Watts v. Club Madonna, Inc. et al

Filing 172

ORDER denying without prejudice 168 Motion for Attorney Fees. Signed by Ch. Magistrate Judge John J. O'Sullivan on 8/13/2020. See attached document for full details. (tro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 17-24666-CIV-UNGARO/O’SULLIVAN
MARCO WATTS,
Plaintiff,
v.
CLUB MADONNA, INC., and
LEROY C. GRIFFITH,
Defendants.
______________________________/
ORDER
THIS MATTER is before the Court on the Plaintiff's Verified Motion for Attorney’s
Fees (DE # 168, 7/3/20). Having reviewed the applicable filings and law, the
undersigned enters the following Order.
BACKGROUND
The plaintiff filed this action to establish violations of overtime and minimum
wages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-216, as
well as minimum wage damages pursuant to Fla. Stat. § 448.110 and Fla. Const. Art.
10 § 24 ("FMWA"). This Court entered a Final Judgment against the defendants in this
case on August 17, 2018, in the amount of $29,268.40, which represented both actual
and liquidated damages for unpaid wages under the FMWA. (DE # 100, 8/17/18). On
March 8, 2019, this Court entered an Order Adopting Magistrate Judge’s Report, and
awarding the plaintiff $4,004.94 in costs and $50,621.61 in fees. (DE # 121, 3/8/19). On
November 26, 2019, the Court awarded the plaintiff $25,416.00 in appellate attorneys’

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fees. (DE #145, 11/26,2019). On February 3, 2020, the Court entered an Amended
Final Judgment in the amount of $109,313.35. (DE #148, 2/3/20). On July 3, 2020, the
plaintiff filed another Verified Motion for Attorney Fees (the instant motion) seeking
additional fees in the amount of $39,027.50 for 91.83 hours allegedly expended by his
attorneys on various post-judgment endeavors dating back to September 2018 through
the present. (DE #168, 7/3/20).
DISCUSSION
The plaintiff assets that he is entitled to post-judgment fees in this matter. The
plaintiff indicates that
[A]ttorneys’ fees are routinely granted for post-judgment
collection activities in FLSA cases in this District. See
DiFrancesco v. Home Furniture Liquidators, Inc., 06-21709CIV,2009 WL 36550, at *5 (S.D. Fla. Jan. 6, 2009) (“The
Court finds that the reasoning in Free and Nunez is equally
applicable to the instant case and concludes that reasonable
attorney's fees for collecting a final judgement are available
under the FLSA.”). See also Yuetter-Beacham v. Med.
Career Inst. of S. Florida, Inc., 15-80226-CV, 2016 WL
11547571, at *1 (S.D. Fla. Mar. 11, 2016), report and
recommendation adopted, 9:15-CV-80226, 2016
WL11547572 (S.D. Fla. Mar. 30, 2016)(awarding attorneys’
fees for post-judgment proceedings in aid of execution in
FLSA case); Adelson v. Tire Depot Group, LLC, 14-61846CIV, 2014 WL 12539721, at *2 (S.D. Fla. Oct. 29,
2014)(“fees for efforts to collect a default final judgment are
appropriate in FLSA cases”); Cruz v. Paver Designs of Miami
Dade Inc., 14-22938-CIV, 2014 WL 12539726, at *2 (S.D.
Fla. Sept. 22, 2014)(“Finally, Plaintiffs seek reasonable
attorneys' fees for collecting a final judgment, given they
expect to expend more time and effort to collect the default
final judgment in this matter. (See Mot. 5). The Court finds
collection of such fees appropriate in FLSA cases.”).
Plaintiff’s Motion at pp. 3-4.
In the response to the plaintiff’s Motion, the defendants indicate that the
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Plaintiff asserts that he is entitled to fees on the grounds that
“[a]ttorney’s fees are routinely granted for post-judgment
collection activities in FLSA cases in this District.” [D.E. 168
at 3]. However, none of the cases cited by Plaintiff in support
of this proposition involve a fees’ request for post-judgment
collection activities absent a timely underlying judgment or
order giving rise to such a request. In DiFrancesco v. Home
Furniture Liquidators, Inc., No. 06-21709-CIV, 2009 U.S.
Dist. LEXIS 736, 2009 WL 36550 (S.D. Fla. Jan. 6, 2009),
the Court awarded post-judgment collection fees sought by
plaintiff in conjunction with the granting of plaintiff’s motion
for judgment on writ of garnishment. In Yeutter-Beacham v.
Medical Inst. of S. Fla., INC, 2016 U.S. Dist. LEXIS 201496
(S.D. Fla. May 26, 2016), the plaintiff’s request for postjudgment fees were granted by the Court as a result of the
execution defendants’ dilatory conduct in complying with
their post-judgment discovery obligations. following an order
granting plaintiff’s motion to compel discovery. In Adelson v.
Tire Depot Group, LLC, 14-61846-CIV, 2014 WL 12539721
(S.D. Fla. Oct. 29, 2014), an award for post-judgment
reasonable attorney’s fees in FLSA cases was
acknowledged as appropriate where the plaintiff moved for
award of such fees in conjunction (simultaneously) with
plaintiff’s motion for final judgment following entry of a clerk’s
default against defendant. Finally, as in Adelson, in Cruz v.
Paver Designs of Miami Dade Inc., 14-22938-CIV, 2014, WL
12539726 (S.D. Fla. Sept. 22, 2014), the entitlement to
attorneys’ fees for post-judgment collection activities was
acknowledged as appropriate where plaintiff asked the court
– in conjunction (simultaneously) with the court’s entry of
final default judgment – to grant plaintiff’s motion as to
entitlement for fees they expected to incur in collecting on
the default judgment. In sum, none of the aforementioned
cases cited in Plaintiff’s Motion support his position that he is
entitled to an award for fees incurred in connection with postjudgment collection activities at the current juncture.

Defendants’ Response pp. 3-4.
As noted above, the plaintiff cites to the case of DiFrancesco v. Home Furniture
Liquidators, Inc., No. 06-21709-CIV, 2009 WL 36550 (S.D. Fla. Jan. 6, 2009) in support
of his argument that he is entitled to attorney’s fees in this matter. Specifically, the
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plaintiff states that
[A]ttorneys’ fees are routinely granted for post-judgment
collection activities in FLSA cases in this District. See
DiFrancesco v. Home Furniture Liquidators, Inc., 06-21709CIV,2009 WL 36550, at *5 (S.D. Fla. Jan. 6, 2009) (“The
Court finds that the reasoning in Free and Nunez is equally
applicable to the instant case and concludes that reasonable
attorney's fees for collecting a final judgement are available
under the FLSA.”).
Plaintiff’s Motion at pp. 3-4. However, in DiFrancesco, the plaintiff successfully obtained
a Final Judgment in Garnishment and the Court awarded fees in conjunction with the
Final Judgment in Garnishment. In this case the plaintiff has not obtained any success
in their post judgment collection efforts.
Accordingly, the undersigned finds that the request for the fees and costs in this
motion are premature under the circumstances.
In accordance with the foregoing Order, it is
ORDERED AND ADJUDGED that the Plaintiff's Verified Motion for Attorney’s
Fees (DE # 168, 7/3/20) is DENIED without prejudice to renew if the plaintiff is
successful in the post-judgment proceedings.

.

DONE AND ORDERED in Chambers at Miami, Florida this 13th day of August
2020.
JOHN J. O’SULLIVAN
CHIEF UNITED STATES MAGISTRATE JUDGE

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