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Wiemer v. Rubino

United States District Court, S.D. Mississippi, Southern Division

June 12, 2019




         BEFORE THE COURT is [214] Dr. Denise Rubino's Motion For Attorneys' Fees Against Dr. Robert Wiemer. Rubino seeks $445, 089 in attorneys' fees incurred in defending herself against Wiemer's claims and prosecuting her counterclaims against him. Wiemer filed a response in opposition, and Rubino has replied. After due consideration of the submissions, the Court awards Rubino $274, 075.55 in attorneys' fees.


         Weimer initiated this case as a Complaint for Permanent Restraining Order and Other Relief@ against Rubino, seeking return of items allegedly taken by Rubino when their medical practice business relationship disintegrated. Rubino brought multiple counterclaims. After finding that Wiemer had willfully failed to comply with his discovery obligations, the Court dismissed Wiemer's claims against Rubino and ordered default judgment in favor of Rubino on her counterclaims against Wiemer as a sanction under Federal Rule of Civil Procedure 37(e)(2). The Court conducted a hearing on damages, at which both parties appeared and testified.

         In its [205] Findings of Fact and Conclusions of Law, the Court found many, but not all of Rubino's counterclaims against Wiemer to be well-pled. The Court awarded compensatory damages to the extent Rubino had supported her claims with evidence, plus punitive damages and attorneys' fees and costs. (See FF & CL 30-31, ECF No. 205.) Rubino was advised to file this separate motion pursuant to Federal Rule of Civil Procedure 54(d)(2) to obtain an award for attorneys' fees. (Id. at 31.)

         Rubino sets out the numerous motions she filed and defended against during the three-year lifespan of this case, and notes that “[a] significant portion of the fees incurred in this matter resulted directly from Dr. Wiemer's abuse of the legal system.”[1] (Rubino Mot. 5, ECF No. 215.) The Court's intervention was required on multiple occasions because Wiemer did not comply with the Rules of Civil Procedure and the Court's orders. Rubino requests an attorneys' fee award of $445, 089 against Wiemer.

         Wiemer objects that Rubino did not prevail on all of her counterclaims, and therefore she may not recover fees for time spent on the unsuccessful claims. Wiemer asserts that Rubino's failure to separate out the successful claims makes it impossible for the Court to determine the lodestar, and thereby make an attorneys' fee award.


         “As always, the Court uses the lodestar method to calculate an award of fees.” Lighthouse Rescue Mission, Inc. v. City of Hattiesburg, Miss., No. 2:12-CV-184-KS-MTP, 2014 WL 4402229, at *3 (S.D.Miss. Sept. 5, 2014) (citation omitted). The lodestar is calculated by multiplying the number of hours reasonably expended on the litigation by the reasonable hourly billing rate. Id.; see Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “[T]he lodestar method yields a fee that is presumptively sufficient.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (citations omitted).

         The Court may then “adjust the lodestar up or down” to account for factors that bear on the propriety of a fee award -- the Johnson factors. Shipes v. Trinity Indus., 987 F.2d 311, 320 & n.6 (5th Cir. 1993) (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)). The “most critical” factor is “the degree of success obtained.” Abner v. Kan. City S. Ry. Co., 541 F.3d 372, 377 (5th Cir. 2008).

         “The party seeking reimbursement of attorneys' fees has the burden of establishing the number of attorney hours expended, and can meet that burden only by presenting evidence that is adequate for the court to determine what hours should be included in the reimbursement.” La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995) (cleaned up). The amount sought and the hours expended must be reasonable. Id. at 325. “The court should exclude all time that is excessive, duplicative, or inadequately documented.” Jimenez v. Wood Cty., 621 F.3d 372, 379-80 (5th Cir. 2010).

         An attorneys' fee award ruling should “explain how each of the Johnson factors affects its award” but “need not be meticulously detailed to survive appellate review.” In re High Sulfur Content Gasoline Prod. Liab. Litig., 517 F.3d 220, 228 (5th Cir. 2008); see Blanchard v. Bergeron, 893 F.2d 87, 89 (5th Cir. 1990) (“[W]e will not require the trial court's findings to be so excruciatingly explicit in this area of minutiae that decisions on fee awards consume more judicial paper than did the cases from which they arose.”). As the Supreme Court has explained, “trial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).

         A. The Lodestar

         1) ...

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