Carrier et al v. Navika Capital Group, LLC et al
ORDER granting in part and denying in part 93 Motion For Attorneys' Fees and Bill of Costs 94 . Plaintiffs are awarded attorneys' fees in the amount of $33,571.16 for the main litigation, attorneys' fees in the amount of $2,120 for preparation of the fees motion, and costs in the amount of $400. This action is dismissed with prejudice.. Signed by Chief Judge Kristi K. DuBose on 4/17/2017. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
THERESA FORD, et al.,
NAVIKA CAPITAL GROUP, LLC, et al.,
CIVIL ACTION 14-00311-KD-C
This matter is before the Court on Plaintiffs’ motion and application for attorneys’ fees
(Doc. 93), Defendants’ opposition (Doc. 95) and Plaintiffs’ Bill of Costs (Doc. 94).
On July 8, 2014, 14 Plaintiffs initiated this FLSA collective again against Defendants.
On March 12, 2015, Stokes was terminated as a plaintiff.
2015, White was terminated as a plaintiff.
terminated as a plaintiff.
(Docs. 42, 43).
(Docs. 35, 37).
On May 12,
On June 9, 2015, Wilkins was
On June 10, 2015, Plaintiffs’ counsel’s request to
withdraw from representing Carrier, Hannon and McGee in this case was granted.
On July 1, 2015, Carrier, Hannon and McGee were terminated as plaintiffs.
On March 22, 2016, Portis was terminated as a plaintiff.
Thus, as of March 23, 2016, seven (7)
plaintiffs remained in this case – Ford, Franklin, Knight, Law, Poellnitz, Reed and Williams.
On August 19, 2016, these seven (7) plaintiffs moved the Court for approval of the
The motion was denied but with leave to refile.
On November 17, 2016 these plaintiffs moved the Court for approval of the amended
(Doc. 84). On November 30, 2016, this Court granted the parties’
joint motion to approve the amended settlement agreement and release (Doc. 84), reserving the
issue of attorneys’ fees and costs for another day.
In so doing, the Court stated:
… as this is an FLSA case, the Court had to determine whether the settlement is a “fair
and reasonable resolution of a bona fide dispute” of the claims raised to approve the
settlement. Lynn’s Food Stores, Inc. v. United States of Am., 679 F.2d 1350, 1354-1355
(11th Cir. 1982). This includes an assessment of attorneys’ fees and costs. As such, in
granting the parties’ motion to approve the amended settlements, the Court considered
the parties’ representations that “Plaintiffs’ counsel will be filing an application for an
additional, separate sum of reasonable attorneys’ fees and costs, meaning that counsel’s
recovery is in no way related to those sums to be paid to Plaintiffs in compromise of their
claims.” (Doc. 84 at 8). The parties stated that they disagreed on the amount to
attorneys’ fees to be assessed and so “agreed to let the Court determine” the amount, as
set forth in the proposed settlement agreements at Paragraph 7. (Id. at 10). Paragraph
7(a) of the settlement agreements provides:
(a) NAVIKA has agreed to pay the reasonable attorneys' fees and costs incurred
by FORD, with such fees being determined by the Court. The Parties agree that counsel
for FORD shall file a motion to determine the reasonable attorneys' fees incurred by
counsel for FORD herein in accordance with Local Rule 7.0. The Parties further agree that,
unless the Court orders otherwise, such motion shall be submitted on the papers and
payment for reasonable attorney's fees shall be made within thirty (30) days after the Court
determines and awards such.
In granting on the motion to approve the settlement, the Court stated:
As set forth above, the motion is GRANTED and the settlement agreements are
APPROVED. The parties have agreed that the Court will calculate attorneys’
fees in this matter. Under the FLSA attorneys’ fees are an integral part of
damages and thus judgment will not be entered until the attorneys’ fee
determination is resolved. See Shelton v. Ervin, 830 F.2d 182, 184 (11th Cir.1987)
(“…[W]e hold that attorney fees are an integral part of the merits of FLSA cases
and part of the relief sought therein. Thus, a final determination as to the award of
attorney fees is required as part of the final appealable judgment.”).
The Court ordered briefing and counsel for Plaintiffs filed a motion and application
for attorneys’ fees (Doc. 86), Defendants’ responded (Doc. 87), Plaintiffs’ replied (Doc. 88) and
counsel submitted a Bill of Costs (Doc. 89).
Specifically, Plaintiffs sought attorneys’ fees and costs “to be paid by the Defendants.”
According to counsel, they recovered $41,560.00 for the seven (7) Plaintiffs on their
FLSA claims against the Defendants.
(Docs. 86 at 5, 86-1 (Decltn. Steele)).
counsel sought recovery of an additional $68,999.50 in attorneys’ fees and $1,160.69 in
costs/expenses for 450.80 hours1 litigating this case on behalf of all 14 of the original plaintiffs
from July 4, 2014-December 21, 2016, as well as $2,120.00 for preparing the fees motion:
After excluding hours that have been eliminated through the exercise of billing judgment;
reducing the hourly rates in accordance with the prevailing market rates in Mobile,
Alabama; analyzing the decisions of this Court; Plaintiffs’ counsel reduced the 536.10
hours expended prosecuting this matter to 450.8 for which counsel is seeking
compensation. Plaintiffs’ current lodestar is $68,999.50—which leads to an effective
“blended” rate of $153.06 per hour. Plaintiffs seek costs and expenses in the amount of
$1,160.69. Consequently, the question before this Court is whether the $68,999.50
lodestar amount of fees for Plaintiffs’ counsel’s work prosecuting this action and the
$2,120.00 lodestar amount for preparing this application are reasonable.
(Doc. 86 at 2).
Plaintiffs also separately filed Bill of Costs seeking an additional $733.90
($400 for fees of the clerk and $333.90 for service of the summons/petition).2
(Docs. 89, 89-1,
While Defendants agreed to pay reasonable fees and costs per the terms of the
settlement, they vigorously opposed the specific amount of fees and costs requested.
On February 9, 2017, this Court denied Plaintiffs’ motion for attorneys’ fees/costs and
bill of costs, granting Plaintiffs leave to file a new motion, specifying, in part, as follows:
…First, for FLSA fees recovery there must be an assertion that the fees were negotiated
separately from Plaintiffs’ settlements to avoid any taint in the agreements….Court is
satisfied that this assertion has been made: “Plaintiffs’ counsel will be filing an
application for an additional, separate sum of reasonable attorneys’ fees and costs,
meaning that counsel’s recovery is in no way related to those sums to be paid to Plaintiffs
in compromise of their claims.” (Doc. 84 at 8).
Second, Defendants, via execution of the seven (7) settlements, agreed to pay Plaintiffs
reasonable attorneys’ fees and costs as determined by this Court for those plaintiffs. (Doc.
84-1 at 6 at ¶7(a)). Plaintiffs’ recovery is thus limited to the fees and costs incurred for
Ford, Franklin, Knight, Law, Poellnitz, Reed and Williams. Counsel’s billing records do
1 Which counsel represented was a reduction from the 536.10 hours expended.
(Doc. 86 at 2).
2 Which included “rush” fees totaling $260.00 and $9.90 for copying charges.
(Doc. 89-2 at 1).
not sufficiently differentiate among plaintiffs, making it unclear as to which entries relate
to the seven (7) plaintiffs versus the terminated/dismissed plaintiffs. Plaintiffs
acknowledge that “some of the time was not identified and written off” in response, but
contend that counsel’s overall reduction of fees basically remedies such. (Doc. 88 at
4-6). While Plaintiffs have “conceded” some entries should be removed, the better
course – for clarity and to avoid confusion – is for counsel to review the billing records
and submit a new motion seeking only those fees and costs relating to the seven (7)
Third, the billing records include time entries by 11 non-lawyers. (Doc. 86 at 9).
Concerning non-lawyer paralegals and non-lawyer law clerks, a court may award fees for
their work, but only to the extent they perform work “traditionally done by an attorney.”
Vanderbilt Mortg. And Fin., Inc. v. Crosby, 2015 WL 5178719, *2 (S.D. Ala. Sept. 54,
2015); SE Prop. Holdings, LLC v. 145, LLC, 2012 WL 6681784, *4-5 (S.D. Ala. Dec.
21, 2012). See also Brown v. Lambert’s Cafe III, 2016 WL 325131, *6 and note 4 (S.D.
Ala. Jan. 27, 2016). “[W]ork that is clerical or secretarial in nature is not separately
recoverable.’ Id. (denying attorney's fees for such clerical and secretarial work as
gathering materials and copying, mailing, and refiling them).” SE Prop., 2012 WL
6681784, *5. While the Court can discern the two (2) non-lawyer law clerk entries as
they have been named and identified by counsel (W.Thorne “WC” and C.Agboli “CA”),
counsel has failed to identify which of the remaining nine (9) billers (K.McNeil, K.Dodd,
C.Taylor, C.Fenton, D.Francis, A.Caballero, S.Fuller, D.Detgen and K.Flores) are
non-lawyer paralegals versus non-lawyer “staff.” [FN3]
[FN3] While counsel has listed nine (9) non-lawyers at Doc. 86 at 9, he has provided no further
Fourth, with regard to the time entries by non-lawyer and non-paralegal “staff,” clerical
or secretarial tasks (i.e., administrative work) are not recoverable, as those are overhead
expenses. Missouri v. Jenkins, 491 U.S. 274, 288 at note 10 (1989) (“purely clerical or
secretarial tasks should not be billed at a paralegal rate, regardless of who performs
them”). Such non-recoverable tasks include time billed for: setup of a file, calendaring
deadlines, receiving, reviewing, and indexing documents, sending or receiving emails
with documents attached, preparing civil cover sheets and summons, receiving and
indexing certified mail receipts, e-filing documents with the Court, receiving and
indexing those documents, mailing and telefaxing correspondence, making calls to
clients, obtaining pleadings from the court's database, printing documents, miscellaneous
scanning of documents, etc. See, e.g., Cormier v. ACAC Inc., 2013 WL 6499703, *5
(S.D. Ala. Dec. 11, 2013); Whitney Bank v. Davis–Jeffries–Hunold, Inc., 2012 WL
5470131, *7 (S.D. Ala. Nov. 9, 2012); Andriello v. CFI Sales & Marketing, Inc., 2012
WL 3264920, *9 (M.D. Fla. Jan. 4, 2012); Miller v. Kenworth of Dothan, Inc., 117
F.Supp.2d 1247, 1261 (M.D. Ala. 2000). [FN4]…
[FN4] See also Espino v. Commissioner of Social Security, 2015 WL 6705453, *2 (M.D. Fla.
Nov. 2, 2015) (clerical tasks such as “Review Summons Issued,” “Call to Clerk to confirm
Summons were sent to Marshall for service,” “Download/Combine and OCR Transcript, live
bookmark,” and “Download, file and save Corrected transcript in parts,” are not compensable as
attorney fees); Classic Harvest LLC v. Freshworks LLC, 2017 WL 393730, *2 (N.D. Ga. Jan. 30,
2017) (downloading, scanning or saving files or docket entries are not recoverable); Peress v.
Wand, M.D., 597 F.Supp.2d 1320, 1325-1326 (S.D. Fla. 2008) (an attorney in an FLSA case
should not be permitted to recover fees for clerical time for e-filing, on line research of addresses,
preparing civil cover sheets and summonses and for reviewing the CM/ECF email for documents
prepared and filed by counsel).
…The billing records include numerous entries for such tasks (e.g., including but not
limited to -- 8/11/16 “receive settlement agreement and W9 form signed from client: scan
to file and save,” 8/15/16 “re-scan settlement agreements into S drive for clients”,
“KD”’s “further preparation of documents for client correspondence”, “CT”’s
“conference with counsel regarding strategy on service affidavits,” “DF”’s “compilation
of correspondence and pleadings regarding all parties in lawsuit,” “AC”’s “analysis of
scheduling order/docket control order”, “DD”’s “save supplemental report regarding
settlement to S drive,” “Operation of Spreadsheet…”, etc. (Docs. 86-2; 86-10). The
non-recoverability for clerical tasks may also be applicable to those entries labeled
“Assistance with….” (Id.) Further, as presented, counsel’s entries for non-lawyer staff
could be viewed as non-recoverable block billing. See, e.g., Longhini v. New Way
Foods, Inc., 2016 WL 6806243, *3 (S.D. Fla. Nov. 16, 2016); Pronman v. Styles, 2016
WL 3661940, *4 (S.D. Fla. Mar. 15, 2016). [FN5]….
[FN5] “Block billing may occur where a single billing entry contains compensable legal tasks and
non-compensable secretarial tasks. See Peress v. Wand, 597 F. Supp. 2d 1320, 1325 (S.D. Fla.
2008). Block billing may also occur where time spent on multiple non-secretarial tasks is
inadequately described. See Williams v. R. W. Cannon, Inc., 657 F.Supp.2d 1302, 1310 n. 4 (S.D.
Fla. 2009).” “The Court is not able to determine from these records what time was spent pursuing
legal aims and what time was attributed to non-compensable clerical tasks. Therefore, such
blended entries will not be awarded under the FLSA fee shifting provision.” Nipper v. Lakeland
Hotel Investors, Ltd., 2010 WL 4941718, *5 at note 4 (M.D. Fla. Nov. 30, 2010).
….While some entries in this category contain work that may be legal, with a number of
them counsel has failed to separate legal from non-legal work. Entries for administrative
tasks (however listed) should be removed. While Plaintiffs have “conceded” that “a 10%
reduction of the time block billed is appropriate” they fail to identify those entries
and/or acknowledge any entries that are a hybrid of legal and clerical tasks. (Doc. 88 at
9). For clarity and to avoid confusion, the better course is for Plaintiffs to review the
billing records and submit a new motion for fees and costs that removes any such billing
from its request…..
…..The FLSA mandates that in any action brought by an employee to enforce Section
206 or 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). In a FLSA action, allowable costs are set
forth in 28 U.S.C. § 1920. These costs include: 1) fees of the clerk and marshal; 2) fees
for printed or electronically recorded transcripts necessarily obtained for use in the case;
3) fees and disbursements for printing and witnesses; 4) fees for exemplification and
costs of making copies of any materials where the copies are necessarily obtained for use
in the case; 5) docket fees under section 1923; and 6) compensation of court appointed
experts, compensation of interpreters, and salaries, fees, expenses and costs of special
interpretation services under section 1828.
… Plaintiffs’ also filed a Bill of Costs in which they seek an additional $733.90 ($400
for fees of the clerk and $333.90 for service of the summons/petition, including “rush”
fees). (Docs. 89, 89-1, 89-2). As highlighted by Defendants (Doc. 87 at 19-20),
Plaintiffs’ costs request does not delineate the amounts incurred for the seven (7)
plaintiffs versus the terminated and/or dismissed plaintiffs… Moreover, as to the service
fees, “[f]ees of the clerk and marshal” may be taxed as costs (i.e., the statute authorizes a
court to tax private process server fees as costs where the rates do not exceed what it
would cost to have the U.S. Marshal effectuate service). U.S. E.E.O.C. v. W&O, Inc.,
213 F.3d 600, 623-624 (11th Cir. 2000). Private server fees in excess of that amount,
“rush fees,” and courier fees are not recoverable. See, e.g., Id.; F.D.I.C. v. Hoolihan,
2013 WL 6597052, *1 (M.D. Fla. Dec. 16, 2013); Blowbar, Inc. v. Blow Bar Salon, Inc.,
2013 WL 6244531, *6 (M.D. Fla. Dec. 3, 2013)…..
…And while Plaintiffs now appear to concede that certain costs are not recoverable by
“amending” its request as follows: “Plaintiffs amend their request for costs of $733.90
consistent with the verified bill of costs, and § 1920 filed contemporaneously with this
brief” this only creates more confusion. (Doc. 88 at 10). For clarity, the better
course is for Plaintiffs to review the costs and submit a new request for same, with
(Doc. 90 at 3-9).
Due to the deficiencies in Plaintiffs’ motion, leave was given to file a new motion for
attorneys’ fees and costs that would address and cure the concerns detailed and provided the
Court with only the relevant billing entries and legally recoverable fees and costs for the seven
(7) Plaintiffs (Ford, Franklin, Knight, Law, Poellnitz, Reed and Williams).
Court now turns to the new motion and Bill of Costs filed by Plaintiffs.
(Id. at 9).
(Doc. 93, 94).
In FLSA actions, the Court relies on the lodestar method for determining the
reasonableness of the fees sought.
Padurjan v. Aventura Limousine & Transp. Serv., Inc., 441
Fed. Appx. 684 (11th Cir. 2011); Perez v. Carey Int'l, Inc., 373 Fed. Appx. 907 (11th Cir. 2010);
Norman v. Alorica, Inc., 2012 WL 5452196 (S.D. Ala. Nov. 7, 2012); Wolff v. Royal Am. Mgt.,
Inc., 2012 WL 5303665 (S.D. Ala. Oct. 25, 2012). Under the lodestar method, the Court
multiplies the number of hours reasonably expended by a reasonable hourly rate for similar legal
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Resolution Trust Corp. v. Hallmark
Builders, Inc., 996 F.2d 1144, 1147, 1150 (11th Cir. 1993).
be made as necessary in the particular case.”
“Adjustments to that fee then may
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.
While the “lodestar” method effectively
replaced the balancing test in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719
(5th Cir. 1974), the 12 Johnson factors “might still be considered in terms of their influence on
the lodestar amount.”
Norman v. Hous. Auth. of the City of Montg., 836 F.2d 1292 (11th Cir.
The 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
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.
Presently, Plaintiffs’ counsel seeks $61,087 in attorneys’ fees for 384.3 hours3 litigating
this case on behalf of seven (7) plaintiffs from July 4, 2014-December 21, 2016, as well as
$2,120 for preparing the new motion for attorneys’ fees.4
Plaintiffs also separately
filed a Bill of Costs seeking an additional $733.90 in costs. (Doc. 94).
In response to the
Court’s instructions, Plaintiffs assert that they have excluded purely administrative time, time
relating to the dismissed plaintiffs, reduced hourly rates to match those in Mobile, etc.
Defendants vigorously oppose the amount attorneys’ fees and costs requested.
As the parties requesting fees, Plaintiffs bear 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.
American 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 community for similar
services by lawyers of reasonably comparable skills, experience, and reputation.”
F.2d at 1299.
In this case, the relevant legal community is Mobile, Alabama. 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’”).
Additionally, the Court,
which is familiar with the prevailing rates in the local market, may act as its own expert and rely
on its “knowledge and experience” to determine the reasonableness and propriety of the
3 Which counsel represents is a reduction from the 536.10 hours actually expended.
(Doc. 93 at 2).
4 Plaintiffs have abandoned their request for non-taxable costs ($1,160.69 in costs for filing fees, postage,
court costs/expenses, legal research and Pacer usage).
Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). Moreover, this
Court’s prior awards are relevant and instructive in determining whether the “requested rate is in
line with prevailing market rates” in this district for attorneys of reasonably comparable skill,
experience, and reputation to the attorney seeking an award of fees.
Langford v. Hale Cty. Ala.
Comm’n, 2016 WL 4976859, *3 (S.D. Ala. Sept. 16, 2016).
Plaintiffs’ counsel seeks to recover the hourly rates of 15 individuals – attorneys and
non-attorneys -- as follows:
1 ½ years
appears to be a few
appears to be a few
STUDENT LAW CLERKS
(non-attorney when billed)
(Doc. 93 at 9-10; Doc. 93-1 at 19-20 (Decltn. Steele)).
At the outset, Howard J. Steele, Jr. (Steele) has submitted a Declaration (Doc. 93-1
(Decltn. Steele) requesting his rate as $300/hour, adding that he has been practicing for 19 years.
5 Plaintiff lists the years of experience of these non-attorneys as “1-20” without further explanation (Doc.
93 at 9), thus, the number of years of experience for each is unknown.
In recent FLSA cases, the undersigned found $250/hour to be a reasonable hourly rate for an
attorney with 19 years and with 28 years of experience, and $225/hour to be reasonable for 14
years of experience.
Criswell v. Mobile Housing Bd., Civil Action 14-00047-KD-N (S.D. Ala.
Aug. 3, 2016) (Doc. 99).
See also e.g., Smith v. Cmty. Loans of Am., Inc., 2013 WL 372113,
*7 (S.D. Ala. Jan. 30, 2013) (awarding $250/hour for an attorney with 15 years experience);
McCants v. Fred’s of Tenn., Inc., 2013 WL 172900, *4 (S.D. Ala. Jan. 16, 2013) (awarding
$250/hour for an attorney with 11 years experience in employment litigation); Higdon v. Critter
Control of the Gulf Coast, LLC, 2013 WL 673462, *5 (S.D. Ala. Feb. 25, 2013) (awarding
$250/hour to counsel who had been practicing since 1989); Goldsby v. Renosol Seating, LLC,
2013 WL 6535253, *9 (S.D. Ala. Dec. 13, 2013) (finding $250-$300/hour reasonable “for more
experienced and qualified attorneys[.]”); Oden v. Vilsack, 2013 WL 4046456, *6 (S.D. Ala.
Aug. 9, 2013) (awarding $250/hour as a reasonable rate for attorneys with 15 years of
experience); Decorative Components Incorporated, Inc. v. ICON Computing Solutions, Inc.,
2012 WL 5398800, *5-6 (S.D. Ala. Nov. 2, 2012) (recognizing that $250-$350/hour was
reasonable for “top Mobile lawyers in complex cases” and $250/hour “for an attorney with 15
years experience as a law firm partner”).
The Court finds $250/hour to be reasonable.
Concerning six (6) year associates Patel and Haynes, the Court finds that the requested
rate of $200/hour is reasonable. See, e.g., Cardinal Health 108, LLC v. Hemacare Plus, Inc.,
2017 WL 114405, *14 (S.D. Ala. Jan. 11, 2017) (finding $200/hour a reasonable rate for an
attorney with six (6) years of experience); Garrett Invest., LLC v. SE Prop. Holdings LLC, 956
F.Supp.2d 1330, 1341 (S.D. Ala. 2013) (awarding $190/hour to an associate with six (6) years of
experience); Decorative Components, 2012 WL 5398800 at *5-6 (finding $200/hour was
reasonable for an attorney with seven (7) years experience); Gulf Coast Asphalt Co., L.L.C. v.
Chevron U.S.A., Inc., 2011 WL 612737, 3-4 (S.D. Ala. Feb. 11, 2011) (same);
With regard to associates Segura and Amos (with 1-1.5 years of experience), the Court
finds that the requested rate of $150/hour is reasonable.
See, e.g., Denny Mfg. Co. v. Drops &
Props, Inc., 2011 WL 2180358, *3-5 (S.D. Ala. June 1, 2011) (finding $150/hour to be a
reasonable rate for second-year associate); Gulf Coast Asphalt, 2011 WL 612737, *4 (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); Garrett, 956 F.Supp.2d at 1341 (finding reasonable $150/hour for an
associate with one (1) to two (2) years of experience); Vision Bank v. FP Mgt., LLC, 2012 WL
222951, *3 (S.D. Ala. Jan. 25, 2012) (finding $150 per hour a reasonable rate for an associate
attorney with an indeterminate amount of experience).
Concerning Dodd and McNeil, for which Plaintiffs request $90/hour, they are identified
as “law clerks that worked on this case after they had graduated and obtained J.D. degrees[.]”
(Doc. 93-1 at 20 (Decltn. Steele at ¶96)).
The Court finds that the requested rate of $90/hour is
reasonable (as they appear to have been employed for only a few months).
Clark v. Northview
Health Servs., LLC, 2013 WL 3930095, *2-3 (S.D. Ala. Jul. 30, 2015) (finding $100/hour as
reasonable for new attorneys in the midst of the first year of practice).
As for the six (6) paralegals (Taylor, Fenton, Francis, Caballero, Fuller and Detgen), for
which Plaintiffs request $90/hour, this Court finds $75/hour to be reasonable.
PNC Bank v.
Classic Crab, Inc., 2016 WL 4257360, *5 (S.D. Ala. Aug. 11, 2016) (listing cases); Denny Mfg.,
2011 WL 2180358, *5; Zuffa, LLC v. Al-Shaikh, 2011 WL 1539878, *9 (S.D. Ala. Apr. 21,
2011); Wells Fargo Bank, N.A. v. Williamson, 2011 WL 382799, *5 (S.D. Ala. Feb. 3, 2011).
With regard to the non-attorney student law clerks, Plaintiffs seek $90/hour for the time
billed by clerks Thorne and Agboli.
This Court finds $75/hour to be reasonable.
Mortg. And Fin., Inc. v. Crosby, 2015 WL 5178719, *2 (S.D. Ala. Sept. 4, 2015); SE Prop.
Holdings, LLC v. Sandy Creek II, LLC, 2014 WL 47330, *9 (S.D. Ala. Jan. 7, 2014); SE Prop.
Holdings, LLC v. 145, LLC, 2012 WL 6681784,*4 (S.D. Ala. Dec. 21, 2012).
In sum, Plaintiffs’ requested rates are GRANTED in part and DENIED in part such
that the following hourly rates are reasonable and awardable in this case: Steele $250/hour;
Patel/Haynes $200/hour, Seguara/Amos $150/hour, Dodd/McNeil $90/hour, the six (6)
paralegals $75/hour, and the two (2) non-attorney law clerks $75/hour.
In response to the Court’s prior order denying Plaintiffs’ original motion for fees based
on a number of deficiencies, Plaintiffs now assert that the billing records have been edited to
remove work concerning the dismissed plaintiffs, strictly clerical time, duplication, inefficiency,
unnecessary work, administrative time and time billed for unsuccessful claims.
Plaintiffs assert that they only seek recovery for 384.3 hours of work though 536.1 was billed
(Doc. 93 at 7-8, 10; Doc. 93-1 (Decltn Steele)), as follows:
STUDENT LAW CLERKS
“J.D. Holder/Law Clerks”
In opposition, Defendants contend that the hours billed remain excessive, particularly as
the “only substantive work performed by Plaintiffs” counsel was for “one line [Court ordered]
interrogatory responses.” (Doc. 95 at 10-13).
Defendants add: “[t]his case did not make it
past the pleading stage to the discovery, dispositive motion, or trial stage, yet half of the
Plaintiffs were dismissed, some due to the failure to timely file the case by counsel, other
plaintiffs for other reasons.” (Id. at 10).
Defendants argue that Plaintiffs’ actions necessitated
excessive accrual of unnecessary fees (e.g., filing improper claims, failing to timely serve the
(Id. at 10-13).
Defendants further assert that Plaintiffs have not cured the
deficiencies previously highlighted by the Court and that they still seek to recover for improperly
billed time: 45.40 hours for purely administrative tasks, 26.10 hours for time spent working on
an unnecessary motion for summary judgment, 16.4 hours for the premature creation of a
“summary” for use in a summary judgment or at trial, 75.3 hours of block billing, for vague
(Id. at 13-31).
See also Doc. 95-2 (Decltn. Sheppeard)).
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 a 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.
Court will not permit a party to recover fees for 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).
While there is no per se rule of proportionality, City of Riverside v. Rivera, 477 U.S. 561,
573-574 (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 .... It is, however, only one of
many factors that a court should consider in calculating an award of attorney's fees.” Id. at 573
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.”
Wolff, 2012 WL 5303665, *5.
See also, e.g., Goss v. Killian
Oaks House of Learning, 248 F.Supp.2d 1162, 1168 (S.D. Fla. 2003) (denying fees as counsel
“seem[ed] to have leveraged a small sum as a stepping-stone to a disproportionately large award”
by seeking almost $16,000 for a $315.89 FLSA claim).
Moreover, when a request for attorney's fees is unreasonably high, the court may
“conduct an hour-by-hour analysis or it may reduce the requested hours with an across-the-board
Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).
See also e.g.,
Padurjan, 441 Fed. Appx. at 687 (finding that the district court did not err when it reduced the
hours expended by 50% across the board); Garrett, 956 F.Supp.2d at 1343-1344 (applying an
across the board cut of 10% for excessive fees); SE Property Holdings, LLC v. Green, 2013 WL
790902, *6 (S.D. Ala. Mar. 1, 2013) (applying an across the board reduction of 15% for clerical
tasks performed by attorneys or paralegals, excessive billing for intra-office conferences among
five timekeepers on small matters, premature preparation of litigation documents that were not
filed, and billings for monthly status reports); Barnes, 168 F.3d at 428 (“If fee applicants do not
exercise billing judgment, courts are obligated to do it for them, to cut the amount of hours for
which payment is sought, pruning out those that are excessive, redundant, or otherwise
unnecessary”); Whitney Bank v. Davis-Jeffries-Hunold, Inc., 2012 WL 5470131, *7 (S.D. Ala.
Nov. 9, 2012) (applying a 50% across the board cut); Alorica, 2012 WL 5452196, *7 (exacting a
50% across the board cut to the hours billed in an FLSA settlement case); 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 and allowing for reductions in time for various activities, including reductions of 1/3
of the time billed); United States v. Adkinson, 256 F.Supp.2d 1297, 1316 (S.D. Fla. 2003)
(reducing the amount of hours billed by 20% due to their excessive nature).
Likewise, where the rates or hours claimed seem excessive or lack the appropriate
documentation, a court may calculate the award based on its own experience, knowledge, and
observations. Hensley, 461 U.S. at 433-434. See also e.g., Norman, 836 F.2d at 1299, 1303
(“[t]he court, either trial or appellate, is itself an expert on the question and may consider its own
knowledge and experience concerning reasonableness and proper fees and may form an
independent judgment with or without the aid of witnesses”) (citations omitted); Villano v. City
of Boynton Beach, 254 F.3d 1302, 1311 (11th Cir. 2001) (holding that a magistrate judge's across
the board reduction in fees of 25%, due to insufficient documentation, was proper); Barnes, 168
F.3d at 428 (cutting fee award due to insufficient documentation but finding fees appropriate);
Jean v. Nelson, 863 F.2d 759, 772-777 (11th Cir. 1988) (discussing the reasonableness of the
hours expended in light of the contention that the fee requests were not supported by sufficient
documentation and involved duplication of efforts).
Further, the lodestar figure established may be adjusted by consideration of various
factors including the following:
(1) the nature and value of the subject matter of the employment; (2) the learning,
skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the
professional experience and reputation of the attorney; (5) the weight of his
responsibilities; (6) the measure of success achieved; (7) the reasonable expenses
incurred; (8) whether a fee is fixed or contingent; (9) the nature and length of a
professional relationship; (10) the fee customarily charged in the locality for similar legal
services; (11) the likelihood that a particular employment may preclude other
employment; and (12) the time limitations imposed by the client or by the circumstances.
Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala. 1988).
Upon consideration of the foregoing, and even with the reduced rates supra, the Court
finds that an across the board cut to the hours requested is appropriate in this action.
significant dispute surrounding the hours billed (highlighting some billing oddities and
deficiencies by Plaintiffs’ counsel) and the amount of fees sought in relation to Plaintiffs’
recovery, the Court finds that an across-the-board cut is proper under the circumstances of this
For example, Defendants detail over 160 hours of billed time which they assert is
improper. The Court has reviewed the case history, the contentions of the parties (including
their respective Declarations) and the billing records submitted by Plaintiffs and upon
consideration, finds that the deficiencies noted in the Court’s prior order have not been entirely
cured and that the hours billed are excessive (in part).
As such, upon consideration, the Court –
rather than use its time and resources to conduct a line by line or “hour-by-hour” assessment of
each and every time entry – exacts a 30% across the board cut to the hours submitted by each
biller, resulting in 270.76 total hours as follows:
“For decades the law in this circuit has been that ‘[t]he court, either trial or appellate, 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 witnesses as to value.’” Norman, 836 F.2d at 1303.
Accordingly, “where the time or fees
claimed seem expanded or there is a lack of documentation or testimonial support the [appellate]
6 Plaintiff lists the years of experience of these non-attorneys as “1-20” without further explanation (Doc.
93 at 9), thus, the number of years of experience for each is unknown.
court may make the award on its own experience.” Id.
Plaintiffs seek $61,087 in attorneys’ fees for 384.3 hours7 litigating this case on behalf
of seven (7) plaintiffs from July 4, 2014-December 21, 2016.. (Doc. 93). As explained supra, the
Court has awarded different rates and reduced hours in its discretion as follows:
1 ½ years
appears to be a
appears to be a
After review of the materials submitted and Defendants’ opposition, the Court concludes
that amount of attorneys’ fees is still excessive such that an adjustment to the lodestar amount of
$41,963.95 is appropriate to ensure that reasonable fees are awarded in this case.
deficiencies delineated in the Court’s prior order have not been cured in full, including but not
limited to vague time entries, block billing/inadequate description billing, continued inclusion of
7 Which counsel represents is a reduction from the 536.10 hours expended.
(Doc. 93 at 2).
entries for administrative tasks, etc. Additionally, the results obtained in this case, given the
limited litigation and pleading which occurred, do not sufficiently justify the amount of
attorneys’ fees requested.
Likewise, the Court is not persuaded that the time billed for
preparing a (very early) summary judgment motion (and related “summary”) that was never filed
is recoverable in toto.
Neither is the Court persuaded that the approximately 11 hours billed for
preparation of Plaintiffs’ response to the second motion to dismiss – which counsel admits raised
basically the same issues as the response to the first motion to dismiss (for which they had
already billed about 40 hours of time) – is entirely recoverable.
As such, the Court, in exercising its discretion in this FLSA case, reduces the fees sought
by Plaintiffs’ counsel by 20%.
See, e.g., Galdames v. N&D Inv. Corp., 432 Fed. Appx. 801,
807 (11th Cir. 2011) (adopting the Magistrate Judge’s 20% across the board reduction to the
hours requested in an FLSA case); Willoughby v. Youth Villages, Inc., 2016 WL 7013537, *6
(N.D. Ga. Nov. 30, 2016) (applying a 25% across the board reduction to fees in an FLSA case
awarding $204,650.16 instead of the requested $272,866.87); Asbun v. Resende, 2016 WL
7635459, *9 (S.D. Fla. Sept. 26, 2016) (applying a 50% across the board reduction to fees in an
FLSA case awarding $16,395 instead of the requested $29,355); Woods v. On Baldwin Pond,
LLC, 2016 WL 7325546, *9 (M.D. Fla. Apr. 29, 2016) (applying a 90% across the board
reduction to fees in an FLSA case awarding $3,273 instead of the requested $48,028.75); Brown
v. Lambert’s Café III, 2016 WL 325131, *5-8 (S.D. Ala. Jan. 27, 2016) (applying an across the
board reduction of 30% to one attorneys’ fees in an FLSA case awarding $14,410.20 to “bring
his request into the realm of reasonableness” instead of the requested $24,528); Grigoli v. Scott
Cochrane, Inc., 2015 WL 4529032, *7-8 (M.D. Fla. Jul. 27, 2015) (applying an across the board
reduction of 30% for block billing in an FLSA case awarding $11,466.70 instead of the
requested $17,516); Meidling v. Walgreen Co., 2015 WL 12838340, *10-11 (M.D. Fla. Jun. 19,
2015) (applying an across the board reduction of 60% to the hours requested in an FLSA case
awarding 6.6 hours instead of the requested $55.8 hours); Maciejczyk v. You Fit, Inc., 2014 WL
585067 (M.D. Fla. Feb. 12, 2014) (applying an across the board reduction of 50% to the hours
requested in an FLSA case as well as a 30% reduction to the lodestar); Vincenti v. Bakers
Specialties, LLC, 2013 WL 6511648, *3 (M.D. Fla. Dec. 12, 2013) (applying an across the board
reduction of 30% to the fees requested in an FLSA case awarding $1,386 instead of the requested
$1,980); Lee v. Krystal Co., 918 F. Supp.2d 1261, 1271-1274 (S.D. Ala. 2013) (applying an
across the board reduction of 20% to the hours requested in an FLSA case awarding $22,577.50
“because it [the requested sum] includes excessive incremental billing for ephemeral activities,
unnecessary billings for intraoffice communications, billings for a prematurely prepared
summary judgment brief, billings for tasks that are properly deemed clerical or paralegal work,
and unnecessary billings for multiple-attorney redundancies”); Alorica, 2012 WL 5452196 at
*7 (applying an across the board reduction of 50% to the billed hours in an FLSA case awarding
$14,420 in fees instead of the requested $29,574.90); Wolff, 2012 WL 5303665, *8 (applying an
across the board reduction of 60% to the fees requested in an FLSA case awarding $60,180
instead of the requested fees in excess of $150,000).
See also supra Section III.B. Accordingly,
the Court finds $33,571.16 to be a fair and reasonable settlement of attorneys’ fees in this action.
Fees for Fees
The portion of Plaintiffs’ original motion seeking recovery of $2,120 in attorneys’ fees
incurred for preparing the original motion for attorneys’ fees (fees for fees) was denied as the
entire motion was denied. While perhaps not intended, Plaintiffs contend that attorney Patel
incurred the very same number of hours and the very same attorneys’ fees, $2,120 (for 10.6
hours)8 for preparation of the current motion: “preparing this application.” (Doc. 93 at 2,
13-14 (emphasis added); Doc. 93-10 at 3-5). Regardless, to the extent Plaintiffs endeavor to
recover the costs of preparing the original motion via the current motion (which they appear to
have essentially cut and pasted), fees incurred to recover fees constitutes compensable time
if/when reasonably expended.
1245 (11th Cir. 2003).
Thompson v. Pharmacy Corp. of Am., Inc., 334 F.3d 1242,
However, “[l]awyers should not be compensated for turning the
litigation about attorneys’ fees into a second major litigation”).
Upon consideration, Patel’s 10.6 hours worked on a single day (12/20/16) at the
requested rate of $200/hour is reasonable, particularly given that the actual time incurred was 54
hours from July 14, 2016-October 23, 2016.9 Defendants urge the Court to further reduce the
amount “to account for the excessive amount of time spent in preparation” of the motion, citing
six (6) “spin off cases” in which counsel “submitted several similar fee applications” “with
almost identical law and factual background, which should have saved time in preparation of a
(Doc. 95 at 25-26).
The undersigned has reviewed the “spin off
cases” and cannot agree with Defendants’ characterization of the time billed to prepare the fee
motion. In sum, the 10.6 hours requested for Patel’s time are reasonable such that the request is
GRANTED and counsel is awarded $2,120.
Costs/Expenses & Bill of Costs
8 Which counsel indicates is a reduction from the 54 hours actually billed.
(Doc. 93-10 at 5).
9 Counsel reduced the time submitted through exercising billing judgment. This Court would have found
the 54 hours excessive, if submitted, for a “fees for fees” application.
Plaintiffs no longer seek costs/expenses separate and apart from the taxable Bill of Costs,
only submitting a new Bill of Costs requesting $733.90 ($400 for filing fees and $333.90 for
service of the summons/subpoena).
Rule 54(d)(1) provides that “costs -- other than
attorney's fees -- should be allowed to the prevailing party.”
600, 621 (11th Cir. 2000).
See also generally W&O, 213 F.3d
If there is no statutory or contractual authorization, courts are bound
by the limitations set out in 28 U.S.C. § 1920.
Arcadian Fertilizer, L.P. v. MPW Indus. Servs.,
Inc., 249 F.3d 1293, 1296 (11th Cir. 2001). See also Crawford Fitting Co. v. J.T. Gibbins, Inc.,
482 U.S. 437, 445 (1987). Specifically, Section 1920 states that a judge or clerk of any court of
the United States may tax as costs:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily
obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the
copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries,
fees, expenses, and costs of special interpretation services under section 1828 of this title.
28 U.S.C. § 1920.
While Plaintiffs are not prevailing parties, the terms of the settlement provide that the
parties have agreed that Defendants shall pay the “reasonable…costs incurred by” each plaintiff,
“with such fees being determined by the Court” (e.g., Doc. 84-1 at 6 at ¶7(a) (one of the
The docket indicates that the $400 fee is the standard filing fee for
initiating this litigation in this Court (Receipt #1128-1605159), such that the undersigned finds it
is reasonable and recoverable.
See 28 U.S.C. § 1920(1) (“A judge or clerk ... may
tax as costs ... [f]ees of the clerk”); Pelc v. Nowak, 596 Fed. Appx. 768,771 (11th Cir. Jan. 2,
As for the $333.90 in process serving costs, such recoverable costs are limited to those
fees authorized by 28 U.S.C. § 1921 regardless of who effects service.
W&O, 213 F.3d at 624.
“The statutorily authorized fee for § 1921 is set forth in 28 C.F.R. § 0.114.” Indeed, private
server costs in excess of the rates for the U.S. Marshal to effect service, “rush fees” and/or
courier fees are not recoverable.
W&O, 213 F.3d at 623-624; F.D.I.C. v. Hoolihan, 2013 WL
6597052, *1 (M.D. Fla. Dec. 16, 2013) (courier services disallowed); Blowbar, Inc. v. Blow Bar
Salon, Inc., 2013 WL 6244531, *6 (M.D. Fla. Dec. 3, 2013) (disallowing private process server
fees and rush fees).
Plaintiffs have failed to provide any description of, or documentation in
support for, the process server costs.
As such, Plaintiffs’ request for the filing fee is
GRANTED and Plaintiff’s request for the process server costs is DENIED.
See e.g., Boyer v.
Flagship Auto. Ctr., LLC, 2013 WL 2467778, *7 (M.D. Fla. Jun. 7, 2013) (Report &
Recommendation)( (“Plaintiff failed to attach any documents to the Bill of Costs. The only cost
the Court can verify without additional documentation is the filing fee. Therefore…the Court
will tax the filing fee of $350.00 as costs, and not tax any of the other listed costs”).
Approval of the Settlement Agreements
Upon consideration of the foregoing and review of the terms of the settlement
agreements, the Court APPROVES same as a fair and reasonable resolution of Plaintiffs’ FLSA
claims. Lynn’s Food, 679 F.2d 1350.
Accordingly, it is ORDERED that:
1) per Doc. 85, the settlement agreements (Docs. 84-1 through 84-7) are APPROVED;
2) Plaintiffs’ motion for fees (Doc. 93) and Bill of Costs (Doc. 94) are GRANTED in
part and DENIED in part as specified supra such that Plaintiffs are awarded attorneys’
fees in the amount of $33,571.16 for the main litigation, attorneys’ fees in the amount of
$2,120 for preparation of the fees motion, and costs in the amount of $400; and
3) this action is DISMISSED with prejudice.
Final Judgment shall issue by separate document.
DONE and ORDERED this the 17th day of April 2017.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
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