Rayne Memorial United Methodist Church v. Church Mutual Insurance Company, S.I.

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RAYNE MEMORIAL UNITED
METHODIST CHURCH,
Plaintiff

CIVIL ACTION

VERSUS NO. 23-4129

CHURCH MUTUAL INSURANCE
COMPANY, S.I.,
Defendant
SECTION: “E” (3)

ORDER AND REASONS
Before the Court is an objection
1
filed by Defendant Church Mutual Insurance
Company, S.I. (“Defendant”) to a Report and Recommendation
2
issued by the assigned
Magistrate Judge on a motion for attorneys’ fees and costs.
3
Plaintiff Rayne Memorial
United Methodist Church (“Plaintiff”) filed a response to Defendant’s objection.
4

BACKGROUND
This matter arises from a Hurricane Ida insurance coverage dispute. Plaintiff sued
Defendant on August 24, 2023 for breach of contract, as well as for statutory penalties
and attorneys’ fees pursuant to La. R.S. 22:1892 and La. R.S. 22:1973.
5
Plaintiff alleged
that Defendant issued an insurance policy to cover Plaintiff’s property on St. Charles
Avenue in New Orleans, Louisiana, and that on August 29, 2021, Hurricane Ida struck
Southeast Louisiana, damaging several buildings in Plaintiff’s church complex.
6
A four-
day trial was held from February 2 to February 5, 2026.
7

1
R. Doc. 209.
2
R. Doc. 203.
3
R. Doc. 176.
4
R. Doc. 212.
5
R. Doc. 1.
6
R. Doc. 1 at ¶ ¶ 6-9.
7
R. Docs. 160, 162, 165, 166.
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2
The trial, and requisite attorney involvement, was extensive and complex. At the
conclusion of Plaintiff’s case, Defendant moved for judgment as a matter of law under
Fed. R. Civ. P. 50(a), arguing it was entitled to a directed verdict.
8
The Court denied
Defendant’s motion, finding there was legally sufficient evidence from which a reasonable
person could find in favor of Plaintiff.
9
At the end of trial, the jury found that Defendant
had breached its insurance contract with Plaintiff and violated La. R.S. 22:1892 and La.
R.S. 22:1973.
10
The jury found that Defendant arbitrarily, capriciously, and without
probable cause had failed to make payments in the amounts of $110,652.21 and
$321,669.17 within thirty days of receiving satisfactory proof of loss, violating La. R.S.
22:1892.
11
The jury found Defendant, arbitrarily, capriciously, and without probable
cause, never paid Plaintiff an additional $2,818,230.66 for damages covered under the
insurance policy after receiving satisfactory proof of loss, violating La. R.S. 22:1892 and
La. R.S. 22:1973.
12
The jury further found Defendant violated La. R.S. 22:1973 by
misrepresenting insurance policy provisions and that Plaintiff suffered $123,935 in
consequential damages due to Defendant’s violations of La R.S. 22:1973.
13

Following the return of the jury’s verdict, the Court assessed the mandatory
penalty against Defendant under La. R.S. 22:1892 in the amount of 50% of all damages
Defendant owed Plaintiff but failed to pay within 30 days of receiving satisfactory proof
of loss; this penalty amounted to $1,625,276.02.
14
Because significant penalties were
awarded against the Defendant under La. R.S. 22:1892 as a result of the jury’s findings
that Defendant failed to timely pay amounts owed under the insurance policy within 30

8
R. Doc. 187-1 at pp. 3-5.
9
Id. at p. 11.
10
R. Doc. 169.
11
R. Doc. 169 at Question Nos. 1, 2.
12
Id. at Question Nos. 4-7.
13
Id. at Question Nos. 9-10, 14-15.
14
R. Doc. 175.
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3
days, the Court exercised its discretion to reduce the penalties awarded as a result of
Defendant’s misrepresentations in violation of La. R.S. 22:1973 to zero dollars ($0.00).
15

The Court entered a final judgment against Defendant in the amount of $4,567,441.68—
this total includes the additional amount Defendant never paid Plaintiff ($2,818,230.66),
consequential damages under La. R.S. 22:1973 ($123,935), and penalties under La. R.S.
22:1892 ($1,625,276.02).
16

Defendant filed a renewed Motion for Judgment as a Matter of Law, or, in the
Alternative, for a New Trial on March 27, 2026.
17
Defendant raised several arguments it
believed warranted granting its motion, including Plaintiff’s failure to offer sufficient
evidence to support the jury’s findings;
18
the Court erroneously allowing incompetent
evidence;
19
and the Court’s improper jury instructions resulting in prejudice to the
Defendant.
20
On May 8, 2026, this Court issued an Order and Reasons denying
Defendant’s motion.
21

Plaintiff filed the instant Motion to Fix Attorneys’ Fees and Costs on March 9,
2026.
22
In its motion, Plaintiff argues the Court should award $563,002.10 in attorneys’
fees.
23
Plaintiff argues its counsel charged reasonable rates given their experience,
qualifications, and the complex nature of this issue. Plaintiff further argues its counsel
billed Plaintiff for a reasonable number of hours considering that counsel worked well in
excess of the number of hours for which they charged.
24
Plaintiff also seeks to recover

15
R. Doc. 174.
16
R. Doc. 175.
17
R. Doc. 181-1.
18
Id. at pp. 9-19.
19
Id. at pp. 23-24.
20
Id. at 20.
21
R. Doc. 189.
22
R. Doc. 176.
23
In its initial motion, Plaintiff requests $526,750.85 in attorneys’ fees. R. Doc. 176-1 at p. 1. However, on
May 14, 2026, Plaintiff filed a supplemental memorandum requesting $563,002.10 in attorneys’ fees, which
encompasses fees incurred after it submitted its initial motion. R. Doc. 192 at p. 4.
24
R. Doc. 176-1 at pp. 3-4.
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$341,489.41 in costs, arguing that La. R.S. 22:1892 provides for recovery of all litigation-
related costs, including costs for expert investigation, site visits, mediation expenses, and
costs for a trial technician.
25

In its opposition, Defendant argues Plaintiff should not recover the full amount it
seeks for attorneys’ fees or costs. Defendant argues Plaintiff did not offer sufficient
evidence that Plaintiff’s counsel charged reasonable rates and, as a result, the Court
should reduce the hourly rates for several of Plaintiff’s attorneys.
26
Defendant further
argues Plaintiff did not exercise proper billing judgment and practiced vague block billing
that leaves the Defendant unable to determine whether Plaintiff’s counsel spent a
reasonable number of hours on various tasks.
27
Defendant further opposes Plaintiff’s
request for $341,489.41 in costs.
28
Defendant argues the taxation of costs is a procedural
matter governed by federal law, specifically Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920.
29

Defendant argues federal law limits Plaintiff’s recovery of costs to the items enumerated
in 28 U.S.C. § 1920, which does not include fees for the trial preparation of Plaintiff’s
experts, mediation, and other expenses.
30

The Court referred Plaintiff’s motion to the assigned Magistrate Judge.
31
On June
16, 2026, the Magistrate Judge issued a Report and Recommendation, recommending the
Court grant Plaintiff’s motion and award Plaintiff $563,002.10 in attorneys’ fees, the
amount Plaintiff seeks.
32
The Magistrate Judge reasoned the rates charged were

25
As with Plaintiff’s request for attorneys’ fees, while Plaintiff initially requested $340,779.42 in costs,
Plaintiff filed a supplemental memorandum requesting $341,489.41 in costs, which includes costs incurred
after it submitted its motion. Id. at pp. 14-15; R. Doc. 192 at p. 4.
26
R. Doc. 182 at pp. 2-3.
27
Id. at p. 4.
28
Id. at p. 8.
29
Id.
30
Id. at pp. 9-11.
31
R. Doc. 178.
32
R. Doc. 203.
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reasonable based on the affidavit of Plaintiff’s board of trustees member, H. Mark Adams,
who personally reviewed and approved payment of every invoice submitted by Plaintiff’s
counsel during the course of the litigation.
33
The Magistrate Judge concluded that
Plaintiff’s counsel charged Plaintiff reasonable rates for a reasonable number of hours
given the attorneys’ backgrounds and skills as well as the complex nature of the case.
34

The Magistrate Judge further recommended the Court award Plaintiff $341,489.41 in
costs under La. R.S. 22:1892.
35

Defendant timely filed objections to the Magistrate Judge’s Report and
Recommendation.
36
Defendant objected to the Magistrate Judge’s recommendation that
this Court award Plaintiff the full amount it sought in attorneys’ fees, arguing that Plaintiff
did not provide satisfactory evidence that its counsel’s hourly rates were reasonable or
that they exercised appropriate billing judgment and because they block billed.
37

Defendant further objected to the Magistrate Judge’s recommendation that this Court
award Plaintiff the full amount it sought in costs, arguing that federal law applies, not La.
R.S. 22:1892.
38

LEGAL STANDARD
Magistrate judges are empowered by statute to preside over certain pretrial
matters upon referral by a district judge.
39
“Federal Rule of Civil Procedure 54(d)(2)(D)
authorizes referral of ‘a motion for attorney’s fees to a magistrate judge under Rule 72(b)
as if it were a dispositive pretrial matter.’”
40
“A Magistrate Judge addressing [such a

33
Id. at p. 8.
34
Id. at pp. 9-17.
35
Id. at pp. 28-29.
36
R. Doc. 209.
37
Id. at p. 1.
38
Id. at pp. 5-7.
39
28 U.S.C. § 636(b)(1)(A).
40
Offshore Marine Contractors, Inc. v. Palm Energy Offshore, LLC, No. 10-4151, 2014 WL 5039670, at *3
(E.D. La. Sept. 25, 2014); see also Blair v. Sealift, Inc., 848 F. Supp. 670, 679 (E.D. La. 1994) (collecting
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motion] under Rule 72(b) must prepare a ‘recommended disposition,’ to which the parties
can object.”
41
“Then, the district judge ‘must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.’”
42

A district court evaluating a magistrate judge’s recommendation may adopt those
portions of the recommendation to which no specific objection is made, as long as those
recommendations are not clearly erroneous.
43
However, when a party makes “specific,
written” objections to the report within fourteen days after being served with a copy of
the magistrate judge’s recommendations, the district court must undertake a de novo
review of those contested aspects of the report.
44
“In order to be specific, an objection
must identify the specific finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the magistrate judge's findings,
conclusions, and recommendation where the disputed determination is found.”
45
“An
objection that merely incorporates by reference or refers to the briefing before the
magistrate judge is not specific.”
46
If a party makes a specific objection, the Court may
then “accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.”
47

cases and holding “a post-trial motion for attorneys’ fees which is not a discovery sanction is a dispositive
matter; therefore, under 28 U.S.C. § 636(b)(1)(B), the magistrate judge’s decision in [addressing] a post-
trial award of attorneys’ fees is subject to de novo review.”).
41
Offshore Marine, 2014 WL 5039670, at *3.
42
Id. (quoting FED. R. CIV. P. 72(b)(3).
43
28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).
44
Id.
45
Peterson v. Day, No. CV 21-2027, 2022 WL 16758322, at *2 (E.D. La. Nov. 8, 2022).
46
Id.
47
Fed. R. Civ. P. 72(b)(3).
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LAW AND ANALYSIS

I. Defendant’s objections regarding the reasonableness of the hourly
rates charged by three attorneys and whether counsel exercised
appropriate billing judgment are sustained; Defendant’s objection that
the attorneys block billed is overruled.

Defendant objects to the Magistrate Judge’s recommendation that this Court
award Plaintiff the full amount it seeks in attorneys’ fees.
48
The Court must conduct a de
novo review of this portion of the Magistrate Judge’s recommendation.
49

Plaintiff, Defendant, and the Magistrate Judge all analyzed the reasonableness of
Plaintiff’s request for attorneys’ fees under federal law. In diversity cases, “[s]tate law
controls both the award of and the reasonableness of [attorneys’] fees awarded where
state law supplies the rule of decision,”
50
but courts in this Circuit have inconsistently
adhered to this principle, often applying federal law to motions for attorneys’ fees in
diversity cases.
51
As neither party objected to the Magistrate Judge’s analysis of the
reasonableness of Plaintiff’s attorneys’ fees applying federal law, this Court also will apply
federal law to its de novo review of the Magistrate Judge’s recommendation that the
Plaintiff be awarded the full amount it seeks in fees. In any event, in this case it makes no
practical difference as the Louisiana factors used to determine the reasonableness of the
award of attorneys’ fees are similar to those considered under federal law.
52

48
R. Doc. 209 at p. 1.
49
28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
50
Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002).
51
Ferguson Enters., LLC v. GH Mech. & Servs. LLC, No. CV 23-00511, 2024 WL 493302, at *4 (E.D. La.
Feb. 8, 2024)( finding that plaintiff was entitled to reasonable attorney's fees on its Louisiana open account
claim, and that, “[t]o calculate an attorneys’ fees award, the district court first calculates the ‘lodestar’”
under the federal reasonableness analysis); ADB Com. Constr. (Louisiana) LLC v. St. Charles Housing LP,
civ. A. No. 2:22-CV-01083, 2023 WL 8263433, at *1 (W.D. La. Nov. 29, 2023) (finding defendant “liable
for breach of contract . . . plus costs and reasonable attorney fees under La. R.S. 9:2781” and applying the
federal lodestar method to determine an award of reasonable attorneys’ fees).
52
Whale Cap., L.P. v. Ridgeway, No. CV 22-2570, 2024 WL 640026, at *1 (E.D. La. Feb. 15, 2024)(noting
that Louisiana courts methodology for determining the reasonableness of attorneys’ fees is similar to the
federal methodology); Wells Fargo Equip. Fin., Inc. v. Beaver Const., LLC, No. CIV. 6:10-0386, 2011 WL
5525999, at *1 (W.D. La. Oct. 18, 2011)(“[i]n determining the reasonableness of such fees, the Louisiana
courts engage in an analysis using factors comparable to those outlined in the federal jurisprudence”).
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When attorneys’ fees are authorized, the trial court is vested with much discretion
in determining the amount of attorneys’ fees.
53
“Reasonable attorneys’ fees are
determined through a two-step process.”
54
“The district court must first calculate the
lodestar—‘the number of hours reasonably expended multiplied by the prevailing hourly
rate in the community for similar work.’”
55
“A court has discretion to reduce the number
of hours awarded, or a percentage from the total, for vague and incomplete
documentation insufficient to demonstrate billing judgment.”
56
“The lodestar is
presumed reasonable, but the court may then enhance or decrease it after considering the
twelve Johnson factors.”
57
Neither party objects to the Magistrate Judge’s finding that
neither an enhancement nor a decrease under the Johnson factors is warranted.
58

Accordingly, the Court will address only the lodestar calculation using a de novo review.
59

As the party requesting fees, Plaintiff bears the burden of establishing the
reasonableness of the fees by submitting adequate documentation—namely, time records,
affidavits, and the like.
60
“The district court is not required ‘to achieve auditing

53
Luv N' Care, Ltd. v. Rimar, No. CV 15-2349, 2017 WL 127464, at *2 (W.D. La. Jan. 12, 2017).
54
Fessler v. Porcelana Corona De Mexico, S.A. DE C.V., 23 F.4th 408, 415 (5th Cir. 2022).
55
Id.
56
Cajun Servs. Unlimited, LLC v. Benton Energy Serv. Co., No. CV 17-491, 2021 WL 5833967, at *5 (E.D.
La. Dec. 9, 2021).
57
Fessler, 23 F.4th at 415.
58
R. Doc. 203 at pp. 18-19.
59
Plaintiff argues in its response to Defendant’s objections that this Court should not review Defendant’s
objections de novo because Defendant merely re-asserts arguments it has already made in its opposition to
Plaintiff’s motion before the Magistrate Judge’s Report and Recommendation was issued. R. Doc. 212 at p.
5 (referencing R. Doc. 182 at pp. 2-4). While Plaintiff cites a decision from this Court in which the Court
declined to review a party’s objections to a Report and Recommendation de novo, the Court in that case
based its decision on the party’s failure to add any additional support for his objections and his failure to
address the Magistrate Judge’s findings or object to any specific reasoning in the Report and
Recommendation. Welch v. Vannoy, No. CV 19-2295, 2023 WL 8184313, at *7 (E.D. La. Nov. 27, 2023). In
this case, Defendant has identified the specific findings and recommendations to which it objects and its
bases for the objections. Accordingly, Defendant is entitled to a de novo review of the findings and
recommendations to which it objected Peterson, 2022 WL 16758322, at *2.
60
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (observing that “the fee applicant bears the burden of
establishing entitlement to an award and documenting the appropriate hours expended and hourly rates”);
Who Dat Yat Chat, LLC v. Who Dat, Inc., 838 F. Supp. 2d 516, 520 (E.D. La. 2012).
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9
perfection,’ as ‘[t]he essential goal in shifting fees (to either party) is to do rough justice.”
61

Indeed, the Court need not explicitly calculate the lodestar to make a reasonable award.
62

Defendant objects to the Magistrate Judge’s recommendation that Plaintiff be
awarded $563,002.10 in attorneys’ fees, arguing Plaintiff did not provide satisfactory
evidence to support a finding that its attorneys charged reasonable rates or that the
attorneys exercised billing judgment.
63

First, Defendant argues the declaration of H. Mark Adams is deficient.
64
Defendant
argues that, because Mr. Adams served as a member of Plaintiff’s board of trustees and
appeared as a witness for Plaintiff during trial, Mr. Adams’ is not a neutral or unbiased
witness, that his affidavit fails to establish the reasonableness of Plaintiff counsel’s fees,
and that it is error to rely on his declaration alone for a finding that counsel charged
reasonable fees.
65

Second, Defendant objects to the determination that Plaintiff’s attorneys Camille
Gauthier, James Gilbert, and Gabrielle Ball charged reasonable fees.
66
Defendant argues
that Ms. Gauthier and Mr. Gilbert have less experience than Laurent Demosthenidy,
Plaintiff’s lead counsel in this case; yet, Mr. Gilbert charged the same hourly rate as Mr.
Demosthenidy in 2025 and Ms. Gauthier charged hourly rates that exceeded Mr.
Demosthenidy’s in 2025 and 2026.
67
Defendant further argues that Ms. Ball’s 2026 rate
exceeds that of an attorney practicing in this area with six years of experience.
68

61
DeLeon v. Abbott, 687 F. App’x 340, 343 (5th Cir. 2017) (internal citations omitted).
62
No Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262 F.3d 496, 500-01 (5th Cir. 2001).
63
R. Doc. 209 at p. 1.
64
Id. at pp. 1-2.
65
Id.
66
Id. at p. 3.
67
Id. at pp. 4-5.
68
R. Doc. 182 at p. 4.
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Accordingly, Defendant requests this Court reduce Ms. Gauthier, Mr. Gilbert’s, and Ms.
Ball’s hourly rates.
69

Finally, Defendant argues Plaintiff did not meet its burden of establishing its
counsel exercised billing judgment.
70
Defendant argues Plaintiff produced only Mr.
Demosthenidy’s declaration that Plaintiff’s counsel wrote off $130,802 worth of billing
time in this matter, and that Plaintiff’s counsel provided no other evidence to support this
representation.
71
As a result, Defendant argues Plaintiff failed to meet its burden of proof
that it exercised appropriate billing judgment.
72
Finally, Defendant argues it is error not
to reduce amounts that contained block billing.
73

A. The hourly rates for Plaintiff’s attorneys Camille Gauthier,
James Gilbert, and Gabrielle Ball will be reduced.

The Court first will address Defendant’s objection that several of Plaintiff’s counsel
did not charge a reasonable hourly rate. “‘[R]easonable’ hourly rates ‘are to be calculated
according to the prevailing market rates in the relevant community.’”
74
“[T]he burden is
on the fee applicant to produce satisfactory evidence—in addition to the attorney's own
affidavits—that the requested rates are in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill.”
75
“An attorney's requested
hourly rate is prima facie reasonable when [he or] she requests that the lodestar be
computed at [his or] her ‘customary billing rate,’ the rate is within the range of prevailing
market rates and the rate is not contested.”
76
In Tollet v. City of Kemah, the Fifth Circuit

69
R. Doc. 209 at p. 4.
70
Id.
71
Id.
72
Id.
73
Id. at p. 5.
74
McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011) (quoting Blum v. Stenson, 465 U.S. 886,
895 (1984)).
75
Blum, 465 U.S. at 895 n.11.
76
White v. Imperial Adjustment Corp., No. 99-3804, 2005 WL 1578810, at *5 (E.D. La. June 28,
2005) (citing La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir. 1995)).
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held that “[g]enerally, the reasonable hourly rate for a particular community is
established through affidavits of other attorneys practicing there.”
77
The Court may
reduce the hourly rate if it determines the requested rate does not fall within the range of
prevailing market rates.
78
In making this determination, the Court “may consider its own
knowledge and experience concerning reasonable and proper fees and may form an
independent judgment either with or without the aid of testimony.”
79

Defendant objects to the finding that the following hourly rates are reasonable: Ms.
Gautier’s hourly rate of $400 in 2025 and $425 in 2026; Mr. Gilbert’s hourly rate of $325
in 2025 and $350 in 2026; and Ms. Ball’s hourly rate of $275 in 2026.
80

Plaintiff provides only the declaration of Mr. Adams in support of its contention
that its attorneys charged prevailing market hourly rates. In this declaration, Mr. Adams
states that he has practiced law in the New Orleans area for over 40 years, has been a
partner of the law firm Jones Walker since 1986, and that he is “familiar with the local
rates charged by lawyers of the skill and reputation of Flanagan Partners LLP in complex
litigation matters similar to this one.”
81
Mr. Adams further declares that, based on his
knowledge and experience, the rates charged by Plaintiff’s counsel were “reasonable and
well in line with comparable rates in this market for similar matters.”
82

Mr. Adams’ declaration is helpful but does not explicitly state that he has recently
surveyed the local market and does not discuss the qualifications of the attorneys. A party
seeking attorneys’ fees often establishes the reasonable hourly rate of a community
through affidavits of other attorneys who affirmatively declare that they have surveyed

77
285 F.3d 357, 368 (5th Cir. 2002).
78
MGMTL, LLC v. Strategic Tech. Inst., Inc., 776 F. Supp. 3d 419, 478 (E.D. La. 2025).
79
Shaw v. Alpha Air & Heating, L.L.C., No. CV 22-3953, 2024 WL 1556861, at *3 (E.D. La. Apr. 10, 2024).
80
R. Doc. 209 at pp. 3-4.
81
R. Doc. 185-1 at p. 1.
82
Id.
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the fees charged by attorneys practicing in that area doing similar work and with similar
qualifications.
83
For example, in Heck v. Buhler, the United States District Court for the
Middle District of Louisiana found the requested rates of two attorneys reasonable when
plaintiffs produced multiple affidavits from “seasoned litigators with extensive practice”
in the relevant area of law stating that the attorneys’ requested rate of $300 an hour was
“‘well within the normal range of compensation charged for such legal services’ in the
Middle District of Louisiana.”
84
Similarly, in McKesson v. City of Baton Rouge, the United
States District Court for the Middle District of Louisiana found attorneys’ requested rates
reasonable when plaintiff submitted multiple affidavits from uninvolved attorneys that
discussed the “experience and qualifications” of plaintiffs’ counsel and stated that the
requested rates were “consistent with the local market for attorneys of their qualifications
and experience.”
85

In this case, Plaintiff provides only a single affidavit, and that from an attorney who
is affiliated with the Plaintiff in this case. Although the Court does not question Mr.
Adams’ integrity and experience, the Court does question the sufficiency of Mr. Adams’
affidavit, particularly in light of his involvement in this case. Mr. Adams, as the chair of
Plaintiff’s board of trustees and later as its “legal liaison,” approved all of Plaintiff
counsel’s invoices as they were submitted
86
—he is not like the “other attorneys” in Heck
and Mckesson who had no connection to the parties or the litigation but provided
affidavits to support the reasonableness of counsels’ rates.
87
Furthermore, Mr. Adams
does not detail Plaintiff counsel’s levels of experience, qualifications, or other qualities

83
See Tollett, 285 F.3d at 368.
84
No. 3:07-CV-00021-BAJ, 2014 WL 2003270, at *2 (M.D. La. May 15, 2014).
85
No. CV 16-520-JWD-RLB, 2017 WL 11675692, at *4 (M.D. La. Nov. 16, 2017).
86
R. Doc. 185-1 at pp. 1-2.
87
See Heck, 2014 WL 2003270, at *2; McKesson, 2017 WL 11675692, at *4.
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that would justify their hourly rates in comparison to other attorneys of the same
experience and qualifications practicing in this market. Instead, Mr. Adams provides a
conclusory assertion that Plaintiff’s counsel charged reasonable fees based on his
“knowledge and experience” and his irrelevant observation that these attorneys charged
rates that are “significantly lower than [his] own hourly rates.”
88
The Court has a great
deal of discretion in determining the reasonableness of attorneys’ fees.
89
Rather than base
its reasonableness determination solely on Mr. Adams’ declaration, the Court will fashion
a reasonable fee for these three Plaintiff’s attorneys based on the Adams affidavit, the
Court’s own knowledge and experience, as well as recent case law from this district.
90

The Court first addresses the rates of Ms. Gauthier. As of 2026, Ms. Gauthier has
thirteen years’ experience as a practicing attorney.
91
Courts in this district have reduced
the hourly rates of attorneys with a similar range of experience as Ms. Gauthier to between
$275 and $350 dollars an hour.
92
In fact, in MGMTL, LLC v. Strategic Tech. Inst., Inc.,
Chief Judge Vitter of this district court awarded Gautier an hourly rate in the year 2023
of $275 per hour.
93

Plaintiff has not met its burden of proving Ms. Gauthier’s requested rate is
reasonable in light of both the market rate for attorneys of similar experience in this
district and the hourly rates of the other attorneys in this case. For 2025 and 2026,
Plaintiff counsel’s firm charged a higher rate for Ms. Gauthier’s services than for Mr.

88
R. Doc. 185-1 at p. 1.
89
Luv N' Care, Ltd. v. Rimar, No. CV 15-2349, 2017 WL 127464, at *2 (W.D. La. Jan. 12, 2017).
90
Shaw, 2024 WL 1556861, at *3.
91
R. Doc. 176-10 at p. 14.
92
Shaw v. Alpha Air & Heating, L.L.C., No. CV 22-3953, 2024 WL 1556861, at *3 (E.D. La. Apr. 10,
2024)(finding an hourly rate of $325 reasonable for an attorney with 13 to 14 years of experience); Grant
v. Gusman, No. CV 17-2797, 2023 WL 315937, at *13 (E.D. La. Jan. 19, 2023)(finding an hourly rate of $275
reasonable for an attorney with 11 years’ experience).
93
776 F. Supp. 3d 419, 478 (E.D. La. 2025).
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14
Demosthenidy’s
94
even though Mr. Demosthenidy served as lead counsel in this matter
and has twenty years’ experience as a practicing attorney in this area of law. Moreover,
considering caselaw from this district, the hourly rate for attorneys with Ms. Gauthier’s
level of experience is less than the $400 dollar range that Plaintiff argues is reasonable.
95

Although Ms. Gauthier has gained more experience and expertise since Judge Vitter
awarded her an hourly rate of $275 when trying a case in 2023,
96
the three years of
experience she has gained since then do not justify the requested increase in her hourly
rate. Accordingly, the Court will reduce Ms. Gauthier’s hourly rate to $325 per hour for
2025 and $350 per hour for 2026.
The Court now addresses the rates of Mr. Gilbert and Ms. Ball. As of 2026, Mr.
Gilbert has nine years of experience as a practicing attorney while Ms. Ball has six years
of experience.
97
Courts in this district have awarded hourly rates of $300 or less to
attorneys with greater experience than Mr. Gilbert and Ms. Ball. In Grant v. Gusman,
Judge Brown on this district court awarded an attorney with 11 years’ experience an
hourly rate of $275.
98
Similarly, in Master Insulation, Inc. v. GH Mech. & Servs., LLC,
Judge Fallon recently awarded an attorney with eleven years’ experience an hourly rate
of $300.
99
Considering these rates along with the fact that the Court is awarding Ms.
Gauthier hourly rates of $325 and $350, the Court will award Mr. Gilbert an hourly rate
of $275 for 2025 and $300 for 2026 and Ms. Ball $250 for 2026.
During oral argument before the Magistrate Judge, Plaintiff’s counsel requested
that, were the Magistrate Judge to reduce any of Plaintiff counsel’s requested rates, the

94
Mr. Demesthenidy charged Plaintiff hourly rates of $325 for 2025 and $390 for 2026. R. Doc. 195 at p.
2.
95
Shaw, 2024 WL 1556861, at *3; Grant, 2023 WL 315937, at *13.
96
MGMTL 776 F. Supp. 3d at 478.
97
R. Doc. 176-10 at pp. 17-19.
98
No. CV 17-2797, 2023 WL 315937, at *13 (E.D. La. Jan. 19, 2023).
99
No. CV 23-5638, 2026 WL 205577, at *9 (E.D. La. Jan. 27, 2026).
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15
Magistrate Judge increase the rates for Plaintiff’s counsel who reduced their rates as a
courtesy to Plaintiff because of its non-profit status.
100
In its motion for attorneys’ fees
and costs, Plaintiff represents that attorneys Sean Brady, Harold Flanagan, and Laurent
Demosthenidy each charged reduced hourly rates “to assist [Plaintiff] in recovering
amounts owed to it by its insurer.”
101
However, Plaintiff did not provide these attorneys’
regular hourly rates or request an increase in the rates the attorneys charged Plaintiff in
its motion for attorneys’ fees.
102
Based on Plaintiff’s representation that these were
reduced rates and that Plaintiff’s counsel did not bill Plaintiff for any paralegal time spent
on this matter, the Magistrate Judge recommended the Court consider increasing the
rates for Mr. Brady, Mr. Flanagan, and Mr. Demosthenidy, in the event it reduced the
hourly fees for Ms. Gauthier, Mr. Gilbert, and Ms. Ball.
103
In its response to Defendant’s
objections, in a footnote, Plaintiff reiterated its request that the Court compensate it for
any reduction to counsel’s hourly rates by increasing the hourly rates for Mr. Brady, Mr.
Flanagan, and Mr. Demosthenidy.
104

Plaintiff’s motion for attorneys’ fees and costs did not seek hourly rates for Mr.
Brady, Mr. Flanagan, and Mr. Demosthenidy in excess of the rates actually charged to the
Plaintiff.
105
Nor did the motion disclose these attorneys’ regular hourly rates or the terms
of any “package deal” on rates.
106
Only at oral argument on the motion for attorneys’ fees
and costs, and in Plaintiff’s reply to Defendant’s objection to the Report and
Recommendation, is the possibility of an increase in these attorneys’ hourly fees raised.
Because the Plaintiff did not request an increase in these attorneys’ rates in its motion for

100
R. Doc. 203 at p. 9, n.41.
101
R. Doc. 176-1 at p. 8.
102
Id.
103
R. Doc. 203 at p. 9, n.41.
104
R. Doc. 212 at p. 6, n.22.
105
R. Doc. 176-1 at pp. 8-9.
106
See id.
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16
attorneys’ fees, Defendant did not object to the fees sought for Mr. Brady, Mr. Flanagan,
or Mr. Demosthenidy. The Court has no evidence from which it can discern that the rates
awarded to these three attorneys are below the market rates for attorneys with their levels
of experience in this market. In fact, in the motion for attorneys’ fees and costs, Plaintiff’s
counsel stated, “[t]he rates charged by Rayne’s counsel are reasonable rates in this market
and are in line with the experience and ability of Rayne’s lawyers.”
107
When the requested
hourly rate is not contested, like in this case, it is prima facie reasonable.
108
The rates of
these three attorneys were not contested. Based on the Court’s experience and caselaw in
our district, the Court finds these rates to be reasonable, and they will not be increased or
reduced.
109
The Court will not entertain a “footnote request” for a rate increase at this
stage.
B. Plaintiff did not meet its burden of proving its counsel exercised
appropriate billing judgment, and their fee will be reduced;
Plaintiff’s attorneys’ fees will not be reduced for block billing.

The Court will now address Defendant’s objection regarding Plaintiff’s billing
judgment and practices. Defendant objects to the Plaintiff being awarded $563,002.10 in
attorneys’ fees, arguing Plaintiff did not provide satisfactory evidence that its attorneys
exercised appropriate billing judgment.
110
Defendant argues Plaintiff relies solely on Mr.
Demosthenidy’s declaration attesting that Plaintiff’s counsel “wrote off $130,802 of
attorney time that was recorded but not sought in connection with Rayne’s application

107
Id. at p. 8.
108
Girod LoanCo, L.L.C. v. Klein, No. CV 24-2366, 2025 WL 1474736, at *3 (E.D. La. May 22, 2025)(citing
White v. Imperial Adjustment Corp., No. 99-3804, 2005 WL 1578810, at *5 (E.D. La. June 28, 2005)).
109
See, e.g., Archer W. Contractors, L.L.C. v. McDonnel Grp., L.L.C., 2025 WL 2088911, at *4-6 (E.D. La.
July 9, 2025) (finding hourly rates of $455 for attorney with 36 years of experience and $345 for attorney
with 30 years of experience to be reasonable); Hubert v. Curren, No. CV 18-7669, 2018 WL 4963595, at *4
(E.D. La. Oct. 15, 2018) (assigning an hourly rate of $300 as reasonable for an attorney with 17 years of
experience where $400 per hour had been requested).
110
R. Doc. 209 at p. 1.
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17
for fees and costs” and did not charge for paralegal work.
111
Defendant further argues that
the attorneys’ fees should be reduced for amounts that contained block billing.
112

“Plaintiffs seeking attorney’s fees have the burden of showing the reasonableness
of the hours billed and that the attorneys exercised billing judgment.”
113
Billing judgment
“refers to the usual practice of law firms in writing off unproductive, excessive, or
redundant hours.”
114
To meet this burden, parties must provide “documentation of the
hours charged and of the hours written off as unproductive, excessive, or redundant.”
115

“The Fifth Circuit has repeatedly determined that bald assertions regarding the exercise
of billing judgment are insufficient.”
116
“[I]n determining the amount of an attorney fee
award, courts customarily require the applicant to produce contemporaneous billing
records or other sufficient documentation so that the district court can fulfill its duty to
examine the application for noncompensable hours.”
117
Despite this custom, “[f]ailing to
provide contemporaneous billing statements does not preclude an award of fees per se,
as long as the evidence produced is adequate to determine reasonable hours.”
118
“The
proper remedy for omitting evidence of billing judgment does not include a denial of fees
but, rather, a reduction of the award by a percentage intended to substitute for the

111
R. Doc. 185-2.
112
R. Doc. 209 at p. 5.
113
Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013).
114
Walker v. U.S. Dep’t of Hous. & Urb. Dev., 99 F.3d 761, 769 (5th Cir. 1996).
115
Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 (5th Cir.2006).
116
Fralick v. Plumbers & Pipefitters Nat. Pension Fund, No. 3:09-CV-0752-D, 2011 WL 487754, at *3 (N.D.
Tex. Feb. 11, 2011)(citing Saizan, 448 F.3d at 800 (concluding that fee applicant's arguments for neglecting
to list unbilled time were “unconvincing ” and upholding reductions for lack of billing judgment); see also
Hopwood v. Texas, 236 F.3d 256, 279 (5th Cir.2000) (upholding reductions for lack of billing judgment
where there was evidence of inadequate time entries and duplicative work product, and finding that lead
attorney's affidavit that he exercised billing judgment, without more, did not demonstrate abuse of
discretion).
117
Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995).
118
Id. at 325.
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18
exercise of billing judgment.”
119
Courts in this circuit have applied 5-15% reductions in
awards of attorneys’ fees for counsel’s lack of billing judgment.
120

Parties do not produce sufficient evidence of billing judgment when they do not
submit documentation confirming counsel’s claims that they wrote off time. In Cox v.
Mignon Faget, Judge Africk of this district court found a plaintiff did not offer sufficient
evidence of billing judgment when counsel did not provide “documentation of unbilled
time” and instead submitted “a spreadsheet of their billed time that [allegedly] excluded
time written off.”
121
Judge Africk reduced the award of attorneys’ fees by 5% because the
plaintiff had failed to provide any documentation confirming counsel’s assertions that
they wrote off time.
122
Similarly, in Cajun Services Unlimited, LLC v. Benton Energy
Service Company, Judge Ashe of this district court reduced an award of attorneys fees by
10% when counsel failed to provide evidence of billing judgment beyond their
“declarations attesting” that they exercised such judgment.
123

Plaintiff has failed to meet its burden of proving that its counsel exercised billing
judgment. The Fifth Circuit has held that parties must provide “documentation of the
hours charged and of the hours written off as unproductive, excessive, or redundant.”
124

Plaintiff offers the declaration of Mr. Demosthenidy in which he states that Plaintiff’s
counsel “wrote off $130,802 of attorney time that was recorded but not sought in
connection with Rayne’s application for fees and costs.”
125
Mr. Demosthenidy further

119
Saizan, 448 F.3d at 799.
120
See id. at 800 (imposing a 10% reduction for lack of billing judgment); see also Walker, 99 F.3d at 770
(imposing 15% reduction for lack of billing judgment); Leroy v. City of Houston, 831 F.2d 576, 586 (5th Cir.
1987) (imposing a 13% reduction for inadequate documentation); Tech Pharm. Servs., 298 F. Supp. 3d at
906 (reducing the number of each firm's hours by 6% for lack of billing judgment); Innovention Toys, LLC
v. MGA Entm't, Inc., 2014 WL 1276346, at *4 (E.D. La. Mar. 27, 2014) (reducing the submitted hours by
10% for lack of evidence of billing judgment).
121
No. CV 24-1068, 2025 WL 2022669, at *8 (E.D. La. July 18, 2025).
122
Id. at *9.
123
No. CV 17-491, 2021 WL 5833967, at *5 (E.D. La. Dec. 9, 2021).
124
Saizan, 448 F.3d at 799.
125
R. Doc. 185-2.
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19
states in his supplemental declaration that these write offs “included any time recorded
for two additional attorney timekeepers who assisted with discrete tasks when multiple
motion or opposition deadlines fell on the same deadline” and that no paralegal time was
billed.
126
However, Plaintiff has not provided any detailed evidence documenting these
write offs. First, Plaintiff does not offer attorney billing records showing the hours written
off as unproductive, excessive, or redundant.
127
While such contemporaneous billing
statements are not necessarily required, like counsel in Cox and Cajun Services, Plaintiff
fails to provide any documentation of the work written off that would allow the Court to
determine whether counsel exercised adequate billing judgment. Instead, Plaintiff
essentially provides bald assertions that counsel’s firm wrote off time rather than actual
evidence of hours written off, which courts in this circuit have found insufficient to
demonstrate billing judgment.
128
Second, Plaintiff’s counsel did not provide any evidence
that paralegals worked on the case but their time was not billed. As Plaintiff has not
provided contemporaneous records or other forms of evidence showing that the firm
actually wrote off time or that it did not charge for paralegals, it has failed to offer
documentation sufficient to demonstrate billing judgment.
129
Accordingly, Plaintiff has
failed to carry its burden of demonstrating its counsel exercised billing judgment, and the
Court will apply a 5% reduction to Plaintiff’s attorneys’ fees award.
The Court will not reduce Plaintiff’s attorneys’ fees for use of block billing.
Although Plaintiff’s counsel’s occasionally practiced block billing, “a reduction for block
billing is not automatic” so long as the evidence produced is adequate to determine

126
Id.
127
Saizan, 448 F.3d at 799.
128
Fralick v. Plumbers & Pipefitters Nat. Pension Fund, No. 3:09-CV-0752-D, 2011 WL 487754, at *3 (N.D.
Tex. Feb. 11, 2011).
129
See Saizan, 448 F.3d at 799.
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20
whether counsel expended reasonable hours.
130
The Court finds counsels’ descriptions
sufficiently detailed to allow the Court to determine that they expended a reasonable
number of hours in this matter. As a result, the Court will not reduce Plaintiff’s attorneys’
fees for use of block billing.
131

II. Defendant’s objection to the award of costs under La.R.S. 22:1892 is
sustained; Plaintiff will be awarded costs under federal law.

The Magistrate Judge recommended the Court award Plaintiff $341,489.41 in costs
under La R.S. 22:1892.
132
Defendant objected to the recommendation and argues that in
a diversity action it is error to award costs under La. R.S. 22:1892 rather than under Fed
R. Civ. P. 54(d) and 28 U.S.C. § 1920.
133
The costs awarded to Plaintiff differ greatly
depending on whether this Court applies federal law or La. R.S. 22:1892. 28 U.S.C. § 1920
does not provide for recovery of many items, including “expert witness fees, e-discovery
expenses, and jury consultant fees.”
134
The Court must conduct a de novo review of this
portion of the Magistrate Judge’s recommendation to determine whether state or federal
law applies to the award of costs.
135

Because this is a diversity action, the Court faces a choice-of-law problem: whether
to apply state or federal law. Fortunately, the recent United States Supreme Court
decision in Berk v. Choy
136
guides this analysis. Berk involved a state medical malpractice
claim filed in federal court by way of diversity jurisdiction.
137
Delaware law required an
affidavit of merit signed by a medical professional to accompany a medical malpractice

130
Fralick, 2011 WL 487754, at *5.
131
As neither party objects to the Magistrate Judge’s finding that no adjustment to the lodestar under the
Johnson factors is warranted, the Court will not order such an adjustment.
132
R. Doc. 203 at pp. 28-29.
133
R. Doc. 182 at p. 8.
134
Rimini St., Inc. v. Oracle USA, Inc., 586 U.S. 334, 342 (2019).
135
Fed. R. Civ. P. 72(b)(3).
136
607 U.S. 187, 192 (2026).
137
Id. at 190.
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21
complaint.
138
The plaintiff, who did not file an affidavit and was unable to do so in the
extended time the district court granted, then claimed that the state law was
unenforceable in federal court, because it displaced Fed. R. Civ. P. 8, which “prescribes
the information a plaintiff must present about the merits of his claim at the outset of
litigation.”
139
The Supreme Court found the federal and state rules to be in direct conflict,
because the affidavit requirement “demands more,” since “[u]nder Rule 8, factual
allegations are sufficient, but under the Delaware law, the plaintiff needs evidence too.”
140

The Supreme Court applied Rule 8: “Because Rule 8 and [the Delaware law] answer the
same question, Rule 8 governs so long as it is valid under the Rules Enabling Act.”
141

The Rules Enabling Act authorizes the Supreme Court to adopt uniform rules of
procedure for district courts.
142
“The Rules of Decision Act
143
directs federal courts to
apply state substantive law, leaving federal law to cover the rest.”
144
The “Rules of
Decision Act dictates that state substantive law must yield if the Constitution, a treaty, or
a statute ‘otherwise require(s) or provides(s).”’
145
Deciding whether a state law is
substantive usually requires a court to enter “Erie’s murky waters.”
146
This is not the case
when a Federal Rule of Civil Procedure is on point, in which case the court may bypass
Erie’s inquiry altogether.
147

In Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co,
148
the Supreme Court
found the question of whether a federal rule replaces a state rule to be straightforward.
149

138
Id.
139
Id. at 193.
140
Id. at 194.
141
Id. at 198.
142
28 U.S.C. § 2072(a).
143
28 U.S.C. § 1652.
144
Berk, 607 U.S. at 192.
145
Id.
146
Berk, 607 U.S. at 192.
147
Id.
148
559 U.S. 393, 398 (2010)).
149
Id.
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First, the court must determine whether there is a Federal Rule of Civil Procedure on
point; if so, the federal rule displaces state law whether the state law is substantive or
procedural, unless the federal rule “exceeds statutory authorization or Congress’s
rulemaking power.”
150
A Federal Rule of Civil Procedure is on point when it “answers the
question in dispute” and it is valid under the Rules Enabling Act.
151
To determine whether
a rule is valid under the Rules Enabling Act, the only question is whether the rule really
regulates procedure.
152

Under Shady Grove, the first step in the analysis is framing the question in dispute.
In this diversity action, the Court frames the question in dispute as whether the Plaintiff,
as a prevailing party, is entitled to recover costs and, if so, which costs. Fed. R Civ. P.
54(d)(1) answers this question;
Costs Other Than Attorney's Fees. 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. But costs
against the United States, its officers, and its agencies may be
imposed only to the extent allowed by law. The clerk may tax costs
on 14 days' notice. On motion served within the next 7 days, the court
may review the clerk's action.

There is no federal statute, no Federal Rule of Civil Procedure, and no court order
providing otherwise in this case. As a result, costs are allowed to the prevailing party.
28 U.S.C. § 1920 specifies those costs a judge or clerk of a federal court may tax as
costs in federal court:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for
use in the case;

150
Id.
151
Id.
152
Id. at 410.
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23
(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]
(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.
Because Fed. R. Civ. P. 54(d)(1), as implemented by 28 U.S.C. § 1920, answers the
disputed question, the federal rule will govern if it is valid under the Rules Enabling Act,
which authorizes the Supreme Court to adopt rules of procedure, but not substantive
rules.
153
“To determine whether a Rule is valid under the Rules Enabling Act, the only
question is whether it really regulates procedure.”
154
“[W]hat matters is what the Rule
itself regulates: If it governs only ‘the manner and the means’ by which the litigants’ rights
are ‘enforced,’ it is valid.”
155
Although the Rule may have some “practical effect on the
parties’ rights,” it is procedural if it regulates “only the process for enforcing those rights,”
not “the rights themselves, the available remedies, or the rules of decision.”
156

In Shady Grove, the Supreme Court addressed whether Fed. R. Civ. P. 23 displaced
a substantive New York state law.
157
After determining that Rule 23 answered the question
in dispute, the plurality opinion analyzed whether Rule 23 was valid under the Rules
Enabling Act or whether the rule exceeded statutory authorization or Congress’s
rulemaking power.
158
In this analysis, the plurality declined to consider whether the New

153
28 U.S.C. § 2072(a).
154
Berk, 607 U.S. at 192.
155
Shady Grove, 559 U.S. at 407 (quoting Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 446
(1946)).
156
Id. at 407–408.
157
Id. at 410.
158
See id. at 406.
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24
York state law that conflicted with Rule 23 was substantive or procedural because courts,
in analyzing whether a Federal Rule is valid under the Rules Enabling Act, should focus
only on whether the Federal Rule is substantive or procedural.
159
Specifically, the plurality
stated that “it is not the substantive or procedural nature or purpose of the affected state
law that matters, but the substantive or procedural nature of the Federal Rule.”
160

Accordingly, in determining whether a Rule of Civil Procedure is valid under the Rules
Enabling Act, courts should look only to whether the Federal Rule regulates procedure,
“regardless of [the federal rule’s] incidental effect upon state-created rights.”
161

As a result, this Court must determine only whether Rule 54(d)(1) really regulates
procedure. The Supreme Court has stated that, “[i]n applying this analysis, we have
‘rejected every statutory challenge to a Federal Rule that has come before us.”
162
This
Court will not be the first to declare that a Federal Rule of Civil Procedure does not really
regulate procedure.
163
Rule 54(d)(1) both answers the disputed question—whether the
Plaintiff, as a prevailing party, is entitled to recover costs and, if so, which costs—and is
valid under the Rules Enabling Act as it is a federal procedural rule. As the Supreme Court
explained in Shady Grove, when analyzing whether a Federal Rule is valid under the
Rules Enabling Act, the Court focuses on whether the Federal Rule is substantive or
procedural, not whether the affected state law is substantive or procedural.
164
Fed. R. Civ.
P. 54(d)(1) is procedural and does not exceed statutory authorization or Congress’

159
Id. at 409.
160
Id. at 410.
161
Id. Even if the Court were to consider whether La. R.S. 22:1892 creates a substantive right in determining
Rule 54(d)’s validity under the Rules Enabling Act, as discussed infra, the Fifth Circuit has found the award
of costs to be procedural. Cates v. Sears, Roebuck & Co., 928 F.2d 679, 688 (5th Cir. 1991).
162
Berk v. Choy, 607 U.S. 187, 199 (2026) (citing Shady Grove, 559 U.S. at 407).
163
In Lifepoint Church of Sulphur v. Church Mut. Ins. Co. S.I., the only federal decision found addressing
this specific issue, a judge in the Western District of Louisiana found that, even when a plaintiff recovers
under La. R.S. 22:1892, federal law applies to the taxation of costs. Lifepoint Church of Sulphur v. Church
Mut. Ins. Co. S.I., Judge Cain’s Memorandum Order, ECF No. 2:22-cv-02080 122 pp. 1-2.
164
559 U.S. at 410.
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25
rulemaking power.
Because there is a federal rule on point, the Court need not engage in an analysis
under Erie R.R. v. Tompkins.
165
Erie is not the appropriate test of the validity and
applicability of a Federal Rule of Civil Procedure. “The Erie rule has never been invoked
to void a Federal Rule.”
166

As the Supreme Court has said in Hanna v. Plumer:
It is true that both the Enabling Act and the Erie rule say, roughly, that federal
courts are to apply state ‘substantive’ law and federal ‘procedural’ law, but from
that it need not follow that the tests are identical. For they were designed to control
very different sorts of decisions. When a situation is covered by one of the Federal
Rules, the question facing the court is a far cry from the typical, relatively unguided
Erie Choice: the court has been instructed to apply the Federal Rule, and can refuse
to do so only if the Advisory Committee, this Court, and Congress erred in their
prima facie judgment that the Rule in question transgresses neither the terms of
the Enabling Act nor constitutional restrictions.
167

Once a federal rule is found to be on point and to answer the disputed question,
the Court must apply the federal rule, and “can refuse to do so only if the Advisory
Committee, this Court, and Congress erred in their prima facie judgment that the Rule in
question transgresses neither the terms of the Enabling Act nor constitutional
restrictions.”
168
This is the end of the analysis under Berk—the federal rule applies.
The Plaintiff skips the Berk and Shady Grove analysis of the disputed question and
whether a federal rule answers it. Instead, Plaintiff argues that, under Louisiana state law,
the right to recover costs based on La. R.S. 22:1892 is substantive, not procedural, and
thus, under Erie, the statute applies to allow an insured to recover all costs related to an
insurer’s bad faith.
169
The Plaintiff’s argument focuses on whether Louisiana state law is

165
304 U.S. 64 (1938).
166
Hanna v. Plumer, 380 U.S. 460, 470 (1965).
167
Id. at 471.
168
Id.
169
R. Doc. 176-1 at p. 10; R. Doc. 185 at p. 8.
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26
procedural or substantive, rather than on whether Rule 54(d) is procedural or
substantive. This does not comply with Shady Grove. Plaintiff argues that La. R.S.
22:1892 provides a “substantive right of action for a victim of insurer’s bad faith to recover
costs outside of the costs available to an ordinary prevailing party under Fed. R. Civ. P. 54
and 28 U.S.C. 1920.”
170
The Plaintiff argues the statute’s damages multiplier, attorney
fees, and costs are all penalties.
171

The Magistrate Judge acknowledged Berk but framed the disputed question as
“how to calculate the size of the penalty to which a bad faith insurer is subject under
Louisiana law.”
172
The Magistrate Judge compared Rule 54(d)(1) and La. R.S. 22:1892.
Using this comparison, the Magistrate Judge found Rule 54(d)(1) does not purport to alter
the arithmetic that Louisiana law uses to calculate an insured’s penalty.
173
Thus, the
Magistrate Judge found there is no federal rule on point, and the Court must wade into
“Erie’s murky waters.”
174

Based on Berk and Shady Grove, the Plaintiff’s and the Magistrate Judge’s
analyses are incorrect, as they focused on whether the state rule was substantive, not
whether the Federal Rule was. Even if the Court were to agree that there is no federal rule
on point and engage in an Erie analysis, the Court still would calculate Plaintiff’s award
of costs under federal law. Under Erie, whether state or federal law applies in a diversity
case depends on whether the state law is substantive or procedural.
175
The Plaintiff argues
La. R.S. 22:1892 provides a substantive right of action for the recovery of attorneys’ fees
and costs as a part of the penalty for bad faith. Thus, the Plaintiff argues the right to

170
R. Doc. 212 at p. 7.
171
Id.
172
R. Doc. 203 at p. 24.
173
Id. at p. 25.
174
Id.; see Berk v. Choy, 607 U.S. 187, 192 (2026).
175
Exxon Corp. v. Burglin, 42 F.3d 948, 950 (5th Cir.1995) (citing Erie, 304 U.S. 64).
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recover the penalty is substantive under Erie R.R. v. Tompkins
176
and, under Erie,
Louisiana law applies to the award of penalties against the Defendant, including the cost
component.
177

“Whether a particular provision is substantive or procedural for Erie purposes is
determined by looking to the ‘twin aims' of the Erie doctrine: the discouragement of
forum shopping and the avoidance of the inequitable administration of the laws.”
178

Controlling Fifth Circuit precedent exists on the issue of whether, under an Erie analysis,
a prevailing plaintiff in a diversity action recovers costs pursuant to Louisiana state law
or federal law. In Cates v. Sears, Roebuck & Co., the Fifth Circuit analyzed whether a
plaintiff in a diversity case can recover expert witness fees under Louisiana law as opposed
to federal law.
179
The plaintiff in Cates brought negligence and redhibition claims against
Sears, Roebuck for selling him an allegedly defective saw.
180
The jury awarded plaintiff
damages but the trial judge did not award him costs for expert witness fees.
181
On appeal,
the plaintiff argued that, because he recovered damages under Louisiana redhibition law,
he was entitled to compensation for expert witnesses pursuant to La. R.S. 13:3666, which
allows prevailing parties to receive costs for expert witnesses.
182
The Fifth Circuit denied
the plaintiff’s request and quoted 10 C. Wright, A. Miller, & M. Kane, Federal Practice &
Procedure § 2669 (1983), which provides:
The award of costs is governed by federal law. There has been some suggestion that
in diversity cases federal courts should look to state law as to costs, in deference to
the doctrine of Erie Railroad Company v. Tompkins. With regard to ordinary
items of costs, particularly those mentioned in Section 1920 of Title 28, the
suggestion clearly is unsound. Variations between state and federal practice in the

176
304 U.S. 64 (1938).
177
R. Doc. 176-1 at p. 10.
178
Carter v. Gen. Motors Corp., 983 F.2d 40, 43 (5th Cir. 1993)(citing Herbert v. Wal–Mart Stores, Inc.,
911 F.2d 1044, 1047 (5th Cir.1990)).
179
928 F.2d 679, 688 (5th Cir. 1991).
180
Id. at 682.
181
Id.
182
Id. at 687.
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assessment of costs after the case has been disposed of do not appear likely to
promote forum shopping or to affect “the outcome of the litigation” in any
significant way and therefore employing federal law does not violate the underlying
policies of the Erie principle. Furthermore, to require federal courts to look to state
law in diversity cases would amount to treating the sections of the Judicial Code
regulating costs and Rule 54(d) as invalid in those actions, a possibility that
conceivably might have been justified under the Erie opinion itself but one that has
been uniformly rejected by scholars and is not supported by the case law since the
Erie decision.
183

The Cates court acknowledged that, twenty-three years earlier, in Henning v. Lake
Charles Harbor and Terminal Dist., the Fifth Circuit allowed a party in a diversity
proceeding to recover expert fees under Louisiana law.
184
In Henning, a Louisiana
political subdivision filed suit to condemn 26.62 acres of land owned by private
individuals.
185
A nonresident owner of the Louisiana land removed the expropriation
proceeding to federal court.
186
The trial court issued an order of expropriation and fixed
just compensation for the landowners including an award under La. R.S. 13:3666 of
$5,400, representing the amount the landowners owed in expert fees to consulting
geologists, consulting engineers, and appraisers.
187
On appeal, the landowners challenged
the taking’s constitutionality and the amount of compensation they received for the
condemnation.
188
The Fifth Circuit, without ruling on the constitutionality of the taking,
upheld the trial court’s award of $5,400 in expert fees based on Louisiana law because
article I, section 2 of the 1921 Louisiana Constitution provides that “private property shall
not be taken or damaged except for public purposes and after just and adequate
compensation is paid.”
189
The Fifth Circuit reasoned that, even though federal courts
ordinarily may not tax costs in excess of federal statutory amounts, an award of expert

183
Id. at 688.
184
Id. (citing Henning v. Lake Charles Harbor & Terminal Dist., 387 F.2d 264, 267 (5th Cir. 1968)).
185
Henning, 387 F.2d at 265.
186
Id.
187
Id.
188
Id.
189
See id. at 267.
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costs under La. R.S. 13:3666 was necessary to provide the property owners the just and
adequate compensation for their land the Louisiana Constitution guarantees them.
190
The
court held that awarding these property owners costs under La. R.S. 13:3666 “is a
substantive requirement of Louisiana law, a substantive right of the landowners, and
binding upon [the Fifth Circuit]” pursuant to Erie.
191

The Fifth Circuit explicitly limited the Henning holding to Louisiana eminent
domain proceedings in which the Louisiana Constitution mandates the landowner’s full
financial recovery.
192
The Fifth Circuit in Cates declined to award the plaintiff costs under
Louisiana law because the plaintiff in a negligence and redhibition claim has no special
state constitutional protection comparable to that of the landowners in Henning. As a
result, the Fifth Circuit found that “no violence is done to the twin aims of the Erie
doctrine by the application of federal procedural provisions to the taxing of costs,
including expert witness fees.”
193
The Cates court explained that “absent an express
indication from the Louisiana legislature, or its courts, of Louisiana’s special interest in
providing litigants with recovery of expert witness fees in redhibition cases, the trial court
did not err in declining to exceed the statutory witness compensation provisions” under
federal law.
194
Since then, the Fifth Circuit in Chevalier v. Reliance Ins. Co. of Illinois has
examined Henning and confirmed that it is confined to Louisiana eminent domain
proceedings.
195

Plaintiff argues it is entitled to recover all litigation-related costs.
196
In support of
its argument, Plaintiff cites to several Supreme Court cases it argues hold that the

190
Id.
191
Id.
192
See Cates, 928 F.2d at 689.
193
Id.
194
Id.
195
953 F.2d 877, 886 (5th Cir. 1992); see also Seal v. Knorpp, 957 F.2d 1230, 1237 (5th Cir. 1992).
196
R. Doc. 176-1 at p. 10; R. Doc. 185 at p. 8.
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recovery of costs is substantive,
197
but those cases concern attorneys’ fees and not costs.
198

It is well settled that in diversity cases, state law controls the award of attorneys’ fees, a
substantive right, where state law supplies the rule of decision.
199
The same is not true for
the award of costs.
200
Plaintiff cites Chambers v. NASCO, Inc.
201
and argues that “[a]n
award of penalties, attorney fees, and costs under a bad faith statute is substantive and
not procedural . . . .”
202
This sentence is not a quotation from Chambers, which awarded
attorneys’ fees, not costs, as a sanction for bad faith conduct under the court’s inherent
power when the actions were not adequately sanctioned under the Federal Rules.
203

Chambers does not stand for the proposition that the award of costs under La. R.S.
22:1892 is substantive.
204

Plaintiff acknowledges the holding in Cates—that the Louisiana Legislature or
Louisiana courts must expressly indicate Louisiana’s special interest in providing litigants
with a special form of recovery for parties to receive costs under state law—but
nevertheless argues the Court should calculate Plaintiff’s costs under La. R.S. 22:1892,
not federal law.
205
Plaintiff argues the Louisiana Legislature and Louisiana courts have
expressly indicated that the state of Louisiana has a special interest in providing insureds
with a mechanism for recovering all costs incurred because of an insurer’s bad faith.
206

Plaintiff argues by including “costs” as part of La. R.S. 22:1892’s penalty provision, the

197
R. Doc. 176-1 at p. 11; R. Doc. 185 at p. 8.
198
See e.g., People of Sioux Cnty., Neb., v. Nat’l Sur. Co., 276 U.S. 238, 244 (1928).
199
Sixela Inv. Grp. v. Hope Fed. Credit Union, No. CV 23-0277, 2025 WL 2882059, at *3 (W.D. La. Oct. 8,
2025), aff'd sub nom. Sixela Inv. Grp. v. Hope Fed. Credit Union, No. 25 30345, 2026 WL 2244193 (5th
Cir. 2026); Mathis v. Exxon Corp., 302 F.3d 448, 461 (5th Cir. 2002).
200
Carter v. Gen. Motors Corp., 983 F.2d 40, 43 (5th Cir. 1993).
201
501 U.S. 32, 52 (1991).
202
R. Doc. 176-1 at p. 11.
203
Chambers, 501 U.S. at 54-55.
204
Plaintiff repeats this incorrect assertion in its reply brief. R. Doc. 185 at p. 8.
205
R. Doc. 176-1 at pp. 12-13.
206
Id. at p. 11.
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Louisiana Legislature has expressed its intent to award insureds all costs incurred in their
litigation.
207

Plaintiff does not point to a Louisiana constitutional requirement or a statute
mandating that insureds such as Plaintiff receive reimbursement for all costs incurred as
a result of an insurer’s bad faith. Neither the Louisiana Legislature nor Louisiana courts
have expressly indicated that the state has a special interest in taxing all litigation related
costs against a bad faith insurer. While Plaintiff argues the language of La. R.S. 22:1892
demonstrates the Legislature’s clear intent to award an insured all of its costs, the statute
does not unambiguously provide such a result merely by mentioning the recovery of costs.
Rather, the statute provides that insureds may recover “costs” generally, without
specifying what costs or under what law the costs will be calculated. This lack of specificity
undermines the idea that the Louisiana Legislature expressly indicated its intent to
provide litigants, including those in federal court, with the ability to recover all case-
related costs.
Plaintiff cites Guillory v. Lee
208
as support for its statement that the Louisiana
Supreme Court “has observed that § 22:1892 creates a separate, substantive cause of
action for recovery of costs in addition to penalties and attorney’s fees.”
209
The issue in
that case was whether an insurer behaved arbitrarily and capriciously.
210
The court did
not address the insured’s award of costs, much less hold that recovery of costs in a
Louisiana court should be decided under La. R.S. 22:1892 rather than other provisions of
Louisiana law.
211

207
Id. at p. 12.
208
2009-0075 (La. 6/26/09), 16 So. 3d 1104, 1126.
209
R. Doc. 176-1 at p. 10.
210
Guillory, 16 So. 3d at 1126.
211
Id.
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Plaintiff points out that the Louisiana Third Circuit Court of Appeal in Guillory v.
Louisiana Farm Bureau Cas. Ins. Co. held that La. R.S. 22:1892 “allows the recovery of
all costs incurred by a plaintiff, without restriction to the ordinary taxable costs,” which
the Plaintiff cites as evidence that Louisiana courts have expressly indicated that insureds
have a right to recover all costs resulting from an insurers bad faith.
212
The Magistrate
Judge found this case persuasive in her analysis.
213
However, other Louisiana courts,
including the Louisiana Third Circuit in a case pre-dating its opinion in Guillory, but not
discussed in Guillory, did not find that La. R.S. 22:1892 creates a separate and distinct
measure for recovery of costs; instead, those courts have allowed a plaintiff, who
successfully brings a claim under La. R.S. 22:1892, to recover costs under Louisiana’s
general statutory provisions regulating the recovery of court costs—La. C.C.P. art.
1920, La. R.S. 13:4533, and La. R.S. 13:3666.
Even the Louisiana Third Circuit has done this. In Mason v. Shelter Mut. Ins. Co.,
the Louisiana Third Circuit, in a decision pre-dating Guillory, analyzed what costs an
insured, who recovered damages under La. R.S. 22:1892, could receive.
214
In its analysis,
the Third Circuit applied La. C.C.P. art. 1920 and La. R.S. 13:3666 to determine the
plaintiff’s costs.
215
La C.C.P. art 1920 provides that “costs shall be paid by the party cast,”
while La R.S. 13:3666 states that expert witnesses “shall receive additional compensation,

212
R. Doc. 176-1 at pp. 10-11 (citing Guillory v. Louisiana Farm Bureau Cas. Ins. Co., 2022-634 (La. App.
3 Cir. 10/4/23), 371 So. 3d 1202, 1212). Plaintiff also argues that restricting an insured’s award of costs
under La. R.S. 22:1892 to those already provided for under Louisiana law would render La. R.S. 22:1892’s
mention of costs meaningless and superfluous. Although it is a general tenet of Louisiana statutory
interpretation that “it is not presumed that the legislature inserted idle, meaningless or superfluous
language in a statute,” neither Plaintiff nor the Magistrate Judge cite a Louisiana case interpreting La. R.S.
22:1892 the way the Third Circuit did in Guillory v. Louisiana Farm Bureau Cas. Ins. Considering the lack
of consensus on the proper interpretation of how to award costs under La. R.S. 22:1892, it is not clear that
limiting an insured’s award of costs under this statute to those already provided for under Louisiana law
would render the statute’s language concerning costs “meaningless or superfluous.”
213
R. Doc. 203 at p. 27.
214
2016-135 (La. App. 3 Cir. 12/28/16), 209 So. 3d 860, 876.
215
Id.
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33
to be fixed by the court. . . .” The Mason court found the plaintiff could recover expert
witness costs under these general Louisiana provisions regarding costs, not that the
plaintiff’s recovery of costs associated with the litigation was under La. R.S. 22:1892
because the costs were part of the penalty.
216
Similarly, in PVCA, Inc. v. Pac. W. TD Fund,
LP, the Louisiana Fourth Circuit Court of Appeal also applied the Louisiana general cost
provisions to award a plaintiff expert witness fees when the plaintiff recovered damages
under La. R.S. 22:1892.
217
These cases demonstrate that Louisiana courts do not agree,
even within the Third Circuit, on whether La. R.S. 22:1892 creates its own basis and
measure of recovery of costs for an insurer’s bad faith. As a result, this Court finds the
Louisiana Legislature and the Louisiana courts have not expressed a strong special
interest in allowing insureds proceeding under La. R.S. 22:1892 to recover all court-
related costs under that statute.
Moreover, in Lifepoint Church of Sulphur v. Church Mut. Ins. Co. S.I., a federal
decision addressing this specific issue, a judge in the Western District of Louisiana found
that, even when a plaintiff recovers under La. R.S. 22:1892, federal law applies to the
taxation of costs.
218
In that case, the judge found that, absent an express indication
otherwise by the state legislature or state courts, the award of costs presents a procedural
question to which courts should apply federal law.
219
That court then calculated the
plaintiff’s costs award under 28 § U.S.C. 1920.
220
The only other federal authority this
Court has located agrees that the Louisiana Legislature and Louisiana courts have not

216
Id.
217
2021-0753 (La. App. 4 Cir. 7/13/22), 366 So. 3d 243, 248–49, writ denied, 2022-01220 (La. 11/8/22),
362 So. 3d 423.
218
Lifepoint Church of Sulphur v. Church Mut. Ins. Co. S.I., Judge Cain’s Memorandum Order, ECF No.
2:22-cv-02080 122 pp. 1-2.
219
Id. at p. 2.
220
Id.
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34
expressly indicated a special interest in awarding an insured costs under La. R.S. 22:1892
that would justify replacing federal law with state procedural law in a diversity case.
Thus, even under an Erie analysis, Cates requires the Court to apply federal law to
calculate Plaintiff’s award of costs in this diversity action.
221
Binding Fifth Circuit
precedent requires that the Louisiana Constitution, the Louisiana Legislature, or
Louisiana courts must have expressly indicated a special interest in providing litigants
with recovery of costs in order for a party in a federal diversity action to recover costs
under state law.
222
In Henning, the Fifth Circuit found such an express constitutional
requirement was present, allowing landowners to receive part of their costs incurred in
retaining experts, but only because the Louisiana Constitution required that property
owners in eminent domain proceedings receive “just compensation.”
223
The Fifth Circuit
has specifically limited the application of Henning to its facts, a condemnation case.
224

Accordingly, the Court will sustain the Defendant’s objection to the Magistrate
Judge’s recommendation and award Plaintiff costs under Fed R. Civ. P. Rule 54(d) and
28 U.S.C. § 1920.
CONCLUSION
The Court, having considered the record, the applicable law, relevant filings, and
the Magistrate Judge’s Report and Recommendation, DECLINES TO ADOPT the
Magistrate Judge’s findings of fact and conclusions of law with respect to the
reasonableness of three of Plaintiff counsel’s hourly rates, Plaintiff counsel’s exercise of
billing judgment, and the award of Plaintiff’s costs under Louisiana law. The Court

221
See Cates, 928 F.2d at 689.
222
Id.
223
387 F.2d 264, 267 (5th Cir. 1968).
224
Cates, 928 F.2d at 689.
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35
ADOPTS the Magistrate Judge’s findings of fact and conclusions of law that Plaintiff’s
award of attorneys’ fees need not be reduced for use of block billing.
IT IS ORDERED that Plaintiff submit a supplemental memorandum detailing
the attorneys’ fees and costs it seeks in light of this order and reasons on or before
Wednesday, August 19, 2026. The memorandum should include a calculation of
Plaintiff’s attorneys’ fees considering the hourly rates this Court has awarded for the work
of Ms. Gauthier, Mr. Gilbert, and Ms. Ball. The Court will then make a 5% reduction in
the total fees for billing judgment. In addition, the memorandum should detail the costs
Plaintiff seeks to recover under federal law.
IT IS FURTHER ORDERED that Defendant may file an opposition to Plaintiff’s
supplemental memorandum on or before Monday, August 24, 2026.
New Orleans, Louisiana, this 10th day of August, 2026.

________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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