SALLY SHUSHAN, Magistrate Judge.
On October 30, 2015, the District Judge: (1) entered judgment in favor of 3L Leasing, LLC ("3L") and against Grillot Construction, LLC ("Grillot") and U.S. Specialty Insurance Company ("USSIC") for $511,553.05 plus interest; (2) entered judgment in favor of Russell Grillot and against 3L dismissing its claims with prejudice; (3) assessed costs against Grillot to be determined by the Clerk of Court; and (4) awarded attorneys' fees to 3L to be paid by Grillot. The amount of the fees is to be determined on a referral to the undersigned Magistrate Judge. Rec. doc. 68.
3L sought $111,060.00. Rec. doc. 70. In its reply, it increased this to $116,059.00. The difference represents additional fees incurred in preparation of its motion. Rec. doc. 81 at 7. Grillot submitted an opposition. Rec. doc. 77. USSIC did not submit an opposition. For the reasons described below, it is recommended that 3L be awarded fees of $60,089.00.
Grillot entered into a contract with the United States Army Corps of Engineers. In connection with the project, it entered into a bareboat charter with 3L for a spud/crane/quarters barge. The barge was used from July 18, 2013 until December 2013. It was damaged on the project. It was returned to 3L's dock in Belle Chase on August 27, 2014.
On November 6, 2014, 3L filed a complaint for damages. It sought: (1) charter hire up to the point the vessel was returned — $450,000.00; (2) the cost to replace fuel — $55,000.00; (3) the cost to repair or replace items listed in the reports of Conrad Breit and Brian Gibson — $56,842.35; and (4) charter hire from the time of the vessel's return on August 27, 2015 to the present — $550,000.00, or in the alternative, for a reasonable period after the barge was returned in a damaged and unusable condition. Rec. doc. 42 at 5. The total is about $1,112,000.
Grillot, Russell Grillot and USSIC answered. Rec. docs. 11 and 12. The trial was set for October 26, 2015. Rec. doc. 14. There was a settlement conference but the parties were unable to negotiate a settlement. Rec. doc. 39.
3L moved for partial summary judgment against Grillot and USSIC. Rec. docs. 23 and 24. The motions were denied. The District Judge's analysis of the motions was limited to one paragraph. The order states, "[c]learly, the facts of this case are so contested that it is impossible for summary judgment to be entered as to either defendant." Rec. doc. 43 at 10.
The pretrial conference was on October 6, 2015. Rec. docs. 41 and 42. Pretrial memoranda and proposed findings and conclusions were submitted. Rec. docs. 46-50.
On October 14, 2015, counsel for 3L recommended settling the case for $635,000.00. Grillot made an offer of judgment of $570,000.00. Rec. doc. 70-3, page 70 (Exhibit 1 — entries for 10/14/15 and 10/15/15).
There was a bench trial on October 26-28, 2015 with oral findings and conclusions at the end of the trial. Rec. docs. 65-67. The judgment was signed on October 30, 2015. Rec. doc. 68. On November 27, 2015, 3L filed a notice of appeal. Rec. doc. 78. Grillot did not file a notice of appeal.
With its motion 3L presents fifteen invoices, dated from August 12, 2014 through October 29, 2015, from its law firm. It presents an additional invoice with its reply. The total amount billed on these invoices is $116,631.00.
3L contends that, as adjusted, all of the time included in the invoices should be included in the lodestar for the fee award. 3L's memorandum in support of its motion for attorneys' fees creates some confusion on the billing rates sought. In his affidavit in support of the motion, Devall states that he currently charges $225.00 per hour, Fabian Nehrbass, an associate, charges $175.00 per hour, and Christina Womack, a paralegal, charges $155.00 per hour. Rec. doc. 70 (Memorandum-Exhibit A). These amounts are referred to in 3L's memorandum.
3L reports that prior to the completion of the invoices, about $2,000 in time was written off in the exercise of billing judgment. It contends that no further time should be written off for billing judgment. Rec. doc. 70 (Memorandum at 4). It argues that that there should be no adjustment for the factors described in
Grillot divides the litigation into three phases: (1) July 2014 to June 2015; (2) July 2015 to September 2015; and (3) October 2015. It argues that during the first phase, Devall performed numerous tasks, for example legal research, that should have been performed by associates. Grillot argues that the time for the first phase should be reduced by twenty percent. It urges that time sought in the second phase for work on the motions for summary judgment reflects a lack of billing judgment. The time spent by Devall was duplicative of time spent by Nehrbass or Devall's activity should have been delegated to Nehrbass so that the work was done at a lower rate. Accordingly, Grillot submits that the time charged for the second phase should be reduced by twenty percent. The trial occurred in the third phase. Grillot argues that the invoices for this period reflect vague and duplicative entries and therefore, the time for the third phase should be reduced by forty percent. Finally, Grillot argues that the time for King, Vincenzo and Clark should be eliminated.
Grillot contends that the hourly rates sought by 3L for Nehrbass and Womack are excessive. It contends that the hourly rates for Nehrbass should be reduced to $135 per hour in 2014 and $145 per hour in 2015. Further it suggests that the hourly rate sought for Womack, the paralegal, should be limited to $105 per hour. If Grillot's arguments are accepted, the lodestar is:
Rec. doc. 77 at pages 7-9.
Grillot urges that the eighth
3L replied to Grillot's arguments. Rec. doc. 81.
The method by which the district court calculates an attorneys' fees award is well established. 3L and Grillot agree with this method. The district court first calculates the "lodestar."
In calculating the number of hours reasonably expended on the litigation, whether the total number of hours claimed were reasonable, and whether specific hours claimed were reasonably expended, the court must first ascertain the nature and extent of the services supplied by the attorneys.
The district court may then adjust the lodestar upward or downward depending on the respective weights of the twelve factors set forth in
3L spent a significant amount of time on the motion for partial summary judgment against Grillot and the motion for partial summary judgment against USSIC. The amount is shown in
A review of the time records demonstrates additional time that must be subtracted from the lodestar. Devall began working on the matter on July 10, 2014. Until October 24, 2014, he worked without the assistance of Nehrbass. The Court does not agree with Grillot that Devall's time in the first phase should be reduced. The entries for Nehrbass in late October and early November of 2014 reviewing the file and drafting the complaint are duplicative of work performed by Devall and unnecessary. Nehrbass and Devall both entered time in December 2014 to review the motion of USSIC for an extension. The time for Nehrbass is duplicative. The consulting or assistance rendered by King at various points in June, September and October of 2015 is duplicative and will be eliminated. It was not necessary for both Devall and Nehrbass to attend the pretrial conference. The Nehrbass entry for October 6, 2015 to attend the pretrial conference will be excluded. On October 15, 2015, Devall prepared a motion to extend deadlines. The motion was denied. Rec. doc. 45. Devall's time on this motion will be excluded. On October 23, 2015, Nehrbass prepared a motion to exclude Darryl Devillier. The motion was filed. Rec. doc. 61. Devillier testified on the second day of the trial. Rec. doc. 66. The Nehrbass entry for preparation of the Devillier motion will be subtracted. 3L included time relating to its notice of appeal. This will be excluded. The entries for the additional time to be subtracted from the lodestar are itemized in
Grillot contends that: (1) the entries for 3L's trial preparation time are vague; and (2) there was duplication of effort by Devall and Nehrbass. For example, Nehrbass cross-examined only one witness and orally opposed the motion of USSIC on the bad faith issue. It urges that the time during this period should be reduced by forty percent. The entries are not vague. In the final stages before the trial, it is sufficient to describe the activity as trial preparation. Considering that 3L, as plaintiff, had the burden of persuasion, it was not unreasonable for Devall to require assistance from Nehrbass.
In denying the motion for summary judgment, the District Judge observed:
Rec. doc. 43 at 10. The failure to bring these legal issues to the attention of the District Judge prior to trial increased the work required for the trial.
To arrive at the time spent in October on the trial, including preparation, entries for the following activity will be deducted from the total time for October: (1) settlement; (2) response to order denying motion for summary judgment; (3) deposition of Brian Gibson; (4) motion to exclude Devillier; and (5) the entries for King. The entries for these five categories are shown on
The hours reasonably spent on the litigation must be multiplied by the reasonable hourly billing rate to come to the lodestar. As explained in 3L's reply memorandum, it only seeks the billing rates for Devall that were used in the invoices submitted with the motion for fees. It seeks $210.00 for Devall in 2014 and $220 for him in 2015. Rec. doc. 81 at 2. Grillot does not dispute these rates for Devall. Rec. doc. 77 at 2.
3L seeks $165.00 per hour for Nehrbass in 2014 and $175.00 for 2015. These are the rates used by 3L in the invoices. Grillot contends that the appropriate rates are $135.00 for 2014 and $145.00 for 2015. It argues that the rates sought by 3L are too high considering that most of the work was performed by Nehrbass within the first two years of his practice as a lawyer. It also urges that associates are billed at anywhere from $75.00 to $150.00 less than the partners for whom they work. Rec. doc. 77 at 4.
In
The fact that the Nehrbass rates are only $45.00 per hour lower than the Devall rates is not sufficient justification for reducing the Nehrbass rates. As explained by 3L, the Devall rates were the result of some negotiation between counsel and the client.
3L seeks $145.00 per hour for the paralegal, Womac, in 2014 and $155.00 for 2015. These are the rates used by 3L in the invoices. 3L contends that these rates are justified, because she has more than 15 years of experience as a paralegal. It also contends that the rates are in line with what other firms charge. Grillot argues that the rate should be $105.00. It describes this as the mid-point of rates found reasonable in recent Eastern District of Louisiana cases. Rec. doc. 77 at 2-3. While Womack possesses 15 years of experience, the work performed by her was routine. She arranged for the service of the summons and complaint by a process server in November 2014. Rec. doc. 70-3, page 27. She calculated deadlines from a scheduling order.
The determination of the lodestar is found in
The only remaining issue is whether there should be any adjustment because of the eighth
3L argues that there are only two separable issues on which it was unsuccessful: (1) whether Russell Grillot was personally liable; and (2) whether USSIC was in bad faith. It describes the charter hire issue as "intertwined" and it obtained a judgment for nine months of charter hire. Rec. doc. 81 at 8-9. 3L's position is inconsistent with its statement of the material facts contained in the Pretrial Order. Rec. doc. 42 at 3-5. It sought "[c]harter hire up to the point . . . (the vessel) was returned in the amount of $450,000;" and "[c]harter hire from the time the vessel was returned to 3L to the present date, $550,000. . . ."
In
With a twenty percent reduction, the lodestar will be reduced by $15,022.00 ($75,111 times 20%). The fee award is $60,089 ($75,111 minus $15,022).
IT IS RECOMMENDED that: (1) 3L's motion to assess attorneys' fees (Rec. doc. 70) be granted in part and denied in part; and (2) 3L be awarded attorneys' fees of $60,089.00.
A party's failure to file written objections to the proposed findings, conclusions and recommendations in a magistrate judge's report and recommendation within fourteen (14) calendar days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.
The time for Vincenzo on the motions for summary judgment (3.90) was excluded (Table C). The time for King (3.30) was excluded (Table D). The time for Clark (2.50) was excluded (Table F). No time for Womack was excluded.
