Martinez v. C.F. Johary D.M.D., P.A.

Filing 33

ORDER granting in part and denying in part 24 Motion for attorney fees; denying 32 Motion for discovery. Signed by Senior Judge Wm. Terrell Hodges on 10/14/2010. (LRH)

Martinez v. C.F. Johary D.M.D., P.A.

Doc. 33

UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF FLORIDA O C A L A DIVISION R E N E E G. MARTINEZ, on her own b e h a lf and others similarly situated, P la in tiff, -vs C .F . JOHARY D.M.D., P.A., D e fe n d a n t. _____________________________________/ ORDER T h is case is before the Court for consideration of the Plaintiff's Motion For An A w a rd of Attorney's Fees and Costs (Doc. 24), to which the Defendant has filed a re s p o n s e in opposition (Doc. 25). The Defendant has also recently filed a motion for d is c o ve ry on the Plaintiff's requested attorney's fees (Doc. 32). Upon due C a s e No. 5:08-cv-148-Oc-10GRJ

c o n s id e ra tio n , the Plaintiff's motion is due to be granted in part and denied in part, and th e Defendant's motion for discovery is due to be denied. O n April 16, 2008, the Plaintiff filed a one-count Complaint against her former e m p lo y e r alleging violations of the overtime compensation provisions of the Fair Labor S ta n d a rd s act, 29 U.S.C. § 201 et seq. ("FLSA") (Doc. 1). Following the completion of d is c o ve ry , on March 5, 2010, the Plaintiff notified that Court that she had accepted the D e fe n d a n t's offer of judgment, and requested the Court retain jurisdiction to determine a tto rn e y's fees and costs (Doc. 21). The Court granted the Plaintiff's requested relief

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on March 15, 2010 (Doc. 22), and judgment was entered in the Plaintiff's favor the next d a y (Doc. 23). T h e Plaintiff now seeks attorney's fees in the amount of $12,918.22 and $710.00 in costs pursuant to 29 U.S.C. § 216(b). In support of this request, the Plaintiff has s u b m itte d the affidavit of her attorney, Kelly A. Amritt, Esq., time records from Ms. A m ritt's law office, and invoices establishing the costs incurred in this case (Docs. 24-1 th ro u g h 24-3). These documents establish that the Plaintiff's attorney expended 41.87 h o u rs on this case at a rate of $300.00 per hour; and one paralegal at the Plaintiff's c o u n s e l's office expended 4.83 hours on this case at a rate of $105.00 per hour. Ms. Amritt avers in her affidavit that she has been a member of the Florida Bar s in c e 2003, has practiced exclusively in the area of unpaid wages, and has over six (6) ye a rs of litigation experience. (Doc. 24-1, ¶ 6). Ms. Amritt further states that she has p re vio u s ly been awarded fees at a rate of $300.00 in other cases in the Middle District o f Florida, and that she regularly bills her clients at this rate. (Id., ¶¶ 6-7). Ms. Amritt fu rth e r avers that based on the experience level of paralegal Melissa Arroyo, a re a s o n a b le hourly rate for her services is $105.00. (Id., ¶ 7). T h e Defendant has filed a response in which he states that the paralegal rate s h o u ld be $75.00 per hour and that the attorney rate should be $250.00 per hour (Doc. 2 5 ). He further states that the hours expended are not reasonable and that the a tto rn e y hours should be capped at 26. Id.

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Discussion T h e FLSA requires a court to award prevailing employees reasonable attorney's fe e s and costs in unpaid overtime wages cases. 29 U.S.C. § 216(b). "The

d e te rm in a tio n of a reasonable fee pursuant to § 216(b) of the [FLSA] is left to the sound d is c re tio n of the trial court." Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1 5 4 3 (11th Cir. 1985); see also Moon v. Technodent National, Inc., No. 5:06-cv-358O rl-P C F -G R J , 2009 W L 111678 at * 4 (M.D. Fla. Jan. 15, 2009). The starting point for d e te rm in in g the amount of a reasonable fee "is the number of hours reasonably e xp e n d e d on the litigation multiplied by the reasonable hourly rate." Hensley v.

E c k e rh a rt, 461 U.S. 424, 433 (1983). As part of this calculation, a court should exclude h o u rs that were not reasonably expended or are redundant. Id. at 434. This lodestar a m o u n t can then be adjusted "to account for other considerations that have not yet b e e n figured in the computation, the most important being the relation of the results o b ta in e d to the work done." Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th C ir. 2000). "The fee applicant bears the burden of establishing entitlement and

d o c u m e n tin g the appropriate hours and hourly rates." Norman v. Housing Authority of C ity of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). If an applicant's

d o c u m e n ta tio n in support of its fees request "is inadequate, the district court may re d u c e the award accordingly." Hensley, 461 U.S. at 433.

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Courts in the Eleventh Circuit are guided by 12 factors set forth in Johnson v. G e o rg ia Highway Express, Inc., 488 F. 2d 714, 717-719 (5th Cir.1974), overruled on o th e r grounds Blanchard v. Bergeron, 489 U. S. 87 (1989),1 with the caveat that "many o f these factors usually are subsumed within the initial calculation of hours reasonably e xp e n d e d at a reasonable hourly rate." Hensley, 461 U. S. at 434, n. 9. These factors in c lu d e : (1) the time and labor required; (2) the novelty and difficulty of the questions; (3 ) the skill required to perform the legal services properly; (4) the preclusion of other e m p lo y m e n t by the attorney due to acceptance of the case; (5) the customary fee in th e community; (6) whether the fee is fixed or contingent; (7) time limitations imposed b y the client or circumstances; (8) the amount involved and the results obtained; (9) the e xp e rie n c e , reputation, and ability of the attorneys; (10) the "undesirability" of the case; ( 1 1 ) the nature and length of the professional relationship with the client; and (12) a w a rd s in similar cases. Johnson, 488 F. 2d at 717-719. See also Norman, 836 F. 2d a t 1299. T h e Court has reviewed the time sheets submitted and finds that the hours e xp e n d e d by one attorney and one paralegal in this case are reasonable and a p p ro p ria te . Although this was not a complex matter, the case did last nearly two years a n d concluded with judgment in the Plaintiff's favor. W h ile the Defendant's own

In Bonner v. City of Prichard, 661 F. 2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent the decisions of the former Fifth Circuit before October 1, 1981.
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attorney may have only expended 26.6 hours of time in this case, that does not mean th a t the 41.87 hours expended by Ms. Amritt ­ essentially one work week ­ or the 4.83 h o u rs of paralegal time were unnecessary, redundant, or excessive. Accordingly, the C o u rt will not reduce the hours requested.2 T h e Court has some concerns with the hourly rates requested. The prevailing m a rk e t rate for similar services by similarly trained and experienced lawyers in the re le va n t legal community is the established basis for determining a reasonable hourly ra te . Duckworth v. W h is e n a n t, 97 F.3d 1393, 1396 (11th Cir. 1996); Norman, 836 F.2d a t 1299. "The general rule is that the `relevant market' for purposes of determining the re a s o n a b le hourly rate for an attorney's services is `the place where the case is filed.'" A m e ric a n Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 437 (11th Cir. 1 9 9 9 ). The party seeking fees bears the burden of establishing the market rate and s h o u ld present the court with "specific and detailed evidence" from which it can d e te rm in e the reasonableness of the proposed rate. Norman, 836 F. 2d at 1303. In this case, the relevant legal market is the Middle District of Florida, and more s p e c ific a lly, the Ocala, Marion County area. See Cullens v. Georgia Dept. of Transp., 2 9 F.3d 1489, 1494 (11th Cir. 1994). The Plaintiff has not submitted any "specific and

The Court also is not persuaded by the Defendant's motion for discovery, which is based on nothing more than an assertion that the Plaintiff's law firm, and Ms. Amritt in particular, were handling a large number of FLSA cases in 2008. Regardless of the number of cases on Ms. Amritt's desk, it is not unreasonable to expend 41.87 hours over the course of two years to litigate this case.
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detailed evidence" concerning prevailing market rates in Ocala, Florida. Instead, the P la in tiff has merely attached the affidavit of her own attorney, which lists fee awards o b ta in e d in FLSA cases litigated in Orlando, Jacksonville, and Ft. Meyers, Florida (Doc. 2 4 -1 , ¶¶ 6-7). However, evidence establishing that a rate is in line with prevailing m a rk e t rates must be "at a minimum more than the affidavit of the attorney performing th e work." Norman, 836 F.2d at 1299. In fact, "[t]he parties ought to provide the court w ith a range of market rates for lawyers of different skill levels . . . involved in similar c a s e s with similar clients, so that the court may interpolate the prevailing market rate b a s e d on an assessment of the skill demonstrated in the case at bar." Id. at 1300. The Plaintiff has failed to satisfy the requirements of Norman. W h ile the Plaintiff is correct that Judges of this District have previously awarded Ms. Amritt fees based o n a $300 hourly rate, all of those cases were litigated in much larger urban areas with h ig h e r costs of living than Ocala, Florida. Moreover, this was a very straightforward c a s e , with no novel or complex issues and minimal discovery. In the absence of any c o m p e te n t evidence concerning the prevailing market rate in Ocala, the Court will rely o n its own competence and experience and concludes that an hourly rate of $250.00 is reasonable. See Moon, 2009 W L 111678 at * 6. The Court further concludes that th e hourly rate for the Plaintiff's paralegal will be reduced to $100.00. In sum the Plaintiff shall be awarded attorney's fees in the amount of $10,950.50 (4 1 .8 7 hours for Ms. Amritt at $250.00 per hour, and 4.83 paralegal hours at $100.00 p e r hour).
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Section 216(b) of the FLSA also provides for a mandatory award of costs to a p re va ilin g plaintiff. The Plaintiff seeks $710.00 in costs for filing fees, service of p ro c e s s , and deposition fees ­ none of which are opposed by the Defendant. The C o u rt has reviewed these costs and the supporting documentation and concludes that a ll of the expenses are permitted under 28 U.S.C. § 1920 and are recoverable. C o n c lu s io n A c c o rd in g ly, upon due consideration, the Plaintiff's Motion for Award of A tto rn e y's Fees and Costs (Doc. 24) is GRANTED IN PART AND DENIED IN PART. The Clerk is directed to enter judgment in favor of the Plaintiff and against the D e fe n d a n t in the amount of $11,660.50, representing $10,950.50 in attorney's fees and $ 7 1 0 .0 0 in costs. The Defendant's Motion for Discovery as to Attorney Fees (Doc. 32) is DENIED. T h e Clerk is further directed to terminate any other pending motions and to close th e file. IT IS SO ORDERED. D O N E and ORDERED at Ocala, Florida this 14th day of October, 2010.

C o p ie s to:

C o u n s e l of Record M a u rya McSheehy
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