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West v. Zedric's LLC

United States District Court, W.D. Texas, San Antonio Division

December 3, 2019

ACE WEST, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; Plaintiff,
v.
ZEDRIC'S LLC, ZACHARY LUTTON, Defendants.

          HONORABLE FRED BIERY UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation concerns Plaintiff's Opposed Motion for Attorney's Fees [#7]. The motion was referred to the undersigned for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C. The undersigned has authority to enter this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that the Court grant the motion in part and award Plaintiff's attorney's fees in the amount of $5, 912.76 and costs in the amount of $531.03.

         I. Background

         Plaintiff Ace West filed this collective action on May 23, 2019 under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), et seq. to recover unpaid overtime wages while employed as a salaried cook for Defendants Zedric's, LLC and Zachary Lutton (“Defendants”) [#1]. Plaintiff also sought declaratory judgment, monetary damages, liquidated damages, prejudgment interest, and costs, including reasonable attorney's fees [#1]. On July 2, 2019, Defendants' counsel served Plaintiff an offer of judgment in the sum of $3, 500.00, plus an award of reasonable attorney's fees and costs pursuant to the FLSA as determined by the Court [#4-1]. Plaintiff filed a Notice of Acceptance of Defendants' Offer of Judgment on July 9, 2019 [#4]. As stated in the Status Report filed by Plaintiff, parties were unable to reach an agreement on attorney's fees and costs [#8].

         Plaintiff then filed an Unopposed Motion for Leave to file Exhibits 2-5 [#6] and filed a Motion for Attorney Fees and Costs [#7] seeking $9, 495.00 in attorney's fees and $571.03 in costs. Defendants filed their Response in Opposition to the Motion for Attorney Fees and Costs on September 12, 2019 arguing that Plaintiff's requested fees are excessive and requesting that the Court reduce the hourly rates and reduce the No. of hours by 60 percent [#10]. One week later, Plaintiff filed its Response in Support of its Motion for Attorney Fees and Costs [#11] with an Updated Billing Statement attached [#11-1] requesting an increase in award of attorney fees in the total amount of $11, 425.00 due to Defendants' opposition which Plaintiff alleges necessitated 5.3 hours of additional work for Plaintiff's counsel. The motion was referred to the undersigned on September 4, 2019. In issuing this report and recommendation, the undersigned has reviewed Plaintiff's fee request, the parties' related filings, the affidavits and other evidence filed in support or in opposition to the fee request, the entire case file, and the governing law.

         II. Governing Law

         The legal standard that governs here is undisputed and often repeated. Under the Fair Labor Standards Act, the District Court must award reasonable attorney's fees to the prevailing party. See 29 U.S.C. § 216(b) (“The court in [an FLSA case] 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.”); Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 & n.7 (5th Cir. 2006) (noting that reasonable fees should be awarded to “prevailing party” even though the FLSA's text does not use that term). District courts use the lodestar method to calculate an appropriate fee award under the FLSA by multiplying the No. of hours reasonably spent on the case by an appropriate hourly rate in the community for such work. Saizan, 448 F.3d at 799. A plaintiff seeking attorney's fees is “charged with the burden of showing the reasonableness of the hours billed” and also that he or she “exercised billing judgment.” Id. “Billing judgment requires documentation “of the hours charged and of the hours written off as unproductive, excessive, or redundant.” Id. The remedy for a lack of billing judgment is a reduction in hours “by a percentage intended to substitute for the exercise of billing judgment.” Id.

         Reasonable hourly rates are determined based on prevailing rates for attorneys of similar skill and experience in the relevant market. McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)). These rates are usually established through affidavits of other attorneys practicing in the relevant community. Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002). The Fifth Circuit has interpreted the “relevant community” to mean the city in which the district court sits. See, e.g., Walker v. U.S. Dep't of Hous. & Urban Dev., 99 F.3d 761, 770 (5th Cir. 1996) (describing the relevant community as the “Dallas legal market”); see also Gill v. Bullzeye Oilfield Services, LLC d/b/a Bullzeye Wireline, No. 5:15-CV-1166-DAE, 2018 WL 4677902, at *2 n.1 (W.D. Tex. Jul, 19, 2018) (Chestney, J) (explaining why the relevant community is the city and not the District), report and recommendation adopted, 2018 WL 4770853 (W.D. Tex. Sept. 25, 2018) (Ezra, J.).

         There is a strong presumption that the lodestar amount is reasonable. Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013). Given the nature of claims under the FLSA, it is not uncommon that fee requests exceed the amount of judgment in a case by many multiples. Howe v. Hoffman-Curtis Partners Ltd., LLP, 215 Fed. App'x 341, 342 (5th Cir. 2007).

         After calculating the lodestar, the court may decrease or enhance the amount based on the relative weights of the twelve factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Johnson factors are: (1) the time and labor required to represent the client or clients; (2) the novelty and difficulty of the issues in the case; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee charged for those services in the relevant community; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. at 717-19. “[O]f the Johnson factors, the court should give special heed to the time and labor involved, the customary fee, the amount involved, and the result obtained, and the experience, reputation and ability of counsel.” Saizan, 448 F.3d at 800, (quoting Migis v. Pearle Vision, 135 F.3d 1041, 1047 (5th Cir. 1998)). “The lodestar may not be adjusted due to a Johnson factor, however, if the creation of the lodestar amount already took that factor into account; to do so would be impermissible double counting.” Id.

         III. Analysis

         Plaintiff claims that his attorneys have expended 32.7 total hours litigating this case (reduced by 3.3 hours for “billing judgment”), including this fee motion. ([#11-1] at 9.) Plaintiff's fee request is based on records that demonstrate five different attorneys worked on this case, and Plaintiff contends that the rates that he is requesting for these attorneys-which range from $500 for the most senior attorney, Mr. Sanford, $350 for Ms. McEntire (an associate), $300 for Mr. Rauls (an associate), and $225 for Ms. Matlock and Mr. Short (both associates)-are reasonable. In total, Plaintiff requests $9, 495.00 in fees and $571.03 in costs. ([#7-1] at 5, 12.) Defendant objects that neither the rates nor the hours claimed are reasonable in this case, which, although pleaded as a collective action, only involves a single plaintiff, whose wage claim was quickly resolved on the merits when he accepted an offer of judgment. The undersigned agrees. The rates claimed by Plaintiff greatly exceed rates that have been deemed reasonable in this legal community in similar cases, and the amount of time claimed is inflated due to Plaintiff's counsel's case management practices.

         A. Reasonable ...


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