Menard v. Targa Resources LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

KIRK MENARD CIVIL ACTION

VERSUS

TARGA RESOURCES, LLC NO. 19-00050-BAJ-SDJ

RULING AND ORDER

On August 17, 2028, the United States Court of Appeals for the Fifth Circuit

issued its mandate affirming this Court’s March 31, 2022 Judgment in favor of

Plaintiff Kirk Menard, and against his former employer Defendant Targa Resources,

LLC. (Doc. 151). Now before the Court is Plaintiffs Motion For Attorney Fees And

Costs (Doc. 139), and Plaintiffs Motion To Alter Or Amend Final Judgment

Regarding Interest Owed On Award Of Lost Wages (Doc. 141). Defendant

opposes only Plaintiffs request for attorneys’ fees. (Doc. 143). For reasons to follow,

Plaintiffs motion for attorneys’ fees will be granted in part, Plaintiffs motion to

amend the March 31 Judgment will be granted, and an amended judgment will be

issued reflecting the relief set forth herein.

I. BACKGROUND

To recall, Defendant employed Plaintiff as an Environmental Safety and

Health Specialist at its facility in Venice, Louisiana. On October 5, 2018, Defendant’s

District Manager, Perry Berthelot, instructed Plaintiff to dilute sewage samples in

order to pass regulatory checks. Plaintiff refused and reported Berthelot’s illegal

directive to his supervisor, for which Plaintiff was fired. See Menard v. Targa Res.,

L.L.C., 56 F.4th 1019, 1020-21 (5th Cir. 2028).

On January 10, 2019, Plaintiff initiated this action in the Nineteenth Judicial

District Court for the Parish of East Baton Rouge, Louisiana, alleging retaliation in

violation of the Louisiana Environmental Whistleblower Statute, La. R.S. § 30:2027

(““LEWS”). (Doc. 1-2; see also Doc. 14). Defendant removed Plaintiffs action to this

District where, after two years of hard fought litigation, Plaintiff prevailed in his

retaliation claim following a two-day bench trial. (See Docs. 122, 130, 134, 135). Prior

to trial, Plaintiff defeated multiple dispositive motions, (see Docs. 37, 76), and

engaged in multiple discovery and pre-trial evidentiary disputes, (see Docs. 50, 71,

115).

On March 31, 2022, the Court entered its judgment awarding Plaintiff lost

wages totaling $119,586 (treble damages on six months of lost wages), various

categories of lost benefits, and attorneys’ fees in an amount to be determined by the

Court. (Doc. 135). Relevant here, the March 31 Judgment did not expressly award

Plaintiff interest on his lost wages, despite having expressly awarded Plaintiff

interest for all categories of lost benefits. (See id.).

On April 11, 2022, Defendant filed its notice of appeal. (Doc. 137). Three days

later, on April 14, 2022, Plaintiff filed his motion for attorneys’ fees, costs, and legal

expenses. (Doc. 139). On April 26, 2022, Plaintiff followed with his motion to alter the

March 31 Judgment to make clear that his lost wages award was also subject to an

award of interest. (Doc. 141). On April 28, 2022, Defendant filed its response,

opposing Plaintiffs request for attorneys’ fees, but stating no opposition to Plaintiffs

request for costs and expenses, or Plaintiffs request to amend the March 31

Judgment to reflect an award of interest on his lost wages award. (Doc. 143).

On August 17, 2023, the Fifth Circuit issued its mandate affirming the March

31 Judgment, (Doc. 151), clearing the way for the Court’s consideration of Plaintiffs

post-judgment motions.

II. ANALYSIS

The Court’s analysis proceeds in two parts. First, the Court considers

Plaintiff's request to amend the March 31 Judgment to expressly state that his award

of lost wages is also subject to an award of interest, pursuant to Federal Rule of Civil

Procedure (“Rule”) 59(e). Second, the Court considers Plaintiffs request for award of

attorneys’ fees, costs, and legal expenses, pursuant to Rule 54(d).

A. Plaintiff's unopposed request to amend the Court’s March 31

Judgment to reflect an award of interest on Plaintiffs award of

lost wages will be granted, pursuant to Rule 59(e)

“A Rule 59(e) motion calls into question the correctness of a judgment.” Templet

v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004 (quotation marks omitted).

“Rule 59(e) allows a party to direct the district court’s attention to newly discovered

material evidence or a manifest error of law or fact and enables the court to correct

its own errors and thus avoid unnecessary appellate procedures.” Mitgmaurice v.

United States, No. 96-cv-3064, 2001 WL 306660, at *1 (S.D. Tex. Feb. 22, 2001)

(Rainey, J.) (quoting Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997)); see also

Meghani v. Shell Oil Co., No. 00-cv-0547, 2000 WL 33998306, at *1 (S.D. Tex. Aug.

24, 2000) (Atlas, J.) (same, quoting Divane v. Krull Elec. Co., Inc., 194 F.3d 845, 848

(7th Cir. 1999)).

“State law governs the award of prejudgment interest in diversity cases.”

Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 172 (5th Cir. 2010) (quotation

marks omitted). Relevant here, Louisiana law provides for “[l]egal interest ... from

date of judicial demand, on all judgments, sounding in damages, ‘ex delicto.” La. R.S.

§ 18:4203. Plaintiffs claim of retaliatory discharge is a tort action, see Portie v. Devall

Towing & Boat Serv., Inc., 637 So. 2d 1061 (La. 1994), and is therefore subject to pre-

judgment interest under § 13:4203.

Plaintiff specifically prayed for legal interest from the date of judicial demand.

(Doc. 14 at p. 11). The Court’s March 31 Judgment was obviously incomplete (and

therefore incorrect) to the extent that it failed to state that Plaintiffs treble damages

award of $119,586 for lost wages also is subject to interest. Further, the award of

interest attaches to the whole (trebled) lost wages award. Brown v. Catalyst Recovery

of Louisiana, Inc., 2001-1370 (La. App. 3 Cir. 4/3/02), 818 So. 2d 1156, 1171.

In sum, absent any objection from Defendant, the Court finds that its March

31 Judgment was incomplete, and did not accurately reflect Plaintiffs lawful award

of interest on his lost wages. Pursuant to Rule 59(e), the Court’s March 31 Judgment

will be amended to state that Defendant shall pay Plaintiff treble damages on six

months of lost wages of $39,862 for a total of $119,586, plus interest from the date of

judicial demand on the total (trebled) lost wages award.

B. Plaintiff's unopposed request for costs and expenses will be

granted, pursuant to Rule 54(d)(1)

Under Rule 54(d)(1), an award of costs to the prevailing party is almost (but

not quite) automatic: “denial of costs is in the nature of a penalty for some defection

... In the course of the litigation,” and therefore must be justified by a reasoned

decision. Schwarz v. Folloder, 767 F.2d 125, 181 (5th Cir. 1985) (quoting Walters v.

Roadway Exp., Inc., 557 F.2d 521, 526 (5th Cir. 1977)); see also Yellow Pages Photos,

Inc. v. Ziplocal, LP, 846 F.3d 1159, 1166 (11th Cir. 2017) (“Under Rule 54(d), there is

a strong presumption that the prevailing party will be awarded costs.” (quotation

marks omitted)). Additionally, the LEWS expressly provides that a prevailing

plaintiff may recover “all costs of preparing, filing, prosecuting, appealing, or

otherwise conducting a law suit.” La. R.S. § 30:2027(B)(1).

Plaintiff seeks an award of costs and expenses in the amount of $17,905.28.

(Doc. 139 at 1). Plaintiff supports his request with declarations from counsel, and an

itemized list and receipts showing that these expenses arose from the litigation, and

are attributable to filing fees, postage, printing costs, court reporter deposition and

transcript fees, travel expenses and accommodations, records requests, and trial

transcripts. (See Doc. 139-2 at 3; see also Doc. 139-3 at 3-4, 15-36). Absent any

objection from Defendant, the Court finds that all costs and expenses claimed by

Plaintiff were necessarily obtained for use in the case, and are properly compensable

under Rule 54(d)(1) and La. R.S. § 30:2027(B)(1). See Marmillion v. Am. Int'l Ins. Co.,

381 F. App'x 421, 429 (5th Cir. 2010) (“Costs related to the taking of depositions are

allowed under § 1920(2) and (4) ‘if the materials were necessarily obtained for use in

the case.” (citing authorities)); Brown, 813 So. 2d at 1170 (broadly construing §

30:2027(B)(1) to include “[c]osts of depositions not introduced at trial and travel costs

associated with taking depositions”). The March 31 Judgment also will be amended

to reflect an award of costs and expenses to Plaintiff in the amount of $17,905.28.

C. Plaintiffs request for attorneys’ fees will be granted in

substantial part, pursuant to Rule 54(d)(2)

Under Rule 54(d), a prevailing party generally may not recover attorneys’ fees

unless such fees and expenses are specifically provided by “statute, rule, or other

grounds entitling the movant to the award.” See Fed. R. Civ. P. 54(d)(2)(B)(ii). The

LEWS expressly provides that a prevailing plaintiff is entitled to recovery of

attorneys’ fees. La. R.S. § 30:2027(B)(1). Accordingly, the March 31 Judgment

includes a fee award, in an amount “to be determined by the Court pending Plaintiffs

motion for attorney’s fees.” (Doc. 135).

Now, Plaintiff seeks a fee award totaling $428,263.50, which, Plaintiff

explains, represents “a lodestar figure of $285,509.00 based [on] a total of 991.8 hours

at the applicable rates set forth in ... the declarations of attorneys Eulis Simien, Jr.

and Roy Bergeron, Jr. ..., plus an adjustment of an additional 50% of the lodestar

figure.” (Doc. 139).

Defendant concedes that the LEWS entitles Plaintiff to a fee award. (Doc. 143-

5 at 9). Further, Defendant “does not dispute the reasonableness of Plaintiffs

attorneys’ [claimed hourly] rates.” Ud. at 10). Still, Defendant raises three objections

to Plaintiff's fee demand: (1) counsels’ declarations and contemporary timesheets

submitted in support of Plaintiffs’ fee demand are “inadmissible hearsay”; (2)

counsels’ claim to compensation for 991.8 hours is unreasonable and should be

reduced because certain time is “duplicative,” related to travel, or arises from

“unsuccessful, unnecessary, and unproductive tasks”; and (8) no evidence supports a

50% upward adjustment of the lodestar figure. (Id. at 6-22). Additionally, to the

extent its objections are overruled, Defendant “requests the opportunity to conduct

limited discovery into the billing records submitted by Plaintiffs counsel in support

of his motion.” (/d. at 22). The Court considers each of Defendant’s objections, in turn.

i. Defendant’s hearsay objection will be overruled

Defendant's hearsay objection is a non-starter. (Doc. 143-5 at 7).

Unquestionably, “[a] federal district court may fix attorneys' fees on the basis of

affidavits and may even do so on its own experience without any testimony.” Resol.

Tr. Corp. v. Tassos, 764 F. Supp. 442, 443 (S.D. Tex. 1990) (Kazen, J.) (citing

authorities). This Court’s Local Civil Rules expressly provide that “[i]Jn all cases

where attorney's fees are sought, the party desiring to be awarded such fees shall

submit to the Court a contemporaneous time report reflecting the date, time involved,

and nature of the services performed. The report shall be in both narrative and

statistical form and provide hours spent and justification thereof.” M.D. La. LR

54(b)(1). Here, counsels’ declarations and timesheets submitted in support of

Plaintiffs’ fee demand are specifically tailored to comply with the Local Rules. Even

assuming that that the rule against hearsay applies at this stage, counsel attest to

the accuracy of their timesheets and expense reports, further stating that all time,

costs, and expenses were contemporaneously recorded, (Doc. 139-3 at 1-3, Doc. 139-4

at 1-3), thus satisfying the demands of the business records exception, Fed. R. Evid.

808(6). E.g., Whatley v. Creditwatch Servs., Litd., 2014 WL 1287131, at *3 (E.D. Tex.

Mar. 31, 2014) (Schell, J.) (overruling defendant’s hearsay objection to attorney

affidavits and timesheets submitted in support of fee demand, where attorney

affidavits stated “that the time entries are accurate and were contemporaneously

entered into the firm's computer database”). Defendant’s hearsay objection is

overruled. E.g., Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1030 (5th Cir. 1980)

(“We perceive no error in the use of affidavits for [determining reasonable attorneys

fees]. Indeed, a district judge may fix attorneys fees on the basis of his own experience

without the assistance of any testimony.” (citations omitted)); Advocacy Center v.

Cain, No. 12-cv-00508, 2014 WL 1246840, at *38-*6 (M.D. La. Mar. 24, 2014) (Jackson,

J.) (awarding attorney fees and costs based on attorney affidavits identifying

experience and rates, plus timesheets).

ii. “Lodestar” standard

The parties agree that the Fifth Circuit’s “lodestar” analysis determines the

reasonableness of Plaintiffs fee request. A lodestar is calculated by multiplying the

number of hours reasonably expended by an appropriate hourly rate in the

community for such work. Migis v. Pearle Vision, Inc., 185 F.8d 1041, 1047 (5th Cir.

1998). After making this calculation, the Court may decrease or enhance the lodestar

based on the relative weights of the twelve factors originally set forth in Johnson. v.

Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Id.

The factors are: (1) the time and labor required for the litigation; (2) the

novelty and difficulty of the questions presented; (8) the skill required

to perform the legal services properly; (4) the preclusion of other

employment by the attorney due to acceptance of the case; (5) the

customary fee; (6) whether the fee is fixed or contingent; (7) time

limitations imposed by the client or the circumstances; (8) the amount

involved and the result obtained; (9) the experience, reputation and

ability of the attorneys; (10) the “undesirability” of the case; (11) the

nature and length of the professional relationship with the client; and

(12) awards in similar cases.

Id. (citing Johnson, 488 F.2d at 717-19).

Importantly, a lodestar enhancement is appropriate “only in certain

exceptional cases where the prevailing party demonstrates that the enhancement is

necessary to make the lodestar reasonable.” Cooper v. Pentecost, 77 F.3d 829, 833 (5th

Cir. 1996). Moreover, the lodestar may not be enhanced due to a Johnson factor “if

the creation of the lodestar award already took that factor into account. Such

reconsideration 1s impermissible double-counting.” Heidtman v. Cnty. of El Paso, 171

F.3d 1038, 10438 (5th Cir. 1999).

a. Reasonable hourly rates

Plaintiff proposes a fee award based on the following hourly rates: Mr. Simien,

a named partner at the Simien & Simien firm, with 40 years of legal experience in

federal and state courts throughout the Gulf South, $400/hour, (Doc. 139-3 at 2); Mr.

Bergeron, a senior attorney at the Simien & Simien firm, with 12 years of legal

experience in federal and state courts in Louisiana and Mississippi, $300/hour;

paralegals, $90/hour. Again, Defendant does not dispute the reasonableness of these

rates in the local legal market. (Doc. 148-5 at 10). Accordingly, the Court approves

Plaintiffs proposed hourly rates without adjustment.

b. Reasonable hours expended

Plaintiffs proposed fee award is based on 991.8 hours claimed to have been

expended in the course of litigating this matter, consisting of 161.6 hours claimed by

Mr. Simien, 696.0 hours claimed by Mr. Bergeron, and 134.1 hours claimed by two

paralegals. (See Doc. 139-2 at 7). Defendant counters: (1) Mr. Bergeron improperly

claims 66 hours that are duplicative of hours expended by Mr. Simien, (Doc. 143-5 at

13); (2) Mr. Simien’s and Mr. Bergeron’s “time spent traveling” should be reimbursed

at only 50% of their regular hourly rates, (id. at 14-15); and (8) all hours related to

Plaintiffs unsuccessful bid to resist “discovery of the photograph” that Defendant

claimed was the basis of Plaintiffs termination should be stricken, (id. at 15).

1. Duplicative hours

First, Defendant complains that Mr. Bergeron exercised unreasonable “billing

judgment” for having claimed 66 hours related to preparing for, traveling to, and

attending 13 depositions also attended by Mr. Simien. The Court cannot agree.

No rule prohibits multiple attorneys from billing time related to attendance at

the same deposition. See Walker v. U.S. Dep't of Hous. & Urb. Dev., 99 F.3d 761, 768

(5th Cir. 1996) (affirming award of attorney fees based, in part, on hours claimed by

multiple attorneys for the same hearings and depositions). Instead, whether to allow

or discount “duplicative” time is simply a question of whether the “particular hours

claimed were reasonably expended.” Jd. (quotation marks omitted).

If more than one attorney is involved, the possibility of duplication of

effort along with the proper utilization of time should be scrutinized.

The time of two or three lawyers in a courtroom or conference when one

would do, may obviously be discounted.

Id.

Notably, all 13 depositions that Defendant complains of involved witnesses

that appeared on Defendant’s list for trial. (Compare Doc. 148-5 at 12, with Doc. 74

at 13-19). Five of these witnesses—Plaintiff Kirk Menard, Theodore Keller, Nicholas

Richard, Perry Berthelot, and Tricia Dodson—provided live testimony at trial, (Doc.

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122, Doc. 130), seven more—Elizabeth Hawkins, Jarrod Gregg, Jordie Ancalade,

Keith Adams, Jasper Harvey, Tony Williams, and Dawn Strickland—were

designated to appear by deposition, (Doc. 74 at 19-20). Mr. Bergeron represented

Plaintiff from start to finish, and plainly pulled the laboring oar, drafting multiple

pleadings and oppositions to dispositive motions, (e.g., Doc. 1-2 at 9; Doc. 14 at 12;

Doc. 20 at 11; Doc. 65 at 22), appearing at multiple conferences, (e.g., Doc. 24; Doc.

27; Doc. 44), examining multiple witnesses at trial, (see Doc. 123 at 3; Doc. 124 at 3),

and even drafting multiple briefs on appeal to the Fifth Circuit, (see Menard v. Targa □

Resources, No. 22-30178, Doc. 33, Doc. 79). Plainly, Mr. Bergeron’s familiarity with

the witness testimony provided at these depositions was critical to his factual

understanding of the case.

On this record, and given Mr. Bergeron’s substantial contribution to the

outcome of this case, the Court easily determines that his attendance at these

depositions was appropriate and reasonable. Defendant’s objection is overruled. E.g.,

Walker, 99 F.3d at 768 (affirming fee award that included “duplicative billings” where

the district court “specifically considered each duplication and found it reasonable”);

Ball v. Leblanc, No. 13-cv-00368, 2015 WL 5749458, at *7 (M.D. La. Sept. 30, 2015)

(Jackson, J.) (overruling objections to charges for multiple attorneys to attend pre-

trial conference and other tasks, and recognizing that “[llawyers regularly collaborate

in preparation for trial”); Coe v. Chesapeake Expl., LLC, No. 09-cv-290, 2011 WL

4356728, at *4 (E.D. Tex. Sept. 15, 2011) (Ward, J.) (“[H]aving more than one

timekeeper attend depositions or meetings was reasonable in this case.”), aff'd 695

11

F.3d 311 (5th Cir. 2012).

2. Travel time

Next, Defendant objects that Mr. Simien and Mr. Bergeron each unreasonably

billed their travel time at their full hourly rates.

The Fifth Circuit affords the Court discretion to reduce an attorney’s hourly

rate for travel time, particularly when the time claimed is “inadequately documented,

excessive, or duplicative.” See Watkins v. Fordice, 7 F.8d 458, 458 (5th Cir. 1993).

Still, “reasonable attorney's fees generally include ‘reasonable travel time billed at

the same hourly rate as the lawyer's normal working time’ because an attorney's

travel time on behalf of one client represents ‘an opportunity cost that is equal to the

fee he would have charged [to] another client if he had not been traveling.” Taylor v.

Washington Mut. Inc., No. 3:04-cv-0521, 2015 WL 5024508, at *9 (W.D. La. Aug. 24,

2015) (Drell, J.) (quoting Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984)).

Defendant asserts that counsels’ billing records “contain 147 hours of time

billed between Mr. Eulis Simien and Mr. Roy Bergeron—totaling $47,000.00—for

travel-related entries.” (Doc. 148-5 at 13). Defendant fails to provide any explanation

for how it arrives at this number, such as an itemized list of the alleged “travel time”

billing entries. Still, this statement, unadorned, raises eyebrows, given that counsels’

travel appears to have included only trips for depositions in New Orleans (a 1.5 hour

drive from Baton Rouge), Lake Charles (a two hour drive from Baton Rouge), and

Houston (a one hour flight from Baton Rouge). (See Doc. 139-3 at 10; Doc. 139-4 at 9-

11).

A closer look, however, reveals Defendant’s sleight of hand: Defendant’s “travel

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time” calculation is inclusive of all counsels’ hours claimed for a particular day when,

plainly, counsels’ billing records reflect that only a portion of that day was reserved

for travel. (See Doc. 148-5 at 14).

The Court will not succumb to Defendant’s parlor tricks. Mr. Simeon’s billing

records reflect six travel days, each of which also included attending at least one

deposition. (Doc. 139-3 at 10). On the longest of these days—July 30, 2019—Mr.

Simeon billed 12 hours, which included a roundtrip to Houston. Ud.). Mr. Bergeron’s

billing records reflect nine travel days, each of which also included attending at least

one deposition. (Doc. 139-4 at 9-11). On the longest of these days—August 6, 2019—

Mr. Bergeron billed 12 hours, which also included a roundtrip to Houston. (Doc. 139-

4 at 10). Only one of counsels’ travel days was related to a deponent that did not

ultimately appear on Defendant’s trial list—specifically, when Mr. Bergeron traveled

to Lake Charles on December 10, 2019 to attend the deposition of Matt Fitzgerald.

(Compare Doc. 74 at 13-19, with Doc. 139-3 at 10, and Doc. 1389-4 at 9-11). As such,

the Court finds that counsels’ travel was necessary, and necessarily came at the

expense of regular billing time that counsel could have devoted to other clients. A

reduction of counsels’ billing rates is not warranted, and Defendant’s objection is

overruled. E.g., Taylor, 2015 WL 5024508, at *9-*10 (declining to reduce counsel’s fee

award to account for “travel time,” explaining that “just because an attorney travels

of necessity does not justify the reduction of his or her billing time” (emphasis in

original)).

3. Unproductive tasks

Finally, Defendant objects to reimbursement of 41.7 hours related to

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Plaintiffs unsuccessful bid to resist “discovery of the photograph” that Defendant

claimed was the basis of Plaintiff's termination, consisting of 7.0 hours claimed by

Mr. Simien and 34.7 hours claimed by Mr. Bergeron. (Doc. 148-5 at 15).

“When using the lodestar method to award attorney fees, courts routinely

deduct time spent on unsuccessful, unfounded or unnecessary pleadings, motions,

discovery requests and memoranda.” White v. Imperial Adjustment Corp., No. 99-cv-

3804, 2005 WL 1578810, at *11 (E.D. La. June 28, 2005) (Engelhardt, J.) (citing

authorities). Here, the photograph at issue depicted Plaintiffs pregnant fiancé’s

hemorrhoids. (See Doc. 50 at 1-2). Plaintiff shared the photograph with his co-workers

in the workplace, which, Defendant contended, violated its workplace policies and

was cause for Plaintiffs termination. (See id.). Throughout the case, Defendant’s

affirmative defenses included that it fired Plaintiff for “a legitimate, non-retaliatory,

and non-pretextual manner.” (Doc. 42 at 5). Defendant made multiple requests for

production of the photograph, and, when Plaintiff refused to yield, filed a motion to

compel. (Doc. 41).

The Court has already devoted too much time to the issue of whether or not

the photograph was discoverable. Plainly it was, as determined first by the

Magistrate Judge in his January 16, 2020 order granting Defendant’s motion to

compel, (Doc. 50), and again by this Court in its May 21, 2020 order denying Plaintiffs

appeal of the Magistrate Judge’s ruling, (Doc. 71). Plaintiff wasted considerable time

and resources—Defendant’s and the Court’s—opposing what was plainly a legitimate

and reasonable (albeit embarrassing) discovery request. Indeed, the Court expressly

14

noted in its May 21 Order that Plaintiffs appeal was merely a “rehash” of the same

unpersuasive arguments originally set forth in his opposition to Defendant’s motion

to compel. (Doc. 71 at 3).

On this record, the Court finds that counsels’ reasonable hours should not

include any hours related to Plaintiffs unreasonable failure to produce the

photograph. Defendant states, and Plaintiff does not dispute, that Mr. Simien and

Mr. Bergeron devoted 7.0 hours and 34.7 hours to this unproductive task,

respectively. (Doc. 143-5 at 15). Counsels’ reasonable hours will be reduced

accordingly.

c. Lodestar rate

In summary, having considered Defendant’s objections, and after making the

foregoing reductions in hours, the lodestar amount of reasonable hours multiplied by

the reasonable rates set forth above is as follows:

Eulis Simien, Jr. 154.6 hours @ $400/hour = $61,840

Roy Bergeron, Jr. 661.3 hours @ $300/hour = $198,390

Paralegals 134.1 hours @ $90/hour = $12,069

Total: $272,299

d. Lodestar adjustment

Finally, the Court must determine whether to decrease or enhance the

lodestar. Migis, 1385 F.3d at 1047. Plaintiff contends that counsel is entitled to a 50%

enhancement based on the following Johnson factors: (2) novelty and difficulty; (8)

skill; (4) preclusion of other employment; (8) the amount involved and the result

obtained; (9) experience and reputation of counsel; and (10) the “undesirability” of the

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case. (Doc. 1389-2 at 18-19).

Defendant does not seek a reduction of the lodestar, but opposes an

enhancement, noting that the Supreme Court and the Fifth Circuit each have

substantially restricted the degree to which the Johnson factors may be used to

increase the lodestar, and that, in any event, Plaintiff has failed to identify “any

specific evidence” supporting “any upward adjustment ..., much less an upward

adjustment by an additional 50%.” (Doc. 148-5 at 16-17 (emphasis in original)).

Controlling authority greatly limits the Court’s discretion to enhance the

lodestar based on five of the six Johnson factors identified by Plaintiff—specifically,

factors (2) novelty and difficulty; (8) skill; (4) preclusion of other employment; (8) the

amount involved and the result obtained; and (9) counsel’s reputation and ability—

because there is a “strong presumption” that the lodestar already accounts for these

factors. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010); see Walker v. U.S.

Dep't of Hous. & Urb. Dev., 99 F.3d 761, 771 & n.12 (6th Cir. 1996) (instructing that

“[t]he Supreme Court has limited greatly the use of the second, third, eighth, and

ninth factors” to enhance the lodestar (citing Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986)); Heidtman v. Cnty. of El

Paso, 171 F.8d 1038, 1048 (5th Cir. 1999) (“[T]his Court [has] observed that

‘preclusion of other employment’ is generally subsumed within the lodestar

amount.”). Thus, “[e]Jnhancements based upon these factors are only appropriate in

rare cases supported by specific evidence in the record and detailed findings by the

courts.” See Walker, 99 F.3d at 771-72 (quotation marks omitted); accord Heidtman,

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171 F.3d at 1043.

Plaintiffs claim for an adjustment based on Johnson factors 2, 3, 4, 8, and 9,

is conclusory, amounting to an assertion that Mr. Simeon and Mr. Bergeron each are

good at what they do, assumed the risk that they would not ultimately be successful,

fought hard for the result they obtained, and defeated multiple dispositive motions

before prevailing at trial. (See Doc. 139-2 at 15-19). The same can be said of practically

all contingency fee arrangements. These factors are presumably accounted for by the

lodestar, and Plaintiff has not provided “specific evidence” to overcome this

presumption. See Walker, 99 F.3d at 771-72 (vacating 20% lodestar enhancement

where counsel failed to support its request with reasonable specificity).

This leaves only the tenth Johnson factor, the “undesirability” of the case. To

be sure, the Court’s discretion when assessing the “undesirability” factor is not so

obviously constrained as when assessing the other Johnson factors. Still, however, in

support of an “undesirability’ enhancement, Plaintiff essentially re-packages its

arguments regarding the prior factors, stating that counsel assumed “significant risk

in taking on this case, and that the litigation was “difficult,” “with hotly contested

factual and legal disputes that had to be overcome.” (Doc. 139-2 at 19). Again, such

risk is already baked into the lodestar analysis. More fundamentally, such risk

simply is not “the type of undesirability contemplated by Johnson,” which aimed the

“undesirability” factor to encourage and compensate civil rights attorneys facing

social and economic backlash for their professional efforts to eradicate discrimination.

See Cajun Servs. Unlimited, LLC v. Benton Energy Serv. Co., No. 17-cv-491, 2020 WL

17

375596, at *10 (E.D. La. Jan. 23, 2020) (Ashe, J.) (quoting Martinez v. Refinery

Terminal Fire Co., No. 11-cv-00295, 2016 WL 4594945, at *9 (S.D. Tex. Sept. 2, 2016)

(Gonzales Ramos, J.); see also Cooper, 77 F.8d at 833-34 (affirming denial of

enhancement based on undesirability where, despite general negative stigma

associated with prisoner cases, attorneys were not subjected to oppressive,

unpleasant, or intimidating conditions).

In sum, Plaintiff has failed to show that this is the sort of “exceptional” case

that warrants a lodestar enhancement, and his request for an enhancement is denied.

Cooper, 77 F.3d at 833. A lodestar fee of $272,299 reasonably compensates Plaintiffs

counsel for their work. See id. The March 31 Judgment will be amended accordingly.

D. Defendant’s request for additional discovery will be denied

Based on Defendant’s concessions regarding the reasonability of counsels’

rates, the Court’s findings regarding the reasonability of counsels’ hours, and the

Court’s election not to enhance the lodestar, the Court further finds that additional

discovery will not aid the Court’s adjudication of Plaintiffs fee demand. As such,

Defendant’s request for “limited discovery into the billing records submitted by

Plaintiffs counsel in support of his motion” is denied. (See Doc. 148-5 at 22).

Ill. CONCLUSION

Accordingly,

IT IS ORDERED that Plaintiffs Motion For Attorney Fees And Costs

(Doc. 139) be an is hereby GRANTED IN PART, as set forth herein.

IT IS FURTHER ORDERED that Plaintiffs Motion To Alter Or Amend

Final Judgment Regarding Interest Owed On Award Of Lost Wages (Doc.

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141) be and is hereby GRANTED.

IT IS FURTHER ORDERED that the Court’s March 31 Judgment be and is

hereby AMENDED in favor of Plaintiff, and against Defendant, to reflect the

following:

e Defendant shall pay Plaintiff treble damages on six months of lost wages

of $39,862 for a total of $119,586, plus interest from the date of judicial

demand on the total (trebled) lost wages award;

e Defendant shall pay Plaintiffs reasonable costs and expenses of

$17,905.28, as determined herein.

e Defendant shall pay Plaintiffs reasonable attorneys’ fees in the amount

of $272,299, as determined herein.

Separately, the Court will issue an amended judgment that is consistent with

the relief set forth herein.

a yt

Baton Rouge, Louisiana, this day of August, 2021

JUDGE BRIAN A. J. SON

UNITED STATES D RICT COURT

MIDDLE DISTRICT OF LOUISIANA

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