Opinion
CIVIL ACTION NO: 03-1099, SECTION: "J" (4)
October 9, 2003
ORDER AND REASONS
On July 7, 2003, the plaintiffs, Palmisano Properties, Ltd., et al., filed a Motion to Compel Pursuant to Federal Civil Procedure Rule 37 ( doc. #8) seeking an order compelling the defendants to respond to plaintiffs' Interrogatories and Request for Production of Documents propounded by plaintiffs on March 25, 2003. The plaintiffs also sought to recover fees and expenses incurred in filing the motion. A hearing on the motion was scheduled for July 23, 2003.
The defendants did not file a memorandum in opposition to the motion to compel, nor did they request an extension of time within which to oppose the motion. Therefore, the Court granted the motion to the extent that plaintiffs sought to obtain discovery responses from the defendants. However, the Court continued the motion to the extent that the plaintiffs sought to recover attorney's fees and costs incurred in filing the motion. The Court ordered the plaintiffs to submit the documentation required by Local Rule 54.2 to the chambers of the undersigned no later than August 29, 2003.
Rec. Doc. No. 13.
Id.
In response to the Court's order, on August 29, 2003, the plaintiffs filed a Motion and Order for Attorney Fees (doc. #18). The plaintiff sought to recover fees and expenses charged by their attorney in the amount of $551.65 for 4.3 hours of work at an hourly billing rate of $125.00. Upon review of the information submitted by the plaintiffs, however, the Court found that the plaintiffs failed to submit sufficient information for the Court to make a determination of the "reasonable hourly rate." Thereafter, the Court ordered the plaintiffs to provide the Court with (1) an affidavit attesting to counsel's education, background, skills and experience and (2) sufficient evidence of rates charged in similar cases by other local attorneys with similar experience, skill and reputation no later than September 1 7, 2003. However, the plaintiffs failed to comply with the Court's order.
The 4.3 hours spent on preparing the motion, at 5125.00 per hour, equals $537.50. The plaintiffs also sought to recover $14.15 for reproduction and postage, which totals S551.65.
Rec. Doc. No. 19.
It is the applicant's burden to establish the reasonableness of the number of hours expended. Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990). In this respect, Local Rule 54.2 provides that all parties who apply to this Court for attorney's fees shall submit contemporaneous billing records, reflecting the date, time involved, and nature of the services performed. See Local Rule 54.2 (emphasis added). The plaintiffs have submitted the billing records in connection with the motion to compel reflecting the date, time involved, and nature of the services performed. However, the plaintiffs have failed to submit (1) an affidavit attesting to counsel's education, background, skills and experience and (2) sufficient evidence of rates charged in similar cases by other local attorneys with similar experience, skill and reputation, without which, the Court is unable to substantiate the rate charged for the services performed.
Once the number of hours reasonably expended have been established, the Court must then determine a reasonable hourly rate for each of the participating attorneys. Tollett v City of Kemah, 285 F.3d 357, 367-69 (5th Cir. 2002); Stein v Foamex International, Inc., 204 F.R.D. 270, 271-72 (E.D. Perm. 2001); see Ray v University of Tulsa, 283 B.R. 70, 78 (N.D. Okla. 2002). A reasonable hourly rate is defined as the prevailing market rate, in the relevant legal community, for similar services by attorneys of reasonably comparable skill, experience and reputation. Tollett, 285 F.3d at 368-69; Stein, 204 F.R.D. at 270. It is the applicant's burden to produce "satisfactory evidence" that the requested rate is in line with the prevailing market. Tollett, 285 F.3d at 368-69.
"Satisfactory evidence" of the reasonableness of the rate necessarily includes an affidavit from each attorney performing the work, detailing his background, experience, and usual billing rate. Id (emphasis added). Satisfactory evidence must speak to the rates actually billed and paid in similar lawsuits. Id. Thus, in addition to the attorney's own affidavit, the applicant must also introduce evidence of the rates charged in similar cases by other attorneys in the same legal community, who possess similar experience, skill and reputation. Id.; see Wheeler v. Mental Health Mental Retardation Auth., 752 F.2d 1063, 1073 (5th Cir.), cert. denied, 474 U.S. 824 (1985) (fee applicant has 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 of reasonably comparable skill, experience, and reputation") (quoting Blum v. Stenson, 465 U.S. 886, 896, n. 11 (1984)).
The Motion for Attorney's Fees submitted by the plaintiffs does not support an award of fees in this matter. Even after the Court ordered the plaintiffs to submit the additional information required by Rule 54.2, the plaintiffs have not or cannot provide the Court with "satisfactory evidence" that the requested rate is in line with the prevailing market. Therefore, the plaintiffs are not entitled to recover fees and expenses charged by their attorney in the amount of $551.65 for 4.3 hours of work at an hourly billing rate of $125.00 because the application for fees is insufficient to support an award in this matter.
Accordingly,
IT IS ORDERED that the Motion to Compel Pursuant to Federal Civil Procedure Rule 37 ( doc.#8) is DENIED as MOOT to the extent that the plaintiffs sought to recover fees and expenses incurred in filing the motion.
IT IS FURTHER ORDERED that the Motion and Order for Attorney Fees (doc. #18) is DENIED.