Liner v. Terminix Pest Control, Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOUIS LINER 	CIVIL ACTION
VERSUS NO: 	22-03698 and
22-3701
TERMINIX PEST CONTROL, INC. 	SECTION: “H” (4)
REPORT AND RECOMMENDATION
Before the Court is Plaintiffs’ Motion for Determination of Attorney’s Fees and
Expert Expenses (R. Doc. 97). On July 15, 2025, the District Court determined that the
Plaintiffs were entitled to recover reasonable attorneys’ fees and expert witness fees in an
amount to be determined by the assigned Magistrate Judge. The Plaintiffs have complied with
the District Judge’s Order and timely filed the subject motion.
I. 	Background
On October 6, 2022, Plaintiffs commenced separate Title VII religious discrimination
actions against Defendant Terminix Pest Control, Inc. R. Doc. 1. Two years later, on October 9,
2024, the two actions were consolidated under Liner v. Terminix Pest Control, 2:22-cv-3698 (R.
Doc. 37), and the jury returned a verdict in favor of the Plaintiffs for a combined total of
$795,000. See R. Doc. 89, 90.
On March 5, 2025, Terminix filed a Motion for Judgment as a Matter of Law and
Mistrial. R. Doc. 92. On July 15, 2025, Judge Jane Triche Milazzo issued an Order and Reasons.
R. Doc. 94. The Judge granted in part and denied in part the Motion for Judgment as a Matter of
Law. R. Doc. 95.
Judge Milazzo denied a mistrial and entered judgment in favor of Louis Liner for
$125,000 and Gregg Smith for $85,000, after setting aside punitive damages and reducing the
compensatory damages award to the Title VII cap on compensatory damages of $50,000. 	R.
Doc. 95 at 14.
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In addition, Judge Milazzo awarded Plaintiffs attorney’s fees and expert expenses as
follows:
The Court awards Plaintiff reasonable attorneys’ fees and expert witness fees in
an amount to be determined by the assigned Magistrate Judge. Plaintiff shall file a
motion 	for 	determination 	of 	attorneys’ 	fees 	and 	expert 	witness 	fees 	with
supporting documentation, by no later than 14 days from the date of this Order. R.
Doc. 94 at 15.
Now, Plaintiffs submit a fee request for $158,925.00 in attorneys’ fees and $21,290.00
expert expenses totaling $180,215.00.
The motion is opposed. R. Doc. 102. The Defendant does not dispute that fees should be
awarded but requests that the Court significantly reduce attorney’s fees and expert fees as
requested by Plaintiffs. Id. at 1. Defendant particularly contends that Plaintiffs should not be
entitled to expert fees at all. Id. at 12.
II. 	Standard of Review
The Supreme Court has specified that the “lodestar” calculation is the “most useful
starting point” for determining the award for attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). 	Lodestar is computed by “… the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” Id. The lodestar calculation, “...provides an
objective basis on which to make an initial estimate of the value of a lawyer’s services.” Id. Once
the lodestar has been determined, the district court must consider the weight and applicability of
the twelve factors delineated in Johnson. See Watkins v. Forcide, 7 F.3d 453, 457 (5th Cir.
1993); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).
Subsequently, if the Johnson factors warrant an adjustment, the court may make modifications
upward or downward to the lodestar. Id. 	However, the lodestar is presumed to be a reasonable
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calculation and should be modified only in exceptional circumstances. Id. (citing City of
Burlington v. Dague, 505 U.S. 557, 562 (1992)).
The party seeking attorney’s fees bears the burden of establishing the reasonableness of
the fees by submitting “adequate documentation of the hours reasonably expended” and
demonstrating the use of billing judgement. Creecy v. Metro. Prop. & Cas. Ins. Co., 548 F. Supp.
2d 279, 286 (E.D. La. 2008) (citing Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th
Cir.1997)).
III. 	Analysis
A. 	Attorney Fees
Louis Liner and Greg Smith seek to recover fees for its attorney David J. Schexnaydre. R.
Doc. 97. In support of Schexnaydre’s hourly rate, his Affidavit states that he has been admitted
to practice law since 1991. R. Doc. 97-6 at 1. He also verifies that he has more than twelve years
of experience in handling vaccine injury cases and is one of the nation’s leading vaccine mandate
attorneys. Id. He additionally attests that he is representing over 600 plaintiffs in eleven district
courts and six federal appeals circuits. Id. Likewise, Schexnaydre states that he is a member of
Freedom Counsel, a nationwide organization of civil rights lawyers. Id.
Plaintiffs’ counsel further contends that he seeks payment only for work that was
necessary to winning the Title VII claim. R. Doc. 97-1 at 4. Counsel contends that some of his
work on the dismissed claims were inextricably intertwined, both factually and legally, with the
Title VII claim and should be included in the fee award. Id. To the extent that his work pertained
solely to the dismissed claims and did not support the Title VII claim, Plaintiffs’ counsel
contends that he removed those charges from his billing record. Id.
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However, the Defendant contends that while the Plaintiffs are entitled to a fee award, the
invoices submitted by their counsel suggests that a reduction is appropriate because (1) the
application shows errors in the exercise of billing judgment, (2) it includes fees for work
performed on dismissed claims, (3) several entries are vague and not applicable to the present
case, and (4) several entries are excessive and/or duplicative. See R. Doc. 102.
i. 	Reasonable Hourly Rate
Schexnaydre contends that his rate is $375 per hour, which he claims is $100 less than
what he usually charges in vaccine injury cases. R. Doc. 97-1 at 6. Notably, the Defendant does
not challenge the reasonableness of this rate given Schexnaydre’s years of experience. Instead, it
only challenges the reasonableness of the hours billed.
The “appropriate hourly rate. . .is the market rate in the community for this work.” Black
v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing Smith & Fuller, P.A. v. Cooper Tire
& Rubber Co., 685 F.3d 486, 490 (5th Cir.2012)). Specifically, the rate must be calculated “at
the ‘prevailing market rates in the relevant community for similar services by attorneys of
reasonably comparable skills, experience, and reputation.’” Int’l Transp. Workers Fed’n v. Mi-
Das Line, SA, 13–00454, 2013 WL 5329873, at *3 (E.D. La. Sept. 20, 2013) (quoting Blum v.
Stenson, 465 U.S. 886, 895 (1984)). Satisfactory evidence of the reasonableness of the rate
necessarily includes an affidavit of the attorney performing the work and information of rates
actually billed and paid in similar lawsuits. Blum, 465 U.S. at 896 n.11. When the attorney’s rate
is uncontested, it is prima facie reasonable. See Powell v. C.I.R., 891 F.2d 1167, 1173 (5th Cir.
1990) (quoting Islamic Ctr. of Mississippi v. City of Starkville, 876 F.2d 468, 469 (5th Cir.
1989).
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Similar to Powell, because the Defendant does not challenge the Plaintiffs’ attorney’s
rate, it is prima facie reasonable. Therefore, the Court finds that the rate of $375.00 is a
reasonable rate considering counsel’s background and years of experience.
ii. 	Hours Reasonably Spent on Litigation
Plaintiffs contend that they seek to recover attorney’s fees totaling $180,215.00 in
attorney’s fees. R. Doc. 97-1 at 6. He contends that he billed 427.50 hours on two cases
combined. Id. Plaintiffs’ counsel also contends that all of the work he performed was reasonable
and necessary for getting the Plaintiffs’ claim investigated, discovered, prepared for trial, and
tried. Id.
The Defendant contends that the lodestar should determine an award for fees and that
Plaintiffs bear the burden of establishing the reasonableness of the fee sought. R. Doc. 102 at 1.
The Defendant argues that the Plaintiffs’ fee request should be reduced because (1) there are
errors in counsels billing judgment, (2) there are numerous block billing entries in the invoices;
(3) the invoices contain entries that are vague and not applicable to the case; and (4) the invoices
contain entries that are excessive and duplicative. Id.
Attorneys must exercise “billing judgment” by excluding time that is unproductive,
excessive, duplicative, or inadequately documented when seeking fee awards. Creecy v. Metro.
Prop. & Cas. Ins. Co., 548 F. Supp. 2d 279, 286 (E.D. La. 2008); Walker v. United States Dep't
of Housing & Urban Dev., 99 F.3d 761, 769 (5th Cir.1996). The party seeking the award must
show all hours actually expended on the case but not included in the fee request. Leroy v. City of
Houston, 831 F.2d 576, 585 (5th Cir.1987). Hours that are not properly billed to one's client are
not properly billed to one's adversary. Hensley, 461 U.S. at 434, 103 S. Ct. 1933. The remedy for
failing to exercise billing judgment is to reduce the hours awarded as a percentage and exclude
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hours that were not reasonably expended. Id. Alternatively, this Court can conduct a line-by-line
analysis of the time report. See Green v. Administrators of the Tulane Educational Fund, 284
F.3d 642, 662 (5th Cir.2002).
As an initial matter, the hours which the plaintiffs seek to recover at a rate of $375.00 per
hour totals $158,925.00, not $180,215.00 as claimed on page 6 of Plaintiffs’ supporting
memorandum.1 R. Doc. 97-1 at 1,6. Also included in the fee application is an invoice for a
vaccine injury case that is partially redacted. See R. Doc. 97-5, Exhibit D, Invoice #11809. The
invoice contains 6.5 billing hours at a rate of $475.00 per hour for a total of $3,087.50. It is
unclear who the client is or whether the invoice relates to the case at all. The subject case
involved religious discrimination and not vaccine injury as stated on the invoice. Further, the rate
in Invoice #11809 does not match the rate that Schexnaydre is requesting in this case, which is
$375.00. For these reasons, the invoice does not appear to be for the subject case and is therefore
excluded.
iii. 	Block Billed Hours
The Defendant contends that $22,237.50 of the entries which total 60.5 hours are block
billed and should be reduced.2 R. Doc. 102 at 2. The Defendant contends that multiple entries
range from October 31, 2024, to February 16, 2025. Id. at 2-3. 	As a result, the Defendant
1 The Court notes a discrepancy where Plaintiffs stated the total attorney’s fee was $180,215.00 instead of
$158,925.00 on page 6 of their supporting memorandum. R. Doc. 97-1 at 6. However, the Plaintiffs noted
$180,215.00 includes both the attorney’s fees and expert expenses on page 1. The Court therefore concludes that the
$180,215.00 referenced as the total attorney fee amount on pg. 6 is a typographical error.
The Court further notes that the $375.00 rate x the 427.50 hours spent on the case actually totals $160,312.50 instead
of $158,925.00. However, a review of the record reveals that Plaintiffs’ counsel billed some entries at a rate of
$250.00 and at $0. Those entries will be addressed further in the Order.
2 Invoices: 10/31/24, 10/31/24, 11/01/24, 11/09/24, 11/12/24, 2/9/25, 2/10/25, 2/12/25, 2/13/25, 2/15/25, 2/16/25. R.
Doc. 102 at 2-3.
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contends that the time for these entries should be reduced using a specific percentage to be
determined by the Court. Id.
Plaintiffs contend that his block billed entries should not be reduced because the majority
of the contested entries are for a single activity described in detail. R. Doc. 103. At 1. According
to Plaintiffs’ counsel, the entries are for trial preparation or for drafting witness and exhibit lists.
Id. He additionally contends that those entries are not block billing because they involve the
same process of reviewing the entire file and listing witnesses and exhibits as the file is
reviewed. Id. at 2. Plaintiffs’ counsel further contends that rather than separately review the file
to prepare each list, he reviewed the documents once. Id. He contends that billing them
separately would amount to double billing. Id. For these reasons, Plaintiffs’ counsel contends
that the entries from October 31, 2024, and November 1, 2024, do not qualify as block billing.
Id.
Plaintiffs further contest the characterization of the entries for February 9, 10, 13, 15 and
16, 2025. R. Doc. 103 at 2. Plaintiffs suggest that these entries simply add detail to the trial
preparation activity. Id. Plaintiffs maintain that these entries were detailed to avoid an objection
of vague if it lacked sufficient detail. Id. 	Therefore, Plaintiffs contend that these entries should
not be discounted as well. Id.
Plaintiffs do concede that one entry challenged by the Defendant could be characterized
as a block billed entry, November 12, 2024. R. Doc. 103 at 2. Plaintiffs’ counsel notes that he
billed 4.0 hours for finalizing an opposition to the Defendant’s motion for summary judgment,
cross motion for summary judgment, and opposition to motion to compel. Id. As such, he
contends that 2.0 of the 4.0 hours should be billed, and that this entry constitutes less than 1% of
the total. Id.
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A court may reduce the number of hours used in a lodestar calculation as a result of block
billing. See Humphrey v. United Way of Tex. Gulf Coast, 802 F. Supp. 2d 847, 864 (S.D. Tex.
2011). However, “[a] reduction for block billing is not automatic.” Id. at 864 (citing Fralick v.
Plumbers & Pipefitters Nat’l Pension Fund, No. 3:09-cv-0752, 2011 WL 487754, at *5 (N.D.
Tex. Feb. 11, 2021). The practice of block-billing is particularly disfavored when the block-
billed entries correspond to motions to compel. See Drs. Le & Mui, Family Med. v. St. Paul
Travelers, No. 06-10015, 2007 WL 4547491, at *5 (E.D. La. Dec. 19, 2007); Engeron v. Fid.
Nat’l Ins. Co., No. 06-06618, 2008 U.S. Dist. LEXIS 129348, at *8-9 (E.D. La. Apr. 23, 2008).
Fifth Circuit courts typically reduce the block billing awards instead of removing the entire
award. See, e.g., Humphrey, 802 F. Supp. 2d at 864 (finding a 5% reduction in attorney fees
appropriate for block billing).
In reviewing the entries challenged by defense counsel as block billed, the Court finds
that each of the entries are examples of classic block billed entries. By way of example,
Plaintiffs’ counsel has two entries for October 31, 2024 for 3.60 hours each claimant (7.20 hours
total), for drafting the witness and exhibit lists and speaking with both clients.3 R. Doc. 97-4 at 6.
As written, it is impossible for the Court to determine how much time he spent speaking to each
client as compared to drafting either the witness or exhibit list and notably only one witness and
exhibit list is in the record.
Further, the court notes that Plaintiffs’ counsel billed an additional 2.0 hours to “review,
revise, finalize, and file witness & exhibit list.” R. Doc. 97-4 at 6. A total of 9.20 hours for these
3 The Court notes that for October 31, 2024, one entry is billed at $375.00 per hour, and the other entry is billed at
$250.00 per hour. R. Doc. 97-4 at 6. As such, it appears that he also charged each client for the same task despite the
case being consolidated on October 9, 2024. R. Doc. 37.
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tasks seem excessive as the document only contains seventeen witnesses and 23 exhibits within
five pages. R. Doc. 39.
For these reasons, the total hours billed containing block billed entries is 60.5 hours will
be reduced by 25% or to 45.37 hours. The Court notes that one entry is billed at $250.00 an hour,
while the rest of the entries are billed at $375.00. Accordingly, the total amount that Plaintiffs’
counsel is awarded amounts to $16,678.13.
iv. 	Work on Unsuccessful Claims
Next, the Defendant contends that the Plaintiffs are seeking fees for work performed on
claims that were dismissed. R. Doc. 102 at 4. Defendant disputes a total of 18.1 hours for Smith
(11.3 hrs.) and Liner (6.8) hours that stemmed from work mainly surrounding Defendant’s
motions to dismiss.4 See id at 4-6. Defendant notes that while the courts have found that fees for
unsuccessful claims can be recovered, it is only appropriate when they are inextricably
intertwined. Id. at 4. 	However, Defendant suggests in this case the work performed on the
unsuccessful claims were discrete and can be separated, and therefore the hours billed should be
excluded. Id.
In contrast, Plaintiffs claim that fees for their dismissed ADA and Louisiana state law
claims should not be dismissed because they were closely intertwined with the successful Title
VII claim. R. Doc. 103 at 3. Plaintiffs contend that all of the claims arose from the same set of
facts and that Plaintiffs’ counsel had to conduct research on the ADA claim elements and draft
oppositions to the motions to dismiss. Id. Plaintiffs suggest that the remaining entries reflect the
work that “contributed to the ultimate success on the Title VII claim.” Id.
4 Smith Invoice: 10/4/22, 01/11/23, 1/16/23, 1/17/23, 1/18/23, 1/19/23, 1/19/23, 1/23/23, 1/23/23, 8/16/23. R. Doc.
102. at 4-5. Liner Invoice: 10/4/22, 1/17/23, 1/18/23, 1/18/ 23, 1/19/23, 1/20/23, 1/23/23, 8/16/23. Id.
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In deciding the amount of attorneys' fees to which the prevailing party is reasonably
entitled, the Supreme Court has said that “the result is what matters.” Hensley v. Eckerhart, 461
U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). 	Thus, the degree of success
determines the extent to which the claimant may recover attorney fees, such that for “excellent
results,” a plaintiff should recover for his or her counsel “a fully compensatory fee,” but for
partial or limited success, fees based on the product of the hours reasonably expended on the
litigation as a whole and a reasonable hourly rate “may be an excessive amount.” Hensley, 461
U.S. at 435–36, 103 S. Ct. at 1940–41. As such, under the lodestar method, the district court
multiplies the number of hours reasonably expended by the relevant market rate for legal
services, then reduces the amount for partial success, if necessary. See Pennsylvania v. Delaware
Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439
(1986).
The record shows before the cases were consolidated, the Defendant filed its first Motion
to Dismiss both lawsuits claiming that Liner and Smith failed to demonstrate a connection
between their religious beliefs and termination or support an inference that Defendant’s alleged
hostility toward their belief was a motivating factor for their termination. R. Doc. 5-1 at 6. The
Defendant also challenged the cause of action brought under the Emergency Use Statute which
authorized the Secretary of Health and Human Services to introduce a drug intended for use in
the event of an emergency. Id. at 4. The Defendant specifically alleged that the requirements of
the statute did not apply to the action of private employers and therefore rendered the Court
without subject matter jurisdiction. Id. Lastly, Defendant claimed that Plaintiffs’ state law claims
should have been dismissed because they failed to plead viable federal claims before the Court to
establish federal original jurisdiction pursuant to 28 U.S.C. § 1331. Id. at 9.
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The Court first finds that the ADA claims were not intertwined. Judge Milazzo in her
opinion to the first motion to dismiss provided the following language:
Plaintiff’s Complaint does not allege that he has any blood clotting disorder or
myocarditis, only that he has the potential to develop these conditions based on
his family history. Regardless of whether Plaintiff’s family history of blood
clotting and myocarditis constitutes a physical impairment, the Court finds that
the inability to take certain medications and vaccinations is not a major life
activity akin to speaking, breathing, seeing, or hearing. Viewing all facts in the
light most favorable to Plaintiff, the Court finds that he does not plead the
necessary facts to show that he has a disability under the ADA. As such,
Plaintiff’s ADA claim fails. R. Doc. 15 at 6.
Next, the Court notes that Judge Milazzo declined to dismiss the Plaintiffs’ Louisiana law
claims in the first motion to dismiss and maintained Supplemental Jurisdiction because the Court
did not dismiss the Title VII religious discrimination claim. R. Doc. 15 at 8. However, the state
law claims were premised on other theories besides religion, and the District Court eventually
dismissed those claims in Defendant’s second motion to dismiss. R. Doc. 25 at 19. Therefore, the
Court finds that the state law claims were also not inextricably intertwined.
Regarding the Plaintiffs’ claim pursuant to the Emergency Use Statute, the Court finds
that it was not sufficiently intertwined as well. Judge Milazzo’s opinion gives guidance in this
determination as she stated:
The Court disagrees with this characterization of the law. This statute authorizes
the Secretary of Health and Human Services to approve medical products for use
in 	an 	emergency 	and 	“requires 	the 	Secretary 	to 	ensure 	product 	recipients
understand the ‘potential benefits and risks of use’ and ‘the option to accept or
refuse administration of the product.’” This statute gives the Secretary of Health
and Human Services power to act in an emergency. It does not confer a private
right to sue. Indeed, the Fifth Circuit has confirmed that this provision “neither
expands nor restricts the responsibilities of private employers; in fact, it does not
apply at all to private employers . . . It does not confer a private opportunity to sue
the 	government, 	employer, 	or 	worker. 	Thus, 	Plaintiff’s 	claim 	under 	the
Emergency Use Statute does not have merit and must be dismissed. R. Doc. 15 at
4.
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Therefore, each of the entries for Smith and Liner regarding the ADA, the Emergency
Use Statute, and Louisiana law were not legally sound claims. 	There is no question that Judge
Milazzo did not think that they were related to the Plaintiffs’ religious discrimination claims. As
such, the 11.3 hours billed on Smith’s invoice and 6.8 hours bill on Liner’s invoice for a total
18.1 should be excluded.
v. 	Vague/Excessive and Duplicate Entries
Defendant next challenges entries which it contends are either excessive, duplicative and
in some instances vague.5 R. Doc. 102 at 7. The Defendant specifically disputes 11.5 hours for
Smith and 32.2 hours Liner for a total of 43.7 hours. Id. at 7-8.
Plaintiffs contend however that these entries reflect the consolidated nature of the cases
after October 9, 2025.6 	R. Doc. 97-1 at 3. Plaintiffs contend that the post-consolidation time
entries were recorded on the Liner invoice to avoid duplication and that the pre-consolidation
entries on the Smith invoice reflect distinct work necessary for that case. R. Doc. 103 at 3. By
example, Plaintiffs claim the October 7, 2022, entry for preparing notices of lawsuit (0.80 hours)
was necessary for each case before consolidation and is not duplicative. Id. Similarly, Plaintiffs
claim the entries for drafting emails or motions to continue were minimal (0.10 to 0.50 hours)
and reflect routine case management tasks.7 Id.
Plaintiffs further contend that Defendant’s claim of excessiveness on the 3.20 hours spent
analyzing an audio recording on September 30, 2022, ignores the critical role that this evidence
5Smith invoice 10/07/22, 01/10/22, 01/20/22, 01/23/23, 02/23/23, 02/23/23, 02/23/23, 12/10/23, 02/23/23 (actually –
Year 2024), 02/23/23 (actually – Year 2024), 02/28/23 (actually – Year 2024), 02/28/23 (actually – Year 2024,
04/01/24, 04/01/24, 04/09/24, 04/09/24, 04/25/24, 06/20/24. R. Doc. 102 at 7-8. Liner’s invoice- 09/30/22,10/04/22,
10/07/22, 01/10/23, 01/20/23, 01/20/23, 01/23/23, 02/23/23, 02/23/23, 02/23/23, 12/10/23, 12/10/23, 02/28/23,
04/01/24, 04/01/24, 04/25/24, 06/20/24, 09/04/24, 09/04/24, 09/07/24, 09/07/24, 10/31/24, 10/31/24, 11/01/24. Id.
6 The record reflects the cases were actually consolidated on October 9, 2024. See R. Doc. 37.
7 The Court notes that Plaintiffs do not pinpoint the date for these entries.
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had in establishing the Title VII claims. R. Doc. 103 at 3-4. Plaintiffs also contend that the
subsequent 1.30 hours on October 4, 2022, for creating a transcript and revising the lawsuit
further refined this evidence for litigation. Id. Therefore, Plaintiffs maintain these tasks were
neither excessive nor duplicative but essential to securing the favorable verdict. Id. at 4.
Plaintiffs therefore maintain that the Court should reject Defendant’s request for a percentage
reduction based on these unfounded objections. Id.
Before addressing the entries challenged by Defendant, the Court notes a pattern where
many of the entries are billed at different rates – one is billed at $250.00, and the other is billed at
$375.00. Defendant raises the duplicity and excessiveness of the entries but does not otherwise
challenge the discrepancy in the rates. However, where a duplicate entry is billed at $250.00, the
Court will exclude that entry to ensure consistency with Plaintiffs’ counsel standard rate of
$375.00.
Additionally, as an initial matter, the Court notes the actual number of hours Defendant
disputes totals 43.3. Defendant first challenges the September 30, 2022, and October 4, 2022,
entries on Liner’s Invoice billing 3.20 hours for listening to and analyzing the audio recording
and revising the lawsuit. R. Doc. 102 at 9. Defendant points out that the Plaintiffs’ counsel on
October 4, 2022, again billed another 1.30 hours for listening to the audio recording in detail and
transcribing the tapes and revising the lawsuit. Id.
Even though the Defendant references September 30, 2022, and October 4, 2022, the
Court notes the entries actually occurred on September 26, 2022, and September 30, 2022,
respectively. See R. Doc. 97-4 at 1. On September 26, 2022, Plaintiffs’ counsel billed 0.90 hours
and 3.20 hours on September 30, 2022 totaling 4.9 hours. Id. He also billed 0.7 hours for
listening to the same recording on Smith’s invoice. R. Doc. 97-3 at 1.
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Given that the recordings were 36 mins total,8 these entries seem excessive. Further, it is
unclear what portion of the time was for drafting the complaint. 	Given that counsel billed on
three 	separate 	occasions 	for 	listening 	to 	a 	30-minute 	recording 	which 	also 	charges 	for
transcribing, the Court will only allow 0.90 hours total for these tasks.
On the other hand, the October 7, 2022, entries on both Liner and Smith’s invoices of 0.80
hours each cannot be said to be duplicative. R. Doc. 97-3 at 1; R. Doc. 97-4 at 1. It is undisputed
that at the time of these entries the cases were not consolidated. See R. Doc. 37. The same is true
for the January 10, 2023, entries. On that date, Plaintiffs’ counsel billed .20 hours for sending
separate emails to his clients. These entries are also allowable and not duplicative. R. Doc. 97-3
at 2; R. Doc. 97-4 at 2.
Regarding the entries for January 20, 2023, it indicates that there was a request to amend
complaint that was prepared. R. Doc. 97-3 at 2; R. Doc. 97-4 at 2. This entry further reads that
the amendment was in the subsection of law and argument section of the opposition to the
Motion to Dismiss. Id. It seems that the entry according to the record suggests that Plaintiffs’
counsel continued to work on the draft opposition and added a section requesting an opportunity
to amend the complaint. 	See id. The Court notes that the same opposition was filed for both
Liner and Smith, yet Plaintiffs” counsel billed twice for the same work .60 hrs. (Smith) and .60
hrs. (Liner) on the same day. See R. Doc. 10. Therefore the .60 entry on the Liner invoice will be
disallowed as excessive and/or duplicative.
On January 23, 2023, counsel for the Plaintiffs billed 0.50 hrs. on Smith’s invoice for
drafting the motion to continue the submission date and file the same. R. Doc. 97-3 at 2. He
made the same entry for Liner for 0.50 hrs. and filed the same memorandum for both Liner and
8 See R. Doc. 88 – P3 (8 mins), P4 (12 mins), P5 (16 mins)
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Smith. R. Doc. 97-4 at 3. Given the duplicative nature of the entries, the .50 entry on the Liner
invoice.
Next, the entry on February 23, 2023, Plaintiffs’ counsel billed twice for drafting
correspondence to opposing counsel regarding the continuance of the preliminary conference
before the undersigned Judge. R. Doc. 97-3 at 2; R. Doc. 97-4 at 3. He billed .10 hrs. for Smith
and .10 hrs. for Liner. See id. This too looks like double billing and therefore only Smith’s .10
hours will be allowed.
Likewise, Plaintiffs’ counsel billed twice for speaking with the undersigned’s staff
regarding the Plaintiffs’ nonconsent on February 23, 2023. Counsel billed .10 hrs. for Smith and
.20 hrs. for Liner. See R. Doc. 97-3 at 2; 97-4 at 3. On that same date, Plaintiffs’ counsel further
charged twice, .10 hrs. for Smith and .10 hrs. for Liner, for drafting a communication to the
Court of their nonconsent. Id. 	These entries seem excessive as well, and the Court will only
allow 0.30 hrs. All of the February 23, 2023, entries on Liner’s invoice are disallowed.
Also on February 23, 2024, Plaintiffs’ counsel billed twice on Smith’s invoice for 0.40
hours total for drafting an email to opposing counsel regarding the depositions of Toby
Cunningham and Gregg Smith. R. Doc. 97-3 at 3. The Court will only allow one entry of 0.2
hours.
On February 28, 2024, Plaintiffs’ counsel billed twice on Smith’s invoice for 0.60 hours
total. R. Doc. 97-3 at 3. The Court finds these entries to be duplicate and will only allow 0.3
hours. The Court also notes that Plaintiffs’ counsel on Liner’s invoice for 0.3 hours on the same
date for attending a telephone scheduling conference with the court and counsel. Because the
Court initially entered different scheduling orders, the Court finds Liner’s entry of 0.3 hours is
allowable.
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On April 1, 2024, he also billed twice on Smith’s invoice for 0.40 hours and twice on
Liner for 0.30 hours for reviewing and correcting the corporate disclosure statement by
Terminix. Id. 	As to Liner, the Court will only allow 0.20 hours for Liner and 0.20 hours for
Smith.
Additionally, on April 9, 2024, Plaintiffs’ counsel billed twice on Smith’s invoice for 0.40
hours total for emailing with counsel regarding the deposition of Plaintiff. R. Doc. 97-3 at 3. The
Court finds these entries duplicative and will only allow 0.2 hours.
On April 25, 2024, Plaintiffs’ counsel also billed 0.30 hours for Liner and 0.30 hours for
Smith to attend the preliminary conference with Judge Milazzo. R. Doc. 97-3 at 3; R. Doc. 97-4
at 4. Because the conference took place at the same time with the same District Judge, the Court
will exclude that 0.30 on Liner’s invoice.
On June 20, 2024, Plaintiffs’ counsel billed twice (Smith 1.70 hours - Liner 2.50 hours)
for 	revising 	and 	finalizing 	response to 	the second 	set 	of 	RFP 	after 	research 	regarding
discoverability in religious discrimination cases. R. Doc. 97-3 at 4; R. Doc. 97-4 at 5. The Court
finds the 1.70 entry for Smith will be disallowed.
On August 14, 2024, Plaintiffs’ counsel billed 0.80 hours total (0.40 for each claimant) for
reviewing an email with economies expert regarding documents received from claimants. The
Court will allow only 0.4 hours.
On August 16, 2024, Plaintiffs’ counsel also billed twice on Smith’s invoice (0.60 hours
total) for a telephone conference with the client regarding the production of his tax returns and
W-2 forms for the economist. The Court will only allow one entry of 0.30 hours.
On September 4, 2024, Plaintiffs’ counsel billed twice (2.00 hours total) on Liner’s
invoice “to 	review emails from 	economist regarding need for 	additional documentation;
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communicating with the client regarding need for 2022 and 2023 tax returns and year to date,
profit and loss statements; receive documentation from client and review same; send all to
economist.” R. Doc. 97-4 at 6. Likewise on that date, Plaintiffs’ counsel billed twice (0.40 hours
total) on Smith’s invoice for a telephone conference regarding the items on damages to be
included in the case. R. Doc. 97-3 at 4. As to Liner, the Court will only permit 1.00 hour total.
As to Smith, the Court will allow only 0.20 hours.
Moreover, on September 7, 2024, Plaintiffs’ counsel billed twice (3.00 hours total) on
Liner’s invoice for reviewing emails from economist for additional records and contacting client
regarding the need for additional records. R. Doc. 97-4 at 6. The Court will permit 1.50 hours.
Likewise, On September 23, 2024, Plaintiffs’ counsel billed twice (1.00 hour total) for
reviewing the draft of the expert report from economist on Smith’s claim. R. Doc. 97-3 at 4. The
Court will only permit one entry of 0.50 hours. Lastly, on October 31, 2024, Plaintiffs’ counsel
billed thrice on Liner’s invoice (9.8 total) to draft witness and exhibit list and communicate with
clients. R. Doc. 97-4 at 6. The Court finds the entries are duplicative. The Court finds that only
3.6 hours are allowable.
In sum, the Court finds that 24.8 hours out of the 43.3 disputed hours are allowable.
vi. Pleadings for Fictitious Work
Next, Court notes Plaintiffs’ counsel billed twice on Liner’s invoice to recover 5.00 hours
on December 10, 2023, for drafting an opposition to a motion for attorney’s fees. R. Doc. 97-4 at
4. Plaintiffs’ counsel also billed 2.50 hrs. for the same work on Smith’s invoice amounting to
total for 7.5 hours. R. Doc. 97-3 at 3. A review of the docket sheet indicates that no such
pleading was filed. Therefore, the Court determines the 7.5 hours will be excluded.
17
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After evaluating Plaintiffs’ request for attorney fees, the Court determines Plaintiffs’
counsel is entitled to 371.47 hours at an hourly rate of $375.00, which amounts to $139,101.25.
See chart below.
Schexnaydre 	Hourly Rate 	Hours claimed 	Attorneys Fee
Sought
Reasonable
Fee
375.00;
250.00 (10
entries
totaling 8.4
hours); 0.00 (2
entries
totaling 0.9
hours)
427.50 	$158,925.00
Block billed
Unsuccessful claims
Vague/Excessive/Duplicate
Pleadings for fictitious work
-15.139
-18.1
-18.5
-7.50
Total 	375 	368.27 $138,101.25
B. Expert Fees
Lastly, Plaintiffs seek to recoup the expenses for their experts and attached paid invoices
to Bourgeois Bennet CPA firm, the company where its expert economist Philip Monteleone
works. R. Doc. 97-1 at 2. Plaintiffs contend that Monteleone consulted on the case, performed
calculations and analysis, issued an expert report, and testified at trial. Id. Plaintiffs contend that
they paid Mr. Monteleone and his staff $21,290.00. Id.
9 60.5 hrs. x .25%=15.13
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The Defendant contends that Plaintiffs should not be able to recover the expenses for their
expert. R. Doc. 102 at 12. The Defendant further contends that if Plaintiffs are entitled to a fee
then that fee should be significantly decreased. Id. 	The Defendant maintains that some of the
expert invoices are excessive and duplicative. Id. at 13.
The Defendant points out that while Monteleone testified at trial that his testimony was
lacking in several areas. R. Doc. 102 at 12. Defendant suggests that Monteleone’s testimony had
limited or no value because (1) he made up numbers for year 2024 despite the availability of
paystubs, (2) as to Liner did not take into consideration that his profits for his company doubled
between the first and second year, (3) he admitted that he did not take into account Liner’s
S Corporation and took advantage of deductions in income for tax purposes, and (4) there was a
lack of any documentation establishing the necessity of Monteleone’s testimony. Id. Finally, the
Defendant argues that the work was performed by individuals other than Monteleone and Carlos
Whylie, who also signed the expert report. Id. at 13.
Title VII has a fee-shifting provision—42 U.S.C. § 2000e-5(k)—which reads, “[i]n any
action or proceeding under this subchapter the court, in its discretion, may allow the prevailing
party ... a reasonable attorney's fee (including expert fees) as part of the costs....” See Provensal
v. Gaspard, No. 10-4276, 2012 WL 4372360, at *1 (E.D. La. Sep. 24, 2012); Combs v. City of
Huntington, 829 F.3d 388, 391 (5th Cir. 2016) (reviewing an award of attorney fees for a
prevailing party under Title VII pursuant to 42 U.S.C. § 2000e-5(k)); Sanchez v. City of Austin,
774 F.3d 873, 880 (5th Cir. 2014) (noting Title VII has a “nearly identical fee provision” as 42
U.S.C. § 1988(b)); Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714, 715 (5th Cir. 1974),
overruled on other grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989) (reviewing the
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reasonableness of a district court's award of attorney fees and costs pursuant to Section 706(k) of
Title VII of the Civil Rights Act of 1964).
In this case, Judge Milazzo awarded attorney’s fees and expert expenses as follows:
The Court awards Plaintiff reasonable attorneys’ fees and expert witness fees in
an amount to be determined by the assigned Magistrate Judge. Plaintiff shall file a
motion 	for 	determination 	of 	attorneys’ 	fees 	and 	expert 	witness 	fees 	with
supporting documentation, by no later than 14 days from the date of this Order. R.
Doc. 95 at 15.
As an initial matter, the Court notes the invoice contains several billers including
Monteleone whose rate was $360.00 hour. The invoices as to Monteleone contain a total of 36.25
hours which would total $13,050.00. As for the other four additional people, the work that they
performed may be classified as drafting of the expert report, reviewing past earnings, and
calculating the diminished earnings.10
However, the application for a fee is devoid of any attestation from the additional billing
individuals other than Mr. Monteleone and Carlos Wylie (R. Doc. 103 at 4-5), and the
application was devoid of their credentials or any support for their billing rates. The invoices
further show that these individuals performed largely the same work and that the entries are
block billed and vague. 	The Court therefore finds that the billing entries for the additional
employees other than Mr. Monteleone and Mr. Wylie should be excluded for the reasons
assigned above.
Regarding Carlos Wylie’s entries, the Defendant do not challenge the reasonableness of
his entries. R. Doc. 102 at 13. The Defendant actually points out that Wylie cosigned the report
10 Colin McCatharn billed 43.75 hrs. at 150.00 per hour, totaling $6, 562.50. Amanda Philips billed 26.5 hrs. at
100.00 per hour totaling $2,650.00. Carlos Wylie billed 10 hrs. at 220.00 per hour, totaling $2,200.00. Jennifer
Young billed 1 hr. at 100.00 per hour, totaling $100.00. See R. Doc. 97-2.
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and also produced his curriculum vitae. Id. Therefore, the 10.00 hours he billed at a rate of
$220.00 per hour are reasonable for the sum of $2,200.00.
Finally, regarding the reasonableness of Monteleone’s invoice, the Defendant suggests
that because of his errors he should not be compensated or that the Court should reduce his fee.
R. Doc. 102 at 12. The record shows that Monteleone testified under oath as an expert in the
field of forensic accounting and quantification of economic damages. See R. Doc. 86. 	The
Defendant challenged Monteleone’s findings during the trial and post-trial proceedings. In the
Motion for Judgment as a Matter of Law (R. Doc. 95 at 9), the Court determined that the jury
presumably reduced Monteleone’s figures based on other evidence and expert testimony
presented at trial. 	The trial judge further determined that the amount awarded was reasonable
taking Monteleone’s calculations and criticisms in consideration. Id. The Court therefore finds
that the $13,050.00 billed by Monteleone at a rate of 360.00 for 36.25 hours is reasonable.
In sum, the Court finds that the total expert fee of $15,250.00 is appropriate and not the
$21,290.00 as claimed.
IV. 	Conclusion
Accordingly,
IT IS RECOMMENDED that Plaintiff’s Motion for Determination of Professional
Fees and Costs (R. Doc. 97) be GRANTED, and that the Plaintiffs Louis Liner and Gregg
Smith be awarded reasonable attorney’s fees in the amount of $138,101.25 and expert costs
$15,250.00 to be paid by the Defendant Terminix Pest Control no later than twenty-one (21)
days after the adoption of this report and recommendation.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within fourteen (14) days
21
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after being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted
by the district court, provided that the party has been served with notice that such consequences
will result from a failure to object. 	Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1430
(5th Cir. 1996).
New Orleans, Louisiana, this 20th day of February 2026.
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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