Opinion
CIVIL ACTION NO: 02-1030, SECTION: "K" (4).
April 14, 2003
MINUTE ENTRY
On January 10, 2003, the Court granted the plaintiffs, Felicia Giardina, Motion to Compel Production of Documents and Answers to Interrogatories and for Sanctions (doc. # 18) to the extent the plaintiff sought more complete discovery responses. The Court deferred a ruling on the motion to the extent the plaintiff sought to recover attorney's fees and ordered the plaintiff to provide supplemental information in compliance with Local Rule 54.2. Having been provided the supplemental documentation, the Court is prepared to rule on the plaintiff's request for fees.
I. Background
The plaintiff filed the instant suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, claiming that she was discriminated against during her employment with Lockheed. In January 1998, the plaintiff was hired by Lockheed as a welder in Lockheed's Michoud facility. Several months after being hired, the plaintiff complained to her supervisor about pictures of naked women that were taped on the tool boxes of several male welders. Because the pictures were not removed, the plaintiff again complained to her supervisors. She claims that as a result of these complaints, the male workers placed additional pictures on their toolboxes, spread rumors about her and harassed her. She filed the instant suit on April 5, 2002 seeking to recover declaratory, injunctive and equitable relief, back pay, reinstatement, compensatory damages and punitive damages.
On July 30, 2002, the plaintiff propounded her First Request for Production of Documents and First Set of Interrogatories upon Lockheed. Lockheed provided its interrogatory responses on September 10, 2002 and provided its responses to the plaintiff's document requests on September 13, 2002. Lockheed provided supplemental responses to the plaintiff's document requests on October 15, 2002. The plaintiff thereafter filed a Motion to Compel contending that the responses provided by Lockheed were incomplete and inadequate. The plaintiff claimed that the responses provided by Lockheed did not comply with the liberal discovery allowed in employment discrimination cases.
Lockheed opposed the motion contending that it had properly answered the plaintiff's discovery requests. It also claimed that it had properly objected to several of the plaintiff's discovery requests as such requests were irrelevant in that they went well beyond the scope of her department and sought information pertaining to the entire plant. Lockheed further argued that as the instant case is a disparate treatment case, the discovery should be limited to the plaintiff's department or work unit.
The plaintiff responded to Lockheed's opposition by stating that "plant-wide" discovery is relevant and necessary. The plaintiff also claimed that "plant-wide" discovery should be allowed because Lockheed had opened the door for such discovery by producing "plant-wide" documents relating to employees who were terminated for insubordination. She argued that Lockheed was using "plant-wide" discovery when it benefits its case but was denying plant-wide discovery where it may further her claims of discrimination and retaliation.
The undersigned granted the Motion to Compel on January 9, 2003 and found that attorney fees were warranted. The undersigned deferred a ruling on the amount of attorney's fees to be awarded and ordered the plaintiff to provide supplemental information in support of her request for fees. The plaintiff complied and provided supplemental documentation on January 17, 2003. Thereafter, Lockheed filed a Motion to Review and Set Aside the Magistrate Judge's Order Compelling Discovery and Awarding Fees. District Judge Stanwood R. Duval, Jr. denied the motion on March 14, 2003.
Rec. Doc. No. 30.
Rec. Doc. No. 33.
Rec. Doc. No. 34.
Rec. Doc. No. 50.
II. Analysis
A. Rule 37
Motions to compel discovery responses are governed by Rule 37 of the Federal Rules of Civil Procedure. That rule provides that "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." FED. R. CIV. P. 37(a)(2). Rule 37(a)(4)(A), which governs sanctions under the rule, requires the award of reasonable expenses, including attorney's fees, unless the motion to compel discovery was unjustified or other circumstances make the award unjust. Lischka v. Tidewater Services, Inc., 1997 WL 27066, at *4 (E.D. La. Jan. 22, 1997). The rule provides:
If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust.
The plaintiff seeks to recover attorney's fees in the amount of $4,875.00. The plaintiff submits that she expended 19.5 hours in filing the Motion to Compel at an hourly rate of $250.00. The plaintiff claims that these hours were incurred in filing the Motion to Compel and opposing Lockheed's Motion to Review and Set Aside the Magistrate Judge's Order Compelling Discovery and Awarding Fees.
Lockheed opposes the motion contending that the amount requested by the plaintiff is excessive and unreasonable. It contends that the number of hours the plaintiff claims to have expended in filing the Motion to Compel were excessive and unnecessary. Lockheed also argues that the hourly rate of plaintiff's counsel is inappropriate for the New Orleans area. It contends that the hours expended should be reduced by 50% and the hourly rate should be reduced to $165.00.
B. Standard
The determination of a reasonable attorney's fee award involves a two-step process. See Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999). The court must first determine the "lodestar" by multiplying the reasonable number of hours expended and the reasonable hourly rate for each participating attorney. See Hensley, 461 U.S. at 433. This "lodestar" method serves as the initial estimate of a reasonable attorney's fee. Blum v. Stenson, 465 U.S. 886, 888 (1984).
The second step involves the application of twelve factors the Fifth Circuit applies in determining what amount is warranted. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions presented; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount of money involved and 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.
Once the lodestar is computed by multiplying the reasonable number of hours by a reasonable hourly rate, the court may adjust the lodestar upward or downward depending on its analysis of the twelve factors espoused in Johnson, Dodge v. Hunt Petroleum Corp., 174 F. Supp.2d 505, 508 (N.D.Tex. 2001). Thus, in light of the Johnson factors, the Court may reduce the award resulting from the lodestar calculation if the documentation of hours worked is inadequate or if the calculation includes hours that were not "reasonably expended." See Hensley, 461 U.S. at 433-34.
C. The Lodestar
1. Reasonable Fee
The party seeking attorney's fees has the burden of establishing the reasonableness of the fees by "submitting evidence supporting the hours worked and the rates claimed." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3rd Cir. 1990) (citing Hensley, 461 U.S. at 433). Thus, counsel for the plaintiff "must produce satisfactory evidence — in addition to [their] own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984); Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993).
The Court must determine the reasonable number of hours expended in the litigation and the reasonable hourly rate for the participating attorneys. See Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The Lodestar is then computed by multiplying the number of hours by the reasonable hourly rate. Id.
2. Reasonable Hourly Rate
Attorneys' fees are to be calculated at the prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation. Blum v. Stenson, 465 U.S. 886, 895 (1984). In the instant case, it is uncontested that the relevant community here is the New Orleans, Louisiana legal market.
The applicant bears the burden of producing satisfactory evidence that the requested rate is in line 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, at a minimum, is more than the affidavit of the attorney performing the work. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988) (citing Blum, 465 U.S. at 896 n. 11)). It must also speak to rates actually billed and paid in similar lawsuits. Thus, testimony that a given fee is reasonable is not satisfactory evidence of market rates. See Hensley, 461 U.S. at 439 n. 15.
Evidence of 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 breath of the sample of which the expert has knowledge. Norman, 836 F.2d at 1299.
Here, the plaintiff's counsel, Victor Farrugia, contends that his hourly rate is $250.00. As proof of the reasonableness of the rate charged, the plaintiff has only provided the affidavit of Farrugia, the attorney performing the work. Farrugia states that he was admitted to the practice of law in Colorado in 1976 and was admitted in Louisiana in 1989. Since his admission to the Louisiana Bar in 1989, his practice has been devoted to employment law. He also states that he was past Chair of the Labor and Employment Law Section of the Louisiana State Bar Association during the 1997-98 term. Farrugia is also the founder and past President of the Louisiana Employment Lawyers Association. Moreover, he states that he represents the majority of his clients on a contingency basis.
Farrugia has also indicated that in 1996, this Court awarded him fees at an hourly rate of $165.00. He further contends that in 1997, this Court awarded him fees in the amount of $175.00. However, Farrugia has not provided any evidence that he has been awarded an hourly rate of $250.00 by this Court, nor has he provided any evidence that such a rate is in line with the rate prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.
Therefore, the Court finds the hourly rate of $250.00 to be excessive and unreasonable. The Court will reduce the rate to $195.00 as this rate appears to be reasonable based on the attorney's qualifications and experience and the prevailing market rates in this legal community at the time he performed the work.
A review of cases decided in this Court reveals that such an award is reasonable. See Raspanti v. United States Dept. of the Army, 2001 WL 1081375, at *4 (E.D. La. Sept. 10, 2001) (finding rate of $195.00 reasonable in disability discrimination suit for an attorney who had been practicing employment law for thirteen years); Yousuf v. UHS of De La Ronde, Inc., 110 F. Supp.2d 482 (E.D.La. 1999) (finding that hourly rate of $195.00 was reasonable in a Title VII case for an attorney in the New Orleans market with 24 years of experience and substantial litigation experience); Smith v. Berry Co., No. 96-1899, 1997 WL 736697, at *4 (E.D. La. Nov. 21, 1997) (holding that $150 per hour was reasonable in an employment discrimination action after finding that counsel had practiced employment discrimination law for eleven years and had become an authority in the field); see also United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 46 F. Supp.2d 546, 569 (E.D.La. 1999), vacated on other grounds, 244 F.3d 486 (5th Cir. 2001) (awarding high end hourly rates of $250, $175 and $150 for partner-level attorneys in quit claim case because of the particular difficulty of the case and the lucrative and less risky business the lawyers were precluded from accepting); Police Ass'n of New Orleans v. City of New Orleans, 951 F. Supp. 622, 628 (E.D.La. 1997) (holding that $150 per hour was reasonable in a Section 1983 action based upon plaintiffs' counsel's 22 years of experience as a civil rights attorney and the Judge's own knowledge of attorney's fees in this district).
3. Reasonable Number of Hours Expended
The party seeking attorneys' fees must present adequately documented time records to the court. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded from any award of attorney's fees. Raspanti v. United States Dept. of the Army, 2001 WL 1081375, at *6. Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, or redundant hours" when seeking fee awards. Id. (citing Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761, 769 (5th Cir. 1996)). The fee seeker's attorneys are "charged with the burden of showing the reasonableness of the hours they bill and, accordingly, are charged with proving that they exercised billing judgment." Walker, 99 F.3d at 770. When billing judgment is lacking, the court must exclude from the lodestar calculation the hours that were not reasonably expended. Hensley, 461 U.S. at 434.
A review of the time sheets submitted by Victor Farrugia indicates that several of the entries are excessive and duplicative. For instance, Farrugia claims to have expended 0.7 hours on October 30,2002 reviewing a letter written by counsel for Lockheed on October 29, 2002. The Court notes, however, that the October 29, 2002 letter was less than one page in length and was written in response to a letter written by Farrugia. The Court finds that the 0.7 hours expended by Farrugia on October 30, 2002 was redundant and excessive and will be reduced by 0.4 hours. Thus, the plaintiff may recover for 0.3 hours expended on October 29, 2002.
Farrugia also claims to have expended 4.6 hours on November 11, 2002 conducting "legal research on issues in this motion to compel and draft of motion to compel." He also states that on the following day, he expended 3.2 hours preparing "final draft of motion to compel, filing document in district court." The Court notes, however, that the Motion to Compel was only eight pages in length. The plaintiff's request to recover for 7.8 hours on a eight page Motion to Compel is excessive and unreasonable. Further, the plaintiff has not indicated why Farrugia needed to spend additional time preparing the "final draft" of the motion. Therefore, the Court will reduce these requests by 3.0 hours. Thus, the plaintiff may recover a total of 4.8 hours for the November 11-12, 2002 entries.
This number does not include the 0.3 hours Farrugia seeks to recover for "filing document in district court." See Embotelladora Agral Regiomontana v. Sharp Capital, Inc., 952 F. Supp. 415, 418 (N.D.Tex. 1997) ("Telecopy expenses, express delivery charges, and telephone expenses, like postal expenses, are not listed in the statute and represent `overhead' costs, not litigation costs").
Farrugia further claims to have expended 1.3 hours on January 28, 2003 in preparing an Opposition to Motion to Review and Set Aside the Magistrate Judge's Order." However, Farrugia also claims to have expended 2.3 hours "drafting the Opposition to Motion to Review . . ." the previous day. As Farrugia has failed to indicate why an additional 1.3 hours was needed, recovery for the January 28, 2003 entry will not be allowed. See In re: Donovan, 877 F.2d 982, 995 (D.C. Cir. 1989) (holding that where description of services rendered was confined to "legal issues," "conference re all aspects" or "call re status" Court was without any basis to determine with a high degree of certainty that the hours billed were reasonable).
Farrugia further claims to have expended 1.2 hours on January 31, 2003 "drafting an Opposition to Motion for Oral Argument on Motion to Review and Set Aside Magistrate Judge's Order." The Court notes, however, that the opposition was less than two pages in length. Thus, the Court finds such request to be excessive. The Court will reduce the January 31, 2003 entry by 0.6 hours. Therefore, the plaintiff's request for attorney fees will be reduced by 5.3 hours, or an amount of $1,033.50.
After carefully reviewing the record, the Court finds that the Lodestar amount is reasonable and finds that no further reduction or enhancement is required. In making this recommendation, the Court has considered and applied the factors articulated in Johnson as required by the Fifth Circuit.
This amount was reached by reducing the plaintiff's request by 5.3 hours at an hourly rate of $195.00.
Accordingly,
IT IS ORDERED that the Motion to Compel Production of Documents and Answers to Interrogatories and for Sanctions (Doc. # 18) is GRANTED to the extent the plaintiff seeks to recover attorney's fees. The plaintiff is entitled to recover for 14.2 hours at an hourly rate of $195.00, or an amount of $2,769.00.