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Moody v. Associated Wholesale Grocers, Inc.

United States District Court, E.D. Louisiana

December 6, 2019

DE'ON MOODY
v.
ASSOCIATED WHOLESALE GROCERS, INC.

         SECTION: “H” (4)

          ORDER

          KAREN WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant's Motion for Attorney's Fees (R. Doc. 98) filed by Defendant Associated Wholesale Grocers, Inc. (“AWG”), seeking an order from the Court to fix attorneys' fees in the amount of $1, 953.00. The motion is unopposed. The motion was submitted on September 25, 2019.

         I. Background

         On August 30, 2019, the Court granted Defendant's Motion to Compel Discovery (R. Doc. 87) as unopposed. Defendant now seeks an order awarding attorney's fees for having to obtain an order compelling the Opt-In Plaintiffs to respond to discovery requests pursuant to Federal Rule of Civil Procedure 37. The matter is an action by 18 current and former employees of Defendant Associated Wholesale Grocers who were employed as supervisors and treated as exempt employees under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Since the filing of this instant motion, the District Judge has decertified the action dismissing all Opt-In Plaintiffs without prejudice. R. Doc. 128.

         As to this instant action, Defendant seeks an award of attorney's fees for Defendant's enrolled counsel of records, Attorney Eric R. Miller. R. Doc. 98. Specifically, Defendant seeks a total of $1, 953.00 for 6.20 reasonably expended hours pursuing its Motion to Compel. R. Doc. 98- 2, p. 3. No. opposition has been filed contesting the reasonableness of the hours expended or the reasonableness of the attorney's rate.

         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 attorney's 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)). The applicant bears the burden of producing satisfactory evidence that the requested rate is aligned with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir. 1987).

         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. However, mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439 n.15. 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 seek to recover the attorney's fees for Attorney Eric R. Miller with The Kullman Firm, ALPC at an hourly rate of $315.00. Miller has provided an affadvit attesting that he has practiced almost exclusively in the area of labor and employment law since his graduation from LSU Law School in 1990. R. Doc. 98-2. Miller is licensed in Louisiana, since 1992, and Texas, since 1990. Id. Miller is also Board Certified in Labor and Employment Law by the Texas Board of Legal Specializations since 1996. Id. In addition, Miller represents that he is a regular speaker at labor and employment seminars and that he has authored various papers, articles, and legal surveys on various labor law and employment topics. Id.

         Rates may be adduced through direct or opinion evidence as to what local attorneys charge under similar circumstances. The weight to be given to the opinion evidence is affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breadth of the sample of which the expert has knowledge. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); see also White v. Imperial Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28, 2005) (recognizing that attorneys ...


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