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Rubio v. C.R. Contractors, LLC

United States District Court, E.D. Louisiana

August 16, 2017


         SECTION “B” (5)


         Before the Court is Plaintiffs' “Motion for Attorneys' Fees.” Rec. Doc. 19. Defendants timely filed an opposition memorandum. Rec. Doc. 21. Plaintiffs then requested, and were granted, leave to file a reply memorandum. Rec. Doc. 24. For the reasons enumerated below, IT IS ORDERED that Plaintiffs' motion (Rec. Doc. 19) is GRANTED IN PART.


         This case arises out of alleged violations of the Fair Labor Standards Act (“FLSA”). Specifically, Plaintiff Kiyoko Rubio (“Rubio”) alleged that she was not properly paid overtime wages while working for Defendants C.R. Contractors, SGS, LLC, and Maritza Romero. Rec. Doc. 1 at ¶ 1. Accordingly, she filed a complaint on August 17, 2016 on behalf of herself and similarly situated employees. Id. at ¶ 2. When Defendant SGS, LLC failed to respond to the complaint and no entry of default was sought, the Court ordered Plaintiffs to show cause why SGS, LLC should not be dismissed. Rec. Doc. 11. Plaintiffs did not respond to the show cause order and SGS, LLC was consequently terminated as a party on November 1, 2016.

         On January 17, 2017, Petra Oloarte opted-in to the suit. Rec. Doc. 13.

         On May 3, 2017, the Court was informed that the parties had reached a settlement agreement and accordingly entered an order of dismissal. Rec. Doc. 16. Thereafter, the parties filed an ex parte/consent motion to approve the FLSA settlement. Rec. Doc. 17. Pursuant to the agreement reached by the parties, Rubio was to receive $500.00, while Oloarte was to receive $1, 000.00. Rec. Doc. 17-1 at ¶ 6. These amounts were reached by multiplying the regular hourly rate by time-and-a-half for all overtime worked. Id. at ¶ 7. The number was then doubled to account for liquidated damages and Rubio received an additional amount as an incentive for bringing the action. Id. However, the parties informed the Court that they could not agree on the appropriate amount of attorneys' fees. Id. at ¶ 9. Accordingly, on June 20, 2017, this Court approved of the settlement and specifically noted Plaintiffs' right to seek attorneys' fees. Rec. Doc. 18.


         Plaintiffs' counsel asks this Court to award $11, 300.00 for 44.9 hours of work, billed at the rate of $250 per hour for lead attorneys William Beaumont and Roberto Costales and $200 per hour for Emily Westermeier. Rec. Doc. 19-1 at 8-9, 11. They argue that Beaumont and Costales have practiced law for six years, participated in several FLSA collective actions, and been awarded $250 per hour by this Court in a separate FLSA collective action case. Id. at 8-9 (citing Joel Banegas v. Calmar Corporation, , Civil Action No. 15-593, Section “B”, Rec. Doc. 69 at 3).[1]They also argue that Westermeir has been practicing law since 2014 and previously clerked for the Honorable Marvin E. Aspen in the Northern District of Illinois. Rec. Doc. 19-1 at 9-10. Plaintiffs fail to argue the basis for billing 44.9 hours of work in their memorandum, which instead states that “the Court should award fees for the full xxx hours sought by this application (which has already been reduced 16.5% . . . for hours that were arguably unproductive, excessive, or redundant[)].” Id. at 10. Nonetheless, Plaintiffs' counsel attached their billing records to the instant motion. Rec. Doc. 19-2.

         Defendants respond that the Court should award only $3, 000 in attorneys' fees, double the amount recovered by Plaintiffs pursuant to the settlement agreement. Rec. Doc. 21 at 3. They argue that they admitted to unknowingly failing to properly pay overtime as soon as this case was filed and accordingly “offered to pay its employees/former employees the overtime they were owed.” Id. at 1. They suggest that “the only ‘material' work that had to be performed by Plaintiffs' counsel was to review the payroll records to ensure that such records corroborated Defendants' contention that it customarily paid overtime.” Id. at 5. They further note that Plaintiff failed to respond to discovery requests and did not take a single deposition; instead, Plaintiffs' counsel filed a “boilerplate/template” complaint, issued “boilerplate/template” discovery, filed a “boilerplate/template” motion for attorneys' fees, and performed “numerous hours of phone calls, emails, document review and other miniscule actions that increased the billable hours.” Id. at 2. After examining Plaintiffs' counsel's billing records, Defendants determined that (1) 32.87% of the hours were billed after the case settled; (2) 25.05% of the hours were billed in connection with filing the instant motion for attorneys' fees; (3) 12.92% of the hours were billed for phone calls and/or emails; and (4) 37.86% of the hours were billed for legal research and/or drafting legal documents, even though Plaintiffs did not file any substantive motions and this case did not present any novel or difficult issues. Id. at 5.


         The FLSA provides that the court shall, “in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fees to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). “Although the provision does not specifically mention a ‘prevailing party, ' the courts have construed the provision as requiring the party being awarded attorney's fees to be the prevailing party, similar to other fee-shifting jurisprudence.” Champion v. ADT Sec. Servs., Inc., No. 08-417, 2010 WL 4736908, at *1 (E.D. Tex. Nov. 16, 2010) (citing Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 799 n.7 (5th Cir. 2006)). The parties do not dispute the fact that Plaintiffs prevailed in this case.

         The Fifth Circuit uses the lodestar method for determining a reasonable amount of attorneys' fees. Saizan, 448 F.3d at 799 (footnotes and citations omitted). Under that method, the reasonable number of hours spent on the case is multiplied by an appropriate hourly rate in the community for such work. Id.

         The party seeking fees “bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). The court should eliminate those hours that are excessive, duplicative, or too vague to permit meaningful review. Johnson v. Big Lots Stores, Inc., 639 F.Supp.2d 696, 702 (E.D. La. 2009) (citing Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993); La. Power & Light Co., 50 F.3d at 326). Also, “[w]hen 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. 99-3804, 2005 WL 1578810, at *11 (E.D. La. June 28, 2005).

         Further, attorneys should not bill at that same rate for the performance of clerical duties. Even if attorneys are required to complete certain clerical tasks due to a lack of available help, such non-legal work does not justify billing at an attorney's rate just because it is completed by an attorney. See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989) (noting that “[i]t is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but ...

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