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Faulk v. Duplantis

United States District Court, E.D. Louisiana

June 4, 2015



JAY C. ZAINEY, District Judge.

The following motion is before the Court: Motion for Attorney's Fees (Rec. Doc. 132) filed by Plaintiff, Kyle Faulk. Defendant Todd M. Duplantis opposes the motion. The motion, scheduled for submission on May 20, 2015, is before the Court on the briefs without oral argument.

On July 16, 2014, the jury returned a verdict in favor of Faulk on his First Amendment retaliation claim against Todd M. Duplantis. (Verdict Form, Rec. Doc. 100-1). The jury concluded that Duplantis transferred Faulk to uniformed car patrol in retaliation for engaging in protected speech, and that the transfer constituted an adverse employment action. The jury then awarded Faulk $75, 000 in compensatory damages and $275, 000 in punitive damages. (Id. at 2, 3). The Court granted Duplantis' motion for new trial on damages. (Rec. Doc. 118). The second jury found in favor of Faulk and awarded him $50, 000 in compensatory damages and $200, 000 in punitive damages. (Rec. Doc. 126-2). The Court entered judgment on the verdict on April 16, 2015 (Rec. Doc. 129).

Faulk now seeks reasonable attorney's fees and costs incurred in the prosecution of his case as a prevailing party under 42 U.S.C. § 1988.[1] Faulk contends that attorney's fees in the amount of $202, 597.50 (578.85 hours × $350 per hour) would properly compensate his counsel for their work on the case. Defendant does not contest Plaintiff's entitlement to attorney's fees as a prevailing party but does take issue with both the hours claimed and the rate requested.

The determination of an attorney fee award under 42 U.S.C. § 1988 is a two-step process. Jimenez v. Wood County, 621 F.3d 372, 379 (5th Cir. 2010) (citing Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999)). First, the court calculates the "lodestar" which is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. Id. In calculating the lodestar the court excludes all time that is excessive, duplicative, or inadequately documented. Id. Second, once the lodestar is calculated the court can adjust it based on the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).[2] The burden of proof of reasonableness of the number hours claimed is on the fee applicant. Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir. 1987) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). Determining a reasonable fee is a matter committed to the sound discretion of the trial judge. Perdue, 559 U.S. at 558.

Hourly Rate

Plaintiff's counsel, Jerri Smitko and David Ardoin, have requested an hourly rate of $350 per hour. Plaintiff has the burden of establishing that $350 per hour is in line with the rate prevailing in this legal community for similar services by lawyers of reasonably comparable skills and experience. In support of this requested rate attorneys Smitko and Ardoin each submitted an affidavit attesting to their normal hourly billing rates. Smitko attests that she typically charges $300 per hour for state court litigation and $350 per hour for federal court litigation; Ardoin attests that he charges an hourly rate between $250 and $350 an hour depending on the nature and complexity of the action. (Rec. Docs. 132-3 & 4).

In opposition, Duplantis has submitted affidavits from two Terrebonne Parish attorneys who regularly practice in this community. Attorney Danna E. Schwab has been a licensed attorney since 1990. Ms. Schwab attests that in her opinion the prevailing and customary hourly rated charged for jury trial work falls withing a range of $150.00 to $225.00 per hour, depending on the complexity of the litigation. (Rec. Doc. 133-1). Attorney Barry J. Boudreaux has been a licensed attorney since 1983. Mr. Boudreaux attests that in his opinion the prevailing and customary hourly rated charged for jury trial work falls within a range of $175.00 to $250.00 per hour depending on the complexity of the litigation. (Rec. Doc. 133-2).

The Court is persuaded that the rates suggested by Duplantis's witnesses reflect the prevailing hourly rate for comparable work in this district. Duplantis suggests that the Court use an hourly rate of $175.00 at the low end of the range because this case was not novel or complex. The Court agrees with Duplantis' assessment of the case but Smitko and Ardoin each have practiced law for many years (29 and 17, respectively), and trying a case to a jury is always challenging and risky. The Court is convinced that it was through Smitko's and Ardoin's trial expertise and skill that Faulk obtained such a generous jury verdict under the facts of his case (twice in fact). The Court therefore will use a rate of $225 per hour for the lodestar calculation.

Hours Expended

Attorney Smitko claims 461.6 hours of time for both trials; Ardoin claims 117.25 hours for both trials; their combined hours are 578.85 hours. (Rec. Docs. 132-5 & 132-7). Of Smitko's hours 66.3 are specific to the second trial; of Ardoin's time 55.5 hours are specific to the second trial. The Court's first task under the lodestar method is to eliminate hours that are excessive, duplicative, or inadequately documented. Duplantis raises persuasive arguments pertaining to this task. While the Court will not traverse the attorneys' itemized time sheets line for line the Court makes the following observations which apply globally to the hours claimed.

First, most of Smitko's hours in the earlier part of this case were devoted to pursuing claims that were non-cognizable ab initio as a matter of federal law. Faulk and the plaintiff in Civil Action 12-1717, Milton Wolfe, attempted to assert claims (including claims for preliminary emergency relief) pertaining to the state's civil service system, the conduct of the Louisiana legislature, the adequacy of Duplantis's qualifications as police chief, and a defunct federal consent decree-none of which were even arguably viable under § 1983. Defendants were forced to file five dispositive motions which Faulk and Milton vehemently opposed even though their positions were not legally viable. Defendants were overwhelmingly granted relief, and the sole claim that remained of the numerous claims asserted and the numerous defendants sued was the claim against Duplantis in his individual capacity for First Amendment retaliation. (Rec. Doc. 56, Court's 8/16/13 Order and Reasons). Duplantis cannot be expected to pay for attorney time spent pursuing and defending claims that had nothing to do with his own personal conduct.[3]

Second, although Ardoin's contribution to the case was beyond reproach, the Court is not persuaded that it was necessary to bring in a second trial attorney, particularly one of Ardoin's skill and experience, on the eve of trial. As the Court has already noted, the case was not complex and Smitko is an experienced trial attorney. Undoubtedly having two attorneys at trial made the logistics of trying the case easier but the Court is not persuaded that the cost of two experienced trial lawyers should be borne by Duplantis.

Third, of the combined 578.85 hours for Smitko and Ardoin, Smitko claims 66.3 hours for the second trial on damages and Ardoin claims 55.5 hours. The Court can certainly envision circumstances where a defendant in Duplantis's position should be cast in judgment for the attorney fees incurred because of a retrial on damages but the second trial in this case was not required due to any conduct on Duplantis's part or on the part of his attorney. The Court recognizes that Faulk and his attorneys were likewise free of fault with respect to the first jury's untenable ...

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