Arias v. Alpine Towing Inc. et al

Filing 164

ORDER granting in part and denying in part 116 Motion for Attorney Fees; granting in part and denying in part 157 supplemental motion for attorneys fees. Signed by Magistrate Judge John J. O'Sullivan on 9/15/2011. (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-20434-CIV-O’SULLIVAN
CONSENT CASE
FERNANDO ARIAS, and all others
similarly situated under 29 USC 216(B),
Plaintiff,
vs.
ALPINE TOWING, INC.,
LARRY J. SARAVIA
YULEXIS LLUVET
Defendants.
______________________________/

ORDER
This matter is before the Court on the Plaintiff’s Verified Motion for Attorney Fees
and Costs Pursuant to 29 USC 216(B) and Local Rule 7.3 (DE # 116, 3/11/11) and
Plaintiff’s Supplemental Fee and Cost Motion (DE # 157, 7/5/11). The parties jointly
consented to Magistrate Judge jurisdiction on all matters other than summary judgment
pursuant to 28 U.S.C. §636(c). (DE # 29, 7/12/10). Having carefully considered the
motions, the responses and the reply thereto, the court file and the applicable law, it is
ORDERED AND ADJUDGED that the Plaintiff’s Verified Motion for Attorney Fees and
Costs Pursuant to 29 USC 216(B) and Local Rule 73 (DE # 116, 3/11/11) and the
Plaintiff’s Supplemental Fee and Cost Motion (DE # 157, 7/5/11) are both GRANTED in
part and DENIED in part in accordance with this order and as more fully described
below.

BACKGROUND
The plaintiff filed this lawsuit pursuant to the Fair Labor Standards Act and in his
amended complaint alleges unpaid overtime wages, unpaid minimum wages and
retaliation. (DE # 8, 3/2/10). On February 25, 2011, a jury returned a verdict in favor of
the plaintiff on the unpaid minimum and overtime wage counts.
On March 11, 2011, the plaintiff filed their initial motion seeking $3,054.46 in
costs and $68,230.501 in fees (DE # 116). The defendant filed a response on June 17,
2011, (DE # 153) and on June 21, 2011, the plaintiff filed a reply (DE # 154). On July 5,
2011, plaintiff filed a supplemental fee and cost motion (DE # 157) seeking an
additional $12,199.00 in fees and $135.00 in costs. The defendant filed a response
and objection to the supplemental motion on July 19, 2011, (DE # 162).
ANALYSIS
I. Costs
The plaintiff is seeking costs pursuant to the Fair Labor Standards Act. Section
216 of the Fair Labor Standards Act directs the Court to award a prevailing plaintiff the
costs of the action. Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that
“costs other than attorneys' fees shall be allowed as of course to the prevailing party
unless the court otherwise directs.” A “prevailing party,” for purposes of the rule, is a
party in whose favor judgment is rendered. See Util. Automation 2000, Inc. v.
Choctawhatchee Elec. Coop., Inc., 298 F.3d 1238, 1248 (11th Cir. 2002); see also
Santana v. Blue Ribbon Meats, Inc., No. 02-21089-CIV, 2003 U.S. Dist. LEXIS 25642,
1

In the reply, the plaintiff agreed to reduce the fee request by $1,695.00 to
$66,535.50.
2

at *5 (S.D. Fla. July 3, 2003). This means the party who won at the trial level, whether
or not that party prevailed on all issues and regardless of the amount of damages
awarded. Choctawhatchee, 298 F.3d at p. 1248. The plaintiff prevailed in the present
case because the jury returned a verdict in his favor. The plaintiff is entitled to receive
all costs that are recoverable under 28 U.S.C. § 1920. Specific costs which may be
awarded are set forth in Rule 54, Fed. R. Civ. P., and 28 U.S.C. § 1920, which states:
A judge or clerk of any 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 § 1923 of this title;
(6) Compensation of court appointed experts, compensation
of interpreters, and salaries, fees, expenses, and costs of
special interpretation services under § 1828 of this title.
28 U.S.C. §1920. In the exercise of sound discretion, trial courts are accorded great
latitude ascertaining taxable costs. However, in exercising its discretion to tax costs,
absent explicit statutory authorization, federal courts are limited to those costs

3

specifically enumerated in 28 U.S.C. § 1920. See EEOC v. W&O, Inc., 213 F. 3d 600,
620 (11th Cir. 2000).
In Glenn v. General Motors Corp., 841 F.2d 1567 (11th Cir. 1988), the Eleventh
Circuit did not extend the costs recoverable under the Fair Labor Standards Act beyond
those costs recoverable under 28 U.S.C. § 1920. See Glenn, 841 F.2d at 1575. The
plaintiff in this case is only entitled to recover those costs he would be entitled to under
28 U.S.C. § 1920. The plaintiff seeks to recover a total of $3,189.46 in costs, which is
comprised of a request for $3,054.46 in the initial motion and $135.00 in the
supplemental motion.2
A. Filing Fee and Fees for Service
The plaintiff seeks to recover $350.00 for the filing fee of the complaint and
$450.00 for service fees for depositions and trial. (DE # 116, 3/11/11). Additionally the
plaintiff seeks to recover $100 for the issuance of the writ of garnishment and $35 for
service of the writ of garnishment. (DE # 157, 7/5/11). These costs are permitted
under 28 U.S.C. § 1920(1). The defendant does not object to these costs. The
undersigned finds that the plaintiff is entitled to receive $935.00 for these costs.
B. Court Reporter Fees
The plaintiff requests $1,526.44 in costs for court reporters in this matter. (DE #
116, 3/11/11); (DE # 154, 6/21/11). These costs are permitted under 28 U.S.C. §
1920(2) if the printed or electronically recorded transcripts were necessarily obtained for

2

Pursuant to the undersigned’s calculations, the costs sought and documented in
the initial motion only total $2,821.44, which is $233.02 less than requested.
4

use in the case. The defendants object on the basis that the depositions were
investigatory and thus not taxable. (DE # 153, 6/17/11). The undersigned finds that the
aforementioned depositions were necessarily obtained for use in the case because
each of the witnesses testified during the trial. (DE # 93, 2/22/11; DE # 95, 2/23/11).
The undersigned finds that the plaintiff is entitled to receive $1,526.44 for these costs.
C. Interpreter Fees for Depositions
The plaintiff requests $170.00 (2 hours at $85.00 per hour) for the use of
interpreters at depositions in this matter. Interpreter fees are permitted under 28 U.S.C.
§ 1920(6). The defendants object on the grounds that not all courts allow recovery for
privately retained interpreters and the rate requested for interpreters “exceeds the
public rates adopted by the Twentieth Judicial Circuit’s Indigent Services Committee for
Spanish interpreters ($50 per hour for skilled interpreter / $60 per hour for qualified
interpreter).” (DE # 153, 6/17/11). The undersigned finds that costs of interpreters are
reasonable and recoverable and the plaintiff is entitled to receive $170.00 for these
costs.
D. Mediation
In addition to the costs recoverable under 28 U.S.C. § 1920, the plaintiff seeks to
recover $325.00 for mediation expenses on the ground that mediation was required
during the pretrial phase of this case. Even though the defendant does not object,
reimbursement for costs associated with mediation is not expressly permitted under 28
U.S.C. § 1920, and should not be awarded. See Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 441, 107 S. Ct. 2494, 2497 (1987). The undersigned finds that the
5

plaintiff is not entitled to recover costs associated mediation.
In sum, the plaintiff’s cost request should be reduced by $558.02 ($325.00 for
the mediation and $233.02 for costs that are not elaborated on in the motion). The
undersigned finds that the plaintiffs is entitled to be awarded costs in the amount of
$2.631.44.
II. Attorney’s Fees
A. Entitlement to Attorney’s Fees
The Fair Labor Standards Act clearly provides for the recovery of attorney’s fees
for a prevailing plaintiff, see 29 U.S.C. § 216(b). The plaintiff prevailed in this case and
is entitled to receive attorney’s fees.
B. Amount of Fee Award
Having determined that the plaintiff is entitled to an award of attorney’s fees
incurred in connection with the prosecution of this lawsuit, the undersigned next
addresses the appropriate amount of that fee award. In calculating a reasonable
attorney’s fee award, the court must consider the number of hours reasonably
expended on this litigation, together with the customary fee charged in this community
for similar legal services. See Henesley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933
(1983); Loranger v. Stierheim, 10 F.3d 776 (11th Cir. 1994). These two figures are then
multiplied together, resulting in a sum commonly referred to as the “lodestar”. Under
certain circumstances, the lodestar may be adjusted in order to reach a more
appropriate attorney’s fee. See Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541,

6

1544 (1984).
1. Reasonable Hourly Rate
The Court must first evaluate plaintiff’s requested fee in terms of the appropriate
hourly rate. In order to determine a reasonable and proper fee award, the court must
consider the number of hours expended on the case together with the customary hourly
fees charged in this community for similar services. See Norman v. Housing Authority
of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The Supreme Court has
held that a reasonable hourly rate is to be measured by “prevailing market rates in the
relevant community.” Blum v. Stenson, 465 U.S. at 895. In determining the prevailing
market rates the Court should consider several factors including “the attorney’s
customary fee, the skill required to perform the legal services, the attorney’s
experience, reputation and ability, the time constraints involved, preclusion from other
employment, contingency, the undesirability of the case, the attorney’s relationship to
the client, and awards in similar cases.” Mallory v. Harkness, 923 F.Supp. 1546, 1555
(S.D. Fla. 1996), citing, Dillard v. City of Elba, 863 F.Supp. 1550, 1552 (M.D.Ala.
1993).
The plaintiff requests an hourly rate of $325.00 for J.H. Zidell, $300.00 for David
Kelly, $175.00 for Daniel Feld for his work done until December 31, 2010, and $215.00
for his work thereafter, and $150.00 for Isaac Mamane. The defendants object to the
hourly rates requested by J.H. Zidell, David Kelly, Daniel Feld, and Isaac Mamane as
excessive. The defendants “urge the court to severely pare down the rate requested for
each of plaintiff’s attorneys.” (DE # 153, 6/17/11). The defendants emphasize that Mr.
7

Zidell was admitted to the Florida Bar in 1994 and is not board certified in Labor and
Employment law. The defendants also emphasize that Mr. Kelly was admitted to the
Florida Bar in 1997 and that Mr. Feld was admitted in 2007. Id.
Generally, acceptable proof of the market rate may be comprised of testimony
and direct evidence from other legal practitioners in the relevant legal community who
are familiar with the type of legal service provided and the prevailing market rate for
such work. Norman, 836 F.2d at 1299. Furthermore, the court may make a fee award
based on its own experience where documentation and testimony is inadequate or the
fees claimed seem expanded. Norman, 836 F.2d at 1303 citing Davis v. Board of
School Commissioners of Mobile County, 526 F.2d 865, 868 (5th Cir. 1976). In Reis v.
Thierry’s Inc., No. 08-20992-Civ-Turnoff, a Fair Labor Standards Act case, hourly rates
of $330.00 per hour for Mr. Zidell, $300.00 per hour for Mr. Kelly, $175.00 for Mr. Feld,
and $150.00 per hour for Mr. Mamane were found to be reasonable and similar to the
rates charged by similarly experienced, skilled and educated attorneys in the South
Florida area. Additionally, in Silva v. Miller, 547 F. Supp. 2d 1299 (S.D. Fla. 2008), also
a Fair Labor Standards Act case, the Court awarded hourly rates of $330.00 per hour
for Mr. Zidell and Mr. Kelly, and an hourly rate of $137.50 for the junior associates.
Having considered and weighed the evidence, counsels’ reputation and experience in
the areas of the applicable law and the Court’s familiarity with FLSA litigation and
attorneys’ fees in general, the undersigned finds that hourly rates of $325.00 for J.H.
Zidell, $300.00 for David Kelly, $175.00 for Daniel Feld, and $150.00 for Isaac
Mamane, are reasonable.

8

2. Hours Reasonably Expended
The Court must next evaluate the plaintiff’s requested fee for reasonableness in
terms of the total hours expended by plaintiff’s counsel. The total fee request by the
plaintiff made in the initial motion after the agreed to reduction of $1,695.00, is for
$66,535.50. The Supplemental Motion further requests $12,199.00 in fees. The
plaintiff supports his motion by submitting itemized time sheets.
The defendant seeks to reduce the amount of requested attorneys fees. The
defendant argues that the fees amount should be reduced due to the plaintiff’s limited
success, inefficient staffing, unreasonable amounts of time taken on specific tasks and
reimbursement requests for clerical and administrative tasks. The defendant states that
inefficient staffing is evident in the duplication of effort, more than one attorney working
on the same task, and senior attorneys doing work more suited for attorneys with less
experience. The defendant also argues that the Court should not award fees
associated with administrative tasks. The defendant further argues that a reduction of
hours is warranted for ten specific billing entries due to the amounts being “inordinately
exorbitant.” (DE # 153, 6/17/11).
This Court must exercise independent judgment when reviewing a claim for
hours reasonably expended. See Norman, 836 F.2d 1292, 1301-02 (11th Cir. 1988). It
is important to keep accurate and current records of work done and time spent on a
case, especially when a third party, i.e., someone other than the client, may pay the
bills. See Hensley, 461 U.S. at 437. “Attorneys who anticipate making a fee application
must maintain contemporaneous, complete and standardized time records which
9

accurately reflect the work done by each attorney.” National Ass’n. of Concerned
Veterans v. Secretary of Defense, 675 F.2d 1319, 1327 (D.C. Cir. 1982). It is
necessary for attorneys to identify the subject matter of his/her time expenditures.
Hensley, 461 U.S. at 437. If there is inadequate documentation or if the court finds a
claim for hours to be “excessive or unnecessary”, the court may reduce the number of
hours for which fees will be awarded. Florida Patient’s Compensation Fund v. Rowe,
472 So.2d 1145, 1150 (Fla. 1985); see also Loper v. New York city Police Dep’t, 853
F.Supp. 716, 721 (S.D.N.Y. 1994) (“where adequate contemporaneous records have
not been kept, the court should not award the full amount requested”).
Because the fees requested are voluminous, this 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 rule in Loranger differs from the rule
articulated in Norman. Trujillo, 229 F. Supp. at 1375. “The earlier decision in Norman
requires the district court to specifically identify any disallowed, non-compensable
hours, and to further explain why the hours are being disallowed.” Id. (citing Norman,
836 F. 2d at 1304).
Reductions in the amount of requested fees are warranted in accordance with
the following list and for the reasons stated below. First, the tasks were performed by
more than one attorney. Second, there are a considerable amount of charges for
administrative tasks and review of filings, such as receipt and review of

10

correspondence, that do not take the requested hours to complete. Therefore, the
undersigned finds that a 10% reduction of attorneys’ fees in both the original and
supplemental motion is appropriate. A 10% reduction of the $66,535.50 requested in
the initial motion results in a reduction of $6,653.55, for an award of $59,881.95 from
the initial motion. A 10% reduction of the $12,199.00 requested in the supplemental
motion results in a reduction of $1,219.90, for an award of $10,979.10 from the
supplemental motion. $59,881.95 plus $10,979.10 equals a total fee award of
$70,861.05.
The defendant also asserts that the plaintiff’s recovery of fees should be further
reduced because of its limited success. (DE #153, 6/17/11). The defendant argues
that as a result of the plaintiff not prevailing on the retaliation claim, the jury not finding
that the defendants’ actions were willful, and obtaining an award of less than the
amount proffered in the statement of claim, this Court should only allow for a partial
recovery of attorneys’ fees. The plaintiff is not required to prevail on all claims in order
to awarded full recovery of attorneys’ fees. In Hensley, the Supreme Court stated that
“the fee award should not be reduced simply because the plaintiff failed to prevail on
every contention raised in the lawsuit.” Hensley, 461 U.S. at 435. The plaintiff’s
retaliation and willfulness claims were intertwined with the wage hour case. The jury
returned a verdict in favor of the plaintiff for unpaid minimum and overtime wages. The
recovery of fees should not be reduced because of the plaintiff’s partial success.
ORDERED AND ADJUDGED that the Plaintiff’s Verified Motion for Attorney
Fees and Costs Pursuant to 29 USC 216(B) and Local Rule 7.3 (DE # 116, 3/11/11) be

11

GRANTED in part and DENIED in part and the Plaintiff’s Supplemental Fee and Cost
Motion be GRANTED in part and DENIED in part and the plaintiff be awarded a total of
$70,861.05 in fees and $2,631.44 in costs.
DONE AND ORDERED at the United States Courthouse, Miami, Florida this 15th
day of September, 2011.

____________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies to:
All counsel of record

12