McGee v. Tregre, No. 2:2018cv03341 - Document 43 (E.D. La. 2019)

Court Description: ORDER AND REASONS: For the foregoing reasons set forth in the document, the Court approves the 40 Report and Recommendation and adopts it as its opinion herein. Signed by Judge Sarah S. Vance on 6/5/2019. (mm)
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McGee v. Tregre Doc. 43 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SHAWANDA MCGEE CIVIL ACTION VERSUS NO. 18-3341 MIKE TREGRE SECTION “R” (3) ORD ER AN D REASON S Before the Court is defendant Mike Tregre’s objections to the Magistrate J udge’s Report and Recom mendation awarding plaintiff Shawanda McGee attorneys’ fees. 1 The Court has reviewed the Report and Recom mendation de novo, the applicable law, and the record, and has concluded that the Magistrate J udge correctly determ ined the attorney fee award. The Court therefore approves the Report and Recom m endation and adopts it as its opinion. I. BACKGROU N D This case arises out of allegations under Title II of the Am ericans with Disabilities Act, 42 U.S.C. § 12131, et seq. (ADA), and Section 50 4 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiff is a deaf individual who uses 1 R. Doc. 40 ; R. Doc. 41. Am erican Sign Language to com m unicate. 2 She brought this action against defendant, individually and in his official capacity as the Sheriff of St. J ohn the Baptist Parish, for his failure to provide her with effective m eans of com m unication over a period of approxim ately 20 years. 3 Plaintiff sought a permanent injunction against defendant’s allegedly discrim inatory actions, a declaratory judgm ent, and an award of com pensatory and punitive dam ages, including an award of attorneys’ fees. 4 By Septem ber 14, 20 18, the parties had settled all of plaintiff’s claim s except her claim for attorneys’ fees. 5 Plaintiff filed a m otion for an award of attorneys’ fees, and the Court referred that m otion to Magistrate J udge Daniel Knowles, III on November 26, 20 18. 6 The m otion was reassigned to Magistrate J udge Dana Douglas on J anuary 7, 20 19. 7 On February 11, 20 19, Magistrate J udge Douglas issued her Report and Recom mendation. 8 She found (1) that plaintiff’s m otion was tim ely; (2) plaintiff is properly considered a prevailing party who can recover attorneys’ 2 R. Doc. 8 at 3 ¶ 11. Id. at 3-9. For a m ore com plete description of the facts of this case, see the Magistrate J udge’s Report and Recom m endation, R. Doc. 40 . 4 Id. at 12. 5 See R. Doc. 37. 6 R. Doc. 38. 7 R. Doc. 39. 8 R. Doc. 40 . 3 2 fees under the ADA and Rehabilitation Act; and (3) plaintiff was entitled to an award of attorneys’ fees totaling $ 42,180 , but she was not entitled to any litigation expenses or costs. 9 On February 25, 20 19, defendant tim ely filed the instant objection. 10 Defendant objects only to the am ount of attorneys’ fees the Magistrate J udge recomm ended be awarded to plaintiff; he does not object to the determination that plaintiff’s motion was timely or that plaintiff is properly considered a prevailing party. 11 Plaintiff does not object to any part of the Report and Recom mendation, but she has filed a response to defendant’s objection. 12 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 54(d)(2)(D) authorizes referral of “a m otion for attorney’s fees to a m agistrate judge under Rule 72(b) as if it were a dispositive pretrial m atter.” A Magistrate J udge addressing a referred dispositive motion under Rule 72(b) m ust prepare a “recom mended disposition,” to which the parties can object. Then, the district judge “m ust 9 10 11 12 Id. R. Doc. 41. R. Doc. 41-1. R. Doc. 42. 3 determ ine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). Here, the Court referred plaintiff’s m otion for attorneys’ fees and costs to the Magistrate J udge to prepare a report and recom mendation. 13 Therefore, de novo review applies to the portions of the report and recom mendation properly objected to. See also Blair v. Sealift, Inc., 848 F.Supp. 670 , 674-79 (E.D. La. 1994) (collecting cases and holding that a posttrial m otion for attorneys’ fees that is not a discovery sanction is a dispositive m atter subject to de novo review). After de novo review, the Court “may accept, reject, or m odify the recomm ended disposition, receive further evidence, or recomm it the m atter to the m agistrate judge with instructions.” Id. III. D ISCU SSION The lodestar method is routinely used to determ ine attorney fee awards. Under the lodestar m ethod, a court begins by calculating the “‘lodestar[,]’ which is equal to the num ber of hours reasonably expended m ultiplied by the prevailing hourly rate in the com m unity for sim ilar work.” Jim enez v. W ood County , 621 F.3d 372, 379 (5th Cir. 20 10 ) (citing 13 R. Doc. 38. 4 Rutherford v. Harris County , 197 F.3d 173, 192 (5th Cir. 1999)). The Fifth Circuit has explained that “plaintiffs seeking attorney’s fees are charged with the burden of showing the reasonableness of the hours billed and, therefore, are also charged with proving that they exercised billing judgm ent.” Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 799 (5th Cir. 20 0 6). To exercise billing judgm ent, a plaintiff m ust write off any hours that were “unproductive, excessive, or redundant.” Id. “The proper remedy for om itting evidence of billing judgm ent does not include a denial of fees but, rather, a reduction of the award by a percentage intended to substitute for the exercise of billing judgment.” Id. Courts m ay alternatively engage in a line-by-line analysis to reduce the number of hours awarded, in the event the Court finds the plaintiff did not exercise billing judgm ent. Knight v. Barnhart, No. 0 2-1741, 20 0 3 WL 21467533, at *2 (E.D. La. J une 20 , 20 0 3). Once the lodestar am ount is calculated, the court m ay adjust it based on the twelve factors set forth in Johnson v. Georgia Highw ay Express, Incorporated, 488 F.2d 714, 717-19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). The factors are: (1) the time and labor required; (2) the novelty and difficulty of the case; (3) the skill required; (4) the preclusion of other em ploym ent; (5) the custom ary fee; (6) whether the fee is fixed or contingent; (7) tim e lim itations im posed; (8) the results obtained; (9) the experience, reputation, and ability of the attorneys; (10 ) the undesirability of the case; (11) the nature and 5 length of the professional relationship with the client; and (12) awards in sim ilar cases. Id. To avoid double-counting, “[t]he lodestar m ay not be adjusted due to a Johnson factor . . . if the creation of the lodestar award already took that factor into account.” Heidtm an v. County of El Paso, 171 F.3d 10 38, 10 43 (5th Cir. 1999). Moreover, there m ay be no need to do additional Johnson adjusting at all, as “the lodestar figure includes m ost, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee.” Perdue v. Kenny A. ex rel. W inn, 559 U.S. 542, 553 (20 10 ). Indeed, “there is a ‘strong presum ption that the lodestar award is the reasonable fee.’” Sm ith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 20 12) (quoting Heidtm an, 171 F.3d at 10 44). Defendant objects to three aspects of the Report and Recom mendation: (1) that the Magistrate J udge failed to exclude hours that were not reasonably expended from the lodestar am ount, (2) that the Magistrate J udge refused to consider reducing the fee award further on the basis of the Johnson factors, and (3) that the award of attorneys’ fees is generally too high for the nature of plaintiff’s attorneys’ work. 14 Defendant’s objections are without m erit. 14 R. Doc. 41-1 at 2. 6 1. Calculation of Reasonable Hours The Magistrate J udge followed Fifth Circuit law in calculating the lodestar am ount. Magistrate J udge Douglas first determ ined that plaintiff’s attorneys did not exercise billing judgm ent, because the billing statements plaintiff provided contained entries that were duplicative and unnecessary. 15 She accordingly reduced the total num ber of hours expended by twenty percent. 16 This is precisely what the Fifth Circuit has instructed the district courts to do in the event the m ovant has not exercised billing judgment. See Saizan, 448 F.3d at 799 (“The proper rem edy for om itting evidence of billing judgm ent does not include a denial of fees but, rather, a reduction of the award by a percentage intended to substitute for the exercise of billing judgm ent.”). The defendant does not object to the Magistrate J udge’s reducing the total num ber of hours by twenty percent. 17 Defendant instead argues that the Magistrate J udge should have—in addition to this percentage reduction—excluded specific hours that the Magistrate J udge found were not 15 R. Doc. 40 at 9-10 . The Magistrate J udge found this to be the case even though plaintiff represented that her counsel already reduced the total hours by five percent. Id. at 9 n.1. 16 Id. at 10 . 17 R. Doc. 41-1 at 4. 7 reasonably expended. 18 But the percentage reduction the Magistrate J udge applied is the way courts exclude hours that were not reasonably expended. See Green v. Adm ’rs of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir. 20 0 2) (noting that “the rem edy for failing to exercise billing judgm ent is to reduce the hours awarded by a percentage,” which is sim ply an “abbreviated” but acceptable way of conducting a “line-by-line” analysis of the billing statements), overruled on other grounds by Burlington N . & Santa Fe Ry . Co. v. W hite, 548 U.S. 53 (20 0 6). Defendant has cited no authoritative precedent stating that the Court is obligated to reduce plaintiff’s attorneys’ hours by a percentage and conduct a line-by-line analysis of the billing statement to rem ove specific hours that were not reasonably expended. This objection is therefore m eritless. 2. Application of the J ohnson Factors Defendant objects to the Magistrate J udge’s decision not to reduce the lodestar am ount further by application of the Johnson factors. Defendant specifically argues that the Magistrate J udge should have reduced the fee award based on the first three Johnson factors: the time and labor required, the novelty and difficulty of the issues, and the skill required to perform the 18 Id. at 4-5. 8 legal services. 19 But the Magistrate J udge could not reduce the fee award further based on the first three Johnson factors because those factors were already accounted for in the calculation of the lodestar. See Heidtm an, 171 F.3d at 10 43. Magistrate J udge Douglas found that plaintiff’s counsel did not exercise billing judgm ent in part because many of their billing entries were for “day-to-day, uncom plicated,” and “clerical” tasks, which did not reasonably require the am ount of tim e ultim ately billed to plaintiff. 20 See Perdue, 559 U.S. at 553 (noting that “the lodestar figure includes m ost, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee”). To reduce the award further for these sam e reasons—as defendant requests— would be “imperm issible double-counting.” Heidtm an, 171 F.3d at 10 43. This objection is therefore also m eritless. 3. Reasonableness of the Aw ard Lastly, defendant objects generally to the size of plaintiff’s attorneys’ fee award. 21 Defendant argues that an award totaling $ 42,180 is unreasonably high considering this m atter was resolved by a consent decree 48 days after plaintiff’s complaint was filed, and 35 days after defendant was 19 20 21 R. Doc. 41-1 at 2. R. Doc. 40 at 10 . R. Doc. 41-1 at 2. 9 served process. 22 He specifically argues that m ore than half of the hours in plaintiff’s initial claim for attorneys’ fees—127.2 out of 242.9 hours—were billed before she filed her complaint. 23 Defendant contends that “m ost” of these pre-com plaint hours should be excluded. 24 This objection too is m eritless. The basis for the twenty percent reduction in plaintiff’s counsel’s hours was, in part, because of their unnecessary and duplicative billing entries during the tim e period before plaintiff filed her complaint. Magistrate J udge Douglas explained that “[w]hile . . . som e am ount of tim e for pre-filing investigative work m ay be necessary in certain lawsuits,” the num ber of hours plaintiff’s counsel billed before filing the com plaint was “greater . . . than necessary.”25 In other words, the Magistrate J udge and defendant agree that a reduction is necessary based on plaintiff’s excessive pre-complaint billing entries. They disagree only in the am ount of the reduction that should be made. Defendant’s contention that m ost—and not just twenty percent—of the hours from this period should be excluded is unavailing. Much of this pre- 22 23 24 25 Id. Id. at 5. Id. at 6. R. Doc. 40 at 10 . 10 com plaint work consisted of factual investigation 26 and legal research. 27 These are obviously im portant aspects of a plaintiff’s disability discrim ination claim , and they m ust be performed before a plaintiff initiates her action. See Steele v. Pro-Tech Found. Repair & Leveling, LLC, No. 18542, 20 18 WL 160 350 6, at *5 (E.D. La. Apr. 2, 20 18) (“Attorneys have an obligation to investigate the facts and the law of their case.”). Robust prefiling investigation and research facilitates early resolution, such as happened here. The Court therefore finds that the Magistrate J udge’s twenty percent reduction adequately accounts for plaintiff’s counsel’s failure to exercise billing judgm ent, while still recognizing that much of this precom pliant work was im portant to plaintiff’s lawsuit. No further reduction is called for. 26 See, e.g., R. Doc. 26-5 at 1-2 (attorney Am itai Heller billing for “intake conversation with plaintiff” and “review[ing] records from St. J ohn the Baptist Sheriff’s office”). 27 See, e.g., id. (attorney Am itai Heller billing for research into the “ADA” and “quantum dam ages for sim ilar claim s”). 11 IV. CON CLU SION For the foregoing reasons, the Court approves the Report and Recom mendation and adopts it as its opinion herein. New Orleans, Louisiana, this _ _5th _ _ _ day of J une, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 12