Leblanc v. USG7, LLC et al

Filing 102

ORDER granting in part 100 Motion for Attorney Fees and costs; Adopting Report and Recommendations - re 101 Report and Recommendations. Plaintiffs are awarded attorneys' fees in the amount of $24,409.50 and taxable costs in the amount of $808.75. The Clerk is directed to enter judgment in favor of Plaintiffs as follows: Against USG7, LLC and USDS, LLC, jointly and severally, for $13,167.00. Against USG7, LLC for $5,689.50. Against USDS, LLC for $5, 553.00. On or before April 13, 2016, Plaintiffs shall submit Bills of Costs in accordance with this Order. Specifically, Plaintiffs shall submit the following Bills of Costs: Against USG7, LLC and USDS, LLC, jointly and severally, for $350.00. Against USG7, LLC for $153.75. Against USDS, LLC for $305.00. The Clerk is directed to tax costs immediately upon receipt of the Bills of Costs. Signed by Judge Carlos E. Mendoza on 4/6/2016. (DJD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

RICHARD LEBLANC,
Plaintiff,
v.

Case No: 6:12-cv-1235-Orl-41TBS

USG7, LLC and USDS, LLC,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Plaintiffs’ Renewed Motion for Attorney Fees and
Costs (“Motion for Attorney Fees,” Doc. 100). United States Magistrate Judge Thomas B. Smith
issued a Report and Recommendation (“R&R,” Doc. 101), recommending that the Court grant
Plaintiffs’ motion and award $25,872.00 in attorneys’ fees and $1,383.75 in taxable costs,
reflecting a $9.50 reduction in Plaintiffs’ requested costs. (Id. at 5–6 & n.1). After an independent
de novo review of the record, the Court agrees in part with the recommendations as set forth in the
R&R. However, as set forth herein, the Court finds that additional deductions from both the
attorneys’ fees and costs are appropriate.
I.

LEGAL STANDARD

Upon timely objection, a magistrate judge’s order on a nondispositive pretrial matter is
reviewed under a “clearly erroneous or contrary to law” standard of review, 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a), while a magistrate judge’s recommendation on a dispositive
pretrial matter is reviewed under a de novo standard, 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.
72(b)(3). Even where de novo review is not required, “the district court may undertake ‘further
review . . . , sua sponte or at the request of a party, under a de novo or any other standard.’”

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Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006) (quoting Thomas v. Arn, 474 U.S. 140,
154 (1985)). “The district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3).
II.

ATTORNEYS’ FEES

Plaintiffs seek to recover a total of $25,872.00 in attorneys’ fees from Defendants. (Mot.
Att’y Fees at 11). Plaintiffs allege that $14,157.00 if these fees are inextricably intertwined
between Defendants and should, therefore, be awarded jointly and severally. (Id.). Of the
remainder, Plaintiffs seek $5,689.50 from Defendant USG7, LLC (“USG7”) individually, and
$6,025.50 from Defendant USDS, LLC (“USDS”) individually. (Id.). The Court agrees with the
R&R’s findings of fact and conclusions of law insofar as they apply to the reasonableness of
Plaintiffs’ counsels’ hourly rates; however, the Court will reduce the hours billed by N. Ryan
LaBar by 6.5 hours.
On November 6, 2014, this Court denied Plaintiffs’ first Motion for Default Judgment
because the Amended Complaint failed to state a claim for relief against Defendants. (See Nov. 6,
2014 Order, Doc. 65, at 8). Thereafter, Plaintiffs filed a Second Amended Complaint (Doc. 67)
and again attempted to perfect service. When Defendant ultimately failed to appear, Plaintiffs
renewed their motion for default judgment. (Renewed Mot. Final Default J., Doc. 90). Plaintiffs
now seek to recover fees for at least a portion of the time expended in amending their pleadings
and serving the Second Amended Complaint. Plaintiffs additionally seek to recover fees from
responding to several orders to show cause inquiring as to why Plaintiffs were not proceeding on
the Second Amended Complaint in a timely manner and in accordance with the Rules and Orders
of this Court. (See Feb. 11, 2015 Order, Doc. 79, at 1; June 15, 2015 Order, Doc. 84, at 1).

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“Redundant, excessive, or otherwise unnecessary hours should not be included in the
calculation of hours reasonably expended.” Perez v. Carey Int’l, Inc., 373 F. App’x 907, 910-11
(11th Cir. 2010) (per curiam) (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The Court
will not award fees incurred as a result of the need to draft, file, and serve the Second Amended
Complaint or the Renewed Motion for Final Default Judgment. These fees arise only out of
Plaintiffs’ counsels’ need to correct their mistakes and are, therefore, both excessive and
redundant. See Mobley v. Apfel, 104 F. Supp. 2d 1357, 1360 (M.D. Fla. 2000) (“[T]ime devoted to
correcting one’s own errors should not be reimbursable.”). Additionally, this Court will not award
fees incurred in responding to orders to show cause because these fees were entirely unnecessary.
Accordingly, the Court will deduct 4.4 hours of time at $225.00 per hour from the total
fees allocable jointly to Defendants and will award Plaintiffs $13,167.00 in attorneys’ fees against
Defendants jointly. (See Time Entries Pertaining to USG7 and USDS, Doc. 100-5, at 15).1 The
Court will also reduce the fees sought against USDS individually by 2.1 hours at $225.00 per hour
and will award Plaintiffs $5,553.00 in attorneys’ fees against USDS. (See Time Entries Pertaining
to USDS, Doc. 100-5, at 25). The Court will award the full $5,689.50 requested with respect to
USG7.
III.

TAXABLE COSTS

Plaintiffs also request $1,393.25 in taxable costs. The Court agrees that this amount should
be reduced by $9.50 reflecting the late payment. (R. & R. at 5). However, this Court will further
reduce the requested amount by $575.00.

1

Where, as here, an attachment contains multiple documents, pinpoint citations will refer
to the electronic page number of the attachment.

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“In an FLSA action, it is error for a district court to award costs in excess of those permitted
by [28 U.S.C.] § 1920. Dail v. George A. Arab Inc., 391 F. Supp. 2d 1142, 1146 (M.D. Fla. 2005)
(citing Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575 (11th Cir. 1988)); see also Mock v. Bell
Helicopter Textron, Inc., 456 F. App’x 799, 802 (11th Cir. 2012) (per curiam) (holding that
“[t]hough plaintiffs may, in addition to fees, recover the ‘costs of the action’” under 29 U.S.C.
§ 216(b), the Eleventh Circuit “has clearly held that cost recovery is limited by 28 U.S.C. § 1920”).
Service of process fees are recoverable under § 1920(1). U.S. Equal Emp’t Opportunity Comm’n
v. W&O, Inc., 213 F.3d 600, 624 (11th Cir. 2000). However, service of process fees are limited to
those fees authorized by 28 U.S.C. § 1921 regardless of who effects service. Id. “The statutorily
authorized fee for § 1921 is set forth in 28 C.F.R. § 0.114.” Countryman Nev., LLC v. Adams, No.
6:14-cv-491-Orl-18GJK, 2015 WL 574395, at *9 (M.D. Fla. Feb. 11, 2015). For service effected
on or before October 29, 2013, Plaintiff is entitled to recover no more than $55.00 per hour for
service of process. 28 C.F.R. § 0.114(a)(3) (2013). Plaintiff may recover no more than $65.00 per
hour for service effected on or after October 30, 2013. Id. § 0.114(a)(3) (2014); see also
Countryman, 2015 WL 574395, at *9.
Plaintiffs seek $785.00 in service of process fees for perfecting service against USDS.
(Summ. Fees & Costs, Doc. 100-5, at 6). However, two of the invoices submitted seek sums in
excess of those authorized by § 1921. Specifically, Plaintiffs seek to tax $95.00 for an attempt to
serve USDS in or around February 2013. (Mar. 4, 2013 Statement, Doc. 100-5, at 32). At that time,
Plaintiffs were only entitled to taxable costs for service of process of $55.00. Additionally,
Plaintiffs have submitted an invoice for $600.00, including both “Skip-Trace Services” and
process service fees, in connection with an attempt to serve USDS in January 2015. (Feb. 12, 2015
Invoice, Doc. 100-5, at 38). Plaintiffs have not explained how the tracing services are taxable as

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costs of serving process pursuant to the statute, thus the $500.00 for that service will be denied.
Additionally, $100.00 is over the applicable $65.00 per hour limit for service of process. Although
Plaintiffs’ state that “Defendants’ contumacious conduct resulted in higher than average costs
pertaining to service of process,” (Mot. Att’y Fees at 10), Plaintiffs fail to cite any authority
authorizing an award in excess of the statutory limits. Thus, Plaintiffs’ requested taxable costs
against USDS will be reduced by an additional $575.00 and Plaintiffs will be awarded $305.00 in
taxable costs against USDS.
IV.

CONCLUSIONS

In accordance with the foregoing, it is hereby ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 101) is ADOPTED and CONFIRMED,
as modified by this Order.
2. Plaintiffs’ Renewed Motion for Attorney Fees and Costs (Doc. 100) is GRANTED
in part.
3. Plaintiffs are awarded attorneys’ fees in the amount of $24,409.50 and taxable costs
in the amount of $808.75.
4. The Clerk is directed to enter judgment in favor of Plaintiffs as follows:
a. Against USG7, LLC and USDS, LLC, jointly and severally, for $13,167.00.
b. Against USG7, LLC for $5,689.50.
c. Against USDS, LLC for $5,553.00.
5. On or before April 13, 2016, Plaintiffs shall submit Bills of Costs in accordance
with this Order. Specifically, Plaintiffs shall submit the following Bills of Costs:
a. Against USG7, LLC and USDS, LLC, jointly and severally, for $350.00.
b. Against USG7, LLC for $153.75.

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c. Against USDS, LLC for $305.00.
6. The Clerk is directed to tax costs immediately upon receipt of the Bills of Costs.
DONE and ORDERED in Orlando, Florida on April 6, 2016.

Copies furnished to:
Counsel of Record

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