Estrada et al v. Alexim Trading Corp.
Filing
108
ORDER Granting, in Part 101 Plaintiff's Motion for Award of Fees and Costs; and Denying 103 Defendant's Motion to Strike. Signed by Magistrate Judge Andrea M. Simonton on 9/26/2012. (mmn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-23696-CIV-SIMONTON
RAUL ESTRADA, et al.,
Plaintiffs,
vs.
ALEXIM TRADING CORP.,
Defendant.
/
ORDER GRANTING, IN PART, MOTION FOR FEES AND COSTS
AND DENYING CROSS-MOTION TO STRIKE
Presently pending before the Court is the Plaintiff’s Motion for Award of Fees and
Costs (DE # 101). The Defendant has filed a Response, which contains a cross-Motion to
Strike (DE # 102), and the Plaintiff has filed a Reply (DE # 105). This matter was referred
to the undersigned United States Magistrate Judge for final disposition based upon the
consent of the parties (DE # 100). The undersigned has reviewed the record and, for the
reasons stated below (a) grants, in part, the Plaintiff’s Motion for Award of Fees and
Costs, and awards the Plaintiff $23,509.40, which represents $22,351.00 in attorney’s
fees, and $1,158.40 in costs; and (b) denies Defendant’s cross-Motion to Strike.
I.
CASE BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Felix Velez1 alleges that he was a cargo truck driver for Defendant Alexim
Trading Corp. (“Alexim”), which is a cargo agent (DE # 74). Felix Velez brought his twocount Second Amended Complaint against Alexim for violations of the Fair Labor
Standards Act, 29 U.S.C. §§ 201 to 219 (the “FLSA”) (DE # 39). Under Count I, Plaintiff
complains that he worked an average of five hours per week of overtime without being
1
The only remaining claims for attorneys’ fees concern Plaintiff Felix Velez since the
other original Plaintiffs have already settled their claims.
paid at the proper overtime rate. Velez also asserts that Defendant failed to keep proper
time records, as required by the FLSA. Under Count II, Velez seeks damages for
retaliation, alleging that he was terminated from his employment after he complained of
the overtime violations. In his Statement of Claim, Plaintiff Velez initially reported
$6,260.80 in “Lost Wages,” $22,084.80 in “Difference in Pay,” and $722.40 in “Unpaid
Overtime” (DE # 4 at 5).
In Defendant’s Amended Answer and Affirmative Defenses (DE # 80), Defendant
denies that Plaintiff is entitled to any relief. Defendant asserts several affirmative
defenses, including that it is exempt from overtime payments to Plaintiff under the FLSA
due to the Motor Carrier Exemption, 29 U.S.C. § 231(b)(1) (DE # 80 at 2-3). Additionally, in
Defendant’s Response to Plaintiff Velez’s Statement of Claim, Defendant asserts that
Velez was overpaid $1,381.94 in 2008, never raised any complaint regarding his overtime
wages, and was ultimately terminated for cause (DE # 19 at 4-5).
This case originally included the claims of several other Plaintiffs, which have all
been settled (or remanded to state court). The original Complaint was brought in Florida
state court in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida,
General Civil Division, by Plaintiff Raul Estrada (DE # 1-2), and the First Amended
Complaint (in state court) added Plaintiffs Gildardo Ramirez and Felix Velez (DE # 1-4).
Defendant removed the case to this Court (DE # 1). At a settlement conference, Plaintiffs
Estrada, Ramirez and Marcial Ferreiro (who had filed a Notice of Consent to join the
action, DE # 10) settled their FLSA claims – and Plaintiff Estrada’s remaining worker’s
compensation claim was remanded to state court – leaving Plaintiff Velez’s FLSA claim
standing in the case (DE ## 22, 23).
Thereafter, Antonio Tobenus and Julio Mesias filed Notices of Consent to join
Velez’s action (DE ## 26, 27), and Plaintiffs filed the Second Amended Complaint,
described above. The Court required Statements of Claim from the newly added
2
Tobenus and Mesias (DE # 42), and a second settlement conference was held, at which
Tobenus and Mesias settled their claims (DE ## 54, 57). A subsequent mediation was
unsuccessful (DE # 63), as was Defendant’s Motion for Summary Judgment (DE # 74),
and its related Motion for Reconsideration (DE # 79). A couple weeks before the trial set
in this case, the parties’ settled Velez’s claims, except for the matter of attorneys’ fees
and costs, which is now before the Court (DE # 100).
II.
ATTORNEYS’ FEES
A.
The Parties’ Positions
1. Plaintiff’s Position
At the outset, the Plaintiff states that he is entitled to his reasonable attorneys’
fees and costs as a prevailing party under the provisions of the FLSA, and that
Defendant has so stipulated. Thus, Plaintiff continues, the only issue to resolve is the
appropriate amount of fees and costs (DE # 101 at 1-2).
Accordingly, Plaintiff focuses on calculating the correct amount. With regard to
attorneys’ fees, Plaintiff argues that the amount is determined by multiplying a
reasonable hourly rate by the number of hours reasonably expended, with subsequent
appropriate adjustments, based upon several factors. In particular, Plaintiff argues that
his success should be taken into consideration; he received a significant recovery,
despite Defendant’s assertion that Plaintiff’s claims had no merit (DE # 105 at 7). In
addition, Plaintiff argues that Defendant was litigious, moving for summary judgment and
reconsideration thereof, and amending its affirmative defenses after the discovery
deadline (DE # 105 at 7).
As for the total number of hours expended, Plaintiff attaches to his Motion his
billing records, which he argues “is evidence of considerable weight” in determining the
number of reasonable hours. The records total 109.60 hours of attorney time and 31.50
hours of paralegal time (DE # 101 at 3-4). While Ms. Gonzalez’s time records fail to
3
specify the date on which tasks were conducted (only the month), Plaintiff contends that
each of the identified tasks were conducted on a single day in a given month (DE # 105 at
5). Plaintiff’s counsel rejects Defendant’s contention that the entries represent
duplicative billing, arguing, instead, that counsel has avoided duplicative billing
opportunities by only recording one timekeeper’s time for activities involving multiple
timekeepers (DE # 105 at 6).
With regard to a reasonable hourly rate, Plaintiff seeks a rate of $450.00 for
Lawrence J. McGuinness, Esq., $300.00 for Juliana Gonzalez, Esq., and $90.00 for a
paralegal’s work. In support of these rates, Plaintiff asserts that Mr. McGuinness has
handled over 500 FLSA claims in 22 years, and that Ms. Gonzalez began practicing law in
Colombia in 2002, and in Florida in 2008. Plaintiff calculates the requested fees at the
rates and hours above and arrives at $45,630.00 as a total (DE ## 101 at 5-7; 105 at 4).
Responding to Defendant’s contention that the requested rates are too high, Plaintiff
asserts that cases cited by Defendant that awarded lower rates are out of date (being two
or three years old) (DE # 105 at 4). Responding to Defendant’s objection as to Ms.
Gonzalez’s rate, counsel states that she has served as lead counsel in trial about a halfdozen times and has acted as second chair in about 15 other trials in two years (DE # 105
at 5).
As a procedural matter, Plaintiff asserts in his Reply that counsel conferred with
defense counsel regarding the Motion sufficient to satisfy the conferral requirement of
S.D. Fla. L.R. 7.1(a)(3). Specifically, Plaintiff contends that conferral regarding the
matters raised in the Motion began and continued through settlement negotiations, and
included a follow-up exchange with Defendant after the Motion, itself, had been drafted
and provided to defense counsel (DE # 105 at 1).
Thus, Plaintiff seeks a fees award totaling $45,630.00.
4
2.
Defendant’s Position
Defendant seeks to strike or, alternatively, significantly reduce the amount of
requested fees and costs, due to perceived procedural defects and substantive issues
(DE # 101 at 1, 3). At the outset, Defendant takes issue with the disparity between the
estimate of fees represented to Defendant during settlement negotiations, and those
sought by Plaintiff in his Motion. Defendant points out that, as a material term of the
settlement, Defendant retained the right to contest the amount of fees and costs because
the Court had made no finding as to liability (DE # 102 at 2). Defendant complains that
Plaintiff’s expected total request for attorneys’ fees, represented to Defendant near the
time of settlement, was significantly less than the amount of fees requested in Plaintiff’s
Motion. Specifically, Defendant claims that Plaintiff represented during settlement
negotiations, possibly as an inducement to settle, that Plaintiff’s expected attorneys’ fees
through that time would be about $21,000.00, and that fees estimated shortly thereafter
(as stated in the Joint Pretrial Stipulation) was $25,000.00 to 35,000.00 (DE # 102 at 1-2).
Defendant states that its decision to settle was a business decision, not an admission of
liability, since Defendant believes its case was “relatively strong.” Defendant further
states that, had Plaintiff represented the approximate request of $45,000.00 during
settlement talks, “Defendant may well not have settled this matter” (DE # 102 at 2-3).
As a procedural matter, Defendant also complains that Plaintiff failed to confer
with Defendant regarding his Motion, as required by S.D. Fla. L.R. 7.1 (DE # 102 at 2).
While Plaintiff asked for comment on the Motion, Defendant contends, no meaningful
conferral took place, beyond Defendant’s questioning why the requested amount was
significantly greater than the amount represented during settlement negotiations (DE #
102 at 4). For Plaintiff’s alleged multiple procedural failures, Defendant argues that the
Motion should be stricken, or the amount requested significantly reduced (DE # 102 at 45).
5
On the merits, Defendant objects to the rate calculations. Defendant takes issue
with the allegedly unreasonable rates sought by the attorneys. Defendant contends that
Mr. McGuinness, himself, recently requested a rate of only $350.00 in another FLSA case.
Defendant points out that Plaintiff’s counsel have presented no evidence for the rates
they seek, and Plaintiff’s counsel have the burden to do so (DE # 102 at 6-7). Based upon
cases citing alternative rates, Defendant suggests that a rate of $325.00 for Mr.
McGuinness and $175.00 for Ms. Gonzalez is more appropriate (DE # 102 at 7).
Defendant also objects to the presented time entries. First, Defendant argues that
Plaintiff has failed to provide sufficient detail of counsel’s time entries in order for
Defendant and the Court to properly analyze their reasonableness. Specifically,
Defendant seeks summary detail and, with respect to Ms. Gonzalez, the dates (as
opposed to only the months) for billed activities (DE # 102 at 7-8). Second, Defendant
asserts that Plaintiff’s counsel does not appear to have used “billing judgment” in
reviewing the invoiced activities perhaps, in part, because of a contingency agreement
with Plaintiff that would allegedly make a careful review of invoices by Plaintiff’s counsel
less likely. Accordingly, Defendant seeks a blanket 30% reduction for “Plaintiff’s
potential overstatement and otherwise suspicious billing practices” (DE # 102 at 9).
Next, Defendant presents additional criticisms of counsel’s billing methods.
Specifically, Defendant objects to Plaintiff’s use of “block billing,” which allegedly
groups together disparate activities and prevents a careful analysis of the time devoted
to each. Defendant performs an analysis of counsel’s time records, which Defendant
attaches to its Response, and argues that Plaintiff’s request should be reduced by
$12,300.00 due to block billing (DE # 102 at 9). Finally, Defendant argues that the fees
request should be reduced by $3,954.00 for unrecoverable administrative tasks and
$10,671.00 for redundant, excessive or otherwise unnecessary billing (DE # 102 at 9-10).
6
Defendant’s total suggested reductions would result in 36.4 hours for Mr.
McGuinness, 30.2 for Ms. Gonzalez, and 5.0 for a paralegal, totaling $17,565.00 in fees.
With an additional 30% reduction for “potential overstatement and otherwise suspicious
billing practices,” Defendant arrives at a total of $12,295.50 for fees (DE # 102 at 10-11).
B.
Entitlement to Fees
Title 29 U.S.C. § 216(b) authorizes a prevailing plaintiff in an FLSA case to recover
attorneys’ fees and costs. In order to be a prevailing plaintiff, a plaintiff must only
“obtain some relief on the merits of his claim,” which can arise from a judgment on the
merits as well as a favorable enforceable settlement agreement. See Buckhannon Bd.
and Care Home, Inc., v. West Virginia Dept. of Health and Human Services, 532 U.S. 598,
604 (2001) (finding prevailing party where plaintiff obtained relief through consent decree
or judgment, since both are “court ordered changes in the legal relationship between the
plaintiff and the defendant”); Farrar v. Hobby, 506 U.S. 103, 111 (1992) (in 42 U.S.C. §
1983 action, stating that a plaintiff can be a prevailing party by obtaining judgment or
comparable relief through a consent decree or settlement); see Texas State Teachers
Ass’n v. Garland Independent School District, 489 U.S. 782, 792 (1989); Maher v. Gagne,
448 U.S. 122, 129 (1980).
In this case, the Court referred all remaining matters to the undersigned for
resolution, noting that the parties stated at the hearing held before the Court on February
1, 2012, that they had settled Plaintiff Velez’s claims (DE # 100). The Defendant further
states that Plaintiff has obtained a $9,000 payment from Defendant to settle his claims
(DE # 102 at 3). Thus, Plaintiff has obtained monetary relief in exchange for settling his
claims through a formal settlement. In addition, although Defendant’s Response
disputes whether Plaintiff is entitled to any fees based upon procedural arguments, the
Defendant does not dispute that the Plaintiff is a prevailing party in this action.
7
Therefore, the undersigned finds that the Plaintiff is entitled to recover his reasonable
attorney’s fees and costs as the prevailing party.
C.
Procedural Challenges to Plaintiff’s Motion for Fees
Defendant’s Response includes a Motion to Strike, which seeks to strike Plaintiff’s
Motion based upon various procedural failures. Specifically, Defendant states that, due
to Plaintiff’s failure to adhere to Southern District of Florida Local Rule 7.1(a)(3),
Plaintiff’s Motion should be stricken. Defendant raises additional arguments that are
procedural in nature, that the undersigned considers below.2
1.
Pre-Filing Conferral
First, Defendant moves to strike based upon Plaintiff’s failure to adhere to the prefiling conference requirement of Southern District of Florida Local Rule 7.1(a)(3). In his
Motion, Plaintiff certifies that he conducted a pre-filing conference (DE # 101 at 8).
Plaintiff also states that negotiations regarding an appropriate fee award originally began
during settlement negotiations of Plaintiff’s claims (DE # 105 at 1). Defendant, on the
other hand, states that the parties had not yet “meaningfully” conferred (DE # 102 at 4).
Specifically, Defendant asserts that the parties had exchanged emails regarding the
alleged increase in fees requested from the time of settlement to the time of the Motion,
but had not yet otherwise conferred regarding the fees sought in the Motion.
Southern District of Florida Local Rule 7.1(a)(3) provides that failure to confer
“may” provide cause for denial of a Motion or other action. In this instance, the
undersigned declines to exercise this discretion. While the undersigned regularly
encourages parties to narrow their disputes prior to seeking relief from the Court, the
parties’ filings make clear that some good faith discussions regarding attorneys’ fees
had already taken place, and that the disparity between the parties’ positions was
2
Alternative to striking the Motion, Defendant seeks to significantly reduce the requested
fees award, as described in greater detail later in this Order.
8
significant. Thus, while additional discussions could have been marginally fruitful, the
undersigned finds it expedient at this stage to deny Defendant’s Motion to Strike on this
basis in order to consider other procedural challenges or move on to the merits of
Plaintiff’s Motion.
2.
Disparity Between Estimated and Requested Fees
Defendant also moves to strike Plaintiff’s Motion due to the alleged disparity
between Plaintiff’s estimated fees, as represented during settlement negotiations, versus
the fees requested in Plaintiff’s Motion. Defendant does not explicitly identify this
argument as a procedural challenge to Plaintiff’s Motion but, nonetheless, argues that
Plaintiff’s request for more than $45,000.00 is “improper” where counsel days earlier
allegedly represented that fees were about $21,000.00 (DE # 102 at 1). Plaintiff does not
respond to this argument.
At the outset, the undersigned recognizes a general policy that protects the
confidentiality of statements exchanged during settlement negotiations. See, e.g.,
Bedoya v. Aventura Limo. & Transp. Serv., Inc., No. 11-24432-CIV, 2012 WL 1828066, at
*16 (S.D. Fla. May 16, 2012) (making reference to the “strong policy in favor of the
confidentiality of the medium of the settlement negotiation itself”). This general policy
promotes parties’ openness to engaging in discussions to effectively and efficiently
resolve their own disputes. Thus, absent a showing as to why the Court should stray
from a general policy of protecting statements exchanged during settlement
negotiations, the Court will not consider representations regarding matters made for
purposes of settlement.
In this case, Defendant simply states that Plaintiff’s actions are “improper.” In
addition, while Defendant complains that it entered into a settlement based upon an
understanding of estimated attorneys’ fees, Defendant does not go so far in its Motion as
to claim that, therefore, no settlement is in effect. Relatedly, Defendant has not sought
9
relief from the Court to set aside the parties’ settlement or otherwise reevaluate the
parties’ settlement agreement. Thus, on the record before the Court, this case has
settled, and the parties have remaining for the Court’s resolution the appropriate amount
of attorney’s fees. Any settlement representations will not be considered in determining
the amount of fees owing Plaintiff’s counsel. Therefore, to the extent Defendant’s Motion
to Strike seeks to strike Plaintiff’s Motion based upon these alleged changes in estimated
fees, the Motion is denied. The undersigned, however, can consider Plaintiff’s
representation as found in the Joint Pretrial Stipulation, which states that the estimated
amount of fees due to Plaintiff as a prevailing party would be $25,000.00 to $30,000.00
(DE # 88 at 5).
3.
Attorney Gonzalez’s Billing Records
As an apparent procedural challenge to the billed hours documented by Ms.
Gonzalez, Defendant asserts that, because the billing records list activities by month
instead of by day, the records “suggest that [Ms. Gonzalez] may not have kept
contemporaneous time records.” Defendant seems to request as relief that the “Court
should be advised of this fact and should reduce the amount of Ms. Gonzalez’s
attorney’s fees…accordingly” (DE # 102 at 8). Plaintiff responds that there is no
requirement to identify tasks by day (as opposed to month) in the records presented to
the Court, and that the tasks identified in Ms. Gonzalez’s records were each performed
on a given day. Plaintiff further represents that daily records are available but have not
been provided.
The undersigned finds that counsel’s decision to submit monthly records do not
necessarily preclude a review of Ms. Gonzalez’s time. As described below, however,
counsel shoulders the burden of providing records sufficient to determine reasonable
hours expended. In this respect, as relevant to the discussion in the section below
analyzing reasonable hours expended, any analysis of Ms. Gonzalez’s time is
10
complicated by the way in which she has kept and provided records. While Plaintiff has
offered to present additional documentation, those records are not before the Court.
Nonetheless, the records provided do not wholly preclude the Court’s analysis. Thus,
while the relief Defendant seeks with regard to this issue is unclear, to the extent that
Defendant moves to strike Ms. Gonzalez’s requested fees based upon the records
presented, the Motion to Strike is denied. To the extent Defendant simply seeks to
reduce hours “accordingly,” the undersigned is uncertain, beyond the general analysis
of reasonable hours expended that is presented below, as to the relief Defendant seeks;
and, thus, the Motion to Strike is denied on that basis as well.
D.
The Lodestar Method of Calculating Reasonable Attorneys’ Fees
Under the lodestar method applied by the courts in the Eleventh Circuit, attorneys’
fees are calculated by multiplying a reasonable hourly rate by a reasonable number of
hours expended. Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.
1988). 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 Barnes, 168 F.3d at
427.
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
11
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)).
1.
Reasonable Hourly Rate
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.” Norman, 836 F.2d at 1303.
In the Plaintiff’s Motion for Award of Fees and Costs, the Plaintiff requests that the
Court compensate Mr. McGuinness at an hourly rate of $450.00, Ms. Gonzalez at an
hourly rate of $300.00, and a paralegal at an hourly rate of $90.00 (DE # 101 at 7). In
support of these rates, as noted above, Plaintiff briefly describes the experience of these
attorneys and reject the cases cited by Defendants (awarding lower rates) as being out of
date. Plaintiff further states that the prevailing hourly rate for attorneys who handle
FLSA cases in this market ranges from $300.00 to $550.00. Plaintiff adds that the Court’s
past experience is the most important factor in setting an hourly rate that fully
compensates attorneys who have been effective advocates (DE # 101 at 6).
Defendant challenges counsel’s requested rates (DE # 102 at 6-7). At the outset,
Defendant claims that Plaintiff has the burden of establishing the appropriate hourly rate
and has failed to carry this burden. Specifically, Plaintiff’s counsel has filed no affidavit
and has provided no other evidence for the claim that the prevailing rate ranges from
$300.00 to $550.00, including any case law. Instead, Defendant asserts, relevant local
12
case law suggests the range is from $300.00 to $350.00 for the most experienced
attorney on a given FLSA case. In addition, Defendant contends that Plaintiff’s counsel
has provided no proof that any of counsel’s clients has ever paid counsel at this rate. In
fact, Defendant continues, Mr. McGuinness, himself, requested an hourly rate of $350.00
in a motion for fees decided in July 2010 (citing Machado v. Da Vittorio, LLC, No. 0923069-CIV, 2010 WL 2949618 (S.D. Fla. July 26, 2010)). With regard to Ms. Gonzalez,
Defendant suggests a significantly lower rate is appropriate, citing a case in which a
junior attorney on an FLSA case with one year more of experience in the Florida Bar than
Ms. Gonzalez was awarded $137.50 as an hourly rate. In conclusion, Defendant contends
that hourly rates of $325.00 for Mr. McGuinness and $175.00 for Ms. Gonzalez are
appropriate (DE # 102 at 6-7). Defendant does not challenge the requested hourly rate of
$90.00 for a paralegal’s time.
At the outset, the undersigned notes that Plaintiff has the burden of establishing a
reasonable rate, and Plaintiff has failed to establish that the requested rates are
reasonable. At most, the Motion and Reply simply establish the respective experience
levels attributable to Plaintiff’s counsel. Counsel’s unsubstantiated claim of a prevailing
rate ranging from $300.00 to $550.00 is unavailing. Moreover, counsel fails to justify their
respective positions in this wide range, other than, presumably, their reference to their
experience levels. To the extent Plaintiff’s counsel addresses adverse case law raised by
Defendant, the undersigned is not persuaded by counsel’s response that the cited cases
are a couple years old, along with the conclusory statement that “[it] is reasonable to
expect that Mr. McGuinness’s hourly rate is now higher than then,” especially given the
current legal market conditions.
Thus, the Court turns to its own experience to determine reasonable hourly rates.
With regard to Mr. McGuinness, Defendant suggests an hourly rate of $325.00. As the
undersigned noted in Brandt v. Magnificent Quality Florals Corp., 2011 WL 4625379, No.
13
07-20129, at *8 (S.D. Fla. Sept. 30, 2011), this particular rate (which was uncontested in
Brandt) is at “the upper end of reasonableness” for an experienced lead counsel in an
FLSA case in this market. In suggesting this rate, however, Defendant appears to accept
this rate as reasonable for Mr. McGuinness, who is admittedly an experienced lead
attorney in FLSA matters. The undersigned finds no basis for adjusting the suggested
rate in favor of Mr. McGuinness; the case did not raise unusual issues for an FLSA case,
nor did the case otherwise appear to present atypical circumstances. Thus, although at
“the upper end of reasonableness,” the undersigned finds the hourly rate of $325.00
reasonable under the circumstances of this case for the work of Mr. McGuinness.
Defendant further suggests an hourly rate of $175.00 for Ms. Gonzalez. Neither
party focuses on her reasonable rate; Plaintiff describes her experience, and Defendant
makes passing reference to an award of $137.50 for a junior attorney on another FLSA
case. Thus, Plaintiff has not carried his burden to justify an award at the rate of $300.00,
while Defendant has cited authority in support of awarding an attorney of comparable
experience less than $175.00 per hour. Based upon the Court’s own knowledge and
experience, as well as a review of the cited authorities, the undersigned agrees with
Defendant that the rate of $175.00 per hour falls within a reasonable range of rates for
attorneys with Ms. Gonzalez’s skills and experience who serve as a junior attorney on a
case, whereas $300.00 per hour is outside a reasonable range. While Plaintiff contends
that Ms. Gonzalez has served as lead counsel on a half-dozen FLSA cases, she
apparently served in a junior capacity in this case. Therefore, the undersigned will award
fees for Ms. Gonzalez at the hourly rate of $175.00, which is appropriate for junior
attorneys in FLSA matters. See, e.g., Rodriguez v. Super Shine & Detailing, Inc., No. 0923051-CIV, 2012 WL 2119865, at *3 (S.D. Fla. June 11, 2012) (awarding junior attorneys on
an FLSA case hourly rates of $150.00 and $175.00).
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Finally, Plaintiff requests an hourly rate of $90.00 for the work of a paralegal, and
Defendant has not objected. Based upon the Court’s own knowledge and experience,
the undersigned finds that an hourly rate of $90.00 falls within the range of reasonable
rates for paralegal work in this market. Thus, noting that Defendant has not objected to
this rate, the undersigned will award fees for paralegal work at the hourly rate of $90.00.
2.
Reasonable Hours Expended
The Court must next determine whether the number of hours spent on the matter
by counsel is reasonable. Counsel must use “billing judgment” when requesting
attorney’s fees and must exclude “excessive, redundant, or otherwise unnecessary”
hours from any fee petition, irrespective of their skill, reputation, or experience. Hensley
v. Eckerhart, 461 U.S. 424, 434 (1983); Barnes, 168 F.3d at 427. Although the party
requesting attorney’s fees must submit evidence sufficient to allow the court to
determine that the requested fees are reasonable, “objections and proof 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). 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 acrossthe-board cut.” Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).
The Plaintiff herein requests fees for 141.1 hours of legal work performed in this
matter, which includes the work of two attorneys – Lawrence J. McGuinness and Juliana
Gonzalez – and the work of a paralegal. In his Motion, while Plaintiff provides time
records of the timekeepers and cites authority for determining the reasonable number of
hours expended, Plaintiff makes no explicit claim as to whether the hours expended in
this case were reasonable – only that they were, indeed, expended. In his Reply,
however, Plaintiff asserts that counsel used billing judgment to avoid excessive,
redundant or otherwise unnecessary hours by, in particular, only billing one
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timekeeper’s time for activities involving multiple timekeepers (DE # 105 at 5-7). Plaintiff
further highlights in his Reply that the settlement amount represented a successful
outcome because it was more than half of the total damages sought while Defendant had
denied any entitlement to damages. Finally, Plaintiff contends in his Reply that the
amount of hours is reasonable because Defendant was “litigious”; Defendant moved
(unsuccessfully) to include Plaintiff in a second settlement conference, moved
(unsuccessfully) for summary judgment and (unsuccessfully) for reconsideration
thereof, and had moved to amend its affirmative defenses after discovery expired, which
Plaintiff opposed (DE # 105 at 7).
In opposition, the Defendant seeks a 30% reduction in hours requested,
describing Plaintiff’s billing records as representing a “potential overstatement and
otherwise suspicious billing practices,” due to the failure of the records to identify the
specific days (as opposed to months) on which Ms. Gonzalez performed activities, and
the failure of Plaintiff to support a claim that counsel exercised billing judgment (DE #
102 at 7-9). More specifically, Defendant attaches to its Response an analysis of
Plaintiff’s billing records to argue that Plaintiff inappropriately includes block billing in
his counsel’s records, time for non-billable administrative tasks and, again, redundant
billing of certain activities (DE # 102 at 9-10). In sum, Defendant requests that counsel’s
hours be significantly reduced, for non-compensable activities; and then, again, reduced
by 30% for potential overstatement and suspicious activities. Defendant contends that
the Plaintiff should be permitted to recover no more than $12,295.50 in attorney’s fees.
While a party has a right to attorney's fees incurred in the successful prosecution
of his claims under the FLSA, 29 U.S.C. § 216, the courts have a corresponding duty to
make sure that such an award is reasonable. See Hensley v. Eckerhart, 461 U.S. 424,
433–34 (1983) (noting that reasonableness is the bedrock upon which the determination
16
of the amount of attorney's fees rests). The determination of exactly what amount of fees
to award is vested in the sound discretion of the Court.
At the outset, the Court notes that the Defendant has identified specific billing
entries as being duplicative, excessive, block-billed, or administrative in nature. Thus,
the Defendant has raised sufficiently specific and reasonably precise objections to the
Plaintiff’s fee request for the undersigned to consider. Barnes, 168 F.3d at 428. In
addition, the Court has independently and carefully reviewed the billing records
submitted by the Plaintiff to determine whether the amounts sought are reasonable.
Based upon a review of the record as a whole, for the reasons below, the
undersigned concludes that the number of hours spent litigating this matter by Plaintiff’s
counsel should be reduced by 30%. The undersigned finds evidence in the billing
records of the deficiencies Defendant highlights and uses a review of the highlighted
entries (and others) as a basis for this across-the-board reduction of the requested
hours.
Defendant identifies several categories of inappropriate entries (DE # 102-7). In
particular, Defendant points to excessive billing. For example, Defendant notes that Mr.
McGuinness billed 18 minutes for “Receipt and review of Order allowing Sureply [sic]”
on October 17, 2011. The undersigned agrees that 18 minutes to review a half-page order
allowing a sur-reply, indeed, appears excessive. As a further example, Defendant points
to 18 minutes billed to review Defendant’s unopposed motion for an enlargement of time
to respond to the statement of claim, after Plaintiff had already billed time for an email
conferral regarding the extension. This also appears excessive.
Moreover, as the undersigned reviews the attorneys’ billing records, generally,
(beyond simply those highlighted by defense counsel) the undersigned finds additional
examples of excessively billed time. For example, on January 14, 2011, Mr. McGuinness
billed 18 minutes for “Receipt and review of Referral to Magistrate for Settlement
17
Conference.” This amount of time to review a two-page notice that is typically entered by
the Court in FLSA cases is excessive, especially in light of counsel’s familiarity with
these cases. In another instance, in October 2011, similar to Mr. McGuinness, Ms.
Gonzalez billed 18 minutes to “Review Order allowing Sureply [sic].” For the same
reasons noted above, this appears excessive. While the undersigned observes other
instances, the above are two examples not noted by defense counsel.
As another category of inappropriate time entries, Defendant identifies what it
finds to be billed hours for multiple timekeepers. These entries primarily appear in
connection with Defendant’s motions for summary judgment and reconsideration
thereof. Time spent on the summary judgment motion appears on the billing records of
both Mr. McGuinness and Ms. Gonzalez. Defendant filed a Motion for Summary
Judgment arguing that Plaintiff was an exempt employee under the FLSA’s motor carrier
exemption (DE # 64). Plaintiff filed a Response (DE # 67), and Defendant filed a Reply (DE
# 70). Additionally, Plaintiff was sua sponte granted leave, and subsequently filed, a surreply (DE # 72). Following the denial of its Motion for Summary Judgment, Defendant
filed a Motion for Reconsideration (DE # 75), which Plaintiff responded to (DE # 76), and
which was ultimately denied. Upon a review of the time records, an approximate
calculation of the hours Mr. McGuinness and Ms. Gonzalez spent on matters relating to
the summary judgment motion and reconsideration motion appears to total more than 36
hours. In the Court’s experience, this amount of time for two attorneys to address the
summary judgment matters at issue, given the facts of the case, appears excessive.
The undersigned further notes that the time spent by multiple timekeepers on
these matters in this case should be considered in light of Plaintiff counsel’s concurrent
efforts to respond to a summary motion on similar grounds (regarding the motor carrier
exemption) filed by the same Defendant in a separate but related case in this District (DE
18
# 102-3).3 Thus, the undersigned additionally considers whether efficiencies in time
expended by counsel should have resulted from at least some overlap of work being
conducted in both cases. The undersigned finds that any efficiencies that may or should
have resulted provide an additional basis for finding excessive more than 36 hours for
two attorneys to address these matters in this case.
Defendant also challenges alleged “block billing.” As Defendant has identified
them, several of these entries involve Mr. McGuinness’s review of a given filed document
and teleconference with the Plaintiff regarding the filed document. The undersigned
agrees with Defendant that the Court is unable to confidently determine whether the time
billed is reasonable because of the nature of block billing; counsel’s failure to separate
these entries does not allow the Court to properly determine whether a reasonable
amount of time was spent reviewing a particular filing, as opposed to conferring with
Plaintiff about the filing. Thus, Plaintiff fails to carry his burden of providing sufficient
records to determine whether these entries are reasonable. Barnes, 168 F.3d at 428.
Finally, in terms of specific challenges to categories of billed hours, Defendant
asserts that some are non-compensable as administrative tasks. Most of these appear in
the time of the paralegal.4 For example, of the 31.5 hours claimed by the paralegal,
Defendant identifies entries totaling between 2.1 to 8.1 hours (uncertainty due to alleged
block billing) as administrative tasks. Upon a review of the challenged entries,
Defendant’s objections are well-taken. Many of the cited entries describe activities, such
3
The undersigned notes that the Response filed by counsel to the Motion for Summary
Judgment in that case, Cedano v. Alexim Trading Corp., No. 11-20600-CIV, DE # 15 (Aug.
22, 2011), was filed on the same date as the Response in the case at bar, and is
substantially identical.
4
While the body of Defendant’s Response does not take issue with the fees requested
for the paralegal’s work (either the rate of the paralegal or the hours requested), the
annotations contained in the analysis of the time records of Plaintiff’s paralegal, attached
to Defendant’s Response, make clear that Defendant objects to some of the paralegal’s
entries, as indicated.
19
as organizing or confirming dates and times with parties, that are typically administrative
in nature. Therefore, Plaintiff shall not be compensated at the rate of the paralegal for
such tasks.
Thus, upon a review of the record as whole, the undersigned generally finds that
the time billed by Plaintiff’s counsel is excessive and includes some non-compensable
time. Accordingly, the Court has two choices: conducting an hour-by-hour analysis, or
applying an across-the-board cut. See Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350
(11th Cir. 2008). The undersigned chooses to apply an across-the-board cut that
considers the above entries as a sample of counsel’s excessive billing and billing for
non-compensable time; and, then, applies the results, generally, to the billing records of
the attorneys and paralegal. In determining an appropriate total number of hours for the
entries highlighted above, the undersigned finds that a reduction in the requested hours
results in an average reduction of the time claimed of approximately 30%. Thus, using
this analysis as a guide for determining an appropriate across-the-board cut, the
undersigned finds appropriate a 30% across-the-board reduction in the total hours
claimed by Plaintiff for the hours expended in this case. Therefore, Plaintiff’s claim of
141.1 hours expended by the attorneys and paralegal is reduced to 98.77 hours. As the
undersigned finds billing issues in the time records of all three timekeepers, the acrossthe-board cut shall be applied equally to each timekeeper. Finally, the undersigned finds
this reduction appropriate, despite Defendant’s alleged “litigious” nature and the result
Plaintiff achieved.
Thus, the undersigned concludes that the Plaintiff is entitled to recover attorney’s
fees for 98.77 hours, which consists of 46.27 hours for Mr. McGuinness, 30.45 hours for
Ms. Gonzalez, and 22.05 hours for the paralegal.
20
3.
Calculating the Lodestar
Upon a thorough review of the record, including counsel’s detailed billing records,
the undersigned concludes that Plaintiff is entitled to recover the calculated lodestar
total amount of $22,351.00, which represents $15,037.75 in fees for Mr. McGuinness,
$5,328.75 in fees for Ms. Gonzalez, and $1,984.50 in fees for the work of the paralegal.
E.
Adjustments to the Loadstar
1.
Legal Standard
After calculating the lodestar, the Court may apply an across the board reduction
to the lodestar where “the plaintiff achieved only partial or limited success.” Hensley, 461
U.S. at 436. In fact, the Supreme Court has stated that the degree of success obtained by
the prevailing party is a “crucial factor that district courts should consider carefully in
determining the amount of fees to be awarded.” Id. at 440. When making this reduction,
the Court does not have to conduct an hour-by-hour analysis. Loranger v. Stierheim, 10
F.3d 776, 783 (11th Cir. 1994). “[I]t is sufficient for the court to provide a concise but
clear explanation of its reasons for the reduction.” Id. This means that when a plaintiff
obtains a result that is “limited in comparison to the scope of the litigation as a whole,” it
is appropriate for them to receive a reduced award of attorney’s fees. Id.
While reduced fee awards are proper in many cases, “[f]ee awards should not
simply be proportionate to the results obtained,” especially in FLSA cases, as fee awards
in FLSA cases are often greater than the amount recovered by the plaintiff. See James v.
Wash Depot Holdings, 489 F. Supp. 2d 1341, 1347 (S.D. Fla. 2007). This is to ensure “that
individuals with small claims can obtain representation necessary to enforce their
rights.” Brandt, 2011 WL 4625379, at *12. However, although prevailing parties in FLSA
actions are entitled to attorney’s fees, “an entitlement to attorney’s fees cannot be a
carte blanche license for Plaintiff’s to outrageously and in bad faith run up attorney fees
21
without any threat of sanction.” See Goss v. Killian Oaks House of Learning, 248 F. Supp.
2d 1162, 1168-69 (S.D. Fla. 2003).
2.
Analysis
Defendant does not explicitly argue that any award for Plaintiff’s counsel should
be reduced based upon the relative success Plaintiff achieved. Nonetheless, although
not explicitly argued in Defendant’s Response, the Court recognizes that the Defendant
may be attempting to assert that the fee award should be reduced because the
settlement in the Plaintiff’s favor reflected a partial or limited success when compared to
his original claim; Defendant states that Plaintiff settled for a “relatively low settlement
value” (DE # 102 at 3).
The Court notes that, generally, courts that have reduced the lodestar due to a
“partial or limited success” have reduced the lodestar only when the recovery was
extremely limited in light of the plaintiff’s original claim. See, e.g., James, 489 F. Supp. 2d
at 1353.
In this case, as is typical in many FLSA cases, Plaintiff did not recover the total
amount that he sought in his Statement of Claim because each party compromised a
portion of their respective positions. Moreover, the Plaintiff’s recovery in the instant
case is far greater than those cases where a plaintiff made extremely small recoveries
that have warranted a reduction in the lodestar due to a prevailing plaintiff’s “partial or
limited success.” In James, the Court reduced the lodestar by 50 percent when the
plaintiff originally requested $600,000 but only recovered approximately $3,500, less than
half of one percent of his original claim. 489 F. Supp. 2d at 1351, 1353. Similarly, in
Brandt, the Court reduced the lodestar by 70 percent when the plaintiff originally
requested $56,160 but only recovered $1,208.52, less than 3 percent of him original claim.
2011 WL 4625379, at *12. In this case, Plaintiff recovered $9,000.00, where his original
Statement of Claim totaled about $29,000.00. This result does not justify a reduction.
22
Thus, the undersigned concludes that the lodestar should not be reduced based on the
Plaintiff’s recovery in this case.5
Based upon a determination of the reasonableness of the requested attorney’s
fees, the undersigned concludes that the Plaintiff is entitled to recover a total of
$22,351.00 in attorney’s fees.6
III.
COSTS
A.
The Parties’ Positions
Plaintiff states in conclusory fashion that he is entitled to his costs as the
prevailing party in this action, and that the taxable costs are identified by Fed. R. Civ. P.
54, 28 U.S.C. § 1920, and/or the Florida Rules of Civil Procedure (DE ## 101 at 2, 7; 105 at
2). Plaintiff initially asserts that he is entitled to $1,236.40 in costs because the requested
costs “fall into the recognized categories of taxable costs” (DE # 101 at 7). Aside from
attaching invoices to the Motion for some of the costs, Plaintiff does not itemize these
costs. For the first time in his Reply, Plaintiff identifies some of the specific costs
sought, and his justification for seeking such costs.
Plaintiff also acknowledges in his Reply that he is not entitled to reimbursement
for mediation and, thus, reduces the requested cost amount above by $268.00, bringing
the reduced total request to $968.40 (DE # 105 at 2). As for deposition costs, Plaintiff
asserts in his Reply that both depositions of Defendant’s corporate representative were
5
Defendant’s Response also appears to seek a reduction of any fees award based upon
Plaintiff’s “potential overstatement and otherwise suspicious billing practices” (DE # 102
at 11). Aside from other arguments to reduce hours set forth in the Response, however,
Defendant does not provide any specific basis for a reduction in connection with this
statement. Thus, the undersigned does not consider any additional reduction based
upon any such alleged activities.
6
In the Joint Pretrial Stipulation (DE # 88 at 5), Plaintiff estimated that the attorneys’ fees
allowable to Plaintiff as a prevailing party would be approximately $25,000.00 to
$30,000.00, and the estimated length of time for the trial was three days. In this regard,
the undersigned notes that Local Rule 16.1(e)(12) requires a party to estimate the
maximum amount of allowable attorneys’ fees that may be awarded if that party prevails.
23
necessarily obtained for use in the case – the first to learn of Defendant’s asserted
defenses to Plaintiff’s claims, and the second to obtain testimony regarding a newly
asserted motor carrier exemption affirmative defense. Finally, Plaintiff seeks to recover
the costs for the filing fee and service of process, contending that Defendant does not
challenge these costs (DE # 105 at 3).
Defendant, first, challenges the cost requests procedurally. Defendant argues
that Plaintiff’s conclusory request for costs should be stricken because Plaintiff fails to
file a separate bill of costs and supporting memorandum justifying the costs, as required
by S.D. Fla. L.R. 7.3. With respect to specific costs, Defendant argues (a) as to
deposition costs, that Plaintiff provides no basis for finding that the depositions were
necessarily obtained for use in this case; and (b) mediation costs are unrecoverable.
Thus, Defendant seeks to reduce the request for costs from $1,236.40 to $449.00 (DE #
102 at 5-6).
B.
Legal Standard
Rule 54(d) of the Federal Rules of Civil Procedure states that prevailing parties are
entitled to costs “unless a federal statute, [the Federal Rules of Civil Procedure], or a
court order provides otherwise.” As a result, “there is a presumption that the prevailing
party will be awarded costs.” Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007).
However, any costs awarded by a court pursuant to Rule 54(d) may not exceed the
parameters of 28 U.S.C. § 1920. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
445 (1987). Under 28 U.S.C. § 1920, the following may be taxed as costs:
(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;
24
(5) Docket fees under section 1923 of [Title 28 of the U.S. Code];
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1928 of [Title 28].
If the losing party challenges the requested costs, he has the burden of showing that the
costs are not taxable unless “the knowledge regarding the proposed cost is within the
exclusive knowledge of the prevailing party.” Monelus v. Tocadrian, Inc., 609 F. Supp. 2d
1328, 1333 (S.D. Fla. 2009).
In addition, Southern District of Florida Local Rule 7.3(a), entitled “Motions for
Attorneys Fees and/or Non-Taxable Expenses and Costs,” states in relevant part:
A party shall seek costs that are taxable under 28 U.S.C. § 1920 by filing a
bill of costs and supporting memorandum in accordance with paragraph
7.3(c) below. The costs and expenses sought in a motion under this
paragraph shall not include any cost sought in a bill of costs.
Paragraph 7.3(c) requires that “[a]n application for a bill of costs must be submitted on
form (or in form substantially similar to) AO 133.”
C.
Legal Analysis
In order to be a prevailing party, one need only “obtain some relief on the merits
of his claim.” Buckhannon Bd. & Care Home, Inc., v. West Virginia Dep’t of Health &
Human Servs., 532 U.S. 598, 604 (2001). In this case, the parties settled their dispute
before trial, and Plaintiff received $9,000.00 (DE # 102 at 3). Similar to Defendant’s
position with regard to attorneys’ fees, Defendant does not dispute that Plaintiff is the
prevailing party for purposes of determining entitlement to costs.
Instead, Defendant emphasizes in its Motion to Strike that Plaintiff’s failure to
follow S.D. Fla. L.R. 7.3 requires that Plaintiff’s Motion, as it concerns costs, be stricken
in its entirety. Defendant asserts that Plaintiff has failed to adhere to these procedural
requirements, and Plaintiff does not respond to this contention. Local Rule 7.3(a)
requires that costs taxable under 28 U.S.C. § 1920 shall be sought by a party filing a bill
25
of costs in a specific form, or in a substantially similar form, along with a supporting
memorandum, and Plaintiff has failed to do so. Moreover, Plaintiff has failed to offer any
explanation for his failure.
Nonetheless, Defendant does not argue that Plaintiff is not entitled to some costs
pursuant to 28 U.S.C. § 1920. Aside from this procedural argument regarding the form of
application, the objections contained in Defendant’s Response focus on the merits of a
specific requested amount under § 1920’s entitlement to costs. Thus, for the
undersigned to require Plaintiff at this juncture to re-file his request for costs using the
proper application required by the Local Rules would be to elevate form over substance;
the specification contained in the Motion is similar to the specified form; and, the parties
agree that Plaintiff is entitled to some costs under § 1920, if not all of the requested
costs. Moreover, requiring a proper application would simply delay the resolution of this
matter, where Plaintiff has already delayed action on his requested costs by not filing a
proper bill of costs with the Clerk of the Court.7 Therefore, the undersigned denies
Defendant’s Motion to Strike on this basis.
The undersigned turns to an analysis of Defendant’s other objections and the
amount of costs appropriately taxed against Plaintiff. At the outset, the undersigned
notes that Defendant has requested that, if the Court awards costs despite the
procedural deficiencies, that those costs be limited to $449.00 – the costs of the filing fee
and service of process. Since the propriety of those costs is clear and unchallenged,
those costs are awarded without further discussion. The challenged costs are
addressed below.
1.
Deposition Costs
In his Reply, Plaintiff states that he seeks to recover “the costs he incurred for
taking two depositions,” arguing that they were necessary to the litigation (DE # 105 at
7
A list of the requested costs is included in DE # 101-1 at p. 6.
26
3). Plaintiff does not further specify what these costs consist of, although he attaches
invoices to his Motion. Defendant points out in its Response that, because the Motion
contains no justification, Defendant is without a basis to challenge whether the
deposition costs were necessarily incurred.
Defendant identifies from the invoices attached to the Motion $519.40 for costs
relating to depositions. This total appears to include the fees for the court reporter and
an original transcript. Defendant’s total does not include an additional $190.00, which is
comprised of two additional invoices that appear to be for interpreter services provided
for the depositions (DE # 101-1 at 7, 8).
Defendant in his Response does not appear to take issue with any of the specific
costs in the invoices related to the Defendant’s depositions (other than, apparently, the
interpreter’s costs, by not including them in the total of related invoices). Instead,
Defendant argues that these costs should be disallowed because Plaintiff fails to offer
any justification as to why they were necessary to the case. Plaintiff has since provided
such justification in his Reply. While Plaintiff did not provide this justification in his
Motion, Defendant has not sought leave or any other relief in order to respond to
Plaintiff’s justification for these costs. Moreover, the undersigned notes that Defendant
would be hard-pressed to argue that the depositions were not necessary to this case; the
depositions were of Defendant’s corporate representative, who is the only other party in
this case.
As to the specific components of the deposition costs, they appear to consist of
the court reporter fee and a fee for the original deposition transcripts. These costs are
taxable. See Rodriguez v. M.I. Quality Lawn Maintenance, Inc., No. 10-21031-CIV, 2012
WL 664275, at *4 (S.D. Fla. Feb. 9, 2012). In addition, the undersigned notes that 28
U.S.C. § 1920(6) provides for compensation for interpreters’ services. Thus, the
undersigned includes the $190.00 in costs for interpreter services with the $519.40 in
27
other deposition costs identified by the Defendant. Therefore, the undersigned finds
appropriating taxing the fees for Defendant’s depositions, which total $709.40.
2.
Mediation
While Plaintiff initially attached an invoice to his Motion for the cost of mediation,
the Plaintiff acknowledges that this cost is not taxable (DE # 105 at 2). Thus, this cost
will not be taxed against Defendant.
IV.
CONCLUSION
Accordingly it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion for Award of Fees and Costs
(DE # 101) is GRANTED, IN PART. As set forth in this Order, the Plaintiff is entitled to
recover $22,351.00 in attorney’s fees and $1,158.40 in costs. It is further
ORDERED AND ADJUDGED that Defendant’s Cross-Motion to Strike (DE # 102)
is DENIED.
DONE AND ORDERED at Miami, Florida, this 26th day of September, 2012.
_________________________________
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All counsel of record via CM/ECF
28
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