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Salman v. Balderas

United States District Court, E.D. Louisiana

September 18, 2019


         SECTION: “M” (4)



         Before the Court is a Motion to Fix Attorney’s Fees (R. Doc. 27) filed by Defendants Joe Balderas, Transport Refrigeration Sales & Service, Inc. d/b/a Carrier Transicold South, Gensouth, and Arch Insurance Company, seeking an order from the Court to fix attorneys’ fees in the amount of $2, 974.50. The motion is opposed. R. Doc. 37. The motion was submitted on August 21, 2019.

         I. Background

         On July 24, 2019, the Court granted Defendants’ Motion to Compel finding in part that they were entitled to attorneys’ fees under Federal Rule of Civil Procedure 37(a)(5). R. Doc. 26. As part of that order, the Court ordered that Defendants file a motion to fix attorneys’ fees and costs. Id. Defendants, thereafter, filed the subject motion on August 7, 2019, requesting $2, 974.50 in attorneys’ fees. R. Doc. 27-1, p. 6. Samir Salim has opposed the motion arguing that neither the hourly rate nor hours charged are reasonable. R. Doc. 37.

         II. Standard of Review

         The Supreme Court has specified that the “lodestar” calculation is the “most useful starting point” for determining the award for attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Lodestar is computed by “. . . the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. The lodestar calculation, “. . . provides an objective basis on which to make an initial estimate of the value of a lawyer’s services.” Id. Once the lodestar has been determined, the district court must consider the weight and applicability of the twelve factors delineated in Johnson. See Watkins v. Forcide, 7 F.3d 453, 457 (5th Cir. 1993).[1]Subsequently, if the Johnson factors warrant an adjustment, the court may make modifications upward or downward to the Lodestar. Id. However, the Lodestar is presumed to be a reasonable calculation and should be modified only in exceptional circumstances. Id. (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)).

         The party seeking attorneys’ fees bears the burden of establishing the reasonableness of the fees by submitting “adequate documentation of the hours reasonably expended” and demonstrating the use of billing judgement. Creecy v. Metro. Prop. & Cas. Ins. Co., 548 F.Supp.2d 279, 286 (E.D. La. 2008) (citing Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir.1997)).

         III. Reasonable Hourly Rate

         The “appropriate hourly rate . . . is the market rate in the community for this work.” Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir.2012)). Moreover, the rate must be calculated “at the ‘prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation.’” Int’l Transp. Workers Fed’n v. Mi-Das Line, SA, 13–00454, 2013 WL 5329873, at *3 (E.D. La. Sept. 20, 2013) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). Satisfactory evidence of the reasonableness of the rate necessarily includes an affidavit of the attorney performing the work and information of rates actually billed and paid in similar lawsuits. Blum, 465 U.S. at 896 n.11. Finally, if the hourly rate is not opposed, then it is prima facie reasonable. Powell v. C.I.R., 891 F.2d 1167, 1173 (5th Cir. 1990) (quoting Islamic Ctr. of Mississippi v. City of Starkville, 876 F.2d 468, 469 (5th Cir. 1989)).

         Here, Defendants have requested an hourly rate of $195.00 for billing entries before July 1, 2019, and $225.00 for billing entries after July 1, 2019 for both attorneys Megan P. Demouy and Jonathan M. Walsh of Deutsch Kerrigan LLP.[2] Demouy has provided an affidavit attesting that she is a special partner who, at the time of the filing, has practiced law for six (6) years and eight (8) months. R. Doc. 27-2. Demouy is barred in the State of Indiana since 2011 and licensed to practice law in the State of Louisiana since 2016. Id.

         Walsh has provided an affidavit attesting that he is a general partner licensed to practice in the State of Louisiana, who, at the time of the filing, has practiced law for twenty (20) years and ten (10) months, R. Doc. 27-3. Walsh earned his Juris Doctor from Tulane University School of Law in 1998 and has numerous accolades and achievements to include the publishing of an article with Tulane Maritime Law in 2018 and participating as a panelist in the 21st Annual Tulane Environmental Law & Policy Summit. Id.

         In support of this request, Defendants cited, inter alia, Batiste v. Lewis, No. CV 17-4435, 2019 WL 1591951, at *3 (E.D. La. Apr. 12, 2019) (finding a rate of $200 for a five-year associate based in New York City in a copyright action reasonable), Cuevas v. Crosby Dredging, LLC, No. CV 18-9405, 2019 WL 2410936, at *3 (E.D. La. June 7, 2019) (finding a rate of $195 for a seven-year associate, who graduated summa cum laude from LSU Law Center and served a federal law clerk to the Honorable Carl J. Barbier, in a maritime personal injury action reasonable), Mr. Mudbug, Inc. v. Bloomin' Brands, Inc., No. CV 15-5265, 2017 WL 736044, at *2 (E.D. La. Feb. 24, 2017), aff'd sub nom. Mr. Mudbug, Inc. v. Bloomin Brands, Inc., No. CV 15-05265, 2017 WL 2274954 (E.D. La. May 25, 2017) (finding a rate of $210 for a four-year associate, that opposing counsel did not object to as unreasonable, permissible). In each instance, the Court finds these cited cases distinguishable from the case currently before the Court.

         This case is a standard personal injury action involving a relatively simply motion to compel. The underlying Motion to Compel (R. Doc. 13)-two (2) pages with a four (4) page appended-more a statement of facts, makes a single reference to Federal Rules of Civil Procedure 33(b)(2) and 34(b)(2) and cites no case law. The subsequently ...

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