Warder v. Shaw Grp., Inc.

• Decision Date: 23 June 2016
• Docket Number: CIVIL ACTION NO. 09-4191 SECTION "A" (3)
• Parties: THOMAS WARDER, ET AL. v. SHAW GROUP, INC., ET AL.
• Court: U.S. District Court — Eastern District of Louisiana

THOMAS WARDER, ET AL. v. SHAW GROUP, INC., ET AL.

CIVIL ACTION NO. 09-4191 SECTION "A" (3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

June 23, 2016

ORDER

On March 16, 2016, this Court heard oral argument on Shaw Environmental, Inc.'s Second Motion to Compel [Doc. #200] and Shaw Environmental, Inc.'s Motion for Attorney's Fees [Doc. #201]. On March 22, 2016, this Court granted the motion to compel filed by Shaw Environmental, Inc. ("Shaw") and took the motion for attorney's fees under advisement pending the corporate depositions of Shaw and of co-defendant Fluor Enterprises, Inc. [Doc. #225]. Those depositions have occurred. Having reviewed the motion for attorneys' fees, the opposition, and the case law, the Court rules as follows.

I. Background

The underlying factual background of this dispute is irrelevant to the motion for attorneys' fees. This Court granted Shaw's first motion to compel on July 8, 2015. [Doc. #176]. Shaw now moves for its attorneys' fees incurred in the filing of both the first motion to compel and the motion for attorneys' fees.

II. Law and Analysis

Under Federal Rule of Civil Procedure 37,

If [a] motion [to compel] is granted - or if the disclosure or requested discovery is provided after the motion was filed - the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:

(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;

(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or

(iii) other circumstances make an award of expenses unjust.

Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii) (emphasis added). Under this rule, the Court must award Shaw its reasonable expenses in filing the motion to compel unless one of the exceptions applies. See id. The Court finds that none of the exceptions applies. Relators argue that "sanctions" are unjustified in this case because there is no evidence that they acted willfully or in bad faith. That is not the criteria here. Accordingly, the Court finds that Shaw is entitled to its reasonable expenses incurred in the filing of the motion to compel and will proceed to the Lodestar calculation.

III. The Lodestar Approach

Shaw seeks $63,455.52 in fees. The United States Supreme Court and the Fifth Circuit have oft-repeated that a request for attorneys' 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. Hopwood v. State of Texas, 236 F.3d 256, 277, n.79 (5th Cir. 2000); 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 therequested 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).

To assess the reasonableness of attorneys' 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).

A. Reasonable Hourly Rates

This Court must first determine if the hourly rates are reasonable given counsel's ability, competence, experience, and skill. Dentons US L.L.P. ("Dentons") is a law firm in, inter alia, Denver, Colorado and Atlanta, Georgia. Having discounted its hourly rates, Shaw seeks a rate of $470.79/hour for Sandra Wick Mulvany, $300.09/hour for a Ms. Grainger, and $233.28/hour for a Ms. DeFrancisco. Plaintiffs dispute these hourly rates, arguing that they are higher than those rates normally awarded in this district.

Mulvany is admitted to practice law before this Court. Grainger is not admitted pro hacvice by the District Court and appears nowhere on the docket sheet. Mulvany is a partner with fourteen (14) years of experience, Grainger is an associate with twenty (20) years of experience in commercial litigation, and DeFrancisco is a paralegal. It is well-established law that "[h]ourly rates are to be computed according to the prevailing market rates in the relevant legal market, not the rates that 'lions at the bar may command.'" Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir. 2000) (quoting Leroy v. City of Houston, 906 F.2d 1068, 1079 (5th Cir. 1990) (internal quotation marks and citation omitted)).

Accordingly, this Court can not award Mulvany the $470.79/hour that Shaw seeks. The majority of the courts in this district sanction lower rates, and this Court is reticent to set new precedent in this area. This Court's review of the case law in this district for the past six years reveals that Mulvany's requested hourly rate requires an adjustment based on the practice of law in this district. See, e.g., J & J Sports Prods., Inc. v. Mattech, L.L.C., Civ. A. No. 14-987, 2015 WL 5823026, at *2 (E.D. La. Oct. 6, 2015) (adopting this Court' recommendation that awarded $300.00/hour to attorney with 33 years experience); EnVen Energy Ventures, L.L.C. v.Black Elk Energy Offshore Operations, L.L.C., Civ. A. No. 14-424, 2015 WL 3505099, at *1-3 (E.D. La. June 3, 2015) (adopting this Court's order approving hourly rate of $325 for an attorney with twenty years of experience, $300 for an attorney with ten years of experience, and $275 for an attorney with seven years of experience); Offshore Marine Contractors, Inc. v. Palm Energy Offshore, L.L.C., Civ. A. No. 10-4151, 2014 WL 5039670 (E.D. La. Sept. 25, 2014) (awarding $325.00/hour, $275.00/hour, and $225.00/hour to attorneys with 19, seven, and four years experience, respectively); Cox v. Precision Surveillance Org., Civ. A. No. 13-6600, 2014 WL1785350, at *1 (E.D. La. May 5, 2014) (awarding fees for an hourly rate of $325 for an attorney with 23 years of experience and $275 for an attorney with 10 years of experience); Barrack v. Pailet, Meunier & LeBlanc, L.L.P., Civ. A. No. 12-2716, 2013 WL 6198861 (E.D. La. Nov. 27, 2013) (approving $250/hour for attorney with 24 years experience); Cole v. Orleans Parish Sheriff's Office, Civ. A. No. 11-2211, 2013 WL 5557416 (E.D. La. Oct. 8, 2013) (reducing hourly rates from $300/hour to $275/hour for attorney with 34 years experience and from $300/hour to $250/hour for attorney with 29 years experience); Foley v. SAFG Retirement Servs., Inc., Civ. A. No. 10-2827, 2012 WL 956499 (E.D. La. Mar. 20, 2012) (reducing hourly rates from $450/hour to $350/hour for attorney with 30 years experience and from $300/hour to $275/hour for attorney with eight years experience); Constr. Courht, Inc. v. Jenkins, Civ. A. No. 11-1201, 2001 WL 3882271 (E.D. La. July 29, 2011) (approving $350/hour for partners with 30 and 36 years experience); Entergy La., L.L.C. v. The Wackenhut Corp., Civ. A. No. 09-7367, 2010 WL 4812921 (E.D. La. Nov. 17, 2010) (awarding $175.00/hour to attorney with 16 years of experience); Wilson v. Tulane Univ., Civ. A. No. 09-7451, 2010 WL 3943543 (E.D. La. Oct. 4, 2010) (awarding $250.00/hour and $160.00 hour to attorneys with 25 and four years experience respectively); Gulf Coast Facilities Mgmt, L.L.C. v. BG LNG Servs., L.L.C., Civ. A. No. 09-3822, 2010 WL 2773208 (E.D. La. July 13, 2010) (awarding $300.00/hour to attorneys with 17 years experience and $180.00/hour and $135.00/hour to attorneys with seven years and two years experience respectively); Hebert v. Rodriguez, Civ. A. No. 08-5240, 2010 WL 2360718 (E.D. La. June 8, 2010) (awarding $300.00/hour to attorney with 33 years of experience); Belfor USA Group, Inc. v. Bellemeade Partners, L.L.C., Civ. A. No. 09-158, 2010 WL 6300009 (E.D. La. Feb. 19, 2010)(awarding $210.00/hour, $250.00/hour and $180.00/hour to attorneys with 20, ten and four years experience respectively); Marks v. Standard Fire Ins. Co., Civ. A. No. 09-1947, 2010 WL 487403 (E.D. La. Feb. 3, 2010) (awarding $185.00/hour to attorney with seven years of experience).

Considering the prevailing market rates in the Greater New Orleans area, and the reasonable fees set by the courts in this district, the Court finds that the aforesaid hourly rate is beyond the higher end of the range of the market rate in this area. The Court finds that $325.00/hour is a reasonable rate for the services of Mulvany, a partner with 14 years of experience.

With regard to Grainger, the Court is more circumspect. The Court's review of the case law reveals that the issue of whether a court may award fees to an attorney from outside a district who is not admitted pro hac vice has created what appears to be a...