United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is defendant Mike Tregre's objections to the
Magistrate Judge's Report and Recommendation awarding
plaintiff Shawanda McGee attorneys' fees. The Court has
reviewed the Report and Recommendation de novo, the
applicable law, and the record, and has concluded that the
Magistrate Judge correctly determined the attorney fee award.
The Court therefore approves the Report and Recommendation
and adopts it as its opinion.
case arises out of allegations under Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12131, et
seq. (ADA), and Section 504 of the Rehabilitation Act, 29
U.S.C. § 794. Plaintiff is a deaf individual who uses
American Sign Language to communicate. She brought this
action against defendant, individually and in his official
capacity as the Sheriff of St. John the Baptist Parish, for
his failure to provide her with effective means of
communication over a period of approximately 20
years. Plaintiff sought a permanent injunction
against defendant's allegedly discriminatory actions, a
declaratory judgment, and an award of compensatory and
punitive damages, including an award of attorneys'
September 14, 2018, the parties had settled all of
plaintiff's claims except her claim for attorneys'
fees. Plaintiff filed a motion for an award of
attorneys' fees, and the Court referred that motion to
Magistrate Judge Daniel Knowles, III on November 26,
2018. The motion was reassigned to Magistrate
Judge Dana Douglas on January 7, 2019.
February 11, 2019, Magistrate Judge Douglas issued her Report
and Recommendation. She found (1) that plaintiff's motion
was timely; (2) plaintiff is properly considered a prevailing
party who can recover attorneys' fees under the ADA and
Rehabilitation Act; and (3) plaintiff was entitled to an
award of attorneys' fees totaling $42, 180, but she was
not entitled to any litigation expenses or
costs. On February 25, 2019, defendant timely
filed the instant objection. Defendant objects only to the
amount of attorneys' fees the Magistrate Judge
recommended be awarded to plaintiff; he does not object to
the determination that plaintiff's motion was timely or
that plaintiff is properly considered a prevailing
party. Plaintiff does not object to any part of
the Report and Recommendation, but she has filed a response
to defendant's objection.
Rule of Civil Procedure 54(d)(2)(D) authorizes referral of
“a motion for attorney's fees to a magistrate judge
under Rule 72(b) as if it were a dispositive pretrial
matter.” A Magistrate Judge addressing a referred
dispositive motion under Rule 72(b) must prepare a
“recommended disposition, ” to which the parties
can object. Then, the district judge “must determine
de novo any part of the magistrate judge's
disposition that has been properly objected to.”
the Court referred plaintiff's motion for attorneys'
fees and costs to the Magistrate Judge to prepare a report
and recommendation.Therefore, de novo review
applies to the portions of the report and recommendation
properly objected to. See also Blair v. Sealift,
Inc., 848 F.Supp. 670, 674-79 (E.D. La. 1994)
(collecting cases and holding that a post-trial motion for
attorneys' fees that is not a discovery sanction is a
dispositive matter subject to de novo review). After
de novo review, the Court “may accept, reject,
or modify the recommended disposition, receive further
evidence, or recommit the matter to the magistrate judge with
lodestar method is routinely used to determine attorney fee
awards. Under the lodestar method, a court begins by
calculating the “‘lodestar[, ]' which is
equal to the number of hours reasonably expended multiplied
by the prevailing hourly rate in the community for similar
work.” 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)). The Fifth
Circuit has explained that “plaintiffs seeking
attorney's fees are charged with the burden of showing
the reasonableness of the hours billed and, therefore, are
also charged with proving that they exercised billing
judgment.” Saizan v. Delta Concrete Prods.
Co., Inc., 448 F.3d 795, 799 (5th Cir. 2006). To
exercise billing judgment, a plaintiff must write off any
hours that were “unproductive, excessive, or
redundant.” Id. “The proper remedy for
omitting evidence of billing judgment does not include a
denial of fees but, rather, a reduction of the award by a
percentage intended to substitute for the exercise of billing
judgment.” Id. Courts may alternatively engage
in a line-by-line analysis to reduce the number of hours
awarded, in the event the Court finds the plaintiff did not
exercise billing judgment. Knight v. Barnhart, No.
02-1741, 2003 WL 21467533, at *2 (E.D. La. June 20, 2003).
the lodestar amount is calculated, the court may adjust it
based on the twelve factors set forth in Johnson v.
Georgia Highway Express, Incorporated, 488 F.2d
714, 717-19 (5th Cir. 1974), abrogated on other
grounds by Blanchard v. Bergeron, 489 U.S. 87
(1989). The factors are:
(1) the time and labor required; (2) the novelty and
difficulty of the case; (3) the skill required; (4) the
preclusion of other employment; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7) time limitations
imposed; (8) the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the
undesirability of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
Id. To avoid double-counting, “[t]he lodestar
may not be adjusted due to a Johnson factor . . . if
the creation of the lodestar award already took that factor
into account.” Heidtman v. County of El Paso,
171 F.3d 1038, 1043 (5th Cir. 1999). Moreover, there may be
no need to do additional Johnson adjusting at all,
as “the lodestar figure includes most, if not all, of
the relevant factors constituting a ‘reasonable'
attorney's fee.” Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 553 (2010). Indeed, “there is
a ‘strong presumption that the lodestar award is the
reasonable fee.'” Smith & Fuller, P.A. v.
Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th
Cir. 2012) (quoting Heidtman, 171 F.3d at 1044).
objects to three aspects of the Report and Recommendation:
(1) that the Magistrate Judge failed to exclude hours that
were not reasonably expended from the lodestar amount, (2)
that the Magistrate Judge refused to consider reducing the
fee award further on the basis of the Johnson
factors, and (3) that the award of attorneys' fees is
generally too high ...