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Castro v. Precision Demolition LLC

United States District Court, N.D. Texas, Dallas Division

December 14, 2017

ARTURO CASTRO, and all others similarly situated under 29 U.S.C. § 216(b), Plaintiff,
v.
PRECISION DEMOLITION LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER UNITED STATES DISTRICT JUDGE.

         Following a jury trial and the entry of judgment in his favor for unpaid overtime pay and liquidated damages under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., plaintiff Arturo Castro (“Castro”) moves for an award of $141, 236.50 in attorney's fees, $1, 272.30 in nontaxable expenses, and $10, 568.82 in taxable costs. For the reasons that follow, the court grants the motion to the extent that it awards Castro attorney's fees in the sum of $41, 333.70 and nontaxable expenses in the sum of $1, 272.30. The court otherwise denies the motion.

         I

         Castro brought this suit under the FLSA against defendants Precision Demolition LLC and Precision Demolition, LP (collectively, “Precision Demolition”), Holfords Prairie Partners, LLC (“Holfords”), Raymond D. Rinker III (“Rinker”); and Aaron Smith (“Smith”), for unpaid overtime wages and retaliation. Following a six-day jury trial, the jury returned a verdict partly in favor of Castro, and partly in favor of defendants. Regarding Castro's FLSA overtime claim, the jury found that Castro had proved the essential elements of this claim against Precision Demolition, Rinker, and Smith; that Precision Demolition had willfully violated the FLSA; and that Precision Demolition owed Castro $608.85 for unpaid overtime for travel time. Regarding Castro's FLSA retaliation claim, the jury found that Castro had proved all of the essential elements of this claim as to Precision Demolition and awarded him $13, 300 in “Back pay.” The court entered judgment on the verdict, awarding Castro judgment against Precision Demolition in the principal sum of $13, 908.85, together with liquidated damages in the sum of $608.85, and post-judgment interest. The court assessed against Castro the taxable costs of court of Holfords, Rinker, and Smith.

         The parties then filed motions for judgment as a matter of law and to alter or amend the judgment. In Castro v. Precision Demolition LLC, 2017 WL 2954784 (N.D. Tex. July 11, 2017) (Fitzwater, J.) (“Castro I”), appeal docketed, No. 17-10895 (5th Cir. Aug. 14, 2017), the court held, inter alia, that there was insufficient evidence for a reasonable jury to have found that Precision Demolition retaliated against Castro, and it dismissed Castro's retaliation claim with prejudice. Id. at *8. The court then entered an amended judgment ordering that Castro recover against Precision Demolition, Holfords, Rinker, and Smith, jointly and severally, in the principal sum of $608.85, together with liquidated damages in the sum of $608.85, and post-judgment interest. The judgment provided that each party would bear his or its own taxable costs of court.

         Castro now moves for an award of $141, 236.50 in attorney's fees, $1, 272.30 in nontaxable expenses, and $10, 568.82 in taxable costs. Defendants object to the motion on various grounds.

         II

         As a threshold matter, the court addresses defendants' argument that Castro's counsel should not be awarded any fees in this case because they allowed this matter to go to trial knowing that Castro's overtime claim, as set forth in the complaint, was not supported by Castro's deposition testimony or the documents produced in discovery; they knew that none of the documents in the case supported the theory that Castro was terminated, but did not amend the complaint to allege that Castro was demoted and/or terminated; and the only claim they prevailed on at trial-Castro's claim for unpaid travel time-was based on a day-of-trial “epiphany” during which Castro recalled, for the first time, that he had been promised travel time.

         The FLSA provides that the 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.” 29 U.S.C. § 216(b). Fee awards are mandatory for prevailing plaintiffs in FLSA cases. Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (“[A]n employer who violates the [FLSA] is . . . required to pay attorney's fees.”); see also Steele v. Leasing Enters., Ltd., 826 F.3d 237, 249 (5th Cir. 2016) (“Citing 29 U.S.C. § 216(b), [the Fifth Circuit] has held that ‘[r]easonable attorney's fees are mandatory' when a court finds that an employer has violated [29 U.S.C.] § 206.” (citing Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1191 n.18 (5th Cir. 1979))); Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 n.7 (5th Cir. 2006) (recognizing that “prevailing party” fee-shifting jurisprudence applies in FLSA cases even though the attorney's fee provision of the statute does not specifically mention “prevailing party”).

         A plaintiff must satisfy three requirements to demonstrate prevailing party status: (1) he must achieve judicially-sanctioned relief; (2) the relief must materially alter the legal relationship between the parties; and (3) the relief must modify the defendant's behavior in a way that directly benefits the plaintiff at the time the relief is entered. Petteway v. Henry, 738 F.3d 132, 137 (5th Cir. 2013). To “prevail, ” the party seeking fees need not procure a favorable judgment on every claim. Jenevein v. Willing, 605 F.3d 268, 271 (5th Cir. 2010) (§ 1988 case). A plaintiff's success need not address the central claim of the case; prevailing-party status is appropriate where the plaintiff succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Petteway, 738 F.3d at 137 (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989)).

         It is undisputed that Castro succeeded on his FLSA unpaid overtime claim and was awarded $608.85 for unpaid overtime for travel time and $608.85 in liquidated damages. The court thus concludes that Castro was the “prevailing party” in this lawsuit[1] and is entitled to an award of attorney's fees.

         III

         The court now turns to Castro's request for $141, 236.50 in attorney's fees. As stated above, “[u]nder the FLSA, an employer who violates the statute is also required to pay attorney's fees.” Black, 732 F.3d at 502 (citing 29 U.S.C. § 216(b)). The Fifth Circuit “use[s] the lodestar method to calculate an appropriate attorney's fee award under the FLSA.” Id. (internal quotation marks omitted) (quoting Saizan, 448 F.3d at 799). “The lodestar is calculated by multiplying the number of hours an attorney reasonably spent on the case by an appropriate hourly rate, which is the market rate in the community for [the] work.” Id. (citation omitted). “The court should exclude all time that is excessive, duplicative, or inadequately documented.” Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 379-80 (5th Cir. 2010). “[A]fter calculating the lodestar, a district court may enhance or decrease the amount of attorney's fees 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) ].'” Black, 732 F.3d at 502 (citations omitted).[2] The fee applicant bears the burden of substantiating both the requested hours and the hourly rates. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

         IV

         To determine the lodestar, the court first considers whether the requested hourly rates are reasonable.

         A

         “The hourly rates to be used in the lodestar calculation are determined by ‘the prevailing market rates in the relevant community .'” Barrow v. Greenville Indep. Sch. Dist., 2005 WL 6789456, at *15 (N.D. Tex. Dec. 20, 2005) (Fitzwater, J.) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)), aff'd, 2007 WL 3085028 (5th Cir. Oct. 23, 2007). As the fee applicant, Castro “bears the burden of demonstrating ‘that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'” Id. (quoting Blum, 465 U.S. at 895 n.11).

         Castro seeks attorney's fees for the services of J.H. Zidell, Esquire (“Zidell”) at an hourly rate of $350, increasing during the course of the litigation to $390; for the services of Robert Manteuffel, Esquire (“Manteuffel”) at an hourly rate of $390; for the services of Joshua Petersen, Esquire (“Petersen”) at an hourly rate of $230, increasing during the course of the litigation to $260; and for the services of Rosa Nichols (“Nichols”), a legal assistant, at an hourly rate of $90. Castro contends that the rates charged have been found reasonable in this district, citing various cases in which other judges of this court have found that an hourly rate of $325 to $350 was reasonable for Zidell's services[3] and an hourly rate of $350 was reasonable for Manteuffel's services.

         Defendants object to the rates Castro seeks for Manteuffel, Zidell, and Petersen.[4]They contend that the median hourly rate for Dallas area labor law practitioners is $280, that the median hourly rate for lawyers with over 25 years of experience (such as Manteuffel) is $350, that the median hourly rate for lawyers with 11 to 25 years of experience (such as Zidell) is $300, and that the median hourly rate for lawyers with 3-6 years of experience (such as Petersen) is $250; that Castro cites no authority showing Zidell's time to have ever been compensated at an hourly rate of $390; that the only case in which Manteuffel was awarded $390 was one in which the plaintiffs obtained a default judgment against pro se defendants; that Castro has made no showing regarding the customary rate in the community; that Petersen should not be compensated at an hourly rate of $260 per hour but should, instead, be compensated at the hourly rate of $230 since he has not demonstrated that he gained any substantial education or experience during the course of this litigation; and that Zidell should be compensated at an hourly rate of either $300 (which takes into account the median rate for practitioners of his tenure and the fact that Zidell has been admitted in Texas only since 2010) or $350 (a rate previously upheld in this district).

         B

         “[T]rial courts are considered experts as to the reasonableness of attorney's fees[.]” Primrose Operating Co. v. Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004). This court has previously found in an FLSA overtime case that an hourly rate of $350 was reasonable for the services of both Zidell and Manteuffel. See Arriaga v. Califco, LLC, 2013 WL 5928852, at *1 (N.D. Tex. Nov. 5, 2013) (Fitzwater, C.J.) (“Given the attorneys' respective levels of experience and the relevant prevailing rates, together with [plaintiff's] showing that courts have awarded fees using similar rates, the court, as an expert as to the reasonableness of attorney's fees, finds that [$350 per hour is] customarily charged in this locality for similar legal services and [is] reasonable.”). Other judges of this court have also awarded Zidell and Manteuffel reasonable attorney's fees at an hourly rate of $350. See, e.g., Pineda v. JTCH Apartments, LLC, 126 F.Supp.3d 797, 803 (N.D. Tex. 2015) (Boyle, J.) (finding reasonable the following hourly rates: Zidell at $350.00/hour, Manteuffel at $350.00/hour, and Petersen at $230.00/hour); Alonso v. Tepa Mar Y Tierra, Inc., 2014 WL 12577102, at *4 (N.D. Tex. July 8, 2014) (O'Connor, J.) (finding that $350.00 per hour for Zidell and $350.00 per hour for Manteuffel were reasonable rates). Although Castro requests fees for Manteuffel's services at an hourly rate of $390 and for part of Zidell's services at this same hourly rate, he does not provide the court any grounds for awarding fees at this higher rate as opposed to the $350 hourly rate that judges of this court have found to be reasonable in similar cases. Accordingly, based on the court's expertise in determining reasonable attorney's fees, it finds that an hourly rate of $350 for the services of Manteuffel and Zidell is reasonable.

         Castro requests attorney's fees for Petersen at a rate of $230 to $250 per hour. Petersen has been licensed in Texas since May 2013. Accordingly, at the commencement of this case, Petersen had been licensed for fewer than two years, and, at the time of trial (January 2017), he had been licensed for fewer than four years. According to the State Bar of Texas 2015 Hourly Fact Sheet, the median hourly rate in Dallas for an attorney with three to six years of experience is $250, and the median hourly rate for a Dallas attorney with two years of experience or less is $217. At least one judge of this court has awarded Petersen fees at an hourly rate of $230, see Pineda, 126 F.Supp.3d at 803, and defendants do not object to this hourly rate. Castro seeks fees at an hourly rate of $260 for some of Petersen's services, but he provides no justification for a fee award above the median for Petersen's level of experience or above the rate at which Petersen has previously been compensated by a judge of this court. Accordingly, based on the court's expertise in determining reasonable attorney's fees, it finds that $230 per hour is reasonable for an attorney with Petersen's level of experience.

         V

         The court now determines the number of hours that were reasonably expended by Castro's counsel.

         A

         Defendants present a general objection to Castro's request for fees for Zidell's services. They maintain that Castro cannot identify any document associated with this case that Zidell drafted; that Castro cannot identify any point at which Zidell made any personal appearance; that there is nothing for which Zidell billed that either Petersen or Manteuffel could not have competently handled; that in this simple FLSA case, there was no need for a second senior lawyer to bill $18, 000 for “review, ” “docketing, ” and “conference with associate, ” Ds. Br. 11; and that Zidell's fees should be excluded entirely. Castro responds that Zidell billed only 46.6 hours in this case, which has been pending for over 30 months (which equates to approximately 1.5 hours per month during the pendency of this litigation), and argues that defendants cite no legal authority and present no evidence, other than their anecdotal observation, that it is improper for a senior attorney on a file to spend an average of 1.5 hours per month keeping up with a file and making strategic decisions.

         As noted, the court should exclude all time that is duplicative. Jimenez, 621 F.3d at 379-80. “If more than one attorney is involved, the possibility of duplication of effort along with the proper utilization of time should be scrutinized.” Johnson, 488 F.2d at 717. This court has disallowed, for example, time expended by multiple attorneys who attended trial unnecessarily. See, e.g., Barrow, 2005 WL 6789456, at *15 (disallowing as duplicative fees for two of four attorneys who represented plaintiff at trial where plaintiff failed to meet her burden of demonstrating why it was necessary for four attorneys to attend trial). Although defendants object to Zidell's time entries on the ground that “there is nothing for which Mr. Zidell billed, that either Mr. Petersen, or Mr. Manteuffel could not have competently handled, ” Ds. Br. 11, they do not contend that any of Zidell's time entries are duplicative or unnecessary. In fact, their argument suggests the opposite (i.e., the time entries reflect work that should have been done, but by someone other than Zidell).[5] Nor do they provide any authority for the ...


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