The Estate of Gentry v. Hamilton-Ryker IT Sols.

MEMORANDUM AND RECOMMENDATION

ANDREW M. EDISON, UNITED STATES MAGISTRATE JUDGE

On March 4, 2022, I issued a Memorandum and Recommendation on cross-motions for summary judgment. I concluded that (1) Defendant Hamilton-Ryker IT Solutions, LLC (“HR-IT”) is liable for Plaintiffs' unpaid overtime wages; (2) no exemption excuses HR-IT's failure to pay Plaintiffs overtime; (3) Plaintiffs are entitled to liquidated damages; (4) HR-IT did not willfully violate the Fair Labor Standards Act (“FLSA”), so the two-year limitations period applies in this case; (5) Plaintiff The Estate of Terry Gentry (“Gentry”) is entitled to $28,659 (consisting of unpaid overtime wages of $14,329.50 and liquidated damages of $14,329.50); and (6) Plaintiff Marc Taylor is entitled to $66,900 (consisting of unpaid overtime wages of $33,450.00 and liquidated damages of $33,450.00). See Dkt. 87 at 16. United States District Court Judge Jeffrey V. Brown adopted my Memorandum and Recommendation in its entirety.

See Dkt. 91.^[1] Judge Brown also gave Plaintiffs permission to move for an award of fees^[2] and costs.

Plaintiffs have filed a Motion for Entry of Attorneys' Fees and Costs Pursuant to the FLSA. Dkt. 95. In that motion, Plaintiffs seek attorneys' fees in the amount of $194,730.00 and costs in the amount of $2,624.33. HR-IT opposes the award of these amounts. See Dkt. 104. Although HR-IT recognizes that the FLSA requires that prevailing plaintiffs collect reasonable attorneys' fees and costs, HR-IT argues that the amounts sought by Plaintiffs are wildly excessive.

LEGAL STANDARD

Under the FLSA, a successful plaintiff is entitled to an award of attorneys' fees and costs. See 29 U.S.C. § 216(b) (“The court in such action 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.”). The Fifth Circuit has unequivocally held that “[r]easonable attorneys' fees are mandatory” when a court

finds that an employer has violated the FLSA. Weisel v. Singapore Joint Venture, Inc., 602 F.2d 1185, 1191 n.18 (5th Cir. 1979). “Although the district court has discretion to determine what is reasonable, the court does not have discretion to decline to award attorney's fees to a prevailing party without making such a determination.” Steele v. Leasing Enters., Ltd., 826 F.3d 237, 249 (5th Cir. 2016).

The Fifth Circuit “use[s] the lodestar method to calculate an appropriate attorney's fee award under the FLSA.” Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir. 2006). Under the lodestar method, the district court “multipl[ies] the number of hours an attorney reasonably spent on the case by an appropriate hourly rate, which is the market rate in the community for [the] work.” Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013). “The court should exclude all time that is excessive, duplicative, or inadequately documented.” Jimenez v. Wood County, 621 F.3d 372, 379-80 (5th Cir. 2010). For purposes of an award of attorneys' fees in an FLSA overtime suit, “[t]here is a strong presumption of the reasonableness of the lodestar amount.” Black, 732 F.3d at 502.

“[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” out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Black, 732 F.3d at 502 (quotation omitted). The Johnson factors are: (1) the time and labor required; (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 due to acceptance of the case; (5) the customary fee charged for those services in the relevant community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount of damages involved and the results (both monetary and equitable) obtained; (9) the experience, reputation, and ability of the attorney(s); (10) the undesirability of the case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar cases. See Johnson, 488 F.2d at 717-19.

“Determining a reasonable attorney's fee is a matter that is committed to the sound discretion of a trial judge, . . . but the judge's discretion is not unlimited.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558 (2010) (cleaned up). The party seeking attorneys' fees bears the burden of demonstrating the reasonableness of the fees sought, including any adjustment or enhancement. See Black, 732 F.3d at 502. A court abuses its discretion when it awards attorneys' fees without “a reasonably specific explanation for all aspects of a fee determination, including any award of an enhancement.” Perdue, 559 U.S. at 558.

ANALYSIS

I will consider Plaintiffs' request for attorneys' fees and costs separately.

A. Attorneys' Fees

My first task in evaluating Plaintiffs' request for attorneys' fees is to calculate the lodestar. To do that, I must carefully evaluate Plaintiffs' proposed hourly rates and then assess the reasonableness of the hours billed by Plaintiffs' counsel. Once the lodestar is established, I will consider the Johnson factors to determine whether an upward or downward departure from this amount is warranted.

1. Reasonable Hourly Rates

Plaintiffs seek the following hourly rates for the following attorneys: Richard J. (Rex) Burch: $650; Richard J. Prieto: $450; and Melinda Arbuckle: $400. Mr. Burch is the managing shareholder at Bruckner Burch PLLC. He has focused the vast majority of his roughly 25-year legal career on representing individuals in wage and hour cases across the country. Mr. Prieto is a 2008 law school graduate who is Board Certified in Labor and Employment law. For the past 10 years, Mr. Prieto has been a partner at Shellist Lazarz Slobin, LLP. Ms. Arbuckle is also a partner at Shellist Lazarz Slobin, LLP. She focuses her legal practice on FLSA cases and has been practicing for 12 years.

In support of the proposed hourly rates, Plaintiffs have submitted declarations from Mr. Burch, Ms. Arbuckle, and Allen R. Vaught. In his declaration, Mr. Burch contends that he is aware of the rates charged by other lawyers “in this market” and “$650 an hour is below the market rate for a lawyer of reasonably comparable skill, experience, and reputation.” Dkt. 95-2 at 4. Ms. Arbuckle explains that she currently bills at a rate of $500 per hour for non-contingency legal work but will seek only a $400 per hour fee in this case. Ms. Arbuckle also offers her view that Mr. Prieto's $450 hourly “billing rate is especially reasonable given his board certification.” Dkt. 95-1 at 4. Mr. Vaught is an FLSA litigator with more than 23 years of legal experience in the State of Texas. Mr. Vaught did not work on this case but offers his view that Ms. Arbuckle's requested hourly rate of $400 “is reasonable and consistent with the customary hourly rates charged by lawyers with similar skill and experience for legal services in the United States District Court for the Southern District of Texas.” Id. at 20.

As both parties recognize, it is well-settled that attorneys' fees are to be calculated at the “prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895 (1984). In requesting fees and expenses, Plaintiffs take the position that “the relevant community for fees is district-wide-not by city or division.” Dkt. 95-1 at 20. I disagree. As I previously explained:

The Southern District of Texas is comprised of a huge swath of land (44,000 square miles) with legal markets as diverse as the population that inhabits the land. Based on my experience as a practitioner for roughly 25 years in the Southern District of Texas before taking the bench, not to mention my four years on the bench, I am convinced that the legal markets across the Southern District of Texas-Laredo, Brownsville, McAllen, Corpus Christi, Victoria, Galveston, and Houston-are far from homogenous. It is ludicrous to suggest that a reasonable hourly rate in Brownsville, for example, is comparable to the hourly rate charged by an attorney in the Houston metropolitan area (which includes the Galveston division).

Gentry v. Hamilton-Ryker IT Sols., LLC, No. 3:i9-CV-00320, 2022 WL 2236286, at *3 (S.D. Tex. June 22, 2022); see also Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002)

(“[T]he relevant market for purposes of determining the prevailing rate to be paid in a fee award is the community in which the district court sits.” (quotation omitted)). I conclude that the relevant community here is the Houston metropolitan area, which includes the Galveston division.

Ideally, Plaintiffs would present me with a declaration expressly stating that the proposed hourly rates are within the range of prevailing market rates in the Houston metropolitan area. Plaintiffs do not do this. Instead, Mr. Burch's declaration simply refers to the $650 rate as appropriate “in this market,” Dkt. 95-2 at 4, and Mr. Vaught contends that Ms. Arbuckle's hourly rate is consistent with billing rates charged by lawyers in “the Southern District of Texas.” Dkt. 95-1 at 20. Plaintiffs argue that this evidence is sufficient because HR-IT has provided data from the State Bar of Texas establishing that the median hourly rate for the Houston-The...