Alex v. KHG of San Antonio, LLC

125 F. Supp. 3d 619, 2015 U.S. Dist. LEXIS 114536, 2015 WL 5098327
CourtDistrict Court, W.D. Texas
DecidedAugust 28, 2015
DocketCiv. Action No. 5:13-cv-0728 (RCL)
StatusPublished
Cited by11 cases

This text of 125 F. Supp. 3d 619 (Alex v. KHG of San Antonio, LLC) is published on Counsel Stack Legal Research, covering District Court, W.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alex v. KHG of San Antonio, LLC, 125 F. Supp. 3d 619, 2015 U.S. Dist. LEXIS 114536, 2015 WL 5098327 (W.D. Tex. 2015).

Opinion

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

On April 16, 2015, this Court signed a Judgment on Jury Verdict in plaintiffs’ favor. ECF No. 133. Pursuant to the Judgment, plaintiff Alexis Alex was awarded $121,923, and plaintiff Nicolette Prieto was awarded $130,016 — for a combined total of $251,939. Id. Now before the Court is plaintiffs’ request for an award of $185,646 in attorneys’ fees and $21,913.27 in costs,

I. LEGAL STANDARD

A prevailing plaintiff is entitled to á •reasonable award of attorneys’ fees and costs under the FLSA. 29 .U.S.C. § 216(b); Ventura v. Bebo Foods, Inc., 738 F.Supp.2d 8, 33-34 (D.D.C.2010).

The Supreme Court has established a “strong presumption” that the lodestar figure represents a reasonable attorney’s fee. Perdue v. Kenny A., 559 U.S. 542, 553-54, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010), The lodestar is calculated by multiplying the number of hours reasonably spent on the case by an appropriate hourly rate in the community for such work. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir.1995).

In Perdue, the Supreme Court contrasted the lodestar method with the method set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). Johnson listed, twelve factors that a court should consider in determining' a reasonable fee: (1) the time and labor required; (2) the novelty and difficult of the questions; (3) the • skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent;1 (7) time involved and [623]*623the results obtained; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.

The Perdue Court clearly indicated a preference for the lodestar method over the Fifth Circuits factors, and the Fifth Circuit has subsequently treated the Johnson factors as a complement to the lodestar method. See, e.g., Ransom v. M. Patel Enters., Inc., 734 F.3d 377, 388 n. 17 (5th Cir.2013) (“There is a strong presumption that the lodestar amount is a reasonable fee, although a court may decrease or enhance it based on the factors established in Johnson.”); Black v. Settle-Pou P.C., 732 F.3d 492, 502 (5th Cir.2013) (“[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.”). However, a court may not adjust the award on the basis of any factor already accounted for in calculating, the lodestar. Saizan v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 800 (5th Cir.2006) (“The lodestar may not be adjusted due. to a Johnson factor, however, if the creation of the lodestar already took that factor into account; to do so would be impermissible double counting.”); see also Perdue, 559 U.S. at 553, 130 S.Ct. 1662.

II. ANALYSIS

Because it is conceded that the plaintiffs are prevailing parties entitled to a reasonable award of attorneys’ fees pursuant to 29 U.S.C. § 216(b), the Court first turns to, the lodestar in this case.

A. Lodestar

1. Hourly Rate

The Court determines the reasonable hourly rate “according to the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 894, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Plaintiffs argue that the appropriate hourly rate in San Antonio for such work is $450 per hour for partners Robert Debes and Martin Shellist and $300 per hour for associate Rick Prieto. Pis.’ Mot. 4.2

•Mr. Debes has been in practice for approximately 26 years, largely, working on FLSA wage and hour disputes. Decl. of Robert R. Debes, Jr., ECF No. 135-2 (“Debes Deck”) ¶3. He attests that his practice “is limited almost exclusively to the representation of ‘tipped employees’ or other hourly workers in the restaurant, bar, valet, hotel, and exotic dancer industries.” Id. Indeed, he was lead counsel on another dancer case in the Western District of Texas, Rafeedie v. LLC, Inc. d/b/a Perfect 10 Men’s Club, et al., Civ. No. A-10-CA-743.

Mr. Shellist hás been engaged in the practice of labor and employment law since 1993, and has successfully argued many cases in the Fifth Circuit. Id. ¶6. His practice focuses on employment issues, contract disputes, wage and hour FLSA litigation, and related areas. Id.

Mr. Prieto has been in practice for about eight years, during which time he has handled a variety of employment and busi[624]*624ness-related disputes, with a focus on FLSA wage and hour cases. Id. ¶ 7.

Mr. Debes attests that in cases such as this, he and Mr. Shellist customarily bill clients at the hourly rate of $475 and Mr. Prieto customarily bills clients at the rate of $375. Id. ¶ 15, but provides no further evidence of this. Since it is clear that many, if not most, clients are represented in contingent fee cases, it is clear to the Court that plaintiffs’ counsel do not have established billing rates of fee-paying clients at the rates they seek. Mr. Debes attests that other attorneys with similar expertise charge similar or higher rates for their time in similar cases. Id.3 Nevertheless, plaintiffs request the Court to approve an hourly rate of $450 for Mr. Debes and Mr. Shellist and $300 for Mr. Prieto. In support of their request, they submit the declarations of Edmond S. Moreland, Jr., and John Griffin. Mr. Moreland has' practiced labor and employment law in Texas for more than 17 years. ECF No. 135-12. It is Mr. Moreland’s stated opinion that the requested hourly rates are reasonable given the attorneys’ skills, expertise, and reputations, and cites a case in which' Magistrate Judge Andrew W. Austin in this District awarded him $325 per hour in an FLSA collective action. Id. (citing Ransom v. M. Patel Enters., Inc., 859 F.Supp.2d 856, 859-62 (W.D.Tex. Austin Div.)). Mr. Griffin, a practicing labor and employment attorney in Texas, beheves that the rates are actually below what is reasonable in the San Antonio market given the attorneys’ credentials and experience. ECF No. 135-13 at ¶ 14. Plaintiffs also provide the declaration of Mark W. Kiehne, supporting hourly rates of $650 to $750 in another case. ECF No. 135-10.4

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125 F. Supp. 3d 619, 2015 U.S. Dist. LEXIS 114536, 2015 WL 5098327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alex-v-khg-of-san-antonio-llc-txwd-2015.