Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 1 of 17 PageID #: 1544
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`DANIELLE GEOFFRION and
`DARREN KASMIR
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`v.
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`NATIONSTAR MORTGAGE LLC
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`§
`§
`§
`§
`§
`§
`§
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`Case No. 4:14-cv-350
`Judge Mazzant
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`MEMORANDUM OPINION AND ORDER
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`Pending before the Court is Plaintiffs’ Amended Motion for Attorney’s Fees, and Non-
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`Taxable Expenses (Dkt. #82). After considering the relevant pleadings, the Court finds that it
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`should be granted in part and denied in part.
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`BACKGROUND
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`Plaintiffs allege to have sent Defendant Qualified Written Requests (“QWR”s) for
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`information regarding their account and an accounting of all payments made on their mortgage
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`account (Dkt. #64 at p. 2). Plaintiffs further allege Defendant violated the Real Estate Settlement
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`and Procedures Act 12 U.S.C. ¶ 2605(a) (“RESPA”) because Defendant failed to provide
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`information required by federal law (Dkt. #64 at p. 2). Plaintiffs also sued in equity to receive an
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`accounting from Defendant (Dkt. #64 at p. 2).
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`The case proceeded to trial, and trial began on September 9, 2015 (Dkt. #72). On
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`September 10, 2015, the jury rendered a verdict finding that Plaintiffs submitted QWRs to
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`Defendant on December 16, 2013, and on January 3, 2014 (Dkt. #76 at p. 1). The jury found that
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`Defendant failed to respond or provided an inadequate response to the QWR that Plaintiffs sent
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`on January 3, 2014 (Dkt. #76 at p. 2). The jury also found that Plaintiffs were entitled to recover
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`damages caused by Defendant’s failure to respond to Plaintiffs’ QWR (Dkt. #76 at p. 3).
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`1
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 2 of 17 PageID #: 1545
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`On September 14, 2015, the Court entered Judgment on Jury Verdict in which the Court
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`ordered that “all pre-judgment and/or post judgment interest allowed by law shall be paid by
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`Defendant” (Dkt. #78 at p. 2). On September 28, 2015 Plaintiffs filed a motion for attorneys’
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`fees and non-taxable expenses (Dkt. #82). On October 12, 2015, Defendant filed its response
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`(Dkt. #88).
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`RESPA provides that
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`ANALYSIS
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`“[w]hoever fails to comply with any provision of this section shall be liable to the
`borrower… in the case of any successful action under this section, the costs of
`the action, together with any attorneys fees incurred in connection with such
`action as the court may determine to be reasonable under the circumstances.
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`12 U.S.C.A. § 2605(f)(3) (emphasis added). Plaintiffs request $199,320 for attorneys’ fees and
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`$17,259.71 in expenses (Dkt. #82 at p. 1). The expenses include $2,143.97 in taxable expenses
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`and $15,115.74 in non-taxable expenses (Dkt. #82 at p. 1). Defendant argues that Plaintiffs may
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`only recover fees for a reasonable number of hours (Dkt. #88 at p. 5). Defendant maintains that
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`since Plaintiffs only succeeded on a small fraction of their claims, and failed to demonstrate
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`billing judgment, they cannot recover the requested fees (Dkt. #88 at pp. 6-10). Defendant also
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`argues that “Plaintiffs’ attorneys’ rate of $550 is not sufficiently supported by evidence and is
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`not reasonable for either the type of work or the market.” (Dkt. #88 at pp. 11-14).
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`The computation of a reasonable attorneys’ fee award is a two-step process. Rutherford
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`v. Harris County, Texas, 197 F.3d 173, 192 (5th Cir. 1999) (citation omitted). First, the court
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`must utilize the lodestar analysis to calculate a “reasonable” amount of attorneys’ fees. Id. The
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`lodestar is equal to the number of hours reasonably expended multiplied by the prevailing hourly
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`rate in the community for similar work. Id. Second, in assessing the lodestar amount, the court
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`must consider the twelve Johnson factors before final fees can be calculated. Id.
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`2
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 3 of 17 PageID #: 1546
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`The Johnson factors are:
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`(1) time and labor required; (2) novelty and difficulty of issues; (3) skill required;
`(4) loss of other employment in taking the case; (5) customary fee; (6) whether
`the fee is fixed or contingent; (7) time limitations imposed by client or
`circumstances; (8) amount
`involved and results obtained; (9) counsel’s
`experience, reputation, and ability; (10) case undesirability; (11) nature and length
`of relationship with the client; and (12) awards in similar cases.
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`Id. at 192 n.23 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
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`1974)).
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`After considering the twelve Johnson factors, the court may adjust the lodestar upward or
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`downward. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir. 1993). “If the plaintiff obtained
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`limited success, the hours reasonably spent on the case times the reasonable hourly rate may be
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`excessive.” Verginia McC v. Corrigan-Camden Indep. Sch. Dist., 909 F. Supp. 1023, 1032 (E.D.
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`Tex. 1995). “‘[T]he most critical factor’ in determining the reasonableness of an attorney’s fee
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`award ‘is the degree of success obtained.’” Giles v. Gen. Elec. Co., 245 F.3d 474, 491 n.31 (5th
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`Cir. 2001) (quoting Farrar v. Hobby, 506 U.S. 103, 113 (1992)); see also Migis v. Pearle Vision,
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`Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). “The district court may attempt to identify specific
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`hours that should be eliminated, or it may simply reduce the award to account for the limited
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`success.” Verginia McC, 909 F. Supp. at 1032 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436
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`(1983)).
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`The fee applicant bears the burden of proof on this issue. See Riley v. City of Jackson,
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`Miss., 99 F.3d 757, 760 (5th Cir. 1996); Louisiana Power & Light Co. v. KellStrom, 50 F.3d 319,
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`324 (5th Cir. 1995). “Many of these factors usually are subsumed within the initial calculation
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`of hours reasonably expended at a reasonable hourly rate and should not be double-counted.”
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`Jason D.W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998) (internal citations
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`omitted).
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`3
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 4 of 17 PageID #: 1547
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`The United States Supreme Court has barred any use of the sixth factor as a basis for
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`enhancement of attorneys’ fees. See Walker v. United States Dep’t of Hous. & Urban Dev., 99
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`F.3d 761, 772 (5th Cir. 1996) (citing City of Burlington v. Dague, 505 U.S. 557, 567 (1992)). In
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`addition, three of the Johnson factors – complexity of the issues, results obtained, and preclusion
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`of other employment – are fully reflected and subsumed in the lodestar amount. Heidtman v.
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`Cty. of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). “[T]he court should give special heed to
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`the time and labor involved, the customary fee, the amount involved and the result obtained, and
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`the experience, reputation and ability of counsel.” Migis, 135 F.3d at 1047 (citation omitted).
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`The lodestar is presumptively reasonable and should be modified only in exceptional
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`cases. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The fee-seeker must submit
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`adequate documentation of the hours reasonably expended and of the attorney’s qualifications
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`and skill, while the party seeking reduction of the lodestar must show that a reduction is
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`warranted. Hensley, 461 U.S. at 433; Louisiana Power & Light Co., 50 F.3d at 329.
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`A.
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`LODESTAR
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`1.
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`Hours Expended
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`Plaintiffs seek $199,320 in attorneys’ fees for 362.4 hours expended (Dkt. #82 at pp. 1-
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`3). The hours expended are divided as follows:
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`W. Craft Hughes (“Mr. Hughes”)…….. 143.7 hours
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`Jarett L. Ellzey (“Mr. Ellzey”)………. 218.7 hours1
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`Plaintiffs assert that “[t]his was a leanly-staffed case in which every minute of work reflected on
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`the timesheets of Plaintiffs’ counsel was necessary and well-spent.” (Dkt. #82 at p. 8). 2
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`1 Plaintiffs’ counsel states that they waived and deleted 13.7 hours of fees billed by Brian B. Kirkpatrick, an
`associate who is no longer employed by Plaintiffs’ counsel’s firm. However, Plaintiffs’ counsel does not state that
`they waived Mr. Kilpatrick’s fees because it was excessive, duplicative, or otherwise unnecessary (Dkt. #82 at p. 6,
`Dkt. #88 at p. 8).
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`4
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 5 of 17 PageID #: 1548
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`Defendant argues that “[b]ecause Plaintiffs dropped their breach of contract claim, they cannot
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`recover attorneys’ fees incurred to further it” and the calculation of hours reasonably spent on the
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`RESPA claim must be significantly reduced (Dkt. #88 at p. 7). Defendant also argues that
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`Plaintiffs’ counsel failed to demonstrate billing judgment (Dkt. #88 at pp. 8-10). For the reasons
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`stated below, Plaintiffs’ counsel expended an unreasonable number of hours on this case.
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`Defendant maintains that Plaintiffs’ counsel’s hours should be reduced because they
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`billed for tasks more suited to support staff or junior attorneys, and charged partner rates for
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`those tasks (Dkt. #88 at p. 10). “Clerical work . . . should be compensated at a different rate
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`from legal work.” Walker, 99 F.3d at 770. See Cruz v. Hauck, 762 F.2d 1230, 1235 (5th Cir.
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`1985) (“A finding that some of the hours claimed were for clerical work may justify
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`compensating those hours at a lower rate....”); Johnson, 488 F.2d at 717 (“It is appropriate to
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`distinguish between legal work, in the strict sense, and investigation, clerical work, compilation
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`of facts and statistics and other work which can often be accomplished by non-lawyers....”). The
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`Court agrees that the filing of legal documents, the calendaring of events, and communications
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`regarding scheduling issues, are all clerical in nature. See Lewallen v. City of Beaumont, No.
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`CIV.A. 1:05-CV-733TH, 2009 WL 2175637, at *6 (E.D. Tex. July 20, 2009), aff’d, 394 F.
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`App’x 38 (5th Cir. 2010) (finding that basic communications and case organization are “largely
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`clerical or housekeeping matters and not legal work”) (citation omitted). Defendant asserts that
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`3.5 hours were billed for clerical rather than legal tasks (Dkt. #88-2). The Court agrees with all
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`2 Defendant also argues that because Plaintiffs have not produced their retainer agreement with their counsel, and
`because Plaintiff Geoffrion is Plaintiffs’ counsel’s sister, there is insufficient evidence that Plaintiffs “incurred” or
`are obligated to pay any fees (Dkt. #88 at p. 4). Defendant maintains that plaintiffs’ motion for fees contains no
`evidence establishing the extent to which Plaintiffs are contractually obligated to pay, “save a self-serving statement
`of Plaintiffs’ counsel” (Dkt. #88 at p. 4). Plaintiffs’ counsel even stated in his affidavit that Plaintiffs “retained me
`and my law firm . . . to represent them in this suit . . . on an hourly basis of $550/hour” (Dkt. #82-1 at p. 3). The
`Court finds that the bill included with Plaintiffs’ counsel’s affidavit, the affidavit, and the motion are sufficient
`evidence that Plaintiffs retained Plaintiffs’ counsel at the rate that Plaintiffs’ counsel claims (Dkt. #82, 82-1, 82-2).
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`5
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 6 of 17 PageID #: 1549
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`of Defendant’s designations of specific billed tasks that were clerical.3 Therefore, the Court will
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`subtract the time spent on clerical work from each attorney’s total when calculating the
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`reasonable number of hours.4
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`Defendant also maintains that because Plaintiffs’ counsel does not employ any junior
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`attorneys, Plaintiffs’ counsel necessarily did work that should have been done by a junior
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`attorney and billed at a lower rate (Dkt. #88 at p. 10). “The Court recognizes that good attorneys
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`litigate in their own manner and does not require an attorney to practice in a certain way.”
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`McClain v. Lufkin Indus., Inc., No. CIV. A. 9:97-CV-063, 2009 WL 921436, at *5 (E.D. Tex.
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`Apr. 2, 2009), aff’d in part, vacated in part, remanded, 649 F.3d 374 (5th Cir. 2011). While
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`Plaintiffs’ counsel “engaged in tasks often associated with attorneys more junior than
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`[themselves], it is possible that they completed those tasks more quickly, and with less need for
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`subsequent review and revision by another attorney. Id. (citing League of United Latin American
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`Citizens No. 4552 (LULAC) v. Roscoe Independent School Dist., 119 F.3d 1228, 1233, n.3 (5th
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`Cir. 1997)). Therefore, the Court will not reduce the calculation of the reasonable number of
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`hours because Plaintiffs’ counsel did not utilize a junior attorney.
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`Defendant also argues that Plaintiffs’ counsel’s travel time should not have been billed at
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`a full rate (Dkt. #88 at p. 10). Courts often reduce working and non-working travel time. See In
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`re Babckock & Wilcox Co., 526 F.3d 824, 828 (5th Cir. 2008) (per curiam) (noting that generally
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`“it is not an abuse of discretion to discount non-working (and even working) travel time”); see
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`also Watkins, 7 F.3d at 458–59 (holding that the district court did not abuse its discretion by
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`reducing the hourly rate billed by 50% for travel time); OneBeacon Ins. Co. v. T. Wade Welch &
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`3 Defendant designated 3 hours of Mr. Ellzey’s time as clerical, and .5 hours of Mr. Hughes’ time as clerical (Dkt.
`#88-2).
`4 See Lewallen v. City of Beaumont, No. CIV.A. 1:05-CV-733TH, 2009 WL 2175637, at *6 (E.D. Tex. July 20,
`2009), aff'd, 394 F. App'x 38 (5th Cir. 2010) (finding that “fees will not be awarded for [clerical] work).
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`6
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 7 of 17 PageID #: 1550
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`Assoc., No. H-11-2061, 2015 WL 5098552, at *7 (S.D. Tex. Aug. 31, 2015) (reducing travel
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`time by fifty percent). Plaintiffs’ counsel “did not provide any evidence that work was done
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`during this travel and did not demonstrate that comparably skilled practitioners charge their full
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`hourly rate for travel time.” Am. Zurich Ins. Co. v. Jasso, 598 F. App’x 239, 250 (5th Cir. 2015).
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`“Because Plaintiffs have not met their burden of showing the common practice in the area is to
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`charge full rates for travel time and Defendants have provided contrary authority, the Court
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`reduces Plaintiffs’ attorneys’ fee award by 50% for travel time.” Coe v. Chesapeake Expl., LLC,
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`No. 2:09-CV-290-TJW, 2011 WL 4356728, at *4-5 (E.D. Tex. Sept. 15, 2011), aff’d sub nom.
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`Coe v. Chesapeake Expl., L.L.C., 695 F.3d 311 (5th Cir. 2012). Defendant estimates that 43
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`hours of Plaintiffs’ counsel’s billed time was spent traveling (Dkt. #88-2). The Court finds that
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`43 hours of Plaintiffs’ counsel’s travel time (18 hours of Mr. Ellzey’s time and 25 hours of Mr.
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`Hughes’ time) should be billed at 50% of their regular rate.5
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`Defendant argues that because Plaintiffs succeeded on only a small fraction of their
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`claims, the lodestar calculation of hours reasonably spent to succeed on the RESPA claim must
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`be significantly reduced (Dkt. #88 at pp. 5-7). Work done by attorneys on unsuccessful claims
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`cannot be considered to have been expended for the result achieved. Hensley, 461 U.S. at 435
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`(1983). As the Supreme Court explained: “The congressional intent to limit awards to prevailing
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`parties requires that these unrelated claims be treated as if they had been raised in separate
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`lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.” Id. In
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`determining which hours to include and exclude from the lodestar, “[t]he district court may
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`5 The Court calculated the 43 hours of travel based on the estimations that Defendant submitted (Dkt. #88-2). The
`Court finds Defendant’s estimations to be reasonable. However, Defendant further argues that the travel time was
`block billed, and thus it is impossible to tell how long Plaintiffs’ counsel spent traveling. However, upon
`examination of the bill, the Court finds that “[a]lthough there is some block billing, the Court does not see that block
`billing was the normal method of recording attorney time, at least, not to the extent that requires a reduction of the
`lodestar amount.” Pittman v. McClain's R.V., Inc., No. 4:12CV542, 2013 WL 6804658, at *3 (E.D. Tex. Dec. 23,
`2013). Therefore, the Court will use the numbers that Defendant suggests.
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`7
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 8 of 17 PageID #: 1551
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`attempt to identify specific hours that should be eliminated, or it may simply reduce the award to
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`account for the limited success.” Id. at 436-37. A party “cannot have prevailed on issues they
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`did not pursue.” Walker, 99 F. 3d at 769.
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`The Court agrees that Plaintiffs may not recover attorneys’ fees for their breach of
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`contract claim.6 However, according to the bill, it appears that the vast majority of time spent
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`was on the RESPA claim. In fact, Plaintiffs’ counsel only mentioned the breach of contract
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`claim once in its entire billing statement, although the bill mentions RESPA twelve times (Dkt.
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`#82-2). Clearly, the majority of Plaintiffs’ counsel’s billed time was spent on the RESPA claim.
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`However, the Court cannot ignore that even though Plaintiffs’ counsel only billed for the
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`breach of contract claim explicitly once, Plaintiffs’ counsel included this unsuccessful claim in
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`the bill. Additionally, Plaintiffs’ counsel does not claim to have lowered the overall number of
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`hours to reflect that all time spent on the breach of contract claim was excluded from the bill. In
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`fact, Plaintiffs’ counsel stated that it was unnecessary for them to segregate fees for failed claims
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`and successful claims (Dkt. #82-1 at p. 7). This demonstrates that Plaintiffs’ counsel clearly did
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`not understand the necessity of excluding fees associated with unsuccessful claims from the bill,
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`and that they made no attempt to exclude fees related to their failed claim (Dkt. #82-1 at p. 7).
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`Therefore, the Court finds that an overall reduction in the fees by 5% is appropriate.
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`Defendant also argues that Plaintiffs’ counsel failed to demonstrate billing judgment, and
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`therefore, there should be a reduction of the award by a percentage intended to substitute for the
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`exercise of billing judgment (Dkt. #88 at p. 8). The party seeking fees has “the burden of
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`6 The Court also agrees that in this case, the equitable accounting claim does not constitute an independent basis for
`recovering fees (Dkt. #88 at p. 7). See Gate Guard Serv. v. Perez, 792 F. 3d 554, 560 (5th Cir. 2015) (the equity
`court’s power to award fees is limited to situations where “overriding considerations indicate the need for such a
`recovery” or “the interests of justice so require”). However, the equitable accounting claim is closely intertwined
`with the RESPA claim. “Whether . . . claims are inextricably tied is a question of fact.” Wal-Mart Stores, Inc. v.
`Qore, Inc., 647 F.3d 237, 247 (5th Cir. 2011). These claims involved the exact same set of facts. See Hensley, 461
`U.S. at 434-35. Therefore, the Court finds that the RESPA claim and the equitable accounting claim were
`inextricably tied, and Plaintiffs’ counsel can recover for fees associated with the equitable accounting claim.
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`8
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 9 of 17 PageID #: 1552
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`showing . . . that the attorneys exercised billing judgment.” Black v. SettlePou, P.C., 732 F. 3d
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`492, 502 (5th Cir. 2013) (citing Saizan v. Delta Concrete Prods. Co., Inc., 448 F. 3d 795, 799
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`(5th Cir. 2006)). Billing judgment is defined as “documentation of the hours charged and of the
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`hours written off as unproductive, excessive, or redundant.” Saizan, 448 F. 3d at 799.
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`Defendant maintains that Plaintiffs’ counsel demonstrated a lack of billing judgment
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`when they inconsistently billed significant hours to gain experience and expertise on the issues
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`concerning RESPA while also billing at a high rate for their experience and expertise (Dkt. #88
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`at p. 9). However, the Court does not find it inconsistent for an attorney to bill a high rate for
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`their experience and expertise as a litigator, and also charge for gaining expertise in the particular
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`matter at hand. See Dkt. #88-1 at p. 2 (stating that “I have considerable knowledge, training and
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`experience in the field of civil trial law and consumer protection.”); Dkt. #82-1 at p. 6 (stating
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`that “[a] large amount of time was expended for the lawyers to learn the precise issues
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`concerning RESPA”). Therefore, the Court finds that Plaintiffs’ counsel’s fees for gaining
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`experience and expertise in RESPA does not demonstrate a lack of billing judgment.
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`Defendant argues that Plaintiffs’ counsel also failed to demonstrate billing judgment
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`because they did not document hours written off as unproductive, excessive, or redundant (Dkt.
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`#88 at p. 8). Plaintiffs’ counsel maintains that they exercise billing judgment on the “front end”
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`by not including time that they do not think is justifiable (Dkt. 82-1 at p. 7). However, the bill
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`itself reflects that Plaintiffs’ counsel did not exercise billing judgment (Dkt. #82-2).
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`Defendant points to several specific areas of the bill which appear to be duplicative (Dkt.
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`#88-2). The Court agrees that several of Plaintiffs’ counsel’s billed hours were redundant. “The
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`proper remedy for omitting evidence of billing judgment does not include a denial of fees but,
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`rather, a reduction of the award by a percentage intended to substitute for the exercise of billing
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`9
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 10 of 17 PageID #: 1553
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`judgment.” Saizan, 448 F.3d at 799. Defendant alleges that 27.1 hours billed by Plaintiffs’
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`counsel are redundant, which is about 7.5% of the total hours billed. However, the Court does
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`not agree that every one of these entries is actually redundant. For example, Defendant marked
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`as duplicate every instance where Plaintiffs’ attorneys conferred about the case, and both
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`attorneys charged for the conference (Dkt. #88-2). However, “[a] certain amount of attorney
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`conferences are necessary to manage a case.” White v. Imperial Adjustment Corp., No. CIV.A.
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`99-3804, 2005 WL 1578810, at *14 (E.D. La. June 28, 2005). Therefore, due to Plaintiffs’
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`counsel’s a lack of billing judgment, evidenced by the inclusion of duplicative work within the
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`bill, the Court will reduce the amount of attorneys’ fees by 5%.
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`2.
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`Prevailing Hourly Rate
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`Based on the motion and affidavit presented to the Court, the attorneys seek to be
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`compensated at an hourly rate of $550 (Dkt. #82 at p. 4; Dkt. #82-1). Defendant contests the
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`hourly rate requested. Defendant argues that Plaintiffs’ counsel’s rate of $550 is not sufficiently
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`supported by evidence and is not reasonable for either the type of work or market (Dkt. #88 at p.
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`11). Specifically, Defendant argues that “Plaintiffs’ counsel’s affidavit alone is insufficient to
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`establish the appropriateness of the fee” (Dkt. #88 at p. 11). Defendant also states that
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`“Plaintiffs’ failed to submit evidence of an appropriate rate in the relevant legal community”
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`(Dkt. #88 at p. 12). Defendant contends that awards in other cases reflect Plaintiffs’ requested
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`fee is excessive and that a reasonable billing rate is approximately $350 for partners (Dkt. #88 at
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`pp. 13-14). The Court agrees and finds that in the Eastern District, $350 per hour is a reasonable
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`rate for partners in this type of case. Furthermore, Plaintiffs have not presented relevant
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`evidence, other than Plaintiffs’ counsel’s own affidavit, that suggests otherwise. See Whatley v.
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`Creditwatch Servs., Ltd., No. 4:11-CV-493, 2014 WL 1287131, at *4 (E.D. Tex. Mar. 31, 2014)
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`10
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 11 of 17 PageID #: 1554
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`(finding that $232.79 was a “reasonable and customary hourly rate for an attorney practicing
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`consumer law in this region”); Champion v. ADT Security Services, Inc., No. 2:08-cv-417-TJW,
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`2010 WL 4736908 (E.D. Tex. Nov. 16, 2010) (stating that the only evidence of $500 fee’s
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`reasonableness was counsel’s own affidavit and finding that it was not sufficient and the
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`appropriate fee was $350 per hour).
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`3.
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`Calculating the Lodestar
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`Based on Plaintiffs’ table of billable hours and the various reductions discussed by the
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`Court above, the Court calculates the lodestar based on the table below.
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`Mr. Hughes: 118.2 hours7 X $350/hour = $41,370
`Mr. Hughes (Travel): 25 hours X $175/hour = $4,375
`Mr. Ellzey: 197.7 hours8 X $350/hour = $69,195
`Mr. Ellzey (Travel): 18 hours X $175/hour = $3,150
`Subtotal 1= $118,090
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`5% reduction for unsuccessful claims = $5,904.50
`Subtotal 2 = $112,185.5
`5% reduction for lack of billing judgment9 = $5,609.28
`Lodestar = $106, 576.22
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`B.
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`THE JOHNSON FACTORS
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`In analyzing the Johnson factors, the Court finds that the requested fee is unreasonable.
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`Plaintiffs argue that the Court should enhance the amount of attorneys’ fees based on the
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`Johnson factors (Dkt. #82 at p. 14). However, the Court finds that the reduced fee under the
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`lodestar analysis is reasonable.
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`1.
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`Time and Labor
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`The time and labor required for this lawsuit was not excessive.
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`7 Plaintiffs initially requested fees for 143.7 hours of work. The Court subtracted .5 hours for clerical work and 25
`hours of travel time which must be billed at 50%.
`8 Plaintiffs initially requested fees for 218.7 hours of work. The Court subtracted 3 hours for clerical work and 18
`hours of travel time which must be billed at 50%.
`9 Reduction for lack of billing judgment “is calculated last, after any reductions from other factors.” Coe, 2011 WL
`4356728, at *3.
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`11
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 12 of 17 PageID #: 1555
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`2.
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`Novelty and Difficulty of Issues
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`The Court has already considered this factor in determining the lodestar.
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` 3.
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`Skill Required
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`The Court has already considered this factor in determining the lodestar.
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`4.
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`Preclusion of Other Employment
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`Plaintiffs argue that Plaintiffs’ counsel devoted a substantial amount of their time to this
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`case and that the they were precluded from working on class action lawsuits which are more
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`lucrative for Plaintiffs’ counsel’s firm (Dkt. #82-1 at p. 8). However, preclusion of other
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`employment is subsumed within lodestar amount and is not appropriate basis for enhancement of
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`lodestar amount. Heidtman, 171 F.3d 1038 (5th Cir. 1999). The Court finds that preclusion of
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`other employment is not a basis for adjusting the lodestar in this case.
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`5.
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`Customary Fee
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`The Court has already considered this factor in determining the lodestar.
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`6.
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`Whether the Fee is Fixed or Contingent
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`This factor cannot be considered in adjusting the lodestar.
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`7.
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`Time Limitations Imposed by the Client or Circumstances
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`This factor is not applicable to the instant action.
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`8.
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`Amount Involved and Results Obtained
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`The Court has already considered this factor in determining the lodestar.
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`9.
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`Experience, Reputation and Ability of the Attorneys
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`The Court has already considered this factor in determining the lodestar.
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`10.
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`Undesirability of the Case
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`The Court has already considered this factor in determining the lodestar.
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`12
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 13 of 17 PageID #: 1556
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`11.
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`Nature and Length of the Professional Relationship with the Client
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`Defendant argues that “the fact that Geoffrion is related to Plaintiffs’ counsel, [Mr.]
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`Ellzey, suggests special scrutiny to the allegedly negotiated rate of $550 per hour.” (Dkt. #88 at
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`p. 18). However, the Court has already found Plaintiffs’ counsel’s proposed rate to be
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`unreasonable. Therefore, further consideration of this factor is not necessary.
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`12.
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`Awards in Similar Cases
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`The parties cannot point to cases that have facts identical to the facts of this case.
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`The Court finds the analysis of the Johnson factors does not necessitate an adjustment of
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`the lodestar. Therefore, the Court finds that the lodestar analysis is reasonable and Plaintiffs are
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`awarded attorneys’ fees in the amount of $106,254.
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`C.
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`CONDITIONAL APPELLATE ATTORNEYS’ FEES
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` Plaintiffs are also seeking recovery of conditional appellate attorneys’ fees (Dkt. #82 at
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`p. 17). Plaintiffs request
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`$30,000 in the event an appeal to the Fifth Circuit Court of Appeals is perfected
`by Nationstar and it is not successful on appeal; an additional $25,000 in the event
`Nationstar files a Petition for Writ of Certiorari to the U.S. Supreme Court and it
`is not successful with the appeal; and an additional $35,000 if the U.S. Supreme
`Court grants a Writ of Certiotati.
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`(Dkt. #82 at p. 17). Plaintiffs maintain that the $90,000 is a “reasonable, necessary, and
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`customary [fee] to be awarded in the event [Defendant] pursues an unsuccessful appeal.” (Dkt.
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`#82 at p. 17). Defendant argues that Plaintiffs’ requested conditional attorneys’ fees are
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`speculative and should be denied (Dkt. #88 at p. 18). The Court finds that Plaintiffs’ counsel has
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`not produced sufficient evidence to support such an award. Therefore, the Court will address
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`this issue following the resolution of an appeal. Instone Travel Tech Marine & Offshore v. Int'l
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`Shipping Partners, Inc., 334 F. 3d 423, 433 (5th Cir. 2003). See also Carroll v. Sanderson
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`13
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 14 of 17 PageID #: 1557
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`Farms, Inc., No. H-10-3108, 2014 WL 549380, at *5 (S.D. Tex. Feb. 11, 2014) (declining to
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`award conditional appellate fees before the appeal because the request “is merely a speculative
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`dollar figure without any information by which the Court could determine whether the amount
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`requested is reasonable”). Plaintiffs’ request for conditional appellate fees is therefore denied.10
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`C.
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`COSTS
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`Plaintiffs are also seeking recovery of various costs. “Specifically, Plaintiffs seek a total
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`of $15,115.74 in non-taxable expenses, and $2,143.97 in taxable expenses.” (Dkt. #82 at p. 16).
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`The taxable expenses are for service of citation and deposition transcripts (Dkt. #82-1 at pp. 30-
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`32, 36, 42). The non-taxable expenses are for “legal research, travel costs, and postage.” (Dkt.
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`#82 at p. 16).
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`Plaintiffs are seeking non-taxable costs recoverable under Federal Rule of Civil
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`Procedure 54(d)(2). Rule 54(d)(2) provides that “[c]laims for attorneys’ fees and related
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`nontaxable expenses shall be made by motion unless the substantive law governing the action
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`provides for the recovery of such fees as an element of damages to be proved at trial.” Fed. R.
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`Civ. P. 54(d)(2). Rule 54(d)(2) applies “to requests for reimbursement of expenses, not taxable
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`as costs, when recoverable under governing law incident to the award of fees.” Mota v. Univ. of
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`Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001) (citation omitted). Therefore,
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`whether or not Plaintiffs can recover these fees depends upon whether or not they are allowed
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`under the statute. Plaintiffs have failed to point to any statutory authority for the award of such
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`10 The above analysis also applies to Plaintiffs’ request for post-trial fees of $53,000 for post-trial motions and
`proceedings (Dkt. #82 at p. 8). Plaintiffs’ counsel provides no justification for post-trial fees and only mentions that
`amount once in their actual motion, and once in their proposed order (Dkt. #82-5). This is not sufficient, and
`therefore their motion for post-trial attorneys’ fees is denied by the Court at this time. However, the Court will
`address this issue following the resolution of an appeal. Instone Travel Tech Marine & Offshore, 334 F. 3d at 433.
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`14
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`Case 4:14-cv-00350-ALM Document 99 Filed 05/12/16 Page 15 of 17 PageID #: 1558
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`damages, and the Court finds no authority.11 Therefore, Plaintiffs may not recover for non-
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`taxable expenses under Rule 54(d)(2).
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`Plaintiffs are also seeking recovery of $2,143.97 in taxable expenses. Under Federal
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`Rule of Civil Procedure 54(d), costs, other than attorney’s