IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

DEUTSCHE BANK NATIONAL TRUST 

COMPANY, AS TRUSTEE OF THE 

REGISTERED HOLDERS OF MORGAN 

STANLEY ABS CAPITAL I INC. TRUST 

2007-HE7 MORTGAGE PASS-THROUGH 

CERTIFICATES, SERIES 2007-HE7

Plaintiff,

v.

SEAN ANDRE SIMON, TONYA JORESSA 

SIMON, 

Defendants.

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CIVIL ACTION NO. 1:23-CV-127

REPORT AND RECOMMENDATION ON

MOTION FOR ATTORNEY’S FEES (Doc. #13)

Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to 

United States Magistrate Judges, the district court referred Plaintiff’s Motion for Attorneys’ Fees

(doc. #13) to the undersigned magistrate judge for consideration and disposition. After review, 

the undersigned recommends granting the motion in part, and denying the motion in part. 

I. Background

On December 4, 2023, the district court entered an Order Adopting the Report and 

Recommendation of the undersigned recommending default judgment in favor of Plaintiff. (Doc. # 

12.) In the order adopting, the district court advised Plaintiff to file the appropriate motion or request 

a hearing if requesting attorney’s fees as part of the final judgment. Plaintiff filed the instant motion 

for attorney’s fees requesting attorney’s fees in the amount of $9,188.00, not as a personal judgment 

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against Defendant but as an additional debt secured by the Note and Security Instrument. Plaintiff’s 

request for reasonable and necessary attorney’s fees must be reviewed by the court.

II. Legal Standard

A prevailing party in a civil action may recover attorney’s fees from an individual or a 

corporation in a claim for a written contract. TEX. CIV. PRAC. & REM. CODE § 38.001(8); see also

FED. R. CIV. P. 54(d)(2). While section 38.001(8) uses the term “may,” “the Texas Supreme 

Court has declared that attorneys’ fees under section 38.001 are not discretionary.” Kona Tech. 

Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 603 n.3 (5th Cir. 2000) (citing Bocquet v. Herring, 

972 S.W.2d 19, 20 (Tex. 1998)). This remains true even in the default judgment context. 

McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1488 (5th Cir. 1990) 

(upholding an award of attorney’s fees granted as part of a default judgment). 

The Fifth Circuit has described the basic procedure and standard for determining 

attorney’s fees as a two-step process. First, the court calculates the “lodestar” which is equal to 

the number of hours reasonably expended multiplied by the prevailing hourly rate in the 

community for similar work. Rutherford v. Harris County, 197 F.3d 173, 192 (5th Cir. 1999) 

(citation omitted). The court should exclude all time that is excessive, duplicative, or 

inadequately documented. Once the lodestar amount is calculated, the court can adjust it based 

on the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–

19 (5th Cir. 1974); see also Smith v. Acevedo, 478 F. App’x 116, 124 (5th Cir. 2012) (quoting

Jimenez v. Wood Cnty., 621 F.3d 372, 379-80 (5th Cir. 2020)). The Johnson factors are: (1) time 

and labor required for the litigation; (2) novelty and difficulty of the questions presented; (3) skill 

requisite to perform the legal services properly; (4) preclusion of other employment; (5) 

customary fee; (6) whether the fee is fixed or contingent; (7) limitations imposed by the client or 

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circumstances; (8) amount involved and the result obtained; (9) experience, reputation, and ability 

of the attorneys; (10) undesirability of the case; (11) nature and length of the professional 

relationship with the client; and (12) awards in similar cases. 488 F.2d at 717–19. 

1. Lodestar

The plaintiff’s attorney, Sarah Cox, of Mackie, Wolf, Zientz & Mann, P.C., is requesting 

$9,188.00. Counsel’s billing records do not total the number of hours work, but, according to the 

billing records, the work includes hours expended by counsel and a paralegal for pre-suit research, 

drafting of pleadings and motions, legal research, and correspondence. Counsel billed her hourly 

rate at $300.00, and the paralegal billed at $95.00 per hour. 

With respect to the hourly rates requested, the court finds that $300 is reasonable and 

reflective of the rates in the community for similar work. Based on this court’s experience, $300

per hour is consistent with typical rates for this level and quality of work in the Eastern District of 

Texas. 

Although counsel’s records do not total the number of hours worked by each biller, the 

undersigned engaged in this tedious task to properly calculate the lodestar. Counsel’s billing 

entries total 26.7 hours, and the paralegal’s billing entries total 12.4 hours. Accordingly, the 

“lodestar” is determined by multiplying the number of hours reasonably expended by counsel on 

the litigation (26.7) times a reasonably hourly rate ($300.00) and the number of hours expended 

by the paralegal (12.4) times the hourly rate ($95) resulting in a lodestar amount of $9,188.00.

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2. Johnson Factors

Before a final award of attorney’s fees may be assessed, the court must evaluate the lodestar 

under, and in conjunction with, the twelve Johnson factors. In applying the Johnson factors, the 

1 26.7 x $300 = $8,010.00; 12.4 x $95 = $1,178.00. $8,010.00 + $1178.00 = $9,188.00.

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court need not consider a factor already included in the calculation of the “lodestar.” See Graves 

v. Barnes, 700 F.2d 220, 224 (5th Cir. 1983). The court now applies each of the Johnson factors 

to the lodestar.

As to time and labor required, “the trial judge should weigh the hours claimed against his 

own knowledge, experience, and expertise of the time required to complete similar activities.” 

Johnson, 488 F.2d at 717. As addressed supra, counsel submitted detailed time records containing 

the date, activity, and number of hours she spent on each “billed” event. Additionally, counsel 

was assisted on this case by a paralegal. 

In reviewing the motion and the billing records, the undersigned finds that counsel and the 

paralegal, for the most part, have exercised reasonable judgment in billing their time. However, 

the undersigned finds some of the time submitted is clerical in nature, or duplicative and therefore 

not recoverable. Vela v. City of Houston, 276 F.3d 659, 681 (5th Cir. 2001). These include tasks 

such as calendaring and arranging for service of process, drafting the civil cover sheet, obtaining 

documents or gathering exhibits. Such items are clerical or administrative tasks that are not 

recoverable. The undersigned recommends adjusting the lodestar downward by 12% to account 

for unrecoverable amounts. 

The undersigned has considered all the other Johnson factors and finds that the application 

of each does not require either an upward or downward departure from the lodestar. Applying the 

12% downward adjustment for clerical work, the undersigned recommends awarding $8,085.44 in 

attorney’s fees not as a personal judgment against the Defendant but as an additional debt secured 

by the Note and Secured Instrument.

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III. Recommendation

For the reasons stated herein, the undersigned recommends that the district court GRANT

in part and DENY in part Plaintiff’s Motion for Attorney’s Fees (doc. #13) by awarding 

$8,085.44 in attorney’s fees, not as a personal judgment against the Defendant but as an additional 

debt secured by the Note and Secured Instrument. 

IV . Objections

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). 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 report and recommendation where the disputed determination is 

found. An objection that merely incorporates by reference or refers to the briefing before the 

magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. Douglass v. United Services Auto. Ass’n, 

79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days). 

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