Brandt v. Magnificent Quality Florals Corp. et al
Filing
185
ORDER granting in part and denying in part #169 Defendants' Renewed Motion for Attorney Fees and granting in part and denying in part #175 Plaintiff's Re-Filed Verified Motion for Attorney Fees and Costs. Signed by Magistrate Judge Andrea M. Simonton on 9/30/2011. (par)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 07-20129-CIV-HUCK/SIMONTON
CONSENT CASE
CARLOS BRANDT and
ORESTES LOPEZ,
Plaintiffs,
v.
MAGNIFICENT QUALITY FLORALS
CORP. and MOISES SANCHEZ,
Defendants.
/
ORDER ON PLAINTIFFS’ RE-FILED AND
VERIFIED MOTION FOR ATTORNEY FEES AND
DEFENDANTS’ RENEWED MOTION FOR ATTORNEYS’
FEES AND COSTS
Presently pending before the Court are the Plaintiff’s Verified Motion and Re-Filed
Verified Motion for Attorney Fees and Costs (DE ## 141, 175) as to Carlos Brandt, and the
Defendants’ Motion for Attorneys’ Fees and Litigation Costs Pursuant to Fed. R. Civ. P.
68, or Rule 11, or 27 U.S.C. § 1927 and Renewed Motion for Attorneys’ Fees (DE ## 137,
169). Both Parties have filed Responses (DE ## 145, 177) to the Motions and the Parties
have filed their respective Replies (DE ## 146, 178).
For the following reasons, and based upon a review of the entire record, the
undersigned concludes that Plaintiff Carlos Brandt is entitled to recover attorneys’ fees
as a prevailing plaintiff under the FLSA. However, pursuant to the cost-shifting
provisions of Federal Rule of Civil Procedure 68, the Defendants are entitled to recover
their post-offer costs from Plaintiff Brandt because the offer of judgment made by the
Defendants was more favorable than the judgment obtained by the Plaintiff.
Therefore, Plaintiff Brandt’s Re-Filed and Verified Motion for Attorney Fees and
Costs is granted, in part. The Plaintiff is awarded attorneys’ fees in the amount of
$19,123.35 and costs in the amount of $1,072.00, for a total award in fees and costs of
$20,195.35. In addition, the Defendants’ Renewed Motion for Attorneys’ Fees is granted,
in part, and the Defendants are awarded costs in the amount of $809.18 against Plaintiff
Brandt.
I.
BACKGROUND
Plaintiffs Carlos Brandt and Orestes Lopez filed this lawsuit against Defendants
Magnificent Quality Florals Corporation (“Magnificent”) and Moises Sanchez to recover
overtime wages allegedly owed to them pursuant to the Fair Labor Standards Act. Both
Plaintiffs were employed by Magnificent, and it was undisputed that the owner, Moises
Sanchez, was individually liable as an employer.
The Plaintiffs each contended that during the course of their employment, they
worked more than 40 hours weekly, but were not paid overtime in accordance with the
requirement of the Fair Labor Standards Act. Defendants, on the other hand, contended
that Plaintiff Brandt worked only nine hours of overtime for which he was not
compensated; and that Plaintiff Lopez never worked overtime.
Plaintiff Brandt filed a Statement of Claim asserting that he was owed overtime
compensation for an average of five hours each week for 156 weeks, and thus sought
$56,160.00, including liquidated damages, but exclusive of fees and costs (DE # 5).
Plaintiff Orestes Lopez indicated in the Statement of Claim that he was owed overtime
compensation for an average of twelve hours each week for twenty-four weeks, and thus
sought $9,141.12, including liquidated damages, but exclusive of fees and costs (DE # 5).
On June 5, 2007, Defendants made an Offer of Judgment to Plaintiff Brandt in the
2
total amount of $8,000.00 (DE # 137-2 at 1-3).1 The Offer stated that the offer, if
accepted, shall resolve all claims by Plaintiff Brandt against Defendants including claims
for attorneys’ fees and costs.2
On June 5, 2007, Defendants made an Offer of Judgment to Plaintiff Lopez in the
total amount of $2,000.00 (DE # 137-2 at 4-6). The Offer stated that the offer, if accepted,
shall resolve all claims by Plaintiff Lopez against Defendants including claims for
attorneys’ fees and costs.
The Defendants filed a Motion for Final Summary Judgment contending that there
was no evidence that the Plaintiffs ever worked more than forty hours a week for the
Defendants, and, additionally argued that based upon telephone records, computer
activity records, and pay records, it appeared that the Plaintiffs’ claims were “bogus and
fraudulent.” (DE # 62). In the Motion, the Defendants admitted that they did not maintain
a punch-card or other time-keeping system. In response, the Plaintiffs contended that
1
Plaintiff Brandt contends that although the Offer of Judgment was faxed on June
5, 2007, it was also mailed via U.S. Mail. Thus, for purposes of determining when the
Plaintiff was served with the Offer of Judgment, the Plaintiff asserts that June 8, 2007, is
the proper date of service, which reflects the addition of three days under Fed. R. Civ. P.
6(d) based upon service made by mailing pursuant to Fed. R. Civ. P. 5(b)(2)(E) (DE # 175
at 2 n. 3). The Defendants have not contested this assertion. Thus, for the remainder of
the Order, the undersigned refers to the Offer of Judgment as being made on June 8,
2007, and calculates all relevant fees and costs using that date. The undersigned notes,
however, that the result would not be altered if June 5, 2007, was used as the operative
date of service of the Offer of Judgment.
2
Previously, on April 18, 2007, the Defendants made an Offer of Judgment to
Plaintiff Brandt in the total amount of $1,000.00 (DE # 137-1 at 1-3). The Offer stated that
the offer, if accepted, shall resolve all claims by Plaintiff Brandt against Defendants
excluding Plaintiff's claims for attorney's fees and costs, for which the Court would
retain jurisdiction to award. Similarly, On April 18, 2007, Defendants made an Offer of
Judgment to Plaintiff Lopez in the total amount of $500.00 (DE # 137-1 at 4-6). The Offer
stated that the offer, if accepted, shall resolve all claims by Plaintiff Brandt excluding
Plaintiff's claims for attorney's fees and costs, for which the Court would retain
jurisdiction to award. Neitherof these Offers of Judgment alter the Court’s analysis of
the June 8, 2007, Offers of Judgment.
3
genuine issues of material fact remained regarding how many hours the Plaintiffs
worked each week for the Defendants, and contended that the Defendants’ Motion was
baseless and frivolous (DE # 66). The Court denied the Defendants’ Motion for Summary
Judgment noting that, although the Defendants made a strong case that the Plaintiffs did
not work any uncompensated overtime hours, the Plaintiffs had provided competent
evidence that they had, in fact, worked uncompensated overtime hours (DE # 73). The
Court therefore concluded that issues in dispute had to be decided by a finder of fact
and not as a matter of law. The Court also determined that the Defendants’ Motion for
Summary Judgment was not frivolous.
A five-day jury trial was held on this matter between February 25, 2008, through
February 29, 2008 (DE ## 93-97). The jury returned a verdict finding that Plaintiff Brandt
worked a total of 18 hours of overtime, and that Plaintiff Lopez did not work any hours of
overtime (DE ## 93-97, 101). According to the Verdict Form, the jury found that the
Defendants owed Plaintiff Brandt $332.28 for nine hours of overtime that the Defendants
admitted was worked by the Plaintiff for February 2008, and the jury further found that
the Defendants owed Plaintiff Brandt an additional nine hours of overtime compensation
totaling $271.98 for work performed between January 17, 2005 and October 1, 2006 (DE #
101). The jury also found that Plaintiff Brandt had failed to prove that the Defendants
either knew or showed reckless disregard for the matter of whether their conduct was
prohibited by the Fair Labor Standards Act.
The Defendants then filed a Motion for Judgment of Dismissal and Monetary
Sanctions pursuant to Fed. R. Civ. P. 26 and 68, 28 U.S.C. § 1927, and the Court’s
Inherent Authority to Impose Sanctions and for Contempt Proceedings For Perjury and
Suborning Perjury (DE # 117); and, a Motion for Sanctions Pursuant to Rule 11, including
4
Dismissal with Prejudice and Attorneys’ Fees and Costs (DE # 124). The Court issued an
Order denying both Motions (DE # 132). The Defendants then filed a Motion for
Reconsideration of that Order (DE # 136), that this Court also denied (DE # 147).
The Plaintiffs filed a Motion for New Trial and for Reimbursement of Fees for Trial
and Trial Preparation (DE # 118). The Court denied the Plaintiffs’ Motion (DE # 135) and
entered a final judgment in favor of the Defendants against Plaintiff Orestes Lopez, and
in favor of Plaintiff Carlos Brandt against the Defendants (DE # 134). Specifically, the
Final Judgment stated that final judgment was entered in favor of the Defendants against
Plaintiff Orestes Lopez, and was entered in favor of Plaintiff Carlos Brandt against the
Defendants in the total amount of $1,208.52, “for which execution shall issue.” (DE #
134). Both Parties filed Motions seeking to recover their Attorney’s Fees and Costs from
the opposing Party (DE ## 137, 141).
The Plaintiffs then filed a Notice of Appeal indicating that the Plaintiffs were
appealing the Final Judgment based on the Order Denying Plaintiffs’ Motion for New
Trial (DE #140). The Defendants filed a Notice of Cross-Appeal indicating that the
Defendants were appealing the Orders Denying Defendants’ Motions for Judgment of
Dismissal and Sanctions (DE # 148).
While the cross-appeals were pending, the undersigned abated the Parties’
Motions for Attorney’s Fees and granted the Parties’ leave to reactivate those Motions
within thirty days of the Eleventh Circuit Court of Appeals’ resolution of the Parties’
appeals (DE # 163).
On August 17, 2010, the Eleventh Circuit Court of Appeals issued its Mandate on
the Parties’ respective appeals, and affirmed the Orders denying both the Plaintiffs’
Motion for New Trial and the Defendants’ Motion for Sanctions (DE # 166).
5
The instant Motions followed. Plaintiff has submitted a Re-Filed and Verified
Motion for Attorney Fees and Costs (DE # 175) and the Defendants have submitted a
Renewed Motion for Attorneys’ Fees (DE # 169). Both Parties have filed Responses to
the Motions and the Parties have filed their respective Replies.
II.
PLAINTIFF BRANDT’S MOTION FOR ATTORNEYS’ FEES
A.
Parties’ Positions
Plaintiff Brandt has re-filed his Motion for Attorneys’ fees requesting that he be
awarded $95,272.50 for the Attorneys’ Fees consisting of 314.80 hours of work
performed during the trial and appeal of this matter; and, additionally indicates that he
also will seek to recover his attorneys’ fees for the time expended in drafting a Reply to
the Motion (DE # 175 at 7).3 In support of the amount requested, Plaintiff Brandt
contends that because the jury returned a verdict in his favor, and a final judgment was
entered in his favor, that was affirmed on appeal, he is entitled to a mandatory recovery
of attorneys’ fees as a prevailing Plaintiff under the FLSA. In addition, he contends that
although the attorneys’ fees requested are much greater than the $1,208.52 award
granted to Mr. Brandt, such attorneys’ fees are nonetheless reasonable based upon the
conduct of Counsel for the Defendants which “unnecessarily created far more work and
sheer aggravation in this case than was warranted.” (DE # 175 at 5). As part of this
contention, in a footnote, Plaintiff’s Counsel refers to certain statements made by
Defendants’ Counsel in closing argument, and further cites to an opinion issued in
another FLSA case where Defendants’ Counsel was found to have contributed to the
3
Counsel for the Plaintiffs have only sought to recover attorneys’ fees on behalf
of Plaintiff Brandt who prevailed at trial. Counsel for the Plaintiffs does not request that
Mr. Lopez be granted his attorneys fees, and thus the undersigned limits this analysis to
reasonable fees and costs that Mr. Brandt is entitled to recover as a prevailing plaintiff,
under the FLSA.
6
acrimonious nature of the litigation (DE # 175 at 5 n 7). In addition, Plaintiff’s Counsel
submits that he has “pared down” the time entries requested in the Motion to reflect
time spent only on Mr. Brandt’s claims, or time that would have been spent on Mr.
Brandt’s claims irrespective of Mr. Lopez’s participation in the law suit.4
In Response to the Re-Filed Motion, the Defendants incorporate their response to
the Plaintiff’s original Motion for Attorney’s Fees (DE # 145). In the Defendants’ Original
Response, the Defendants contended that Plaintiff’s Counsel was not entitled to the fees
sought because the claims made by both of the Plaintiffs had no basis in fact, were
never substantiated, and ultimately resulted in only one Plaintiff, Carlos Brandt, being
awarded $1,200.00, far less then the $56,000 damage estimate originally submitted by
Plaintiff Brandt. Further, the Defendants contend that Plaintiff Brandt’s recovery is even
less significant because the Defendants conceded that Mr. Brandt was owed payment
for one of the two days for which the jury awarded damages. Defendants contend that
even though Mr. Brandt was awarded some damages, he still should not be considered a
prevailing party because the award was not related to Brandt’s claim; but, rather, only
reflected one “aberrant week per year before the industry’s busiest holiday,” i.e.,
Valentine’s Day, for which the Defendants failed to pay Plaintiff Brandt overtime.
In addition, the Defendants challenge whether the Plaintiff actually “pared down”
the attorney’s fees request to only reflect the time actually spent only on Mr. Brandt’s
claim rather than the unsuccessful claim by Mr. Lopez (DE # 145 at 3). The Defendants
also question the appropriateness of two of Plaintiffs’ lawyers attending the trial.
Further, the Defendants contend that the Plaintiff’s Motion is improper because it
4
There is no specification, however, with respect to what time was “pared
down.”
7
attempts to “taint the tribunal” by raising issues related to Defense Counsel’s conduct in
another FLSA action. Finally, the Defendants assert that the Plaintiff should have
accepted the offers of judgment made by the Defendants, and assert that if fees are
awarded, they should be limited to those incurred by Plaintiff’s Counsel’s drafting and
filing of the complaint (DE # 145 at 13).
In the Defendants’ Response to the Re-Filed Motion, the Defendants raise two
additional arguments regarding the Plaintiff’s request for attorneys’ fees. First, the
Defendants contend that the Plaintiff should not be excused from having to submit an
expert opinion in support of the request for attorneys’ fees, because according to the
Defendants, in this case, the Plaintiff’s would be unable to obtain the testimony from an
expert that the attorneys’ fees are reasonable. Defendants contend that this is
particularly true because the Plaintiffs failed to accept the offer of judgment made by the
Defendants to both Plaintiffs totaling $9,000.00.
Second, the Defendants criticize the Plaintiff’s Motion as improperly focusing on
another case that was previously litigated by Counsel for the Defendant (DE # 177 at 2).
In so doing, the Defendants contend that the instant case was litigated in bad faith and
further contend that Plaintiff’s counsel refused to engage in meaningful settlement
negotiations. Defendants therefore contend that the Plaintiff’s Motion should be denied
in its entirety, and submit that, instead, the Defendants should be awarded a judgment
for fees, as requested in their Motion for Attorneys’ Fees and Litigation Costs (DE # 177
at 5).5
In his Original and Revised Reply, the Plaintiff contends that the Defendants did
5
In a related memorandum, the Defendants challenge the request for fees in
connection with appellate proceedings (DE # 179 at 7). The Plaintiff filed a Memorandum
on Compensability of Appellate Attorney’s Fees in response (DE # 180).
8
not admit liability for any portion of Mr. Brandt’s overtime claim until the trial, when the
Plaintiff moved for a directed verdict (DE ## 146, 178). In addition, the Plaintiff contends
that it is not uncommon under the FLSA for attorney’s fees to exceed the amount of
judgment, and further asserts that it is not unreasonable for two attorneys to appear at
the trial of a case. Further, the Plaintiff contends that his Counsel did attempt to make a
counter-offer to the Defendants’ offer.
For the reasons stated below, the undersigned concludes that Plaintiff Brandt is
entitled to an award of attorneys’ fees as the prevailing party; and, that the reasonable
value of attorneys’ fees equals $19,123.25, not the $95,272.50 requested.
B.
Entitlement to Fees
1.
Attorneys’ Fees under the FLSA
It is well established that a prevailing FLSA plaintiff is entitled to recover
attorneys’ fees and costs, based upon the plain language of the FLSA, which provides
that “[t]he 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); see also Silva v. Miller, 547 F. Supp. 2d 1299, 1304 (S.D. Fla.
2008).
Thus, because a Final Judgment in the amount of $1,208.52 was entered on
Plaintiff Brandt’s behalf related to his claims under the FLSA, he is a prevailing plaintiff
under the FLSA statute and entitled to recover his reasonable attorneys’ fees from the
Defendants.
2.
Attorneys’ Fees under Federal Rule of Civil Procedure 68
As stated above, notwithstanding the entry of a Final Judgment in favor of
Plaintiff Brandt, the Defendants assert that Plaintiff Brandt is not entitled to recover his
9
attorneys’ fees for a variety of reasons, including the cost shifting provisions of Fed. R.
Civ. P. 68. Specifically, according to the Defendants, because Plaintiff Brandt did not
accept the Defendants’ June 8, 2007, Offer of Judgment, and ultimately did not obtain a
more favorable judgment after trial, he is not entitled to recover his attorneys’ fees.6
In contrast, Plaintiff Brandt contends that as a prevailing plaintiff under the FLSA,
he is not precluded from recovering a reasonable attorney fee from the Defendants
merely because the offer of judgment was not better than the recovery that he received.
For the following reasons, the undersigned concludes that Plaintiff Brandt is
entitled to seek to recoup his attorneys’ fees from the Defendants, notwithstanding the
provisions of Rule 68.
Federal Rule of Civil Procedure 68, provides in relevant part,
(a) Making an Offer; Judgment on an Accepted Offer. At least
14 days before the date set for trial, a party defending against
a claim may serve on an opposing party an offer to allow
judgment on specified terms, with the costs then accrued. If,
within 14 days after being served, the opposing party serves
written notice accepting the offer, either party may then file
the offer and notice of acceptance, plus proof of service. The
clerk must then enter judgment.
(b) Unaccepted Offer. An unaccepted offer is considered
withdrawn, but it does not preclude a later offer. Evidence of
an unaccepted offer is not admissible except in a proceeding
to determine costs.
....
(d) Paying Costs After an Unaccepted Offer. If the judgment
that the offeree finally obtains is not more favorable than the
unaccepted offer, the offeree must pay the costs incurred
after the offer was made.
Fed.R.Civ. P. 68. Thus, as stated by the Supreme Court in Marek v. Chesny, 473 U.S. 1, 4
6
The Defendants also challenge Plaintiff Brandt’s entitlement to costs pursuant
to Fed.R.Civ.P. 68. The Plaintiffs’ request for costs is analyzed separately below.
10
(1985), “Rule 68 provides that if a timely pretrial offer of settlement is not accepted and
the judgment finally obtained by the offeree is not more favorable than the offer, the
offeree must pay the costs incurred after the making of the offer.” (citations omitted).
The plain purpose of Rule 68 is to encourage settlement and avoid litigation. Id. The
Rule prompts both parties to a suit to evaluate the risks and costs of litigation, and to
balance them against the likelihood of success upon trial on the merits. Id.
In Arencibia v. Miami Shoes, Inc., 113 F.3d 121 (11th Cir. 1997), the Eleventh
Circuit referenced Marek, and held that in order to determine whether “costs” awarded
under Rule 68 include attorney’s fees, the court should be guided by the underlying
substantive statute’s definition of “costs.” Id. In application of that holding, the Court
determined that, after a plaintiff accepted an offer of judgment that was silent as to the
issue of attorney’s fees or costs, the district court was correct in retaining jurisdiction
for purposes of determining costs, but erred in retaining jurisdiction for purposes of
determining attorney’s fees, stating, “Because § 16(b) of the FLSA does not define
‘costs’ to include attorney’s fees, the district court erred in reserving jurisdiction to
award [the plaintiff] attorney’s fees.” Id. at 1214. Accord Marek v. Chesny, 473 U.S. 1, 26
n. 32 (1985) (dissent), (distinguishing FLSA from the Railway Labor Act (“RLA”) because
the FLSA provides for fees and costs, where the RLA provides for fees, as part of the
costs.) Thus, in an FLSA action, the “costs” considered in connection with Rule 68
issues do not include attorney’s fees.
Using the same framework for analysis, although not in the FLSA context, in
Utility Automation 2000., Inc. v. Choctawhatchee Electric Cooperative, Inc., 298 F.3d 1238
(11th Cir. 2002), the Eleventh Circuit reversed a district court’s denial of a plaintiff’s
11
motion for attorney’s fees after the plaintiff accepted an offer of judgment.7 The Court
noted that neither the substantive statute in the matter, the Alabama Trade Secrets Act,
nor the specific contract at issue, defined “attorney’s fees” as “costs,” and therefore the
plaintiff could seek attorney’s fees, independent of the “costs” included in the Rule 68
offer of judgment.
Consistent with these cases, in Wales v. Jack M. Berry, Inc., 192 F. Supp. 2d 1313,
1325 (M.D. Fla. 2001), the Court stated, "Rule 68 does not bar any award of attorney fees
in an FLSA case for services rendered after a Rule 68 offer is made and a plaintiff
recovers less than the amount offered in settlement." Accord Haworth v. Nevada, 56
F.3d 1048, 1052 (9th Cir. 1995); Dalal v. Alliant Techsystems, Inc., 182 F.3d 757, 760 (10th
Cir. 1999); Fegley v. Higgins, 19 F.3d 1126, 1135 (6th Cir. 1994); Sheppard v. Riverview
Nursing Center, Inc., 88 F.3d 1332 (4th Cir. 1996).
Similarly, in Valencia v. Affiliated Group, Inc., 674 F. Supp. 2d 1300 (S.D. Fla.
2009), the Court held that Rule 68 did not preclude a plaintiff proceeding under the Fair
Debt Collection Act from recovering its post-offer attorneys’ fees where the plaintiff
declined an offer of judgment and ultimately obtained a less favorable judgment. In
reaching its conclusion, the Court noted that the Fair Debt Collection Act defined
“costs” as separate from “attorney’s fees” and thus permitted the plaintiff to seek those
fees notwithstanding the cost shifting provisions of Rule 68. Id. at 1305. The analysis
7
In Utility Automation, the Court initially had to resolve the issue of whether the
plaintiff’s acceptance of the offer of judgment, which was silent as to whether attorney’s
fees were included as part of “costs,” effectively waived the plaintiff’s right to seek to
recover attorney’s fees, either as part of those “costs,” or based upon an independent
source for attorney’s fees. The issue regarding the effect of an offer of judgment that
does not specifically refer to attorneys fees is not present in the instant matter because
the June 8, 2007 Offer of Judgment specifically noted that the offer was inclusive of
attorneys’ fees (DE #
12
provided by the Court in Valencia is persuasive, and is adopted herein.
Thus, based upon the clear language of the FLSA which provides that a prevailing
plaintiff is entitled to attorney’s fees and costs, the Court concludes that Plaintiff Brandt,
as a prevailing plaintiff under the FLSA, is not precluded from seeking his fees
irrespective of the resolution of issues related to the Defendants’ Offers of Judgment.
Rather, as stated in Wales, "[t]he appropriate approach, . . .is to consider a Rule 68 offer
in determining the reasonableness of an attorney's fee. Thus, "[w]hen a plaintiff rejects a
Rule 68 offer, the reasonableness of an attorney fee award under the FLSA will depend,
at least in part, on the district court's consideration of the results the plaintiff obtained
by going to trial compared to the Rule 68 offer." Wales, at 1325, citing Haworth v.
Nevada, 56 F.3d 1048, 1052 (9th Cir. 1995).
Thus, the Court turns to the determination of the amount of a reasonable attorney
fee in this matter, giving particular consideration to the Plaintiff’s limited recovery
related to the FLSA claims.
C. The Lodestar Method of Calculating Reasonable Attorney’s Fees
Under the lodestar method applied by the Courts in this Circuit, attorneys’ fees
are calculated by multiplying a reasonable hourly rate by a reasonable number of hours
expended. Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1387, 1389 (11th Cir. 1997);
Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); Cuban
Museum of Arts & Culture, Inc. v. City of Miami, 771 F. Supp. 1190, 1191 (S.D. Fla. 1991).
The Plaintiff bears the burden of documenting 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. See Id., 168 F.3d
13
at 427; Norman, 836 F.2d at 1303.
Thus, the Court may review the hourly rate and attorney time for reasonableness
based on the 12 so-called “Johnson factors,” including (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 the
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 attorneys; (10)
the “undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases. See Farley v. Nationwide
Mut. Ins. Co., 197 F.3d 1322, 1340-41 (11th Cir. 1999) (citing Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).
D.
Reasonable Hourly Rates
1.
Legal Standards
This Court must first determine whether the fee applicant has satisfied the burden
of establishing that his requested hourly rates are reasonable. “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.” Norman, 836 F.2d
at 1299. With respect to the issue of hourly rates, this Court “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.” Id. at 1303.
2.
Analysis
Counsel for Plaintiff Brandt has requested fees for 314.80 hours of work
14
performed on this matter by four different attorneys. Plaintiff requests that attorney
Jamie Zidell be compensated at an hourly rate of $325.00; attorney David Kelly be
compensated at an hourly rate of $300.00; and, that attorneys Daniel Feld and Sarah
Klein be compensated at an hourly rate of $137.50 (DE # 175 at 6-7). In support of these
requested hourly rates, Plaintiff’s Counsel notes that in 2008 in another FLSA case in
this district, Mr. Zidell and Mr. Kelly were each awarded an hourly rate of $330.00, and
the firm’s junior attorneys were awarded an hourly rate of $137.50. In addition, the
Plaintiff has submitted a recent opinion from this district wherein Mr. Zidell and Mr. Kelly
were awarded hourly rates of $325.00 and $300.00, respectively, in an FLSA action (DE #
183).
Although the Defendants have not specifically contested the hourly rates
requested by the Plaintiff’s Counsel, the Defendants have argued that the Court should
not accept the Plaintiff’s fee submissions without requiring that an expert provide
testimony regarding the reasonableness of the fees requested (DE # 177 at 2). However,
as noted above, the Court itself is an expert on the question of hourly rates. The
Defendants concede this point when they acknowledge that federal courts often allow
litigants to seek reasonable fees without submitting an expert opinion in support of that
request. In this regard, the undersigned notes that the S.D. Fla. L. R. 7.1, which sets
forth the documentation requirements of attorney fee requests, was recently amended to
eliminate the previous requirement that a fee request be supported by an expert affidavit.
As such, and particularly given this Court’s familiarity with the prevailing market rate for
FLSA attorneys in this district, the undersigned declines to require the Plaintiff to
provide an expert opinion regarding the reasonableness of the requested attorneys’ fees.
Rather, the Court will itself examine the requested hourly fee amounts to determine
15
whether they comport with the prevailing market standard in this district for these type
of cases.
As noted above, the Defendants have not provided any suggestion with respect to
an appropriate hourly rate. Thus, based in part upon this lack of specific objection and
the Court’s own familiarity with attorneys’ fees, the undersigned concludes that the
hourly rates requested by Mr. Zidell and Mr. Kelly are reasonable, although at the upper
end of reasonableness. In this regard, the undersigned notes that both Mr. Zidell and
Mr. Kelly have recently been awarded attorney’s fees at the hourly rates of $325.00 and
$300.00, respectively in another FLSA action litigated in this district. See Fernando Arias
v. Alpine Towing, Inc., et al., Case No. 10-20434-CIV-O’SULLIVAN, (S.D. Fla. Sept. 15,
2011).8 In addition, the undersigned concludes that the hourly rates requested for Mr.
Feld and Ms. Klein of $137.50 are entirely reasonable and will be awarded as requested.
E.
Reasonable Hours Expended
1.
Legal Standards
Counsel must use “billing judgment” and exclude “excessive, redundant, or
otherwise unnecessary” hours from any fee petition, Hensley v. Eckerhart, 461 U.S. 424,
434 (1983), irrespective of the skill, reputation or experience of counsel. ACLU v.
Barnes, 168 F.3d 423, 427 (11th Cir. 1999). Though the fee applicant bears the initial
burden of submitting evidence sufficient to allow the court to confirm that the requested
fees are not excessive, “‘objections and proof from fee opponents’ concerning hours
that should be excluded must be specific and ‘reasonably precise.’” Barnes, 168 F.3d at
428, quoting Norman, 836 F.2d at 1301. Where the fee applicant fails to submit sufficient
8
The undersigned recognizes that this matter was initially litigated in 2007,
however the Defendants have failed to object to the requested fees on this basis, and
thus the undersigned finds the requested rates reasonable.
16
evidence by engaging in block billing, a fee reduction is warranted. Id. at 429. In
addition, “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).
2.
General Objections
Defendants have generally contended that Plaintiff Brandt is not entitled to
recover Attorney’s Fees based upon his limited recovery at trial and his refusal to accept
the Defendants’ Offer of Judgment. However, with the exception of the few categorical
objections analyzed below, the Defendants have failed to challenge specific time entries
contained in the Plaintiff Counsel’s billing records submitted to the Court in support of
the Plaintiff’s Motion for Attorneys’ Fees.
The Court has, however, conducted an independent review of the specific hours
billed by the Plaintiff’s counsel and generally finds that the time entries are reasonable in
nature and amount. In particular, while Counsel for Plaintiff Brandt contends that it
billed 314.80 hours in litigating this matter (DE # 175 at 6), it is worth noting that this
two-Plaintiff FLSA action was extremely contentious and included a four and one-half
day trial, and a flurry of post-trial motions.9 In addition, the Defendants sought and were
denied summary judgment (DE ## 62, 66), and the Plaintiffs had to respond to a motion
for more definite statement (DE ## 56 59), and a motion for contempt based upon perjury
(DE ## 117, 120). Thus, the undersigned concludes that the number of hours billed, to
9
In the original Motion for Attorneys’ Fees, Plaintiff’s Counsel sought recovery
for 254.60 hours billed (DE # 141 at 6). The Re-Filed Motion seeks to recover 314.80
hours of billed time but, as discussed below, Plaintiff’s Counsel has failed to properly
substantiate those hours.
17
the extent substantiated in Counsel’s billing records, are not unreasonable as to the
amount of work performed by Plaintiff’s Counsel in this matter. The Court therefore will
now turn to the two general categories of billing entries that the Defendants have
challenged.
3.
Reductions Based Upon the Number of Attorneys at the Trial
The Defendants have objected to the Plaintiff’s request that he recover attorneys’
fees for the attendance of two attorneys, Mr. Zidell and Mr. Kelly, at trial. Specifically,
the Defendants contend that the presence of two attorneys was not necessary at trial,
particularly given the nature of the FLSA action. The Plaintiff counters that there is
nothing improper about a senior attorney and an associate both trying a case.
Based upon a review of the record, the undersigned concludes that the
Defendants have the better of this argument. There is no indication that Mr. Kelly’s
presence at the four and one-half day trial was necessary in order for the Plaintiffs to
prosecute this action. Rather, Mr. Zidell was lead counsel in this matter and the
additional presence of an another attorney at trial was only for the convenience of the
lead attorney and thus is not compensable. Thus, the undersigned will deduct Mr.
Kelly’s hours from the total number of hours billed by Plaintiff’s Counsel for trial
attendance.
Based upon a review of the billing records, the undersigned has determined that
Mr. Kelly billed a total of 42.1 hours for attending trial at an hourly rate of $300.00, for a
total of $12,630, which the undersigned deducts from the total lodestar calculation.
4.
Reductions Based Upon Trial Time Spent on Plaintiff Lopez
The Defendants also question whether Plaintiff’s Counsel has accurately
discounted its attorney’s fees bills to remove any time attributable to the pursuit of Mr.
18
Lopez’s unsuccessful claims. The Defendants have not, however, pointed to any
specific attorney billing entries as improperly including time for work performed solely
for Mr. Lopez.
Plaintiffs’ Counsel has not specified the reductions he made for work performed
on behalf of Plaintiff Lopez, which complicates this Court’s review. The undersigned
has thoroughly reviewed Plaintiff’s attorney billing records, however, and finds that,
generally, except for trial, hours billed by the Plaintiff’s Counsel only relate to work
performed on behalf of Plaintiff Brandt, or work that would have been performed even if
Mr. Lopez was not a party to this litigation. The billing entries for the trial time are not
reduced. Thus, it appears that the time spent at trial related to prosecuting Mr. Lopez’s
claims, some of which clearly would not have been expended had Mr. Brandt been the
only Plaintiff, are improperly included in Plaintiff Brandt’s total attorney fee request, and
must be reduced. For example, on February 27, 2008, the third day of trial, Mr. Lopez
testified and was cross-examined (DE # 95). In addition, Mr. Steve Verger, an
“eyewitness” for Mr. Lopez, testified and was cross examined on that same day. Thus,
significant testimony presented that day related, primarily if not exclusively, to Mr.
Lopez’s claims. Yet, the billing records from the Plaintiff’s Counsel for that day reflect
that Mr. Zidell billed a total of for 10.6 hours for attendance at trial.
In addition to the testimony that related primarily to Mr. Lopez’s claims, it is
manifest that significant time had to be spent by Plaintiff’s Counsel on Mr. Lopez’s
claims during overlapping proceedings during throughout the trial, e.g. opening
statement, closing argument, and cross-examination of Defendant Sanchez. Thus,
because there is no way to determine exactly the number of hours that should be
reduced for trial time spent on Mr. Lopez’s claims, based upon familiarity with the trial
19
proceedings, the undersigned concludes that an across-the-board reduction of 20% for
the time spent by Mr. Zidell at trial, is appropriate.
Therefore, out of the total hours spent by Mr. Zidell at trial, which based upon the
billing records, the undersigned calculates to be 45.2 hours, the number of hours will be
reduced by 20% or 9.04 hours; and, Mr. Zidell is permitted to recoup a total of 36.16
hours for work performed at trial arising from Mr. Brandt’s claims. Accordingly,
$2,938.00 will be deducted from the total lodestar amount.
5.
Reduction for Failing to Substantiate Hours
In the Re-Filed and Verified Motion for Attorney Fees and Costs, Plaintiff Brandt
seeks $95,272.50 in attorney’s fees for 314.80 hours of worked performed by four
attorneys at Plaintiff Counsel’s firm (DE #175 at 6-7). However, the billing records
submitted to the Court in support of the Plaintiff’s request only reflect attorney fees in
the total amount of $79,312.50 rather than the $95,272.50 requested in the Motion (DE #
175-1 at 8).10 In addition, the Motion fails to specify what number of hours Plaintiff’s
10
The undersigned notes that although Plaintiff Brandt indicated in the Re-Filed
Motion for Attorneys Fees that he sought to recover fees for work performed at both trial
and on appeal, Plaintiff Counsel’s billing records do not appear to include time spent
litigating the appeal, and do not include any billing entries after April 24, 2009. In
addition, the Motion does not identify the number of hours, if any, spent litigating this
matter on appeal. The Court declines to “fill in the gaps” or to speculate whether
Plaintiff Counsel’s failure to submit documentation for work performed after April 24,
2009, or to otherwise substantiate hours that were spent litigating the appeal of this
matter was an oversight on the part of Plaintiff’s Counsel. Instead, the Court only
considers the amount of attorney’s fees that should be awarded based upon those hours
that are properly substantiated by Plaintiff’s Counsel’s submissions. Moreover, it does
not appear that a Motion for Attorney’s Fees was filed in the Eleventh Circuit Court of
Appeals pursuant to 11th Cir. R. 39-2. That rule also provides that any party seeking
attorneys’ fees on appeal, “may within the time for filing an application. . . file a motion
to transfer consideration of attorneys’ fees on appeal to the district court . . . from which
the appeal was taken.” Thus, even if the amount of attorneys’ fees on appeal was
substantiated, in the absence of an order transferring a Motion for appellate attorneys’
fees to this Court, the undersigned would not have jurisdiction to consider a motion to
award those fees.
20
Counsel seeks related to prosecuting the appeal of this matter. Therefore, because
Plaintiff Brandt has failed to satisfy his burden of submitting evidence sufficient for the
Court to determine whether 314.80 hours and/or $95,272.50 was spent on this matter,
and if so, whether such expenditures were reasonable, the undersigned will only
consider those amounts documented by the submitted billing records. In other words,
the undersigned deducts the unsubstantiated amount of $15,960 from the requested
amount of $95,272.50, and only considers whether the Plaintiff is entitled to recover
$79,312.50 in attorneys’ fees.
6.
Calculating the Lodestar
At this stage in the analysis, it is necessary to compute the lodestar after making
the appropriate reductions in the relevant hourly rates and the number of hours
expended. After deducting the fees claimed for Mr. Kelly’s attendance at trial ($12,630),
and the reduction of 20% for the time spent at trial by Mr. Zidell ($2,938.00), as well as
the unsubstantiated amount of $15,960, the lodestar equals $63,744.50.
F.
Adjustments to the Lodestar
1.
Legal Standards
While the calculation of the lodestar is a necessary component of the fee inquiry,
it is not the only component. As an alternative or in addition to adjusting the number of
hours used to calculate the lodestar, the Court may apply an after-the-fact reduction of
the lodestar where the Plaintiff achieved only partial or limited success, and this is true
“even where the Plaintiffs’ claims are ‘interrelated, non-frivolous and raised in good
faith.’” Barker v. Niles Bolton Assocs., Inc., 2009 WL 500719, No. 07-15103, at *10 (11th
Cir. Mar. 2, 2009) quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983); accord Am.
Charities, 278 F. Supp. 2d 1301, 1326 (M.D. Fla. 2003). In addition, in making a reduction
21
based upon limited success, the Court is not required to engage in an hour-by-hour
analysis. Loranger, 10 F.3d at 783; Trujillo v. Banco Central del Ecuador, 229 F. Supp. 2d
1369, 1375 (S.D. Fla. 2002); cf. Norman, 836 F.2d at 1301. “[I]t is sufficient for the court to
provide a concise but clear explanation of its reasons for the reduction.” Loranger, 10
F.3d at 783.
The Supreme Court has emphasized that the degree of success obtained is a
“crucial factor that district courts should consider carefully in determining the amount of
fees to be awarded.” Hensley v. Eckerhart 461 U.S. 424, 440 (1983). Where the results
obtained are “limited in comparison to the scope of the litigation as a whole,” a reduced
fee award is appropriate. Id. Failure to consider the prevailing party’s degree of
success when calculating a fee award constitutes an abuse of discretion. Andrews v.
United States, 122 F.3d 1367, 1375 (11th Cir. 1997) (holding that district court abused its
discretion by not giving greater weight to Plaintiffs’ limited success).
While the nature of the results obtained may result in an upward or downward
adjustment of the lodestar, “[f]ee awards should not simply be proportionate to the
results obtained,” especially in the context of FLSA cases, where it is not uncommon for
fee awards to exceed the Plaintiff’s recovery in order to ensure that individuals with
relatively small claims can obtain representation necessary to enforce their rights. See
James v. Wash Depot Holdings, 489 F. Supp. 2d 1341, 1347 (S.D. Fla. 2007); Tyler v.
Westway Auto. Serv. Ctr., Inc., 2005 WL 6148128, No. 02-61667-CIV, at *5 (S.D. Fla. Mar.
10, 2005).
In addition, the FLSA provides for a mandatory award of attorneys’ fees. See
Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir.1985) (“[S]ection
216(b) of the [FLSA] makes fee awards mandatory for prevailing plaintiffs.”) (emphasis
22
added). Nevertheless, as other courts have recognized, an entitlement to attorneys’ fees
cannot be a carte blanche license for Plaintiffs to outrageously and in bad faith run up
attorney fees without any threat of sanction. See Goss v. Killian Oaks House of Learning,
248 F.Supp.2d 1162, 1168-69 (S.D. Fla. 2003). Thus, even in the context of FLSA cases, a
number of courts have reduced the lodestar attorneys' fees because of a plaintiff’s
limited success in the litigation. See, e.g., Wales v. Jack M. Berry, Inc., 192 F. Supp. 2d
1313, 1326 (M.D. Fla. 2001); Gary v. Health Care Services, Inc., 744 F. Supp. 277, 278-79
(M.D.Ga. 1990).
2.
Analysis
Based upon a review of the record as a whole, and for the reasons stated below,
the undersigned concludes that it is appropriate to reduce the lodestar attorney fee
amount in this case by 70%, in order to account for the limited success achieved by
Plaintiff Brandt.11 Thus, Mr. Brandt is entitled to a final sum of attorneys’ fees equal to
$19,123.35.
In reaching this conclusion, the undersigned considers that the judgment for Mr.
Brandt in the amount $1,208.52 is a far cry from the damage estimate submitted by the
Plaintiff in his Statement of Claim, which calculated Plaintiff Brandt’s damages to be
$56,160.00 excluding Attorneys’ Fees and costs (DE # 5). Thus, this is not a case where
the plaintiff received most of what the plaintiff originally sought, even if that amount
sought was relatively small. Rather, in this case, the amount recovered by Mr. Brandt in
unpaid overtime wages and liquidated damages equals little more than 2% of the amount
of uncompensated overtime pay originally sought by him. In addition, the Court
11
The undersigned has not “double-counted” the Johnson factors since the
Court has not used the same factors to reduce the previously determined lodestar that
are used to reduce the lodestar here.
23
considers the fact that Plaintiff Brandt was offered a settlement that approximated what
he ultimately obtained in overtime compensation and attorneys’ fees and costs. Finally,
although this action was particularly contentious, the underlying legal issues were
neither novel nor particularly complex.
On the other hand, the Court recognizes that the Defendants, despite their Offers
of Judgment, were extremely litigious and initially contended that Mr. Brandt was not
entitled to any overtime pay, and then stipulated at trial that he was entitled to nine
hours of overtime pay, although they disputed the amount owed for those nine hours;
and, also contended that he was not entitled to any additional compensation. In this
regard, the Court notes that the Defendants admitted that they did not keep time records
for Mr. Brandt that could have been used early-on, or at the summary judgment stage, to
demonstrate that Mr. Brandt had been properly compensated for all of his work. As
such, as discussed above, Counsel for Plaintiff Brandt was required to expend
significant time litigating this matter.
Nonetheless, based upon the entirety of the record and the extremely limited
success, the undersigned concludes that an across the board reduction of 70% for
attorneys’ fees is appropriate. Such a reduction is consistent with attorney fee
reductions made by courts where the amount recovered by an FLSA plaintiff is far below
what the plaintiff originally sought. See Roldan v. Pure Air Solutions, Inc., 2010 WL
410571 *8 (S.D. Fla. Jan. 29, 2010) (reducing attorneys’ fees lodestar calculation by 85%
based upon limited success where FLSA plaintiff was only awarded $533.69 after trial,
despite seeking significantly more at the outset of the litigation); James v. Wash Depot
Holdings, Inc., 489 F. Supp. 2d 1241 (S.D. Fla. 2007) (reducing request for $377,090.62 in
attorneys’ fees by 50% based, in part, upon limited success, where plaintiff estimated
24
damages for claims under the FLSA, Florida Civil Rights Act and Florida Whistleblower
Act to be $600,000, and only ultimately recovered $3,493.62); Baxter v. Automated Gate
Systems, Inc., 2011 WL 1790330 * 4 (M.D. Fla. May 10, 2011) (reducing attorney fee
lodestar calculation of $4,257.00 to $1,120.00, an approximate 74% reduction, where
FLSA plaintiff recovered only $1,120 in a settlement after initially seeking $40,000.00 and
rejecting the defendant’s first two offers to settle).
In this regard, the undersigned has expressly considered whether the award of
attorneys’ fees should be further reduced to eliminate all fees incurred after the final
Offer of Judgment, but concludes that the 70% reduction in the lodestar amount is an
appropriate total reduction which gives effect to both the Rule 68 policies which
encourage realistic settlements; and, the FLSA policies which encourage underpaid
workers to pursue their remedies.
Although the Defendants will likely still contend that the fee award in this case is
far greater than the actual amount recovered by the Plaintiff in this case, the
undersigned is mindful that, in FLSA cases, fee awards commonly exceed the actual
damages awarded, especially where, as here, both sides vigorously contest the case.
This adjusted award accurately reflects the value of attorneys’ fees reasonably
necessary to achieve the results obtained in this case; and, it is sufficient to fulfill the
intent of the fee-shifting provision of the FLSA by ensuring that “individuals with
relatively small claims” may “effectively enforc[e] their rights and protect[ ] the interest
of the public . . . .” Tyler v. Westway Automotive Service Ctr., Inc., No. 02-61667-CIV,
2005 WL 6148128, at *5 (S.D. Fla. Mar. 10, 2005); accord James v. Wash Depot Holdings,
489 F. Supp. 2d 1341, 1347 (S.D. Fla. 2007).
Thus, based upon a determination of the reasonableness of the requested
25
attorneys’ fees, and adjusting the lodestar amount to reflect Plaintiff’s Brandt’s limited
success at trial, the undersigned concludes that Plaintiff Brandt is entitled to recover a
total of $19,123.35 in attorneys’ fees.
V.
THE PARTIES’ REQUEST FOR COSTS
A.
The Parties’ Positions
As stated above, in addition to attorneys’ fees, Plaintiff Brandt seeks to recover
his costs associated with litigating this action. Specifically, Plaintiff Brandt requests an
award of costs in the amount of $3,662.60 (DE # 175). These costs consist of
expenditures for depositions, filing fees, mediation fees, witness fees, and transcript
costs (DE # 175 at 7-8).
In response, the Defendants generally argue that because Plaintiff Brandt failed to
accept the Defendants’ Offer of Judgment and ultimately received a less favorable
judgment, pursuant to the cost-shifting provisions of Rule 68, Plaintiff Brandt is not
entitled to recover any of the litigation costs incurred in this matter. The Defendants
however, have not objected to any specific costs that the Plaintiff seeks, as prevailing
party under the FLSA (DE ## 145, 177).
In addition, the Defendants contend that they are entitled to recover all of their
litigation costs from both of the Plaintiffs, based, in part, upon the cost-shifting
framework of Federal Rule of Civil Procedure 68.12
The Plaintiff responds that he is entitled to recover his litigation costs as a
prevailing Plaintiff under the FLSA. Plaintiff Brandt further contends that at the time the
June 8, 2007, Offer of Judgment was made by the Defendants, the Plaintiff’s costs and
12
The Defendants also seek to recover attorneys’ fees based upon Rule 11, 28
U.S.C. § 1927, and the Court’s inherent power. Those grounds are discussed separately
below.
26
attorneys’ fees far exceeded the $8,000.00 offered by the Defendants.
For the following reasons, the undersigned concludes that pursuant to Rule 68,
the Plaintiff is not entitled to recover his post-offer costs incurred in this litigation, but is
entitled to recover any compensable costs incurred prior to the Defendants’ June 8,
2007, Offer of Judgment. In addition, the undersigned concludes that because the
Defendants’ June 8, 2007, Offer of Judgment was more favorable than the judgment that
the Plaintiff ultimately obtained, the Defendants are entitled to recover their post-offer
litigation costs from the Plaintiff.
B.
Costs under Federal Rule of Civil Procedure 68 Offer of Judgment
As stated above, under Rule 68, if a timely pretrial offer of judgment is not
accepted; and, the judgment finally obtained by the offeree is not more favorable than
the offer, the offeree must pay the costs incurred after the making of the offer.
In Marek v. Chesny, 473 U.S. 1 (1985), the Supreme Court evaluated whether an
unaccepted Rule 68 offer of judgment was more favorable than the judgment ultimately
obtained by the plaintiff. In so doing, the Court combined the sum of awarded damages
and the amount of pre-offer costs, including recovered attorneys’ fees, to determine the
total recovery awarded to the plaintiff. Similarly, in Scheeler v. Crane Co., 21 F.3d 791
(8th Cir. 1994), the Eighth Circuit reviewed a decision by a district court wherein the
court compared a Rule 68 offer of judgment of $15,000, inclusive of costs and attorneys’
fees, to the judgment the plaintiff ultimately obtained at trial of $12,500, which also
permitted the plaintiff to recover costs of the action. After trial, the plaintiff sought and
recovered $3,500.00 in attorneys’ fees, and thus, the trial court determined that the
judgment ultimately obtained by the plaintiff–a total of $16,000 in attorneys’ fees and
damages--was more favorable than the offer of judgment. The Eighth Circuit affirmed
27
the trial court’s decision and stated, “If the plaintiff’s payment of her own attorney fees
was part of the Rule 68 offer, it is surely equitable that attorney fees be included as part
of the recovery. This is the only way in which the offer can be fairly matched against the
recovery.” Id. at 793.
Thus, a “judgment finally obtained” under Rule 68 includes the damage award
plus pre-offer fees and costs actually awarded. Bogan v. City of Boston, 489 F. 3d 417
(1st Cir. 2007) (citing Scheeler v. Crane Co., 21 F.3d 791, 793 (8th Cir. 1994); Marryshow
v. Flynn, 986 F.2d 689, 692 (4th Cir. 1993); Grosvenor v. Brienen, 801 F.2d 944, 948 (7th
Cir. 1986)). Therefore, in order to determine whether the Plaintiff is precluded from
recovering his post-offer costs, the undersigned must determine whether the Offer of
Judgment made by the Defendants was better than the judgment that Plaintiff Brandt
finally obtained by combining all of the recovery made by Brandt, including the
judgment, attorneys’ fees and costs, to the extent those fees and costs accrued prior to
the offer of judgment.
Similarly, in determining whether the Defendants are entitled to recover their post
offer costs, the Court must consider whether the cost-shifting provisions of Rule 68 are
applicable due to the June 8, 2007 Offer of Judgment being more favorable than the
judgment finally obtained by the Plaintiffs.13
13
In their Motion seeking attorneys’ fees and costs, the Defendants seek to
recover costs and attorneys’ fees from both Plaintiff Brandt and Plaintiff Lopez (DE # 137
at 6). Thus the Court evaluates the Defendants’ request for an award of costs under Rule
68 as to both of the Plaintiffs.
28
C.
Analysis
1.
Plaintiff Brandt failed to secure a more favorable judgment
than the June 8, 2007, Offer of Judgment made by the
Defendants and thus must pay the Defendants’ post-offer
costs
The Defendants correctly assert that in this action, Plaintiff Brandt failed to obtain
a judgment that was more favorable than the June 8, 2007, Offer of Judgment made by
the Defendants, which offered a total amount of $8,000.00, including claims for
attorneys’ fees and costs. There is no question that Plaintiff Brandt only obtained a
judgment in his favor in the amount of $1,208.52. However, the June 8, 2007 Offer of
Judgment specifically included attorneys’ fees and costs. Thus, in order to determine
whether Plaintiff Brandt's recovery was greater than the offer of judgment, the Court
must determine the reasonably incurred attorneys’ fees and costs up to that point, and
add this amount to the judgment obtained on the merits. Plaintiff claims that at the time
of the offer, he had incurred attorneys’ fees which totaled $10,616.25,14 and costs that
totaled $1,072.15 However, as discussed above, because this Court has determined that
a 70% reduction in Plaintiff’s attorneys’ fees is warranted, Plaintiff Brandt’s total
14
Plaintiff’s Counsel submits that the attorneys’ fees incurred by Plaintiff Brandt
as of June 7, 2007 were $10,616.25 (DE # 175 at 3 n. 4). However, the Offer of Judgment
dated May 31, 2007, was mailed to the Plaintiff on June 5, 2007 and thus was served on
June 8, 2007. The Court notes that on June 8, 2007, additional attorneys’ fees were
incurred bringing the Plaintiff’s total attorney fee total to $10,766.25. However, the
additional attorney fees incurred on that date still are insufficient to render the final
judgment obtained by the Plaintiff to be more favorable than the Offer of Judgment.
15
On or before June 8, 2007, Plaintiff Brandt had incurred costs in the amount of
as follows: Clerk’s Filing fee $350.00 (DE # 175-1 at 8);, Service of Process fee for the
two Defendants for $70.00 (DE # 175-1 at 8); Deposition subpoena and witness
appearance fee for Ed Miranda taken on May 18, 2007 for $75.00 (DE #175-1 at 8, 11);
Deposition transcript fee and court reporter appearance fee for deposition of Ed Miranda
taken on May 18, 2007 for $338.00 (DE # 175 at 11); and, deposition transcript fee and
court reporter appearance fee for deposition of Defendant Moises Sanchez taken on
April 26, 2007, for $239.00 (DE # 175-1 at 8, 10).
29
recovery in this action, viewed as of June 8, 2007, was in the amount of $3,184.88 for
attorneys’ fees and $1,072.00 for costs, as well as $1,208.52 in damages, for a total
recovery of $5,465.54. Therefore, the Defendants’ Offer of Judgment of $8,000.00 was
more favorable than the amount of the judgment ultimately received by Plaintiff Brandt,
and the Rule 68 cost shifting provision is triggered as to Plaintiff Brandt under the facts
of this case. Accordingly, as discussed below, Plaintiff Brandt is responsible for paying
the Defendants’ costs incurred after the date of the June 8, 2007, Offer of Judgment.
2.
Defendants are not entitled to recover their costs
Under Rule 68 Offer of Judgment’s Cost Shifting
Provision against Defendant Lopez because a judgment was
entered in the Defendants’ behalf against Plaintiff Lopez
However, the Defendants are not entitled to recover their costs from Plaintiff
Lopez under the Rule 68 cost shifting provision. On June 8, 2007, Defendants made an
offer of Judgment to Plaintiff Lopez in the total amount of $2,000.00 (DE # 137-2 at 4-6).
The Offer stated that the offer, if accepted, would resolve all claims by Plaintiff Lopez
against Defendants including claims for attorneys’ fees and costs.
As discussed above, final judgment in this matter was entered against Orestes
Lopez and in favor of the Defendants (DE # 134). In Delta Air Lines, Inc. v. August, 450
U.S. 346, 352 (1981), the Supreme Court held that Rule 68 is inapplicable to cases where
the defendant obtains a judgment in its favor. Accord Exemar v. Urban League of
Greater Miami, Inc., 2009 WL 259677 (S.D. Fla. Feb. 4, 2009), citing Design Pallets, Inc. v.
Gray Robinson, P.A., 583 F. Supp. 2d 1282, 1285 n. 5 (M.D. Fla. 2008) (finding Rule 68
inapplicable to defendant's request for costs where judgment was entered in defendant's
favor). Therefore, since the Defendants in this case obtained a judgment in their favor,
against Plaintiff Lopez, Rule 68 is not applicable and the Defendant are not entitled to
costs from Plaintiff Lopez under that Rule.
30
Thus, the Court must now determine the total amount of pre-offer costs that
Plaintiff Brandt is entitled to recover, and the total amount of post-offer costs that the
Defendants are entitled to recover from Plaintiff Brandt.
A.
Legal Framework for Analysis
The costs recoverable by a prevailing plaintiff in FLSA cases under section 216(b)
are limited to those costs enumerated in 28 U.S.C. § 1920. See Glenn v. Gen. Motors
Corp., 841 F.2d 1567, 1575 (11th Cir. 1988). Title 28, United States Code, Section 1920
provides:
A judge or clerk of any court of the United States may tax as costs the
following:
(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 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. “[A] court may only tax costs as authorized by statute.” U.S. EEOC v.
W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000) (citing Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 445 (1987)).
B.
Costs Recoverable by the Plaintiff
As stated above, Plaintiff Brandt has sought to recover costs that were incurred
during the litigation of this matter. Although the Defendants have objected generally to
31
any costs and fees being awarded to Plaintiff Brandt due to the cost shifting provisions
of Rule 68, the Defendants have not identified any specific pre-offer costs that the
Plaintiff, as prevailing party under the FLSA, is not entitled to recover (DE ## 145, 177).
Accordingly, because the Defendants have not objected to any pre-offer costs and
further because the undersigned finds that the Plaintiff’s pre-offer costs were reasonably
necessary for the prosecution of this case and are identified as recoverable costs, the
Plaintiff may recover all of the requested pre-offer costs.
Therefore, the Plaintiff is entitled to recover $1,072.00, in costs which were
incurred prior to the offer of judgment as follows: Clerk's Filing fee $350.00 (DE # 175-1
at 8); Service of Process fee for the two Defendants for $70.00 (DE # 175-1 at 8);
Deposition subpoena and witness appearance fee for Ed Miranda taken on May 18, 2007
for $75.00 (DE #175-1 at 8, 11); Deposition transcript fee and court reporter appearance
fee for deposition of Ed Miranda taken on May 18, 2007 for $338.00 (DE # 175 at 11); and,
deposition transcript fee and court reporter appearance fee for deposition of Defendant
Moises Sanchez taken on April 26, 2007, for $239.00 (DE # 175-1 at 8, 10).
However, one other issue regarding the costs requested by the Plaintiff warrants
discussion. Although litigants frequently seek to recover mediation costs as part of
their costs as a prevailing plaintiff under the FLSA, Plaintiff Brandt has suggested that
$300.00 in mediation costs should be awarded to the Plaintiff as part of the attorneys’ fee
award.
There is an apparent split of authority regarding the manner in which such
expenses are treated in the context of an FLSA case. On one hand, there are some
cases where mediation expenses are considered “costs” which are not taxable under 28
U.S.C. § 1920 because they are not specifically enumerated in the statute. See Bartle v.
32
RX Options, Inc., No. 08-60533-CIV, 2009 WL 1035251, at *3 (S.D. Fla. Apr. 16, 2009)
(prohibiting recovery of costs associated with postage, computerized research,
mediation and long distance); Global Patent Holdings, LLC v. Panthers BRHC LLC, No.
08-80013-CIV, 2009 WL 1809983, at *3 (S.D. Fla. June 25, 2009) (telecopy costs); Gary
Brown & Assocs., Inc. v. Ashdon, Inc., 268 Fed. Appx. 837, 845-46 (11th Cir. Mar. 7, 2008)
(travel expenses).
On the other hand, there are other FLSA cases that are favorable to Plaintiff
Brandt in which these expenses are considered “litigation expenses” – not “costs” –
that are recoverable as part of the attorneys’ fee award. See Hart v. Lindgren-Pitman,
Inc., No. 06-60285-CIV, 2008 WL 4265050, at *9 (S.D. Fla. July 31, 2008) (citing Wales v.
Jack M. Berry, Inc., 192 F. Supp. 2d 1313, 1329 (M.D. Fla. 2001)); Calderon v. Witvoet, 112
F.3d 275, 276 (7th Cir. 1997) (“[O]utlays for travel and related expenses” are
reimbursable “as part of the award for attorneys’ fees, because” such charges “are the
sort of things that a lawyer includes with a bill for professional services.”).
Nonetheless, although the Eleventh Circuit’s decision in Gary Brown & Assocs.,
Inc. v. Ashdon, Inc., 268 Fed. Appx. 837, 845-46 (11th Cir. Mar. 7, 2008) is not binding
authority since it is an unpublished opinion, the undersigned elects to follow it. In Gary
Brown & Assocs., the Eleventh Circuit denied a prevailing party’s request for mediation
expenses, meals, postage, online research, travel and lodging because those costs are
not recoverable under 28 U.S.C. § 1920.
The undersigned recognizes that Plaintiff Brandt argues that mediation costs
should be viewed as attorneys’ fees and thus compensable.16 In addition, the
16
If Plaintiff sought to recover mediation costs as part of costs as a prevailing
plaintiff under the FLSA, the request would also be denied because the undersigned has
already concluded that the Plaintiff is not entitled to recover any costs incurred after the
June 8, 2007, Offer of Judgment.
33
undersigned is cognizant of the policy rationale animating the cost-shifting provisions of
the FLSA, which are designed to fully reimburse lawyers as an incentive to encourage
them to represent FLSA plaintiffs. Nevertheless, the Court is limited in its authority to
award litigation costs that fall outside the scope of 28 U.S.C. § 1920, see Glenn v.
General Motors Corp., 841 F.2d 1567, 1575-76 (11th Cir. 1988); and, moreover, the total
fee and cost award in this case accurately reflects the amount of attorneys’ fees
reasonably necessary to achieve the results obtained by Plaintiff’s Counsel, as well as
the amount necessary to fulfill the intent of the fee-shifting provision of the FLSA by
ensuring that “individuals with relatively small claims” may “effectively enforc[e] their
rights and protect[ ] the interest of the public . . . .” Tyler v. Westway Automotive
Service Ctr., Inc., No. 02-61667-CIV, 2005 WL 6148128, at *5 (S.D. Fla. Mar. 10, 2005).
Finally, Plaintiff Brandt’s citation to Calderon v. Witvoet, 112 F. 3d 275 (7th Cir.
1997) and LeBlank-Sternberg v. Fletcher, 143 F. 3d 748 (2nd Cir. 1998), do not alter this
analysis. Rather, those cases are not binding on this Court in the face of Eleventh
Circuit precedent denying mediation costs in the FLSA context. In addition, neither of
those cases address mediation costs specifically. Thus, the undersigned denies the
Plaintiff’s request to recover mediation costs.
C.
Costs Recoverable by the Defendants
In their Renewed Motion for Attorneys’ fees, the Defendants request that they be
awarded $809.18 in costs (DE # 169).17 The Plaintiff has failed to object to any of the
17
Although the Defendants’ Renewed Motion for Attorneys’ renews the
Defendants’ original request for fees made on April 10, 2009 (DE # 137), the Renewed
Motion, which purportedly incorporates and adopts by reference the original Motion,
seeks costs in the amount of $809.18 (DE # 169 at 2), rather than the $2,509.00 in costs
sought in the original Motion (DE # 137 at 3). It is unclear from the Defendants’
submissions why the requested cost amount significantly changed. However, because
the most recent filing by the Defendants only seeks a total of $809.18 in costs, the
34
specific costs sought by the Defendants, but rather only objected generally to the
Defendants recovering any costs pursuant to Fed. R. Civ. P. 68.
As stated above, because Plaintiff Brandt did not obtain a judgment more
favorable than the Defendants’ June 8, 2007 Offer of Judgment, the Defendants are
entitled to recover their post-offer costs, to the extent that those costs are identified in §
1920. Therefore, based upon a thorough review of the Defendants’ cost submissions,
the undersigned concludes that the Defendants are entitled to recover the total cost
amount that they seek. It is clear from the documentation submitted by Defendants’
Counsel that the Defendants have incurred, at least, $809.18 in taxable costs related to
the prosecution of Mr. Brandt’s case after the June 8, 2007, Offer of Judgment was made
to Plaintiff Brandt. Thus, although it is not entirely clear from the documentation which
costs incurred after June 8, 2007, Defendants’ Counsel seeks to recover, the
documentation submitted by the Defendants supports a finding that the Defendants
incurred at least $809.18 in taxable costs pursuant to 28 U.S.C. § 1920 after that date.18
Accordingly, the Court awards Plaintiff Brandt his pre-offer litigation costs in the
amount of $1,072.00; but denies his request to the extent Plaintiff Brandt seeks to
recover his post-offer litigation costs. In addition, the undersigned awards the
Defendants their litigation costs incurred after the Defendants’ June 7, 2007, Offer of
Judgment, in the amount of $809.18 from Plaintiff Brandt, but denies the Defendants’
request for costs to the extent that Defendants seek to recover those costs from Plaintiff
undersigned assumes that this is the total amount in costs currently sought by the
Defendants.
18
Specifically, the Defendants identified copy costs of $140.09; trial subpoena
service costs of $125.00; trial witness fees of $225.00; and, transcript costs for
depositions, which relate substantially to Plaintiff Brandt. The Plaintiff did not claim
that, if costs were awardable, less than $809.18 should be recovered by the Defendants.
35
Lopez.
VI.
DEFENDANTS’ MOTION FOR ATTORNEYS’ FEES
A.
Parties’ Positions
In addition to seeking to recover their costs related to this action, the Defendants
have filed a Renewed Motion for Attorneys’ Fees seeking to recover attorneys fees in the
amount $38,970.00 (DE # 169). In the Renewed Motion, the Defendants incorporate and
adopt by reference the arguments made in their original Motion for Attorneys’ Fees (DE #
137), wherein they assert that they are entitled to recoup their attorneys’ fees and costs
pursuant to Fed. R. Civ. P. 68, Rule 11 or 28 U.S.C. § 1927. Specifically, the Defendants
contend that “Attorneys’ fees should be awarded to Defendants whether as sanctions
pursuant to § 1927, contempt power, inherent power, Rule 11 or, least likely Rule 68” (DE
# 137 at 5). Notably, the Defendants both in a footnote and in the Conclusion of the
Motion, acknowledge that the Defendants likely are not entitled to recover attorneys’
fees pursuant to Rule 68 (DE # 137 at 1 n. 1, 6).19
The Defendants argue that the Plaintiffs should have accepted either the April 18,
19
In the Defendants original Motion for Attorneys' Fees and Litigation Costs
Pursuant to Fed. R. Civ. P. 68, or Rule 11, or 28 U.S.C. § 1927 (DE # 137), the Defendants
stated the following in a footnote, “Defendants do not believe that common law allows
them to recover fees pursuant to their offers of judgment but they argue that the law
should be changed or they seek the relief to preserve the demand in case the law has
not changed or is other than what counsel believes it to be. . . . In addition, Defendants
seek fees pursuant to § 1927 as it relates to the unreasonable rejection of the offers of
judgment." (DE # 137 at 1 n.1). Although the Defendants style the pending Motion as a
"Renewed Motion for Attorneys' Fees" which incorporates and adopts by reference the
original Motion for Attorneys' Fees, the Defendants states, "The motion is not re-drafted
or resubmitted in its entirety because undersigned counsel lost the computer file due to
a problem that erased it along with many other pleadings in this case. To avoid
duplication of work, undersigned and Defendants respectfully request that the Court
re-consider the original motion as if re-filed." (DE # 169 at 2). Thus, although the
Defendants failed to include in the Renewed Motion the above-quoted footnote regarding
the limitation on the authority for the Defendants to recover attorneys’ fees pursuant to
Rule 68, the undersigned notes the Defendants' partial concession on this point.
36
2007, or the June 8, 2007, Offer of Judgment made by the Defendants and note that the
Plaintiffs’ Counsel never made a counter-offer to either of those offers. In addition, the
Defendants state that as to Mr. Brandt’s claims, “not one shred of evidence supported
the claims, other than the $600.00 awarded by the jury.”
In the Renewed Motion, the Defendants point out that the attorneys’ fees sought
by the Defendants are less than half of those fees claimed by the Plaintiffs’ counsel. In
addition, the Defendants state that they prevailed in the case, and again assert that the
Plaintiffs should have accepted the Defendants’ offer of judgment for approximately
$10,000 to settle this matter early-on.
In Response to the original Motion for Attorneys’ fees, the Plaintiff argued that the
Court had already determined that sanctions were not appropriate in this action when
the Court denied the Defendant’s Motion for Sanctions (DE # 138). In addition, the
Plaintiffs argued that the claims made by the Plaintiffs were not totally baseless as
evidenced by the Court’s denial of the Defendants’ Motion for Summary Judgment and
the jury award recovered by Plaintiff Brandt.
In Response to the Defendants’ Renewed Motion for Attorneys’ Fees, the Plaintiffs
incorporated their previous response, and further contended that because the Court’s
denial of the Defendants’ request for sanctions had been affirmed by the Eleventh
Circuit, that the Defendants’ renewed request vexatiously multiplied the proceedings in
violation of 28 U.S.C. § 1927 (DE # 172).20
In the Reply, the Defendants contend that the Renewed Motion for Attorneys’ Fees
was filed at the Court’s direction and further argue that the Court never addressed all of
the issues raised in the Renewed Motion. Rather, according to the Defendants, the
20
The undersigned finds that the actions of Defendants’ counsel, while certainly
far from admirable, do not warrant sanctions.
37
Court did not determine whether the Plaintiffs should have to pay the Defendants’
attorneys fees and costs pursuant to 28 U.S.C. § 1927 by refusing to accept the offers of
judgment made by the Defendants. In support of their claims, the Defendants cite
Carlson v. Bosem, et al., CASE NO: 04-61004-CIV-WJZ (S.D. Fla. 2004), and contend that
if the Court follows the principles set out in that case, the Court will award Defendants
the fees they seek and deny the Plaintiff’s Motion for Attorneys’ fees (DE # 173 at 3-4).
For the following reasons, the Defendants are not entitled to recover their
attorneys’ fees from the Plaintiffs under either Rule 68, Rule 11, or 28 U.S.C. § 1927.
B.
Law & Analysis
1.
Defendants Are Not Entitled to Recover Their Attorneys’ fees
under Federal Rule of Civil Procedure 68
The Defendants assert that they are entitled to recover attorneys’ fees and costs
based, in part, upon the cost-shifting framework of Federal Rule of Civil Procedure 68.
First, the undersigned has already determined, as discussed at length above, that
the Defendants are not entitled to recover any costs from Plaintiff Lopez. Also, the Court
has determined that the Defendants are entitled to recover their costs pursuant to the
cost shifting provisions of Rule 68, as to Plaintiff Brandt, because the amount ultimately
recovered by Mr. Brandt was less than the amount offered in the Defendants’ Offer of
Judgment.
However, to the extent that the Defendants contend that they are entitled to
recover their attorneys’ fees, the Defendants misapprehend the nature of Rule 68's costshifting provisions, particularly in the FLSA context. Indeed, even though Plaintiff
Brandt did not ultimately obtain a judgment more favorable than the Offer of Judgment
made by the Defendants, Rule 68 only provides that the offeror is entitled to recover its
“costs” from the date of the offer of judgment. As explained above, in determining
38
whether costs include attorneys’ fees, courts look at the definition of costs in the
underlying substantive statute. Again, the FLSA defines attorneys fees separately from
costs, and thus the Rule 68 shifting of costs is limited to actual FLSA costs and not
attorneys fees.21 Although the Eleventh Circuit has not specifically held in the FLSA
context that a defendant who is awarded costs pursuant to Rule 68's cost-shifting
provisions, is not entitled to recover attorneys’ fees, several other circuits have directly
reached that conclusion. In Crossman v. Marcoccio, 806 F. 2d 329 (1st Cir. 1986), the
First Circuit Court of Appeals held that although a civil rights plaintiff who refused an
offer of judgment, and who later did not obtain a more favorable judgment, was required
to pay the defendants’ post-offer costs, the plaintiff did not have to pay the defendants’
post-offer attorneys’ fees. In arriving at this determination, the Court cited to the
Supreme Court’s ruling in Marek, and stated, “Rule 68 was intended to refer to all costs
properly awardable under the relevant substantive statute or other authority.” Thus, the
Court concluded that because the defendant was not entitled to attorneys’ fees as a
prevailing party under the applicable civil rights statute, he could not recover his
attorneys fees under the cost-shifting provisions of Rule 68. Similarly, in Harbor Motor
Company, Inc. v. Arnell Chevrolet–Geo, Inc., 265 F.3d 638 (7th Cir. 2001), the Seventh
Circuit concluded that a defendant who sought to recover attorneys’ fees when its offer
21
The undersigned recognizes that in comparing whether the Defendants’ offer
of judgment was better than the amount that Plaintiff Brandt actually recovered for
purposes of determining whether the Rule 68 cost shifting mechanism was triggered, the
undersigned included the attorneys’ fees to date in that calculation. However, the
attorneys’ fees amount was included based upon the Defendants’ language in the Offer
of Judgment which included “attorneys’ fees.” Thus, in order to properly assess the
value of the Offer of Judgment, the Plaintiffs’ attorneys’ fees necessarily had to be
included. That method of calculation however, does not expand the Rule 68 cost-shifting
provisions to automatically include the Defendants’ attorneys’ fees, where the
underlying substantive statute defines costs separately from attorneys’ fees, as in the
FLSA.
39
of judgment exceeded the judgment the plaintiff finally obtained at trial, was not entitled
to the requested fees. The Court noted that in order for a party to recover attorneys’ fees
under Rule 68, the party would still have to qualify as a prevailing party under the
substantive Copyright Act statute. The defendant in the case did not prevail at the trial,
and thus was not entitled to recover fees, as a part of costs under Rule 68. Id. at 647.
Accord Poteete v. Capital Engineering, Inc., 185 F.3d 804, 807 (7th Cir. 1999); Tunison v.
Continental Airlines Corp., Inc., 162 F.3d 1187, 1190 (D.C.Cir.1998); United States v.
Trident Seafoods Corp., 92 F.3d 855 (9th Cir.1996); E.E.O.C. v. Bailey Ford, Inc., 26 F.3d
570, 571 (5th Cir.1994); Lawrence v. Hinton, 937 F.2d 603 (4th Cir.1991); O'Brien v. City of
Greers Ferry, 873 F.2d 1115, 1120. 22
22
Although not cited by the Parties, the Court is aware that in Jordan v. Time Inc.,
111 F. 3d 102 (11th Cir. 1997) the Eleventh Circuit awarded Rule 68 post-offer attorneys’
fees to a Defendant. That case however is distinguishable from the case at bar. In
Jordan, which was a copyright infringement action, the Court determined that the
underlying substantive statute defined costs as including attorneys’ fees, unlike as
discussed above, in the instant case, where the FLSA defines attorneys fees as separate
from costs. In Utility Automation 2000. Inc. v. Choctawhatchee Electric Cooperative, Inc.,
298 F.3d 1238 (11th Cir. 2002), the Eleventh Circuit expressly declined to apply Jordan to
a cause of action where costs were not defined as including attorneys’ fees.
Moreover, the Jordan decision has been criticized by other circuits because,
despite the plaintiff in that action obtaining a less favorable judgment than the offer of
judgment, the Defendant none the less was not a prevailing party under any of the
statutes at issue, and thus arguably was not entitled to recover attorneys’ fees. See
Champion Produce Inc., v. Ruby Robinson Co., Inc., 342 F. 3d 1016 (9th Cir. 1003);
Harbor Motor Company, Inc. v. Arnell Chevrolet–Geo, Inc., 265 F.3d 638 (7th Cir. 2001);
Poteete v. Capital Engineering, Inc., 185 F.3d 804, 807 (7th Cir.1999); Tunison v.
Continental Airlines Corp., Inc., 162 F.3d 1187, 1190 (D.C.Cir.1998); United States v.
Trident Seafoods Corp., 92 F.3d 855 (9th Cir.1996); E.E.O.C. v. Bailey Ford, Inc., 26 F.3d
570, 571 (5th Cir. 1994); Lawrence v. Hinton, 937 F.2d 603 (4th Cir. 1991); O'Brien v. City
of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir. 1989); Crossman v. Marcoccio, 806 F.2d
329, 333–334 (1st Cir. 1986); Bruce v. Weekly World News, Inc., 203 F.R.D. 51, 56
(criticizing Jordan for interpreting “Rule 68 as providing a substantive gloss on the
provisions of the Copyright Act,” and “virtually compel[ling] copyright plaintiffs ... to
accept an Offer of Judgment no matter how meritorious may be their case, for fear of
resulting exposure to what are often, as here, substantial claims of attorneys’ fees”).
Obviously, this Court is bound to follow the narrow holding of Jordan; however, the
above criticisms lend support to the conclusion that Jordan should not be extended to
40
Further, even though the Defendants are entitled to recover their costs under Rule
68, that right does not convert the Defendants into a prevailing plaintiff for purposes of
obtaining attorneys’ fees, despite the Defendants’ argument to the contrary. The FLSA
requires a court to award attorneys’ fees to a prevailing Plaintiff. 29 U.S.C. § 216 (b)
(stating the court in such action 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). Thus, because the Defendants cannot possibly be considered
“prevailing plaintiffs” in this action, they are not entitled to the mandatory fee award
under the FLSA.
The Court also notes that in their original Motion for Attorneys’ fees, the
Defendants at least implicitly concede that they are not entitled to recover their
attorneys’ fees under Rule 68. Yet, in the Renewed Motion for Attorneys’ fees and their
Reply to that Motion, the Defendants seemingly retract from their earlier position by
failing to restate that concession in either of those filings (DE ## 169, 173).
Regardless of the position that the Defendants now take related to whether they
are entitled to recover attorneys’ fees pursuant to Rule 68, the undersigned concludes
that based upon Rule 68, the provisions of the FLSA, and the applicable case law, that
the Defendants’ are not entitled to recoup their attorneys fees pursuant to that Rule.
In addition, in Parkes v. Hall, 906 F.2d 658 (11th Cir. 1990), the Eleventh Circuit
held that under Rule 68 offer of judgment cost shifting provisions, the costs that a
defendant is entitled to are limited to those costs available under § 1920. Specifically,
the Court stated, “the costs which are subject to the cost-shifting provisions of Rule 68
apply to cases brought under the FLSA.
41
are those enumerated in 28 U.S.C. § 1920, unless the substantive law applicable to the
particular cause of action expands the general §1920 definition.” Id. at 660. It is clear
that attorneys’ fees are not costs under § 1920, and the FLSA does not expand the
definition of costs; and, thus the Defendants cannot recover attorneys’ fees, as such.
Finally, although in Kreager v. Solomon & Flanagan, P.A., 775 F. 2d 1541 (11th Cir.
1985), the Eleventh Circuit indicated that a prevailing FLSA defendant might be entitled
to recover his attorneys’ fees where a court found that an FLSA plaintiff had litigated in a
bad faith, vexatiously, wantonly manner or filed the suit for oppressive reasons, such an
award arises from the Court’s inherent power to assess attorneys’ fees, which is
discussed below, and is not based upon the Rule 68 cost-shifting provisions.
In sum, the Defendants are not entitled to recover their attorneys’ fees pursuant
to Rule 68.
2.
The Other Grounds for Sanctions Upon Which the
Defendants Rely Have Already Been Denied by this Court
The issues raised by the Defendants requesting the imposition of sanctions
pursuant to Rule 11 and 28 U.S.C. § 1927, related to the conduct of Plaintiff’s Counsel
during the course of this litigation have already been determined by this Court and
affirmed by the Eleventh Circuit Court of Appeals. Accordingly these same claims
cannot serve as a basis for awarding the Defendants’ attorneys’ fees and costs.
In this regard, although the Defendants are correct that the Court’s Order denying
the Defendants’ Motions for Judgment of Dismissal and Sanctions (DE # 132) did not
rule on the Rule 68 issues, the Order did definitively rule on any claims raised by the
Defendants which sought sanctions or an award of attorneys’ fees based upon Federal
42
Rule of Civil Procedure 11 or 28 U.S.C. § 1927.23 In addition, although the Defendants are
correct that the Court’s Order Abating the Parties’ Motions for Attorneys’ Fees Pending
Resolution of Appeal (DE # 163), permitted the Parties to refile their Motions seeking
attorneys’ fees upon the resolution of the cross-appeals, that Order did not reopen the
door for the Defendants to relitigate the issues related to sanctions, which was the very
issue on appeal to the Eleventh Circuit. Rather, those Orders contemplated that the
Parties could still pursue claims related to costs and attorneys’ fees predicated upon
FLSA entitlement and/or Rule 68's cost-shifting provisions. Thus, to the extent that the
Defendants seek to relitigate sanctions issues, their Motion must be denied.24
Simply put, the Defendants are not entitled to recover their attorneys’ fees
incurred in litigating this action.
23
The Court’s March 31, 2009 Order, stated, in relevant part,
In addition, Defendants describe their settlement efforts and offers of judgment
that were rejected. The motion does not, however, analyze any claim for recovery under
Federal Rule of Civil Procedure 68, which governs offers of judgment; and, any such
analysis would be premature since a final judgment has not yet been entered. Thus, the
argument regarding the offers of judgment is considered only in connection with the
other bases upon which sanctions are sought; to the extent that the motion is seeking a
separate recovery under this provision, the motion is denied without prejudice as
premature.
24
Even if the Court were to reconsider the previous denial of sanctions, the
same result would be reached for the reasons state in the prior Order. The Court finds
that the Defendants reliance on Trina Carlson v. Marc E. Bosem, 04-61004-CIV-ZLOCH,
for support of their arguments that they are entitled to recover attorneys' fees is
unavailing. Although in Carlson the Court examined whether an FLSA attorney should
have to pay opposing counsel’s attorneys’ fees pursuant to 28 U.S.C. § 1927, the Court
found that the proceedings were unnecessarily multiplied due to the contentious nature
of both of the litigants’ counsel, and thus ultimately determined that the court would not
award sanctions to the defendants. The undersigned reaches a similar conclusion in
this case. Thus, the determination that sanctions which award the Defendants
attorneys’ fees are not appropriate in this case is wholly consistent with the Carlson
holding. Accordingly, Carlson does not alter the Court’s determination that the
Defendants are not entitled to recover their attorneys’ fees in this action.
43
VII. CONCLUSION
Based upon the foregoing, and an entire review of the record, it is hereby
ORDERED and ADJUDGED that Plaintiffs’ Re-Filed and Verified Motion for
Attorney Fees and Costs (DE # 175) is GRANTED IN PART AND DENIED IN PART.
The Plaintiffs are awarded of attorneys’ fees in the amount of $19,123.35 and costs in the
amount of $1,072.00, for a total award in fees and costs of $20,195.35. It is further
ORDERED and ADJUDGED that the Defendants’ Renewed Motion for
Attorneys’ Fees (DE # 169) is GRANTED IN PART AND DENIED IN PART. The
Defendants are entitled to recover their costs incurred after June 8, 2007, for litigating
this matter, in the amount of $809.18.
DONE AND ORDERED in chambers, in Miami, Florida, on September 30, 2011.
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All counsel of record via CM/ECF
44
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