Pena v. RDI, LLC

Filing 120

ORDER granting 119 Motion for Attorney Fees. Signed by Magistrate Judge Amanda Arnold Sansone on 4/16/2020. (MLM)

Case 8:17-cv-01404-AAS Document 120 Filed 04/16/20 Page 1 of 9 PageID 1214

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MELIDO PENA,
Plaintiff,
v.

Case No. 8:17-cv-1404-T-AAS

RDI, LLC, a Florida Limited Liability
Company,
Defendant.
______________________________________/
ORDER
Melido Pena seeks an award of attorney’s fees related to discovery disputes on
post-judgment proceedings. (Doc. 119).
I.

BACKGROUND
Mr. Pena sued RDI, LLC for unpaid overtime wages under the Fair Labor

Standards Act. On April 3, 2019, a jury awarded Mr. Pena $20,979.25 in damages.
(Doc. 77). An April 23, 2019 Order added liquidated damages also for $20,979.25.
(Doc. 83). The Clerk entered judgment for Mr. Pena for total of $41,958.50. (Doc. 86).
Mr. Pena successfully sought his attorney’s fees and costs. (Docs. 87, 90, 91).
Mr. Pena received a judgment on his attorney’s fees and costs. (Docs. 92, 93, 94).
Because RDI did not pay its judgment, Mr. Pena moved to enforce the judgment by
requiring RDI to complete a Fact Information Sheet. (Doc. 95). After the time to
respond elapsed and RDI did not respond, the court granted Mr. Pena’s motion and
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directed RDI to complete the Fact Information Sheet within forty-five days. (Doc.
96).
Mr. Pena moved for RDI to show cause because they failed to complete the Fact
Information Sheet. (Doc. 97). Rather than respond substantively, RDI’s attorney
Philip Kuhn moved to withdraw and explained his client did not respond to any
emails. (Docs. 98, 101). The court set a hearing on January 7, 2020 for Mr. Pena’s
motion for show cause order (Doc. 100), but the court continued the hearing to
January 28, 2020 to allow Attorney Kuhn to contact RDI by various means and to
have RDI complete the Fact Information Sheet (Doc. 103).
RDI completed and mailed the Fact Information Sheet to Mr. Pena’s counsel.
(Doc. 106). The court canceled the January 28th hearing but reset it for February 19,
2020 after Mr. Pena’s counsel could review the Fact Information Sheet. (Docs. 109,
110).

At the February 19th hearing, the court awarded Mr. Pena reasonable

attorney’s fees because RDI produced the Fact Information Sheet after Mr. Pena
moved to enforce the judgment. (Doc. 115, ¶ 3). The court determined Mr. Pena may
recover reasonable expenses incurred in preparing the September 19, 2019 motion to
enforce the judgment (Doc. 95) and subsequent work thorough the date in January
2020 when RDI provided Mr. Pena with the disc of electronic documents referenced
in the Fact Information Sheet. (Doc. 115, ¶ 3).
The court ordered the parties to meet and confer on a reasonable amount of
attorney’s fees. (Id. at ¶ 3a). Because the parties could not agree on reasonable
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amount of attorney’s fees, Mr. Pena moves for attorney’s fees. (Doc. 119). RDI has
not responded and the time to do so has passed. Therefore, Pena’s motion is presumed
to be unopposed. Carruega v. Steve’s Painting, Inc., Case No. 2:16-cv-715-FtM-29CM,
2017 WL 3387228, at *3 (M.D. Fla. Aug. 7, 2017).
II.

ANALYSIS
Mr. Pena seeks an attorney’s fee award of $6,004.00:
Timekeeper
Kim De Arcangelis
(Associate)
Becki Rodak
(Paralegal)
Total

Hours
14.00

Rate per Hour
$425

Total
$5,950.00

.4

$135

$54.00

14.4

$6,004.00

The initial burden of proof that the fee is reasonable falls on Mr. Pena, who
must submit evidence about the number of hours expended and the hourly rate
claimed. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Norman v. Hous. Auth.
of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). The starting point for
setting an attorney’s fee is to determine the “lodestar” figure: the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.
Hensley, 461 U.S. at 433; Norman, 836 F.2d at 1299. 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.

Gaines v.

Dougherty Cty. Bd. of Edu., 775 F.2d 1565, 1571 (11th Cir. 1985).
Most or all of these factors are subsumed in the calculation of the lodestar:
(1) the time and labor required; (2) the novelty and difficulty of the
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questions; (3) the skill required to perform the legal services properly;
(4) the preclusion of other employment by the attorney due to acceptance
of the case; (5) the customary fee in the community; (6) whether the fee
is fixed or contingent; (7) time limitations imposed by the client or
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 any
professional relationship with the client; and (12) awards in similar
cases.
Norman, 836 F.2d 1292 (citing Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717–
19 (5th Cir. 1974)).
The reasonableness of the rate charged is determined by its congruity with
“those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 896
n.11 (1984). The going rate in the community is the most critical factor in setting the
fee rate. Martin v. Uni. of S. Ala., 911 F.2d 604, 610 (11th Cir. 1990).
A fee applicant may meet the burden to show the reasonable rate by producing
either direct evidence of rates charged under similar circumstances, or opinion
evidence of reasonable rates. Norman, 836 F.2d at 1299. The court may also use its
own expertise and judgment to assess the value of an attorney’s services. Id. at 1303;
Am. Charities for Reasonable Fundraising Regulation, Inc. v. Pinellas Cty., 278 F.
Supp. 2d 1301, 1310 (M.D. Fla. 2003); Scelta v. Delicatessen Support Servs., 203 F.
Supp. 2d 1328, 1331 (M.D. Fla. 2002).
The courts 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
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as it is to see that an adequate amount is awarded.” Am. Civil Liberties Union of Ga.
v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999). When reducing fees, courts 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).
Although courts may apply either method, they cannot apply both. See id. Finally,
courts need not become “green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838
(2011). Instead, the essential goal for the court is to “do rough justice, not to achieve
auditing perfection.” Id.
The court will address the reasonableness of the hourly rates charged before
addressing the reasonableness of the time entries.
A.

Reasonable Hourly Rate

The court may decide a reasonable rate based on its own expertise and
judgment. Norman, 836 F.2d at 1303–04. The court looks to the skills, experience,
and reputation of the attorneys to determine what comparable lawyers charge for
similar services in this locality. “The general rule is 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.’” Barnes, 168 F.3d at 437; Cullens v. Ga. Dep’t. of
Transp., 29 F.3d 1489, 1494 (11th Cir. 1994). Thus, the relevant legal market is
Tampa, Florida.
Mr. Pena requests an hourly rate of $425 for Attorney Kimberly De Arcangelis
and an hourly rate of $135 for paralegal work for Becki Rodak. (Doc. 119-1). Mr.
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Pena’s counsel submitted a detailed affidavit to support this request. (Id.). See also
Femia v. Melbourne Park, LLC, Case No. 6:15-cv-113-Orl-22GJK, 2015 WL 2084725,
at *3 (M.D. Fla. April 27, 2015) (approving Attorney De Arcangelis’s $425 hourly
rate). Previously, the court approved Attorney’s De Arcangelis’s $425 hourly rate as
reasonable. (Doc. 91).
Although Mr. Pena seeks more for the paralegal work than his last request for
attorney’s fees (Doc. 87-1 (requesting a rate of $105 for paralegal hours)), the increase
in paralegal hourly rate is warranted. According to the Florida Bar’s 2018 Economics
and Law Office Management Survey published in March 2019, the median hourly
rate for paralegals is $125.1 Therefore, an hourly rate of $135 for this experienced
paralegal’s work is reasonable.
B.

Reasonable Hours and Time Entries

Next, the lodestar analysis requires the court to determine the reasonable
number of hours the moving party’s attorneys expended. Fla. Patient’s Comp. Fund
v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). To prevail in its request for attorney’s
fees, the moving party should present accurate records that detail the work the
attorneys performed. Id. Inadequate documentation may reduce the fees requested.
Id.; Hensley, 461 U.S. at 433. The court may also reduce hours it finds excessive or
unnecessary. Rowe, 472 So. 2d at 1150.

The Florida Bar, Results of 2018 Economics and Law Office Management Survey
(March 2019), https://www-media.floridabar.org/uploads/2019/03/2018-EconomicsSurvey-Report-Final.pdf.
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After the moving party provides sufficient documentation to support an
attorney’s fees award, the burden shifts to the opposing party to point out with
specificity which hours should be reduced. 22nd Century Prop., LLC v. FPH Prop.,
LLC, 160 So. 3d 135, 142–43 (Fla. Dist. Ct. App. 2015) (quotation and citation
omitted). Conclusory objections and generalized statements are not given much
weight. Gray v. Lockheed Aeronautical Sys., Co., 125 F.3d 1387, 1389 (11th Cir. 1997)
(citation omitted). Hours to which the opposing party fails to object with specificity
are accepted as reasonable. Scelta, 203 F. Supp. 2d at 1333–34 (citations omitted).
And the court must review the billing log to determine whether the work was
unnecessary, excessive, redundant, included improper billing or clerical work
performed by attorneys. See Barnes, 168 F.3d at 428.
For the reasonable hours and time entries, Mr. Pena sufficiently documented
the hours requested, and RDI did not object to the hours or time entries. Even though
RDI did not object, the court reviews Mr. Pena’s billing log. After review, the court
found ten entries outside the scope of what the court ordered Mr. Pena could recover.
Specifically, the court ordered:
RDI must pay Mr. Pena’s reasonable expenses, including attorney’s fees,
incurred in seeking RDI’s Fact Information Sheet. Mr. Pena may
recover reasonable expenses incurred in preparing the September 19,
2019 motion to enforce the judgment (Doc. 95) and subsequent work
thorough the date in January 2020 when RDI provided Mr. Pena with
the disc of electronic documents referenced in the Fact Information
Sheet.”
(Doc. 115, ¶ 3). While the Fact Information Sheet helped prepare the motion for
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supplemental proceedings, work related to the motion for supplemental proceedings
is outside the scope of the order.2
Therefore the following entries are cut:
Timekeeper
Kim De Arcangelis

Date
1/7/20

Kim De Arcangelis

1/7/20

Kim De Arcangelis

1/8/20

Kim De Arcangelis

1/8/20

Kim De Arcangelis

1/16/20

Kim De Arcangelis

1/17/20

Kim De Arcangelis

1/20/20

Kim De Arcangelis
Kim De Arcangelis

1/23/20
1/23/20

Becki Rodak

1/8/20

Work
Research re motion for proceedings
supplementary and to implead
third parties
Telephone conference with
collections atty re potential
representation
Research additional cases and rules
re supp proceedings and 3rd party
implead
Begin preparation of Motion for
supp proceedings and to Implead
Preparation of edits to motion for
proceedings supplementary and to
implead
Preparation of exhibits and final
edits to motion for proceedings supp
to be filed today
Email prepared for Cesary Bullard
re motions filed, FIS and all
information re her joining as cocounsel to collect judgments
Email from Cesary Bullard
Telephone conference with Cesary
Bullard re collecting judgment
Preparation of Affidavit of
Judgment Lien

Hours
1.8
0.3
0.5
0.8
0.4
0.2
0.3

0.1
0.3
0.2

Even though Mr. Pena cannot recover fees for the supplemental proceedings under
the previous court order (Doc. 115), Florida statute allows recovery of reasonable
attorney’s fees for proceedings supplementary after completion of those
supplementary proceedings. Fla. Stat. § 56.29(8); see also Hatfield v. A+ Nursetemps,
Inc., No. 5:11-cv-416-Oc-10PRL, 2015 WL 3618545, at *3 (M.D. Fla. June 9, 2015).
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Therefore, Attorney De Arcangelis’s hours are reduced to 9.3 hours
(subtracting 4.7 hours), and Ms. Rodak’s hours are reduced to 0.2 hour (subtracting
0.2 hour).
C.

Final Calculation

After making the reductions in the time entries and multiplying the hours
reasonably expended by the hourly rates, Mr. Pena should be awarded $3,979.50 in
attorney’s fees. Mr. Pena’s award is calculated as follows:
Timekeeper
Kim De Arcangelis
(Associate)
Becki Rodak
(Paralegal)
Total
III.

Reduced
Hours
9.3

Rate per Hour

Total

$425

$3,952.50

0.2

$135

$27.00

9.5

$3,979.50

CONCLUSION
Mr. Pena’s motion for attorney’s fees (Doc. 119) is GRANTED. Mr. Pena is

awarded reasonable attorney’s fees of $3,979.50 to be paid within thirty days from
this order.
ORDERED in Tampa, Florida on April 16, 2020.

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