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McGee v. Tregre

United States District Court, E.D. Louisiana

June 5, 2019


         SECTION “R” (3)



         Before the Court is defendant Mike Tregre's objections to the Magistrate Judge's Report and Recommendation awarding plaintiff Shawanda McGee attorneys' fees.[1] 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.

         I. BACKGROUND

         This 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.[2] 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.[3] 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' fees.[4]

         By September 14, 2018, the parties had settled all of plaintiff's claims except her claim for attorneys' fees.[5] 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.[6] The motion was reassigned to Magistrate Judge Dana Douglas on January 7, 2019.[7]

         On February 11, 2019, Magistrate Judge Douglas issued her Report and Recommendation.[8] 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.[9] On February 25, 2019, defendant timely filed the instant objection.[10] 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.[11] Plaintiff does not object to any part of the Report and Recommendation, but she has filed a response to defendant's objection.[12]


         Federal 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.” Fed.R.Civ.P. 72(b)(3).

         Here, the Court referred plaintiff's motion for attorneys' fees and costs to the Magistrate Judge to prepare a report and recommendation.[13]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 instructions.” Id.


         The 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).

         Once 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 similar cases.

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).

         Defendant 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 ...

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