Preview
Filed: 9/21/2018 6:07 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 27724954
By: Shailja Dixit
9/24/2018 8:31 AM
NO. 17-CV-1242
BLANCHARD REFINING COMPANY § IN THE DISTRICT COURT
LLC and MARATHON PETROLEUM §
COMPANY LP §
§ 212TH DISTRICT COURT
V. §
§
INDUSTRIAL SPECIALISTS, LLC § GALVESTON COUNTY, TEXAS
DEFENDANT’S POST-HEARING BRIEF REGARDING PLAINTIFFS’
MOTION FOR ATTORNEYS’ FEES AND COSTS
TO THE HONORABLE DISTRICT JUDGE GRADY:
Defendant Industrial Specialists, LLC (“Defendant” or ISI”) files this Post-Hearing Brief
Regarding Plaintiffs’ Motion for Attorneys’ Fees and Costs. Arguments and authorities presented
herein demonstrate that a reduction in the amount of attorneys’ fees and costs is warranted as a
matter of law. In support, ISI would show the Court as follows:
I. Plaintiffs Seek Attorneys’ Fees That Go Beyond What Is Permitted by Rule 91a.7.
Rule 91a.7 provides:
. . . [T]he court must award the prevailing party on the motion all costs and
reasonable and necessary attorney fees incurred with respect to the challenged
cause of action in the trial court. The court must consider evidence regarding costs
and fees in determining the award.
TEX. R. CIV. P. 91a.7. The comment to the Rule provides, “attorney fees awarded under 91a.7 are
limited to those associated with the challenged cause of action, including fees for preparing or
responding to the motion to dismiss.” TEX. R. CIV. P. 91a, cmt. -- 2013. While the award of
attorneys’ fees to the prevailing party is mandatory, the trial court has discretion to award the
amount of attorneys’ it determines are “reasonable and necessary” for that party’s defense against
DEFENDANT’S POST-HEARING BRIEF Page 1
a Rule 91a motion to dismiss. See TEX. R. CIV. P. 91a.7; Cypress Creek EMS v. Dolcefino, 548
S.W.3d 673, 691 (Tex. App.—Houston [1st Dist.] 2018 no pet.); Bocquet v. Herring, 972 S.W.2d
19, 21 (Tex. 1998).
Plaintiffs seek fees that were not incurred in responding to Defendant’s motion and are
outside what is contemplated by Rule 91a.7. For instance, Plaintiffs seek attorneys’ fees for
drafting their own Motion for Partial Summary Judgment, preparing Interrogatories and Requests
for Production, and reviewing and responding to a Motion for Protection. Plaintiffs argue that they
are entitled to such fees because they were incurred with respect to “the challenged cause of action”
namely, their claims for breach of contract and declaratory judgment.
Plaintiffs’ construction of Rule 91a.7 is not supported by any rule, case, secondary source
or learned treatise. From the record, it is evident that the bulk of the attorney’s fees requested are
unrelated to defending the motion to dismiss. Pursuant to Texas Rule of Civil Procedure 91a.7,
attorney’s fees should not be granted for legal activities unrelated to prosecuting or defending a
motion to dismiss under this rule.
“Attorney fees awarded under 91a.7 are limited to those associated with challenged cause
of action, including fees for preparing or responding to the motion to dismiss.” Weizhong Zheng
v. Vacation Network Inc., 468 S.W.3d 180, 188 (Tex. App. – Houston 2015) (quoting comment to
Rule 91a and stating that party seeking attorney’s fees must segregate reasonable and necessary
fees incurred to obtain dismissal of challenged claim or demonstrate why segregation is not
required). In Cypress Creek EMS v. Dolcefino, the trial awarded Cypress Creek EMS, the party
that prevailed on a Rule 91a Motion to Dismiss, $850.00 even though Cypress creek EMS sought
a total of $23,897.50 in attorneys’ fees. 548 S.W.3d at 691. In challenging Cypress Creek EMS’s
attorneys’ fees evidence, Dolcefino identified several billing entries where, like Plaintiffs in the
DEFENDANT’S POST-HEARING BRIEF Page 2
case at bar, sought recovery of fees and submitted billing entries and for work not necessary to
prevail on the Rule 91a Motion to Dismiss, such as responding to Dolcefino’s Motion for Summary
Judgment and Dolcefino’s Motions for Sanctions. Id. at 692. The Court of Appeals held the trial
court did not abuse its discretion in reducing the attorneys’ fees award to $850.00 because the trial
court could have properly considered the entire record, including Dolcefino’s response that
Cypress Creek EMS included fees incurred for work not necessary to prevail on the Rule 91a
motion and that counsel billed at higher-than-necessary rates. Id. at 693.
Finally, Plaintiffs’ reliance on Weizhong Zheng is misplaced. 468 S.W.3d 180 (Tex. App.
– Houston 2015, pet. denied). In Weizhong Zheng, the appellees argued that the provision in Rule
91a.7 stating, “the court must award the prevailing party on the motion all costs and reasonable
and necessary attorney fees incurred with respect to the challenged cause of action in the trial
court” meant any attorneys’ fees outside the trial court (e.g., on appeal) were not recoverable. Id.
at 187-88. The Court of Appeals disagreed. However, and notably, the Court of Appeals also held
“the prevailing party is limited to recovering the fees and costs associated with the cause of action
that was challenged at the trial court level—in the motion to dismiss.” (emphasis added). Id. at
188. Plaintiffs’ contention that attorneys’ fees are recoverable for work performed outside
opposing Defendant’s Rule 91a Motion is inconsistent with Rule 91a.7 and Weizhong Zheng. As
such, Plaintiffs’ are not entitled to attorneys’ fees for work performed that was unrelated to
responding to Defendant’s Rule 91a Motion.
II. In Awarding Reasonable and Necessary Attorneys’ Fees, The Trial Court Has
Discretion to Reduce Attorneys’ Fees Sought By Plaintiffs.
The amount of attorney’s fees is a question of fact. Houston Lighting & Power Co. v. Russo
Props., Inc., 710 S.W.2d 711, 716 (Tex. App. - Houston [1st Dist.], no writ). A “trial court is not
DEFENDANT’S POST-HEARING BRIEF Page 3
bound by even uncontroverted attorneys’ fees evidence[.]” Hall v. Hubco, Inc., 292 S.W.3d 22, 33
(Tex. App. - Houston [14th Dist.] 2006, pet. denied). “[A] trial court should obtain sufficient
information to make a meaningful evaluation of the application for attorney’s fees. Charges for
duplicative, excessive, or inadequately documented work should be excluded.” El Apple I, Ltd. v.
Olivas, 370 S.W.3d 757, 762 (Tex. 2012). “A meaningful review of the hours claimed is
particularly important because the usual incentive to charge only reasonable attorney’s fees is
absent when fees are paid by the opposing party.” Id.
A. The Court Should Reduce Plaintiffs’ Attorneys’ Fee Request by 15% for
Disfavored Block Billing.
Courts have defined block billing as “the time-keeping method by which each lawyer and
legal assistant enters the total daily time spent working on a case, rather than itemizing the time
expended on specific tasks.” See Fralick v. Plumbers & Pipefitters Nat'l Pension Fund, No. 3:09-
CV-0752-D, 2011 WL 487754, at *4 (N.D. Tex. Feb. 11, 2011); see also Bramlett v. Med.
Protective Co. of Fort Wayne, Indiana, et al., No. 3:09-CV-1596-D, 2010 WL 3294248, at *3
(N.D. Tex. Aug. 20, 2010) (defining block billing as “describing multiple activities in one time
entry.”).
Texas courts “disfavor the practice of block billing because it impairs the required
reasonableness evaluation. When time records are block billed, the court cannot accurately
determine the number of hours spent on any particular task, and the court is thus hindered in
determining whether the hours billed are reasonable.” Barrow v. Greenville Indep. Sch. Dist., 2005
WL 6789456, at *4 (N.D. Tex. Dec. 20, 2005) (collecting cases). Because block billing impairs
the required reasonableness evaluation, it is appropriate for a court reviewing block-billed time
entries to perform a percentage reduction up to 30%. Id. at *5. See also Lahiri v. Universal
DEFENDANT’S POST-HEARING BRIEF Page 4
Music & Video Distrib. Corp., 606 F.3d 1216, 1222 (9th Cir. 2010) (holding district court’s 30%
reduction for block billing was not abuse of discretion), Merrick v. Scott, No. 3:10-CV-2172-D,
2011 WL 1938188, at *4-9 (N.D. Tex. May 20, 2011) (reducing hours by 20% due to block
billing), Bramlett, 2010 WL 3294248 at *4 (collecting cases and ultimately applying 25%
reduction due to block billing). In the case at bar, Defendant submits a reduction of 15% for block
billing is reasonable and appropriate.
B. The Court Should Reduce Plaintiffs’ Attorneys’ Fee Request by 20% for Failing
to Exercise “Billing Judgment.”
Like block billing, failing to exercise “billing judgment” merits a reduction in
attorneys’ fees. Billing judgment has been defined as “the usual practice of law firms in writing
off unproductive, excessive, or redundant hours.” Walker v. U.S. Dept. of Housing and Urban
Development, 99 F.3d 761, 769 (5th Cir. 1996). The applicant for attorneys’ fees bears the burden
of establishing that its counsel exercised billing judgment. Saizan v. Delta Concrete Products Co.,
Inc., 448 F.3d 795, 799 (5th Cir. 2006). The proper remedy for omitting evidence of billing
judgment is percentage reduction. Id.
In Hopwood v. State of Texas, the Fifth Circuit upheld the district court’s 25% reduction
based on the inadequacy of the time entries, duplicative work product, and lack of billing judgment
of counsels’ submitted fees. 236 F.3d 256, 279 (5th Cir. 2000). See also Saizan, 448 F.3d at 800
(affirming a trial court’s reduction of 10% for “vagueness, duplicative work, and not indicating
time written off as excessive or unproductive”), Walker, 99 F.3d at 770 (reducing fees by 15% to
account for lack of billing judgment). Courts have reduced fees up to 50% for billing judgment in
light of factors such as nature and extent of the work involved, the issues involved, and the
complexity of the work. See e.g. Peak Tech. Servs., Inc. v. Land & Sea Eng'g, LLC, No. H–10–
DEFENDANT’S POST-HEARING BRIEF Page 5
1568, 2012 WL 3234203, at *8 (S.D. Tex. Aug. 6, 2012), Preston Expl. Co., LP v. GSP, L.L.C.,
No. H-08-3341, 2013 WL 3229678, at *9 (S.D. Tex. June 25, 2013) (employing 50% and 20%
reductions in hours, respectively).
C. The Court should reduce the fees by 50% for failure to segregate fees.
The Texas Supreme Court has held that if attorneys’ fees relate solely to a claim for which
such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees. Tony
Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006). A fee claimant bears the
burden to segregate. Id. at 311; Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991).
Where a party fails to segregate its attorneys’ fees in a fee application between claims where they
may and may not be entitled to recover fees, they may recover no attorneys’ fees. Green Int’l, Inc.
v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (failure to segregate recoverable fees from
unrecoverable fees can result in the recovery of zero attorney’s fees) (emphasis added).
Further, the Texas Supreme Court in Tony Gullo Motors rejected the argument “that a
common set of underlying facts necessarily made all claims arising therefrom ‘inseparable’ and
all legal fees recoverable.” 212 S.W.3d at 313. “Intertwined facts” alone do not make fees for
unrecoverable claims recoverable. Id. at 313-14. “[I]t is only when discrete legal services advance
both a recoverable and unrecoverable claim that they are so intertwined that they need not be
segregated.” Id. Thus, “[i]f any attorney’s fees relate solely to a claim for which such fees are
unrecoverable, the claimant must segregate recoverable from unrecoverable fees.” 7979 Airport
Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 506 (Tex. App.-Houston [14th
Dist.] 2007, pet. denied) (citing Chapa, 212 S.W.3d at 313-14).
Plaintiffs have failed to meet their burden for recovery of attorneys’ fees by segregating
attorney’s fees between claims for which fees are recoverable and claims for which they are not,
DEFENDANT’S POST-HEARING BRIEF Page 6
or presenting evidence that the fees did not need to be segregated. See A.G. Edwards & Sons Inc.
v. Beyer, 235 S.W.3d 704, 710 (Tex. 2007); Tony Gullo Motors, 212 S.W.3d at 312-314
(intertwined facts do not make unrecoverable fees recoverable); In the Interest of B.N.L.-B., 375
S.W.3d 557, 567 (Tex. App.-- Dallas 2012, no pet.). In the case at bar, Plaintiffs were required to
segregate fees incurred opposing Defendants Rule 91a motion form other work performed. See
Cypress Creek EMS v. Dolcefino, 548 S.W.3d at 693. Because Plaintiffs failed to segregate
recoverable from unrecoverable fees, Plaintiffs have similarly failed to meet their burden that all
attorneys’ fees sought are reasonable and necessary. Accordingly, Defendants respectfully submit
a 50% reduction is warranted.
CONCLUSION
Defendant respectfully contends that Plaintiffs’ request for fees and costs is not reasonable or
necessary. Plaintiffs’ block billing, failure to segregate recoverable fees from non-recoverable
fees, and failure to demonstrate billing judgment warrants the court exercising its discretion to
make appropriate percentage reductions.
DEFENDANT’S POST-HEARING BRIEF Page 7
Respectfully submitted,
HOLDEN & MONTEJANO
JACQUELINE MONTEJANO
State Bar No. 24027402
JacquelineMontejano@HoldenLitigation.com
STEVEN SHATTUCK
State Bar No. 18133700
SteveShattuck@HoldenLitigation.com
1717 Main Street, Suite 5800
Dallas, Texas 75201
Telephone (214) 745-8888
Facsimile (918) 295-8889
ATTORNEYS FOR DEFENDANT
INDUSTRIAL SPECIALISTS, LLC
CERTIFICATE OF SERVICE
I hereby certify that on this the 21st day of September 2018, a true and correct copy of the
above and foregoing instrument was forwarded to all counsel of record in accordance with Tex. R.
Civ. P. 21 and 21a.
Joel Z. Montgomery
Jonathan B. Smith
Z. Alex Ramirez
Shipley Snell Montgomery
712 Main Street, Suite 1400
Houston, Texas 77002
JACQUELINE MONTEJANO
DEFENDANT’S POST-HEARING BRIEF Page 8
Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005)
2005 WL 6789456
to GISD's bill of costs and awards costs to GISD of
$14,492.65.
KeyCite Yellow Flag - Negative Treatment
Distinguished by Pursuant Group, Inc. v. Capps, N.D.Tex., November
18, 2013
2005 WL 6789456 I
Only the Westlaw citation is currently available.
United States District Court, The court assumes the parties' familiarity with its prior
N.D. Texas, opinions in this case. In its most recent decision, Barrow v.
Dallas Division. Greenville Independent School District, 2005 WL 1867292
(N.D.Tex. Aug.5, 2005) (Fitzwater, J.) (“Barrow VI” ), the
Karen Jo BARROW, Plaintiff, court established a procedure for Barrow to submit, and
v. for Dr. Smith to oppose, an application for attorney's fees
GREENVILLE INDEPENDENT under 42 U.S.C. § 1988. 1
SCHOOL DISTRICT, et al., Defendants.
Barrow seeks an award of attorney's fees and expenses
Civil Action No. 3:00–CV–0913–D. totaling $2,093,521.91, which consists of $1,989,360.50 in
|
attorney's fees and $104,161.41 in expenses. 2 She requests
Dec. 20, 2005.
an attorney's fees award for work performed by four
Attorneys and Law Firms attorneys: Wm. Charles Bundren, Esquire (“Bundren”);
Kelly J. Shackelford, Esquire (“Shackelford”); Hiram S.
WM Charles Bundren, WM Charles Bundren & Sasser III, Esquire (“Sasser”); and Jonathan M. Saenz,
Associates, Frisco, TX, Kelly J. Shackelford, Liberty Esquire (“Saenz”). Bundren is Barrow's lead counsel in the
Legal Institute, Plano, TX, for Plaintiff. case. Bundren practices law with Wm. Charles Bundren
& Associates, P.C. (“WCBA”). Shackelford is the founder
Dennis J. Eichelbaum, Schwartz & Eichelbaum Wardell and Chief Counsel of Liberty Legal Institute (“Liberty”),
Mehl & Hansen PC, Plano, TX, Cobby A. Caputo, a civil liberties education and legal defense organization
Bickerstaff Heath Delgado Acosta LLP, Austin, TX, specializing in religious freedom cases. Sasser is Liberty's
Thomas P. Brandt, Fanning Harper Martinson Brandt & Director of Litigation, and Saenz is a Liberty Staff
Kutchin PC, Dallas, TX, for Defendants. Attorney. Dr. Smith opposes Barrow's fee application on
several grounds, asserting that the court should reject the
request in its entirety or, alternatively, should award a
MEMORANDUM OPINION AND ORDER substantially reduced amount.
SIDNEY A. FITZWATER, District Judge. Barrow requests compensation for Bundren's services
based on 3,703.85 hours at the hourly rate of $450,
*1 In this action by plaintiff Karen Jo Barrow
totaling $1,666,732.50. For Shackelford's work, Barrow
(“Barrow”) against defendants Greenville Independent
requests compensation based on WCBA's time records for
School District (“GISD”) and Dr. Herman Smith
320.1 hours at $400 per hour and based on Shackelford's
(“Dr.Smith”), the court addresses the remaining post
separate time records for 248.2 hours at the same hourly
judgment matters that require a decision: Barrow's
rate, for 568.3 hours totaling $227,320. Barrow seeks fees
application for attorney's fees from Dr. Smith, the
for 220.6 hours at $205.00 per hour for Sasser's services,
deferred portion of her motion to alter or amend the
totaling $45,223.00. Finally, she requests compensation
judgment, and her objections to GISD's bill of costs.
for 286.2 hours at $175.00 per hour for Saenz's services,
For the reasons that follow, the court awards Barrow
totaling $50,085.00.
attorney's fees in the sum of $631,293.00, and $22,775.22
in expenses and taxable costs of court; it grants her motion
To support the fee application, Barrow has submitted four
to alter or amend the judgment to the extent of awarding
sets of billing records. First, she has proffered WCBA's
her expenses and taxable costs against Dr. Smith; and
records, which include all of Bundren's time entries. They
it sustains in part and overrules in part her objections
also include Shackelford's time entries prior to June 23,
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1
Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005)
2005 WL 6789456
2004, although Shackelford was associated with Liberty, that would render such an award unjust, a prevailing
not with WCBA, throughout the history of the case. 3 plaintiff should be awarded § 1988 fees ‘as a matter of
Second, Barrow has submitted Shackelford's separate course.’ ” Id. (quoting Espino v. Besteiro, 708 F.2d 1002,
time sheets for his work on and after June 23, 2004. Third 1005 (5th Cir.1983)).
and fourth, she has submitted separate time records for
Sasser and Saenz, respectively. To calculate the amount of a reasonable attorney's fee,
the court begins by “determin[ing] the compensable hours
*2 Also pending before the court is the deferred portion from the attorneys' time records, including only hours
of Barrow's April 11, 2005 post-trial motion to alter or reasonably spent.” Shipes v. Trinity Indus., 987 F.2d 311,
amend the judgment. In a memorandum opinion and 319 (5th Cir.1993). The court may reduce the number
order filed in conjunction with entering the judgment of compensable hours “[w]here the documentation of
in this case, the court explained that, with respect to hours is inadequate.” Hensley v. Eckerhart, 461 U.S. 424,
Barrow's action against Dr. Smith, the judgment provided 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The court
that Barrow would bear her own taxable costs of court, also excludes any hours that it determines “are excessive,
subject to the court's amending the judgment in response redundant, or otherwise unnecessary.” Id. at 434. The
to a timely filed post judgment motion. See Barrow v. court next “must select an appropriate hourly rate based
Greenville Indep. Sch. Dist., No. 3:00–CV–0913, slip op. on prevailing community standards for attorneys of
at 1–2 (N.D.Tex. Mar. 25, 2005) (Fitzwater, J .). Barrow similar experience in similar cases.” Shipes, 987 F.2d at
challenged this part of the judgment in her motion to alter 319. “The number of compensable hours is then multiplied
or amend judgment. In Barrow VI the court denied the by the selected hourly rate to produce the ‘lodestar’
motion except to the extent it deferred a final decision due amount.” Id.; see also Rutherford v. Harris County, Tex.,
to the outstanding issue of Barrow's recovery of attorney's 197 F.3d 173, 192 (5th Cir.1999) (citing League of United
fees and costs. See Barrow VI, 2005 WL 1867292, at *32. Latin Am. Citizens # 4552 v. Roscoe Indep. Sch. Dist.,
The court addresses today whether the judgment should 119 F.3d 1228, 1232 (5th Cir.1997) (“LULAC” )). The
be altered or amended to assess Barrow's expenses and fee applicant bears the burden to substantiate both the
taxable costs of court against Dr. Smith. requested hours and the hourly rate. Hensley, 461 U.S. at
437. After calculating the lodestar amount, the court must
The judgment awarded GISD its taxable costs of court then determine whether the lodestar should be adjusted
against Barrow, and the clerk of court taxed GISD's costs based on the factors listed in Johnson v. Georgia Highway
in the sum of $19,741.13. On April 13, 2005 Barrow filed Express, Inc., 488 F.2d 714 (5th Cir.1974). Shipes, 987
objections to GISD's bill of costs. In Barrow VI the court F.2d at 320.
deferred its decision on her objections. Id. The court also
resolves Barrow's objections in this opinion.
III
*3 Relying on the materials he submitted to Judge
II
Sanders as part of a pretrial attorney's fees alternative
The court turns first to Barrow's first amended attorney's dispute resolution (“ADR”) procedure 5 and Judge
fees application. Barrow is entitled under the judgment to Sanders' report, Dr. Smith contends that Barrow is not
recover from Dr. Smith actual and punitive damages and entitled to recover any attorney's fees, expenses, or costs,
prejudgment interest totaling $38,422.44 on her parental and he requests that the court adopt Judge Sanders'
rights claim under 42 U.S.C. § 1983. 4 In a § 1983 case, “the conclusion that the evidence is insufficient to sustain an
court, in its discretion, may allow the prevailing party, award of expenses or costs. The court will not deny
other than the United States, a reasonable attorney's fee Barrow's fee application on this basis.
as part of the costs[.]” 42 U.S.C. § 1988(b). Although §
1988 uses the word “may,” the court's discretion to deny Although the court's decision today reaches conclusions
attorney's fees to a prevailing party is extremely narrow. that are in some respects similar to those found in Judge
See Scham v. Dist. Courts Trying Criminal Cases, 148 F.3d Sanders' report, Judge Sanders issued his findings as
554, 557 (5th Cir.1998). “Absent special circumstances part of a non-binding ADR procedure. 6 The court must
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 2
Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005)
2005 WL 6789456
independently perform its obligation to decide Barrow's February 16, 2005 Shackelford did not uniformly block
fee application. “Absent special circumstances that would bill, although some entries continue to group several tasks
render such an award unjust, a prevailing plaintiff should together. Sasser's and Saenz's time entries do not appear
be awarded § 1988 fees ‘as a matter of course.’ ” Scham, to be block billed.
148 F.3d at 557 (quoting Espino, 708 F.2d at 1005).
Although the court concludes that Barrow's fee request *4 Courts disfavor the practice of block billing
must be substantially reduced, it also finds that there are because it impairs the required reasonableness evaluation.
no special circumstances that support completely denying When time records are block billed, the court cannot
her an award of attorney's fees. accurately determine the number of hours spent on
any particular task, and the court is thus hindered in
determining whether the hours billed are reasonable.
See Trulock v. Hotel Victorville, 92 Fed. Appx. 433,
IV
434 (9th Cir.2004) (unpublished mem.) (“[B]lock billing
Dr. Smith maintains on several grounds that Barrow's creates some impediments to the analysis of attorney
fee request should be rejected in its entirety or drastically fee bills....”); Gratz v. Bollinger, 353 F.Supp.2d 929, 939
reduced. He contends that Barrow has failed to meet her (E.D.Mich.2005) (“As a result of such ‘block billing,’
burden of proof because no reasonable client would accept the Court is not able to determine the number of
her counsels' records due to the use of block billing. Dr. hours expended on each discrete task. Thus the Court
Smith also posits that Bundren's available time records cannot determine whether the number of hours billed
are facially unreliable because the computerized records are reasonable.”); Aiello v. Town of Brookhaven, 2005
have been massively altered and Bundren claims to have WL 1397202, at *3 (E.D.N.Y. June 13, 2005) (“[B]lock
worked an inhuman number of hours. billing would impede the Court's ability to ascertain the
nature of the work performed.”); Hells Canyon Pres.
Council v. U.S. Forest Serv., 2005 U.S. Dist. LEXIS 15311,
at *10 (D.Ore. Mar. 7, 2005) (Block billing “prohibit[s]
A a thorough reasonableness determination.”); Sea Spray
Holdings, Ltd. v. Pali Fin. Group, Inc., 277 F.Supp.2d 323,
The court turns initially to Dr. Smith's objection to
326 (S.D.N.Y.2003) (“[T]he substantial amount of block
Barrow's counsels' use of block billing. Dr. Smith argues
billing in the fee requests renders it difficult to determine
that block billing is not a normal business practice in
whether, and/or the extent to which, the work done
this community and that it is prohibited by law, learned
by Buyers's attorneys is duplicative or unnecessary.”).
treatises, and responsible clients. He maintains on this
The Tenth Circuit, for example, strongly discourages the
basis that the court should reject Barrow's fee application
practice of block billing.
in its entirety or, alternatively, reduce the number of hours
by 75% to 85%. The use of billing practices
that camouflage the work a
“The term ‘block billing’ refers to ‘the time-keeping lawyer does naturally and quite
method by which each lawyer and legal assistant enters correctly raise suspicions about
the total daily time spent working on a case, rather than whether all the work claimed was
itemizing the time expended on specific tasks.’ ” Robinson actually accomplished or whether
v. City of Edmond, 160 F.3d 1275, 1284 n. 9 (10th Cir.1998) it was necessary. This concern is
(quoting Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., particularly important in a situation
82 F.3d 1533, 1554 n. 15 (10th Cir.1996)). All of Bundren's where a party is seeking to have his
time entries before May 1, 2004 are block billed. On May opponent pay for his own lawyer's
1, 2004 Bundren began using a different entry for each task work.
rather than for each day, and he continued this practice
through the end of the fee application period. 7 All of Robinson, 160 F.3d at 1284.
Shackelford's time entries prior to February 16, 2005–
including those contained in the WCBA billing records An example from Bundren's time records demonstrates
and in his separate records-are block billed. On and after the difficulty his block-billing practice creates for the
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 3
Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005)
2005 WL 6789456
court. On September 5, 2001 Bundren billed 8.0 hours. to the Court; preparation of draft of Plaintiff's proposed
Rather than separate his work into more discrete entries insert (alternative) to Defendants' proposed language in
or categories, he combined all his tasks into the following Joint Status Report.
single entry (the description is so long that it spills over
into a second entry): P.App. 545. Because of the block billing, the court cannot
accurately determine how much of the 8.0 hours Bundren
Receipt and review of correspondence from Tom devoted to any particular task, or even to a category
Brandt, Esq. regarding defendant's “latest version” of tasks, within the day. Although the example the
of proposed Joint Status Report on settlement court cites is particularly problematic, there are several
negotiations and length of trial; review Joint others like it. The records reflect that Bundren typically
Status Report “latest version” proposed by Dr. compiled together into one day's entry such discrete
Herman Smith; preparation of correspondence with tasks as reviewing notes, preparing for discovery, writing
Kelly Shackelford; telephone conversation with Kelly correspondence, drafting pleadings, and conducting legal
Shackelford regarding Defendant's proposed Joint research.
Status Report concerning settlement progress and
settlement negotiations; review local rules and Federal Another example sheds additional light on the challenge
Rules of Civil Procedure regarding information and that block billing creates for the court. Throughout April
“argument” of counsel included within a Joint Status 2001 Bundren has seven billable entries that include
Report to the Court; telephone conference with Court's communications with Shackelford. 8 Because all the
secretary regarding proper content of Joint Status entries are block billed, the court can only conclude that,
Report on settlement negotiations; preparation of during a one month period, Bundren spent somewhere
correspondence to Tom Brandt, Esq. and Cobby between 0.7 hours and 47.7 hours communicating with
Caputo, Esq. regarding Plaintiff's Objections to Shackelford. This wide range is found in only a single
Defendant's case and improper conduct of Defendants month; the problem is compounded when the entries
reported in the proposed Joint Status Report; research are extrapolated over the entire 1998–2004 block-billing
Northern District's civil expense and delay reduction period. Given the vastness of the range, the court cannot
plan and confidentiality of ADR proceedings under determine, inter alia, the reasonableness of the time
Section III., F. of Northern District Plan; legal Bundren billed for communicating with Shackelford.
research regarding Texas statutes on alternative
dispute resolution mediation session; review mediation Shackelford also engaged in block billing, but his time
files concerning contract and agreements signed by records are generally more illuminating. While Bundren's
parties to keep communications at ADR proceedings individual time entries often contain five or more tasks,
confidential; continued legal research concerning Shackelford usually performed only a single task during
motivating factors of Dr. Herman Smith in making a particular day; on the days he bills for more than one,
decision to not promote or recommend Karen Jo only two or three tasks are usually grouped together.
Barrow for an administrator's position and mixed
motive cases under Title VII and under employment Most courts that have addressed the problem of block
discrimination under Section 1983; (continued next billing have concluded that denying all block-billed
item) attorney's fees is not an appropriate remedy. See, e.g.,
Trulock, 92 Fed. Appx. at 434 (holding that block
*5 (cont from prev. slip) continued legal research
billing “is not a basis for refusing to award attorneys'
concerning Dr. Herman Smith's assertion of a “Mt.
fees”); Cadena v. Pacesetter Corp., 224 F.3d 1203,
Healthy” defense based upon motivating factors
1215 (10th Cir.2000) (concluding that block billing “is
which Dr. Herman Smith did not know in July
not per se forbidden”); Rodriguez v. McLoughlin, 84
of 1998; continued review of deposition transcripts,
F.Supp.2d 417, 425 (S.D.N.Y.1999) (“[T]he practice of
deposition exhibits and evidence to determine viability
block billing is not prohibited in [the Second] Circuit.”).
of Dr. Herman Smith's “Mt. Healthy” defense based
Rather, most courts reviewing blockbilled time entries
upon other motivating factors which caused him
have performed a percentage reduction either in the
to discriminate against Karen Jo Barrow; review
number of hours or in the lodestar figure. See, e.g.,
Defendants' proposed language in Joint Status Report
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 4
Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005)
2005 WL 6789456
Paris v. Dallas Airmotive, Inc., 2004 WL 2100227, at *9– on her counsels' practice of block billing. In Walker the
* 11 (N.D.Tex. Sept.21, 2004) (Lindsay, J.) (applying Fifth Circuit held that a paralegal's billing records were
percentage reduction because of block billing); Robinson, “woefully inadequate to support any fee application”
160 F.3d at 1284–85 (“[A] district court does not abuse because, inter alia, all the time was block billed. Walker,
its discretion in reducing a plaintiff's fee request when the 99 F.3d at 773 (The billing records “never separate out her
request is based on time records that are rather sloppy day, always lumping all of the day's activities together.”).
and imprecise.”) (internal quotation omitted); Aiello, 2005 Walker, however, is distinguishable from this case. The
WL 1397202, at *3 (“[C]ourts apply percentage cuts Walker panel based the denial of the paralegal's fees
where there is a substantial amount of block billing both on block billing and on the fact that the records
in a fee request.”) (internal quotation omitted). The were too vague. See id. (“The original records contain
reduction usually ranges between 10% to 30%. See, terse listings: ‘library research,’ ‘analyzing documents,’
e.g., In re Pierce, 190 F.3d 586, 594 (D.C.Cir.1999) ‘reading background documents,’ ‘phone interviews,’ with
(applying 10% reduction); Gratz, 353 F.Supp.2d at 939 no further explanation.”). As the court explains later,
(same); Aiello, 2005 WL 1397202, at *3 (same); Welch although some of Bundren's and Shackelford's entries are
v. Metro. Life Ins. Co., 2004 U.S. Dist. LEXIS 28576, vague, the records do not suffer from the same pervasive
at *10 (C.D.Cal. Sept. 20, 2004) (block billing “can vagueness problem found in the Walker paralegal's
result in overbilling of between 10 and 30 percent.”); records. 11 Thus Walker does not support completely
Okla. Natural Gas Co. v. Apache Corp., 355 F.Supp.2d denying Barrow's fee request to the extent the application
1246, 1265 (N.D.Okla.2004) (adopting magistrate judge's
is based on block-billed time. 12
15% reduction in case applying Oklahoma fee-shifting
statute); Sea Spray, 277 F.Supp.2d at 326 (applying 15%
reduction); Gonzalez v. Bratton, 147 F.Supp.2d 180, 213
(S.D.N.Y.2001) (applying 12% reduction). B
*6 Based on Bundren's extensive block billing in this Dr. Smith maintains that Barrow's application should
case, which occurred over a substantial time period, the be rejected in its entirety or drastically reduced because
court will reduce Barrow's request for Bundren's time Bundren's billing records are for two reasons facially
by 20% for services rendered between August 27, 1998 unreliable. 13 First, he posits that Bundren's original,
and May 1, 2004. Because Shackelford engaged in some contemporaneous handwritten time records have been
block billing, the court will reduce Barrow's request for destroyed and his computerized records are unreliable
Shackelford's time by 10% for services rendered between because they have been massively and inexplicably altered
September 22, 1998 and February 15, 2005. From the after the fact during billing judgment review. 14 Second,
time records submitted, the court has determined that he asserts that when Bundren's time records are analyzed
Bundren billed 2,177.15 of his claimed hours between together with his fee records in other cases, they indicate
August 27, 1998 and May 1, 2004. 9 The court reduces that that he worked inhuman hours. Dr. Smith relies on
number to 1,741.72 hours based on the 20% block billing an analysis of time records that Bundren submitted
adjustment. The remaining 1,526.7 claimed hours have in support of Barrow's present fee application, those
not been reduced on this basis. The court has determined produced at earlier points in this litigation, and the records
that Shackelford block-billed 340 of his claimed hours that Bundren submitted in support of fee applications
from September 22, 1998 through February 15, 2005. 10 in two other lawsuits: Chiu v. Plano Independent School
The court reduces that number to 306 hours based on District, No. 4:99–CV–1966 (E.D.Tex.), and Williams
the 10% block billing adjustment. The remaining 228.3 v. Kaufman County, No. 3:97–CV0875–L (N.D.Tex.)
claimed hours (i.e., 568.3–340) have not been reduced on (Lindsay, J.).
this basis.
*7 Dr. Smith argues that a comparison of the time
The court disagrees with Dr. Smith's reliance on Walker records that Bundren submitted in support of Barrow's
v. U.S. Department of Housing & Urban Development, instant and ADR procedure fee applications with time
99 F.3d 761 (5th Cir.1996), to contend that the court records that she provided during the fall of 2003 indicates
should deny Barrow's application in its entirety based that Bundren made massive alterations during his billing
© 2018 Thomson Reuters. No claim to original U.S. Government Works. 5
Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005)
2005 WL 6789456
judgment review. Dr. Smith supposes that, because under court would be able to evaluate the attorney's exercise of
Fifth Circuit precedent billing judgment reductions should billing judgment by examining the hours billed and, inter
be visible to the court, Bundren will contend that these are alia, comparing them to the hours not billed.
data entry errors. He posits, however, that such extensive
errors—which account for almost 1,000 hours claimed in *8 In several instances, this is what Bundren has done.
Bundren's original records—appear to call into question For example, Bundren's June 12, 2000 entry shows that he
the validity of the records as a whole. He points to several worked 4.8 hours on this case. He has marked 1.5 hours
specific changes as particularly troubling and argues that as “DNB [Do Not Bill] Time,” P.App. 477, reflecting
these entries support denying the fee application in its that he concluded that only 3.3 hours could reasonably
entirety. Included are instances where Bundren removed be billed for that day's tasks. In others, however, rather
items from the description of work performed but did not than mark some or all hours as non-billable, Bundren
change the amount of time claimed. In his ADR brief, has simply changed the raw number of hours that he
Dr. Smith also cites several instances where, between the claimed he worked. For example, Bundren's June 2,
time Bundren presented billing records and the time of 2000 entry has been altered from 7.2 hours in the 2003
his ADR fee application, he changed the time allocated records to 5.0 hours in the fee application. For at least
or tasks performed. Dr. Smith contends these are not two days' time records-July 11 and 12, 2001–all entries
examples of billing judgment but of errors in the records, for Bundren, Shackelford, and a legal assistant have
and he urges that the vast number of alterations renders been completely deleted. Alterations such as these, which
the records fundamentally unreliable. are found throughout the fee application, undermine
the assertion that Bundren engaged in billing judgment
Dr. Smith also contends that the time records Bundren review.
presented in Chiu and Williams undermine the reliability
of the records adduced in this case because together Having considered Dr. Smith's objections and the relevant
they reflect that he regularly worked in excess of what records, the court holds that Barrow should be denied
is humanly possible. Among other examples, Dr. Smith attorney's fees based on the unreliability of Bundren's
cites the period July 5, 2001 through August 7, 2001, time records. If Bundren actually worked all the hours
which reflects that Bundren took no days off and billed reflected in the 2003 billing records and has simply reduced
an average of 16.7 hours per day, with no day fewer than the hours in an exercise of billing judgment-either by
12.5 hours, many days greater than 18 hours, and one day marking them as non-billable or by changing the raw
(July 24, 2001) the impossible amount of 24.1 hours. number of hours worked-then during 2001 he worked an
inhuman number of hours. When the court
Preview
Filed: 9/21/2018 6:07 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 27724954 By: Shailja Dixit 9/24/2018 8:31 AM NO. 17-CV-1242 BLANCHARD REFINING COMPANY § IN THE DISTRICT COURT LLC and MARATHON PETROLEUM § COMPANY LP § § 212TH DISTRICT COURT V. § § INDUSTRIAL SPECIALISTS, LLC § GALVESTON COUNTY, TEXAS DEFENDANT’S POST-HEARING BRIEF REGARDING PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS TO THE HONORABLE DISTRICT JUDGE GRADY: Defendant Industrial Specialists, LLC (“Defendant” or ISI”) files this Post-Hearing Brief Regarding Plaintiffs’ Motion for Attorneys’ Fees and Costs. Arguments and authorities presented herein demonstrate that a reduction in the amount of attorneys’ fees and costs is warranted as a matter of law. In support, ISI would show the Court as follows: I. Plaintiffs Seek Attorneys’ Fees That Go Beyond What Is Permitted by Rule 91a.7. Rule 91a.7 provides: . . . [T]he court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in determining the award. TEX. R. CIV. P. 91a.7. The comment to the Rule provides, “attorney fees awarded under 91a.7 are limited to those associated with the challenged cause of action, including fees for preparing or responding to the motion to dismiss.” TEX. R. CIV. P. 91a, cmt. -- 2013. While the award of attorneys’ fees to the prevailing party is mandatory, the trial court has discretion to award the amount of attorneys’ it determines are “reasonable and necessary” for that party’s defense against DEFENDANT’S POST-HEARING BRIEF Page 1 a Rule 91a motion to dismiss. See TEX. R. CIV. P. 91a.7; Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673, 691 (Tex. App.—Houston [1st Dist.] 2018 no pet.); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Plaintiffs seek fees that were not incurred in responding to Defendant’s motion and are outside what is contemplated by Rule 91a.7. For instance, Plaintiffs seek attorneys’ fees for drafting their own Motion for Partial Summary Judgment, preparing Interrogatories and Requests for Production, and reviewing and responding to a Motion for Protection. Plaintiffs argue that they are entitled to such fees because they were incurred with respect to “the challenged cause of action” namely, their claims for breach of contract and declaratory judgment. Plaintiffs’ construction of Rule 91a.7 is not supported by any rule, case, secondary source or learned treatise. From the record, it is evident that the bulk of the attorney’s fees requested are unrelated to defending the motion to dismiss. Pursuant to Texas Rule of Civil Procedure 91a.7, attorney’s fees should not be granted for legal activities unrelated to prosecuting or defending a motion to dismiss under this rule. “Attorney fees awarded under 91a.7 are limited to those associated with challenged cause of action, including fees for preparing or responding to the motion to dismiss.” Weizhong Zheng v. Vacation Network Inc., 468 S.W.3d 180, 188 (Tex. App. – Houston 2015) (quoting comment to Rule 91a and stating that party seeking attorney’s fees must segregate reasonable and necessary fees incurred to obtain dismissal of challenged claim or demonstrate why segregation is not required). In Cypress Creek EMS v. Dolcefino, the trial awarded Cypress Creek EMS, the party that prevailed on a Rule 91a Motion to Dismiss, $850.00 even though Cypress creek EMS sought a total of $23,897.50 in attorneys’ fees. 548 S.W.3d at 691. In challenging Cypress Creek EMS’s attorneys’ fees evidence, Dolcefino identified several billing entries where, like Plaintiffs in the DEFENDANT’S POST-HEARING BRIEF Page 2 case at bar, sought recovery of fees and submitted billing entries and for work not necessary to prevail on the Rule 91a Motion to Dismiss, such as responding to Dolcefino’s Motion for Summary Judgment and Dolcefino’s Motions for Sanctions. Id. at 692. The Court of Appeals held the trial court did not abuse its discretion in reducing the attorneys’ fees award to $850.00 because the trial court could have properly considered the entire record, including Dolcefino’s response that Cypress Creek EMS included fees incurred for work not necessary to prevail on the Rule 91a motion and that counsel billed at higher-than-necessary rates. Id. at 693. Finally, Plaintiffs’ reliance on Weizhong Zheng is misplaced. 468 S.W.3d 180 (Tex. App. – Houston 2015, pet. denied). In Weizhong Zheng, the appellees argued that the provision in Rule 91a.7 stating, “the court must award the prevailing party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court” meant any attorneys’ fees outside the trial court (e.g., on appeal) were not recoverable. Id. at 187-88. The Court of Appeals disagreed. However, and notably, the Court of Appeals also held “the prevailing party is limited to recovering the fees and costs associated with the cause of action that was challenged at the trial court level—in the motion to dismiss.” (emphasis added). Id. at 188. Plaintiffs’ contention that attorneys’ fees are recoverable for work performed outside opposing Defendant’s Rule 91a Motion is inconsistent with Rule 91a.7 and Weizhong Zheng. As such, Plaintiffs’ are not entitled to attorneys’ fees for work performed that was unrelated to responding to Defendant’s Rule 91a Motion. II. In Awarding Reasonable and Necessary Attorneys’ Fees, The Trial Court Has Discretion to Reduce Attorneys’ Fees Sought By Plaintiffs. The amount of attorney’s fees is a question of fact. Houston Lighting & Power Co. v. Russo Props., Inc., 710 S.W.2d 711, 716 (Tex. App. - Houston [1st Dist.], no writ). A “trial court is not DEFENDANT’S POST-HEARING BRIEF Page 3 bound by even uncontroverted attorneys’ fees evidence[.]” Hall v. Hubco, Inc., 292 S.W.3d 22, 33 (Tex. App. - Houston [14th Dist.] 2006, pet. denied). “[A] trial court should obtain sufficient information to make a meaningful evaluation of the application for attorney’s fees. Charges for duplicative, excessive, or inadequately documented work should be excluded.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012). “A meaningful review of the hours claimed is particularly important because the usual incentive to charge only reasonable attorney’s fees is absent when fees are paid by the opposing party.” Id. A. The Court Should Reduce Plaintiffs’ Attorneys’ Fee Request by 15% for Disfavored Block Billing. Courts have defined block billing as “the time-keeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks.” See Fralick v. Plumbers & Pipefitters Nat'l Pension Fund, No. 3:09- CV-0752-D, 2011 WL 487754, at *4 (N.D. Tex. Feb. 11, 2011); see also Bramlett v. Med. Protective Co. of Fort Wayne, Indiana, et al., No. 3:09-CV-1596-D, 2010 WL 3294248, at *3 (N.D. Tex. Aug. 20, 2010) (defining block billing as “describing multiple activities in one time entry.”). Texas courts “disfavor the practice of block billing because it impairs the required reasonableness evaluation. When time records are block billed, the court cannot accurately determine the number of hours spent on any particular task, and the court is thus hindered in determining whether the hours billed are reasonable.” Barrow v. Greenville Indep. Sch. Dist., 2005 WL 6789456, at *4 (N.D. Tex. Dec. 20, 2005) (collecting cases). Because block billing impairs the required reasonableness evaluation, it is appropriate for a court reviewing block-billed time entries to perform a percentage reduction up to 30%. Id. at *5. See also Lahiri v. Universal DEFENDANT’S POST-HEARING BRIEF Page 4 Music & Video Distrib. Corp., 606 F.3d 1216, 1222 (9th Cir. 2010) (holding district court’s 30% reduction for block billing was not abuse of discretion), Merrick v. Scott, No. 3:10-CV-2172-D, 2011 WL 1938188, at *4-9 (N.D. Tex. May 20, 2011) (reducing hours by 20% due to block billing), Bramlett, 2010 WL 3294248 at *4 (collecting cases and ultimately applying 25% reduction due to block billing). In the case at bar, Defendant submits a reduction of 15% for block billing is reasonable and appropriate. B. The Court Should Reduce Plaintiffs’ Attorneys’ Fee Request by 20% for Failing to Exercise “Billing Judgment.” Like block billing, failing to exercise “billing judgment” merits a reduction in attorneys’ fees. Billing judgment has been defined as “the usual practice of law firms in writing off unproductive, excessive, or redundant hours.” Walker v. U.S. Dept. of Housing and Urban Development, 99 F.3d 761, 769 (5th Cir. 1996). The applicant for attorneys’ fees bears the burden of establishing that its counsel exercised billing judgment. Saizan v. Delta Concrete Products Co., Inc., 448 F.3d 795, 799 (5th Cir. 2006). The proper remedy for omitting evidence of billing judgment is percentage reduction. Id. In Hopwood v. State of Texas, the Fifth Circuit upheld the district court’s 25% reduction based on the inadequacy of the time entries, duplicative work product, and lack of billing judgment of counsels’ submitted fees. 236 F.3d 256, 279 (5th Cir. 2000). See also Saizan, 448 F.3d at 800 (affirming a trial court’s reduction of 10% for “vagueness, duplicative work, and not indicating time written off as excessive or unproductive”), Walker, 99 F.3d at 770 (reducing fees by 15% to account for lack of billing judgment). Courts have reduced fees up to 50% for billing judgment in light of factors such as nature and extent of the work involved, the issues involved, and the complexity of the work. See e.g. Peak Tech. Servs., Inc. v. Land & Sea Eng'g, LLC, No. H–10– DEFENDANT’S POST-HEARING BRIEF Page 5 1568, 2012 WL 3234203, at *8 (S.D. Tex. Aug. 6, 2012), Preston Expl. Co., LP v. GSP, L.L.C., No. H-08-3341, 2013 WL 3229678, at *9 (S.D. Tex. June 25, 2013) (employing 50% and 20% reductions in hours, respectively). C. The Court should reduce the fees by 50% for failure to segregate fees. The Texas Supreme Court has held that if attorneys’ fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006). A fee claimant bears the burden to segregate. Id. at 311; Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). Where a party fails to segregate its attorneys’ fees in a fee application between claims where they may and may not be entitled to recover fees, they may recover no attorneys’ fees. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (failure to segregate recoverable fees from unrecoverable fees can result in the recovery of zero attorney’s fees) (emphasis added). Further, the Texas Supreme Court in Tony Gullo Motors rejected the argument “that a common set of underlying facts necessarily made all claims arising therefrom ‘inseparable’ and all legal fees recoverable.” 212 S.W.3d at 313. “Intertwined facts” alone do not make fees for unrecoverable claims recoverable. Id. at 313-14. “[I]t is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated.” Id. Thus, “[i]f any attorney’s fees relate solely to a claim for which such fees are unrecoverable, the claimant must segregate recoverable from unrecoverable fees.” 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 506 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) (citing Chapa, 212 S.W.3d at 313-14). Plaintiffs have failed to meet their burden for recovery of attorneys’ fees by segregating attorney’s fees between claims for which fees are recoverable and claims for which they are not, DEFENDANT’S POST-HEARING BRIEF Page 6 or presenting evidence that the fees did not need to be segregated. See A.G. Edwards & Sons Inc. v. Beyer, 235 S.W.3d 704, 710 (Tex. 2007); Tony Gullo Motors, 212 S.W.3d at 312-314 (intertwined facts do not make unrecoverable fees recoverable); In the Interest of B.N.L.-B., 375 S.W.3d 557, 567 (Tex. App.-- Dallas 2012, no pet.). In the case at bar, Plaintiffs were required to segregate fees incurred opposing Defendants Rule 91a motion form other work performed. See Cypress Creek EMS v. Dolcefino, 548 S.W.3d at 693. Because Plaintiffs failed to segregate recoverable from unrecoverable fees, Plaintiffs have similarly failed to meet their burden that all attorneys’ fees sought are reasonable and necessary. Accordingly, Defendants respectfully submit a 50% reduction is warranted. CONCLUSION Defendant respectfully contends that Plaintiffs’ request for fees and costs is not reasonable or necessary. Plaintiffs’ block billing, failure to segregate recoverable fees from non-recoverable fees, and failure to demonstrate billing judgment warrants the court exercising its discretion to make appropriate percentage reductions. DEFENDANT’S POST-HEARING BRIEF Page 7 Respectfully submitted, HOLDEN & MONTEJANO JACQUELINE MONTEJANO State Bar No. 24027402 JacquelineMontejano@HoldenLitigation.com STEVEN SHATTUCK State Bar No. 18133700 SteveShattuck@HoldenLitigation.com 1717 Main Street, Suite 5800 Dallas, Texas 75201 Telephone (214) 745-8888 Facsimile (918) 295-8889 ATTORNEYS FOR DEFENDANT INDUSTRIAL SPECIALISTS, LLC CERTIFICATE OF SERVICE I hereby certify that on this the 21st day of September 2018, a true and correct copy of the above and foregoing instrument was forwarded to all counsel of record in accordance with Tex. R. Civ. P. 21 and 21a. Joel Z. Montgomery Jonathan B. Smith Z. Alex Ramirez Shipley Snell Montgomery 712 Main Street, Suite 1400 Houston, Texas 77002 JACQUELINE MONTEJANO DEFENDANT’S POST-HEARING BRIEF Page 8 Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005) 2005 WL 6789456 to GISD's bill of costs and awards costs to GISD of $14,492.65. KeyCite Yellow Flag - Negative Treatment Distinguished by Pursuant Group, Inc. v. Capps, N.D.Tex., November 18, 2013 2005 WL 6789456 I Only the Westlaw citation is currently available. United States District Court, The court assumes the parties' familiarity with its prior N.D. Texas, opinions in this case. In its most recent decision, Barrow v. Dallas Division. Greenville Independent School District, 2005 WL 1867292 (N.D.Tex. Aug.5, 2005) (Fitzwater, J.) (“Barrow VI” ), the Karen Jo BARROW, Plaintiff, court established a procedure for Barrow to submit, and v. for Dr. Smith to oppose, an application for attorney's fees GREENVILLE INDEPENDENT under 42 U.S.C. § 1988. 1 SCHOOL DISTRICT, et al., Defendants. Barrow seeks an award of attorney's fees and expenses Civil Action No. 3:00–CV–0913–D. totaling $2,093,521.91, which consists of $1,989,360.50 in | attorney's fees and $104,161.41 in expenses. 2 She requests Dec. 20, 2005. an attorney's fees award for work performed by four Attorneys and Law Firms attorneys: Wm. Charles Bundren, Esquire (“Bundren”); Kelly J. Shackelford, Esquire (“Shackelford”); Hiram S. WM Charles Bundren, WM Charles Bundren & Sasser III, Esquire (“Sasser”); and Jonathan M. Saenz, Associates, Frisco, TX, Kelly J. Shackelford, Liberty Esquire (“Saenz”). Bundren is Barrow's lead counsel in the Legal Institute, Plano, TX, for Plaintiff. case. Bundren practices law with Wm. Charles Bundren & Associates, P.C. (“WCBA”). Shackelford is the founder Dennis J. Eichelbaum, Schwartz & Eichelbaum Wardell and Chief Counsel of Liberty Legal Institute (“Liberty”), Mehl & Hansen PC, Plano, TX, Cobby A. Caputo, a civil liberties education and legal defense organization Bickerstaff Heath Delgado Acosta LLP, Austin, TX, specializing in religious freedom cases. Sasser is Liberty's Thomas P. Brandt, Fanning Harper Martinson Brandt & Director of Litigation, and Saenz is a Liberty Staff Kutchin PC, Dallas, TX, for Defendants. Attorney. Dr. Smith opposes Barrow's fee application on several grounds, asserting that the court should reject the request in its entirety or, alternatively, should award a MEMORANDUM OPINION AND ORDER substantially reduced amount. SIDNEY A. FITZWATER, District Judge. Barrow requests compensation for Bundren's services based on 3,703.85 hours at the hourly rate of $450, *1 In this action by plaintiff Karen Jo Barrow totaling $1,666,732.50. For Shackelford's work, Barrow (“Barrow”) against defendants Greenville Independent requests compensation based on WCBA's time records for School District (“GISD”) and Dr. Herman Smith 320.1 hours at $400 per hour and based on Shackelford's (“Dr.Smith”), the court addresses the remaining post separate time records for 248.2 hours at the same hourly judgment matters that require a decision: Barrow's rate, for 568.3 hours totaling $227,320. Barrow seeks fees application for attorney's fees from Dr. Smith, the for 220.6 hours at $205.00 per hour for Sasser's services, deferred portion of her motion to alter or amend the totaling $45,223.00. Finally, she requests compensation judgment, and her objections to GISD's bill of costs. for 286.2 hours at $175.00 per hour for Saenz's services, For the reasons that follow, the court awards Barrow totaling $50,085.00. attorney's fees in the sum of $631,293.00, and $22,775.22 in expenses and taxable costs of court; it grants her motion To support the fee application, Barrow has submitted four to alter or amend the judgment to the extent of awarding sets of billing records. First, she has proffered WCBA's her expenses and taxable costs against Dr. Smith; and records, which include all of Bundren's time entries. They it sustains in part and overrules in part her objections also include Shackelford's time entries prior to June 23, © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005) 2005 WL 6789456 2004, although Shackelford was associated with Liberty, that would render such an award unjust, a prevailing not with WCBA, throughout the history of the case. 3 plaintiff should be awarded § 1988 fees ‘as a matter of Second, Barrow has submitted Shackelford's separate course.’ ” Id. (quoting Espino v. Besteiro, 708 F.2d 1002, time sheets for his work on and after June 23, 2004. Third 1005 (5th Cir.1983)). and fourth, she has submitted separate time records for Sasser and Saenz, respectively. To calculate the amount of a reasonable attorney's fee, the court begins by “determin[ing] the compensable hours *2 Also pending before the court is the deferred portion from the attorneys' time records, including only hours of Barrow's April 11, 2005 post-trial motion to alter or reasonably spent.” Shipes v. Trinity Indus., 987 F.2d 311, amend the judgment. In a memorandum opinion and 319 (5th Cir.1993). The court may reduce the number order filed in conjunction with entering the judgment of compensable hours “[w]here the documentation of in this case, the court explained that, with respect to hours is inadequate.” Hensley v. Eckerhart, 461 U.S. 424, Barrow's action against Dr. Smith, the judgment provided 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The court that Barrow would bear her own taxable costs of court, also excludes any hours that it determines “are excessive, subject to the court's amending the judgment in response redundant, or otherwise unnecessary.” Id. at 434. The to a timely filed post judgment motion. See Barrow v. court next “must select an appropriate hourly rate based Greenville Indep. Sch. Dist., No. 3:00–CV–0913, slip op. on prevailing community standards for attorneys of at 1–2 (N.D.Tex. Mar. 25, 2005) (Fitzwater, J .). Barrow similar experience in similar cases.” Shipes, 987 F.2d at challenged this part of the judgment in her motion to alter 319. “The number of compensable hours is then multiplied or amend judgment. In Barrow VI the court denied the by the selected hourly rate to produce the ‘lodestar’ motion except to the extent it deferred a final decision due amount.” Id.; see also Rutherford v. Harris County, Tex., to the outstanding issue of Barrow's recovery of attorney's 197 F.3d 173, 192 (5th Cir.1999) (citing League of United fees and costs. See Barrow VI, 2005 WL 1867292, at *32. Latin Am. Citizens # 4552 v. Roscoe Indep. Sch. Dist., The court addresses today whether the judgment should 119 F.3d 1228, 1232 (5th Cir.1997) (“LULAC” )). The be altered or amended to assess Barrow's expenses and fee applicant bears the burden to substantiate both the taxable costs of court against Dr. Smith. requested hours and the hourly rate. Hensley, 461 U.S. at 437. After calculating the lodestar amount, the court must The judgment awarded GISD its taxable costs of court then determine whether the lodestar should be adjusted against Barrow, and the clerk of court taxed GISD's costs based on the factors listed in Johnson v. Georgia Highway in the sum of $19,741.13. On April 13, 2005 Barrow filed Express, Inc., 488 F.2d 714 (5th Cir.1974). Shipes, 987 objections to GISD's bill of costs. In Barrow VI the court F.2d at 320. deferred its decision on her objections. Id. The court also resolves Barrow's objections in this opinion. III *3 Relying on the materials he submitted to Judge II Sanders as part of a pretrial attorney's fees alternative The court turns first to Barrow's first amended attorney's dispute resolution (“ADR”) procedure 5 and Judge fees application. Barrow is entitled under the judgment to Sanders' report, Dr. Smith contends that Barrow is not recover from Dr. Smith actual and punitive damages and entitled to recover any attorney's fees, expenses, or costs, prejudgment interest totaling $38,422.44 on her parental and he requests that the court adopt Judge Sanders' rights claim under 42 U.S.C. § 1983. 4 In a § 1983 case, “the conclusion that the evidence is insufficient to sustain an court, in its discretion, may allow the prevailing party, award of expenses or costs. The court will not deny other than the United States, a reasonable attorney's fee Barrow's fee application on this basis. as part of the costs[.]” 42 U.S.C. § 1988(b). Although § 1988 uses the word “may,” the court's discretion to deny Although the court's decision today reaches conclusions attorney's fees to a prevailing party is extremely narrow. that are in some respects similar to those found in Judge See Scham v. Dist. Courts Trying Criminal Cases, 148 F.3d Sanders' report, Judge Sanders issued his findings as 554, 557 (5th Cir.1998). “Absent special circumstances part of a non-binding ADR procedure. 6 The court must © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005) 2005 WL 6789456 independently perform its obligation to decide Barrow's February 16, 2005 Shackelford did not uniformly block fee application. “Absent special circumstances that would bill, although some entries continue to group several tasks render such an award unjust, a prevailing plaintiff should together. Sasser's and Saenz's time entries do not appear be awarded § 1988 fees ‘as a matter of course.’ ” Scham, to be block billed. 148 F.3d at 557 (quoting Espino, 708 F.2d at 1005). Although the court concludes that Barrow's fee request *4 Courts disfavor the practice of block billing must be substantially reduced, it also finds that there are because it impairs the required reasonableness evaluation. no special circumstances that support completely denying When time records are block billed, the court cannot her an award of attorney's fees. accurately determine the number of hours spent on any particular task, and the court is thus hindered in determining whether the hours billed are reasonable. See Trulock v. Hotel Victorville, 92 Fed. Appx. 433, IV 434 (9th Cir.2004) (unpublished mem.) (“[B]lock billing Dr. Smith maintains on several grounds that Barrow's creates some impediments to the analysis of attorney fee request should be rejected in its entirety or drastically fee bills....”); Gratz v. Bollinger, 353 F.Supp.2d 929, 939 reduced. He contends that Barrow has failed to meet her (E.D.Mich.2005) (“As a result of such ‘block billing,’ burden of proof because no reasonable client would accept the Court is not able to determine the number of her counsels' records due to the use of block billing. Dr. hours expended on each discrete task. Thus the Court Smith also posits that Bundren's available time records cannot determine whether the number of hours billed are facially unreliable because the computerized records are reasonable.”); Aiello v. Town of Brookhaven, 2005 have been massively altered and Bundren claims to have WL 1397202, at *3 (E.D.N.Y. June 13, 2005) (“[B]lock worked an inhuman number of hours. billing would impede the Court's ability to ascertain the nature of the work performed.”); Hells Canyon Pres. Council v. U.S. Forest Serv., 2005 U.S. Dist. LEXIS 15311, at *10 (D.Ore. Mar. 7, 2005) (Block billing “prohibit[s] A a thorough reasonableness determination.”); Sea Spray Holdings, Ltd. v. Pali Fin. Group, Inc., 277 F.Supp.2d 323, The court turns initially to Dr. Smith's objection to 326 (S.D.N.Y.2003) (“[T]he substantial amount of block Barrow's counsels' use of block billing. Dr. Smith argues billing in the fee requests renders it difficult to determine that block billing is not a normal business practice in whether, and/or the extent to which, the work done this community and that it is prohibited by law, learned by Buyers's attorneys is duplicative or unnecessary.”). treatises, and responsible clients. He maintains on this The Tenth Circuit, for example, strongly discourages the basis that the court should reject Barrow's fee application practice of block billing. in its entirety or, alternatively, reduce the number of hours by 75% to 85%. The use of billing practices that camouflage the work a “The term ‘block billing’ refers to ‘the time-keeping lawyer does naturally and quite method by which each lawyer and legal assistant enters correctly raise suspicions about the total daily time spent working on a case, rather than whether all the work claimed was itemizing the time expended on specific tasks.’ ” Robinson actually accomplished or whether v. City of Edmond, 160 F.3d 1275, 1284 n. 9 (10th Cir.1998) it was necessary. This concern is (quoting Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., particularly important in a situation 82 F.3d 1533, 1554 n. 15 (10th Cir.1996)). All of Bundren's where a party is seeking to have his time entries before May 1, 2004 are block billed. On May opponent pay for his own lawyer's 1, 2004 Bundren began using a different entry for each task work. rather than for each day, and he continued this practice through the end of the fee application period. 7 All of Robinson, 160 F.3d at 1284. Shackelford's time entries prior to February 16, 2005– including those contained in the WCBA billing records An example from Bundren's time records demonstrates and in his separate records-are block billed. On and after the difficulty his block-billing practice creates for the © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005) 2005 WL 6789456 court. On September 5, 2001 Bundren billed 8.0 hours. to the Court; preparation of draft of Plaintiff's proposed Rather than separate his work into more discrete entries insert (alternative) to Defendants' proposed language in or categories, he combined all his tasks into the following Joint Status Report. single entry (the description is so long that it spills over into a second entry): P.App. 545. Because of the block billing, the court cannot accurately determine how much of the 8.0 hours Bundren Receipt and review of correspondence from Tom devoted to any particular task, or even to a category Brandt, Esq. regarding defendant's “latest version” of tasks, within the day. Although the example the of proposed Joint Status Report on settlement court cites is particularly problematic, there are several negotiations and length of trial; review Joint others like it. The records reflect that Bundren typically Status Report “latest version” proposed by Dr. compiled together into one day's entry such discrete Herman Smith; preparation of correspondence with tasks as reviewing notes, preparing for discovery, writing Kelly Shackelford; telephone conversation with Kelly correspondence, drafting pleadings, and conducting legal Shackelford regarding Defendant's proposed Joint research. Status Report concerning settlement progress and settlement negotiations; review local rules and Federal Another example sheds additional light on the challenge Rules of Civil Procedure regarding information and that block billing creates for the court. Throughout April “argument” of counsel included within a Joint Status 2001 Bundren has seven billable entries that include Report to the Court; telephone conference with Court's communications with Shackelford. 8 Because all the secretary regarding proper content of Joint Status entries are block billed, the court can only conclude that, Report on settlement negotiations; preparation of during a one month period, Bundren spent somewhere correspondence to Tom Brandt, Esq. and Cobby between 0.7 hours and 47.7 hours communicating with Caputo, Esq. regarding Plaintiff's Objections to Shackelford. This wide range is found in only a single Defendant's case and improper conduct of Defendants month; the problem is compounded when the entries reported in the proposed Joint Status Report; research are extrapolated over the entire 1998–2004 block-billing Northern District's civil expense and delay reduction period. Given the vastness of the range, the court cannot plan and confidentiality of ADR proceedings under determine, inter alia, the reasonableness of the time Section III., F. of Northern District Plan; legal Bundren billed for communicating with Shackelford. research regarding Texas statutes on alternative dispute resolution mediation session; review mediation Shackelford also engaged in block billing, but his time files concerning contract and agreements signed by records are generally more illuminating. While Bundren's parties to keep communications at ADR proceedings individual time entries often contain five or more tasks, confidential; continued legal research concerning Shackelford usually performed only a single task during motivating factors of Dr. Herman Smith in making a particular day; on the days he bills for more than one, decision to not promote or recommend Karen Jo only two or three tasks are usually grouped together. Barrow for an administrator's position and mixed motive cases under Title VII and under employment Most courts that have addressed the problem of block discrimination under Section 1983; (continued next billing have concluded that denying all block-billed item) attorney's fees is not an appropriate remedy. See, e.g., Trulock, 92 Fed. Appx. at 434 (holding that block *5 (cont from prev. slip) continued legal research billing “is not a basis for refusing to award attorneys' concerning Dr. Herman Smith's assertion of a “Mt. fees”); Cadena v. Pacesetter Corp., 224 F.3d 1203, Healthy” defense based upon motivating factors 1215 (10th Cir.2000) (concluding that block billing “is which Dr. Herman Smith did not know in July not per se forbidden”); Rodriguez v. McLoughlin, 84 of 1998; continued review of deposition transcripts, F.Supp.2d 417, 425 (S.D.N.Y.1999) (“[T]he practice of deposition exhibits and evidence to determine viability block billing is not prohibited in [the Second] Circuit.”). of Dr. Herman Smith's “Mt. Healthy” defense based Rather, most courts reviewing blockbilled time entries upon other motivating factors which caused him have performed a percentage reduction either in the to discriminate against Karen Jo Barrow; review number of hours or in the lodestar figure. See, e.g., Defendants' proposed language in Joint Status Report © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005) 2005 WL 6789456 Paris v. Dallas Airmotive, Inc., 2004 WL 2100227, at *9– on her counsels' practice of block billing. In Walker the * 11 (N.D.Tex. Sept.21, 2004) (Lindsay, J.) (applying Fifth Circuit held that a paralegal's billing records were percentage reduction because of block billing); Robinson, “woefully inadequate to support any fee application” 160 F.3d at 1284–85 (“[A] district court does not abuse because, inter alia, all the time was block billed. Walker, its discretion in reducing a plaintiff's fee request when the 99 F.3d at 773 (The billing records “never separate out her request is based on time records that are rather sloppy day, always lumping all of the day's activities together.”). and imprecise.”) (internal quotation omitted); Aiello, 2005 Walker, however, is distinguishable from this case. The WL 1397202, at *3 (“[C]ourts apply percentage cuts Walker panel based the denial of the paralegal's fees where there is a substantial amount of block billing both on block billing and on the fact that the records in a fee request.”) (internal quotation omitted). The were too vague. See id. (“The original records contain reduction usually ranges between 10% to 30%. See, terse listings: ‘library research,’ ‘analyzing documents,’ e.g., In re Pierce, 190 F.3d 586, 594 (D.C.Cir.1999) ‘reading background documents,’ ‘phone interviews,’ with (applying 10% reduction); Gratz, 353 F.Supp.2d at 939 no further explanation.”). As the court explains later, (same); Aiello, 2005 WL 1397202, at *3 (same); Welch although some of Bundren's and Shackelford's entries are v. Metro. Life Ins. Co., 2004 U.S. Dist. LEXIS 28576, vague, the records do not suffer from the same pervasive at *10 (C.D.Cal. Sept. 20, 2004) (block billing “can vagueness problem found in the Walker paralegal's result in overbilling of between 10 and 30 percent.”); records. 11 Thus Walker does not support completely Okla. Natural Gas Co. v. Apache Corp., 355 F.Supp.2d denying Barrow's fee request to the extent the application 1246, 1265 (N.D.Okla.2004) (adopting magistrate judge's is based on block-billed time. 12 15% reduction in case applying Oklahoma fee-shifting statute); Sea Spray, 277 F.Supp.2d at 326 (applying 15% reduction); Gonzalez v. Bratton, 147 F.Supp.2d 180, 213 (S.D.N.Y.2001) (applying 12% reduction). B *6 Based on Bundren's extensive block billing in this Dr. Smith maintains that Barrow's application should case, which occurred over a substantial time period, the be rejected in its entirety or drastically reduced because court will reduce Barrow's request for Bundren's time Bundren's billing records are for two reasons facially by 20% for services rendered between August 27, 1998 unreliable. 13 First, he posits that Bundren's original, and May 1, 2004. Because Shackelford engaged in some contemporaneous handwritten time records have been block billing, the court will reduce Barrow's request for destroyed and his computerized records are unreliable Shackelford's time by 10% for services rendered between because they have been massively and inexplicably altered September 22, 1998 and February 15, 2005. From the after the fact during billing judgment review. 14 Second, time records submitted, the court has determined that he asserts that when Bundren's time records are analyzed Bundren billed 2,177.15 of his claimed hours between together with his fee records in other cases, they indicate August 27, 1998 and May 1, 2004. 9 The court reduces that that he worked inhuman hours. Dr. Smith relies on number to 1,741.72 hours based on the 20% block billing an analysis of time records that Bundren submitted adjustment. The remaining 1,526.7 claimed hours have in support of Barrow's present fee application, those not been reduced on this basis. The court has determined produced at earlier points in this litigation, and the records that Shackelford block-billed 340 of his claimed hours that Bundren submitted in support of fee applications from September 22, 1998 through February 15, 2005. 10 in two other lawsuits: Chiu v. Plano Independent School The court reduces that number to 306 hours based on District, No. 4:99–CV–1966 (E.D.Tex.), and Williams the 10% block billing adjustment. The remaining 228.3 v. Kaufman County, No. 3:97–CV0875–L (N.D.Tex.) claimed hours (i.e., 568.3–340) have not been reduced on (Lindsay, J.). this basis. *7 Dr. Smith argues that a comparison of the time The court disagrees with Dr. Smith's reliance on Walker records that Bundren submitted in support of Barrow's v. U.S. Department of Housing & Urban Development, instant and ADR procedure fee applications with time 99 F.3d 761 (5th Cir.1996), to contend that the court records that she provided during the fall of 2003 indicates should deny Barrow's application in its entirety based that Bundren made massive alterations during his billing © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 Barrow v. Greenville Independent School Dist., Not Reported in F.Supp.2d (2005) 2005 WL 6789456 judgment review. Dr. Smith supposes that, because under court would be able to evaluate the attorney's exercise of Fifth Circuit precedent billing judgment reductions should billing judgment by examining the hours billed and, inter be visible to the court, Bundren will contend that these are alia, comparing them to the hours not billed. data entry errors. He posits, however, that such extensive errors—which account for almost 1,000 hours claimed in *8 In several instances, this is what Bundren has done. Bundren's original records—appear to call into question For example, Bundren's June 12, 2000 entry shows that he the validity of the records as a whole. He points to several worked 4.8 hours on this case. He has marked 1.5 hours specific changes as particularly troubling and argues that as “DNB [Do Not Bill] Time,” P.App. 477, reflecting these entries support denying the fee application in its that he concluded that only 3.3 hours could reasonably entirety. Included are instances where Bundren removed be billed for that day's tasks. In others, however, rather items from the description of work performed but did not than mark some or all hours as non-billable, Bundren change the amount of time claimed. In his ADR brief, has simply changed the raw number of hours that he Dr. Smith also cites several instances where, between the claimed he worked. For example, Bundren's June 2, time Bundren presented billing records and the time of 2000 entry has been altered from 7.2 hours in the 2003 his ADR fee application, he changed the time allocated records to 5.0 hours in the fee application. For at least or tasks performed. Dr. Smith contends these are not two days' time records-July 11 and 12, 2001–all entries examples of billing judgment but of errors in the records, for Bundren, Shackelford, and a legal assistant have and he urges that the vast number of alterations renders been completely deleted. Alterations such as these, which the records fundamentally unreliable. are found throughout the fee application, undermine the assertion that Bundren engaged in billing judgment Dr. Smith also contends that the time records Bundren review. presented in Chiu and Williams undermine the reliability of the records adduced in this case because together Having considered Dr. Smith's objections and the relevant they reflect that he regularly worked in excess of what records, the court holds that Barrow should be denied is humanly possible. Among other examples, Dr. Smith attorney's fees based on the unreliability of Bundren's cites the period July 5, 2001 through August 7, 2001, time records. If Bundren actually worked all the hours which reflects that Bundren took no days off and billed reflected in the 2003 billing records and has simply reduced an average of 16.7 hours per day, with no day fewer than the hours in an exercise of billing judgment-either by 12.5 hours, many days greater than 18 hours, and one day marking them as non-billable or by changing the raw (July 24, 2001) the impossible amount of 24.1 hours. number of hours worked-then during 2001 he worked an inhuman number of hours. When the court