Opinion
Civil Action No. 00-941, Section "K" (2)
August 31, 2001
REPORT AND RECOMMENDATION
Plaintiffs, Terry Zaffuto and his wife Susan, filed a motion seeking $33,732 in attorney's fees pursuant to 42 U.S.C. § 1988. The judgment entered by the presiding district judge awarded attorney's fees to the Zaffutos against defendant, Kenny Corkern, only. Record Doc. No. 40. However, the court referred the question of "[t]he proper amount of attorney's fees to be awarded" to a United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) for submission of a report and recommendation. Record Doc. No. 40. Defendants filed a separate motion for attorney's fees and costs concerning the claims as to which they were the prevailing parties. Record Doc. No. 46. By separate order, the presiding district judge denied defendants' motion. Record Doc. No. 57.
Having considered the written submissions of the parties, the record and the applicable law, and for the following reasons, I recommend that the Zaffutos be awarded reasonable attorney's fees against defendant Corkern in the amount of $12,649.50.
I. BACKGROUND
The Zaffutos brought this lawsuit asserting claims under Title VII, 42 U.S.C. § 1983 and Louisiana state law against three defendants, the City of Hammond, Chief of Police Roddy Devall and Assistant Chief of Police Kenny Corkern. Terry Zaffuto was employed with the City of Hammond Police Department. Defendants Chief Devall and Assistant Chief Corkern were his immediate and successively higher supervisors.
The Zaffutos' Title VII claim arose out of allegedly unlawful disciplinary action taken against Terry Zaffuto in retaliation for engaging in a protected activity. Their claims under Section 1983 and state law arose out of the unlawful interception and dissemination of a personal telephone call between the Zaffutos.
Before trial, the presiding district judge granted partial summary judgment against the Zaffutos, dismissing their claims under Tide VII against all defendants because the adverse employment action at issue did not constitute an "ultimate employment decision" as required for an actionable claim under Title VII. Record Doc. No. 31. The court denied summary judgment on plaintiffs' Section 1983 claim because of genuine issues of disputed material fact, including whether the alleged interception and dissemination of the Zaffutos' telephone conversation was an unlawful invasion of their privacy rights and whether the City of Hammond had an unlawful policy or custom related thereto.
The case proceeded to jury trial on the Section 1983 and state law invasion of privacy claims. At the conclusion of plaintiffs' case-in-chief, the court granted defendants' oral motion for judgment as a matter of law as to all claims against Chief Devall. Record Doc. No. 38. Plaintiffs' claims against the remaining two defendants were decided by the jury, which found Corkern liable under both Section 1983 and state law. The jury awarded $1 in compensatory damages to each plaintiff and $10,000 in punitive damages. The jury found the City of Hammond not liable under federal law. Jury Verdict, Record Doc. No. 39. On the Zaffutos' post-trial motion to alter and/or amend judgment, the court determined that the City was solidarily liable under the doctrine of respondeat superior for the acts of Corkern that violated state law, and amended the judgment to hold the City liable in the amount of $2. Record Doc. No. 57.
II. ANALYSIS
A. Prevailing Party Status
When a plaintiff prevails on a claim under Section 1983, the court, "in its discretion, may allow the prevailing party . . . a reasonable attorney's fee" pursuant to the authority granted in 42 U.S.C. § 1988 (emphasis added). The presiding district judge has already ruled that the Zaffutos are entitled to recover their attorney's fees as prevailing parties only on their Section 1983 claim in this case. Record Doc. No. 40. Only determination of "[t]he proper amount of attorney's fees to be awarded" has been referred to me. Id. Accordingly, this report and recommendation will focus exclusively on the question of the amount constituting "reasonable" attorney's fees.
In addition to the $33,732 requested in their motion concerning pre-trial and trial work, the Zaffutos also request attorney's fees in the amount of $20,000 to compensate their counsel for future fees in the event that they take an appeal to the Fifth Circuit and/or a writ to the United States Supreme Court. Although Section 1988 permits an award of reasonable attorney's fees for appellate work, "[t]he statute by its terms thus permits the award of attorney's fees only to a "prevailing party.' Accordingly, . . . the Court of Appeals was authorized to award to the respondents the attorney's fees attributable to their appeal only if . . . they "prevailed' [on appeal] within the meaning of § 1988."Hanrahan v. Hampton, 446 U.S. 754, 756 (1980) (emphasis added). Thus, attorney's fees for successful appellate efforts are permitted under Section 1988, but certainly not in advance of such services being rendered and before a judicial determination that plaintiffs are the prevailing parties on appeal and that the fees they incurred were reasonable. See Alizadeh v. Safeway Stores, Inc., 910 F.2d 234, 238 n. 4 (5th Cir. 1990) (appeals court will not award attorney's fees by assuming that party will prevail on appeal) (citing Hanrahan,, 446 U.S. at 754);id. at 237-38 (affirming award of attorney's fees for first appeal to defendant who did not prevail on first appeal but who ultimately prevailed on all claims after trial on the merits); Norris v. Hartmarx Specialty Stores, Inc., 913 F.2d 253, 257 (5th Cir. 1990) (awarding attorney's fees to plaintiff for successful appeal and remanding to trial court for determination of amount).
Accordingly, I recommend that plaintiffs' request for an award of $20,000 in attorney's fees for future work that may be done in connection with an appeal that has not yet been successful must be denied.
B. The Lodestar
Determination of the reasonableness of the remainder of plaintiffs' request for attorney's fees is a two-step process that begins with determination of the "lodestar" amount.
A lodestar is calculated by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work. After making this calculation, the district court may decrease or enhance the lodestar based on the relative weights of the twelve factors set forth in Johnson v. Georgia Highway Express. Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar award already took that factor into account. Such reconsideration is impermissible double-counting.Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) (citing city of Burlington v. Dague, 505 U.S. 557, 562 (1992); Shipes v. Trinity Indus., 987 F.2d 311, 319-20 (5th Cir. 1993)).
The Johnson factors are:
(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and 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) the award in similar cases.Johnson, 488 F.2d at 717-19.
"[O]f the Johnson factors, the court should give special heed to the time and labor involved, the customary fee, the amount involved and the result obtained, and the experience, reputation and ability of counsel."Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998) (citation omitted). Three of the Johnson factors, complexity of the issues, results obtained and preclusion of other employment, are fully reflected and subsumed in the lodestar amount. Heidtman, 171 F.3d at 1043 (citing Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); Shipes, 987 F.2d at 319-22 n. 9). More recently than the Johnson case, the "Supreme Court has barred any use of the sixth factor," i.e., whether the fee is fixed or contingent. Walker v. United States Dep't of Housing Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996) (citing City of Burlington, 505 U.S. at 567; Shipes, 987 F.2d at 323).
"The lodestar . . . is presumptively reasonable and should be modified only in exceptional cases." Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993) (citing City of Burlington, 505 U.S. at 562); accord Heidtman, 171 F.3d at 1043. Although the party seeking attorney's fees bears the initial burden of submitting adequate documentation of the hours reasonably expended and of the attorney's qualifications and skill, the party seeking reduction of the lodestar bears the burden of showing that a reduction is warranted. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997); Louisiana Power Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995) (hereinafter "LPL").
The Zaffutos seek $33,732 in attorney's fees based on an hourly rate of $200 for 168.66 hours spent m prosecution of the case from the initial complaint through post-trial work. They do not seek an enhancement or upward adjustment of the lodestar figure.
C. The Hourly Rates Charged by Plaintiffs' Counsel
First, I must determine whether the hourly rate of $200 charged by plaintiffs' counsel was reasonable. Plaintiffs' attorney, Richard Bullock, states in his affidavit that he customarily charges $200 an hour and that the prevailing market rate in Baton Rouge, Louisiana, where his office is located, is between $175 and $250 per hour for attorneys with similar experience and skill. Bullock states that he has nine years of legal experience, has practiced primarily employment and civil rights litigation and has served as lead attorney in more than 100 employment and civil rights matters in state and federal court.
An attorney's requested hourly rate is prima fade reasonable when he requests that the lodestar be computed at his or her customary billing rate, the rate is within the range of prevailing market rates and the rate is not contested. LPL, 50 F.3d at 328. Here, defendants challenge the requested $200 rate as unreasonable because it will produce an attorney's fees award of more than three times the amount of the judgment and because the 40% contingency fee agreement between the Zaffutos and Bullock would provide a much lower fee. Therefore, defendants argue that any fee award should be limited to an amount no greater than 40% of the judgment. However, this argument must be rejected because, as noted above, this court may not consider a contingency fee arrangement m computing the lodestar. Walker, 99 F.3d at 772 (citing City of Burlington, 505 U.S. at 567; Shipes, 987 F.2d at 323).
Bullock's affidavit addresses the prevailing market rate in Baton Rouge, which is outside of this court's jurisdiction. The Zaffutos submitted no additional evidence or case authority to support an hourly rate of $200. They did not attach the affidavit of any other attorney attesting to Bullock's legal reputation and skin or the customary fees in the community where he practices. "Hourly rates are to be computed according to the prevailing market rates in the relevant legal market, not the rates that lions at the bar may command." Hopwood v. State, 236 F.3d 256, 281 n. 107 (5th Cir. 2000), cert. denied, 121 S.Ct. 2550 (2001) (quotation omitted). In this case, the relevant legal community is the New Orleans area.
An hourly rate of $200 is within the prevailing market range in this legal community but is on the high end of that range, especially for a lawyer like Bullock with less than ten years experience. My research indicates that the following hourly rates have recently been awarded in both similar and more complicated cases in this court.
1. In a civil rights case earlier this year, Judge Vance awarded $150 per hour to an attorney who had been admitted to the bar in 1977. Oyefodun v. City of New Orleans, No. 98-3283, 2001 WL 775574, at *9 (E.D. La. July 9, 2001).
2. Judge Livaudais awarded $185 per hour this year to a civil rights attorney with 25 years of experience. Lalla v. City of New Orleans, No. 96-2640, 2001 WL 333112, at *9 (E.D. La. Apr. 4, 2001).
3. In a qui tam case in 1999, Judge Duval awarded hourly rates of $250, $175 and $150 for partner-level attorneys. He awarded rates at the high end of each attorney's usual range because of the particular difficulty of the case and the lucrative and less risky business the lawyers were precluded from accepting. 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).
4. In Yousuf v. UHS of De La Ronde, Inc., 110 F. Supp.2d 482, 490-91 (E.D. La. 1999), Judge Livaudais awarded $195 per hour to an attorney who had practiced civil rights litigation for 24 years.
5. In 1998, in an action challenging the constitutionality of a public school board's resolution, Judge Livaudais held that while "$175 is arguably within the realm of reasonable awards, an hourly rate of $150 is appropriate." Freiler v. Tangipahoa Parish Bd. of Educ., No. 94-3577, 1998 WL 2852, at *3 (ED. La. Jan. 5, 1998), aff'd 185 F.3d 337, 349 (5th Cir. 1999).
6. Judge Berrigan held in 1997 that $150 per hour was reasonable in an employment discrimination action, after finding that counsel had practiced employment discrimination law since 1988 and had become an authority in the field. Smith v. Berry Co., No. 96-1899, 1997 WL 736697, at *4 (E.D. La. Nov. 21, 1997).
7. In a Title VII action in 1996, Judge Berrigan awarded $175 per hour to counsel who had been practicing employment discrimination law since 1988. Douglas v. DynMcDermott Petroleum Operations Co., No. 95-1967, Record Doe. No. 203 (unreported decision; cited in Smith, 1997 WL 736697, at *4).
8. In Police Ass'n of New Orleans v. City of New Orleans, 951 F. Supp. 622, 628 (E.D. La. 1997), Chief Judge Sear held 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 Chief Judge's own knowledge of attorneys' fees in this district.
9. In Blanchard v. Forrest, No. 93-3780, 1996 WL 125955, at *2-3 (E.D. La. March 19, 1996), an "exceedingly complex" class action brought under Section 1983 against the State of Louisiana, which required "specialized knowledge of the controlling [Medicaid] regulations" and resulted in a consent decree, Judge Porteous found that hourly rates of $175 for a senior attorney with 25 years of varied litigation experience, $125 for a public interest litigator with slightly less experience, $80 for a second-year associate and $35 for student law clerks were customary and reasonable in this district.
10. Finally, in an age discrimination case tried in 1995, Magistrate Judge Africk awarded hourly rates of $175 for an attorney who had practiced law for 23 years, $150 for an attorney who had practiced for 15 years and $125 for an attorney who had practiced for 9 years with 6 years of specialization in disability rights. Grantham v. Moffett, No. 93-4007, 1996 WL 3750, at *4 (E.D. La. Jan. 3, 1996) (Africk, M.J.), aff'd, 101 F.3d 699 (5th Cir. 1996).
In this case, although Bullock specializes in civil rights litigation, he has practiced less than ten years. The requested $200 rate is at the high end of the prevailing market range in the New Orleans area legal community, as determined in other relevant cases, coupled with the court's own knowledge and experience. The requested rate would compensate Bullock at an hourly rate this court has generally reserved for counsel of substantially greater experience. Accordingly, I find that $150 per hour is a reasonable and appropriate hourly rate in this case.
D. The Hours Charged by Plaintiffs' Counsel
Next, I must determine the reasonable number of hours that plaintiffs' counsel expended on the litigation. As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded from any award of attorney's fees. Watkins, 7 F.3d at 457. Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, or redundant hours" when seeking fee awards. Walker, 99 F.3d at 769; accord Hensley, 461 U.S. at 433-34. 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.
Defendants challenge specifically the following types of entries.
1. Non-Attorney Work
Defendants urge that the hourly rate for legal work should not be applied to work that is clerical or paralegal in nature. "Normally, clerical or secretarial costs are part of an attorney's office overhead and are reflected in the billing rate." Hagan v. MRS Assocs., Inc., No. 99-3749, 2001 WL 531119, at *9 (E.D. La. May 15, 2001) (Africk, M.J.) (citing Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995); In re North, 59 F.3d 184, 195 (D.C. Cir. 1995)) (additional citations omitted). "[W]hen an attorney performs a task that could be handled by clerical staff, the opponent should not be charged the attorney's hourly rate." Sassaman v. Heart City Toyota, 879 F. Supp. 901, 918 (N.D. Ind. 1994) (quotations omitted); see also Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989) (clerical and other work that can be accomplished by non-lawyers should not be billed at an attorney's rate); Harris v. L L Wings, Inc., 132 F.3d 978, 985 (4th Cir. 1997) (secretarial tasks);Abrams v. Baylor College, 805 F.2d 528, 535-36 (5th Cir. 1986) (clerical work); Hagan, 2001 WL 531119, at *9 (faxing documents); Barrilleaux v. Thayer Lodging Group, Inc., No., 97-3252, 1999 WL 397958, at *2 (E.D. La. June 11, 1999) (Livaudais, J.) (clerical and administrative tasks);Inks v. Healthcare Distribs. of Ind., Inc., 901 F. Supp. 1403, 1416 (N.D. Ind. 1995) (delivery of materials to opposing counsel).
However, I find that Bullock did not expend lawyer time on purely clerical tasks. As his affidavit attests, he is a solo practitioner with only two staff members, apparently neither of them paralegals. Preparation of service of process, deposition notices, deposition summaries and subpoenas, although sometimes done by paralegals under attorney supervision, is legal, not clerical, work. No reductions win be made based on this objection.
2. Travel Time
Defendants argue that attorney travel time should be compensated at a lower rate than legal work. Bullock did not record any time for travel; however, defendants argue that for each court appearance, Bullock would have had to travel two and one-half hours round trip between Baton Rouge and New Orleans. Similarly, he took depositions at least three times in Hammond, Louisiana, which defendants assert is a two-hour round trip.
Courts in this circuit typically compensate travel time at 50% of the attorney's rate in the absence of documentation that any legal work was accomplished during travel time. Watkins, 7 F.3d at 459; Hopwood v. State, 999 F. Supp. 872, 914 (W.D. Tex. 1998), aff'd in relevant part rev'd in part on other grounds, 236 F.3d 256, 281 n. 107 (5th Cir. 2000), cert. denied, 121 S.Ct. 2550 (2001); Jackson v. Capital Bank Trust Co., No. 90-4734, 1994 WL 118322, at *26 (E.D. La. Mar. 30, 1994) (Heebe, J.); Smith v. Walthall Co., 157 F.R.D. 388, 393 (S.D. Miss. 1994) (Wingate, J.) However, it is not apparent that the Zaffutos seek attorney's fees for travel time. There is no evidence that the time entries for court appearances and depositions include hours spent in travel or that Bullock customarily charges clients for travel time. It is impossible without such evidence, or evidence as to how long a court appearance or deposition lasted, to assess whether the hours billed include travel time. Accordingly, the court win not make any deductions in the fee request for travel time.
3. Excessive and Unnecessary Hours
Defendants contend that the time entries include unnecessary and excessive billing entries. Specifically, defendants challenge three entries. First, defendants argue that time billed on March 15, 2001 for drafting proposed stipulations should be excluded because plaintiffs never submitted proposed stipulations but adopted nearly verbatim the defendants' proposals. Next, defendants challenge 1.75 hours billed on March 21, 2001 for review of client's medical records because no medical testimony or records were introduced at trial. Finally, defendants challenge time billed on March 29, 2001 for preparation of jury instructions. Defendants contend that only one paragraph of the plaintiffs' proposed jury instructions addressed the issue actually tried, and the remainder of plaintiffs' submissions copied the Fifth Circuit pattern charges without specific supporting cases.
In light of these objections and in accordance with the standards set forth in Hensley, this court has undertaken a review of the time records in conjunction with the written submissions at issue to exclude any "excessive, redundant, or otherwise unnecessary" hours. Hensley, 461 U.S. at 433-45.
Addressing first the time spent reviewing medical records not used at trial, I find that the limited time spent on this task, 1.75 hours, is not unreasonable. The court is unwilling to second-guess counsel's strategic decision not to use the records at trial, which could prudently have been made only after reviewing the records.
The challenged time entries for drafting proposed stipulations and jury instructions include time spent on other related tasks such as teleconferencing with the client, reviewing the file, research and preparing the pretrial order, witness and exhibit lists and settlement papers. The hours allocated to these tasks on March 15 and 29, 2001 total 7.25 hours. This is not an unreasonable amount of time considering the nature and significance of the work involved. Counsel's ultimate decision to adopt defendants' proposed stipulations and the Fifth Circuit's pattern jury instructions does not mean that he did not reasonably spend time researching the law, drafting, consulting with his client and reviewing the file. Counsel drafted the jury instructions one week before trial. The court did not dismiss the Title VII claims until the day before trial. It was not unreasonable for counsel to spend time one week before trial preparing proposed jury instructions on claims that were later dismissed. Accordingly, I will not make any reduction in these challenged hours.
4. Unsuccessful Claims
The most critical factor in determining the amount of attorney's fees is the degree of success obtained. Farrar v. Hobby, 506 U.S. 103, 114 (1992); Hensley, 461 U.S. at 440-441. In Hensley, the Supreme Court held that a plaintiff cannot recover attorney's fees for time expenditures that are unreasonable in relation to the success achieved. A reduction in hours for lack of success is not intended to maintain any proportionality between the amount of the judgment and attorney's fees, but rather to assure that fees are awarded only to the extent the litigant was successful.
The Court in Hensley articulated a two-pronged inquiry, under which the district court must determine (1) whether the party seeking fees failed to prevail on claims that were unrelated to the claims on which he succeeded; and (2) if the claims are interrelated, whether the lodestar amount awarded should be decreased or enhanced considering the degree of success obtained in relation to the scope of the entire litigation. Id. at 440.
In some cases, a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories. In such a suit, even when the claims are brought against the same defendants, counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unrelated, unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved.
The Zaffutos seek attorney's fees for all time expended in this case, notwithstanding their failure to succeed on all of their claims or against all defendants. Their Section 1983 and state law claims based on interception and dissemination of a telephone call are distinct from their unsuccessful Title VII retaliation claim. The Zaffutos were successful only on their Section 1983 and state law claims alleging invasion of privacy against a single defendant, Corkern, and the state law claim against the City under respondeat superior. They have a claim for attorney's fees based only on the Section 1983 claim, not on any state law claim. This is limited success in comparison with the litigation as a whole. The record shows that the Zaffutos devoted the majority of their effort to prosecuting the ultimately unsuccessful Title VII claim. Comparatively little time was spent on the Section 1983 and state law claims. Because the two types of claims are distinct, the court must exclude hours expended on the unsuccessful Title VII claim to achieve a reasonable number of hours expended in light of the restrictively successful results obtained on the Section 1983 claim.
Defendants suggest particular expenditures of time that they argue relate solely to the Title VII claim. However, other than these few entries, the time sheets do not identify the precise legal theories on which counsel worked. It is difficult if not impossible to segregate the time spent on each claim. When a court decides to reduce an award because of plaintiffs limited success, it may identify and eliminate specific hours, or simply reduce the award to account for the limited success.Id. at 436-37; See Migis, 135 F.3d at 1048 ("The Supreme Court has twice made clear that the most critical factor in determining the reasonableness of a fee award in a civil rights suit is the degree of success obtained.") (quotations omitted). "The court necessarily has discretion in making this equitable judgment." Hensley, 461 U.S. at 436-37. A reduction in the amount of hours by a percentage is the appropriate method in this case to obtain a reasonable fee award in relation to the success achieved on the Section 1983 claim.
I find that a 50% reduction reflects the Zaffutos' overall degree of success on their claims. See Garcia v. City of Houston, 201 F.3d 672, 679 (5th Cir. 2000) (75% reduction appropriate to reflect limited success);Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074, 1084-85 (10th Cir. 1998) (50% reduction to reflect plaintiffs' success); Murphy v. Girard Sch. Dist., 134 F. Supp.2d 431, 440 (W.D. Pa. 1999) (85% reduction of lodestar to reflect limited success); McKever v. Vondollen, 681 F. Supp. 999, 1003 (N.D.N.Y. 1988) (40% reduction to reflect hours expended on victorious claim only).
E. Calculation of the Lodestar
In summary, I find that the requested 168.66 hours should be reduced by 50% as explained above, so that the reasonable number of hours is 84.33.
After making these reductions in hours, I find that the lodestar amount of reasonable hours multiplied by the reasonable rates set forth above is reasonable in this case and that no further reduction or enhancement is required. The Zaffutos have not requested an upward adjustment and, thus, have not made any showing that such an adjustment is necessary to establish a reasonable fee. In making this recommendation, I have considered and applied the factors articulated in Johnson, as required by the Fifth Circuit. Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996); LPL, 50 F.3d at 331. Those factors have been evaluated as follows.
(1) The time and labor required have already been considered in reaching the lodestar. (2) The questions involved in this case were neither novel nor difficult. (3) The skill required to perform the legal service properly is connected to the second factor and has already been taken into account in the attorney's hourly rate. (4) Although Bullock attests that he was precluded from taking other employment, the Fifth Circuit has held that this factor is already "fully reflected and subsumed in the lodestar amount." Heidtman, 171 F.3d at 1043. (5) After the reductions discussed above, the fees charged were customary; this factor has already been taken into account. (6) The contingent fee contract cannot as a matter of law be used to affect the lodestar. (7) There were no significant time limitations imposed by the circumstances. Bullock's assertion in his affidavit that he devoted his full time to the case during the week before and the two days of trial is not unusual and is to be expected by a lawyer in a litigation practice, and this factor has already been taken into account in determining the hourly rate. (8) The amount involved was not extraordinary and the result obtained was only partially successful, which has already been taken into account. (9) The experience, reputation, and ability of counsel has already been considered in determining the lodestar. (10) The case was not undesirable. (11) Plaintiffs' relationship with counsel is unknown. (12) Awards in similar cases have already been discussed.
Thus, I find that no adjustment need be made to the lodestar, as reduced by 50 percent. The reasonable hours multiplied by the reasonable hourly rate (84.33 x $150) yield a lodestar amount of $12,649.50.
RECOMMENDATION
For the foregoing reasons, it is recommended that plaintiffs Terry and Susan Zaffuto be awarded reasonable attorney's fees against defendant Corkern only in the amount of $12,649.50, plus post-judgment legal interest on that amount from the date of judgment until paid at the statutory rate set forth in 28 U.S.C. § 1961.
A party's failure to file written objections to the proposed findings, conclusions and recommendations in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).