Zambrano v. Dom & Dom Pizza, Inc. et al
Filing
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ORDER granting in part and denying in part 63 Motion for Attorney Fees. Signed by Magistrate Judge John J. O'Sullivan on 7/17/2012. (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-20207-CIV-O’SULLIVAN
[CONSENT]
ALIRIO ANTONIO ZAMBRANO,
Plaintiff
v.
DOM & DOM PIZZA INC., d/b/a GINO’S PIZZA
and GIANCARLO MONTOYA,
Defendants.
________________________________/
ORDER
THIS MATTER is before the Court on the Plaintiff’s Verified Motion for
Attorney’s Fees and Costs Pursuant to 29 U.S.C. §216(b) and Local Rule 7.3 and
Request for a Fee Multiplier (DE# 63, 4/06/12). The parties jointly consented to
Magistrate Judge jurisdiction on all matters pursuant to 28 U.S.C. §636(c), (DE# 19,
4/18/11). This matter was referred to the undersigned for trial pursuant to 28 U.S.C.
§636(c), by the Honorable Adalberto Jordan on April 21, 2011 (DE# 21).
On June 29, 2012, the defendants filed a Joint Response to the Motion for Fees
and Costs (DE # 182). The plaintiff has not filed a reply. Having carefully considered
the filings and law, the undersigned issues the following Order GRANTING in part and
DENYING in part the Plaintiff’s Verified Motion for Attorney Fees and Costs Pursuant to
29 U.S.C. §216(B) and Local Rule 7.3 and Request for a Fee Multiplier (DE# 63,
4/6/12).
BACKGROUND
The plaintiff filed this lawsuit pursuant to the Fair Labor Standards Act 29 U.S.C.
§§201-216 (FLSA). On March 13, 2012, a jury verdict was entered in favor of the
plaintiff in this matter for unpaid overtime wages. The jury further found that the
defendants acted willfully with respect to the violations of the FLSA. (DE# 60). The jury
awarded the plaintiff $25,000.00.
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 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). 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 1248. The plaintiff prevailed in the
present case because a jury awarded the plaintiff a sum of money for unpaid overtime
wages in accordance with the FLSA, and found that the defendants acted willfully with
respect to the violations of the FLSA. Moreover, a final judgment was entered in favor
of the plaintiff in this matter. 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
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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
specifically enumerated in 28 U.S.C. §1920. See EEOC v. W&O, Inc., 213 F.3d 600,
620 (11th Cir. 2000).
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 v.
General Motors Corp., 841 F.2d 1567, 1575 (11th Cir. 1988) Accordingly, the plaintiff is
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only entitled to recover those costs they would be entitled to under 28 U.S.C. §1920.
The plaintiff seeks to recover $2,004.85 in costs. In the Joint Response, the
defendants indicated that the defendants have no objections to any of the costs
requested in the Motion (See, “Response” DE # 182, at p. 3).
A. Filing Fee and Fees for Service
The plaintiff seeks to recover $350.00 for the fee associated with the filing of the
complaint, and $70.00 in costs for the service of process fees for two (2) defendants.
These costs are permitted under 28 U.S.C. §1920. There is no objection to these
costs. The undersigned finds that the plaintiff is entitled to receive $420.00 for these
costs.
B. Court Reporter Fees
The plaintiff requests reimbursement in the amount of $1,054.85 in costs
associated with court reporters in this matter. These costs are comprised of the Court
reporter appearance fee for the deposition of Giancarlo Montoya in the amount of
$200.00, the Court reporter fee for the deposition of Gary Manto in the amount of
$125.00, the deposition of Angelo Montoya ordered for trial preparation in the amount
of $236.05, the deposition transcript cost of Gian Carlos Montoya and Gary Manto in
the amount of $280.80, and the deposition transcript and reporter fee for Rosa Ramirez
in the amount of $213.00. These costs are permitted under 28 U.S.C. §1920(2) if the
printed or electronically recorded transcripts were necessarily obtained for use in the
case. There is no objection to these costs. The undersigned finds that the
aforementioned deposition costs were necessarily obtained for use in the case, and the
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plaintiff is entitled to receive $1054.85 for these costs.
C. Interpreter Fee for Trial
The plaintiff requests $180.00 for the use of an interpreter at trial in this matter.
Costs for interpreters are permitted under 28 U.S.C. §1920(6). There is no objection to
these costs. The undersigned finds that the costs associated with the interpreter are
reasonable and recoverable and the plaintiff is entitled to receive $180.00 for these
costs.
D. Mediation
In addition to the costs recoverable under 28 U.S.C. §1920, the plaintiff seeks to
recover $350.00 for mediation expenses. There is no objection to these costs.
However, reimbursement for costs associated with mediation is not expressly permitted
under 28 U.S.C. §1920, and should not be awarded. Gary Brown & Assocs., Inc. v.
Ashdon, 268 F. App’x. 837, 846 (11th Cir. 2008). “Even if the Court had the discretion
to tax mediation costs, it would not tax them, ‘reasoning that [mediation] expenses
should be shared equally by the parties to promote good faith mediation without
financial concerns for the costs of resolving a case.’” Rodriguez v. Super Shine &
Detailing, Inc., No. 09-23051-CIV., 2012 WL 2119865, at *11 (S.D. Fla. June 11, 2012)
(citing Rivera Santiago v. Wm. G. Roe & Sons, Inc., No. 8:07-1786-CIV., 2010 WL
2985695, at *2 (M.D. Fla. July 28, 2010). Moreover, Local Rule 16(2)(b)(7) provides,
“[a]bsent agreement of the parties to the contrary, the cost of the mediator’s services
shall be borne equally by the parties to the mediation conference.” The undersigned
finds that the plaintiff is not entitled to recover costs associated with mediation and a
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$350.00 reduction in the requested costs is warranted.
In sum, the plaintiff’s cost request should be reduced by $350.00 for the
mediation and accordingly, the plaintiff is entitled to a total cost award in the amount of
$1,654.85.
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 jury returned a verdict in favor of
the plaintiff in this case, and therefore the plaintiff prevailed in the case at bar 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,
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1544 (1984).
1. Reasonable Hourly Rate
The Court must first evaluate the 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.
Hous. Auth. 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, 465 U.S. at 896. 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, $215.00 for Daniel Feld, $225.00 for Ian Brody, $250.00 for Josh Olmstead and
$200.00 for CC1. Generally, acceptable proof of the market rate may be comprised of
testimony and direct evidence from other legal practitioners in the relevant legal
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In the Plaintiff’s Motion for Attorney Fees and Costs Pursuant to 29 U.S.C.
§216(B) and Local Rule 7.3 and Request for a Fee Multiplier (DE# 63 4/6/12), the
plaintiff requests reimbursement for an attorney with the initials “CC,” but does not
identify the name of the individual associated with those initials.
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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. Id. at 1303 (citing Davis v. Bd. of Sch.
Comm’rs of Mobile Cnty., 526 F.2d 865, 868 (5th Cir. 1976)). The plaintiff requests
reimbursement for 1.3 hours for an attorney with the initials CC for a total of $260.00.
However, even though the entry appears on the itemized time sheet and is included in
the total fee request, the Motion for Fees and Costs does not explain who CC is, nor
does the motion describe CC’s experience. In Arias v. Alpine Towing, Inc., No. 1020434-CIV., 2011 WL 4102530, at *4 (S.D. Fla. Sept. 15, 2011), a Fair Labor
Standards Act case, hourly rates of $325.00 per hour for Mr. Zidell, $300.00 per hour
for Mr. Kelly and $175.00 for Mr. Feld were found to be reasonable and similar to the
rates charged by similarly experienced, skilled and educated attorneys in the South
Florida area. 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 the hourly rates of
$325.00 for J.H. Zidell, $300.00 for David Kelly, $215.00 for Daniel Feld2, $225.00 for
Ian Brody and $250.00 for Josh Olmstead are reasonable. The undersigned will not
allow any fees for CC because it cannot be determined if the hourly rate for CC is
reasonable. The defendants argue that the plaintiff’s motion fails to provide the
2
The rate for Mr. Feld awarded here is $40.00 more per hour than the rate that
was awarded in the Arias case. 2011 WL 4102530, at *4. The undersigned finds that in
the time that has passed since the Arias case, a $40.00 per hour rate increase for Mr.
Feld is reasonable.
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experience and qualification for the other attorneys who worked on the case and the
number of hours reasonably expended by each attorney. The undersigned finds,
however, that the plaintiff has adequately done both in the motion. The total number of
hours requested for each attorney, their hourly rates, and the total fee amount
requested for each attorney is outlined in the chart below.
Attorney
Hours
Hourly Rate ($)
Total
J.H. Zidell, P.A.
63.8
$325.00
$20,735.00
Daniel Feld, Esq.
24.2
$215.00
$5,203.00
Karl David Kelly, Esq.
7.0
$300.00
$2,100.00
Ian Brody, Esq.
21.0
$225.00
$4,725.00
CC
1.3
$200.00
$260.00
Josh Olmstead, Esq.
2.5
$250.00
$625.00
119.8 hrs
$33,648.00
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 plaintiff requests a total of
119.80 hours for the work done in this matter, including the time expended at trial, for a
total requested reward of $33,648.00. The plaintiff supports his motion by submitting an
itemized time sheet. (DE# 63-3, 4/06/12).
This Court must exercise independent judgment when reviewing a claim for
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hours reasonably expended. See Norman, 836 F.2d at 1301-02. 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 accurately reflect the
work done by each attorney.” Nat’l Ass’n. of Concerned Veterans v. Sec’y of Def., 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 Comp. 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”). The defendants argue that the plaintiff’s attorneys double billed on
various occasions and that it was not necessary to have two attorneys attend calendar
call or trial.
The undersigned finds that the time records in the case are adequate, and that
the amount of time spent by the attorneys for the plaintiff in this matter is reasonable,
especially for a case that went to trial. The undersigned finds, however, that because
the plaintiff did not provide adequate information as to CC, the $260.00 requested for
CC should not be awarded and the fee request should be reduced to $33,388.00.
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C. Fee Enhancement
The plaintiff requests a fee enhancement in this case. (DE# 63, 4/16/12, at p. 5).
The plaintiff argues that such an enhancement is justified because: 1) the result
obtained for plaintiff was exceptional based on his claims for overtime; and 2) a fee
request of under $35,000.00 to handle the plaintiff’s overtime claims should be
determined to be a very efficient handling of this case. Id.
Courts may make upward adjustments to the lodestar product in light of “the
quality of work performed as evidenced by the work observed, the complexity of the
issues and the recovery obtained.” Pennsylvania v. Delaware Valley Citizens’ Council
for Clean Air, 478 U.S. 546, 563, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (citing Merola
v. Atlantic Richfield Co., 515 F.2d 165, 168 (3rd Cir. 1975)). However, the Supreme
Court has found that there is a strong presumption that the lodestar product is the
“reasonable fee to which counsel is entitled.” Id. at 564 (quoting Blum, 465 U.S. at 897).
The factors the court may consider for purposes of awarding a fee multiplier are
generally encompassed within the initial calculation of the lodestar. Id. at 565 (citing
Blum, 465 U.S. at 898-900) (explaining that “results obtained” are presumably
incorporated in the lodestar amount, and should therefore not be an independent basis
for increasing the fee award.). Fee multipliers may be warranted only in “rare” and
“exceptional” cases, supported by both “specific evidence on the record and detailed
findings by the lower courts.” Id. at 565.
The factors subsumed in the lodestar calculation cannot be used as a ground for
increasing an award above the lodestar. Perdue v. Kenny A. ex rel. Winn, 130 S.Ct.
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1662, 1669 (2010). Additionally, the party requesting a fee enhancement has the
burden of explaining with specificity why a multiplier is justified. Id. The undersigned
finds this case does not constitute the type of rare and exceptional circumstances for
which fee multipliers are justified. Plaintiff’s counsel having obtained results for the
plaintiff that were exceptional based on his claims for overtime is unpersuasive to allow
for a fee enhancement because the success of plaintiff’s counsel is already taken into
consideration in the Court’s lodestar computation. Plaintiff’s counsel is complimented
for his efficient handling of this matter, however, the plaintiff’s argument that he is
entitled to a fee enhancement because of counsel’s efficient handling of the case is
unpersuasive because efficiency is an essential component of the lodestar calculation.
Accordingly, a fee enhancement is not warranted in this matter.
For the above stated reasons, the plaintiff’s request for a fee multiplier is
DENIED.
In accordance with the foregoing, it is
ORDERED AND ADJUDGED that the Plaintiffs’ Verified Motion for Attorney’s
Fees and Costs Pursuant to 29 U.S.C. §216(b) and Local Rule 7.3 and Request for a
fee multiplier (DE# 63, 4/06/12) is GRANTED in part and DENIED in part in accordance
with this Order and the plaintiffs are awarded $1,654.85 in costs and $33,388.00 in
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fees. The Court will enter a judgment as to the attorney’s fees and costs in the total
amount of $35,042.85.
DONE AND ORDERED in Chambers at Miami, Florida this 17th day of
July, 2012.
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies Furnished to:
All counsel of record
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