Parker et al v. Healthcare Investment Group Inc et al
MEMORANDUM OPINION and ORDER - GRANTING 96 MOTION for Attorney Fees filed by Phillip Jason Parker ; DENYING 102 MOTION to Strike 101 Reply to Response to Motion filed by Jason Tindal, David Childers, Healthcare Investment Group Inc. Signed by Judge Virginia Emerson Hopkins on 9/21/2017. (Attachments: # 1 GW Annotated Time, # 2 GSE Annotated Time, # 3 GW Annotated Expenses, # 4 GSE Annotated Expenses)(KAM, )
2017 Sep-21 PM 04:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
PHILLIP JASON PARKER, et al.,
GROUP, INC., et al.,
) Case No.: 5:14-CV-2247-VEH
MEMORANDUM OPINION AND ORDER
This case arises under the Fair Labor Standards Act (“FLSA”). The Court
approved the settlement of Plaintiffs’ underlying FLSA overtime and willfulness
claims on October 26, 2016. (Doc. 93). Still remaining for the Court to resolve are
Plaintiffs’ Motion for Attorneys’ Fees and Expenses (doc. 96) (the “Fee Motion”) and
Defendants’ Motion To Strike (doc. 102) (the “Strike Motion”). The parties have filed
their supporting and opposing materials. (Docs. 97-98, 101, 104). For the reasons
stated below, the Fee Motion is GRANTED as modified herein and the Strike Motion
Plaintiffs’ Fee Motion
Fee Motion Background
Plaintiffs Philip Jason Parker, Carolyn England, Buffy R. Dulaney, William D.
McGee, Maisie Slaughter, and Carrie Hannah Borden (the “Named Plaintiffs”)
initiated this action against Defendants on November 20, 2014. (Doc. 1). On
December 30, 2014, the Named Plaintiffs filed an Amended Collective Action
Complaint (doc. 9) that asserted overtime as well as uncompensated-time violations
of the FLSA. (See generally id.). The Named Plaintiffs further alleged that
Defendants engaged in retaliatory conduct against them and that their FLSA
violations were willful. Id.
On May 6, 2015, the Court granted the Named Plaintiffs’ Motion for
Conditional Certification. (Doc. 37). Over the course of the litigation, an additional
27 Plaintiffs consented to joining the case and, at the highest level, counsel were
representing a total of 33 Plaintiffs. On October 20, 2015, the parties engaged in
mediation, but were unsuccessful in reaching a resolution of the litigation at that time.
Subsequently, however, the parties reached a good-faith compromise and
presented it to the Court. As set out in the Order Approving FLSA Settlement,
judgment was entered in favor of Plaintiffs “in the amount of $208,328.50, plus
reasonable attorneys’ fees and expenses in an amount to be determined by the Court
. . . .” (Doc. 93 at 2). Under the terms of the parties’ settlement, this payment to
Plaintiffs represents “full relief of recorded unpaid overtime compensation and
liquidated damages for same to which they are entitled.” (Doc. 90 at 3).
In their Fee Motion, Plaintiffs are seeking $344,501.81 in attorneys’ fees (doc.
96 at 4 ¶ 9) and $15,498.19 in expenses (id. ¶ 8) for a total amount of $360,000.00.
(Doc. 96 at 5 ¶ 11). “[T]he starting point in any determination for an objective
estimate of the value of a lawyer’s services is to multiply hours reasonably expended
by a reasonable hourly rate. Norman v. Housing Authority of City of Montgomery,
836 F.2d 1292, 1299 (11th Cir. 1988).1 Plaintiffs bear the burden of “establishing
In Norman, the Eleventh Circuit acknowledged the evolving views about the continued
usefulness of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) to the
attorney fee inquiry, in light of a series of Supreme Court and Eleventh Circuit decisions.
Norman, 836 F.2d at 1298-99 (discussing cases relevant to the post-Johnson legal framework.
Those decisions culminated in the understanding that, with very limited exceptions, “the lodestar
as calculated in Hensley presumptively includes all of the twelve factors derived from the ABA
Code of Professional Responsibility DR 2–106 (1980) and adopted in Johnson . . . .” Norman,
836 F.2d at 1299; see also Hensley v. Eckerhart, 461 U.S. 424, 434 n.9, 103 S. Ct. 1933, 1940
n.9, 76 L. Ed. 2d 40 (1983) (“[M]any of the[ Johnson] factors usually are subsumed within the
initial calculation of hours reasonably expended at a reasonable hourly rate.”). Nonetheless, the
Eleventh Circuit “still believe[s] that at least some of the Johnson factors have utility in
establishing the hourly rate. Id. The Johnson factors are: (1) the time and labor required; (2) the
novelty and difficulty of the questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of other employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the
nature and length of the professional relationship with the client; and (12) awards in similar
cases. Johnson, 488 F.2d at 717-19.
entitlement and documenting the appropriate hours and hourly rates.” Norman, 836
F.2d at 1303. Concerning the reasonableness of a lawyer’s hourly rate, the Eleventh
Circuit has explained:
A reasonable hourly rate is the prevailing market rate in the
relevant legal community for similar services by lawyers of reasonably
comparable skills, experience, and reputation. Blum v. Stenson, 465 U.S.
at 895-96 n.11, 104 S. Ct. at 1547 n.11. Accord, Gaines v. Dougherty
County Board of Education, 775 F.2d 1565, 1571 (11th Cir. 1985). The
applicant bears the burden of producing satisfactory evidence that the
requested rate is in line with prevailing market rates. NAACP v. City of
Evergreen, 812 F.2d at 1338. Satisfactory evidence at a minimum is
more than the affidavit of the attorney performing the work. Blum, 465
U.S. at 896 n.11, 104 S. Ct. at 1547 n.11. It should also be noted that in
line with the goal of obtaining objectivity, satisfactory evidence
necessarily must speak to rates actually billed and paid in similar
lawsuits. Testimony that a given fee is reasonable is therefore
unsatisfactory evidence of market rate. See Hensley, 461 U.S. at 439
n.15, 103 S. Ct. at 1943 n.15. Evidence of rates may be adduced through
direct evidence of charges by lawyers under similar circumstances or by
opinion evidence. The weight to be given to opinion evidence of course
will be affected by the detail contained in the testimony on matters such
as similarity of skill, reputation, experience, similarity of case and client,
and breadth of the sample of which the expert has knowledge.
Norman, 836 F.2d at 1299 (emphasis added).
Plaintiffs’ fee calculation consists of attorney time and paralegal time from two
separate law firms–Wiggins Childs (“WC”) (formerly known as Wiggins Childs
Quinn & Pantazis, LLC) (doc. 96-1 at 4 ¶ 4)2 and Guin, Stokes & Evans (“GSE”). (Id.
All page references to Doc. 96-1 correspond with the Court’s CM/ECF numbering
at 5 ¶ 5). The hourly rates proposed by Plaintiffs for approval are:
$450 for WC Attorney Rocco Calamusa, Jr. (“Mr. Calamusa”);
$400 for WC Attorney Kevin Jent (“Mr. Jent”);
$125 for WC Paralegal Karen Allen (“Ms. Allen”);
$125 for WC Paralegal Traci Wiggins (“Ms. Wiggins”);
$425 for GSE Attorney Dawn Evans (“Ms. Evans”);
$400 for GSE Attorney Rex Slate (“Mr. Slate”); and
$175 for GSE Paralegal Tressy Wilson (“Ms. Wilson”).
(Doc. 96-1 at 7-10 ¶¶ 9-13).
The hours claimed by Plaintiffs are:
328.90 for Mr. Calamusa;
186.25 for Mr. Jent;
103.10 for Ms. Allen;
8.70 for Ms. Wiggins;
388.20 for Ms. Evans;
28.40 for Mr. Slate; and
14.00 for Ms. Wilson.
In arriving at their requested total award (i.e., fees plus expenses) of
$360,000.00, Plaintiffs explain:
The total fees accrued to date are $415,275.00. This amount is
comprised of attorney and paralegal time for both the Wiggins Childs
firm and the Guin, Stokes & Evans firm. However, Plaintiffs’ counsel
is only seeking $344,501.81 in fees, plus expenses in the amount of
$15,498.19, as an agreed cap of $360,000.00 under the settlement. See
Settlement Agreement ¶ C (Doc. 92-1). Plaintiffs’ counsel has reduced
its fees as part of the settlement in this matter. The total fee sought
represents a $70,774 (17%) discount on the lodestar to date. Thus,
should the Court reduce the amount of expenses allowed, Plaintiffs’
counsel should still receive the full amount of $360,000.00 allowable as
part of their fee based on the total amount of fees incurred in this case.
(Doc. 96-1 at 13 ¶ 19 (emphasis omitted)).
Defendants dispute the reasonableness of Plaintiffs’ suggested rates and
claimed hours that comprise Plaintiffs’ reduced fee amount of $344,501.81. (Doc. 97
at 5).3 Under Defendants’ approach, Plaintiffs’ total fee award would be decreased
from $344,501.81 to $201,415.50–a reduction of 25% or $103,818.75 from Plaintiffs’
original pre-cap calculation of 415,275.00. (Doc. 97 at 16). Id.
In accordance with the attached revisions – and for the following reasons – the
Court will award Plaintiffs $360,000.00 in reasonable attorneys’ fees and expenses.
Reasonableness of Hourly Rates
Mr. Calamusa’s affidavit offered in support of his hourly rate substantiates that
he was admitted to the Alabama State Bar in 1993 and that he has over 20 years
experience as a litigator primarily “in the fields of discrimination, wage and hour, and
All page references to Doc. 97 correspond with the Court’s CM/ECF numbering
civil rights.” (Doc. 96-1 at 3 ¶ 3). Mr. Calamusa’s affidavit further confirms that Mr.
Jent was admitted to practice law in 1996 and that he has “more than 20 years
experience in employment related matters.” (Id. at 96-1 at 7 ¶ 11). Mr. Calamusa’s
affidavit also includes evidence of the rates charged by some of Plaintiffs’ counsel
for hourly, non-contingent labor/employment matters (doc. 96-1 at 12-13 ¶ 18) as
well as examples of comparable rates that were approved in other fee-shifting cases
filed in the Northern District of Alabama. (Id. at 10 ¶ 15, 11 ¶ 16).
Ms. Evans’s affidavit offered in support of her rate substantiates that she was
admitted to the Alabama State Bar in 1998 and that she has over 15 years experience
as a litigator in “the areas of [FLSA], securities, arbitration/litigation, employment
discrimination litigation, complex litigation, and corporate/business litigation.” (Doc.
96-2 at 3 ¶ 2).4 Ms. Evans’s affidavit further confirms that Mr. Slate was admitted to
practice law in 1996 and that he has 20 years experience in “the areas of products
liability, nursing home litigation, vehicle crash worthiness litigation, business
litigation, medical malpractice and class actions.” (Doc. 96-2 at 5 ¶ 9).
In opposing Plaintiffs’ suggested hourly rates, Defendants contend that the
appropriate legal market for determining reasonable rates is the Decatur/Morgan
County market (because this is a Northeastern Division case) and not the rates
All page references to Doc. 96-2 correspond with the Court’s CM/ECF numbering
applicable in the Birmingham/Southern Division market which Defendants maintain
are significantly higher. In setting the attorney hourly rate between $225 and $275,
Defendants rely upon the affidavit of Barnes F. Lovelace, Jr. (“Mr. Lovelace”). (Doc.
97 at 8); (see also Doc. 98-1 at 2-4 (attaching Mr. Lovelace’s hourly rate affidavit)).
Mr. Lovelace has been licensed as an attorney in Alabama since 1983 and
currently practices in Decatur, Morgan County, Alabama. (Doc. 98-1 at 2 ¶ 2; id. at
3 ¶ 3).5 Without citing to any specific cases to substantiate his range estimate, Mr.
Lovelace opines that “a reasonable hourly rate for an attorney of substantial skill and
experience in Morgan County, Alabama to prosecute an FLSA collective action in a
straightforward failure to pay overtime case would be anywhere from $225 per hour
to $275 per hour.” (Doc. 98-1 at 4 ¶ 8). Mr. Lovelace does not give an opinion about
a reasonable paralegal rate.
Relying upon the affidavit of David J. Canupp (“Mr. Canupp”), a defense
attorney in this case, Defendants request a reduction to $100.00 per hour for all
paralegal time. (Doc. 97 at 9); (see also Doc. 98-2 at 3 ¶ 4 (“Rates for paralegals in
the northern part of Alabama typically vary from around $75.00 to $100.00 per
hour.”); id. (“Based on my familiarity with the rates commonly charged in the
Northeastern Division of the Northern District of Alabama, I am of the opinion that
All page references to Doc. 98-1 correspond with the Court’s CM/ECF numbering
$100 per hour represents a normal and customary rate for an experienced
paralegal.”)). Mr. Canupp’s affidavit does not refer to any specific cases in which a
court has determined that the paralegal rate in the Northeastern Division is consistent
with his opinion.
The thrust of Defendants’ contention is that even though Plaintiffs retained
Birmingham counsel to represent them, using Birmingham, Southern Division, or
District-wide rates is, nevertheless, unreasonable. Instead, Defendants contend that
the prevailing market rate should be tied to the Morgan County and/or Northeastern
Division area which they assert are substantially lower.6 Thus, both sides
geographically define the applicable legal market differently.
In Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489 (11th Cir. 1994), the Eleventh
Circuit rejected the plaintiffs’ argument that the hourly rate should be tied to the
market where the lawyers primarily practiced rather than the place where the case was
filed. As the Cullens court explained:
[Plaintiffs] contend the district court erred in using Macon,
Georgia as the relevant market for the hourly rate to be used in the
computation of the lodestar figure. The rate of attorney’s fees is that of
the place where the case is filed. See Maceira v. Pagan, 698 F.2d 38, 40
(1st Cir. 1983). The case, although transferred in 1985 to a judge of the
Northern District, based in Atlanta, was initially filed in Macon.
As pointed about above, Mr. Lovelace defines the relevant legal market for attorneys to
be Morgan County, Alabama, and Mr. Canupp defines the relevant legal market for paralegals to
be the Northeastern Division.
Plaintiffs assert Atlanta was the appropriate market because there were
no lawyers in Macon with the expertise to handle their case. The district
court did not err in focusing on whether there were attorneys in Macon
with the ability to handle plaintiffs’ individual claims rather than the
proposed class action. Nor did it err in finding that plaintiffs did not
meet their burden of showing a lack of Macon lawyers willing or able
to handle their individual claims.
Cullens, 29 F.3d at1494 (emphasis added).
County/Northeastern Division rate evidence by offering affidavits from two
Huntsville attorneys, John Wilmer (“Mr. Wilmer”) and Rebekah McKinney (“Ms.
McKinney”). (Doc. 101 at 3); (see also Doc. 101-1 at 2-6 ¶¶ 1-9 (attaching Mr.
Wilmer’s hourly rate affidavit));7 (see also Doc. 101-2 at 2-7 ¶¶ 1-8(a)-(c) (attaching
Ms. McKinney’s hourly rate affidavit)).8 Both Mr. Wilmer and Ms. McKinney opine
that there are very few plaintiffs’ attorneys in the Decatur/Huntsville legal market
who are willing to take on FLSA collective action cases such as this one. (Doc. 101-1
at 4-5 ¶ 8); (Doc. 101-2 at 6-7 ¶ 8(c)). Pointing to these affidavits, Plaintiffs argue in
their reply that “an exception [can apply] for a situation such as this one where
Plaintiffs can show a lack of attorneys in the area who are willing and able to handle
the claim.” (Doc. 101 at 3).
All page references to Doc. 101-1 correspond with the Court’s CM/ECF numbering
All page references to Doc. 101-2 correspond with the Court’s CM/ECF numbering
The Court, consistent with Cullens and Frazier, agrees with Plaintiffs that an
exception can sometimes apply. However, here, the Court finds that Plaintiffs have
not met their burden of showing a lack of Northeastern Division lawyers who were
willing or able to handle wage and hour cases on a collective basis. First, the opinions
offered by Mr. Wilmer and Ms. McKinney are speculative and vaguely
worded–indicating that very few attorneys exist in the Decatur/Huntsville market is
not the same as stating that no attorneys exist. Second, based upon judicial
experience, the undersigned has not found an absence of Decatur/Huntsville
plaintiffs’ attorneys who are willing to litigate FLSA collective actions. Third,
Plaintiffs have not offered any evidence showing that they specifically had difficulty
finding lawyers in the Decatur/Huntsville area to represent them. Cf., e.g., Frazier v.
City of Gadsden, No. 4:13-CV-757-VEH, 2016 WL 2771128, at *21 (finding that
Birmingham/Southern Division rates applied in light of plaintiff’s affidavit
“demonstrating the difficulty he encountered in trying to retain a local attorney
[located within the Middle Division] to represent him”). Therefore, the Court will
apply the prevailing market rates applicable to cases filed in Decatur/Huntsville or
the Northeastern Division of the Northern District of Alabama when deciding the
Based upon his experience practicing law since 1975, Mr. Wilmer opines that
“a reasonable rate for defendant’s counsel in the Northern District of Alabama for
attorneys practicing exclusively in labor and employment law for more than ten (10)
years ranges between $300 and $375 per hour” and that attorneys “practicing labor
and employment law in Decatur and Morgan County charge the same rates as others
practicing in the Northern District of Alabama.” (Doc. 101-1 at 4 ¶ 6). Therefore,
unlike the opinion offered by Mr. Lovelace, Mr. Wilmer indicates that he has not
found an appreciable difference between the prevailing market rate for
Decatur/Morgan County and other parts of the Northern District of Alabama with
respect to the area of labor and employment law.
Mr. Wilmer further states that “due to the risks involved in taking contingency
labor and employment cases, a reasonable rate would be at least $50 higher on both
ends of the defendants’ range.” (Doc. 101-1 at 4 ¶ 7). Therefore, Mr. Wilmer’s
estimated hourly range for attorneys representing plaintiffs in FLSA collective actions
(when factoring in that risk component) runs from $350 to $425 per hour. Mr. Wilmer
does not cite to any Northeastern Division cases to substantiate either one of his
estimated ranges, and he does not differentiate which rates correspond to which levels
of experience. Although Mr. Wilmer opines that rates in the Decatur/Morgan County
market are no different than the rest of the Northern District of Alabama, his
estimated figures fall slightly below Plaintiffs’ higher requested range of $400 to
$450 (that draws upon rates reported in Birmingham/Southern Division cases and/or
rates that did not account for any division-related disputes or differences in the hourly
rate).9 Mr. Wilmer’s rates are significantly above Defendants’ lower range of $225
to $275 (that is limited to the Decatur/Morgan County market and which underlying
affidavit also lacks any specific case examples).
Ultimately, the Court has relied on its own expertise in order to reach the
appropriate hourly rate for Plaintiffs’ counsel who all have greater than 10 years of
legal experience. See Norman, 836 F.2d at 1303 (recognizing that a court “is itself an
expert on the question and 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 of] witnesses as to value” (emphasis added)
(quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)));10 see also Loranger
v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citing Norman and Campbell for the
same proposition). The Court also considered the experience and reputation of the
Although Ms. McKinney has given an opinion that the rates sought by Plaintiffs’
counsel in the range of $400.00-$450.00 are consistent with the prevailing market rates in the
Huntsville/Decatur market (doc. 101-2 at 4-6 ¶ 7), the Court’s own experience belies her
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
attorneys (as attested to by the affidavits and declarations)11 the customary fees, the
evidence provided by both sides as to the reasonable hourly rate, the degree to which
opinions have been substantiated by examples of underlining comparable cases, and
the Court’s own review of previous fee awards, including the hourly rate assessments
that the undersigned completed in the employment cases of Maner v. Linkan, LLC,
No. 4:12-CV-1088-VEH, (Doc. 50) (N.D. Ala. June 13, 2014), aff’d, 602 F. App’x.
489 (11th Cir. 2015) and Frazier v. City of Gadsden, supra.12
With these considerations in mind, the Court finds that $375.00 is a reasonable
In evaluating the value of the affidavits offered by both sides under the lodestar
approach, the Court is guided by the Eleventh Circuit’s decision in Norman:
The affidavits of Siegel and McPhillips both show that prevailing market
rates are not necessarily as high as the $125 per hour figure requested. The
affidavit of Ms. Boyd is based on court awards and negotiated settlements in other
cases. Under Johnson such information would be relevant but under the lodestar
approach it is not. For example, there is no assurance that the attorneys in those
cases possessed similar skill, experience or reputation or that the case or clients
were similar to the one at bar. Further, to the extent that fee applicants rely on an
award made in the Northern District of Alabama, there is no evidence that the
prevailing market rates in that area are the same as in Montgomery.
The affidavits offered in opposition are also deficient. Messrs. Garrett and
Novak do not attest that they have charged $65 or $70 an hour in civil rights
cases. Further, their affidavits do not show that the rates to which they attest were
charged in similar cases for similar clients by lawyers of similar skill, experience
Norman, 836 F.2d at 1304-05 (emphasis added).
In Frazier, the lead lawyer for the plaintiff–with 20 years of legal experience– had
proposed a rate of $425.00. 2016 WL 2771128, at *16, *18. The Court ultimately found $350.00
to be a reasonable hourly rate according to the range applicable to employment cases litigated in
the Birmingham/Southern Division. 2016 WL 2771128, at *21.
hourly rate for all counsel of record–Messrs. Calamusa, Jent, Slate, and Ms. Evans–as
it is in accordance with the prevailing Decatur/Huntsville or Northeastern Division
range of rates (that in the undersigned’s experience is typically somewhat lower than
Birmingham or Southern Division rates, regardless of the practice area) for similar
services by lawyers of reasonably comparable skills, experience, and reputation. In
particular, all these lawyers have over 10 years in experience and are very close to
each other in terms of their total years spent in practice (i.e., ranging from 18 to 23
years). Also, the record does not reflect significant reputational (or other) evidence
that supports an adjustment of this rate for any particular lawyer. Further, this hourly
rate is within both ranges (i.e., with or without the $50 per hour risk enhancement for
representing plaintiffs in contingency cases) sworn to by Mr. Wilmer–one of
Plaintiffs’ rebuttal experts. Cf. Maner, 602 F. App’x. at 494 (“[T]he district court did
not clearly err in setting lead counsel’s rate at his normal billing rate of $385 and in
the middle of the expert’s range.”).13
As for paralegal time, the Court rejects Plaintiffs’ proposed rates in part and
As explained in Frazier, the lead plaintiff’s lawyer in Maner (who has been practicing
law since 1977) had requested an hourly rate of $450.00 in 2014. Frazier, 2016 WL 2771128, at
*19. Although Maner was a Middle Division case and the plaintiff’s attorneys were based in
Birmingham, the defendant did not raise a division-based dispute over the appropriate market
rate for the Court to apply. Instead, the defendant challenged the requested fees as grossly
excessive because no discovery was conducted, the trial lasted 4 days, the worker’s compensation
appeal lasted less than 2 days, and the number of witnesses that testified for the plaintiff at trial
was limited. See Maner, No. 4:12-CV-1088-VEH, (Doc. 43) (N.D. Ala. Oct. 23, 2013) (D’s
Response to Request for Attorney’s Fee).
Defendants’ counter-rate of $100.00 and concludes, based upon its judicial
experience, that $125 is a reasonable hourly rate for all time attributable to Mses.
Allen, Wiggins, and Wilson.
Reasonableness of Hours Expended
Concerning the hours claimed by Plaintiffs, Defendants argue that Plaintiffs’
lack of success on certain claims and block billing warrant an across-the-board
reduction of 25%. (Doc. 97 at 15); (see id. (“Because plaintiffs’ counsel engaged in
the practice of block billing,14 it is impossible to separate out exactly how much time
they spent on unsuccessful claims or unnecessary discovery.”)). Turning to Plaintiffs’
lack of success on their off-the-clock and retaliation claims, Hensley makes it clear
that “[w]here a lawsuit consists of related claims, a plaintiff who has won substantial
As an unpublished Eleventh Circuit panel has described this disfavored billing
“Block billing” occurs when an attorney lists all the day’s tasks on a case in a
single entry, without separately identifying the time spent on each task. In Barnes,
we noted that block billing resulted in “imprecision” in an attorney’s records and
described it as a “problem” for which the opponent should not be “penalized,” and
approved the opponent's solution of dividing each day's hours by the number of
tasks listed and assigning the quotient to each task. 168 F.3d at 429. Courts have
also approved across-the-board reductions in block-billed hours to offset the
effects of block billing.
Ceres Envtl. Servs., Inc. v. Colonel McCrary Trucking, LLC, 476 F. App’x 198, 203 (11th Cir.
2012); see also Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 429 (11th Cir.
1999) (“The imprecision of the billing records submitted by the plaintiffs makes it difficult, if not
impossible, to calculate with any precision the number of hours an attorney devoted to a
particular task in this litigation.”); id. (“The records often lump together all the tasks performed
by an attorney on a given day without breaking out the time spent on each task.”).
relief should not have his attorney’s fee reduced simply because the district court did
not adopt each contention raised.” 461 U.S. at 440, 103 S. Ct. at 1943. Here, the
Court is persuaded that because Plaintiffs obtained substantial relief as to their FLSA
overtime and willfulness claims, a reduction due to lack of success on other parts of
their case is inappropriate.
The Court also rejects Defendants’ contention that a reduction is warranted
because 7 Plaintiffs elected to dismiss their claims during the course of the litigation.
In particular, the Court finds that any discovery-related time attributable to these 7
Plaintiffs is negligible. As Plaintiffs point out “[t]he dismissal of these seven
Plaintiffs did not affect the amount of work done by Plaintiffs’ counsel in answering
discovery and propounding discovery to the defendants. These dismissed Plaintiffs
did not answer their discovery and were already gone from the case by the time
depositions took place.” (Doc. 101 at 7). Further, in light of the above determinations,
Defendants’ request for a percentage-based decrease because of an inability to
separate out time spent on unsuccessful claims and unnecessary discovery caused by
alleged block billing is not warranted.15
As a general matter, courts in the Eleventh Circuit determine the reasonable
hours expended by performing “a task-by-task examination of the hours billed.”
Defendants have not claimed that other parts of Plaintiffs’ billing records are due to be
reduced because of insufficient detail due to block billing.
ACLU of Ga. v. Barnes, 168 F.3d 423, 429 (11th Cir. 1999) (citing Loranger v.
Stierheim, 10 F.3d at 782-83). The Court did so in this case. In total, Plaintiffs have
submitted time records reflecting 1057.55 hours of work expended in litigating the
case. (Doc. 96-1 at 4-5 ¶ 5).16
As noted above, Plaintiffs have the burden of establishing the reasonableness
of the hours spent on their case. Norman, 836 F.2d at 1303. Indeed, “fee counsel
should [maintain] records to show the time spent on the different claims, and the
general subject matter of the time expenditures ought to be set out with sufficient
particularity so that the district court can assess the time claimed for each activity.”
Id. (citing Hensley, 461 U.S. at 437 n.12, 103 S. Ct. at 1941 n.12). “[W]here that party
presents inadequate documentation the court may determine a reasonable award based
on its own experience.” Villano v. City of Boynton Beach, 254 F.3d 1302, 1311 (11th
Cir. 2001) (citing Mills by Mills v. Freeman, 118 F.3d 727, 734 (11th Cir. 1997),
superseded on other grounds by Eleventh Circuit appellate rule as stated in Gray ex
rel. Alexander v. Bostic, 507 F.3d 1321, 1327 n.2 (11th Cir. 2009)).
With these principles in mind, the Court concludes that Plaintiffs’ counsel
reasonably expended a total of 957.30 hours in litigating this case–a reduction of
(328.90 + 186.25 + 103.10 + 8.7) = 626.95 in hours claimed by WC firm + (388.20 +
28.40 + 14.00) = 430.60 in hours claimed by GSE firm for a combined amount of 1057.55 in
total number of compensable hours claimed.
99.85 hours or roughly 10% less than the 1057.55 in hours claimed by Plaintiffs as
reasonable. Put more specifically, the Court allots that revised total number of hours
to the following respective persons:
328.90 in total claimed hours - 27.50 in unreasonably claimed hours = 301.40 in
reasonably claimed hours.
186.25 in total claimed hours - 19.30 in unreasonably claimed hours = 166.95 in
reasonably claimed hours.
388.20 in total claimed hours - 44.55 in unreasonably claimed hours = 343.65 in
reasonably claimed hours.
28.40 in total claimed hours - 6.50 in unreasonably claimed hours = 21.90 in
reasonably claimed hours.
103.10 in total claimed hours - 5.10 in unreasonably claimed hours = 98.00 in
reasonably claimed hours.
8.70 in total claimed hours - .20 in unreasonably claimed hours = 8.50 in reasonably
This quantity obviously represents a reduction from the submitted request.
After reviewing the documentation provided by counsel, the Court found that many
of the hours expended were not reasonably included in the total. In some instances,
the Court found that the duties performed were clerical in nature and, therefore, not
recoverable. See, e.g., Scelta v. Delicatessen Support Servs., Inc., 203 F. Supp. 2d
1328, 1334 (M.D. Fla. 2002) (“The Eleventh Circuit has iterated that the efforts of a
paralegal are recoverable ‘only to the extent that the paralegal performs work
traditionally done by an attorney.’” (citing Jean v. Nelson, 863 F.2d 759, 778 (11th
Cir. 1988) (quoting Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir.
Unit B 1982))).24
In others, the recorded duties were not compensable as they involved tasks that
were of no benefit to Plaintiffs, including time spent on the Fee Motion. Further,
Plaintiffs’ counsel sometimes provided insufficient detail for the Court to discern the
nature and quality of the hours expended. Additionally, the Court disallowed all time
attributable to travel. See Maner, 602 F. App’x at 492 (concluding that “district court
All 14 hours are reasonably claimed.
In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), the Eleventh
Circuit adopted as binding precedent all decisions of the Unit B panel of the former Fifth Circuit
handed down after September 30, 1981.
did not err in excluding as unnecessary the hours billed for her attorneys’ travel”). In
each of these situations, the Court discounted the total amount sought by the
unreasonably claimed time.
Multiplying the hours reasonably expended by the reasonable hourly rate, the
Court finds that the following modified lodestar calculations are appropriate:
Further, the total modified lodestar amount equals $327,775.00–$312,712.50 for
attorneys25 plus $15,062.50 for paralegals.26
$375.00 X 833.9 = $312,712.50.
$125.00 X 120.5 = $15,062.50.
No Lodestar Adjustment Based Upon Results Is Appropriate
“After determining the lodestar amount as above, the Court is entitled to adjust
the amount of final fees awarded in light of the results obtained through the
litigation.” Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) (citing
Hensley, 461 U.S. at 434, 103 S. Ct. at 1939-40; Norman, 836 F.2d at 1302). “If the
court determines that the result obtained was an excellent result, then the award of
fees ‘will encompass all hours reasonably expended on the litigation, and indeed in
some cases of exceptional success an enhanced award may be justified.’” Villano v.
City of Boynton Beach, 254 F.3d 1302, 1308 (11th Cir. 2008) (quoting Hensley, 461
U.S. at 435, 103 S. Ct. at 1940). However, “there is a strong presumption that the
lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as
a ground for increasing an award above the lodestar; and a party seeking fees has the
burden of identifying a factor that the lodestar does not adequately take into account
and proving with specificity that an enhanced fee is justified.” Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 546, 130 S. Ct. 1662, 1669, 176 L. Ed. 2d 494 (2010).
The Eleventh Circuit provided particularly meaningful guidance on lodestar
adjustments in Norman when it wrote:
If the result was partial or limited success, then the lodestar must
be reduced to an amount that is not excessive. In doing so, the court may
attempt to identify specific hours spent in unsuccessful claims or it may
simply reduce the award by some proportion. A reduction is appropriate
if the relief, however significant, is limited in comparison to the scope
of the litigation as a whole. Where all theories derive from a common
core of operative facts, the focus should be on the significance of overall
results as a function of total reasonable hours. It is improper to make the
reduction based on a simple ratio of successful issues to issues raised.
836 F.3d at 1302 (citing Hensley, 461 U.S. at 435 n.11, 103 S. Ct. at 1940 n.11). In
accordance with the Eleventh Circuit’s instructions in Norman, the Court looks to the
scope of the litigation as a whole, focusing on the significance of the overall results
achieved in light of the substantial hours expended in pursuing this case. With these
considerations in mind, the Court finds that neither a result-based enhancement nor
such a reduction to the lodestar amount is justified in this case.
Reasonableness of Expenses Incurred
As set out above, Plaintiffs seek to recover expenses in the total amount of
$15,498.19. The Court has reviewed the underlying documentation offered by
Plaintiffs to substantiate these claimed expenses and finds that a reduction of
$2,040.65 is appropriate due to either an insufficient explanation to support the
expense or because the reimbursement sought relates to travel between Birmingham
and Decatur and/or Huntsville. Concerning travel reimbursement for mileage and
meals more specifically, in light of Plaintiffs’ failure to demonstrate a lack of
attorneys in their area who were willing to handle their claims pursuant to the
exception set out in Cullens above, those claimed travel expenses constitute “routine
office overhead normally absorbed by the practicing attorney” and, consequently, are
not reasonably recoverable under the circumstances of this case. Am. Civil Liberties
Union of Georgia v. Barnes, 168 F.3d 423, 438 (11th Cir. 1999) (internal quotation
marks omitted) (quoting Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.
1983)). Thus, the Court finds that Plaintiffs’ recovery for reasonable expenses should
be $13,457.54 instead of $15,498.19.
Plaintiffs’ Total Award Due
Therefore, as recalculated above, the reasonable fee amount for Plaintiffs to
recover is $327,775.00, and the reasonable expense amount is $13,457.54. However,
these amounts will be paid over time under the terms of the parties’ Settlement
Agreement and the fees and expenses started in 2014. For these reasons, the Court
finds that increasing each figure by 10% is appropriate. This means that, for expenses,
Plaintiffs are entitled to recover an additional $1,345.75 in costs for a total of
$14,803.29. Based upon the $360,000.00 negotiated cap, this leaves $345,196.71 with
respect to attorney’s fees. Adding 10% back into the above recalculated fee figure of
$327,775.00 results in an additional $32,777.50 for a total fee revised figure of
$360,552.50, which is greater than the cap remainder of $345,196.71. Thus,
Plaintiffs’ reasonable fee award is $345,196.71, and the total award due is
Defendants’ Strike Motion
In their Strike Motion filed pursuant to FED. R. CIV. P. 6(c)(2), Defendants seek
to strike the declarations of Mr. Wilmer and Ms. McKinney that Plaintiffs attached
to their reply brief. (Doc. 102 at 1). Rule 6(c) covers motions, notices of hearing, and
affidavits and states in pertinent part that “[a]ny affidavit supporting a motion must
be served with the motion.” FED. R. CIV. P. 6(c)(2). Referencing several different
cases, Defendants contend that this Court should not consider the declarations of Mr.
Wilmer and Ms. McKinney because they were untimely filed after Plaintiffs’ Fee
Motion was and they amount to an improper ambush on Defendants. (See Doc. 102
at 3 (citing Carlisle v. Nat’l Commercial Servs., Inc., No. 1:14-CV-515-TWT, 2015
WL 4092817, at *1 (N.D. Ga. July 7, 2015) (adopting magistrate judge’s order and
non-final report and recommendation) (“The purpose of Rule 6(c)(2) is to ensure that
the party opposing a motion be given sufficient time to respond to affidavits filed by
the moving party, thereby avoiding trial by ambush and undue delay in the case.”))).
In opposition to the Strike Motion, Plaintiffs maintain that the declarations of
Mr. Wilmer and Ms. McKinney were appropriately filed in rebuttal to Defendants’
affidavit evidence offered to support Defendants’ position that the Court should apply
Morgan County/Northeastern Division rates as opposed to Birmingham/Southern
Division and/or Northern District of Alabama ones. (Doc. 104 at 2). Several cases
Defendants cited acknowledge that evidence offered to rebut points made in an
opposition is permitted by way of reply. See, e.g., Carlisle, 2015 WL 4092817, at *1
(“Affidavits filed with a reply brief are considered only for the ‘limited purpose of
responding to matters raised in the responses filed by the opposing parties.’”);
Tishcon Corp. v. Soundview Communications, Inc., No. CIV.A. 104CV524-JEC,
2005 WL 6038743, at *8 (N.D. Ga. Feb. 15, 2005) (“Namely, the affidavits attached
to the reply briefs at issue in Kershner and Shah were considered only because the
affidavits were submitted, specifically, for the limited purpose of responding to
matters raised in the responses filed by the opposing parties.”); Lage v. Ocwen Loan
Servicing LLC, 145 F. Supp. 3d 1172, 1181, 1182 (S.D. Fla. 2015) (analyzing S.D.
Fla. L.R. 7.1(c) which “provides that a reply memorandum ‘shall be strictly limited
to rebuttal of matters raised in the memorandum in opposition without re-argument
of matters covered in the movant’s initial memorandum of law’” and finding that
affidavit which “explicitly rebuts issues raised . . . in response to . . . original
Motion,” to comply with that local rule), aff’d, 839 F.3d 1003 (11th Cir. 2016); cf.
also ABCO Premium Fin. LLC v. Am. Int’l Grp., Inc., No. 11-23020-CIV, 2012 WL
3278628, at *4 (S.D. Fla. Aug. 9, 2012) (“While the ‘raising of new issues and
submission of new facts in reply brief is improper,’ a court has the discretion to
consider the additional exhibits despite this ‘procedural shortcoming.’” (quoting
Fisher v. Ciba Specialty Chem. Corp., 238 F.R.D. 273, 311 n.82 (S.D. Ala. 2006))),
aff’d, 518 F. App’x 601 (11th Cir. 2013).
Defendants additionally argue that the Court should disregard the declarations
of Mr. Wilmer and Ms. McKinney because they were improperly filed as part of
Plaintiffs’ reply as a way “to supplement the record” which was otherwise
insufficiently supported. (Doc. 102 at 3); see also Loranger v. Stierheim, 10 F.3d 776,
781 (11th Cir. 1994) (“By ‘satisfactory evidence,’ we mean ‘more than the affidavit
of the attorney performing the work.’” (citing Norman, 836 F.2d at 1299)). Plaintiffs
respond by maintaining that because their initial evidence offered in support of their
Birmingham and Northern District of Alabama rates was satisfactory under Eleventh
Circuit standards, striking the declarations of Mr. Wilmer and Ms. McKinney is not
appropriate. (Doc. 104 at 4).
As set out above, the Norman court thoroughly explained how a fee movant
meets the satisfactory evidence test and made it clear that evidence of rates actually
charged or previously approved by a court meets the standard. Norman, 836 F.2d at
1299. Plaintiffs included evidence of the rates charged by counsel for hourly, noncontingent labor/employment matters (doc. 96-1 at 12-13 ¶ 18) as well as examples
of comparable rates that were approved in other fee-shifting cases filed in the
Northern District of Alabama. (Id. at 10 ¶ 15, 11 ¶ 16). Accordingly, the Court finds
that Plaintiffs’ initial evidence was adequate to support the Fee Motion under Norman
and that the declarations included in their reply were appropriately filed to rebut
Defendants’ division-based opposition to their Fee Motion.27
Accordingly, for these reasons, the Strike Motion is DENIED.
Plaintiffs’ Fee Motion is GRANTED as modified herein and Defendants’
Strike Motion is DENIED. Accordingly, Plaintiffs are HEREBY AWARDED
$360,000.00 in reasonable attorneys’ fees and expenses. Further, the Clerk is
HEREBY DIRECTED to place the court-annotated time and expense records
attached to this Order under seal. Finally and consistent with the Order Approving
FLSA Settlement (doc. 93 at 3), the Court will enter a separate final judgment order
dismissing this action with prejudice.
DONE and ORDERED this the 21st day of September, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
As illustrated above in Maner, not every attorneys’ fees motion involves a divisionbased dispute over the relevant legal market for determining the prevailing hourly rate.
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