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Funez v. EBM

United States District Court, E.D. Louisiana

October 15, 2018

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
v.
EBM, ET AL.

         SECTION: ''H'' (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before 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 the briefs.

         On June 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).

         I. Factual Summary

         This 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. 1.)

         The 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.

         The 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.

         The 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.

         II. Standard of Review

         The 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. 1974).[1] The 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.

         After 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).

         III. Analysis

         A. Attorney Fee Method

         The 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).

         The 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).

         In 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, 2014).

         While 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.

         B. Reasonableness of the Hourly Rates

         Plaintiffs 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.

         The 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 rate.

         1. Rosenberger Reasonable Rate

         At the 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) ...


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