Montgomery, Jr. - Adams-II v. Anderson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CINDY MARIE WEBER MONTGOMERY, JR./ADAMS-II CIVIL ACTION VERSUS NUMBER: 24-2432 CONSUELO ANDERSON, ET AL. SECTION: “R” (5) REPORT AND RECOMMENDATION Before the Court is Defendant Waste Management of Virginia, Inc.’s Motion for 1 Attorneys’ Fees. (Rec. doc. 140). The motion is unopposed. Having reviewed the pleading, tIh. e recoBradc, kagnrdo tuhned c ase law, the Court finds and recommends as follows. Plaintiff Cindy Adams initially filed a complaint in this Court pro se in October 2024 and retained counsel in December 2024. (Rec. doc. 1). Counsel filed a first amended complaint in January 2025, in which Plaintiff alleged causes of action against 19 named defendants, as well as six unknown insurance companies. (Rec. doc. 11)I.d . The complaint asserted claims for a range of unconnected conduct dating back to 2002. ( ). One of the named defendants is Waste Management of Virginia, Inc. (“Waste Management”). Plaintiff alleged that Waste Management was the former employer of Plaintiff and was involved in sexual harassment of andId r.etaliation against Plaintiff, and that it conspired with other defendants to harm her. ( at 6-7, 15). Plaintiff sued Waste Management for racial discrimination, employment discrimination, civil conspiracy, negligence, tortious conduct, libel and slander, intentional inflictionI do.f emotional distress, punitive damages, and litigation expenses and attorney fees. ( at 18-35). Waste Management answered and asserted a counterclaim against plaintiff for breach of contract, based upon a release agreement entered between Plaintiff and Waste Management in October 2020, in which plaintiff released any and all claims against Waste Management arising from her employment with or separation from Waste Management and based on discrimination or retaliation, among other bases. (Rec. doc. 59). Plaintiff did not respond to the counterclaim. Waste Management then moved for judgment on the pleadings under Rule 12(c) and for sanctions. (Rec. docs. 103, 127). The District Court granted the motion for judgment on the pleadings, dismissing Plaintiff’s claims with prejudice, and denied the motion for sanctions as moot. (Rec. doc. 132). The instant motion followed. Waste Management seeks $65,116.98 in attorney’s fees on behalf of its attorneys, Littler Mendelson, P.C. (Rec. doc. 140). Waste Management’s entitlement to fees is undisputed. Thus, the Court will address oIIn. ly theL aawm oaunndt Aonf aatltyosrinsey’s fees and costs owed. A. The Lodest ar Approach The United States Supreme Court and the Fifth Circuit have ofHteenn srleeyp ev.a Etecdk etrhhaatr ta request for attorneys’ fees Asshsoouclidat neodt B supialdwenrs m &a Cjoorn atrnacciltloarrsy o lift Ligaa.,t iIonnc.. v . Orleans Par. School, 4B6d1. U.S. 424, 437 (1983); , 919 F.2d 374, 379 (5th Cir. 1990). A court’s discretion in fashionii.ne.g a reasonable attorney’s fee is broad and reviewable only for an abuse of discretion, , it will not be reversed unless there is stroHnge nesvleidyence that it is excessHivoep owro oinda vd.e Sqtuaatete o, fo Tre txh.e amount chosen is clearly erroneous. , 461 U.S. at 436-37; , 236 F.3d 256, 277 n.79 (5th Cir. 2000). To determine a reasonable fee, the Court must provide a concise but clear explanation of its reasons for the fee award, making subsidiary factual determinations regarding whether the requested hourly rate is reasonable, and whether the tasks reporteHde nbsyl ecyounsel were duplica;t iAvses,o ucnianteecde Bssuailrdye, rosr & u nCorenltartaecdt otros the purposes of the lawsuit. , 461 U.S. at 437-39 , 919 F.2d at 379. The Fifth Circuit has noted that its “concern is not that a complete litany be given, but that the findings be complete enough to assume a review which can determine whether the Bcoraunrtt lheays v u. Sseudrl epsroper factual criteria in exercising its discretion to fix just compensation.” , 804 F.2d 321, 325- 26 (5th Cir. 1986). In assessing the reasonableness of attorneys’ fees, the Court must first determine the "lodestar" by multiplying the reasonable nuSmeeb Here nosfl ehyours expended a;n Gdr etehne vr.e Aadsomn’rasb olef hthoeu rTluy larantee Efodru ce.a Fchu npdarticipating attorney. , 461o Uve.Sr.r uatle 4d3 o3n other grounds by Burlington N. & Santa F, e2 R8a4i lFw.3ayd C6o4. 2v,. W66h1it e(5th Cir. 2002), Migis v. Pearle Vision, Inc. La. Powe, r5 &4 8L iUg.hSt. C5o3. (v2. K00el6ls)t;r om , 135 F.2d 1041, 1047 (5th Cir. 1998); , 50 F.3d 319, 324 (5th Cir. 1995). The lodestar is presumed reasonable, Fbeusts lae rc ovu. Prto mrcaeyla tnhae nC oernohnaan Dcee oMre dxeiccor,e Sa.sAe. iDt ea Cft.eVr considering the twelve Johnson factors. Combs v. City of Huntington ., 23 F.4th 408, 415 (5th Cir. 2022) (citing , 829 F.3d 388, 392 (5th Cir. 2016)). “‘[T]heC ommobsst critical factor’ in determiHneinngsl eay reasonable fee ‘is the degree of success obtained.’” , 829 F.3d at 394 (quoting , 461 U.S. at 436). The fee applicant bears the burden of proof on the lodestar issue, but once calculatedS,e teh Fee psaslretry seeking modification of the lodestar under the Johnson factors bears the burden. , Riley v. City of Jackson La. Power 23 F.4thIn a rt e4 S1m6;i th , 99 F.3d 757, 760 (5th Cir. 1996); , 50 F.3d at 324; 1. , 99R6e Fa.s2odn 9a7b3le, 9 H7o8u (r5ltyh RCairt.e 1s9 92). “‘[R]easonable’ hourly rates M‘acrCe ltaoin b ve. cLaulfckuilna tIendd uasc.,c oInrcding to the prevailing market rates in the relevBalnutm c ovm. Smteunnsiotyn.’” ., 649 F.3d 374, 381 (5th Cir. 2011) (quoting , 465 U.S. 886, 895 (1984)). “[T]he burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney’s own affidavits— that the requested rates are in line with those prevailBinlug min the community for similar services by lawyers of reasonably comparable skill.” , 465 U.S. at 895 n.11. “An attorney’s requested hourly rate is prima facie reasonable when [he] requests that the lodestar be computed at [his] ‘customary billing rateW,’ hthitee vr.a Itme pise rwiailt Ahidnju tshtme ernatn Cgoer po.f prevailing market rates and the rate is not contested.” La. Power , No. 99-3804, 2005 WL 1578810, at *5 (E.D. La. June 28, 2005) (citing , 50 F.3d at 328) (emphasis added). In its fee submission, Waste Management seeks fees on behalf of two attorneys: Bradford J. Kelleym aangdn aS ecaunm P la. uOd’Be rien. Kelley is a shareholder at Littler Mendelson, P.C. Kelley graduated from LSU Paul M. Hebert Law Center, was inducted into the Order of the Coif, and served as an editor for the Louisiana Law Review. (Rec. doc. 140- 1 at 5). After law school, Kelley clerked for the Honorable Donald Walter of the U.S. District Court for the Western District of Louisiana. Kelley was admitted to the Louisiana Bar in 2013, suggesting that he has approximately 12 years of experience. Kelley specializes in labor and employment law and has extensive experience, accolades, and publications related to tha t specialty. Kelley seeks a rate of $646.00/hour for his work in this case. (Rec. doc. 140-1at 4-6). O’Brien is an associatec uamt L liatutldeer Mendelson, P.C., who has over five years of practice experience since graduating from the University of Memphis Cecil C. Humphreys School of Law in 2019. O’Brien focuses his practice on employment discrimination, harassment, leave and accommodation matters, artificial intelligence, and wage and hours disputes. He has served as first chair in approximately ten bench trials, has published numerous articles on labor and employment law topics, and has presented at events such as a continuing legal education seminar focusedId o.n the current state of labor and employment law. O’Brien seeks a rate of $335.75/hour. ( ). As noted above, “an attorney’s requested hourly rate is prima facie reasonable when [he] requests that the lodestar be computed at [his] ‘customary billWingh irtaete,’ the rate is within the range of pLrae. vPaoilwinegr market rates and the rate is not contested.” , 2005 WL 1578810, at *5 (citing , 50 F.3d at 328) (emphasis added). However, the Court may reduce the hourly rateR iicf hita rdde tve. rSmt. iTnaems mthaant yt hPea rr.e Sqhueersiftfe'sd D reapte't is not within the range of prevailing market rates. appeal dismissed sub n,o Nmo.. RCiVc h1a7r-d9 7v0. 3Sm, 2i0th22 WL 4534728, at *11 (E.D. La. Sept. 28, 2022), , No. 22-30497, 2023 WL 2845201 (5th Cir. Jan. 27, 2023). Thus, the Court in its discretion will assess whether the uncontested rates fall within the range of prevailing market rates. Notably, counsel did not include an affidavit, outside of Kelley’s own personal testimony, of other attorneys practicing in this DistrBidct. oefs Staubpleisrvhiisnogr st hoaf tL tohuei srieaqnuae Ssttaetde rUantievs. av.r eS mina lcink eA wppitahr pelr eCvoailing rates in this community. ., No. CV 04-1593, 2007 WL 9770644, at *10 (E.D. La. May 23, 2007), report and recommendation adopted , No. CV 04-1593, 2007 WL 9770643 (E.D. La. Aug. 28, 2007) (“Generally, the reasonable hourly rate for a particular Tcoolmletmt vu.n Ciittyy oisf Keestmaabhlished through affidavits of other attorneHyse rpbrearctt ivc.i nAgu tdhuebroen.” )C (oqmuomt'inng , 285 F.3d 357, 368 (5th Cir. 2002)); , No. CV 15-5425, 2017 WL 5900978, at *2 (E.D. La. Nov. 30, 2017) (reminding Plaintiff’s counsel that as applicants, they bear burden of producing satisfactory evidence that their rates are in line with other similar services in this District.). Most importantly, both requested hourly rates are not reflective of the prevailing rates in this community. For these reasons, reductions are warranted. Kelley has approximately 12 years of experience and seeks a rate of $646.00/hour. A significant reduction is neceMsGsaMrTy Lt,o L r.Le.fCle. cvt. Srtartaetse gaiwc aTredcehd. Itnos to.,t hInecr attorneys with similar experience in this District. ., No. CV 20-2138, 2025 WL 958208, at *38 (E.D. La. Mar. 31, 2025) (awGarradnitn gv. aG tuhsemna-cnurrent rate of $275.00/hour to an attorney with 11 years of experience); , No. CV 17-2797, 2023 WL 315937, at *13 (E.D. La. Jan. 19, 2023) (reducing a Jpornoepso vs.e Nde bwil Olinrlge arnatse R oefg $'l3 P5h0y spiecira hno Huor stpo. $O2rg75 for an attorney with 11 years of experience); ., No. CV 17-8817, 2019 WL 6770029 (E.D. La. Dec. 12, 2019) (reduSchinagw r avt. eA olpf haatt oArinr e&y wHeitaht in1g3, Ly.eLa.Crs of experience from $350.00/hour to $300.00/hour); ., No. CV 22-3953, 2024 WL 1556861, at *3 (E.D. La. Apr. 10, 2024) (reducing rate of attorney with 13-14 years of experience from $500.00/hour to $350.00/hour). Recently, this Court awarded a rate significantly lower rate than that requested by Kelley to an attorney with nearAlyr c4h0e ry eWa.r sC oonf terxapcteorries,n Lc.eL,. Cm. ov.r eM tchDaonn ndeolu Gbrlep .,t hLe.L .yCe.ars of experience possessed by Kelley. report and recomme, nNdoa. tCioVn 2 a2d-5o3pt2e3d, 2025 WL 2088911, at *4-5 (E.D. La. July 9, 2025), (reducing the requested hourly rate of an attorney with 39 years of experience from $530/hour to $500/hour). Moreover, none of the cases cited by Waste Management award a rate as high as that requested by Kelley for an attorney with similar experience. Accordingly, the Court awards Kelley a rate of $340.00/hour. The Court now turns to O’Brien, who has over five years of experience and seeks a rate of $335.7M5G/MhoTuLr, . That rate is slightly excessive in light of those typically awarded in this District. 2025 WL 958208, at *38 (reducing the rate oEf nagne antdtoerr,n LeLy Cw vit. hC fyipvree tsos eZiognhet Pyreoadrss. oLf. Le.Cxperience from $280.00/hour to $225.00/hour); , ., No. CV 20-1591, 2021 WL 3423589, *2 (E.D. La. Aug. 5, 2021) (finEdninVge na rEanteer goyf V$2en6t0u.0re0s/, hLoLuCr v .r eBalascokn aEblkle E fnoerr gayn Oaftftsohronreey O wpeirtha tsioenvse,n L LyCears of experience); , 2015 WL 3505099, at *2- 3 (E.D. La. June 3, 2015) (finding hourly rate of $275 for associate with seven years of experience to b2e. reasRoneaabsolen).a bTlhee H Coouurrts aEwxparednsd Oe’dBrien a rate of $275.00/hour. The party seeking the fee bears the burden of documenting andH seunpslpeoyrting the reasonableness of all time expenditures for which compensation is sought. , 461 U.S. at 437. “Counsel for the prevailing party should make a good faith effort to excluIdde. from a fee request hours that are excessive, redundant, and otherwise unnecessary . . .” at 434. HIdo. u rs that are not properly billed to one’s client are not properly billed to one’s adversary. The Supreme CoIdu.r t calls on fee applicants to make a fee request that demonstrates “billing judgment.” The remedy for failiIndg. to exercWisael k“beril lvin. Cg itjuy dogfm Meenstq”u iist eto exclude hours that were not reasonably eWxpaelnkdere dv.. H UD at 434; , 313 F.3d 246, 251 (5th Cir. 2002) (quoting , 99 F.3d 761, 770 (5th Cir. 1996)) (“If there ibsu nt oa erevdiduecnticoen ooff b‘tihllein hgo ujurds gamweanrdt,e hdo bwy eav peerr, ctehnetna tghee i nptreonpdeerd rteom suebdsyt iitsu nteo fto ar dtheen eiaxle orcf ifseee osf, billing judgment. ’” (emphasiSse ea dGdreeden)). Alternatively, thCiasm Ceoruornt vc. aGnr ecaotnedr uNcetw a Olirnleea-bnys -Fliende. Canreadlyits iUsn oifo tnhe time report. , 284 F.3d at 662; , No. CV 16-8514, 2017 WL 1426970, at *2 (E.D. La. Apr. 21, 2017). Waste Management argues that the 129.60 hours sought are reasonable because counsel exercised billing judgment by excluding unproductive, redundant, or otherwise non- billable tasks. Waste Management further argues that its requested hours are reasonable because it obtained dismissal of all claims against it, secured judgment in its favor on its counterclaim, and because the case involved numerous independent defendants, requiring it to monitor their filings to assess potential implications for its own defense strategy. (Rec. doc. 140-1 at 3-4). Having reviewed counsel for Waste Management’s timesheets, the Court finds minor deductions are warranted. “‘[T]hCeo mmbosst critical factor’ in determinHinegn asl reeyasonable fee ‘is the degree of success obtained.’” , 829 F.3d at 394 (quoting , 461 U.S. at 436). “When using the lodestar method to award attorney fees, courts routinely deduct time spent on unsuccessful, uKnufpoeurnmdaend vo. rI CFu nInnetc'lessary pleadings, motions, discovery requests and memoranda.” White , No. CV 08-565, 2009 KWupLe r1m07a3n7138, *7 (E.D. La. Oct. 13, 2009) (quoting , 2005 WL 1578810, at *11). In , the Court preserved time spent on some unsuccessful motions but reduced time for others, finding that counsel should not “be penalized for every unsuccessful motion” because “an attorney must represent his client zIedalously,” and unsuccessful motions are “fully expected aspects of that representation.” ( .). Here, Waste Management seeks significant time for its motions for sanctions that the District Court denied as moot. (Rec. doc. 140-3 at 12-16). The District Court found Waste Management’s motion for sanctions moot because attorney’s fees are proper, and Waste Management cannot recover duplicative attorney’s fees for the same conduct. (Rec. doc. 132 at 15-16). Of the 129.60 hours for which counsel seeks feeIsd, .over 30 of those hours were expended related to the unsuccessful motion for sanctions. ( ). Recognizing, however, that the work expended on the motion for sanctions was nonetheless a useful part of the litigation strategy, rather than a line-by-line reduction, the Court recommends a mere 10% reduction of the hBo.u rs soTuhgeh tJ.o h nson Factors As noted above, the lodestar is presumJeodh nrseoansonable, buSte ae cJoouhrnts omna yv . thGean. Henighhawnacey oErx pdreecssr,e aInsce. it after considering the twelve abrogat efda cotonr so.t h er grounds by Blanchard v. Bergeron , 488 F.2d 714 (5th Cir. J1o9h7n4s)o,n , 489 U.S. 87, 90 (1989). The factors are (1) time and labor required, (2) novelty and difficulty of the issues, (3) skill required to perform the legal services properly, (4) preclusion of other employment, (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) experience, reputation and ability of the attorneys, (10) undesirability of the case, (11) nature and length of the professional See id. relationship with the client, and (12) award in similar cases. 2 at 717-19. “‘[TC]hoem mbsost critical factor’ in determHineninsgle ay reasonable fee ‘is the degree of success obtained.’” , 829 F.3d at 394 (quoting , 461 U.S. at 436). Johnson 2 The factors are near identical to the factors considered by Louisiana state courts when awarding La. Power The lodestar is presumed to yield a reasonable fee. Fle,m 5i0n gF v..3 Edl liaott t3 S2e4c.. ASodlds.i,t LioLnCa,lly, the lodestar should be modified only in exceptional cases. Watkins v. Fordice No. CV 19-2348, 2021 WL 4908875, at *1 (E.D. La. Oct. 21, 2021 J)o h(cnistoinng , 7 F.3d 453, 457 (5th Cir. 1993)). Lastly, “to the extent that any factors are subsumed in the lodestar, they should nMotig bise reconsidered when determining whether an adjustment to the lodestar is required.” , 135 F.3d at 1047. Waste Management makes arguments based on factors one, two, three, four, five, eight, eleven, and twelve. (Rec. doc. 140-1 at 7-9). However, the CourJto hcnosnosnid ered those factors in determining the reasonableness of the hours sought. Thus, the factors that are relevant to this case are subsumed in the lodestar. No further adjustment is merited. Name Accordingly, the distributionH oof uferess is as foHlloouwrsl:y rate Amount Bradford J. Kelley 64.90 $340.00 $22,066.00 Sean P. O’Brien 64.70 $275.00 $17,792.50 $39,858.50 3 Total R ecomm ended -$ 3$35,,988752.8.655 III. Conclusion FITo rI Sth ReE fCoOreMgoMinEgN rDeEasDons, that DefendGaRnAt WNTaEstDe MINa nPaAgeRmTent’s of Virginia, Inc.’s Motion for Attorneys’ Fees (rec. doc. 140) be and Waste Management of Virginia, Inc., be awarded a total of $35,872.65in attorneys’ fees. NOTICE OF RIGHT TO OBJECT A party’s failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge’s report and recommendation within 14 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 parDtyo uhgasla bsse evn. Usenritveedd Swtaitthe sn oAtuitcoe. tAhsast’ nsuch consequences will result from a fail ure to object. , 79 30th September F.3d 1415 (5th Cir. 1996) (en banc). New Orleans, Louisiana, this day of , 2025. ____________________________________________________ MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE