Ramirez v. Lewis Energy Group, L.P.
Ramirez v. Lewis Energy Group, L.P.
Opinion of the Court
MEMORANDUM AND ORDER
A settlement was reached between the parties in this Fair Labor Standards Act (FLSA) collective action, and now pending before the Court is Plaintiffs’ Motion for Attorney’s Fees and Costs (Dkt. No. 49). Having reviewed the Parties’ submissions, the record, and the applicable law, Plaintiffs’ Motion (Dkt. No. 49) is GRANTED IN PART AND DENIED IN PART. For the reasons given below, the Court awards
I. Background
In February 2015, Luis Ramirez and five other named plaintiffs (Plaintiffs) sued Lewis Energy Group, L.P. and Lewis Resources Management, LLC (Defendants) to recover unpaid overtime wages under the FLSA. (Dkt. No. 1). Plaintiffs alleged that Defendants improperly classified them and other similarly situated “sample catchers” as independent contractors exempt from the FLSA’s overtime requirements. (Id.). In July 2015, the Court conditionally certified a collective action and authorized notice to similarly situated employees. (Dkt. No. 30). In total, sixteen additional individuals consented to join the collective action as opt-in plaintiffs; however, four were later dismissed without prejudice upon stipulation of dismissal (Dkt. No. 48).
In March 2016, the Parties notified the Court that they reached a settlement at mediation regarding damages, and that they agreed to submit the issue of attorney’s fees and costs to the Court for determination. Accordingly, Plaintiffs filed the instant Motion for Attorney’s Fees and Costs (Dkt. No. 49), seeking $39,295.75 in fees and $2,331.60 in costs, based upon the following calculations:
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Defendants filed a Response in opposition. (Dkt. No. 50). Defendants do not dispute that Plaintiffs are entitled to attorney’s fees or costs, but argue that Plaintiffs’ hourly rates are unreasonably high and that Plaintiffs’ time entries are excessive. (Dkt. No. 50). Plaintiffs replied that the calculations are appropriate, but withdrew requests for 1.3 hours of fees for Attorney Moore and 1.23 hours of paralegal time. (Dkt. No. 53). Defendants filed a Sur-Re-ply, reiterating that Plaintiffs’ fee calculátion is unjustified. (Dkt. No. 54).
II. Legal Standard for Attorney’s Fees
Under the FLSA, a prevailing plaintiff is entitled to reasonable attorney’s fees and costs. Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing 29 U.S.C. 216(b)). To determine appropriate attorney’s fees, courts in the Fifth Circuit multiply the reasonable hourly fee by the number of hours reasonably expended on the case to arrive at a “lodestar” figure. Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 799 (5th Cir. 2006). After calculating the lodestar, the court considers whether the figure should be adjusted upward or downward by looking to twelve factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-18 (5th Cir. 1974).
The party seeking attorney’s fees has the burden of establishing the reasonableness of the number of hours and rates billed, along with any entitlement to an upward adjustment. Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.O. 1933, 76 L.Ed.2d 40 (1983)); Perdue, 559 U.S. at 552, 130 S.Ct. 1662.
III. Analysis
A. Reasonable Hourly Rate
The first step is to determine counsel’s reasonable hourly rate. Reasonable hourly rates are determined on the basis of prevailing rates for attorneys of similar skill and experience in the relevant market. McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (citing Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). These rates are usually established through affidavits of other attorneys practicing in the relevant community. Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002). The relevant community refers to “the judicial district in which the litigation occurred (the Southern District of Texas), not the particular division in which the case was pending.” Bear Ranch, LLC v. Heartbrand Beef, Inc., No. 6.-12-CV-14, 2016 WL 3549483, at *5 (S.D. Tex. June 30, 2016).
1. Attorney Moore
Here, Plaintiffs seek $450 per hour for Attorney Moore. (Dkt. No. 49 at 3). Moore graduated from South Texas College of Law in 1999 and has practiced in Texas since November 1999 (16 years). She is admitted to practice in several courts but is not board certified in any specialty. The law firm, Moore & Associates, focuses on labor and employment law, and approximately 70% of the firm’s current workload is FLSA cases.
In support of this hourly rate, Plaintiffs point to four sources: Moore’s own affidavit that her normal hourly rate is $450; a recent order awarding Moore $450 per hour; a table of FLSA hourly rate awards throughout Texas; and multiple attorney affidavits from practitioners in the Southern District of Texas. These sources are of limited utility and generally bereft of helpful information. To begin, the affidavits are from another cause and concern reasonable fee ranges for those attorneys, who have backgrounds and credentials significantly different from Attorney Moore’s.
Based upon this evidence and the Court’s knowledge of rates in the relevant market, the Court concludes Moore’s hourly rate of $450 is well above the prevailing rates in the relevant community and. is not reasonable. Instead, the Court finds that $350 per hour is a reasonable hourly rate for attorneys with comparable experience in the Southern District of Texas.
2.Attorney Hesse
Plaintiffs submit that Attorney Hesse’s reasonable hourly rate is $350. Hesse is an associate attorney with Moore & Associates. Hesse graduated from South Texas College of Law in 2008 and has practiced in Texas since November 2008 (7 years). He is also admitted to practice in several courts but not board certified in any specialty.
In support of Hesse’s hourly rate, as with Attorney Moore, the Court is only left with Moore’s affidavit testimony that Hesse’s rate is $350 per hour and that this rate is reasonable. According to the State Bar survey, however, this rate is significantly higher than the median hourly rate in the relevant community for attorneys with 7-10 years of experience ($150-248 per hour), for attorneys in 2-5 attorney firms ($207-246), and for attorneys in labor-employment disputes ($188-267).
Based upon the above evidence and the Court’s knowledge of rates in the relevant market, the Court concludes Attorney Hesse’s hourly rate of $350 is unreasonable for an attorney of his skill and experience. The Court finds that $275 per hour is a reasonable hourly rate for Attorney Hesse.
3. Paralegal
Plaintiffs contend the reasonable hourly rate for paralegal work is $125 per hour, and Defendants do not challenge the reasonableness of this rate. Attorney Moore submitted an affidavit that the hourly rate of her paralegal is $125, which finds support in recent cases. See Rouse v. Target Corp., No. 3:15-CV-48,181 F.Supp.3d 379, 390-91, 2016 WL 319871, at *7 (S.D. Tex. Jan, 26, 2016) (finding $100 per hour reasonable for paralegal work and collecting cases in this district finding $75 to $125 reasonable). Given the affidavit testimony and the Court’s experience in the community, the Court finds that $125 per hour- is reasonable.
4. Law Clerk
Plaintiffs seek $175 per hour for law clerk work. Here, Attorney Moore submitted an affidavit that her law clerk’s hourly rate is $175 per hour, but provided no information regarding the law clerk’s qualifications, credentials, or even whether her law clerk is a student or practicing attorney. Because of this lack of informa
B. Number of hours reasonably expended on the litigation
The next step in the lodestar analysis is to determine the number of hours reasonably expended on the litigation. As part of the reasonableness inquiry, the fee applicant has the burden of demonstrating the exercise of billing judgment. Saizan, 448 F.3d at 799. Billing judgment refers to the exclusion of hours that are excessive, redundant, or unproductive. Id. The remedy for a lack of billing judgment is a reduction in hours “by a percentage intended to substitute for the exercise of billing judgment.” Id.
Here, Plaintiffs seek fees for roughly 139 hours.
First, Defendants contend that time related to the four plaintiffs who were voluntarily dismissed is not recoverable. The Court agrees. Plaintiffs are not entitled to fees for work undertaken solely on unsuccessful plaintiffs. See Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 257 (5th Cir. 1990) (citing Hensley, 461 U.S. at 440, 103 S.Ct. 1933). Accordingly, Entry 38104 for .5 hours drafting the stipulation of dismissal by Attorney Moore is eliminated. Entries 36929 and 38596 for .6 hours by Attorney Moore and Entry 38600 for 1 hour of paralegal time, already withdrawn in Plaintiffs’ reply, are also eliminated. Entries 38598, 36222, and 38599 for time reviewing and preparing notices of consent for one dismissed and one successful plaintiff are also reduced by 50% to .33 hours of paralegal time and to .25 hours by Attorney Moore.
Additionally, Defendants challenge time billed by paralegals for clerical tasks. Plaintiffs seek to recover 1.75 hours of paralegal time for printing and saving documents, and obtaining court procedures for a conference call. Attorney fees, however, may not be awarded for clerical work. See Broyles v. Texas, No. CIV.A.H-08-02320, 2009 WL 2215781, at *11 (S.D. Tex. July 23, 2009) (citing Vela v. City of Hous., 276 F.3d 659, 681 (5th Cir. 2001)) (eliminating paralegal charges for printing and filing), aff'd per curiam, 381 Fed.Appx. 370 (5th Cir. 2010). Thus, the 1.75 hours charged in Entries 34101, 34935, 35220, 35231, and 36504 are eliminated.
Likewise, Defendants challenge two time entries by Attorney Moore for reviewing court orders and calendaring dates as clerical work that should not have been billed by counsel. Because recording deadlines is an administrative task, Entries 33008 and 34029 are reduced by half to .21 hours.
Finally, the remainder of Defendants’ objections concerns a lack of billing judgment. Defendants point to numerous time entries as excessive or redundant.
The Court finds that the records submitted support Defendants’ arguments and that it is not clear that Plaintiffs’ counsel exercised billing judgment. Although Attorney Moore submitted an affidavit stating Moore & Associates exercises billing judgment, no hours from the firm’s time records were excluded from Plaintiffs’ initial fee request. And, of the 2.53 hours withdrawn in Plaintiffs’ reply, all but one reduction was in direct response to Defendants’ arguments that fees are not recoverable on unsuccessful plaintiffs or that the event billed never occurred.
Because “billing judgment requires documentation ... of the hours written off as unproductive, excessive, or redundant,” the Court concludes the amount of hours billed is unreasonably high due to a lack of billing judgment. Saizan, 448 F.3d at 799. Accordingly, a reduction in recoverable hours by 20% is necessary to arrive at the number of hours reasonably spent on this case. At the hourly rates determined supra, the lodestar fee is $24,411.40.
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C. Johnson Adjustments
The Parties do not argue for additional
D. Costs
Plaintiffs submitted $2,331.60 in recoverable costs, and Defendants raise no objections. Accordingly, Plaintiffs’ motion for $2,331.60 in undisputed costs is GRANTED.
IV. Conclusion
For the reasons explained above, Plaintiffs’ Motion for Attorney’s Fees & Costs (Dkt. No. 49) is hereby GRANTED IN PART AND DENIED IN PART. Attorney’s Fees are awarded in the amount of $24,411.40. Costs in the amount of $2,331.60 are also awarded. Parties should file the appropriate closing documents with the Court within 30 days.
It is so ORDERED.
. The twelve Johnson factors are: (1) the time and labor required for the litigation; (2)' the novelty and complication of the issues; (3) the skill required to properly litigate the issues; (4) whether the attorney had to refuse other
. For example, these affidavits contain detailed information regarding these attorneys’ professional memberships and honors. (Dkt. No. 53-1). While Attorney Moore may be equally accomplished, Plaintiffs have not provided the Court with information on this subject.
. State Bar of Texas, 2013 Hourly Fact Sheet (2013), https://www.texasbar.com/AM/ Template, cfm? Section=Demographic_and_ Economic_Trends & Template=/CM/Content-Display.cfm & Content=27264.
.Although Plaintiffs "withdrew” 2.53 hours in their Reply (Dkt. No. 53), these numbers have not been automatically deducted from this figure, except for Entry 35864 (.25 hours billed for objections that did not occur), because the Court believes they are more simply addressed as concessions to Defendants’ objections as outlined below.
. Plaintiffs conceded in their Reply that Entries 38598, 36222, and 38599 should have been reduced to .75 hours total. The Court, however, finds the above calculation is more accurate.
. Plaintiffs conceded in their Reply that Entry 34029 should have been reduced by .05 hours. The Court again finds the above calculation is more accurate.
. Defendants invite the Court to conduct a line by line audit of Plaintiff’s billing judgment. Instead, this Court heeds the Supreme Court’s admonishment in Fox v. Vice, 563 U.S. 826, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). ‘‘[TJrial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocation an attorney's time.” Id. at 838, 131 S.Ct. 2205.
. In other words, all but one of the withdrawn entries would have been disallowed by the Court regardless of Plaintiffs’ reply on the grounds such hours were not recoverable.
Reference
- Full Case Name
- Luis A RAMIREZ v. LEWIS ENERGY GROUP, L.P.
- Cited By
- 13 cases
- Status
- Published