Herrera v. Model Row Inc. et al

Filing 49

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR ATTORNEYS FEES AND COSTS re 48 Motion for Attorney Fees. Signed by Judge Robin L. Rosenberg on 7/18/2017. (kpe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:17-CV-80241-ROSENBERG/HOPKINS
JAVIER RICARDO HERRERA, JR.,
Plaintiff,
v.
MODEL ROW, INC., and
ROBERT BORN,
Defendants.
_________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS
THIS CAUSE is before the Court on Plaintiff’s Motion for Attorney’s Fees and Costs
(“Plaintiff’s Motion”). DE 48. The Court instructed that Defendant need not respond to any
motion for attorney’s fees and costs filed by Plaintiff absent a Court order to the contrary. DE 42.
No such order was entered. Accordingly, Plaintiff’s Motion is ripe for ruling. For the reasons
stated below, Plaintiff’s Motion is GRANTED IN PART AND DENIED IN PART.
I.

DISCUSSION
A. Plaintiff’s Request for Costs
Plaintiff’s Motion includes a request for $532.00 in costs. DE 48 at ¶ 2. Included in that

total: the $400.00 filing fee and $132.00 spent serving process ($66.00 was spent serving each of
the two Defendants). This request is duplicative. On June 5, 2017, Plaintiff filed a Motion for
Bill of Costs requesting $532.00 in costs—specifically, the $400.00 filing fee and $132.00 spent
serving process. DE 46. On June 6, 2017, the Deputy Clerk entered an Order Granting Plaintiff’s
Motion for Bill of Costs in the amount of $532.00. DE 47. Plaintiff is not entitled to double
recovery. Plaintiff’s request for costs is, therefore, DENIED.

B. Plaintiff’s Request for Attorney’s Fees.
Attorney’s fees are calculated by multiplying the number of hours reasonably expended
on a matter by a reasonable hourly rate. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.
1994). Here, Plaintiff seeks $9,170.00 in attorney’s fees. DE 48-1 at 2. In support of his request,
Plaintiff’s counsel has attached his Billing Statement, which reveals this amount was calculated
by multiplying 26.2 hours expended by counsel’s hourly rate of $350.00. Id.
The Court finds this amount unreasonably high. “When a district court finds the number
of hours claimed is unreasonably high, the court has two choices: it may conduct an hour-byhour analysis or it may reduce the requested hours with an across-the-board cut.” Bivins v. Wrap
It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). These options are mutually exclusive—the
Court may select one or the other, not both. Id. An “across-the-board cut” is appropriate where
the billing record is voluminous. See Loranger, 10 F.3d at 783. The billing record in this case is
brief. Therefore, an hour-by-hour approach is appropriate.
i. Clerical or Secretarial Work
First, the Court addresses entries reflecting clerical or secretarial work. “[A] fee applicant
is not entitled to compensation at an attorney’s rate simply because an attorney undertook tasks
which were mundane, clerical, or which did not require the full exercise of an attorney’s
education and judgment.” Norman v. Housing Auth. Of Montgomery, 836 F.2d 1292, 1306 (11th
Cir. 1988). There is disagreement over whether clerical or secretarial work is even compensable.
The majority of district courts within the Eleventh Circuit have held it is not. However, this
Court need not take a position.

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“The applicant bears the burden of producing satisfactory evidence that the requested rate
is in line with prevailing market rates.” Id. at 1299. Plaintiff has not attempted to demonstrate
the prevailing market rate for clerical or secretarial work. 1 Accordingly, Plaintiff would not be
entitled to compensation for clerical or secretarial work even assuming such work is generally
compensable. See For Play Limited v. Bow to Stern Maintenance, No. 05-cv-22002, 2006 WL
3662339 at * 8 (S.D. Fla. Nov. 6, 2006) (recognizing that even if clerical work was compensable,
plaintiff would not be entitled to recover because he had “not even attempted” to prove the
prevailing market rate for clerical work); Manriquez v. Manuel Diaz Farms, Inc., 2002 WL
1050331 at * 7 (S.D. Fla. May 23, 2002) (Mag. J. Garber), adopted, slip op. (S.D. Fla. June 11,
2002) (Seitz, J) (same).
Here, Plaintiff’s counsel seeks compensation for multiple clerical tasks: 0.1 hours for
filing the Affidavit of Service on Defendant Robert Born on April 3, 2017; 0.1 hours for filing
the Affidavit of Service on Defendant Model Row on April 3, 2017; and 0.1 hours for sending
the summonses and reviewing the corresponding docket entry on February 27, 2017. DE 48-1.
Plaintiff’s counsel also seeks compensation for 0.2 hours spent filing Plaintiff’s Statement of
Claim on April 17, 2017. Id. Filing is clerical work. Any assertion that this entry included time
spent creating the Statement of Claim is belied by the fact that Plaintiff’s counsel—as part of a
separate entry made February 26, 2017—billed his client for preparing the Statement of Claim.
Id. Plaintiff also billed 0.1 hours for sending an e-mail regarding potentially re-scheduling a
phone conference on April 24, 2017. Id. E-mails related to scheduling are purely clerical. See
Williams v. R.W. Cannon, 657 F. Supp. 2d 1302, 1311 (S.D. Fla. 2009) (noting correspondence
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Plaintiff has represented that he is the sole member of his officer; however, he could
nonetheless have presented outside evidence of a reasonable rate for clerical or secretarial work
for judicial notice. See Norman, 836 F.2d at 1306 (“[T]he trial judge can judicially notice a rate
for bookkeeping work or work customarily done by paralegals . . .”).
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“to coordinate scheduling with opposing counsel regarding court dates” is among the “basic
communications that are typically handled by legal assistants or paralegals, not lawyers.”).
Plaintiff’s counsel is not entitled to compensation for these entries—0.6 hours in total.
ii. Hours Unnecessary to the Litigation
Hours expended on activities unnecessary to the litigation are not compensable. See
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (noting that a district court should exclude
unnecessary hours from its initial fee calculation). Here, Plaintiff’s counsel billed 8.0 hours for
the preparation and filing of his self-styled Notice that Settlement has not been Reached,
Response to Defendants’ Motions, and Motion to Reschedule March 25, 2017 Telephone
Conference (“Omnibus Motion”). DE 48-1. The majority of this filing is a response to two
motions Defendants had filed requesting additional time to respond to Plaintiff’s Complaint.
Both of Defendants’ motions represented that Defendants had not been able to reach Plaintiff’s
counsel as of the time of filing to ascertain whether he opposed the relief sought. Both motions
were granted—the first on April 13, 2017, and the second on April 16, 2017. DE 14, 17. Plaintiff
dedicated approximately twelve pages of his Omnibus Motion opposing simple extensions of
time that had already been granted. That is the very definition of unnecessary. Moreover,
Plaintiff’s filing—for which he is seeking $2,800.00 in compensation—is comprised largely of
needless attacks on Defendants’ counsel. See DE 18. The only necessary portions of this filing
informed the Court that the case had not settled and requested that the Court reschedule the
telephone conference. Providing that information to the Court required, at best, a page or two.
Plaintiff’s counsel is, therefore, entitled to 0.2 hours for this filing.
Plaintiff’s counsel also billed for various entries related to reviewing and responding to emails filed to the docket. These entries include: 0.1 hours for reviewing a Notice of Filing E-mail

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on April 25, 2017; 0.4 hours preparing and filing Plaintiff’s Motion to Strike Defendant’s Notice
on April 25, 2017; 0.1 hours for reviewing the Court’s Paperless Order Denying Plaintiff’s
Motion to Strike Defendant’s Notice on April 25, 2017; 0.2 hours for preparing Plaintiff’s Notice
of Filing E-mails on April 30, 2017; and 0.2 hours reviewing Defendants’ Notice of Filing Email on May 1, 2017. DE 48-1. These entries were generated by what can only be described as a
breakdown of communication between Plaintiff’s counsel and Defendants’ counsel. “[Plaintiff’s]
counsel’s overall inability to communicate with [Defendants’] counsel unnecessarily increased
the costs of the litigation and, as such, he cannot benefit from these actions.” Powell v. Carey
Intern., Inc., 547 F. Supp. 2d 1281, 1294-94 (S.D. Fla. Mar. 12, 2008), aff’d. The Court further
notes Plaintiff’s Motion to Strike Defendant’s Notice was rendered utterly unnecessary because a
second status conference before the undersigned had already been set for that very day. See DE
28. Any matter Plaintiff’s counsel felt necessary could easily have been raised ore tenus.
The same logic applies to two other groups of entries. First: other entries surrounding the
two status conferences held on April 25, 2017. The Court set the status conference only because
Defendants’ motions requesting extensions of time reflected difficulty communicating with
opposing counsel. Court intervention should not have been necessary. The Court’s resources
were needlessly expended reconstructing a labyrinthine series of e-mails about matters easily
reducible to a routine professional phone call. Indeed, the Court adjourned the first status
conference and set a second for later the same day after discovering that counsel had never
spoken on the phone during the two-month pendency of the case. Again, Plaintiff’s counsel is
not entitled to benefit from this breakdown of communication. Accordingly, the Court finds he is
not entitled to recover for the following entries: 0.1 hours reviewing the Order Setting Status
Conference on April 22, 2017; 0.1 hours reviewing Defendants’ Notice of Telephonic

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Appearance on April 24, 2017; 0.1 hours reviewing Paperless Order Memorializing Status
Conference on April 25, 2017; 1.0 hours attending the status conference on April 25, 2017; 0.1
hours reviewing Paperless Order Setting Status Conference on April 25, 2017; and 0.1 hours
reviewing the minute entry for the hearing on April 26, 2017.
Second: Plaintiff’s counsel’s entries for reviewing Defendants’ counsel’s first motion
requesting additional time to respond to Plaintiff’s Complaint and the corresponding paperless
order—a total of 0.8 hours. It is undisputed that on April 6, 2017, Defendants’ counsel reached
out to Plaintiff’s counsel offering to settle the case for the full amount requested in the Statement
of Claim, plus reasonable fees and costs. See DE 12 at 1. Defendants’ counsel’s e-mail further
stated that if a number could not be agreed upon, Defendants were happy to leave the amount for
the Court’s determination. Id. Based on the billing entries, Plaintiff’s counsel took six days—
until April 12, 2017—to convey Defendants’ offer to his client. Had Plaintiff expeditiously
communicated with his client and picked up the phone to relay the results of that communication
to Defendants’ counsel, it would likely not have been necessary for Defendants’ Counsel to file
Defendants’ Motion for Enlargement of Time Nunc Pro Tunc to File Answer and Affirmative
Defenses. Accordingly, Plaintiff is not entitled to recover the 0.7 hours he billed on April 13,
2017 for reviewing the Motion or the 0.1 hours he billed on April 17, 2017 for reviewing the
order granting the same.
iii. Excessive Hours
This case was relatively simple. So was the three-page Complaint. See DE 1. Plaintiff’s
counsel previously sued the very same two Defendants in an earlier-filed case before the
undersigned. See Martinez v. Model Row, Inc., Case No. 9:16-cv-81636. A comparison of the
Complaint filed in Martinez and the present Complaint reveals Plaintiff’s counsel altered only

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the Plaintiff’s name and the nature of his job—whereas the Plaintiff in Martinez was a
landscaper, the Plaintiff here was an irrigation technician. Nothing else is different. Billing 1.5
hours for such a slight alteration is unconscionable. Assuming time was required for Plaintiff to
vet the Complaint and assure no other alterations were needed, the Court finds 0.4 hours a
reasonable amount. Plaintiff’s counsel’s billing entry also includes the filing of the Complaint.
As noted above, filing is clerical work. Therefore, the entry is further reduced to 0.3 hours.
Plaintiff’s counsel also billed 0.3 hours for preparing Plaintiff’s Motion for Extension of
Time on May 1, 2017. DE 48-1. This Motion, excluding the signature block and certificate of
service amounts to slightly more than one page double-spaced. The Motion straightforwardly
states simple facts and includes no law. Accordingly, the Court finds a reduction to 0.2 hours is
appropriate. See Turcios v. Delicias Haspanas Corp., No. 2009 WL 1393238, * 4 (S.D. Fla. May
14, 2009) (finding 0.2 hours reasonable where reply was slightly over one page and contained no
case law). Similarly, Plaintiff’s counsel billed 0.2 hours for preparing and filing Plaintiff’s
Notice of Compliance. DE 19. The Notice is a one sentence document informing the Court
Plaintiff had served Defendants with the Statement of Claim and supporting documents. It
contains no legal analysis. And, as noted above, Plaintiff is not entitled to any compensation for
filing the Notice, as that is a clerical task. The Court finds a reduction to 0.1 hours appropriate.
Finally, Plaintiff’s counsel billed in separate six-minute increments for reviewing rote
docket entries. For example, on February 27, 2017, Plaintiff’s counsel billed 0.1 for reviewing
“Judge Assignment” and another 0.1 for reviewing “Consent to Magistrate [J]udge.” DE 48-1.
The entries were made on the docket one minute apart. See DE 2, 3. The “Judge Assignment”
entry is one sentence long: “Judge Assignment to Judge Robin L. Rosenberg and Magistrate
Judge James M. Hopkins.” DE 2. The “Consent to Magistrate [J]udge” entry is a simple form

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entered by the Clerk in each case. DE 3. The Court finds 0.1 a reasonable amount of time to
review these two entries.
iv. Note on Failure to Comply with Court Orders
In the course of attempting to set a hearing in this case, Plaintiff’s counsel represented to
the Court that he had a trial before Judge Altonaga that was set to continue through April 28,
2017. The Court, in its Order Staying Case and Directing the Clerk of the Court to Close this
Case for Statistical Purposes, (“Order Staying Case”), stated that “[i]f the case does not go
forward or if trial is completed before Friday April 28, 2017, Plaintiff’s counsel shall
immediately file a notice if the Court so indicating.” DE 30 (emphasis added). Trial ended on
Thursday, April 27, 2017; however, Plaintiff’s counsel did not file a notice so indicating until
nearly midnight on April 30, 2017. DE 34. Over two days’ delay is not immediate.
This Court has also implemented clear requirements regarding filings proof of service—
requirements Plaintiff’s counsel did not abide. The Court’s Order Setting Status Conference,
Calendar Call, Pretrial Deadlines, and Trial Date and Order of Reference to Magistrate (“Trial
Order”) states: “Unless service is waived, proof of service must be made to the Court by filing
the server’s affidavit immediately upon receipt.” DE 6 at 2. When followed, this procedure
facilitates the expeditious resolution of matters before the Court. The returns of service reflect
both Defendants were served on March 15, 2017. DE 8, 9. However, the returns of service were
not filed until April 3, 2017—two days before Defendants’ responses to the Complaint were due.
Id. The Court observes that these failures to comply are not isolated incidents and strongly
cautions Plaintiff’s counsel that such failures will, in future cases, not be missed by the Court.

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II.

CONCLUSION
As outlined above, the Court finds a reduction of 13.2 hours appropriate. A total of 13

hours remain. Multiplying 13 hours by Plaintiff’s counsel’s hourly rate of $350.00 yields a total
of $4,550.00 to which Plaintiff’s counsel is entitled.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 18th day of July,
2017.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

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