefore, the time for their duplicative work should be reduced.
The Court notes that when a party chooses two attorneys to represent it in a lawsuit, the
opposing party is not required to pay for duplicative work incurred by the attorneys. Riley v. City
of Jackson, 99 F.3d 757, 760 (Sth Cir.1996). Duplicate billing under a fee-shifting statute is not
per se unreasonable, as long as the award for time spent by two or more attorneys “reflects the
13
2262019 JFJeMB) |Siratogy - Tolality of claims to add to sul t20ls420.00
javecoig [JFJeMes [Swategy re -altemaie home(?) addresses onthe SOS website after O00 duetoducking service | OS 140.00
$280.00
B10202) JFJeMB) [Strategy no Data NOT produced by D | 0.80]5280.00
WeaPoeo JFJ+MBJ [Strategy - Motion to Reconsiter / Appeal 4 oo] $1,050.00
B1O2020 JFJ*ME |Sitrategy re Motons to file to meet upcoming Geadines | 0.80]s280.00
Baae0 MBJ+JF Prepared for and attended capoad sons 16,00] $5,600.00
Bi22020 MBJ+JF J |Pinepared for and attended depoad sons 8.40) $2940.00
viae020 [MEJHF) [Prepared forand attended depostions of Os witnesses 000018, 00] $0.
B272020 MBJ+JIF = |Parbopated in settlement conference with magisi ae | 13.00] $4,550.00
wa2020 JFJ+MBJ [Strategy and email to delendants regarding Jones acceptance of wages porlion of offer 0.60) $280.00
2020 [MBJJFJ [call with defense counsel re potential for settlement | iano]
2020
[2102021 #MB) [Joint Strategy Session ontralprep TOLD
212071 JF J+ MBL) Analysis of amounts offered to Ps, Wage payment and FLSA award broken oul 0.60) 5280.00
[anecogt JeMB) [Prep send reply letter re setiiement 0000] $35.0
26
distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer
litigation.” Thomas v. Frederick, No. 87-1950, 1992 WL 17273, *1 (W.D. La. Jan. 29, 1992)(citing
Johnson v. University of University of Alabama, 706 F.2d 1205, 1208 (11th Cir. 1983) ); Alfasigma
USA, USA, Inc. v. EBM, 2018 WL 3869496 ( E.D. La. Aug. 15, 2018). Time charged for work that
is “excessive, duplicative, or inadequately documented” should be disallowed. Watkins v. Fordice,
7 F.3d 453, 457 (5th Cir.1993).
Generally duplicate billing is not per se unreasonable, however the entries made by
Plaintiffs’ counsel make it impossible to assess each of their individual contributions to the work
identified in the entry. It is also highly unlikely that they always worked the equal amount of time
on every task. Several of the entries that the Defendants seek to have discounted were already
discounted earlier in this opinion, consequently, these will not result in further discounting of these
entries. However, the remaining entries totaling 25.8 hours will be discounted by 50% to 12.9
hours because it is impossible to separately determine the contribution of each attorney. 14
H. Excessive or Irrelevant Time
The Plaintiffs do not address the issue of excessive or irrelevant time. The Defendants
contends that Plaintiffs’ counsel spent an inordinate amount of time on certain simple tasks and
billed on unrelated matters. The Defendants contend that the Plaintiffs’ attorneys billed time for
an unidentified third claimant and in another entry call from Jerome Batiste.15 The Defendants also
contend that on March 2, 2020, MBJ spent too much time (3.00 hours) drafting a discovery
requests despite their experience. Finally, Defendants contend that on July 2, 2020, MBJ spent too
much time (2.50 hours) drafting a three-page unopposed motion. The Court also notes that
14 2/26/19 JFJ+MBJ 1.20 hours; 4/8/19 JFJ+MBJ 0.40 hours; 3/12/20 JFJ+MBJ 0.80 hours; 5/7/20 JFJ+MBJ 2.80
hours; 6/10/20 JFJ+MBJ 0.80 hours; 8/10/20 JFJ+MBJ 0.8 hours; 8/27/20 MBJ+JFJ 13.00 hours; 10/13/20 MBJ+JFJ
1.80 hours; 10/26/20 JFJ+MBJ 1.20 hours; 2/10/21-JFJ+MBJ 2.20 hours; 2/11/21 JFJ+MBJ 0.80 hours
15 02/8/19 JFJ .60 hours and 07/23/19 .40 hours.
Plaintiff’s counsel pent 6.8 hours drafting responses to discovery on 4/13/2020. Therefore, these
entries consisting of 13.3 hours should be reduced or eliminated because they do not reflect proper
billing judgment. The Court will discount the entries dated April 13, 2020, July 2, 2020, July 23,
2019, and February 8, 2019 by 50% to 4.9 hours but not the time allocated regarding discovery
March 2, 2020 of 3.00 hours.
I. Calculation of Reasonable Fee
Billing Attorney Hours Rate Claimed Claimed as
reasonable
MBJ 128.40 350.00 44,940.00
JFJ 95.5 350.00 33,425.00
MBJ+JFJ 69 350.00 24, 150.00
Total- Pre-Adjustment 292.9 102,515.0016
Hours Billed less Deductions Hours Reasonable Reasonable
Rate Fee
Hours billed 292.90 300.00 $87,870.0017
Complaint, Amended Complaint & -12 -3,600.00
Mtn to Dismiss
Opposition to Extend Sub -21.3 -6,390.00
Date and Motion for Conditional Certification
-35.8 -10,740.00
16 Plaintiffs’ counsel original fee request without the addition of costs was $95,305. This included a deduction of 20.6
hours for the alleged exercise of billing judgement. However, counsel did not provide the Court with a delineation of
what costs were excluded, as such, the hours will not be taken into consideration.
17 Hours on total claimed at reasonable rate of $300.00 per hour before deductions.
Discovery
Rule 68 Offer & Settlement Negotiations -0 -0
Vague Entries & Administrative Tasks -12.2 -3,660.00
Partial Summary Judgment & Rule 54(b) -3.30 -990.00
Administrative & Substantive Work -3.85 -1,155.00
Research and Substantive Work Combined -4.48 -1,344.00
Myriad of other Tasks -8.44 -2,532.00
Attorney Fees’ Motion -7.6 -2,280.00
Duplicative Work -12.9 -3,870.00
Excessive or Irrelevant -4.90 -1,470.00
Entry level Work (120.00 per hour) 14.30 -3,289.00
Total 166.13 $ 46,550.00
J. The Johnson Factors
The Plaintiffs contend that reduction of their fees should not occur solely because of the
amount of the ultimate settlement. The Plaintiffs further contend that the Defendants failed to
acknowledge that from August 27, 2020 to February 2021 there was no settlement on the table.
Prior to August 27, 2020 settlement conference, there was no settlement offer that could reasonably
be evaluated by the plaintiffs. R. Doc. 114-1. The Plaintiffs further contend that no justification
exists to adjust the lodestar determination because adjustments should be done in truly exceptional
cases. Id. Further, according to the Plaintiffs the majority of the work they performed was driven
by the Defendants’ own motions or positions forcing them to proceed with trial preparation
because they refused to extend a settlement offer.
Additionally, the Plaintiffs contend that they recovered more than Defendants initial $8,000
in global offer. They further point out that while Britney Jones accepted less than the breakdown
provided by the Defendants during their Offer of Judgment, her personal life changed, and the
pandemic affected her financial condition such that she decided to accept the offer. R. Doc. 114-
1. Plaintiffs also point out that Daphne Fleming recovered all of his claimed unpaid wages and
approximately 55% of his claim penalties. Id.
The Defendants contend that the lodestar should be significantly decreased because the
Plaintiffs rejected a $17,750 Offer of Judgment made on August 6, 2020 which exceeds the amount
they eventually recovered. They point out further that Plaintiffs only recovered $17,356.12 for
their clients but now seek an attorney’s fee award of $99,109.54.
The Defendants contend that the Plaintiffs’ requests for attorneys’ fees is greatly
disproportionate to the amount to their recovery. According to the Defendants the fees sought are
more than five and one-half times the amount of their actual recovery and that consideration should
be given to the results obtained relative to the fee award. Consequently, the Defendants contend
that the court should “greatly reduce the attorneys’ fees awarded to plaintiff so that the attorneys’
fees award is proportionate to the amount of their actual recovery.
After calculating the lodestar, the Court may adjust the lodestar based on the factors set out
in Johnson v. Georgia Highway Express, Inc. 488 F.2d 714 (5th Cir. 1974). Again, those factors
are: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill
requisite to perform the legal service; (4) the preclusion of other employment by the attorney due
to the 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 involved and results
obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the
case; (11) the nature and length of the professional relationship with the client; and (12) awards in
similar cases. This Court has recognized that “[t]he most critical factor in determining an attorney’s
fees award is the ‘degree of success obtained.’”
It is undisputed that the case actually settled for $393.88 less than the amount offered in
the August 6, 2020 Offer of Judgment. The Defendants suggest that this fact should greatly
influence the Court’s reasonable fee determination. However, the Fifth Circuit, has routinely
“emphasized that ‘there is no per se requirement of proportionality in an award of attorney fees.’
” Combs v. City of Huntington, Tex., 829 F.3d 388, 396 (5th Cir. 2016) (quoting Branch-Hines v.
Hebert, 939 F.2d 1311, 1322 (5th Cir. 1991)) (and collecting decisions). The Circuit Court has
also held that “[W]hile the district court must take the degree of success obtained into account; it
would be an abuse of discretion for the district court to reduce [the] attorney's fee award solely on
the basis of the amount of damages obtained.”). Black v. SettlePou, P.C. 732 F.2d 492 (5th Cir.,
Oct. 11, 2013).
The Circuit Court has further held that “the most critical factor in determining an attorney's
fee award is the degree of success obtained.” Id. at 799 (citing Singer v. City of Waco, Texas, 324
F.3d at 829 ( 5th Cir. 2003)) (internal quotations omitted); Ransom v. M. Patel Enterprises Inc.,
734 F.3d at 387–88, 2013 WL 4402983, at *9. However, this Court has also held that “[w]hile a
low damages award is one factor which the court may consider in setting the amount of fees, this
factor alone should not lead the court to reduce a fee award.” Saizan v. Delta Concrete Products
Co., Inc., 448 F.3d at 799; accord Singer, 324 F.3d at 830; Hollowell v. Orleans Reg'l Hosp. LLC,
217 F.3d 379, 392 (5th Cir.2000).
However, Rule 68 requires fee reductions in some settings after a formal Offer of
Judgment; the fee statute permits fee reductions for all manner of reasons, including if a prevailing
party could have won more had he settled the case. Rule 68 tells us nothing—either way—about
whether spurned settlement offers, combined with other factors, warrant a fee reduction, or
whether a less-than-complete discount might be appropriate. See McKelvey v. Secretary of U.S.
Armym, 768 F.3d 491 (6th Cir. 2014).
Rule 68 does not apply to such settlement offers but it does apply to judgments. Yet the
Court's discretionary authority to determine the defendant's measure of success may still warrant
a fee reduction when a comparison between the benchmark of a settlement offer and the award
makes that appropriate. Id.
The Third Circuit has taken a similar route. In Lohman v. Duryea Borough, the District
Court reduced the lodestar by about half in part because the plaintiff rejected a settlement offer
much larger than the ultimate damage award. 574 F.3d 163, at. 166. (3rd Cir. 2009). In turning the
argument aside, the Court of Appeals reasoned that Rule 68 creates a “formal process” designed
to encourage settlement by allowing defendants to limit their litigation costs. Id. at 168. The rule
says nothing at all, the Court held, about determining the Plaintiffs’ degree of success, which is
one measure of an appropriate fee. The Court noted that it failed “to see how the existence of this
Rule and availability of this strategic mechanism for limiting one's costs should preclude a district
court from considering informal negotiations for the unrelated purpose of determining the extent
of relief sought by a plaintiff.” Id.
This case, however, involves the FLSA fee-shifting provision, which defines “attorney's
fees” separately from “costs.” See 29 U.S.C. § 216(b) (allowing “a reasonable attorney's fee to be
paid by the defendant, and costs of the action”). Thus, Rule 68 does not preclude a fee award in
FLSA cases, despite the prevailing plaintiffs’ previous rejection of a better offer. See, e.g., 12
WRIGHT, MILLER & MARCUS § 3006.2 (“If the underlying fee-shifting statute does not define
attorneys' fees as a part of costs, the making of a Rule 68 offer does not automatically cut off
plaintiffs’ right to seek a fee award for post-offer legal work.”). In Gurule v. Land Guardian,
Incorporated, the Fifth Circuit found persuasive that the past services of an attorney does not
benefit the case when there is a rejected settlement offer that exceeds the ultimate recovery. 912
F.3d 252 (5th Cir. 2018)
In considering the final settlement compared to the Rule 68 Offer of Judgment, the Gurule
Court found that the Court's opinion expressly considered the amount and timing of Gaslamp's
initial and subsequent offers, noted “the gap between Plaintiffs' expectations and reality” shown
by their response to those offers, and for that reason criticized Gurule's counsel for failing to
exercise “good judgment in obtaining successful results.” The Court thus appropriately factored
the rejection of Gaslamp's better offers into its 60 percent downward adjustment of the lodestar.
Id. In so doing, the Court observed the attorneys fee awarded in Gurule was thirty-three times
Gurule’s net reovery without offsetting for costs, the award was still eleven times her damages.
In this case, the Offer of Judgment was made on August 6, 2020. R. Doc, 114-5. On August
10, 2020, Mr. Jackson expressed, by email to Defense counsel, their disinterest in the Offers of
Judgment in this matter and instead made a counteroffer for Mr. Fleming of $18,276.74 and
$11,607.19 for Ms. Jones. At the time of this communication, Mr. Jackson indicated that their fees
in costs were $29,452.54. R. Doc. 114-6. The next day depositions took place and motion practice
ensued. On August 20, 2020, Mr. Jackson advised that the portion of their offer regarding their
fees and costs were revoked and that they would be updating their expenses to reflect the hours
expended on depositions and the recent motions. R. Doc. 114-13.
The next correspondence from the Jacksons’ reflected a fee and cost adjustment to $72,
182.54. Their clients’ demands however were largely the same. Flemings demand was $18, 294.91
and Jones demand was $11,630.75. On September 1, 2020, the Jacksons’ requested a settlement
offer breakdown after one of the many settlement conferences conducted by the undersigned. R.
Doc. 114-15. The Defendants responded with a total for Flemings of $9,961.16 and for Jones
$7,788.84 for a total of $17,750.00. R. Doc. 114-17.
At some later point confusion developed regarding whether Britney Jones’ settlement was
reached. The records show that the Plaintiff tried to accept a previously rejected offer after a
settlement conference. R. Doc. 114-23. The Defendants responded indicating that no such
settlement was reached, and the Court record confirmed such. Id. The depositions did not move
the needle regarding the value of the case although they did aid in the defense against the motion
for summary judgment which would not have been necessary if the offer had been received.
Considering the events as described above the Court finds that a 20% reduction is
appropriate which reduces the award of attorney’s fees to $37,240.00.
K. Costs
Plaintiffs also request $3,804.54 in costs related to: (1) filing fee ($400), (2) Multiple
Service Attempts ($540), (3) Parking and Mileage ($12.54), and (4) Deposition Costs ($2,852).
Plaintiffs contend that these expenses are reasonable out-of-pocket costs.
The Defendants contend, however, that the Plaintiffs are not entitled to recover theses costs
because only costs as detailed in §1920 absent explicit statutory or contractual authorization to the
contrary are recoverable. Defendants contend that the Plaintiffs may not recover the costs related
to service attempts made by a private process server because they fail to provide evidence of an
invoice by the private process server and do not indicate the number of service attempts and should
be disallowed.
Federal Rule of Civil Procedure 54(d)(1) provides that the Court may award costs other
than attorneys’ fees to the prevailing party. A plaintiff is a “prevailing party” if the party
“succeed[s] on any significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.” Abner v. Kansas City Southern Ry. Co., 541 F.3d 372, 382 (5th Cir. 2008)
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Supreme Court has held that only
costs identified in Section 1920 may recover the following costs:
(1)Fees of the clerk and marshal;
(2)Fees for printed or electronically recorded transcripts necessarily obtained for use in
the case;
(3)Fees and disbursements for printing and witnesses;
(4)Fees for exemplification and the costs of making copies of any materials where the
copies are necessarily obtained for use in the case;
(5)Docket fees under section 1923 of this title;
“A party seeking costs bears the burden of supporting its request with evidence
documenting the costs incurred and proof, when applicable, that a certain item was ‘necessarily
obtained for use in the case.’” Big Lots Stores, 639 F. Supp. 2d at 709 (quoting Fogleman v.
ARAMCO, 920 F.2d 278, 285-86 (5th Cir. 1991).
The record shows that Plaintiffs included what appears to be a service journal of the
attempts made by the private process server. However, the documentation does not contain an
invoice from the process server for each attempted failed service. Therefore the $540 for process
service fee will be disallowed.
The Plaintiffs also seek to recover for the $400 filing fee. Although no documentation of
this costs was provided, the record confirms that a fee of $400 was paid and reimbursement of this
expense will be allowed. R. Doc. 1.
The Plaintiffs also seek to recover $2,852.00 for deposition costs. While it is undisputed
that certain depositions took place, the Plaintiffs have failed to provide evidence substantiating the
costs incurred. In the absence of such evidence these costs will be disallowed.
Like the deposition costs and service attempts, the Plaintiffs seek to recover for parking
and mileage ($12.54). Again, the Plaintiffs fail to provide any documentary proof substantiating
these costs. Consequently, the Court is constrained to disallow the mileage and parking expense.
The Court having considered the issue finds that $400.00 in costs are reasonable based
upon the evidence provided.
Accordingly,
IV. CONCLUSION
IT IS THEREFORE ORDERED THAT the Plaintiffs’ Motion to Fix Attorney’s Fees
and Costs is Granted. The Plaintiffs are entitled to recover a total of $37,240.00 in attorney’s fees
and $400.00 in cost for a total award of $37,640.00.
IT IS FURTHER ORDERED that compliance with this order shall take place no later
twenty-one (21) days from the signing of this order.
New Orlgans, Louisiana, this 21st day of October 2021,
UNITED STATES MAGISTRA UDGE
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