Norman v. Ryla Teleservices, Inc.
ORDER entered that it is ORDERED that the parties motion for approval of Plaintiffs Acceptance of Defendants Rule 68 Offer of Judgment as amended (Docs. 36, 37, 39, 42, 45) to include an acceptance of a Rule 68 judgment, is GRANTED. Therefore , the settlement is APPROVED as a fair and reasonable resolution of a bona fide dispute over Fair Labor Standards Act provisions, and Plaintiff Melissa Norman is due $150.00 as straight time wages, $551.25 as overtime wages and $551 .25 as liquidated damages, for a total of $1,252.50. Additionally, upon consideration and for the reasons set forth herein, it is ORDERED that the Plaintiffs Motion for Attorney Fees (Docs. 40, 41) is GRANTED in part and DENIED in part as fol lows: Plaintiffs counsel is due to be paid the sum of $14,420.00 as a reasonable attorneys fee plus costs of $768.65. Accordingly, it is ORDERED that this matter is DISMISSED WITH PREJUDICE per the Rule 68 Offer and Acceptance of Judgment. A Final Judgment shall issue contemporaneously with this Order by separate document. Signed by Judge Kristi K. DuBose on 11/7/2012. (mca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
f/k/a Ryla Teleservices, Inc..,
CIVIL ACTION NO.: 11-00433-KD-C
This matter is before the Court on Plaintiff’s Acceptance of Defendant’s Offer of Judgment
(Doc. 36), Amended Acceptance of Defendant’s Offer of Judgment (Doc. 37), Motion for Approval
of Plaintiff’s Acceptance of Defendant’s Offer of Judgment (Doc. 39), Motion for Attorney Fees
(Docs. 40, 41); the parties’ Joint Motion for Approval of Plaintiff’s Acceptance of Defendant’s Offer
of Judgment (Doc. 42) and the parties Amended Joint Motion for Approval of Acceptance of Offer of
Judgment (Doc. 45); and Defendant’s Opposition to Plaintiff’s Motion for Attorney Fees (Doc. 44).
Upon consideration and for the reasons set forth herein, it is ORDERED that the parties’
motion for approval of Plaintiff’s Acceptance of Defendant’s Rule 68 Offer of Judgment as
amended (Docs. 36, 37, 39, 42, 45) to include an acceptance of a Rule 68 judgment, is
GRANTED. Therefore, the settlement (in the form of a Rule 68 offer and acceptance of
judgment) is APPROVED as a fair and reasonable resolution of a bona fide dispute over Fair
Labor Standards Act provisions, and Plaintiff Melissa Norman is due $150.00 as straight time
wages, $551.25 as overtime wages and $551.25 as liquidated damages, for a total of
Additionally, upon consideration and for the reasons set forth herein, it is
ORDERED that the Plaintiff’s Motion for Attorney Fees (Docs. 40, 41) is GRANTED in part
and DENIED in part as follows: Plaintiff’s counsel is due to be paid the sum of $14,420.00 as a
reasonable attorney’s fee plus costs of $768.65.
Accordingly, it is ORDERED that this matter is DISMISSED WITH PREJUDICE per
the Rule 68 Offer and Acceptance of Judgment. A Final Judgment shall issue contemporaneously
with this Order by separate document.
Plaintiff Melissa Norman (“Plaintiff”) initiated this action against Defendant Alorica, Inc.
(“Defendant”) for violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §
201 et seq., (“the FLSA”) alleging two (2) causes of action against the Defendant for: 1) willful,
knowledgeable and intentional violation of the FLSA’s overtime, straight time and record
keeping requirements entitling her to back overtime and straight pay for three (3) years from the
date of the filing of this action plus liquidated damages; and 2) breach of an express and implied
contract of employment entitling her to compensation in conformity with her employment
contracts. (Docs. 1, 24).
Plaintiff sought relief including compensatory damages, statutory
liquidated damages, attorney’s fees, equitable relief, costs and expenses.
The parties have jointly submitted the following background as the agreed upon factual
record in this case. (Doc. 45). Plaintiff was employed as a customer service representative for
the Defendant. (Docs. 1, 24; 45-1). Plaintiff alleged that she performed productive work for the
benefit of the Defendant before and after her shifts and during her breaks. (Id.) Plaintiff claimed
that the Defendant failed to pay her for straight time and overtime wages and to keep accurate
records in violation of the FLSA. (Id.) Plaintiff specified that she worked off the clock while
employed with the Defendant at different times throughout the day (before her shift, during her
lunch break and after her shift). (Id.) During the relevant time period, the Plaintiff’s regular
hourly rate of pay was $10.00. (Id.) However, Plaintiff claims that the Defendant failed to pay
her for any of her off-the-clock work. (Id.) The Defendant denied these allegations. (Docs. 8,
25). Plaintiff’s claims are based on her allegation that she had 45 minutes of uncompensated
work each day. Plaintiff’s interrogatory responses contain a detailed explanation of this unpaid
time. (Doc. 45-1). Plaintiff’s counsel initially calculated all of Plaintiff’s unpaid wages at the
applicable overtime rate of $15.00 per hour. (Doc. 45-2). After the initial calculation was made,
the Defendant produced earning statements and time records in discovery. Based on a review of
those records, Plaintiff’s counsel determined that a portion of the Plaintiff’s unpaid wages were
properly calculated at her regular hourly rate.1 Plaintiff’s counsel revised the calculation of
Plaintiff’s damages, with the revised damages totaling $1,252.50, including statutory liquidated
damages. Plaintiff’s counsel made a settlement offer which included the full amount of
Plaintiff’s unpaid wages plus statutory liquidated damages according to the revised calculation.
(Doc. 45-3). Defendant made a counter-offer, which Plaintiff declined. Thereafter, the parties
achieved a settlement via a Rule 68 offer of judgment and acceptance of same. (Docs. 36, 36-1,
37, 39, 42, 45). The parties were ordered to supplement the filings so that the Court may
determine whether the settlement is a fair and reasonable resolution of a bone fide dispute of the
FLSA claims, as well as to file a motion for attorney’s fees. (Doc. 38). The parties jointly
supplemented their filings, and Plaintiff moved for attorney’s fees and costs. (Docs. 39, 40).
In the revised calculation, Plaintiff’s counsel included unpaid wages at the overtime rate for
workweeks with hours worked over 40, and at the regular rate for workweeks with hours worked under
40. Plaintiff’s Complaint also included a claim for unpaid straight time on a state law breach of contract
Pursuant to the parties’ Rule 68 offer and acceptance – the settlement -- Plaintiff will
receive $1,252.50, which is the full amount of her unpaid wages and statutory liquidated
damages based on her counsel’s most recent computation of her damages. Thus, the parties agree
and propose that while this case constituted a bona fide dispute over FLSA provisions, Plaintiff
has received the full amount that she is due and her wage claim was not compromised.
Plaintiff’s counsel seeks $29,574.90 in attorney’s fees ($28,482.50) and expenses
($1,092.40). (Docs. 40, 40-1). Defendant disputes the amount of reasonable attorneys’ fees and
costs owed and filed an opposition thereto. (Doc. 44).
This is an FLSA case and the Court must determine whether the settlement is a “fair and
reasonable resolution of a bona fide dispute” of the claims raised pursuant to the FLSA in order to
approve the settlement.2 As such, the Court previously ordered the parties to file a Joint Motion to
Approve the FLSA Settlement attaching the settlement agreement. (Doc. 38). The parties have since
filed several pleadings requesting approval of the settlement and asserting that there is no settlement
agreement as the settlement was reached pursuant to a Rule 68 offer (and acceptance) of judgment.
Nevertheless, the Court must still determine whether the settlement is a fair and reasonable resolution
of the dispute in light of the facts of the case.3 Notably, although the motion is brought under Rule
68, pursuant to Lynn’s Food Stores, Inc. v. United States of America, 679 F.2d 1350 (11th Cir.
See, e.g., Silva v. Miller, 307 Fed. Appx. 349 (11th Cir. 2009); Lynn's Food Store, Inc. v. United
States, 679 F.2d 1350, 1354-1355 (11th Cir. 1982).
See, e.g., Robert L. Dunagan v. ABBC, Inc., CV 11-280-KD-C (Docs. 22, 28); Jimmy Salter v.
Carlous L. King, et al., CV 11-464-KD-M (Docs. 10, 11).
1982), judicial review and approval of this settlement is still necessary to give it final and
binding effect. See, e.g., Arencibia v. Miami Shoes, Inc., 113 F.3d 1212 (11th Cir. 1997)
(discussing FLSA settlements in the context of Rule 68 offers of judgment); Baxter v.
Automated Gate Sys., Inc., 2010 WL 3730900, *2 (M.D. Fla. Sept. 2, 2010) (same); Delgado v.
Excel One, Inc., 2009 WL 1456452, *1 (M.D. Fla. May 22, 2009) (same); Urshan v. Orlando
Utilities Comm’n, 2009 WL 2392060, *2 (M.D. Fla. Apr. 20, 2009) (same).
The parties report that they have not compromised this case. Specifically, the parties
agree and propose to the Court that while this case constituted a bona fide dispute over FLSA
provisions, Plaintiff has received the full amount that she is due and her wage claim was thus not
compromised. (Doc. 45 at 3). Therefore, the Court approves the Rule 68 offer and acceptance
of judgment as a fair and reasonable resolution of Plaintiff’s claims and her FLSA dispute such
that she is due to be paid $1,252.50 (the full amount of her unpaid straight time wages ($150.00)
and overtime wages ($551.25) plus $551.25 as liquidated damages).
Attorney’s Fees & Costs
The FLSA requires that in any action to enforce Section 207 of the Act, the Court “shall,
in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s
fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). The FLSA
“requires judicial review of the reasonableness of counsel's legal fees to assure both that counsel
is compensated adequately and that no conflict of interest taints the amount the wronged
employee recovers under a settlement agreement.” Silva, 307 Fed. Appx. at 351. In order to
determine the reasonableness of the attorney’s fees requested, the Court employs the lodestar
analysis: the number of hours reasonably expended multiplied by a reasonable hourly rate for
similar legal services. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “Adjustments to that fee
then may be made as necessary in the particular case.” Blum v. Stenson, 465 U.S. 886, 888
(1984). Redundant, excessive, or otherwise unnecessary hours should not be included in the
calculation of hours reasonably expended. Hensley, 461 U.S. at 434. Even when a party
prevails, the district court still must determine whether time was reasonably expended, and if it
was not, that time should be excluded from the fee calculation. Id. While the “lodestar” method
effectively replaced the balancing test previously prescribed by Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974), the 12 Johnson factors4 “might still be
considered in terms of their influence on the lodestar amount.” Norman v. Hous. Auth. of the
City of Montgomery, 836 F.2d 1292 (11th Cir. 1988). The plaintiff bears the burden of
documenting and proving reasonable hours expended and reasonable hourly rates. ACLU v.
Barnes, 168 F.3d 423, 427 (11th Cir. 1999). The plaintiff must also supply detailed evidence of
the hourly rates and time expended so that this Court may properly assess the time claimed for
each activity. Id. “When a district court finds the number of hours claimed is unreasonably
high, the court has two choices: it may conduct an hour-by-hour analysis or it may reduce the
requested hours with an across-the-board cut.” Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350
(11th Cir. 2008).
The primary basis for Plaintiff’s entitlement to attorney’s fees and costs is Defendant’s
The factors are as follows: 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 attorney; 10) the
“undesirability” of the case; 11) the nature and length of the professional relationship with the client; 12)
awards in similar cases. Johnson, 488 F.2d at 717-719.
Rule 68 offer of judgment and Plaintiff’s acceptance of same. (Doc. 40 at 2). Concerning
attorney’s fees, in the Rule 68 offer, Defendant expressly offered for Plaintiff to take judgment
on specified terms including the full amount of her wages and liquidated damages “plus
reasonable attorney’s fees incurred by Plaintiff prior to the date of this offer as determined by the
Court.” (Doc. 37-1). Plaintiff timely accepted the Rule 68 offer and filed the acceptance with
the Court. Thus, pursuant to Rule 68 and the express terms of the accepted Rule 68 offer of
judgment which Plaintiff accepted, Plaintiff is only entitled to an award of reasonable attorney’s
fees incurred prior to date of the Rule 68 offer (July 31, 2012), or incurred as of July 30, 2012.
(Docs. 36-1; 37-1). As to costs, the Rule 68 offer does not include costs. (Id.)
As additional grounds for recovery of fees and costs, Plaintiff contends that once the
Court approves the settlement and enters a judgment against Defendant on Plaintiff’s FLSA
claims, such will accomplish the necessary change in the legal relationship of the parties to serve
as the basis for a court-awarded attorney’s fee under 29 U.S.C. § 216(b) with Plaintiff as the
“prevailing party.” From there, Plaintiff asserts that her prevailing party status entitles her
counsel to fees and costs (citing Kraeger v. Soloman & Flanagan, P.A., 775 F.2d 1541, 1542
(11th Cir. 1985) (finding that an award of attorney’s fees and costs to a prevailing plaintiff is
mandatory in an FLSA case) and Shelfton v. Ervin, 830 F.2d 182, 184 (11th Cir. 1987) (same)).
The provision for an award of fees to a prevailing plaintiff under the FLSA is not based on a
finding of defendant's fault, but, rather, on the Congressional determination that such a provision
was needed to make plaintiffs whole, and particularly where recoveries were likely to be small,
remains important to attract competent counsel for claims seeking relatively small damages.
Wolff v. Royal American Mgt., Inc., 2012 WL 5303665, *3 (S.D. Ala. Oct. 25, 2012). However,
“an entitlement to attorney's fees cannot be a carte blanche license for Plaintiffs to outrageously
and in bad faith run up attorney fees without any threat of sanction.” Id.
Specifically, Plaintiff’s counsel seeks $29,574.90 in attorney’s fees and costs ($28,482.50
in fees for 130.8 hours of work by four (4) attorneys, as well as $1,092.40 in expenses), incurred
from May 31, 2011 through September 14, 2012 (beyond the July 30, 2012 cut off date of the
Rule 68 offer). (Docs. 40, 40-1). In the supplemental information regarding attorney’s fees and
costs, Plaintiff’s counsel applied the guidelines from Johnson v. Georgia Highway Express, 488
F.3d 714 (5th Cir. 1974) and analyzed the 12 factors from Johnson as well as submitted the
documentation in support of same (including an affidavit from Plaintiff’s counsel, affidavits
from local attorneys (Richard W. Fuquay and Henry Brewster), information as to each billing
individual, and descriptions of the tasks performed and costs incurred, etc.). (Docs. 40, 41).
However, Defendant disputes the amount of attorneys’ fees and costs owed and filed an
opposition thereto along with the affidavit of William Wasden. (Doc. 44). Defendant contends
that attorneys’ fees totaling 23 times the award of $1,250.50 reveals that Plaintiff’s counsel
“substantially overbilled and mismanaged this case.” (Doc. 44 at 1). For a number of specific
reasons discussed in its brief, Defendant contends that the amount of time billed is excessive and
“padded” and that the costs should not be recoverable at all. (Doc. 44). Defendant contends
further, that Plaintiff’s counsel has run up the fees in this case and failed to use billing judgment.
The Court has reviewed the supplemental information regarding the matter of attorney’s
fees and finds as follows. At the outset, based on the terms of the Rule 68 offer which was
accepted, Plaintiff is only entitled to reasonable attorneys’ fees incurred as of July 30, 2012. As
such, those portions of Plaintiff’s counsel’s billing statement (and the fees related to same) which
provide for billed time after July 30, 2012 are excluded and not awardable. Nevertheless,
Plaintiff’s counsel has specifically marked portions of the billing statement as “Non-billable
Time Entries” on Pages 17-21 of Doc. 40-2 – portions which include some of this excludable
time. As such, due to counsel’s designation of this time as “non-billable,” the time entries on
those pages (dating from June 29, 2011 through September 14, 2012) are also excluded from the
attorneys’ fees award in this case. With the billing landscape thus narrowed, the Court now turns
to the specifics of the fee dispute.
Plaintiff’s counsel submits the proposed reasonable hourly rates and hours incurred:
$250/hour for B.Ladd, an attorney with 19 years experience, and 90.3 hours of work; $250/hour
for M.C.Ladd, an attorney with 14 years experience, and 1.9 hours of work; $150/hour for
S.Vitello, an attorney with less than one (1) year of experience, and 21.0 hours of work; and
$100-$150/hour for S.Booth5 an “attorney/paralegal” with four (4) years of experience, and
17.60 hours of work.
Reasonable Hourly Rate
As the party requesting fees, Plaintiff has the burden of supplying the Court with specific
and detailed evidence from which the Court can determine the reasonable hourly rate for the
work performed by its attorneys and paralegals. Am. Civil Liberties Union of Ga. v. Barnes, 168
F.3d 423, 427 (11th Cir. 1999) (citing Norman, 836 F.2d at 1303). The Eleventh Circuit has
instructed that a reasonable hourly rate is “the prevailing market rate in the relevant legal
Plaintiff’s counsel represents that Ms. Booth is an attorney who worked as a legal secretary for
five (5) years before entering law school. (Doc. 40 at 5 at note 4).
community for similar services by lawyers of reasonably comparable skills, experience, and
reputation.” Norman, 836 F.2d at 1299. In this case, the relevant legal community is Mobile,
Alabama. See Barnes, 168 F.3d at 437 (providing that “the ‘relevant market’ for purposes of
determining the reasonable hourly rate for an attorney’s services is the place where the case is
filed.” (citation omitted)).
Plaintiff’s counsel seeks recovery of the following hourly rates: $250/hour for B.Ladd;
$250/hour for M.C.Ladd; $150/hour for S.Vitello; and $100-150/hour for S.Booth.6 Plaintiff’s
counsel does not indicate which attorneys are partners or associates but instead provides the
years of experience for each: B.Ladd, an attorney with 19 years experience; M.C.Ladd, an
attorney with 14 years experience; S.Vitello, an attorney with less than one (1) year of
experience; and S. Booth, an attorney with four (4) years of experience. The Court recently
determined $250/hour to be a reasonable rate for an attorney with 15 years of experience. See
Vision Bank v. Anderson, No. 10-0372-KD-M, 2011 WL 2142786, at *3 (S.D. Ala. May 31,
2011). See also Mitchell Co., Inc. v. Campus, 2009 WL. 2567889, *1 and *17-18 (S.D. Ala.
Aug. 18, 2009) (finding that a reasonable hourly rate for an attorney with 12 years of experience
was $225/hour). As such, the hourly rates for B.Ladd ($250/hour) and M.C. Ladd ($250/hour)
will be awarded as requested, as the rates are found to be reasonable.
As for the two (2) other attorneys, S.Vitello and S.Booth, with less than one (1) and four
(4) years experience respectively, the undersigned and other judges in the Southern District of
Alabama have found $150/hour to be reasonable for attorneys with a few years of practice. See,
In the motion, Plaintiff’s counsel explains that Ms. Booth is an attorney who also worked as a
legal secretary for approximately five (5) years prior to entering law school. (Doc. 40 at 5 at note 4).
e.g., Gulf Coast Asphalt Co., L.L.C v. Chevron U.S.A., Inc., 2011 WL 612737, *4 (S.D. Ala.
Feb. 11, 2011) (finding $145/hour to be a reasonable rate for second-year associate); Adams v.
Austal, U.S.A., L.L.C., 2010 WL 2496396, *6 (S.D. Ala. June 16, 2010) (finding $150/hour to
be a reasonable rate for third-year associate). Upon consideration, the Court finds that these two
(2) attorneys shall be awarded the hourly rate of $150/hour, which is found to be reasonable.
Recoverable Time – Reasonable Hours Expended
Plaintiff seeks recovery of 130.8 billable hours. (Doc. 40 at 4). In determining whether
the number of hours expended are reasonable, the Court should not include any hours which are
“excessive, redundant, or otherwise unnecessary.” Norman, 836 F.2d at 1301. When awarding an
attorney’s fee, the “[c]ourts are not authorized to be generous with the money of others, and it is
as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see
that an adequate amount is awarded.” Barnes, 168 F.3d at 428. The Court will not permit a party
to recover fees for hours that are excessive, redundant, or unnecessary, i.e., hours “that would be
unreasonable to bill to a client and therefore to one’s adversary irrespective of the skill,
reputation or experience of counsel.” Norman, 836 F.2d at 1301 (emphasis omitted). The Court’s
review of the record reveals that the number of hours requested are not fully supported and
moreover, have been miscalculated.
While there is no per se rule of proportionality, City of Riverside v. Rivera, 477 U.S. 561,
574 (1986), the Supreme Court has made clear that such could still be considered a factor in
determining the reasonableness of a fee request. “The amount of damages a plaintiff recovers is
certainly relevant to the amount of attorney's fees to be awarded under § 1988.... It is, however,
only one of many factors that a court should consider in calculating an award of attorney's fees.”
Id. (citation omitted). See also Wolff, 2012 WL 5303665, *4-5. “[I]n light of the disparity
between what [P]laintiff claimed and what her attorneys now seek for obtaining the recovery,
there is potential for the fee award to become a windfall for [P]laintiff's counsel. FLSA suits are
not meant to become a cottage industry divorced from the benefits they provide, and the fees
should not shade over from fair play into a punitive measure against defendants who challenge a
plaintiff's overtime claim in good faith. The court considers these factors in determining the
reduction to be applied to the fees requested in this action.” Id. at 5. See also e.g., Goss v.
Killian Oaks House of Learning, 248 F. Supp. 2d 1162, 1168 (S.D. Fla. 2003) (denying a
plaintiff’s motion for fees as counsel “seem[ed] to have leveraged a small sum as a steppingstone to a disproportionately large award of attorney’s fees” by seeking almost $16,000 for a
$315.89 FLSA claim).
At the outset, as noted supra, approximately 90 entries have been designated by
Plaintiff’s counsel as “non-billable time entries” (Doc. 40-2 at 17-21), and so those entries are
excluded from the reasonable hours expended calculation. With the removal of these excluded
entries, and based on the Court’s calculation of the hours, Plaintiff’s counsel’s attorney’s fees
motion encompasses the requested recovery of a total of 130.80 hours, as follows: 90.3 hours for
B.Ladd at the rate of $250/hour; 1.9 hours for M.Ladd at the rate of $250/hour; 21 hours for
S.Vitello at the rate of $150/hour; and 17.60 hours for S.Booth at the rate of $150/hour. With the
130.80 hours total in mind, the Court turns to the specific entries with which Defendant takes
issue (apart from the issue that Plaintiff’s counsel’s fee request is 23 times the award).
The Court’s review of the billing statement and the time entries indicate that some entries
appear to have been overstated and that a number of the Defendant’s objections are meritorious.
First, as to the time billed to draft pleadings, Plaintiff’s counsel seeks more than 30 hours for the
drafting of only four (4) documents. Second, as to the time billed for discovery, Plaintiff’s
counsel seeks 40 hours for time spent on discovery which consisted of only one (1) set of
interrogatories, one (1) set of document production and Plaintiff’s deposition (3.5 hours). Third,
Plaintiff’s counsel spent more than 12 hours on basic legal research regarding the FLSA and
S.Vitello conducted almost 7 additional hours on same. Fourth, Defendant contends that the
time billed by Plaintiff’s counsel for internal/external communication including communications
with a “John Spencer” should not be awarded as “Spencer” has no relation to this case and the
time entries for interoffice conferences, memos, e-mails, telephone calls and the like should not
be part of the award. Fifth, Plaintiff’s counsel billed 4 hours for office work and administrative
tasks including “receipt of documents” and “organizing files,” to which Defendant objects.
Attorney time expended for receiving and reviewing court papers has been found to be
unnecessary or excessive. See, e.g., Williams v. R.W. Cannon, Inc., 657 F. Supp. 2d 1302, 1310
(S.D. Fla. 2009). Sixth, Plaintiff’s counsel billed 12 hours for preparing a motion for summary
judgment that was never filed and thus, contends that this time is not recoverable. Seventh,
Plaintiff’s counsel’s billing includes more than 6 hours for administrative tasks not traditionally
performed by attorneys (updating files, organizing pleadings, etc.) and Defendant contends that
such entries should be excluded. Eighth, Defendant takes issue with the over 8 hours of time
Plaintiff’s counsel has billed to track unrelated litigation, asserting that such research is irrelevant
and improper for an award. Ninth, Defendant contends that the time Plaintiff’s counsel billed for
its unsuccessful and frivolous state law breach of contract claim is not recoverable.
In light of the foregoing entries with which Defendant objects, Defendant’s proposed
solution is for the Court to reduce the total number of hours requested to only 28 hours, as
Plaintiff has failed to meet her burden of establishing the reasonableness of the hours (and thus
fees) sought. See, e.g., Padurjan v. Aventura Limousine & Transp. Serv., Inc., 441 Fed. Appx.
684, 687 (11th Cir. 2011) (finding that the district court did not err when it reduced the hours
expended by 50% across the board). When a district court finds the number of hours claimed is
unreasonably high – which is indicated here – the court has two (2) choices: conduct an hour-byhour analysis or reduce the requested hours with an across-the-board cut. Wolff, 2012 WL
5303665, *5. Given the significant dispute surrounding the hours billed (highlighting some
billing oddities on the part of Plaintiff’s counsel) and the amount of fees sought in relation to
Plaintiff’s recovery, the Court finds that an across-the-board cut is proper under the
circumstances of this case – albeit not a reduction to a recovery of only 28 hours at a $200/hour
rate (for $5,600 as recoverable fees) as proposed by Defendant. Id. See also Western Sur. Co. v.
Bradford Elec. Co., Inc., 483 F. Supp. 2d 1114, 1121 (N.D. Ala. 2007) (noting that hours spent
on clerical work is not recoverable and time billed must not be excessive, redundant or otherwise
unnecessary). Rather, the Court finds that the number of hours billed (130.80) by each billing
attorney are due to be reduced 50% such that $14,420.00 in attorney’s fees shall be awarded
as follows: 45.15 hours for B.Ladd at the rate of $250/hour ($11,287.50); 0.95 hours for
M.C.Ladd at the rate of $250/hour ($237.50); 8.80 hours for S.Booth at the rate of $150/hour
($1,320.00); and 10.5 hours for S.Vitello at the rate of $150/hour ($1,575.00).
As to costs, the Rule 68 offer does not include costs as part of the settlement. (Doc. 361). Plaintiff claims entitlement to costs per Marek v. Chesney, 473 U.S. 1, 6 (1985) (providing
that Rule 68 requires the court to award costs where accepted offer of judgment is silent as to
costs). Specifically Plaintiff requests $1,092.40 in costs incurred from August 8, 2011 through
September 14, 2012 including recovery for a process serving fee, court filing fee, pacer and other
filing fees, mileage, deposition transcript, 14 months of Westlaw research ($10/month) and
photocopies. (Doc. 40-2 at 22). Defendant disputes the recovery of any costs as they were not
part of the Rule 68 offer of judgment which Plaintiff accepted, adding, however, that if the Court
permits the recovery of costs, that they should be significantly reduced.
The FLSA provides for “a reasonable attorney's fee to be paid by the defendant, and costs
of the action” (29 U.S.C. § 216(b)). The Eleventh Circuit has stated that if the Rule 68 offer is
silent as to costs and does not specifically exclude same, the court should award appropriate
costs “then accrued” in addition to the amount of the offer. See, e.g., Utility Automation 2000,
Inc. v. Choctawhatchee Elec. Co-op, Inc., 298 F.3d 1238, 1241-1242 (11th Cir. 2002); Arencibia
v. Miami Shoes, Inc., 113 F.3d 1212, 1214 (11th Cir. 1997). As such, Plaintiff’s counsel is
entitled to costs as determined by this Court in its discretion as reasonable and recoverable –
costs accrued as of July 30, 2012 (the date of the Rule 68 offer). This determination necessarily
excludes the $140.00 for the $10/month charge for Westlaw which was not billed until July 31,
2012 and which is not chargeable in the manner presented,7 as well as the $183.75 in
photocopies which was not billed until September 14, 2012.
See, e.g., Wolff v. Royal American Mgmt., Inc., 2012 WL 5303665, *9 (S.D. Ala. Oct. 25,
2012) (providing that while Westlaw monthly charges of $10/month are chargeable when incurred for a
particular case but in the instant case, where no extra charge was incurred for activity on this particular
case, the charge is instead “a thinly-veiled attempt to make an expense of an item of law firm overhead.
Counsel could just as easily apportion the costs of subscriptions to case reporters or other law books, or
utility bills and staff salaries in the same manner they apportioned monthly fixed-rated charges for
‘Westlaw’”). Such rationale applies to this case.
Accordingly, Plaintiff’s counsel is entitled to costs incurred from August 8, 2011 through
June 29, 2012, for a total of $768.65. (Doc. 40-2 at 22).
DONE and ORDERED this the 7th day of November 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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