United States District Court, E.D. Louisiana
WELLS ROBY, CHIEF UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
Standard of Review
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).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)).
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
Reasonable Hourly Rate
“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).
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)).
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.
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 ...