CENTURY PRODUCTS COMPANY v. COSCO, INC. (N.D.Tex. 2003)

IRMA CARRILLO RAMIREZ, United States Magistrate Judge

Before the Court is Century Products Company's ("Century") application for attorneys' fees and costs, and Cosco, Inc.'s ("Cosco") objections. By separate Order, the Court has limited Century's recovery of attorneys' fees and costs to only those incurred in defense of the Todtenbier claim. (Ord. filed Jan. 31, 2003.) After expending a considerable amount of time reviewing Century's fee application and Cosco's objections thereto, the Court is unable to determine a proper fee award. Accordingly, it is hereby

Century provided a total amount of attorneys' fees and costs sought, but did not provide the total number of hours billed by each law firm, the total hours billed by any employee, any background information on twenty-five employees, or sufficient descriptions of a significant number of the hours billed.

ORDERED that Century shall refile its fee application in accordance with the requirements set forth below no later than February 19, 2003. It is further

ORDERED that Cosco shall file its response no later than February 29, 2003.

I. Original Fee Application

Century retained two law firms for defense of the Todtenbier Claim: Weil Gotshal Manges, L.L.P. ("Weil Gotshal") and Meyer Hendricks Bivens, P.A. ("MHB"). (Pl. Br. at 3.) MHB acted as local and lead counsel, while Weil Gotshal played a "supporting role in that litigation." (Pl. Br. at 3-4.) During the defense of the Todtenbier claim, Weil Gotshal filed a federal declaratory judgment action. (Pl. Br. at 3.) Century's fee application does not segregate the attorneys' fees and costs incurred in one action from the other. Century has submitted 127 pages of Weil Gotshal's time sheets reflecting the work of eleven attorneys, four paralegals, and two law clerks. (Pl. App. at 10-138.) Additionally, Century has submitted 105 pages of MHB's time sheets reflecting the work of twelve employees. (Pl. App. at 175-281.) Based upon these submissions, Century requests $407,057.50 in attorneys' fees paid to Weil Gotshal, and $220,092.00 in attorneys' fees paid to MHB. (Pl. Br. 4-5.) The total requested attorneys' fees is $627,149.50. (Pl. Br. at 4, 175.) Additionally, Century requests reimbursement of $60,681.83 in costs charged by Weil Gotshal, $28,882.50 in costs charged by MHB, and miscellaneous costs paid directly by Century in the amount of $6,354.04. (Pl. Br. at 4-5.) With these costs, the total award requested is $723,067.87. (Pl. Br. at 13.) Cosco challenges the fee application as deficient and disputes the amount, the reasonableness, and the necessity of the fees. (Def Br. at 5-28.) After a thorough review of the above, the Court is unable to determine various factors necessary for determining a proper fee award. Therefore, the Court is ordering the refiling of Century's fee application in accordance with the requirement below.

II. Requirements for the Refiled Fee Application

Century's refiled application must utilize the "lodestar" method, provide an analysis of the Johnson factors, and contain sufficient supporting documentation, including the following:

The "lodestar" method is explained in Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Court required that such an analysis be included in a resubmitted application in Walton v. Autotrol Corp., 1998 WL 50459, at *4 (N.D. Tex. Jan. 20, 1998) (ordering the resubmission of fee application to address "each of the factors stated" in Johnson). Century should note that the second, third, seventh, eighth, and ninth factors cannot serve as independent bases for increasing the fee award. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986). Further, the Supreme Court has barred any use of the sixth factor. City of Burlington v. Dague, 505 U.S. 557, 567 (1992).

1. The total disputed hours billed for the Todtenbier claim only. See Hensley, 461 U.S. at 433; see also LULAC v. Roscoe Indep. School Dist., 119 F.3d 1228, 1232 (5th Cir. 1997) ("The district court must first calculate the number of hours reasonably expended on the litigation."); Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) ("Absent a reliable record of the time expended on the prevailing claim, it is within the discretion of the district court to determine a reasonable number of hours that should have been expended in pursuing the claim on which the party prevailed.") Century did not summarize the total hours billed by either law firm, nor the total hours billed by each employee. This is not a task that the Court should be required to undertake. Neles-Jamesbury, Inc. v. Bill's Valves, 974 F. Supp. 979, 987 n. 19 (S.D. Tex. 1997).

2. Each employee's total disputed hours with a breakdown to show the rate at which each hour was billed. The Court is unable to determine the applicable rate for each entry of work for those attorneys for whom only ranges of rates have been provided. Thus, each entry must reflect the rate at which it was billed. Performance Printing Corp. v. The Upper Deck Co., 1999 WL 643811, at *4 (N.D. Tex. Aug. 23, 1999) (ordering the fee applicant to resubmit "hourly reports — a separate one for each attorney and paralegal, with an adequate description of the services performed, hours expended, and dates on which the work was done."); Walton v. Autotrol Corp., 1998 WL 50459, at *4 (same).

3. All relevant unredacted time entries with an adequate description of the services performed, hours expended, and dates on which the work was done. Century's time entries reflecting only "RESEARCH," "RESEARCH REGARDING," "Telephone call with Ray Guy re," "Legal research re," and "Conferences re" (Pl. App. at 50, 182-183, 211, 246) are insufficient. LULAC, 119 F.3d at 1233 (5th Cir. 1997) (disapproving of "research and review of cases" and noting that a complete entry would show "the date, the number of hours spent (calculated to the tenth of an hour), and a short but thorough description of the services rendered."); see also Hopwood v. State of Texas, 999 F. Supp. 872, 916 n. 93 (W.D. Tex. 1998) (finding that "REVIEW AND REVISE BRIEF," and "LEGAL RESEARCH RE 5TH CIRCUIT ISSUES," were "too vague and brief to inform the Court precisely what work was done.").

4. Evidence of good billing judgment, including the removal of unproductive, excessive, or redundant hours. Hensley, 461 U.S. at 433. Century maintains that it wrote off hours that were not properly billable, but provides no supporting documentation. Walton, 1998 WL 50459, at *4 (explaining that "the Court cannot verify this assertion without proper documentation.) Because Weil Gotshal supported MHB in defending the Todtenbier claim, it is possible that hours were billed for overlapping tasks. However, from the voluminous billing records, the Court cannot determine if this occurred, nor the justification for involving more than one attorney on each task. See Hopwood, 999 F. Supp. at 916 ("It was impractical for the Court to wade through literally hundreds of time entries in order to assess a specific number of duplicative and excessive hours for each attorney."), rev'd on other grounds 236 F.3d 256 (5th Cir. 2000); Walton, 1998 WL 50459, at *4 ("There is no justification for when more than one attorney was involved.") Moreover, the application itself must provide evidence of good billing judgment. Alberti v. Klevenhagen, 896 F.2d 927, 930 (5th Cir. 1990) ("Ideally, billing judgment is reflected in the fee application, showing not only hours claimed, but hours written off.") vacated in part on other grounds 903 F.2d 352 (5th Cir. 1990); Scribner v. Waffle House, Inc., 1997 WL 446453, at *2 ("Because there is no record that the Plaintiff exercised billing judgment, Plaintiffs are ordered to resubmit its hourly billing report to include evidence that they in fact exercised billing judgment.")

5. Segregation of hours billed for legal work from hours billed for clerical work, travel, and other work. Walton, 1998 WL 50459, at *4 (ordering "separately hourly billing report for travel time and clerical work performed by its attorneys"); Scribner, 1997 WL 446453, at *2 ("Plaintiffs are ordered to submit a separate hourly billing report for clerical work performed by its attorneys."); Ferguson v. FDIC, 1997 WL 279885, at *3 (N.D. Tex. May 13, 1997) (noting that federal law "holds that paralegal fees are recoverable as attorney's fees to the extent that the paralegal performs work traditionally done by an attorney[,]" otherwise they are recoverable as overhead).

6. Evidence of the reasonableness of each employee's rates. Blum v. Stevenson, 465 U.S. 886, 896 n. 11 (1984) (noting that the fee applicant has the burden "to produce satisfactory evidence — in addition to counsel's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers with reasonablely comparable skill, experience, and reputation"); Louisiana Power v. Kellstrom, 50 F.3d 319, at 328 (noting that "the actual amount paid in fees is not dispositive on the question of reasonable rates.") "The hourly fee award must be supported by the record; the district court may not simply rely on its own experience in the relevant legal market to set a reasonable hourly billing rate." LULAC, 119 F.3d at 1234 ("noting that a magistrate judge should not have considered his personal experience in setting a reasonable hourly rate").

7. Background information, such as years of legal experience, area of expertise, awards and commendations, for each employee. Dibler v. Metwest, Inc., 1997 WL 222910, at *7 (N.D. Tex. Apr. 29, 1997) (disallowing fees for work by an attorney for whom no information was provided beyond the fact that she was an attorney licensed in Texas with experience in employment litigation); see also Neles-Jamesbury, Inc., 974 F. Supp. at 987 n. 19, 988 n. 22 (averaging the hourly rates because there was "no breakdown as to the skill levels," and noting that typically "the Court receives copies of resumes or summaries of the qualifications of attorneys involved in the litigation, as well as information regarding the individuals' litigation skills generally."); Scribner, 1997 WL 446453, at *3 ("Although Mr. Metcalf has practiced law for thirty years, in light of the . . . limited information provided to the Court regarding the attorney's background, the Court cannot conclude that Mr. Metcalf s customary billing rate of $350 per hour is reasonable.")

8. Separate totals for each category of recoverable costs with supporting itemized records. Scribner, 1997 WL 446453, at *2 ("Because Plaintiffs [sic] have filed a bill of costs for almost $55,000 without any documentation authenticating these expenses, the Court hereby orders Plaintiff to resubmit her bill of costs with attached invoices, receipts, and affidavits supporting them."); Ferguson, 1997 WL 279885, at *3 ("Expenses incurred by attorneys in litigation a case are not recoverable" under FED. R. Civ. P. 54(d).)

If Century fails to provide complete and accurate documentation, the Court may adjust the fee award accordingly. Hensley, 461 U.S. at 433; Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir. 1997) ("Litigants clearly `take their chances' that the district court will reject or reduce fee awards if they submit vague or incomplete applications.") (citing Louisiana Power, 50 F.3d at 326-27); Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) ("Absent a reliable record of the time expended on the prevailing claim, it is within the discretion of the district court to determine a reasonable number of hours that should have been expended in pursuing the claim on which the party prevailed."); Rappaport v. State Farm Lloyds, 2000 WL 769224, at *4 (N.D. Tex. June 13, 2000) (denying fees requested for a specific period after finding that the failure to segregate made it "impossible for the Court to determine the amount of time reasonably expended") (emphasis in original); Walton, 1998 WL 241257, at *2 (explaining that when a party fails to adequately segregate its fees, "the Court may reduce the fee award accordingly").

III. Conclusion

For the reasons stated above, it is hereby

ORDERED that Century shall refile its fee application in accordance with the above instructions by February 19, 2003. It is further

ORDERED that Cosco shall file its objection by February 29. 2003.

SO ORDERED.