United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING IN PART DR. DENISE RUBINO'S MOTION
FOR ATTORNEYS' FEES AND COSTS AGAINST NATHAN
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is  Dr. Denise Rubino's Motion For
Attorneys' Fees And Costs Against Nathan Prescott, Esq.
Rubino seeks $48, 848.85 in attorneys' fees and costs
incurred after Prescott filed a meritless motion to
reconsider on Wiemer's behalf. Rubino's Motion has
been fully briefed, and after due consideration of the
parties' submissions, the Court awards Rubino $6656.00 in
attorneys' fees and $238.50 in costs.
filed this Motion after the Court granted her motion for Rule
11 sanctions against Prescott and awarded her reasonable
attorneys' fees and costs incurred “for preparing
the Rule 11 motion, the reply in support of the Rule 11
motion, and the opposition to the motion to
reconsider.” (Order Granting Mot. for Sanctions 7, ECF
No. 207.) “District courts have considerable discretion
to determine the appropriate sanction for litigants who
violate Rule 11.” M2 Tech., Inc. v. M2 Software,
Inc., 748 Fed.Appx. 588, 590-91 (5th Cir. 2018),
cert. denied sub nom. King Law Grp., PLLC v. M2 Tech.,
Inc., 139 S.Ct. 1273 (2019). The district court's
calculation of attorneys' fees and expenses is reviewed
for clear error. Id. The Supreme Court has made
clear that the party seeking sanctions “may recover
‘only the portion of his fees that he would not have
paid “but for” the
misconduct.'” Goodyear Tire & Rubber Co. v.
Haeger, 137 S.Ct. 1178, 1186-87 & n.5 (2017)
(emphasis added) (quoting Fox v. Vice, 563 U.S. 826,
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).
Court adopts the hourly rates it has found reasonable for the
involved attorneys and paralegal in its contemporaneous order
granting Rubino's motion for attorneys' fees against
Wiemer. After review of the attached invoices, however, the
Court finds the number of hours requires adjustment.
the forty-four hours claimed by the Tremblay law firm will be
excluded from the lodestar calculation. The Tremblay invoices
contain entries for work on issues that appear to be
unrelated to the Rule 11 motion or the reconsideration
motion. When the entries do appear related, they generally
concern review of work and communications by the lead
attorney, Michael Held of the Phelps Dunbar firm. The hours
expended by the Tremblay firm are not reimbursable because
they are excessive and duplicative for purposes of the
the Phelps Dunbar firm claims a total of 108.1 attorney hours
and 20.3 paralegal hours for work on the Rule 11 motion and
response to the motion for reconsideration, resulting in fees
of $25, 300.50. This number of hours seems excessive given
the status of the case at that point. Wiemer's failure to
cooperate with his discovery obligations had been brought to
the Court's attention a number of times. What was missing
was evidence that this failure was deliberate, rather than
inadvertent as Wiemer claimed in his reconsideration motion.
Once Rubino obtained copies of Wiemer's communications
with his former counsel, she had the evidence necessary to
show that the motion to reconsider was meritless and that
Prescott had engaged in sanctionable conduct by pursuing it.
The communication records were voluminous, and review of them
was only necessary because Prescott filed the motion to
reconsider. But the legal issues were neither novel nor
difficult, and it appears to the Court that the case was
overstaffed, particularly to the extent that the Tremblay
firm was involved. Excluding entries that include or consist
of tasks involving the Tremblay firm results in total
attorney hours of 80.9, of which 66.8 are attributed to
Michael Held and 14.1 are attributed to Christine Whitman.
reduction of this time is appropriate. Rubino's response
to the motion for reconsideration focused on the
contradictions between Wiemer's assertions in the motion
to reconsider and the communication records; there is very
little law cited. Rubino's Rule 11 motion is based on
these same contradictions, plus Prescott's failure to
withdraw the motion for reconsideration when the
contradictions were brought to his attention. Recounting and
documenting the course of events was surely a tedious
exercise, but eighty hours of attorney time to arrive at the
filed briefs is excessive - even accounting for the
difficulty Rubino experienced obtaining the communication
records in the first instance. See, e.g., Worrell v.
Hous. CanA Acad., 287 Fed.Appx. 320, 327 (5th Cir. 2008)
(approving as reasonable twelve hours for “making
numerous telephone calls, writing several letters, and
drafting a motion to dismiss, a motion for sanctions, and
accompanying briefing”); Turner v. Aurora Australis
Lodge, No. 1:13cv1-SA-DAS, 2014 WL 5422170, at *2 (N.D.
Miss. Oct. 22, 2014) (hours reduced from 34.6 to 9.5 for
response to motion to dismiss, motion for sanctions, and
reply to motion for sanctions). Additionally, the Court finds
no evidence that Phelps Dunbar exercised billing judgment.
“Billing judgment requires documentation of the hours
charged and of the hours written off as unproductive,
excessive, or redundant.” Saizan v. Delta Concrete
Prod. Co., 448 F.3d 795, 799 (5th Cir. 2006).
of these reasons, the Court will reduce the compensable
attorney hours to twenty-five; twenty of those hours at
Held's billing rate of $210 per hour and five hours at
Whitman's billing rate of $200 per hour. The Court also
reduces paralegal hours to 11.2, which excludes time entries
that either cannot be tied to the reconsideration or Rule 11
issues (such as those concerning Wiemer's tax returns and
business records); are vague; or concern communication with
the Tremblay firm. The lodestar calculations are $4200 for
Held, $1000 for Whitman, and $1456 for paralegal Safaya. None
of the Johnson factors require further adjustment of the
lodestar amounts. Prescott will therefore be required to pay
reasonable attorneys' fees of $6656.00.
seeks $3748.35 in costs, consisting entirely of printing and
copying costs between January 2018 and August 2018. In
support, Rubino provides Michael Held's declaration that
these costs were “incurred as a direct result of
opposing Dr. Wiemer's Motion to Reconsider [Doc. 182],
and preparing Dr. Rubino's Rule 11 Motion [Doc. 186 and
187] and the Reply in Support of the Rule 11 Motion [Doc.
192].” (Held Aff. 1, ECF No. 209-1.) Held further
states that the “costs are reasonable, based on charges
in other cases which I have handled, and were
necessary.” (Id.) Rubino also provided a
spreadsheet of all of Phelps Dunbar's costs for the
period between January and August 2018. (Rubino Mot. Atty
Fees & Costs Against Prescott, Ex. A-2, ECF No. ...