Metro Service Group, Inc. v. Waste Connections Bayou, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

METRO SERVICE GROUP, INC. CIVIL ACTION

VERSUS CASE NO. 21-1136

WASTE CONNECTIONS BAYOU, INC. SECTION: “G”(3)

ORDER AND REASONS

Before the Court is Plaintiff Metro Service Group’s (“Plaintiff”) “Motion for Attorney’s

Fees and Costs.”1 In the motion, Plaintiff requests that the Court award its attorneys’ fees, costs,

and expenses pursuant to the remedy provisions in the contract with Defendant Waste Connections

Bayou, Inc. (“Defendant”).2 Defendant filed an opposition to the “Motion for Attorney’s Fees.”3

Plaintiff replies in further support of the motion.4 Having considered the motion, the memoranda

in support and opposition, the record, and the applicable law, the Court grants the motion in part,

denies it in part, and awards Plaintiff $175,550.98 in attorneys’ fees and costs.

I. Background

On May 5, 2021, Plaintiff sued Defendant in the 24th Judicial District Court for the Parish

of Jefferson, State of Louisiana.5 On June 10, 2021, Defendant removed the case to this Court on

1 Rec. Doc. 96.

2 Plaintiff moves for attorney’s fees “pursuant to their contingency fee contract” with Counsel. Id. at 1.

3 Rec. Doc. 103.

4 Rec. Doc. 118.

5 Rec. Doc. 1-1.

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the grounds of diversity jurisdiction.6 Plaintiff contended that Defendant entered into a

“Residential Garbage Collection Contract” (the “2009 Prime Contract”) on November 5, 2008

with Jefferson Parish for the collection of waste.7 Plaintiff averred that Defendant then entered

into a subcontract agreement with Plaintiff on June 17, 2009 (the “2009 Subcontract”), under

which Plaintiff would pick up and haul waste from designated “Citizen Drop-off Centers” and

deliver them to the landfill designated under the 2009 Prime Contract.8 Plaintiff further alleged

that after Defendant began a new prime contract with Jefferson Parish in 2014 (the “2014 Prime

Contract”), that the parties reached an oral agreement adopting all the same terms of the prior

written 2009 Subcontract.9

On September 28, 2021, Defendant filed a partial motion to dismiss Plaintiff’s “claims for

compensation allegedly due . . . for services rendered prior to May 5, 2018,” contending that the

claims had prescribed prior to Plaintiff’s filing of this litigation.10 This Court granted Defendant’s

partial motion to dismiss on November 19, 2021, finding that Plaintiff’s claims for acts prior to

May 5, 2018 had prescribed.11

On March 25, 2022, Plaintiff filed a motion to compel discovery, requesting “an order

6 Rec. Doc. 1.

7 Rec. Doc. 1-2 at 2.

8 Id.

9 Id.

10 Rec. Doc. 17.

11 See Rec. Doc. 27.

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compelling [Defendant] to comply with ‘basic discovery principles.’”12 The Court granted the

motion to compel only with respect to one document, ordering Defendant to provide an unredacted

copy of communications relevant to Plaintiff’s claim.13 On April 5, 2022, Defendant moved for

summary judgment, contending that no genuine issue of material fact existed concerning Plaintiff’s

claim to damages incurred after May 5, 2018.14 On May 17, 2022, this Court denied Defendant’s

Motion for Summary Judgment.15

After a three-day trial, a unanimous jury found in favor of Plaintiff in the amount of

$1,677,944.00.16 On June 15, 2022, the Court entered a judgment in favor of Plaintiff for

$1,396,664.93 after the parties stipulated to reduce the damage award due to mathematical error

related to the admitted expert charts including estimations of Plaintiff’s damages through 2024.17

On November 7, 2022, the Court denied Defendant’s “Rule 50(b) Motion for Judgment as a Matter

of Law or, in the Alternative, Rule 59(a) Motion for New Trial.”18

On June 21, 2022, Plaintiff filed the instant “Motion for Attorney’s Fees.”19 On July 5,

2022, Defendant filed an opposition.20 On July 12, 2022, Plaintiff replied in further support of the

12 Rec. Doc. 32-1 at 3-5.

13 Rec. Doc. 61 at 11–12.

14 Rec. Doc. 34.

15 Rec. Doc. 51.

16 Rec. Doc. 92.

17 Rec. Doc. 94.

18 Rec. Doc. 135.

19 Rec. Doc. 96.

20 Rec. Doc. 103.

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motion.21

II. Parties’ Arguments

A. Plaintiff’s Arguments in Support of the Motion for Attorneys’ Fees

In support of the instant motion, Plaintiff asserts that the Court should fix the amount of

attorneys’ fees and expenses at $558,665.97.22 In support of this total, Plaintiff submits: (1) a client

engagement letter from the law firm Davillier Law Group;23 (2) an affidavit of Charles F. Zimmer

II (“Zimmer”), a partner at the law firm Davillier Law Group;24 and (3) a “Client Time/Expense

Report” listing the total compensable hours and costs incurred in this matter from February 2,

2021, through June 17, 2022.25

Plaintiff makes two arguments in support of the motion for attorneys’ fees. First, Plaintiff

argues that it “is the prevailing party in this instant suit and therefore entitled to recover reasonable

[attorneys’] fees and costs from the non-prevailing party pursuant to the contract between the

parties.”26 Plaintiff avers that “[i]t is well settled within the State of Louisiana that a party may

recover the cost of attorneys’ fees when authorized by statute or by contract.”27 Plaintiff asserts

21 Rec. Doc. 118.

22 Rec. Doc. 96-1 at 4.

23 Rec. Doc. 96-2.

24 Rec. Doc. 96-3 at 1–3.

25 Id. at 4–5.

26 Rec. Doc. 96-1 at 1 (citing Sher v. Lafayette Ins. Co., 988 So.2d 186, 201 (La. 2008) (“Louisiana courts

have long held that attorneys’ fees are not allowed except where authorized by statute or contract.”)).

27 Id.

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that it retained counsel on February 2, 2021 on a contingency fee agreement.28 Plaintiff avers that

the agreement provides counsel “an undivided forty (40%) percent of the total recovery if this

matter proceeded to trial on the merits.”29 Therefore, Plaintiff argues that it is entitled to an award

of attorneys’ fees in the amount of $558,665.97, a sum totaling 40% of the final judgment award

of $1,396,664.93.30

Second, Plaintiff contends that it is entitled to recover its costs from Defendant. Plaintiff

asserts that it “is entitled to costs beyond those specifically enumerated in 28 U.S.C. Sec. 1920”

because the jury found that the parties’ 2009 Subcontract was enforceable.31 Plaintiff avers that

“[a] court may award only those costs specified in section 1920, unless there is explicit[] . . .

contractual authority to the contrary.”32 Plaintiff asserts that reasonable costs and expert witness

fees are recoverable under the 2009 Subcontract.33 Therefore, Plaintiff argues that its fee

application requests reasonable fees, expert costs, deposition costs, and other related costs and

expenses pursuant to the provision in the 2009 Subcontract.34

28 Id.

29 Id. at 2.

30 Id. at 4.

31 Id.

32 Id. at 5.

33 Id.

34 Id.

5

B. Defendant’s Arguments in Opposition to the Motion for Attorneys’ Fees

Defendant makes three arguments in opposition to the instant motion.35 First, Defendant

argues that Plaintiff has no valid contractual claim for attorneys’ fees because the parties

terminated the 2009 Subcontract in 2013.36 Defendant maintains that the written contract was

supplanted by a “purported oral contract formed after expiration of the [2009 Subcontract].”37

Defendant asserts that “beyond the provision in the parties’ terminated [written] contract, Plaintiff

provides no other basis . . . that would allow it to recover its fees and costs from Defendant.”38

Defendant points out that the jury “did not find (and was not asked to) that the oral contract

included an agreement to fee shifting.”39 Therefore, Defendant argues that Plaintiff is not entitled

to an award of attorneys’ fees because it has not satisfied the burden to prove that Defendant agreed

to pay reasonable attorneys’ fees in the contract.40

Second, Defendant argues that, if the Court finds that the attorneys’ fees provision survived

the termination of the 2009 Subcontract, Plaintiff is not entitled to full recovery of its attorneys’

fees because it “achieved only partial or limited success.”41 Defendant cites Supreme Court

precedent defining the “‘most critical factor’ in determining whether the fees sought to be

35 See generally Rec. Doc. 103.

36 Id. at 4.

37 Id. at 4–5.

38 Id.

39 Id. at 5.

40 Id.

41 Id. at 5–6.

6

recovered are reasonable ‘is the degree of success obtained.’”42 Defendant argues that Plaintiff’s

request for fees and costs is “[un]reasonable in relation to the result obtained” because “Defendant

prevailed on substantially more of its defenses than did Plaintiff on claims it initially sought.”43

Defendant contends that Plaintiff originally sought recovery for “eleven and a half years of CPI

adjustments and damages” but only recovered damages for three and a half years of that period.44

Defendant further contends that “[a]warding attorney’s fees based on a contingency

agreement is not appropriate” where the “Plaintiff only achieved limited success by recovering

just 26% of its originally asserted claim, and [] was unsuccessful in opposing the motion to dismiss

and on its motion to compel.”45 Therefore, Defendant argues that a reduction of Plaintiff’s claim

for attorneys’ fees “to the same percentage of the award reflected in the Judgment as compared to

the initial relief sought (i.e. a reduction of 74%) would be reasonable given Plaintiff’s limited

success.”46

Third, Defendant asserts that “Plaintiff’s attorneys’ fee request is not reasonable based on

the Lodestar method.”47 Defendant contends that the attorneys’ fee provision in the 2009

Subcontract “limits the prevailing party’s recovery . . . to ‘reasonable attorneys’ fees . . . to be

42 Id. at 6.

43 Id.

44 Id. at 6–7.

45 Id. at 8.

46 Id.

47 Id.

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fixed by the court.’”48 Defendant argues that if this Court awards fees to Plaintiff pursuant to the

2009 Subcontract, the Court “is not bound by the Plaintiff’s contingency fee contract.”49 Defendant

points out that in order to justify Plaintiff’s requested recovery of $558,665.97 on an hourly rate

agreement, Plaintiff’s counsel would have to charge rates of $850 per hour for partner work, and

$530 dollars per hour for associate work.50 Defendant asserts that “[t]hese hourly rates are more

than twice the rates that Plaintiff’s counsel would charge in the absence of the contingency fee

arrangement.”51 Thus, Defendant contends that the amount Plaintiff seeks is unreasonable under

the lodestar method analysis and the Johnson factors.52

Lastly, Defendant argues that Plaintiff’s motion is premature.53 Defendant points out that

Plaintiff’s judgment “is still subject to post-trial motion practice and appellate relief.”54 Defendant

avers that “[c]ourts in the Eastern District of Louisiana ‘frequently defer ruling on a motion for

attorneys’ fees until the matter is fully resolved.’”55 Defendant argues that this Court should “deny

the instant Motion without prejudice to be re-argued after this Court rules on Defendant’s post-

trial motions and an appeal [is] final.”56

48 Id. at 9.

49 Id.

50 Id. at 9–10.

51 Id. at 10.

52 Id. at 11.

53 Id. at 12.

54 Id.

55 Id.

56 Id. at 13.

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C. Plaintiff’s Arguments in Further Support of the Motion for Attorneys’ Fees.

In its reply, Plaintiff raises three arguments in further support of the instant motion. First,

Plaintiff asserts that Defendant’s opposition relies on arguments which were rejected in its motion

for summary judgment and at trial.57 Plaintiff avers that the provision for attorneys’ fees and costs

is an additional term incorporated into the oral agreement to apply the same terms and conditions

of the 2009 Subcontract.58

Second, Plaintiff re-asserts that its contingency fee agreement provides for a reasonable

award of attorneys’ fees.59 Plaintiff points out that Defendant’s support for its argument that the

Supreme Court disfavors contingency fee agreements is based on case law awarding attorneys’

fees pursuant to 42 U.S.C. § 1988, and not via contractual right.60 Plaintiff further argues that

Defendant’s arguments to reduce Plaintiff’s fees award must fail because the requested award is

based on the amount awarded by the jury on meritorious claims.61 Therefore, Plaintiff asserts that

the request for attorneys’ fees should not be reduced because it incurred costs of all claims by

engaging in a contingency fee agreement and was successful on all claims put before the jury.62

Lastly, Plaintiff asserts that its motion is not premature because it “filed its motion for

57 Rec. Doc. 113 at 1.

58 Id.

59 Id. at 3.

60 Id. at 4–5.

61 Id. at 5–6.

62 Id. at 6–8.

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attorney fees pursuant to the statutory time delays allowed under FRCP 54(d)(2)(B)(i).”63

III. Law and Analysis

In the instant motion, Plaintiff requests a total award of $589,981.03.64 The requested

award consists of $558,665.97 in attorneys’ fees and an additional $31,315.06 in expenses.65

Plaintiff bases the request on the contingency fee agreement it executed with its counsel and the

attorneys’ fees provision of the original 2009 Subcontract between Plaintiff and Defendant.66

Defendant argues that “beyond the provision in the parties’ terminated [written] contract, Plaintiff

provides no other basis . . . that would allow it to recover its fees and costs from Defendant.”67

Plaintiff’s theory of the case before the jury was that the parties made an oral agreement to

incorporate the terms of the 2009 Subcontract into a new subcontract related to Defendant’s 2014

Prime Contract with Jefferson Parish. As explained in the Court’s Order and Reasons denying

Defendant’s “Rule 50(b) Motion for Judgment as a Matter of Law or, in the Alternative, Rule 59(a)

Motion for New Trial,” Plaintiff presented evidence corroborating Plaintiff’s representatives’

testimony that the parties had an oral agreement to apply the terms of the 2009 Subcontract to a

new subcontract under Defendant’s 2014 Prime Contract with Jefferson Parish.68 The 2009

Subcontract provided that the terms of the subcontract would last until the expiration or

63 Id. at 8.

64 See Rec. Doc. 96-1 at 5–6.

65 Id.

66 Id. at 1–2, 5–6.

67 Rec. Doc. 103 at 4–5.

68 Rec. Doc. 135.

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termination of the contract between Defendant and Jefferson Parish unless otherwise terminated.69

The Court found that the facts and inferences did not point so strongly and overwhelmingly in

Defendant’s favor such that reasonable jurors could not have found that the parties agreed to a new

subcontract for the life of the 2014 Prime Contract.70

Under Louisiana law, the well-settled rule is that attorneys’ fees may only be awarded

“where authorized by statute or contract.”71 The 2009 Subcontract includes an attorneys’ fee

provision, which states:

Attorneys’ Fees. In the event any party brings or commences a legal proceeding to

enforce any of the terms of this Agreement, the prevailing party in such action shall

have the right to recover reasonable attorneys’ fees and costs from the non-

prevailing party, to be fixed by the court in the same action.72

At trial, Plaintiff prevailed on its claim and a unanimous jury awarded damages to Plaintiff. This

Court finds that Plaintiff is a partially prevailing party and therefore entitled to receive an award

of attorneys’ fees under Louisiana law and the terms of the 2009 Subcontract.

It is the language of the 2009 Subcontract and subsequent oral agreement, not the

contingency fee agreement executed by Plaintiff and its counsel, that entitles Plaintiff to receive

an award of reasonable attorneys’ fees and costs. In diversity actions, state law controls the

reasonableness of fees awarded where state law supplies the rule of decision.73 In this case,

69 Plaintiff’s Ex. 1.

70 Rec. Doc. 135.

71 Ogea v. Loffland Bros. Co., 622 F.2d 186, 190 (5th Cir. 1980) (internal citations omitted).

72 Plaintiff’s Exhibit 1.

73 Alyeska Pipeline Servs. Co. v. Wilderness Soc., 421 U.S. 240, 259 n.31 (1975); Walker Int’l Holdings, Ltd.

v. Repub. of Congo, 415 F.3d 413, 415 (5th Cir. 2005) (citing Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir.

2002))

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Plaintiff brought breach of contract claims under Louisiana law. Therefore, Louisiana law controls

the reasonableness of the fee award.74

“Courts may inquire as to the reasonableness of attorney’s fees as part of their prevailing,

inherent authority to regulate the practice of law.”75 A reasonable hourly rate is to be determined

“according to the prevailing market rates in the relevant community” for attorneys of similar

experience in similar cases.76

In State Department of Transportation and Development v. Williamson, the Louisiana

Supreme Court set forth ten factors to be considered in determining the reasonableness of a fee

award: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of

litigation; (4) the amount of money involved; (5) the extent and character of the work performed;

(6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances

involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10)

the Court’s own knowledge.77

With respect to contingency fee agreements, the Louisiana Supreme Court “has held that

while a court may consider an attorney-client contract among other factors, it is not bound by such

an agreement in determining reasonable attorney fees.”78 Therefore, the Court must consider the

74See Walker Int’l, 415 F.3d at 415.

75 State Dept. of Transp. and Dev. v. Williams, 597 So. 2d 439, 441–42 (La. 1992) (internal citations omitted).

76 Covington v. McNeese State Univ., 2012-2182 (La. 5/7/13); 118 So. 3d 343, 350 (citing Blum v. Stenson,

465 U.S. 886, 895 (1984)).

77 Williams, 597 So. 2d at 442.

78 Rivet v. State Dep't of Transp. & Dev., 96-0145 (La. 9/5/96), 680 So. 2d 1154, 1162 (citing Moody v.

Arabie, 498 So.2d 1081 (La. 1986)).

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reasonableness of the award, and it is not bound by Plaintiff’s contingency fee agreement. While

the Louisiana Supreme Court has employed the lodestar method in matters concerning federal

law,79 Louisiana courts generally consider the Williamson factors when determining the

reasonableness of attorney fees claimed and hours worked in cases arising under state law.80

The Williamson factors are derived from Rule 1.5(a) of the Rules of Professional

Conduct.81 “In Louisiana, the Rules of Professional Conduct ‘have the force and effect of

substantive law”82 and therefore “are to be considered by the Court in making a determination of

attorney’s fees.”83 Federal courts applying the Williamson factors and Rule 1.5(a) have

consistently found that “[a]n accepted method with which to begin a calculation of a fee award

under Louisiana law is to multiply the hours worked by an hourly rate the Court deems to be

reasonable.”84 In GMAC Commercial Mortgage Corporation v. Chateau Deville Apartments

Partnership, another judge in the Eastern District of Louisiana found that a calculation of a

79 See Covington, 118 So. 3d at 350 (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)).

80 Grand Pointe Homeowners Ass'n, Inc. v. Heymann, 2020-36 (La. App. 3 Cir. 11/12/20), 307 So. 3d 285,

288–89.

81 Williamson, 597 So. 2d at 442.

82 Gulf Wide Towing, Inc. v. F.E. Wright Ltd., 554 So. 2d 1347, 1354–55 (La. App. 1 Cir. 1989) (citing City

of Baton Rouge v. Stauffer Chem. Co., 500 So. 2d 397 (La. 1987)).

83 Williamson, 597 So. 2d at 441–42.

84 GMAC Commer. Mortg. Corp. v. Chateau Deville Apts. P’ship, No. 02-1845, 2003 U.S. Dist. LEXIS

12402, at *4–5 (E.D. La. July 15, 2003) (Vance, J.); see also Tango Transp., L.L.C. v. Transp. Int’l Pool, Inc., No.

08-0559, 2011 U.S. Dist. LEXIS 37225, at *12–21 (W.D. La. Mar. 15, 2011) (conducting same analysis). “When the

nature and extent of the services of an attorney are shown by the record, it is the duty of the court to bring to bear its

knowledge on the value of the services of counsel and to fix the value even in the absence of expert testimony.” Sewell

v. Sewerage & Water Bd. of New Orleans, 2018-0996 (La. App. 4 Cir. 5/29/19), writ denied, 2019-01166 (La.

10/15/19), 280 So. 3d 612. Furthermore, the Fifth Circuit found that a district court did not err in applying the lodestar

method to determine attorney’s fees where Louisiana law applied. Chevron USA, Inc. v. Aker Mar. Inc., 689 F.3d 497,

505 (5th Cir. 2012).

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reasonable fee from hours worked and reasonable hourly rate implicates the factors listed in Rule

1.5(a) and the Williamson factors.85 The GMAC court stated that “[a]mong the factors listed in

Rule 1.5(a) is ‘the fee customarily charged in the locality for similar legal services.’”86

In accord with prior federal district courts applying Louisiana law, this Court frames its

analysis by determining a reasonable fee award from the hours and rates set forth in the Plaintiff’s

motion.87

A. Considering the Hours Worked

Under Louisiana law, “a court does not have to hear evidence concerning the time spent or

hourly rates charged” and has “discretion in determining the amount of an attorney fee based upon

its own knowledge, the evidence, and its observation of the case and the record.”88 Federal courts

applying Louisiana law have considered prior jurisprudence under both federal and state law to

determine a reasonable fee award while weighing the factors expressed in Rule 1.5(a) and

Williamson.89

85 Id. at *4–9.

86 Id. at *4–5.

87 see, e.g., Verizon Bus. Global LLC v. Hagan, No. 07-0415, 2010 U.S. Dist. LEXIS 127322, at *5 (E.D.

La. Oct. 22, 2010) (“[T]he court should consider the entire record, including discovery, pretrial motions, the legal

issues involved, and the length of trial. . . . Therefore, because an hourly rate more properly takes the relevant factors

into account, an hourly rate is the proper way to award reasonable attorney’s fees in this matter.”) (citation omitted).

88 Stanley v. Crowell & Owens, LLC, No. 15-395, p. 4 (La. App. 3d Cir. 10/7/2015), 175 So. 3d 1204, 1207.

89 See, e.g., Uptown Grill, LLC v. Shwartz, No. , 2021 U.S. Dist. LEXIS 254542, at *25 (E.D. La. Dec. 8,

2021) (Van Meerveld, M.J.) (conducting a lodestar analysis to determine a reasonable fee award for claims under

Louisiana law and subsequently considering the Williamson factors, the court stated that “[w]ith regards to results

obtained . . . . The court has already addressed this concern in assessing the reasonable hours expended above, which

resulted in a significant reduction of” the prevailing party’s fees); Hagan, 2010 U.S. Dist. LEXIS 127322, at *5.

14

A court may reduce the claimed award where the party submits inadequate documentation

of the hours reasonably expended or fails to exercise billing judgment.90 The Fifth Circuit has held

that parties “do not have a right to bill for inadequately documented time or for time on issues on

which they do not prevail.”91 Furthermore, the Supreme Court stated in Hensley v. Eckerhart, that

“[w]here documentation is inadequate, the district court may reduce the award accordingly.”92 The

Fifth Circuit has elaborated that “if there is no evidence of billing judgment . . . 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.”93

In Verizon Business Global LLC v. Hagan, another court in the Eastern District of

Louisiana reduced the prevailing party’s fee award for requests that omitted descriptions in billing

records, included duplicated entries, or where the party fails to exercise billing judgment.94 The

prevailing party in Hagan submitted documentation with numerous vague and duplicative entries

in its fee request.95 The Court applied federal and state case law to determine a reasonable fee

award, and reduced hours for unexplained billing entries and time spent on unsuccessful issues.96

90 Wegner v. Standard Ins., 129 F.3d 814, 822 (5th Cir. 1997).

91 Walker v. HUD, 99 F.3d 761, 769 (5th Cir. 1996) (citing Tex. St. Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 784 (1989)); Leroy, 831 F.2d at 585–86 (vacating attorneys’ fee award where district court

“accepted in toto the number of hours evidenced by the records.”).

92 461 U.S. at 433.

93 Walker v. City of Mesquite, 313 F.3d 246, 251 (5th Cir. 2002); Hagan, 2010 U.S. Dist. LEXIS 127322, at

*6 (applying federal case law to reduce hours in attorneys’ fee award based under state law).

94 Hagan, 2010 U.S. Dist. LEXIS 127322, at *5.

95 Id. at *13–16 (detailing counsel’s failure to exercise billing judgment before filing its fee application).

96 Id. at *23–24 nn. 8–11 (reducing hours billed based on failure to exercise billing judgment, duplicative

work product, or unexplained billing entries).

15

Here, the Court cannot examine whether Plaintiff’s counsel exercised billing judgment due

to the lack of documentation included in the fee application. The Court cannot discern which hours

were not attributable to the ultimate result achieved and cannot account for travel or tasks routinely

excluded under the Williamson analysis.97 Therefore, the Court deducts a percentage of the fee

award to account for time billed which cannot be included in a reasonable award based on the

Court’s “own knowledge, the evidence, and its observation of the case and the record.”98

Plaintiff’s fee application indicates that partner Zimmer billed 405.67 hours and associate

Jonathan Lewis (“Lewis”) billed 399.2 hours.99 While Plaintiff’s counsel avers that “[t]he attorney

time was contemporaneously recorded,” Plaintiff failed to provide billing records, time entries, or

other documentation beyond a statement of the total hours worked in this matter.100 The failure to

provide detailed documentation to demonstrate an exercise of billing judgment or account for

issues Plaintiff did not prevail on warrants a reduction of the fee award.101 Accordingly, the Court

deducts 35% from the fee award to account for the vagueness and lack of documentation in the

97 The Court notes that Plaintiff was unsuccessful in defending against Defendant’s partial motion to dismiss

which disposed of Plaintiff’s claims for damages prior to May 2018, which factors into the first factor of “the ultimate

result obtained.” See Rec. Doc. 27 at 23. The Court considers this factor in rendering the deduction of hours from the

reasonable fee award calculation.

98 Crowell & Owens, LLC, 175 So. 3d at 1207–08. Furthermore, federal district courts determining a

reasonable fee award have reduced fee awards for lack of documentation where the hours excluded from the award

are not clearly discernable from the record. See, e.g., Jumonville v. City of Kenner, No. 06-4022, 2009 U.S. Dist.

LEXIS 112369, at *11–12 (E.D. La. Nov. 6, 2009).

99 Rec. Doc. 96-3 at 4.

100 See Rec. Doc. 96-3 at 4.

101 See Jumonville, 2009 U.S. Dist. LEXIS 112369, at *12.

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attorneys’ fee request and the time spent on matters not attributable to the ultimate result

obtained.102

B. Reasonable Hourly Rates

“Hourly rates are to be computed according to the prevailing market rates in the relevant

legal market, not the rates that lions at the bar may command.”103 “Louisiana federal courts sitting

in diversity have applied both federal and state cases to determine whether a requested rate reflects

rates actually charged in the community.”104 It is the plaintiff’s burden to “produce satisfactory

evidence . . . that the requested rates are in line with those prevailing in the relevant community

for similar services by lawyers of reasonably comparable skill, experience and reputation.”105

However, where the parties do not contest the stated hourly rate, it is prima facie reasonable.106 In

White v. Imperial Adjustment Corp., another court in the Eastern District of Louisiana accepted a

102 Id. The Court notes that the Fifth Circuit has stated that “[l]itigants take their chances when submitting []

fee applications” with inadequate documentation. La. Power, 50 F.3d at 326–27. Federal courts have similarly reduced

the fee award where the applicant submitted at least some billing logs, travel records, or other forms of documentation

more substantial than in the instant case. See id. at 326 (reducing fee award by ten percent for inadequate

documentation due to vagueness on submitted documents in fee application); H.J. v. Flygt Corp., 925 F.2d 257, 260

(8th Cir. 1991) (affirming a twenty percent reduction of fee award for inadequate documentation for fee application

where court could not meaningfully review the billable entries); Watkins, 7 F.3d at 458 (issuing a ten percent reduction

because travel logs submitted were vague and block billed).

103 Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir. 2000) (quotations and citation omitted).

104 Aker Mar. Inc., 689 F.3d at 505 (holding that applying the lodestar method to determine an attorney’s fee

award under Louisiana law is proper because the factors used in Williamson analysis are “very similar to those used

in the federal ‘lodestar’” method); Cashman Equip Corp. v. Smith Mar. Towing Corp., No. 12-94, U.S. Dist. LEXIS

201700, at *4 (E.D. La. June 27, 2013) (holding same where Louisiana law could have applied to the claims);

Receivables Exch., LLC v. Adv. Tech. Servs., No. 14-0668, 2015 U.S. Dist. LEXIS 64562, at *9 (E.D. La. Apr. 28,

2015) (Roby, M.J.).

105 Wheeler v. Mental Health & Mental Retardation Auth. of Harris Cty., Tex., 752 F.2d 1063, 1073 (5th Cir.

1985).

106 Powell v. Comm’r, 891 F.2d 1167, 1173 (5th Cir. 1990).

17

party’s requested hourly rate as their “customary billing rate,” because the “rate [was] within the

range of prevailing market rates and the rate [was] not contested.”107

Here, Defendant does not challenge the hourly rates of Zimmer and Lewis.108 Just as in

White, Plaintiff’s counsel submitted an affidavit indicating their firm “typically bills senior

attorneys from $350-$400 per hour and associates from $200-$250 per hour.”109 Under these facts,

this Court finds that a rate of $350 per hour for Zimmer and a rate of $200 per hour for Lewis are

their customary rates and therefore appropriate.110 A quick review of recent attorneys’ fee awards

in the Eastern District of Louisiana justifies this Court’s findings that senior attorneys such as

Zimmer have typically commanded hourly billing rates between $350 and $400 while associates

with the same or similar experience as Lewis command hourly billing rates between $175 and

$250.111

107 No. 99-3804, 2005 U.S. Dist. LEXIS 13382, at *16 (E.D. La. June 28, 2005) (Englehart, J.).

108 In their opposition, Defendant asserts that the hourly rates needed to justify the “requested attorney fee

recovery of $558,665.97” is “more than twice the rates that Plaintiff’s counsel would charge in the absence of the

contingency fee arrangement and cannot under these circumstances be considered ‘customary’ as required under the

lodestar method.” Rec. Doc. 103 at 10. However, this Court has already addressed that the lodestar method and

contingency fee agreements are not binding on the award of fees because the fees are governed by Louisiana law.

109 Rec. Doc. 96-3 at 2.

110 Zimmer is head of the litigation practice group at Davillier Law Group and has practiced commercial

litigation for over 20 years. See Charles F. Zimmer II, https://www.davillierlawgroup.com/our-professionals/charles-

f-zimmer-ii/ (last visited December 5, 2022). Lewis is an associate with approximately five to six years of experience.

See Jonathan D. Lewis, https://www.davillierlawgroup.com/our-professionals/jonathan-d-lewis/ (last visited

December 5, 2022).

111 See, e.g., Adams v. City of New Orleans, No. 13- 6779, 2015 U.S. Dist. LEXIS 99682, at *3 (E.D. La. July

30, 2015) (awarding rate of $350 per hour reasonable for an attorney with 29 years of experience); M.C. Bank & Tr.

Co. v. Suard Barge Serv. Inc., No. 16-14311, 2017 U.S. Dist. LEXIS 203744, at *5–6 (E.D. La. Dec. 12, 2017) (finding

$350 per hour was a reasonable hourly rate for an attorney with approximately seventeen years of experience); Batiste

v. Lewis, No. 17-4435, 2019 U.S. Dist. LEXIS 63299, at *4–9 (E.D. La. Apr. 12, 2019) (determining that $375.00 per

hour is a reasonable rate for a partner with 35 years of experience and $200 per hour is a reasonable rate for an associate

with 5 years of experience).

18

Furthermore, the ultimate result obtained and amount of money involved were significant,

however the Court notes that the issues involved in this case were not particularly complex.112

Federal district courts in Louisiana have applied these Williamson factors to justify the hourly rate

set in the fee award calculation.113 Considering the experience of Plaintiff’s counsel and the

relevant Williamson and Rule 1.5(a) factors, the Court finds that $350 and $200 hourly billing rates

are reasonable for Zimmer and Lewis respectively.

C. Calculating the Final Award

Finally, this Court determines the fee award by multiplying the reasonable number of hours

expended on the case by the reasonable hourly rates for the participating lawyers.114 In sum,

Plaintiff requests an award of $141,984.50 for work performed by Zimmer (405.67 hours at $350

per hour) and $79,840.00 for work performed by Lewis (399.2 hours at $200 per hour).115 For the

reasons discussed above, the Court reduces the award requested by 35% to account for the lack of

specificity in the fee application and for Plaintiff’s work dedicated to issues not attributable to the

ultimate result obtained. Therefore, the Court awards Plaintiff a total attorneys’ fee award of

$144,185.92.116

112 Prior federal courts have held the same in cases that involve breach of contract claims, foreclosure sales,

and/or security rights with final judgments exceeding $1 million. See, e.g., GMAC Commer. Mortg. Corp., 2003 U.S.

Dist. LEXIS 12402, at *6. As stated above, this is a breach of contract claim, and the Court finds that the issues

implicated were not particularly complex as to warrant alteration of the fee award.

113 See id.

114 Fourchon Docks, Inc., 849 F.2d at 1568; see also Migis, 135 F.3d at 1047 (citing La. Power, 50 F.3d at

324).

115 $141,984.50 + $79,840 = $221,824.50.

116 $221,824.50 x .75 = $144,185.92.

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D. Expenses

In addition to attorneys’ fees, Plaintiff requests an additional $31,315.06 in expenses.!!7

Plaintiff provides an itemized “Cost/Expense Application” in support of this request.!!* Defendant

does not contest any of the itemized expenses. The expenses requested are reasonable for a case

that went to trial and involved a contractual relationship between two business entities spanning

longer than a decade. Accordingly, the expenses Plaintiff requests are recoverable.

V. Conclusion

Accordingly,

IT IS HEREBY ORDERED that Plaintiff's Motion for Attorneys’ Fees!!? is GRANTED

IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Plaintiff is hereby awarded $175,550.98 in attorneys’

fees and costs recoverable against Defendant.

NEW ORLEANS, LOUISIANA, this 21st day of December, 2022.

NANNETTE JOEIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

8 Rec. Doc. 96-3 at 4-6.

19 Rec. Doc. 96.

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