Johnson v. Big Lots Stores, Inc., Civil Action No. 04-3201.

• Decision Date: 25 June 2009
• Docket Number: Civil Action No. 04-3201.,Civil Action No. 05-6627.
• Citation: 639 F.Supp.2d 696
• Parties: John JOHNSON, et al. v. BIG LOTS STORES, INC.
• Court: U.S. District Court — Eastern District of Louisiana

639 F.Supp.2d 696

John JOHNSON, et al. v. BIG LOTS STORES, INC.

Civil Action No. 04-3201.

Civil Action No. 05-6627.

United States District Court, E.D. Louisiana.

June 25, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Philip Bohrer, Bohrer Law Firm, Baton Rouge, LA, Hartley Hampton, Michael A. Josepheon, Fibich, Hampton & Leebron, LLP, Houston, TX, John B. MacNeill, Kevin E. Gay, MacNeill & Buffington, PA, Flowood, MS, Peter Joseph Wanek, McCranie, Sistrunk, Metairie, LA, Sam M. Brand, Jr., Sam M. Brand, Jr., Attorney at Law, Jackson, MS, Andre Jude Lagarde, U.S. Attorney's Office, New Orleans, LA, for John Johnson, et al.

Judy Y. Barrasso, Stephen H. Kupperman, Barrasso, Usdin, Kupperrnan, Freeman & Server, LLC, New Orleans, LA, David A. Scott, Elizabeth K. Deardorff, Paul E. Hash, Rachel D. Ziolkowski, Jackson Lewis, LLP, Dallas, TX, James E. Davidson, John P. Gilligan, John J. Krimm, Jr., John C. McDonald, Paul L. Bittner, Schottenstein, Zox & Dunn Co., LPA, Columbus, OH, for Big Lots Stores, Inc.

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is defendant Big Lots Stores, Inc.'s motion for costs under Federal Rule of Civil Procedure 54(d) in connection with the Court's June 20, 2008 Order decertifying the collective action in this matter and plaintiffs' motion for attorneys' fees and costs in connection with the judgments on the individual claims of John Johnson and Robert Burden. For the following reasons, the Court DENIES Big Lots' motion for costs at this time and GRANTS plaintiffs' motion for attorneys' fees and costs, as modified.

I. Background

On November 23, 2004, plaintiffs, on behalf of themselves and all other similarly situated individuals, brought this overtime pay action against their employer, Big Lots Stores, Inc., under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. The plaintiffs were current or former Big Lots Assistant Store Managers (ASMs) who alleged they were misclassified as executive employees and thereby unlawfully denied overtime pay in violation of 29 U.S.C. § 207(a)(1) of the FLSA. Utilizing the two-stage certification approach employed by the majority of courts in determining whether to certify a case as a collective action under § 216(b) of the FLSA, the Court conditionally certified the matter as a collective action on July 5, 2005. (R. Doc. 36). See Thiessen v. G.E. Capital Corp., 267 F.3d 1095, 1103 (10th Cir.2001) (explaining two-stage approach). The parties then sent notices to individuals employed by Big Lots as ASMs on or after November 23, 2001. In response, roughly 1,200 plaintiffs consented to join the litigation as opt-in plaintiffs. The nationwide class of plaintiffs was later reduced to 936 current and former Big Lots ASMs. A little over two years later on June 1, 2007, Big Lots moved to decertify the class. Based on the evidence before it at the time and in light of plaintiffs' claim that Big Lots maintained a de facto policy and practice of misclassifying the ASM job position, the Court denied Big Lots' motion to decertify. (R. Doc. 113). The Court first conducted a bench trial in this matter on May 7, 2008. After considering all of the evidence, the Court determined that the matter was not fit for adjudication as a nationwide collective action and issued an order decertifying the class and dismissing the opt-in plaintiffs without prejudice on June 20, 2008. (R. Doc. 401). Forty-five plaintiffs remained in the case after decertification.

The Court conducted a bench trial from January 26-27, 2009 on the claims of three plaintiffs—John Johnson, Robert Burden, and James Alford. After trial, James Alford moved to dismiss his claim against Big Lots with prejudice pursuant to Federal Rule of Civil Procedure 41. The Court granted his motion to dismiss. The other two plaintiffs, John Johnson and Robert Burden, prevailed on the merits of their claims. (R. Doc. 500). The Court found that Burden and Johnson were misclassified as exempt executives and were thus owed overtime compensation. (R. Doc. 500). The Court awarded Burden $63,847.50 in overtime pay and liquidated damages and Johnson $63,587.60 in overtime pay and liquidated damages. (R. Doc. 500). The remaining forty-two plaintiffs moved to be dismissed from the case voluntarily, and the Court dismissed their claims with prejudice. (R. Docs. 495, 497, 504, 516). Johnson and Burden now seek attorneys' fees and costs in connection with their successful claims. Big Lots seeks costs for the original proceeding, contending that it was the "prevailing party" in the decertification order.

II. Attorneys' fees for individual plaintiffs

Under the FLSA, a prevailing plaintiff is entitled to a reasonable attorney's fee. See 29 U.S.C. § 216(b) ("[t]he 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."). The Fifth Circuit uses the lodestar method to calculate an appropriate attorney's fee award under the FLSA. See Saizan v. Delta Concrete Products Co., Inc., 448 F.3d 795, 799 (5th Cir.2006). The "lodestar" is essentially the reasonable number of hours expended on litigation multiplied by a reasonable hourly rate. See Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844, 851 (5th Cir. 1998).

After calculating the lodestar, the Court may decrease or enhance the amount based on the relative weight of the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). See Saizan, 448 F.3d at 800. The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of professional relationship with the client; and (12) awards in similar cases. Von Clark v. Butler, 916 F.2d 255, 258 n. 3 (5th Cir.1990).

Here, Johnson and Burden prevailed on their individual claims. However, plaintiffs were unsuccessful in maintaining their case as a collective action. The Court may use its "equitable discretion" to arrive at a reasonable fee award by eliminating certain hours related to unsuccessful claims or by reducing the fee award to account for plaintiffs' limited success. Pruett v. Harris County Bail Bond Bd., 499 F.3d 403, 418 (5th Cir.2007). When a plaintiff achieves limited success, "the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount." Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1048 (5th Cir.1998). But "an attorney's failure to obtain every dollar sought on behalf of his client does not automatically mean that the modified lodestar amount should be reduced." Saizan, 448 F.3d at 799.

The failure of plaintiffs to certify their case as a collective action does not alter plaintiffs' status as prevailing parties, nor does it suggest that Johnson's and Burden's individual claims were of limited success. The decertification of a class is collateral to the merits, and therefore does not diminish the relative success of plaintiffs' underlying claims. See J.R. Clearwater, Inc. v. Ashland Chemical Co., 93 F.3d 176 (5th Cir.1996). The "equitable discretion" of this Court to adjust the lodestar calculation is not limited to the success of plaintiffs' claims alone. In evaluating the ultimate "results obtained" by plaintiffs, this Court may also consider the success of motions decided during the course of the litigation and other factors, such as the social benefit of exposing defendants' activities. See Louisiana Power & Light, 50 F.3d at 329 (evaluating the results obtained by plaintiffs based on factors tangentially related to plaintiffs' claims, such as social benefit of exposing racketeering activity). While Johnson and Burden prevailed on their individual claims, the overall "results obtained" by plaintiffs were of limited success in relation to their initial aim to certify a FLSA collective action. Further, plaintiffs were also unsuccessful on other aspects of the collective action, such as in seeking summary judgment and in motions to compel discovery. Accordingly, the Court will discount plaintiffs' hours to adjust for the "results obtained."

A. Lodestar

Plaintiffs' counsel requests a reimbursement of $336,052.50 in attorney time and $40,051.50 in paralegal time. Each attorney submitted descriptions of the hours he incurred in the representation of Johnson and Burden. The submissions contained a description of the tasks performed and the amount of time spent to accomplish the task. In total, Johnson and Burden submit that 1,137.80 attorney hours were spent on their cases. Specifically, plaintiffs initially submitted the following hours: 377.40 for Philip Bohrer, 90.7 for Hartley Hampton, 335.7 for Michael Josephson, 70.5 for Jim Rather, and 263.50 for Michael Tusa. Plaintiffs also seek reimbursement for 534.02 paralegal hours. Big Lots contends that plaintiffs' fee application is unreasonable since plaintiffs' billing entries are vague and contain redundancies that warrant a reduction in the fees and expenses or that the fees sought were for work that did not contribute to the results in the Johnson and Burden cases.

1. Hourly rate

In determining the reasonable hourly rate, courts look to the reasonable hourly rate for attorneys of a similar caliber practicing in the community. See Watkins v. Fordice, 7 F.3d 453, 458 (5th Cir.1993); Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir.2002); In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F.Supp.2d...