Donaldsonville Glass and Body Works, Inc. v. Gonzales Municipal Police Department et al

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DONALDSONVILLE GLASS AND 	CIVIL ACTION
BODY WORKS, INC.
VERSUS 	22-817-SDD-RLB
CITY OF GONZALES, ET AL.
consolidated with
SOUTHERN TOWING & TRANSPORT, 	CIVIL ACTION
LLC, ET AL
VERSUS 	23-473-SDD-RLB
CITY OF GONZALES
RULING
This matter is before the Court on the Motion for Attorney’s Fees by Plaintiff
Gonzales Towing and Repair, Inc. (“Plaintiff”). 1 Defendant, City of Gonzales (“Defendant”
or the “City”) opposes the Motion, 2 and Plaintiff filed a Reply. 3 For the following reasons,
Plaintiff’s Motion will be granted, as modified.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
This lawsuit arises out of the claims brought by Plaintiffs, Southern Towing &
Transport, LLC (“Southern Towing”) and Gonzales Towing and Repair, Inc. (Gonzales
Towing”) that the City of Gonzales violated their First Amendment rights of political
1 Rec. Doc. 94.
2 Rec. Doc. 95.
3 Rec. Doc. 98.
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speech and association and created an illegal monopoly by adopting a five-company
towing rotation list for the City. 4 	Plaintiffs also sought declaratory and injunctive relief.
Plaintiffs claimed they were not selected to the Defendant’s towing rotation list because
they did not support City of Gonzales Chief of Police Sherman Jackson’s (“Chief
Jackson”) latest re-election bid. Defendant filed a Motion for Summary Judgment,5 which
the Court granted in part and denied in part.6 The Court dismissed Plaintiffs’ antitrust
claims with prejudice but denied summary judgment as to their First Amendment and
declaratory/injunctive claims. 7
The First Amendment claim proceeded to a jury trial. Initially, both Plaintiffs sought
compensatory damages for income they claimed they lost by their exclusion from the
City’s list. However, Plaintiffs attempted to establish lost profits damages through only
their own testimony without any supporting documentary evidence. 8 The Court evaluated
the evidence that was required under Louisiana law to establish damages for lost profits
and analyzed the applicable jurisprudence. 	The Court concluded that, under Louisiana
law, “the uncorroborated testimony by a plaintiff alone is insufficient to provide economic
loss damages to a degree of reasonable certainty.” 9 The Court made clear that Plaintiffs
were permitted to present evidence of lost profits such as tax returns, invoices, or any
other measure of corroborating evidence. Because Plaintiffs lacked this documentation,
4 Rec. Doc. 18, ¶¶ 6, 13, 15, 16, 19, 22.
5 Rec. Doc. 39.
6 Rec. Doc. 54.
7 Id.
8 Notably, the owners of both Plaintiff companies testified that they mitigated damages by seeking business
from other places, and their tax returns would not show any lost revenue for the year. See Rec. Docs. 58-
5, p. 49; 58-6, pp. 114-15.
9 Rec. Doc. 77, p. 7.
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they could not present evidence of lost profits based solely on the speculative testimony
of the Plaintiffs’ owners. 10 Thus, only nominal damages were available to recover.
The jury returned a verdict in favor of Gonzales Towing and awarded it $2,500.00
in nominal damages; however, the jury returned a verdict against Southern Towing,
finding that its exclusion from the towing rotation list was not motivated by any political
speech or conduct. 11 After the trial, the parties briefed Plaintiffs’ request for declaratory
and injunctive relief, which the Court denied. 12 	Gonzales Towing now seeks attorneys’
fees based on its “prevailing party” status under 28 U.S.C. § 1988, which Defendant
opposes.
II. 	PARTIES’ ARGUMENTS
Plaintiff now moves for costs and attorneys’ fees based on its “prevailing party”
status under 42 U.S.C. §1988(b) after having succeeded on its First Amendment
retaliation claim under 42 U.S.C. §1983. Plaintiff emphasizes the value of vindicating
constitutional rights, arguing that it can never be de minimus. It also contends the verdict
serves as great motivation for Defendant to change its retaliatory practices. Plaintiff then
discusses the evidence provided to support the rate and billing hours sought in this matter.
Plaintiff ultimately requests $143,705.00 in attorneys’ fees, acknowledging that “a
reduction by one-half may be appropriate,”13 and $6,784.91 in costs. 14
Defendant opposes Plaintiff’s motion. While Defendant does not dispute Plaintiff’s
prevailing party status, it argues that the Supreme Court’s decision in Farrar v. Hobby
10 Rec. Doc. 80.
11 Rec. Doc. 83.
12 Rec. Doc. 91.
13 $71,852.50.
14 Rec. Doc. 94-2, pp. 8-9.
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Lobby15 is directly applicable to this case because Plaintiff sought compensatory
damages but was only awarded nominal damages. 	Thus, Defendant maintains Plaintiff
is entitled to no fee; Defendant alternatively urges the Court to reduce any award to “a
level that is reasonable and proportionate to the minimal success Plaintiff actually
achieved.” 16 Defendant also specifically attacks Plaintiff’s evidence regarding local rate,
billing hours, and costs.
Plaintiff responds by acknowledging some billing errors but largely defends the
attorneys’ fees and costs sought.
III. 	LAW AND ANALYSIS
42 U.S.C. § 1988 provides for attorneys' fees to prevailing parties in civil-rights
cases: “In any action or proceeding to enforce a provision of section[ ] ... 1983 ... of this
title, ... the court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney's fee as part of the costs....”17 Defendant does not dispute
that Plaintiff is a prevailing party on the First Amendment claim.
In Farrar v. Hobby Lobby, the Supreme Court held that even a plaintiff who
recovers only nominal damages may still be a prevailing party under Section 1988. 18
Further, “a prevailing party should ordinarily recover attorney’s fees unless special
circumstances would render such an award unjust.”19 The special circumstances
exception “is a narrow carve-out of the general rule that prevailing civil-rights plaintiffs
should be awarded fees.”20 A defendant carries “the high burden of establishing the
15 506 U.S. 103 (1992).
16 Rec. Doc. 95, p. 3.
17 42 U.S.C. § 1988(b).
18 Farrar, 506 U.S. at 115.
19 Hensley v. Eckerhart, 461 U.S. 424, 429 (1983).
20 Sanchez v. City of Austin, 774 F.3d 873, 880 (5th Cir. 2014); see also Espino v. Besteiro, 708 F.2d 1002,
1005 (5th Cir. 1983) (describing the exception as “extremely limited”).
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application of the exception.” 21
Additionally, the Fifth Circuit has held that “[a] prevailing plaintiff's degree of
success is not a special circumstance that justifies a complete denial of [ ] fees.”22
“Instead, the degree of success... is a factor—often an important one—to consider in
assessing the reasonableness of the fee request.”23 “[I]f ‘a plaintiff has achieved only
partial or limited success, the product of hours reasonably expended on the litigation as
a whole times a reasonable hourly rate’”—i.e., the lodestar—“may be an excessive
amount.”24
In Farrar, the Supreme Court affirmed the complete denial of a fee award to the
prevailing plaintiffs, explaining that, “[i]n a civil rights suit for damages, ...the awarding of
nominal damages [ ] highlights the plaintiff's failure to prove actual, compensable
injury.”25 Hence, “[w]hen a plaintiff recovers only nominal damages because of his failure
to prove an essential element of his claim for monetary relief, the only reasonable fee is
usually no fee at all.”26 	In the Fifth Circuit, “the Farrar circumstance of nominal but no
compensatory damages only justifies a complete denial of fees when monetary relief is
the primary objective of a lawsuit.” 27 The Supreme Court instructs that, “[w]here recovery
of private damages is the purpose of ... civil rights litigation, a district court, in fixing fees,
is obligated to give primary consideration to the amount of damages awarded as
21 See Pruett v. Harris Cty. Bail Bond Bd., 499 F.3d 403, 417 (5th Cir. 2007) (“[D]efendants must make an
‘extremely strong showing’ of special circumstances to avoid paying attorneys' fees....”).
22 Sanchez, 774 F.3d at 881
23 Grisham v. City of Fort Worth, Tex., 837 F.3d 564, 568 (5th Cir. 2016); see also Sanchez, 774 F.3d at 881
(discussing the distinction between the availability of a fee award and the reasonableness of a fee request).
24 Farrar, 506 U.S. at 114 (quoting Hensley, 461 U.S. at 436).
25 Farrar, 506 U.S. at 115.
26 Id. (internal citation omitted).
27 Grisham, 837 F.3d at 569; see also Riley v. City of Jackson, Miss., 99 F.3d 757, 759–60 (5th Cir. 1996)
(understanding Farrar as “illustrative of cases where the plaintiff sought only money damages and was
essentially unsuccessful since he did not achieve in any way the ultimate goal of the litigation”).
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compared to the amount sought.”28 This comparison “promotes the court's ‘central’
responsibility 	‘to 	make 	the 	assessment 	of 	what 	is 	a 	reasonable 	fee 	under 	the
circumstances of the case.’” 29 When Farrar controls, if the court has “considered the
amount and nature of damages awarded, the court may lawfully award low fees ...
without reciting the 12 factors bearing on reasonableness ... or multiplying ‘the number
of hours reasonably expended ... by a reasonable hourly rate.’”30
In Shelton v. Louisiana State, the Fifth Circuit explained that nominal damage
awards may support the award of attorney’s fees if the litigation achieved a compensable
goal. 31 The Shelton court also held that the district court is in the best position to determine
whether the lawsuit achieved a compensable public goal justifying a fee award.32
In determining whether a plaintiff achieved a compensable public goal, the Court
considers whether the litigation served a public purpose as opposed to simply vindicating
a plaintiff’s individual rights. 33 	In other words, the public purpose prong of Farrar is not
satisfied simply because a plaintiff establishes that his constitutional rights have been
violated. 34 The Fifth Circuit set forth two instances where litigation can be determined as
achieving a compensable goal. The first instance is when the case sets a new legal
precedent. 35 This scenario was present in Hopwood v. Texas where, although the plaintiffs
28 Farrar, 506 U.S. at 115. (citation omitted).
29 Id. at 115 (quoting Blanchard v. Bergeron, 489 U.S. 87, 96 (1989)).
30 Id. (citations omitted)(emphasis added).
31 519 F.3d 325, 329-30 (citing Hopwood v. Texas, 236 F.3d 256, 278 (5th Cir. 2000) (Hopwood III).
32 Id. at 331.
33 See Farrar, 506 U.S. at 121–22, 113 S.Ct. 566 (O'Connor, J., concurring) (explaining that a plaintiff's
“success might be considered material if it also accomplished some public goal other than occupying the
time and energy of counsel, court, and client”); cf. Carter v. Burch, 34 F.3d 257, 266 (4th Cir.1994) (affirming
denial of attorney's fee to plaintiff who received only nominal damages, in part because the case “involved
no broad civil rights issues”).
34 Maul v. Constan, 23 F.3d 143, 146 (4th Cir. 1994).
35 236 F.3d 256, 278 (5th Cir. 2000)(Hopwood III).
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achieved no specific injunctive or monetary relief, the litigation nonetheless resulted in a
significant legal victory invalidating racial preferences in public higher education, which
benefited all future applicants to the school. 36 The second instance occurs when the jury
verdict provides a likely deterrent effect on the defendant’s challenged conduct. 37 In
analyzing the “deterrent effect of a jury verdict,” the Fifth Circuit observes whether the
state actor changes its behavior due to the jury verdict, and if so, how that benefits the
public. 38
A. Compensatory Damages
The Court finds no legitimate argument that compensatory damages were not the
focus of this lawsuit. Although Plaintiffs also sought declaratory and injunctive relief, the
record reflects that both Plaintiffs sought compensatory damages, including treble
damages, under Louisiana statutory law and 42 U.S.C. 1983. In their original state court
Petition, Plaintiffs alleged they “sustained significant lost revenue” and sued to recover
those damages, as well as “triple damages and attorney fees” under Louisiana Revised
Statute 51:137. 39 In the Joint Status Report filed July 27, 2023, Plaintiffs reiterated their
requests for compensatory damages under LRS Section 51, “including treble damages,
damages for restraint of trade, and pursuant to §1983 for violation of their clearly
36 Id.
37 See Shelton, 919 F.3d at 331 (citing Picou v. City of Jackson, Miss., 91 F. App'x 340, 342 (5th Cir. 2004)
(affirming a fee award after “the district court found that Picou had achieved a compensable goal, she
established discrimination based on sex, which should serve as a deterrent to the Jackson Police
Department in the future”); Guerrero v. Torres, 208 F.3d 1006, 2000 WL 177895, at *2 (5th Cir. 2000) (Table)
(holding that attorneys’ fees were appropriate because the “verdict sent a message to Torres and to the
Texas Prison System that the unjustified use of force, even when a prisoner is not severely injured, is
intolerable in a civilized society”); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1052–53 (5th Cir. 1998)
(explaining that the plaintiff's “victory produced no ‘public benefit’ justifying an award of fees,” where the
violation “found by the jury was peculiar to Hidden Oaks, not general in the sense that the City would be
forced to change its dealings with other landowners as a result”)).
38 Id. at 330-31.
39 Civ. Action No. 23cv473-SDD-RLB, Rec. Doc. 1-2, para 18 and 19.
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established rights.”40 And despite having no documented evidence of lost revenue – like
tax 	returns, 	banks 	statements, 	income 	statements, 	invoice 	records, 	or 	cash 	flow
statements – Plaintiffs persisted at trial in their efforts to recover compensatory damages,
which the Court ultimately denied for lack of evidence.41
B. Compensable Public Goal
Turning to whether Plaintiff achieved a compensable public goal, Plaintiff does not
argue that this case established new legal precedent; however, Plaintiff maintains it
obtained a jury verdict with deterrent effects on Defendant’s conduct. Plaintiff highlights
the following portion of the Court’s reasoning in denying its request for declaratory and
injunctive relief:
Plaintiff 	interprets 	this 	testimony 	as 	evidence 	that 	the 	same 	flippant
treatment will be given to the towing list application process in the future.
The Court disagrees. A trial and partially unfavorable verdict could serve as
a great motivation to the City to follow the regulations in the application
process and to make selection decisions based on non-retaliatory grounds.
Should the City continue the past behavior, it is subject again to potential
lawsuits and damages. 42
The Court finds the Fifth Circuit’s decision in Hidden Oaks Ltd. v. City of Austin43
instructive. 	There, the owner of an apartment complex sued the city for breach of
contract, 	unlawful 	taking, 	inverse 	condemnation, 	and 	violation 	of 	substantive 	and
procedural due process, arising out of the building inspector's placement of a utility hold
on the complex for building code violations. 44 At trial, the district court instructed the jury
to award nominal damages on the procedural due process claim “because Hidden Oaks
40 Rec. Doc. 25, p. 2.
41 Rec. Doc. 80.
42 Rec. Doc. 91, p. 11.
43 138 F.3d 1036 (5th Cir. 1998).
44 Id.
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produced no evidence at trial indicating any damage specifically arising from the
procedural due process violation.” 45 The district court further found that “Hidden Oaks's
victory produced no ‘public benefit’ justifying an award of fees in spite of receiving only
nominal damages.”46 This is because “the procedural due process violation as found by
the jury was peculiar to Hidden Oaks, not general in the sense that the City would be
forced to change its dealings with other landowners as a result.”47 Thus, the Fifth Circuit
affirmed the district court’s denial of Section 1988 attorney fees, concluding that “the jury's
award of nominal damages to Hidden Oaks on its procedural due process claim gave
Hidden Oaks little more than ‘the moral satisfaction of knowing that a federal court
concluded that [its] rights had been violated.’” 48
Although not binding, the Seventh Circuit considered this issue in Cartwright v.
Stamper,49 	a 	case 	in 	which 	the 	plaintiffs 	brought 	a 	§ 	1983 	action 	against 	the
superintendent of the Indiana state police and an officer, alleging the defendants violated
the plaintiffs' Fourth Amendment rights by an unauthorized entry into their apartment. The
plaintiffs' case against the officer went to trial, and the jury found in favor of the plaintiffs
but only awarded them one dollar in nominal damages on each of their claims. The district
court subsequently awarded attorney's fees in the amount of $52,875. On appeal, the
Seventh Circuit reversed the award after analyzing the Farrar factors. Regarding the
45 Id. at 1052 (See Farrar, 506 U.S. at 115, 113 S.Ct. at 574–75 (“In a civil rights suit for damages ... the
awarding of nominal damages ... highlights the plaintiff's failure to prove actual, compensable injury.”); cf.
Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir.1996) (distinguishing Farrar where plaintiff primarily
sought and obtained injunctive relief, in addition to winning an award of nominal damages).
46 Id. at 1052 (See Farrar, 506 U.S. at 121, 113 S.Ct. at 578 (O'Connor, J., concurring) (noting that an award
of merely nominal damages may support an award of fees when the litigation has “accomplished some
public goal”).
47 Id. at 1053.
48 Id. (quoting Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987)).
49 7 F.3d 106 (7th Cir. 1993).
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public purpose served, the Seventh Circuit noted that “[t]he more important the right at
stake and the more egregious the violation the more likely it is that the victory serves a
public purpose. An award of punitive damages, therefore, is strong evidence that the
victory served a public purpose.” 50 Because the district court granted a directed verdict in
favor of the defendant on the claim for punitive damages, and because the future
deterrent effect of the action was limited, the court of appeals held that the factor weighed
firmly in favor of finding the victory technical. 51
The Court also finds the Eleventh Circuit’s decision in Gray ex rel. Alexander v.
Bostic applicable. 52 Gray involved a nine-year-old female student who was handcuffed by
the school resource officer after he witnessed her make “a disrespectful and physically
threatening comment” to her gym teacher. 53 	Gray filed suit asserting a host of claims
under 42 U.S.C. 1983 and Alabama state law. 54 In addition to requesting an unspecified
amount in compensatory damages, Gray also sought declaratory and injunctive relief and
attorney’s fees and costs.55 At trial, the district court granted the plaintiff’s motion for
judgment as a matter of law on liability but submitted the issue of damages to the jury.56
After brief deliberations, the jury awarded the plaintiff $1 in nominal damages. 57 	The
district court awarded the plaintiff over $70,000 in attorney’s fees, expenses, and costs,
which the defendant appealed. 58 The Eleventh Circuit reversed and remanded the case
50 Id. at 110 (quoting Estate of Borst v. O’Brien, 979 F.2d 511, 517 (7th Cir. 1992)(punitive damage award
reflects “both the value of the victory in finding a violation of constitutional rights and the deterrence value
of the suit”) (internal quotations omitted).
51 Id.
52 720 F.3d 887 (11th Cir. 2013).
53 Id. at 889.
54 Id. at 890.
55 Id.
56 Id. at 891.
57 Id.
58 Id. at 891-92.
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back to the district court with instructions to consider “recent guidance.” 59 	On remand,
the district court awarded a total of $39,900, which the defendant again appealed. 60
The Gray court, relying on the Seventh Circuit’s decision in Cartwright, applied the
same reasoning in finding that the plaintiff “commenced the litigation to redress private
injury, and it d[id] not serve a public purpose.”61 	The court found that “Gray failed to
establish anything more than that she had been denied a protected right. Despite her
numerous claims, Gray was unable to establish that she suffered actual injury.” 62 Further,
“Gray specifically sought, but failed to obtain, punitive damages for those claims[,]” and
her prayer for injunctive relief failed.63
Applying the foregoing reasoning and analysis, the Court finds that this is not a
case where the deterrent effect on Defendant’s conduct benefits the public at large, as it
would in a case involving widespread race discrimination or excessive force where the
verdict makes an obvious statement regarding the law. Here, rather, the jury verdict may
have a deterrent effect on the Defendant’s conduct towards the towing rotation companies
in Ascension Parish, but this verdict does not benefit the general public. 	Indeed, the
verdict in favor of Gonzales Towing but not in favor of Southern Towing suggests that the
jury did not find that Defendant retaliates in a general fashion; rather it found that
Defendant’s conduct was specific to Gonzales Towing. The jury’s verdict did not send a
message regarding First Amendment rights for the general public. Instead, the verdict in
this case achieved for Plaintiff “little more than ‘the moral satisfaction of knowing that a
59 Id. at 893.
60 Id.
61 Id. at 899.
62 Id.
63 Id.
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federal court concluded that [its] rights had been violated.’” 64 Accordingly, the Court finds
Plaintiff did not achieve a compensable public goal that created a benefit for the public at
large.
C. Degree of Success Obtained and Proportionality
The Court must also consider the degree of success Plaintiff obtained and a fee
award’s proportionality to the damages recovered. Although the Fifth Circuit “‘ha[s]
consistently emphasized that “there is no per se requirement of proportionality in an
award of attorney fees[;]”’”65 the relationship between the damages award and the
attorney’s fee is a critical Johnson factor to be considered in determining whether an
adjustment should be made to the overall fee. Notably, in Fessler v. Porcelana Corona
De Mexico, S.A. DE C.V., decided in 2022, the Fifth Circuit explained:
The Supreme Court has twice stated that “degree of success obtained” is
“the most critical factor” in determining the reasonableness of attorneys’
fees. Farrar v. Hobby, 506 U.S. 103, 114, 113 S. Ct. 566, 574, 121 L.Ed.2d
494 (1992) (quoting Hensley, 461 U.S. at 436, 103 S. Ct. at 1941). And
when the suit is for damages, “a district court, in fixing fees, is obligated to
give primary consideration to the amount of damages awarded as
compared to the amount sought.” Id. at 114, 113 S. Ct. at 575.66
In Migis v. Pearle Vision, Inc., the Fifth Circuit reviewed a district court’s award of
attorney’s fees to a plaintiff in a pregnancy discrimination case. 67 As the Fifth Circuit
explained:
Migis's success relative to the relief she sought was limited. She proceeded
to trial on the dual claims that Pearle Vision discriminated against her in
terminating her position and in failing to hire her for the opening in the
product support group. The district court only found discrimination as to the
64 Hidden Oaks, 138 F.3d at 1053 (quoting Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 2676, 96
L.Ed.2d 654 (1987)).
65 Gurule v. Land Guardian, Incorporated, 912 F.3d 252, 259 (5th Cir. 2018)(quoting Combs v. City of
Huntington, Tex., 829 F.3d 388, 396 (5th Cir. 2016) (quoting Branch-Hines v. Hebert, 939 F.2d 1311, 1322
(5th Cir. 1991))(and collecting decisions)).
66 23 F.4th 408, 418-19 (5th Cir. 2022).
67 135 F.3d 1041 (5th Cir. 1998).
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termination. Further, her complaint alleged four acts of discrimination
against Migis “on account of her sex and/or pregnancy,” including her
discharge, 	Pearle 	Vision's 	failure 	to 	allow 	her 	to 	return 	to 	work,
discrimination in the terms, conditions, and privileges of her employment,
and retaliation. Migis prevailed only on the first theory, and only on the basis
of pregnancy discrimination. As indicated in interrogatory answers, she
sought recovery of back pay and benefits of $25,000, and punitive and
compensatory damages of $300,000. At trial she asked for $50,000 in
compensatory damages. The court awarded her only $7,233.32 in back
pay, $5000 in compensatory damages, and no punitive damages.68
The Migis plaintiff requested $110,000 in attorney’s fees, and the district court
awarded her approximately $81,000 in attorney’s fees after applying a 10% reduction for
the limited success achieved. 	In defending this award, the plaintiff argued that the
success achieved was not just about the damages but, “‘[s]he received, importantly, a
finding and declaration by the court that she had been discriminated against on the basis
of pregnancy.’” 69 The Fifth Circuit was unpersuaded and found the district court’s attorney
fee award excessive:
The attorney's fee award was over six and one-half times the amount of
damages 	awarded. 	Migis 	sought 	over 	twenty-six 	times 	the 	damages
actually awarded. Regardless of the effort and ability of her lawyers, we
conclude that these ratios are simply too large to allow the fee award to
stand. We hold that the district court abused its discretion by failing to give
adequate consideration to the result obtained relative to the fee award, and
the result obtained relative to the result sought. We therefore reverse the
award of attorney's fees and remand the case for a new determination of
fees consistent with this opinion.70
Here, Plaintiff seeks a fee award over 57 times the amount of nominal damages
awarded. Even at the suggested half - $71,852.50 – that would result in a fee award over
28 times the amount of nominal damages awarded. Because the Court has determined
that Farrar controls, and the Court has “considered the amount and nature of damages
68 Id. at 1048.
69 Id.
70 Id.
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awarded, the court may lawfully award low fees ... without reciting the 12 factors
bearing on reasonableness ... or multiplying ‘the number of hours reasonably expended
... by a reasonable hourly rate[,]’”71 the Court finds that a flat fee award of $5,000.00 is
appropriate in this case based on the limited success achieved in this matter and the
amount of damages awarded.
IV. 	COSTS
“Unless a federal statute, these rules, or a court order provides otherwise, costs—
other than attorney's fees—should be allowed to the prevailing party.” 72 “[T]he word
‘should’ makes clear that the decision whether to award costs ultimately lies within the
sound discretion of the district court.”73 Even when a federal statute does not specifically
authorize an award of costs in a particular case, “Rule 54(d)(1) independently authorizes
district courts to award costs to prevailing parties” unless a statute or rule precludes it. 74
The Rule “does not require courts to award costs to prevailing [parties].”75 Rather, it gives
the court discretion based on the circumstances of each case.
A federal statute “defines the term ‘costs' as used in Rule 54(d).”76 Under 28 U.S.C.
§ 1920, a district court may tax the following as costs:
(1) Fees of the clerk and marshal;
(2) 	Fees 	for 	printed 	or 	electronically 	recorded 	transcripts 	necessarily
obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials
where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title; [and]
71 Id. (citations omitted)(emphasis added).
72 Fed. R. Civ. P. 54(d)(1).
73 Marx v. Gen. Revenue Corp., 568 U.S. 371, 376 (2013).
74 Id. at 380, n. 5.
75 Id. at 387, n. 9.
76 Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987).
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(6) Compensation of court appointed experts, compensation of interpreters,
and salaries, fees, expenses, and costs of special interpretation services
under section 1828 of this title.77
“If the party against whom costs are sought does not object, a presumption arises
that the costs were necessarily incurred and will be taxed. 78 An objection shifts that
burden to require the party seeking costs to show that the costs were necessary.”79 The
Court has already determined that Plaintiff is a prevailing party, in limited fashion.
Nevertheless, district courts have the discretion to “reduce the size of the prevailing
party's award to reflect [a] partial success” by the prevailing party.80 As discussed above
regarding attorney's fees, the Supreme Court has held that “the degree of the plaintiff's
overall success goes to the reasonableness of a fee award.” 81 “Although costs do not
necessarily track fees, with some costs being fixed and independent of the number or
success of claims filed, ... the district court has discretion to reduce unreasonable costs.” 82
Plaintiff maintains it is entitled to costs for the following expenses:
• 	5/10/23 check 6366 to Clerk of Court – lawsuit filing fees - $730.00;
• 	10/14/24 copying expense to Louisiana Secretary of State (certified
copies of corporate charters) - $365.00;
• 	Subpoena fees of $1,044.52 on 10/11/24 the following 10/10/14:
check 6989 to Chief Ambeau 92.03, check 6990 to Justin Dupre
108.54, check 6991 to Bobby Webre $109.58, check 6992 to Barney
Arceneaux $82.67, check 6993 to Michelle James $107.89, check
6994 to Tyson Dennis $108.15, check 6996 to Frank Credido
77 28 U.S.C. § 1920.
78 Tempest Publishing, Inc. v. Hacienda Records and Recording Studio, Inc., 141 F.Supp.3d 712, 717 (S.D.
Tex. 2015)(citing Embotelladora Agral Regiomontana, S.A. de C.V. v. Sharp Capital, Inc., 952 F.Supp. 415,
417 (N.D.Tex.1997) (“[I]n the absence of a specific objection, deposition costs will be taxed as having been
necessarily obtained for use in the case.”).
79 Id. (citing Jerry v. Fluor Corp., No. 10–1505, 2012 WL 4664423, at *2 (S.D.Tex. Oct. 2, 2012) (citing
Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir.1991)).
80 10 Wright & Miller, FEDERAL PRACTICE & PROCEDURE § 2667 (3d ed.2010).
81 Farrar, 506 U.S. at 114 (quotation marks omitted).
82 McCown v. City of Fontana, 565 F.3d 1097, 1103 n. 2 (9th Cir.2009).
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$109.58, check 6998 to Kenny Frederick $128.30, check 6649 to
Darryl Tullier $84.30;
• 	Subpoena fees of $106.07 to the following on 10/23/24: check 7008
to Floyd Russo $106.07;
• 	Deposition expenses to Veritext Court Reporting: depositions of
Lance Bourgeois, Steven Nethken, and Tyson Dennis (2/4/24) in the
amount of $1,521.10, to Pilant Court Reporting: depositions of Yancy
Ball and Colby Palmer (2/26/24) in the amount of $1,083.30, to
Veritext 	Court 	Reporting: 	depositions 	of 	Darryl 	Tullier, 	Barney
Arceneaux, 	Michelle 	James, 	Sherman 	Jackson 	(2/7/24) 	in 	the
amount of $2,048.40.
Plaintiff argues these costs were “necessarily incurred in the prosecution of the plaintiff’s
claims and use in the case.”83 Plaintiff seeks a total of $6,784.91 in costs. 	Defendant
objects to two items of claimed costs – subpoena service fees and deposition expenses.
A. Subpoena Service Fees
Defendant contends the Subpoena Service Fees of $1037.11 are “factually
baseless.” 84 Defendant points out that Plaintiff’s exhibits to its motion include subpoenas
issued to ten trial witnesses, and many of these exhibits include a “Proof of Service” form,
signed by counsel’s law clerk Sara Piazza, who acted as process server.85 On many of
these forms, the line item for fees for services is totaled as “$0.00.” 86 	Other Proof of
Service forms are left entirely blank and are without support for any fee charged. 87
Defendant contends Plaintiff cannot claim over a thousand dollars in subpoena services
when its sworn admissions to the Court show that the costs for these services was zero.
83 Rec. Doc. 94-2, p. 2.
84 Rec. Doc. 95, p. 20.
85 Rec. Docs. 94-7 through 94-16.
86 See e.g., Rec. Doc. 94-8, Proof of Service for J. Dupre; Doc. 94-12, Proof of Service for T. Dennis; Doc.
94-13, Proof of Service for F. Credido; Doc. 94-15, Proof of Service for D. Tullier; Doc. 94-16, Proof of
Service for F. Russo.
87 See Rec. Docs. 94-7, 94-9, 94-10, 94-11, 94-14.
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Plaintiff counters that it “is not seeking reimbursement for the costs actually
incurred … for serving these witnesses with the subpoenas for trial[.]”88 Plaintiff is only
seeking witness fees recoverable under 28 U.S.C. §1920(2). Plaintiff submitted copies of
checks payable to each witness and corroborated by the Affidavits of counsel. 89 	The
Court is satisfied that Plaintiff has provided documentation to support the recovery of
these costs. 90 Accordingly, the Court finds Plaintiff is entitled to the amount sought -
$1,037.11.
B. Deposition Costs
Defendant also challenges Plaintiff’s claim that deposition costs were “necessarily
obtained for use in the case.”91 Defendant identifies several depositions taken by
witnesses it claims were never called at trial, were called for investigative and discovery
purposes only, or were connected only to unsuccessful claims. However, Defendant far
expands the requirements set forth by the Fifth Circuit to recover deposition costs.
The Fifth Circuit set forth the standard for recovery of deposition costs in Fogleman
v. ARAMCO (Arabian American Oil Co.):92
[W]e have consistently held that a deposition need not be introduced into
evidence at trial in order to be necessarily obtained for use in the case. If,
at the time it was taken, a deposition could reasonably be expected to be
used for trial preparation, rather than merely for discovery, it may be
included in the costs of the prevailing party. Similarly, a deposition copy
obtained for use during trial or for trial preparation, rather than for the mere
convenience of counsel, may be included in taxable costs.93
88 Rec. Doc. 98, p. 9.
89 See Rec. Docs. 94-7, 98-1, 94-9, 94-10, 94-11, 94-13, 94-14, 94-16, 94-20, & 94-21.
90 See Holmes v. Cessna Aircraft Co., 11 F.3d 63, 64–65 (5th Cir. 1994) (daily transcripts and witness fees,
including travel fees, recoverable by prevailing party); Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729
F.2d 1530, 1552–53 (5th Cir. 1984) (permitting fees for witness who did not testify given another witness’
last-minute decision not to testify).
91 Rec. Doc. 95, p. 21.
92 920 F.2d 278 (5th Cir. 1991).
93 Id. at 285 ((internal quotations and citations omitted).
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Under Fogleman, a prevailing party may recover the cost of a deposition transcript or
transcript copy used for trial preparation, even if the party failed to convince the fact-finder
of an issue the deposition supports. 94
The Court is satisfied that the requested deposition costs were not merely incurred
for investigative or discovery purposes only; rather, all claims were in play at the summary
judgment stage, and it was not unreasonable for Plaintiff to believe it would survive
summary judgment on all claims and present such evidence at trial. 	The fact that
witnesses were later excluded, not called, or not connected to a successful claim, does
not preclude Plaintiff’s ability to obtain costs as they were taken in preparation for trial.
Additionally, Plaintiff showed that the witnesses not called were on Plaintiff’s “may call”
list. The Fifth Circuit in Stubblefield v. Suzuki Motor Corp., affirmed a district court’s award
of costs where the deponents “were witnesses at trial or were on a ‘may call’ witness list
for trial.”95 Accordingly, the Court finds Plaintiff is entitled to $4,625.80 for deposition costs.
The remainder of costs requested is referred to the Clerk of Court’s Office pursuant to the
Local Rules of the Middle District. Plaintiff shall submit a final Bill of Costs for the Clerk’s
review.
94 Id.
95 826 F. App'x 309, 326 (5th Cir. 2020).
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V. 	CONCLUSION
For the foregoing reasons, the Motion for Attorney’s Fees by Plaintiff Gonzales
Towing and Repair, Inc. is GRANTED. 96
Baton Rouge, Louisiana, this ___ day of March, 2026.
________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
96 Rec. Doc. 94.
18th
S
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