Calix v. Ashton Marine LLC
| Decision Date | 14 July 2016 |
| Docket Number | CIVIL ACTION NO. 14-2430 SECTION "K" (2),c/w 15-3622 SECTION "K" (2) |
| Parties | CARLOS CALIX ET AL. v. ASHTON MARINE LLC ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
This is a conditionally certified collective action for unpaid overtime wages under the Fair Labor Standards Act ("FLSA"). 29 U.S.C. § 201 et seq. The presiding district judge approved the parties' settlement agreement, Record Doc. No. 103, and entered judgment in favor of plaintiffs and against defendants, Ashton Marine, LLC, Ashton Boat Construction, LLC1 and Paul M. Boudreaux (collectively "Ashton Marine" or "defendant"), awarding a specific amount to each of the six named plaintiffs, "plus attorneys' fees and costs as provided for under the [FLSA]." Judgment, Record Doc. No. 105 at p. 1.
The presiding district judge referred to me for findings and recommendation plaintiffs' Motion for Attorney's Fees, Record Doc. No. 104,2 and the question of "the proper amount of attorney fees to be awarded." Record Doc. No. 105 at p. 2. Plaintiffsseek an award of $145,770.00 in fees for 485.9 hours of attorney time. They also argue that this amount should be adjusted upward because of their degree of success.
Ashton Marine filed a timely opposition memorandum. Record Doc. No. 112. Defendant does not dispute that plaintiffs are prevailing parties entitled to recover their reasonable attorney's fees, but argues that (1) plaintiffs seek fees for legal work done after January 5, 2016, despite an alleged agreement that they would not seek recovery of any fees incurred after they settled their overtime claims; and (2) both the hourly rates and the amount of hours billed by plaintiffs' counsel are excessive and unreasonable.
The FLSA provides that the court "shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b). "Reasonable attorney's fees are mandatory when a court finds that an employer has violated [29 U.S.C.] § 206. . . . "[T]he district court has discretion to determine what is reasonable." Steele v. Leasing Enters., Ltd., No. 15-20139, 2016 WL 3268996, at *7 (5th Cir. June 14, 2016) (quotation omitted) (citing Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006)).
The lodestar method is routinely used to determine attorney's fee awards in federal actions and applies in this case brought under a federal statute. Collective actions under the FLSA are often treated like class actions for settlement purposes. Ruiz v. McKaskle, 724 F.2d 1149, 1152 (5th Cir. 1984); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977); In re Beef Indus. Antitrust Litig., 607 F.2d 167, 179 (5th Cir. 1976); Liger v. New Orleans Hornets NBA Ltd. P'ship, No. 05-1969, 2009 WL 2856246, at *2 (E.D. La. Aug. 28, 2009). The Fifth Circuit "requires district courts to use the 'lodestar method' to assess attorneys' fees in class action suits." In re High Sulfur Content Gas. Prods. Liab. Litig., 517 F.3d 220, 228 (5th Cir. 2008) (emphasis added).
Ashton Marine contends that the court should apply the "percentage method" as a double-check against the lodestar method and should award plaintiffs only a small percentage of the total settlement amount as a reasonable attorney's fee. However, as the cases cited by Ashton Marine demonstrate, the percentage method is generally used when attorney's fees will be drawn from a common fund settlement. Collins v. Sanderson Farms, Inc., 568 F. Supp. 2d 714, 729 (E.D. La. July 9, 2008); In re Harrah's Ent'm't, Inc., No. 95-3925, 1998 WL 832574, at *4 (E.D. La. Nov. 25, 1998); In re Prudential-Bache Energy Income P'ships Sec. Litig., No. MDL 888, 1994 WL 150742, at *1-2, *4 (E.D. La. April 13, 1994); cf. Lackey v. SDT Waste & Debris Servs., LLC, No. 11-1087, 2014 WL 4809535, at *3 (E.D. La. Sept. 26, 2014) (). The instant case involves neither a common fund settlement nor an agreement by defendant to pay a certain amount of plaintiffs' attorney's fees.
Reasonableness is the touchstone of any award of attorney's fees. Altec Capital Servs., LLC v. Weir Bros., No. 3:11-CV-3409-D, 2013 WL 866193, at *5 (N.D. Tex. Mar. 8, 2013); Ill. Cent. R. Co. v. Harried, No. 5:06CV160-DCB-JMR, 2011 WL 283925, at *9 (S.D. Miss. Jan. 25, 2011); Fox v. Vice, 737 F. Supp. 2d 607, 609 (W.D. La. 2010); Life Ins. Co. v. Kreuzer, No. EP-06-CA-173-FM, 2006 WL 3306148, at *2 (W.D. Tex. Nov. 2, 2006); Sandoval v. Apfel, 86 F. Supp. 2d 601, 610 (N.D. Tex. 2000). The lodestar provides "a sound method of assessing the fees," even when, for example, a contract provides for a particular allocation of attorneys' fees, "because the court has the discretion to reduce any award that would be 'inequitable and unreasonable.'" Int'l Marine, LLC v. FDT, LLC, No. 10-0044, 2015 WL 914898, at *3 (E.D. La. Mar. 3, 2015) (citing Natco Ltd. P'ship v. Moran Towing of Fla., Inc., 267 F.3d 1190, 1196 (11th Cir. 2001); Malin Int'l Ship Repair & Drydock, Inc. v. M/V SEIM SWORDFISH, 611 F. Supp. 2d 627, 635-36 (E.D. La. 2009); Cortes Molina v. TL Dallas (Special Risks) Ltd., 547 F. Supp. 2d 102, 115 (D. Puerto Rico 2008)).
Jimenez v. Wood Cnty., 621 F.3d 372, 379-80 (5th Cir. 2010) (citations omitted).
Heidtman v. Cnty. 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)); accord Perdue v. Kenny A., 130 S. Ct. 1662, 1669 (2010).
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.
"[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 presumably fullyreflected and subsumed in the lodestar amount. Heidtman, 171 F.3d at 1043 (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986); Shipes, 987 F.2d at 319-22 & n.9). After Johnson was decided, the "Supreme Court has barred any use of the sixth factor," whether the fee is fixed or contingent. The Johnson factors are taken into account after the court has determined the lodestar amount. Walker v. U.S. Dep't of Housing & Urban Dev., 99 F.3d 761, 772 (5th Cir. 1996) (citing City of Burlington, 505 U.S. at 567).
The Supreme Court recently reiterated that "there is a strong presumption that the lodestar is sufficient" and that "an increase is permitted [only] in extraordinary circumstances." Perdue, 559 U.S. at 546; accord Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012); Jimenez, 621 F.3d at 380. 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. Std. Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir. 1995) (hereinafter "LP&L").
As a general proposition, all time that is excessive, duplicative or inadequately documented should be excluded. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, orredundant hours" when seeking fee awards. Green v. Admin'rs of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir. 2002), abrogated in part on other grounds by Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 63-64 (2006) (citing 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 billed and, therefore, are also charged with proving that they exercised billing judgment." Saizan, 448 F.3d at 799 (citation omitted).
"The proper remedy when there is no evidence of billing judgment is to reduce the hours awarded by a percentage intended to substitute for the exercise of billing judgment." Walker...
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