Grant v. Gusman

• Decision Date: 09 September 2020
• Docket Number: CIVIL ACTION NO. 18-6465 SECTION "D" (3)
• Parties: JUSTIN GRANT, ET AL. v. MARLIN N. GUSMAN, ET AL.
• Court: U.S. District Court — Eastern District of Louisiana

JUSTIN GRANT, ET AL. v. MARLIN N. GUSMAN, ET AL.

CIVIL ACTION NO. 18-6465 SECTION "D" (3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

September 9, 2020

REPORT AND RECOMMENDATION

Before the Court is Plaintiffs' Motion for Costs and Attorney's Fees Pursuant to 42 U.S.C. 1988. [Doc. #76]. Defendants filed an opposition, [Doc. #82], and plaintiffs filed a reply. [Doc. #88]. Having reviewed the pleadings and the case law, the Court rules as follows.

I. Background

Plaintiffs Justin Grant and Jordan Kerr are advantage gamblers.¹ Plaintiffs allege that advantage gambling is allegedly not an illegal activity, although it may be discouraged, and casinos may ban advantage gamblers. [Doc. #56 at pp. 3, 10]. On August 11, 2017, while plaintiffs were gambling at Harrah's New Orleans Casino, defendants allegedly seized plaintiffs' persons and property and unlawfully detained them for a prolonged amount of time even after realizing that plaintiffs were engaging in advantage gambling.

Plaintiffs then sued in this Court under the Fourth and Fifth Amendments to the United States Constitution to be free from unreasonable searches and seizures and for the deprivation of their property without due process of law. Ultimately, on February 13, 2020, the parties filed a stipulation in the record in which they outlined the general terms of a settlement to which they had agreed. [Doc. #72]. On February 14, 2020, the District Court dismissed this lawsuit given the settlement and retained jurisdiction to enforcement its terms. [Doc. #74].

Importantly, in the stipulation between the parties, the parties agreed that the settlement rendered plaintiffs prevailing parties for purposes of the recovery of attorney's fees under 42 U.S.C. § 1988 and that plaintiffs would file any motion for said fees and costs within 45 days of the filing of the stipulation. [Doc. #72 at p. 2]. This motion followed, and plaintiffs now seek attorney's fees in the amount of $98,133.68 and costs in the amount of $1,268.26.

II. Law and Analysis

A. The Lodestar Approach

The United States Supreme Court and the Fifth Circuit have oft-repeated that a request for attorney's fees should not spawn major ancillary litigation. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Associated Builders & Contractors of La., Inc. v. Orleans Parish School Bd., 919 F.2d 374, 379 (5th Cir. 1990). A court's discretion in fashioning a reasonable attorney's fee is broad and reviewable only for an abuse of discretion, i.e., it will not be reversed unless there is strong evidence that it is excessive or inadequate, or the amount chosen is clearly erroneous. Associated Builders & Contractors, 919 F.2d at 379; Hensley, 461 U.S. at 436-37.

To determine a reasonable fee, the court must provide a concise but clear explanation of its reasons for the fee award, making subsidiary factual determinations regarding whether the requested hourly rate is reasonable, and whether the tasks reported by counsel were duplicative, unnecessary, or unrelated to the purposes of the lawsuit. Hensley, 461 U.S. at 437-39; Associated Builders & Contractors, 919 F.2d at 379. The Fifth Circuit has noted that its "concern is not that a complete litany be given, but that the findings be complete enough to assume a review which can determine whether the court has used proper factual criteria in exercising its discretion to fix just compensation." Brantley v. Surles, 804 F.2d 321, 325-26 (5th Cir. 1986).

In assessing the reasonableness of attorney's fees, 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; Green v. Administrators of the Tulane Educ. Fund, 284 F.3d 642, 661 (5th Cir. 2002); Migis v. Pearle Vision, Inc., 135 F.2d 1041, 1047 (5th Cir. 1998); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). The fee applicant bears the burden of proof on this issue. See Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir.1996); Kellstrom, 50 F.3d at 324; In re Smith, 996 F.2d 973, 978 (5th Cir. 1992).

There exists a strong presumption of the reasonableness of the lodestar amount. Saizan, 448 F.3d at 800 (5th Cir. 2006). After calculating the lodestar, the court may decrease or enhance the amount 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 determination of the lodestar already took that factor into account; to do so would be impermissible double counting. Migis v. Pearle Vision, 135 F.3d 1041, 1047 (5th Cir. 1998) (citing Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990)).

i. Reasonable Hourly Rates

"'[R]easonable' hourly rates 'are to be calculated according to the prevailing market rates in the relevant community.'" McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). "[T]he burden is on the fee applicant to produce satisfactory evidence - in addition to the attorney's own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill." Blum, 465 U.S. at 895 n.11. "An attorney's requested hourly rate is prima facie reasonable when she requests that the lodestar be computed at her 'customary billingrate,' the rate is within the range of prevailing market rates and the rate is not contested." White v. Imperial Adjustment Corp., No. 99-3804, 2005 WL 1578810, at *5 (E.D. La. June 28, 2005) (citing La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995).

Here, plaintiffs seek $450.00/hour for Robert A. Nersesian, a named partner at the Las Vegas law firm Nersesian & Sankiewicz. Nersesian has over 35 years of experience with approximately 20 of those years dedicated to representing gamblers. They also seek $300.00/hour for Thea N. Sankiewicz, a partner at Nersesian & Sankiewicz with over 35 years of experience. Lastly, plaintiffs ask the Court to sanction $300.00/hour for three Louisiana attorneys at the law firm of Aaron & Gianna. Omar Mason, who is currently a state-court judge, has over 21 years of experience in litigation. Anna Rainer, lead counsel, possesses 13 years of experience, and DeWayne Williams has over 19 years of experience.

Citing case law, defendants challenge Nersesian's fee as contrary to the prevailing market rates in this area. They also argue that not one of Aaron & Gianna's attorneys had over 21 years of experience at the time of the litigation and do not merit a $300.00 hourly rate.

Reviewing the most recent case law in this district, the Court finds that $300.00/hour for Mason, Rainer, and Williams is a reasonable hourly rate. See, e.g., Orellano Joya v. Munguia Gonzales, Civ. A. No. 20-236, 2020 WL 1904010, at *2 (E.D. La. Apr. 17, 2020) (approving $235.00/hour for attorneys with five years experience); Cajun Servs. Ltd., L.L.C. v. Benton Energy Serv. Co., Civ. A. No. 17-491, 2020 WL 375596, at **5-6 (E.D. La. Jan. 23, 2020) (approving $350.00hour for attorneys with 15 and 11 years and $275.00/hour for attorneys with four-seven years experience); Jones v. New Orleans Regional Physician Hosp. Org., Civ. A. No. 17-8817, 2019 WL 6770029, at *2 (E.D. La. Dec. 12, 2019) (approving $355/hour for an attorney forattorney with 17 years experience, $300.00/hour for attorney with 13 years experience, and $220/hour for attorney with four years experience); Batiste v. Lewis, Civ. A. No. 17-4435, 2019 WL 1591951, at *3 (E.D. La. Apr. 12, 2019) (awarding $200.00/hour to attorney with five years experience); Hubert v. Curren, Civ. A. No. 18-7069, 2018 WL 4963595 (E.D. La. Oct. 15, 2018) (reducing rate of partner with 17 years experience from $400.00/hour to $300.00/hour as prevailing rate in this district); Sanchez v. Pizzati Enters., Inc., No. 17-9116, 2018 WL 3954866, at *4 (E.D. La. Aug. 16, 2018) (finding $325 to be a reasonable hourly rate for an attorney with 15 years of labor and employment experience); Alfasigma USA, Inc. v. EBM, Civ. A. No. 17-7753, 2018 WL 3869496, at *4 (E.D. La. Aug. 15, 2018) (finding that $325 per hour was a reasonable rate for an attorney with 23 years of specialized experience in products liability litigation); M C Bank & Trust Co. v. Suard Barge Serv., Inc., No. 16-14311, 2017 WL 6344021, at *2 (E.D. La. Dec. 12, 2017) (finding that $350 was a reasonable hourly rate for an attorney with over 17 years of experience, with particular expertise in the area of mortgaged vessels); Parkcrest Builders, L.L.C. v. Hous. Auth. of New Orleans, No. 15-1533, 2017 WL 4682297, at *2 (E.D. La. Oct. 18, 2017) (finding $225 to be a reasonable hourly rate for a managing partner with 35 years of construction law experience); Curry v. Lou Rippner, Inc., No. 14-1908, 2016 WL 236053, at *6 (E.D. La. Jan. 20, 2016) (finding that $210 was a reasonable hourly rate for a founding partner with more than 15 years of experience); Norris v. Causey, No. 14-1598, 2016 WL 1046101, at *9 (E.D. La. Mar. 16, 2016) (finding that $250 was a reasonable hourly rate for an attorney with 31 years of experience). Pursuant to this case law, the Court finds that the hourly rates for Mason, Rainer, and Williams are reasonable.

With regard to Sankiewicz, the Court is more circumspect. Sankiewicz is a licensed Nevada attorney who did not enroll pro hac vice in this lawsuit. That absence of pro hac vice status gives the Court pause. Pro hac vice rules exist for a reason: To ensure that an attorney is eligible and qualified to practice law in this district. Warder v. Shaw Group, Inc., Civ. A. No. 09-4191, 2016 WL 3447950, at *3 (E.D. La. June 23, 2016). Without filing a motion for admission pro hac vice with the proper supporting documentation, this Court could not - generally - conclude that Sankiewicz was ever qualified to...