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Rebollar v. Ortega Medical Clinic, P.L.L.C.

United States District Court, S.D. Texas, Houston Division

August 22, 2019

ORTEGA MEDICAL CLINIC, P.L.L.C., et al., Defendants.



         Before the Court in this sexual-harassment lawsuit is Plaintiff Merari Rebollar's Application for Attorneys' Fees and Costs (“Motion”) [Doc. # 30]. Defendants have responded, [1] and Rebollar replied.[2] The Motion is ripe for decision. Based on the parties' briefing, pertinent matters of record, and relevant legal authority, the Court grants in large part Rebollar's Motion and awards Rebollar $66, 180.50 in attorney fees and $6, 528.52 in costs.

         I. BACKGROUND

         Plaintiff Merari Rebollar initiated this lawsuit on March 16, 2018, against her former employers, Defendants Ortega Medical Clinic, P.L.L.C., Juan Antonio Ortega-Mora M.D., P.A., and Juan A. Ortega, M.D. (collectively, “Defendants”).[3] Rebollar alleges that while she was employed by Defendants as a medical assistant, she was assaulted in violation of Texas law and subjected to sexual harassment, a hostile work environment, gender discrimination, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964.[4]

         On the same day Plaintiff Rebollar filed her suit in federal court, counsel for Rebollar filed a separate employment-related lawsuit against Defendants in Texas state court on behalf of Melissa Nieto. Nieto worked as receptionist for Defendants and similarly alleges that Defendants subjected her to gender discrimination, sexual harassment, a hostile work environment, and retaliation.

         On January 31, 2019, during the very first deposition taken in this case, the parties agreed to use all discovery conducted by deposition in both Rebollar's and Nieto's cases, obviating the need to conduct each deposition twice.[5] In total, nine depositions were conducted in connection with Rebollar's lawsuit.[6] Counsel billed to Rebollar's case seven of these depositions.[7]

         On February 18, 2019, Rebollar filed a partially unopposed motion for leave to amend her complaint to add Nieto as an additional plaintiff.[8]

         On February 27, 2019, Defendants filed a response to Rebollar's motion for leave to amend.[9] Defendants represented they were not opposed to joining Nieto as a plaintiff in this case, but were opposed to the addition of specific allegations in the proposed complaint which did not track the allegations in Nieto's state court petition.[10]

         On March 5, 2019, Rebollar filed a reply in support of her motion, asserting that the additional allegations should be allowed because Defendants would suffer no undue prejudice from their addition to this suit.[11]

         On March 13, 2019, Defendants filed an amended response, contending they now opposed any amendment to join Nieto to this lawsuit.[12]

         In a Memorandum and Order [Doc. # 27], dated March 14, 2019, the Court denied Rebollar's motion to amend.

         On April 29, 2019, Rebollar accepted Defendants' Federal Rule of Civil Procedure 68 Offer of Judgment on her claims.[13] On June 14, 2019, the Court entered Final Judgment, ordering Defendant Antonio Ortega-Mora, M.D., P.A., to pay to Rebollar $60, 000, plus attorney fees and costs.[14]

         Rebollar seeks $67, 145 in attorney fees and $6, 528.52 in costs and other litigation-related expenses.

         Defendants challenge $30, 930 of Rebollar's attorney fees. Defendants assert that Rebollar's attorney fee recovery should be reduced by $9, 645 based on vague or inadequately described billing entries; reduced by $6, 080 based on excessive and unnecessary work; reduced by $9, 925 based on dual work for both Rebollar and Nieto's cases; and reduced by $5, 280 based on work performed on Rebollar's unsuccessful motion to amend. Defendants further assert that Rebollar's cost request should be reduced by $3, 136.20.


         A. Legal Standard

         Under Title VII, a prevailing plaintiff may recover “a reasonable attorney's fee (including expert fees) as part of the costs.” See 42 U.S.C. § 2000e-5(k). In the Fifth Circuit, “[t]he first step in determining statutorily authorized attorneys' fees is to calculate a ‘lodestar' amount.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 284 (5th Cir. 2008); Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). There is a “strong presumption” that the lodestar amount-the product of reasonable hours and a reasonable rate-represents a reasonable fee. See Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013). After calculating the lodestar, “[t]he court must then consider whether the lodestar should be adjusted upward or downward, depending on the circumstances of the case and the [12] factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).” McClain, 519 F.3d at 284.[15]

         “The fee applicant bears the burden of proving that the number of hours and the hourly rate for which compensation is requested is reasonable.” Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir. 1996). “A district court must ‘explain with a reasonable degree of specificity the findings and reasons upon which the award is based.'” Id. (quoting Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990)).

         B. Reasonable Rates

         Rebollar was represented in this lawsuit by Todd Slobin and Dorian Vandenberg-Rodes. Rebollar asserts that Slobin's reasonable rate for employment-related cases is $500 per hour and Vandenberg-Rodes's is $300. Defendants do not challenge these rates. The Court agrees these rates are reasonable in light of the attorneys' experience and knowledge of employment law. Accordingly, the Court will award Rebollar attorney fees at her counsel's requested rates.

         C. Reasonable Time

         1. Rebollar Is Entitled to Recover Counsel's Billed Time for Depositions

          Defendants argue Rebollar should not be permitted to “frontload” a fee recovery for counsel's work performed on behalf of both Nieto and Rebollar. Defendants submitted a chart identifying the pages of each deposition transcript where there is a specific reference to Nieto or Rebollar.[16] Defendants contend that the chart reveals that Rebollar's counsel discussed at each deposition matters pertaining to both Rebollar and Nieto. To rectify the situation, Defendants request the Court cut by 50% counsel's time for all depositions and deposition preparation.

         The Court is unpersuaded that a 50% reduction is warranted. A prevailing plaintiff is entitled to attorney fees for work on claims “inextricably intertwined” with her prevailing claims when “it would be impossible to segregate all of the time for purposes of making a determination of attorney's fees.” See Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 528 (5th Cir. 2001). “Where time spent on unsuccessful issues is difficult to segregate, no reduction of fees is required.” See Abell v. Potomac Ins. Co. of Ill., 946 F.2d 1160, 1169 (5th Cir. 1991). Claims are so intertwined when they “involve a common core of facts or will be based on related legal theories.” See Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983) (emphasis added).

         Counsel's time spent deposing witnesses with respect to Nieto's claims is recoverable because the time is “inextricably intertwined” and “impossible to segregate” from Rebollar's prevailing claims. See, 261 F.3d at 528. Each deponent gave testimony relevant to Rebollar's claims. Defendants' only example of a deponent whose testimony was not intertwined with Rebollar's case-Ana Fernandez-is unpersuasive. Defendants contend that Fernandez testified that she did not know Rebollar, had never spoken to Rebollar, and had no personal knowledge of any incident involving Defendant Ortega and Rebollar. Defendants do not contest, however, that Fernandez testified that when she saw Ortega for a medical ...

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