United States District Court, E.D. Louisiana
F.H. PASCHEN, S.N. NIELSEN & ASSOCIATES, L.L.C.
SOUTHEASTERN COMMERCIAL MASONRY, INC.
REPORT AND RECOMMENDATION
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.
the Court is F.H. Paschen, S.N. Nielsen & Associates,
L.L.C.'s Memorandum in Support of Attorneys' Fees
[Doc. #72], which the District court referred to this Court
underlying factual background of this dispute is irrelevant
to the motion for attorneys' fees but outlined in detail
in the District Court's bench opinion. F.H. Paschen,
S.N. Nielsen & Associates v. Southeastern Commercial
Masonry, Inc., Civ. A. No. 12-2799, 2015 WL 7015389
(E.D. La. Nov. 12, 2015). In that opinion, the District Court
awarded Paschen its attorneys' fees and costs
"only insofar as this action was necessary to
collect the payment made by Paschen to Tailored Foam."
Id. at *27 (emphasis added).
Law and Analysis
the determination of reasonable attorneys' fees involves
a two-step procedure. SeeHensley v. Eckerhart, 461
U.S. 424, 433 (1983). Initially, the district court must
determine the reasonable number of hours expended on the
litigation and the reasonable hourly rates for the
participating lawyers. Id. Then, the district court
must multiply the reasonable hours by the reasonable hourly
rates. Blum v. Stenson, 465 U.S. 886, 888 (1984)
(defining base fee to be product of reasonable hours and
reasonable rate); Hensley, 461 U.S. at 433 (defining
product of hours reasonably expended and reasonable hourly
rates as "[t]he most useful starting point");
Brantley v. Surles, 804 F.2d 321, 325 (5th Cir.
1986) (stating hours multiplied by rate to be normal basis
for fee). The product of this multiplication is the lodestar,
which the district court then either accepts or adjusts
upward or downward, depending on the circumstances of the
case. Brantley, 804F.2dat325.
however, the Court finds itself in an unfortunate
predicament. Paschen seeks $82, 207.00 in legal fees and $5,
680.78 in costs. In the alternative, Paschen seeks 50 per
cent of the amount that it was charged, or $51, 725.00 and
$5, 680.78 in costs. But the District Court only
awarded Paschen its legal fees and costs associated with the
collection of the payment by Paschen to Tailored Foam.
Fifth Circuit has made clear that
[t]he district court must determine whether the hours claimed
were "reasonably expended on the litigation."
Alberti v. Klevenhagen, 896 F.2d 927, 933-34 (5th
Cir.), vacated on other grounds, 903 F.2d 352 (5th
Cir. 1990); see also Hensley, 461 U.S. at 434, 103
S.Ct. at 1939 ("The district court also should exclude
from this initial fee calculation hours that were not
'reasonably expended.'"). Moreover, "the
fee applicant bears the burden of establishing entitlement to
an award and documenting the appropriate hours expended and
hourly rates. The applicant.. . should maintain billing time
records in a manner that will enable a reviewing court to
identify distinct claims." Hensley, 461 U.S. at
437, 103 S.Ct. at 1941; see also Bode, 919 F.2d at
1047 ("[T]he party seeking reimbursement of
attorneys' fees . .. has the burden of establishing the
number of attorney hours expended, and can meet that burden
only by presenting evidence that is adequate for the court to
determine what hours should be included in the
Accordingly, the documentation must be sufficient for the
court to verify that the applicant has met its burden.
Id. "In determining the amount of an attorney
fee award, courts customarily require the applicant to
produce contemporaneous billing records or other sufficient
documentation so that the district court can fulfill its duty
to examine the application for noncompensable hours."
Id.; see also Hensley, 461 U.S. at 433, 103 S.Ct. at
1939 ("The party seeking an award of fees should submit
evidence supporting the hours worked and rates
claimed."). Thus a district court may reduce the number
of hours awarded if the documentation is vague or incomplete.
See Alberti, 896 F.2d at 931 (refusing to accept
incomplete documentation "at face value");
Leroy v. City of Houston (Leroy I), 831 F.2d 576,
585-86 (5th Cir.1987) (finding clear error and abuse of
discretion when district court accepted "faulty
records" without making reduction); cf.
Hensley, 461 U.S. at 433, 103 S.Ct. at 1939 (counseling
that "[w]here the documentation of hours is inadequate,
the district court may reduce the award accordingly").
La. Power & Light Co. v. Kellstrom, 50 F.3d 319,
324 (5th Cir. 1995) (emphasis in bold added). And the Supreme
Court has clarified that
[t]he product of reasonable hours times a reasonable rate
does not end the inquiry. There remain other considerations
that may lead the district court to adjust the fee upward or
downward, including the important factor of the "results
obtained." This factor is particularly crucial where a
plaintiff is deemed "prevailing" even though he
succeeded on only some of his claims for relief. In this
situation two questions must be addressed. First, did the
plaintiff fail to prevail on claims that were unrelated to
the claims on which he succeeded? Second, did the plaintiff
achieve a level of success that makes the hours reasonably
expended a satisfactory basis for making a fee award?
In some cases a plaintiff may present in one lawsuit
distinctly different claims for relief that are based on
different facts and legal theories. In such a suit, even
where the claims are brought against the same defendants -
often an institution and its officers, as in this case -
counsel's work on one claim will be unrelated to his work
on another claim. Accordingly, work on an unsuccessful claim
cannot be deemed to have been "expended in pursuit of
the ultimate result achieved." Davis v. County of
Los Angeles, 8 E.P.D. ¶ 9444, at 5049 (CD Cal.
1974). The congressional intent to limit awards to prevailing
parties requires that ...