Howell v. Town of Ball

• Decision Date: 26 January 2018
• Docket Number: CIVIL ACTION NO. 1:12-CV-00951
• Parties: THOMAS R. HOWELL, Plaintiff v. TOWN OF BALL, ET AL., Defendants
• Court: U.S. District Court — Western District of Louisiana

THOMAS R. HOWELL, Plaintiff v. TOWN OF BALL, ET AL., Defendants

CIVIL ACTION NO. 1:12-CV-00951

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION

January 26, 2018

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER

Before the Court is a Motion for Attorney Fees and Litigation Expenses (Doc. 255) filed by Plaintiff, Thomas R. Howell ("Howell"). Defendant, the Town of Ball (the "Town"), opposes the motion.

By statute, Howell is entitled to recover attorney's fees, costs, and expenses. The Town's objections to the elements of that recovery must be resolved incrementally. Howell's Motion will therefore be granted in part and denied in part, as set forth specifically below.

I. Background

On September 8, 2017, following a four-day trial, a jury returned a verdict in favor of Howell, awarding him damages in the amount of $257,419.00 plus interest and attorney's fees, on Howell's claims of First Amendment retaliation and under the False Claims Act ("FCA"). Specifically, the jury awarded Howell: (1) $111,000 in lost wages, which award was doubled under the False Claims Act, 31 U.S.C. § 3730(h)(2) (the "FCA"); and (2) $35,419.00 in damages for "past mental anguish and/or humiliation." (Doc. 245, p. 6). Howell was also awarded reasonable attorney's fees under the FCA and 42 U.S.C. § 1988, as well as costs and expenses.

Howell seeks a ruling as to the amount of attorney's fees, costs, expenses he may recover. The Town does not dispute Howell's entitlement to attorney's fees, costs, expenses. But the Town does dispute the amounts of each sought by Howell.

II. Law and Analysis

Counsel for Howell, Daniel E. Broussard, Jr. ("Broussard"), seeks to recover $84,191.25 in attorney fees and $7,221.74 in litigation expenses under the FCA and 42 U.S.C. § 1988.

A. Howell is entitled to an award of attorney's fees, costs, and expenses under the FCA and 42 U.S.C. §1988, and the Court will apply the lodestar method of calculation.

Relief available under 31 U.S.C. § 3730(h)(2) - the operative provision of the FCA - includes "compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees." A prevailing FCA plaintiff may thus be entitled to costs and attorney's fees. See Riddle v. Dyncorp Int'l Inc., 666 F.3d 940, 942 (5th Cir. 2012). "The relator [in an FCA case] has the burden to provide the district court with sufficient evidence to discern the claims for which such fees are recoverable and to determine the number of hours spent." U.S., ex rel., Cook-Reska v. Cmty. Health Sys., Inc., 641 Fed.Appx. 396, 398 (5th Cir. 2016). Courts in our circuit have applied the lodestar method in determining attorney's fees under the FCA. See, e.g., United States ex rel. Washington v. Morad, CV 15-868, 2017 WL 1250912, at *3 (E.D. La. Apr. 5, 2017) ("Though the Fifth Circuithas not directly addressed what standard to use to determine reasonable attorneys' fees in qui tam False Claims Act cases, other circuits and other district courts in this Circuit have used the lodestar method.").

Further, 42 U.S.C. § 1988(b) states that, "[i]n any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Courts have likewise applied the familiar lodestar method in calculating an award of fees under 42 U.S.C. § 1988:

Courts must apply a two-step method for determining a reasonable fee award. Combs v. City of Huntington, Tex., 829 F.3d 388, 391 (5th Cir. 2016). First, they calculate the lodestar, "which is equal to the numbers of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work." Id. at 392 (quotation marks and citation omitted). "In calculating the lodestar, the court should exclude all time that is excessive, duplicative, or inadequately documented." Id. (quotation marks omitted and alteration adopted). Second, the court should consider whether to decrease or enhance the lodestar based on the Johnson factors. Id.¹ "The court must provide 'a reasonably specific explanation for all aspects of a fee determination.' " Id. (quoting Perduev. Kenny A. ex rel. Winn, 559 U.S. 542, 558, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010)).

"The documentation supporting a factual finding regarding the amount of attorney's fees must be sufficient for the court to verify that the applicant has met its burden of establishing an entitlement to a specific award." Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1044 (5th Cir. 2010). Although courts ordinarily expect applicants to provide contemporaneous billing records, the lack of such records is not necessarily fatal to a fee request, "as long as the evidence produced is adequate to determine reasonable hours." Id. (quotation marks and citation omitted).

Portillo v. Cunningham, 872 F.3d 728, 741-42 (5th Cir. 2017). Accordingly, this Court will apply the lodestar method in calculating Howell's award of attorney's fees.

B. Howell is entitled to recover $275 per hour in attorney's fees.

Howell seeks to recover a rate of $275 per hour for attorney's fees. In the initial briefing, Broussard offered only his own sworn affidavit as support for this rate. Broussard later supplemented his filings to include another affidavit and citations to applicable cases. The Town argues that neither Broussard's evidence nor the jurisprudence adequately supports the requested rate.

An award of attorney's fees "must only be reasonable and sufficient to attract competent counsel." U.S., ex rel., Cook-Reska, 641 Fed.Appx. at 400 (internal citation and quotations omitted). Further,

[a]n attorney's requested hourly rate is prima facie reasonable when he requests that the lodestar be computed at his customary billing rate, the rate is within the range of prevailing market rates, and the rate is not contested. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995). "Hourly rates are to be computed according to the prevailing market rates in the relevant legal market." Hopwood v. Texas, 236 F.3d 256, 279 (5th Cir. 2000); McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011). The relevant legal market is where the district court sits. See e.g., Calix v. Ashton Marine LLC, No. CV 14-2430, 2016 WL 4194119, at *3 (E.D. La. July 14, 2016). The reasonable hourly rate for a particular community is generally established through affidavits of other attorneys practicing there, not the fee-seeker's attorney. Thompson v. Connick, 553 F.3d 836, 867-68 (5th Cir. 2008), rev'd on other grounds, 563 U.S. 51 (2011).

Tab-in-Action, Inc. v. Monroe City Sch. Bd., CV 17-0570, 2017 WL 3445652, at *3 (W.D. La. Aug. 10, 2017).² Moreover, "[t]he appropriate hourly rate is not that which 'lions at the bar may command' but a rate that is adequate to attract competent counsel." G&H Dev., LLC v. Penwell, CV 13-0272, 2016 WL 5396711, at *4 (W.D. La. Sept. 27, 2016).

The Town cites three decisions from our circuit - two from our district - awarding lower rates than the rate requested by Broussard. See Faulk v. Duplantis, CIV.A. 12-1714, 2015 WL 3539637, at *2 (E.D. La. June 4, 2015) (awarding plaintiff's counsel $225 per hour in a First Amendment retaliation case resolved by jury trial in the Eastern District of Louisiana, considering affidavits submitted by attorneys suggesting rates between $150 and $250 per hour were appropriate); Campbell v. Harold Miller, Jr. Trucking & Paving, LLC, CIV. 6:13-2840, 2014 WL 6389567, at *2 (W.D. La. Nov. 13, 2014) (awarding $225.00 per hour to plaintiff's counsel who obtained a default judgment in a case seeking overtime wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.); Lawrence v. Morris, CIV. 6:09-1990, 2011 WL 1304477, at *3 (W.D. La. Mar. 4, 2011), report and recommendation adopted, CIV.A. 09-1990, 2011 WL 1213993 (W.D. La. Mar. 30, 2011) (awarding requested rate of $145 per hour to civil rights defense attorneys who prevailed on amotion for summary judgment where plaintiff failed to present countervailing evidence; the court noted that higher rates of up to $215 per hour were supportable).

In response, Broussard offered an affidavit from Jimmy R. Faircloth, an attorney who was practiced law in this district for more than 26 years, and who has handled similar cases. Mr. Faircloth states that "an hourly rate of at least $275.00 per hour is the prevailing market rate for similar legal services charged by attorneys of reasonable comparable skills and experience." (Doc. 264-1). Howell also cited a number of cases from this district in which similar rates have been awarded: Pickney v. Strategic Restaurants Acquisition Co. LLC, CV 16-0211, 2017 WL 1821125, at *2 (W.D. La. May 4, 2017) (awarding $275.00 per hour to experienced defense counsel in an employment discrimination lawsuit); Dugas v. Mercedes-Benz USA, LLC, 6:12-CV-02885, 2015 WL 1198604, at *4 (W.D. La. Mar. 16, 2015) (and cases cited therein) (awarding $275.00 per hour to experienced trial attorney in a class action lawsuit for routine work on a discovery motion; reduced from a requested rate of $450.00 per hour); Leleux v. Assurance Co. of Am., CIV.A. 6:11-2157, 2012 WL 5818226, at *4 (W.D. La. Nov. 15, 2012) (awarding $262.00 per hour to plaintiff's counsel with more than 20 years of experience in an insurance adjustment dispute under La. R.S. 22:1892).

This Court has reviewed cases from the district awarding attorney's fees in comparable circumstances. In some cases, courts in this district have awarded attorneys hourly rates similar to those requested by Broussard. See, e.g., Tab-in-Action, Inc., 2017 WL 3445652 at *3 (awarding $260 to experienced plaintiffs' counselunder 42 U.S.C. § 1988); Bertrand v. City of Lake Charles, 2:10-CV-867, 2013 WL 1790089, at *2 (W.D. La. Feb. 25, 2013), report and recommendation adopted, 2:10-CV-...