Fleming v. Elliott Sec. Sols.

• Docket Number: Civil Action 19-2348
• Decision Date: 21 October 2021
• Parties: DAPHNE FLEMING AND BRINTNEY JONES v. ELLIOTT SECURITY SOLUTIONS, LLC; IAN KENNARD AND DARRIN SR.
• Court: U.S. District Court — Eastern District of Louisiana

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DAPHNE FLEMING AND BRINTNEY JONES
v.
ELLIOTT SECURITY SOLUTIONS, LLC; IAN KENNARD AND DARRIN SR.

Civil Action No. 19-2348

United States District Court, E.D. Louisiana

October 21, 2021

ORDER & REASONS

KAREN WELLS ROBY, UNITED STATES MAGISTRATE JUDGE.

Before the Court is Plaintiffs Daphne Fleming and Britney Jones (collectively "Plaintiffs") Plaintiffs' Motion to Set Attorneys' Fees and Costs (R. Doc. 114), requesting fees and costs in the amount of $99, 109.54 is reasonable and fair under the Fair Labor Standards Act, 29 U.S.C. 201, etseq. ("FLSA").

I. Factual Summary

Plaintiffs are former employees of Defendants who assert that Defendants failed to pay overtime in accordance with the Fair Labor Standards Act ("FLSA"), failed to timely pay Plaintiffs wages, and failed to pay Plaintiffs' final wages in accordance with the Louisiana Final Wage Payment Act, La. R.S. 23:631, et seq. ("WPA"). Plaintiffs worked for Defendants from late 2017 until around the beginning of 2019. Plaintiffs further allege that Defendants improperly deducted the cost of equipment, uniforms, licenses, and other costs from their paychecks, which resulted in them not being paid at the overtime rate for the hours worked more than 40 hours per week.

After litigating for three years, the parties settled the claims on March 1, 2021 for a recovery of $17, 356.12. R. Doc. 103. Plaintiffs now seek to recover $99, 109.54 as a fee request. This motion is hotly contested.

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II. Standard of Review

The FLSA provides that "[t]he court in [an FLSA action for unpaid overtime or minimum wages] shall, in addition to any judgment awarded to the plaintiff or plaintiffs, shall award reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. 216(b). The purpose of this provision is to encourage private litigators to act as "private attorneys general" on behalf of enforcement of the civil rights laws so as to ensure that plaintiffs would be able to obtain competent legal representation for the prosecution of legitimate nonpayment claims. Newman v. Piggie Park Enters., 390 U.S. 400, 401-02 (1968).

The criteria to be applied in determining the proper amount of fees to be awarded are articulated for this Circuit in, Johnson v. Georgia Highway Express, Inc. 488 F.2d 714 (5th Cir.1974). The Supreme Court has indicated that the "lodestar" calculation is the "most useful starting point" for determining the award of attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar equals "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. The lodestar is presumed to yield a reasonable fee. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).

After determining the lodestar, the Court must then consider the applicability and weight of the twelve factors set forth in, Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Court can make upward or downward adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). However, the lodestar should be modified only in exceptional cases. Id.

After the calculation of the lodestar, the burden then shifts to the party opposing the fee to contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended "by affidavit or brief with sufficient specificity to give fee applicants notice" of the objections. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).

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III. Analysis

A. Reasonableness of Hourly Rates

Plaintiffs' counsels are Jody Jackson ("JFJ") and Mary Bubbett Jackson ("MBJ"). Plaintiffs contend that their counsel Mr. Jackson and Mrs. Mary Jackson have in excess of 17 years of experience in civil litigation and have acted as lead counsel in the litigation of nearly 70 FLSA cases (many of which were collective actions) across three states.^[1]

Mr. Jackson was admitted to practice law in Louisiana in 2004 and he is also admitted to practice in Alabama. Mrs. Jackson was admitted to practice in Louisiana in 2004. R. Doc. 114-2. She has primarily practiced in the employment law area including FLSA. Mrs. Jackson indicates in her affidavit that she and her husband are the only attorneys in the firm. She also indicated that due to the lack of fulltime administrative staff she and her husband handle administrative tasks which they do not bill for. Id.

Plaintiffs' counsel contend that their hourly rate is based upon the prevailing market rates in the New Orleans area for attorneys of comparable experience. Plaintiffs' counsel maintained contemporaneous, time records regarding their work in this litigation. Plaintiffs' counsel represented that a non-redacted copy can be provided for the Court to review in camera if requested. They bill in tenth of an hour increments at an hourly rate of $350.00.^l

Defendants contend that Plaintiffs' counsel have failed to prove the reasonableness of their hourly rate for their counsel in this simple, two plaintiff, wage and hour dispute which did not even result in conditional class certification. R. Doc. 120-2. The Defendants contend that the burden of demonstrating the hourly rate lies with the party seeking attorney fees and they failed to do so. Id. The Defendants contend that notably absent from the affidavit of Mr. Jackson is any attestation

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that $350.00 is the customary billing rate for him or Mrs. Jackson. Id. Additionally, the Defendants contend that conspicuously absent is any attestation from Mr. Jackson that a Court has approved a $350.00 hourly rate for either lawyer. Id.

Defendants further point out that Plaintiffs' counsel provided only one declaration, from Mr. John O. Pieksen, Jr., in support of the requested hourly rate of $350.00. Moreover, they contend that, while the affidavit indicates that an hourly rate of $350.00 is reasonable for FLSA work, he fails to specify whether that rate is reasonable for the instant case. Consequently, the Defendants contend that his affidavit is not sufficient evidence of the reasonableness of their rates in this "simple wage and hour dispute with only two plaintiffs" and is insufficient as a matter of law. Id.

Attorney's fees must 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). 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). 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. 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.

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. Housing Auth. of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988); see also White v. Imperial

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Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28, 2005) (recognizing that attorneys customarily charge their highest rates only for trial work, and lower rates should be charged for routine work requiring less extraordinary skill and experience).

Where "an attorney's customary billing rate is the rate at which the attorney requests the lodestar to be computed and that rate is within the range of prevailing market rates, the court should consider this rate when fixing the hourly rate to be allowed. When that rate is not contested, it is prima facie reasonable." La. Power & Light, 50 F.3d at 328, Trahan v. Crown Drilling, Inc., No.2011 WL 3320531, at *4 (E. D. La. July 13, 2011) (Roby, M.J.) (finding attorney's requested rate reasonable because it was not challenged by the opposing party).

The evidence shows that Plaintiffs' counsel have not complied with the requirements of the lodestar regarding support for their hourly rate. First, only one of the two lawyers provided an affidavit, Mr. Jackson. In the affidavit, he attests that the $350.00 hourly rate is appropriate for Mrs. Jackson and is in line with similarly experienced attorneys in FLSA matters. Mr. Jackson attests that Mrs. Jackson has practiced employment law for 10 years with a focus on FLSA litigation. However, she has been licensed for 17 years. R. Doc. 114-2. Mr. Jackson makes no mention of Mrs. Jackson's educational background and only mentions her experience and admissions to both Louisiana and Florida bars. Id.

Mr. Jackson also fails to mention his educational background but indicates that he has been licensed to practice law for in Louisiana 17 years as well. Id. Like, Mrs. Jackson, he indicates that FLSA litigation is one of the main focuses of his legal practice. Id. He attempts to render an opinion that the hours billed were reasonable. Id. Mr. Jackson does not attest that $350.00 per hour is the rate actually billed either by he or Mrs. Jackson, only that he thinks that they are reasonable. Id.

Further, they include citations to a sundry of cases that are indicative of their experience. However, they do not indicate which, if any, of these cases are FLSA cases where they were

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awarded a rate of $350.00 which is their burden to do. Having reviewed the cases cited by the Plaintiffs, none of them reference a rate of $350.00.^[2] In Bridges v. Personal Touch...