United States District Court, E.D. Louisiana
JESSICA MARILU ROSALEZ FUNEZ, SULMA HERNANDEZ, CANDY MELISA ZAMORA, JULIA S. CARBALLO, DIANNA MEJIA, DILCIA NUNEZ, KARLINA MOLINA, LYDIA VEGA and REYNA RODRIGUEZ, on behalf of themselves and others similarly-situated
EBM, ET AL.
REPORT AND RECOMMENDATION
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiffs' Motion for
Attorney's Fees and Costs (R. Doc. 108). The
defendants filed an Opposition to the Motion (R. Doc. 111).
The plaintiffs filed a Reply to Response (R. Doc.118) and
defendants responded with a Supplemental Memorandum (R. Doc.
120). Lastly, the plaintiffs' filed a Supplemental Brief
to their motion (R. Doc. 124). The matter was considered on
29, 2018 the motion for attorney's fees was referred to
the undersigned, to determine the appropriate amount and
submit proposed findings and recommendation for disposition
pursuant to Title 28 U.S.C. § 636(b)(1)(B) and (C),
§ 1915e(2), and § 1915A, and as applicable, Title
42 U.S.C. § 1997e(c)(1) and (2).
overtime wage lawsuit was filed on March 6, 2016 by
Plaintiffs and similarly-situated individuals as independent
contractors under the FLSA, which alleged the defendants
violated the overtime compensation requirements of the Fair
Labor Standards Act. The plaintiffs alleged that the the
defendants owed them overtime compensation for hours worked
in excess of forty hours in any given week, going back three
years from the date of the lawsuit. The plaintiffs sought
unpaid overtime compensation, past and future wages,
liquidated damages, costs and attorney's fees. (R. Doc.
claim settled on July 20, 2017 which provided for payments in
six installments over a six month period. (R. Doc. 108-1) As
part of the settlement, the plaintiffs were allotted up to
six months to cash their checks rather than 90 days due to
issues/delays with defendants allegedly paying the settlement
funds. (Id.) The settlement provided a total of $
97, 500.00 (excluding attorney's fees and costs) to the
plaintiffs. Now, plaintiffs seek a total of $102, 860 in
legal fees and $3, 537.49 in reimbursable costs incurred in
the litigation. Plaintiffs' counsel further contends that
their hourly rate of $300 for attorney Christopher Williams
and $350 for Michael Tusa are reasonable.
Defendants oppose the motion. The defendants contend that
there was nothing novel, complex or new to plaintiffs'
counsel in this case and that plaintiffs' counsel used
Sierra et al v. EMSP, Civil Action No. 15-00179,
HGB-KWR, (E.D. La) Rec. doc. 33, which the fee award was
based upon a percentage and not billable hour. As a result,
the defendants contend that a percentage award determination
is appropriate in this case.
defendants further contend that out of the 43 plaintiffs who
opted in, one-half of them could not demonstrate any overtime
claim pursuant to plaintiffs' counsels' methodology,
which resulted in the plaintiffs' counsel withdrawal as
to 21 opted in plaintiffs. The defendants also point out that
there was a complete dismissal as part of the settlement of
any anti-retaliation claims brought in this case. Having set
forth the position of the parties, the Court will proceed
with its review of the matter.
Standard of Review
Supreme Court has indicated that the “lodestar”
calculation is the “most useful starting point”
for determining the award of attorney's fees. Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar
equals “the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.”
Id. The lodestar is presumed to yield a reasonable
fee. La. Power & Light Co. v. Kellstrom, 50 F.3d
319, 324 (5th Cir. 1995). After determining the lodestar, the
Court must then consider the applicability and weight of the
twelve factors set forth in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
Court can make upward or downward adjustments to the lodestar
figure if the Johnson factors warrant such
modifications. See Watkins v. Fordice, 7 F.3d 453,
457 (5th Cir. 1993). However, the lodestar should be modified
only in exceptional cases. Id.
the calculation of the lodestar, the burden then shifts to
the party opposing the fee to contest the reasonableness of
the hourly rate requested or the reasonableness of the hours
expended “by affidavit or brief with sufficient
specificity to give fee applicants notice” of the
objections. Rode v. Dellarciprete, 892 F.2d 1177,
1183 (3d Cir. 1990).
Attorney Fee Method
defendants contend that the Court should use the percentage
recovery method of determining the reasonableness of fees in
class actions to double check the fee. The defendants contend
that the amount sought by the plaintiffs' counsel amount
to more than 100% of the gross settlement award of $97, 500.
The defendants further contend that if the Court grants the
amount without reduction, the award will be out of step with
other awards in this district. (R. doc. 111).
plaintiffs' counsel in contrast, contends that the Court
should apply the lodestar method because it is black-letter
law in this Circuit and this is the method utilized for
determining the reasonableness of attorney's fees in a
FLSA case. (R. doc. 118). Plaintiffs' counsel also point
out that the same defense counsel was involved in a FLSA case
in the fall of 2017 in which the court applied the lodestar
method. Esparza v. Kostmayer Constr., LLC No.
15-4644, 2017 U.S. Dist. LEXIS 171060, at. *17-18 (E.D.
La. Sep. 26, 2017) (applying the lodestar analysis and
awarding $40, 860 in attorney's fees when the
plaintiffs' recovery was $8, 992.20) report and
recommendation adopted by 2017 U.S. Dist. LEXIS 169630
(E.D. La. Oc. 13, 2017).
considering this issue, it is axiomatic that the lodestar
method applies to the determination of reasonable
attorney's fees in a FLSA case. Further, defendants are
well aware that the submission of the fee request alone is
the first step in the consideration of determining whether
the application is reasonable. The Court further notes that
the case relied upon by the defendants conflates the issue.
In Lackey the plaintiff's counsel had a 40%
contingency fee agreement. While the Court noted that it was
higher than the percentages allowed by most courts, according
to Judge Milazzo it was appropriate in that case given is
complexity and longevity. See Lakey v. SDT Waste and
Debris Services, LLC 2014 WL 4809535 (E.D. La. Sept. 26,
the defendants contend that this case is a replica of
Sierra as support for the proposition proposition
that the work done was excessive, the Court notes that the
matter was contested despite the defendants experience in the
earlier case and there is no evidence that their method of
doing business changed as a result of the Sierra
case. The Court rejects the defendants' proposition that
a percentage or contingency should be used as the method of
determination as there is no evidence that a contingency
agreement was signed by the plaintiffs and the applicable law
supports the usage of the lodestar method.
Reasonableness of the Hourly Rates
seek to recover the attorney's fees for the work of
Christopher L. Williams and Michael T Tusa, Jr. According to
the plaintiffs, attorneys Christopher Williams and Michael
Tusa both have substantial experience in labor and employment
matters, particularly FLSA collective action matters. They
each seek a rate of $300 and $350 per hour, respectively.
They also seek a rate of $100 per hour for their paralegal
with ten years' experience, Ms. Deborah Rosenberger.
defendants contend that a reasonable hourly rate for a lawyer
with the skills and limited experience of plaintiffs'
counsel is $200 or $250 per hour. The defendants' support
their position by relying upon two cases in this district
decided in 2016. (R. doc. 111.) The defendants do not mention
anything regarding the reasonableness of Rosenberger's
Rosenberger Reasonable Rate
outset, the Court will address the hourly rate of the
paralegal Deborah Rosenberger who has more than ten years of
experience. The defendants do not contest the hourly rate of
the paralegal of $100 per hour. When that rate is not
contested, it is prima facie reasonable.”
La. Power & Light. v. Kellstrom, 50 F.3d 319,
324 (5th Cir. 1995). See also Altier v. Worley
Catastrophe Response, LLC 2012 WL 161824 (E.D.La. Jan.
18, 2012) ...