Lyles v. Burt's Butcher Shoppe and Eatery Inc et al
ORDER denying Defendants' Motion for Judgment as a Matter of Law; finding as moot 19 Motion in Limine; finding as moot 25 Motion to Amend/Correct. Ordered by Judge Clay D. Land on 10/17/2011 (ajp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CASE NO. 4:10-CV-53 (CDL)
EATERY INC., and BURTON STACEY,
O R D E R
against his former employer, Burt‟s Butcher Shoppe and Eatery,
Inc., (hereinafter “Burt‟s Butcher Shoppe”) and Burton Stacey,
Jr., (hereinafter “Mr. Stacey”).
14, 2010. Compl., ECF No. 1.
The Complaint was filed on May
Plaintiff sought to recover back
overtime pay, liquidated damages, and his costs of litigation,
their Answers on June 15, 2010. Defs.‟ Answers, ECF Nos. 4 & 5.
Plaintiff waived his demand for a jury trial, and the matter was
set for a bench trial that was held on September 13, 2011.
Court finds in favor of Plaintiff.
Preliminarily, the Court
after the presentation of Plaintiff‟s case and at the conclusion
of all of the evidence.
Therefore, neither party was entitled
judgment as a matter of law is denied.
The Court makes the
following findings of fact and conclusions of law.
FINDINGS OF FACT
The parties stipulated to the following facts.
Order Ex. A, Material Undisputed Facts, ECF No. 22 at 10-11.
1. Burt‟s Butcher Shoppe is a corporation organized under the
laws of the State of Georgia.
2. Burton Stacey, Jr. is the sole shareholder and President of
Burt‟s Butcher Shoppe.
3. From 2007 through 2010, Burt‟s Butcher Shoppe, had two or
more employees “handling, selling, or otherwise working on
goods or materials that have been moved in or produced for
4. During the time Plaintiff was actively employed at Burt‟s
Butcher Shoppe, Plaintiff was an employee of Burt‟s Butcher
Shoppe, within the meaning of 29 U.S.C. § 203(e).
5. During the time Plaintiff was actively employed at Burt‟s
Butcher Shoppe, Burt‟s Butcher Shoppe was the employer of
Plaintiff within the meaning of 29 U.S.C. § 203(e).
6. Defendants never sought or obtained any written or verbal
opinion from the United States Department of Labor or the
Georgia Department of Labor as to how Plaintiff or someone
who performs the same business function as Plaintiff should
be compensated to comply with the Fair Labor Standards Act
(“FLSA” or “the Act”).
7. Defendants never sought or obtained any opinions, including
but not limited to legal advice, as to how Plaintiff or
Plaintiff should be compensated to comply with the FLSA.
8. Plaintiff was employed as a cook and stocker by Defendant
Columbus, Muscogee County, Georgia from approximately June
12, 2005 until February 6, 2010.
controlled by Burton Stacey, Jr.
At all times material to this action, Defendant Burton
Burt‟s Butcher Shoppe in relation to Plaintiff.
From May 14, 2007 Defendants paid Plaintiff $7.50 per
hour worked and paid the Plaintiff‟s share of the 7.65%
required to pay.
Findings of Fact
At trial, the Court heard testimony and received evidence
from Plaintiff Jarvis Lyles; Rayfield Mickles, a former employee
of Defendant Burt‟s Butcher Shoppe; Charles R. Bridgers, one of
Plaintiff‟s counsel; Defendant Burton Stacey, Jr.; and Burton
Stacey, III, a former manager of Burt‟s Butcher Shoppe.
considering the evidence presented, the Court finds that the
1. Plaintiff was employed by Burt‟s Butcher Shoppe during the
following relevant time periods:
a. May 14, 2007 through April 19, 2008, and
b. December 20, 2008 through February 6, 2010.
divisions on the same property.
There is a butcher shop
and a restaurant.
3. The restaurant is open to customers from 11:00 am until
4. The restaurant was closed on Thanksgiving, the day after
Thanksgiving, Christmas, New Year‟s Day and July 4.
5. The restaurant is open five days each week (Tuesday through
Saturday), unless one of the above holidays falls between
Tuesday and Saturday.
If that occurs, the restaurant may
be open on a Sunday or Monday adjoining that work week.
using a time clock that Plaintiff punched in and out on.
7. The work time that was recorded on the time clock was known
to the parties as “Clock Time.”
Time worked off the clock was known by the parties as
The term Paper Time derived from the fact that time
worked off the clock was recorded each week by Kitchen
Manager Odell Boykins on waitress order sheets.
Defendants routinely instructed Plaintiff to clock in
and out so as to not exceed forty hours of Clock Time in a
In 2007, for example, Plaintiff routinely reported to
work and began work at 9:30 each morning.
Plaintiff and the other kitchen workers would work off
the clock, on Paper Time, for the first three to three and
one half hours.
instructed Rayfield Mickles to clock in all of the hourly
The employees who Mr. Mickles clocked in had already
been working a number of hours, on Paper Time.
clock out after working two hours on a Saturday morning,
thereby limiting his Clock time to under 40 hours, and to
continue working off the clock on Paper Time.
Plaintiff not clock in at all on certain days, and work the
entire day on Paper Time.
manipulate their Clock Time so as to not exceed forty hours
of recorded time in a workweek.
instruct the employees of Burt‟s Butcher Shoppe to record
hours worked as Paper Time.
Plaintiff was paid for his Clock Time by check.
Plaintiff was paid for his Paper Time in cash.
Defendants did not maintain all records reflecting the
Paper Time worked by Plaintiff.
Defendants failed to retain records of the hours that
Plaintiff was scheduled to work.
Defendants admit and the Court finds that the record
of hours on Defendant‟s time cards (Clock Time) is not
The records of the employer do not provide a basis to
The amount Defendant paid Plaintiff by check depended
on the hours Plaintiff worked on Clock Time, and because
the Plaintiff‟s Clock Time did not accurately reflect the
provide an adequate basis to determine the number of hours
he worked in any workweek.
Paper Time frequently began well before the 40-hour
overtime threshold was reached.
Plaintiff might have less than forty hours of Clock
Time in a week and all the rest of the time as Paper Time.
reasonable certainty any evidence as to how many overtime
hours Plaintiff worked.
Defendant‟s evidence on this issue
The only evidence of Plaintiff‟s complete work time
was the Plaintiff‟s testimony and the testimony of Rayfield
Plaintiff worked from 9:30 a.m. to 8:30 p.m. most work
Plaintiff took a non-compensable meal break on some
Plaintiff was required to clock in and out before each
The only evidence of the actual meal breaks taken by
The Clock Time records are accurate with respect to
the meal breaks that Plaintiff took.
Plaintiff was paid in cash at the rate of $7.50 per
hour for all Paper Time, regardless of whether the Paper
Time reflected overtime hours.
Plaintiff at time and one half the regular rate for any
overtime recorded as Clock Time.
Defendants never paid Plaintiff at time and one half
times the regular rate for any overtime recorded as Paper
Defendants instituted a new work time recording system
in July of 2009.
Defendants‟ accountant began writing payroll checks in
July of 2009.
After July of 2009, Plaintiff was paid at time and one
half the regular rate for any overtime recorded as Clock
Plaintiff in cash for Paper Time.
Based on the testimony of Plaintiff and Mr. Mickles,
the Plaintiff worked 1,368.1 hours of overtime in the three
years preceding the filing of the Complaint, for which he
did not receive the overtime premium of time and one half.
Defendants paid Plaintiff $7.50 per hour worked and
paid the Plaintiff‟s share of the 7.65% FICA contribution
that Plaintiff would otherwise be required to pay.
Plaintiff‟s regular rate as defined by the FLSA was,
contribution paid on Plaintiff‟s behalf: $8.07 per hour.
The overtime premium that was due the Plaintiff was
($12.11) and the $7.50 in cash that he was paid: $4.61.1
This number is slightly lower than the overtime premium of $4.67
presented by Plaintiffs at trial.
After the bench trial was
The value of 1,368.1 hours of unpaid overtime at an
overtime premium of $4.61 is $6,306.94.
At all times relevant to this matter, Mr. Stacey was
Plaintiff be paid at one and one half times the regular
rate for work in excess of forty hours in any work week.
At all times relevant to this matter, Mr. Stacey acted
At all times relevant to this matter, Mr. Stacey had
operational control over Burt‟s Butcher Shoppe including
At all relevant times, Mr. Stacey willfully failed to
Plaintiff has submitted a detailed accounting of his
attorneys‟ fees and costs of litigation that provides the
following information: The date, the timekeeper, the time
recorded and the activity.
Plaintiff has incurred $49,571.78 in attorney‟s fees.
This amount includes the time detailed in Plaintiff‟s Trial
concluded, Plaintiff‟s counsel advised that their initial calculation
was in error, and that the actual overtime premium was $4.61.
calculations in this Order use an overtime premium of $4.61.
Exhibit 7 of $34,421.78 for pretrial preparation.
in Plaintiff‟s Exhibit 7 totaled $35,972.60, but that total
improperly included the costs for the filing fee ($350),
court reporter fees ($1,114.70) and witness fees ($86.12)
as attorney time.
The Court has subtracted these costs
from the amount of attorney time claimed in Plaintiff‟s
Exhibit 7 to reach the $34,421.78 figure.
spent an additional 12.0 hours for Mr. Bridgers and Mr.
Fitzpatrick the day before trial ($7,200); an additional
8.0 hours for Mr. Bridgers and Mr. Fitzpatrick for the day
of trial (including preparation and travel) ($4,800); and
an additional 7.5 hours ($2,250.00) for Mr. Bridgers and
3.0 hours for Mr. Fitzpatrick ($900) to draft a proposed
order as required by the Court.
Bridgers Decl., ECF No.
Plaintiff‟s counsel has charged this file as follows:
$300 per hour for Mr. Bridgers and Mr. Fitzpatrick; $85 per
hour for Ms. Sorrenti, their paralegal; and $45 per hour
for Ms. Toenes, their legal assistant.
different Title VII and FLSA cases in the Northern District
Plaintiff has incurred $1,750.82 in costs for a filing
witness fees include the fee for Charles Cochran, who did
potential witness until shortly before trial.
The Fair Labor Standards Act
The Fair Labor Standards Act provides:
No employer shall employ any of his employees who in
any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in an
enterprise engaged in commerce or in the production of
goods for commerce . . . for a workweek longer than
forty hours . . . unless such employee receives
compensation for his employment in excess of the hours
above specified at a rate not less than one and onehalf times the regular rate at which he is employed.
29 U.S.C. § 207(a)(1) & (2)(C).
Neither an employee nor an employer can effectively waive
or contractually abridge any of the provisions of the Fair Labor
Lee v. Flightsafety Servs. Corp., 20 F.3d 428,
432 (11th Cir. 1994); Lynn's Food Stores, Inc. v. United States,
679 F.2d 1350, 1352 (11th Cir. 1982).
Jurisdiction Under the Act
As set out above, the Parties stipulate that Burt‟s Butcher
Shoppe is subject to the FLSA. The Parties stipulate that during
the time Plaintiff was actively working, he was an “employee”
within the meaning of the Act and that Burt‟s Butcher Shoppe was
an “employer” within the meaning of the Act.
Plaintiff was not
exempt from payment of an overtime premium pursuant to the FLSA.2
III. FLSA Statute of Limitations
29 U.S.C. § 255(a) of the FLSA provides that actions are to
be brought within 2 years after the cause of action “accrued”
violation may be commenced within three years after the cause of
29 U.S.C. § 255(a).3
In a recent case, Morgan
v. Family Dollar Stores, Inc., 551 F.3d 1233, 1283 (11th Cir.
2008), the Eleventh Circuit stated that “„[t]o establish that
the violation of the [FLSA] was willful in order to extend the
limitations period, the employee must prove by a preponderance
While the Parties did not formally stipulate that Plaintiff was nonexempt, Defendants have not pled an FLSA exemption and have presented
no evidence or argument that Plaintiff was exempt.
The Court finds
that Plaintiff was not exempt from the overtime requirements of the
FLSA. See Abel v. S. Shuttle Servs., Inc., 631 F.3d 1210, 1212 (11th
Cir. 2011) (per curiam) (“The employer has the burden to show that an
“In common usage the word „willful‟ is considered synonymous with
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988) (citing
ROGET'S INTERNATIONAL THESAURUS § 622.7, at 479; § 653.9, at 501 (4th
of the evidence that his employer either knew that its conduct
was prohibited by the statute or showed reckless disregard about
whether it was.‟” Morgan, 551 F.3d at 1280 (second alternation
in original) (quoting Alvarez Perez v. Sanford-Orlando Kennel
Club, Inc., 515 F.3d 1150, 1162-1163 (11th Cir. 2008)) (internal
quotation marks omitted).
Reckless disregard is defined as the
“failure to make adequate inquiry into whether conduct is in
(quoting 5 C.F.R. § 551.104).
Defendants were aware of their obligations under the Act to
pay an overtime premium.
Defendants stipulated that they made
departments of labor as to the proper way to pay Plaintiff.
Court finds that the purpose of Defendants‟ dual record keeping
scheme to avoid paying overtime establishes the willfulness of
The applicable statute of limitations is,
therefore, three years.
Because Plaintiff filed his Complaint
overtime under the FLSA from May 14, 2007 until the end of his
employment on February 6, 2010.
Regular Hourly Rate and Overtime Premium Calculation
employee‟s “regular rate.” 29 U.S.C. § 207 (a)(1).
rate” is the hourly rate paid to an employee for the normal nonovertime work period.
Unless specifically excluded, the regular
rate includes “all remuneration for employment paid to, or on
behalf of, the employee.” 29 U.S.C. § 207(e).
Based on the
testimony received at trial, the Court finds that Plaintiff‟s
“regular” hourly rate was $8.07, which consisted of the $7.50
rate paid to him and an additional fifty-seven cents ($0.57) per
hour that represents the employee‟s portion of FICA paid on
behalf of Plaintiff by the Defendants.
His overtime premium
was, therefore, $12.11. Plaintiff was paid his straight time
rate ($7.50 per hour) for all Paper Time hours worked.
results in an underpayment of $4.61 for each hour of work in
excess of forty hours in any workweek.
Hours Worked and Regular Rate
To prevail on a FLSA overtime claim, an employee must prove
that he was “suffered or permitted to work [overtime] without
Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495
F.3d 1306, 1314 (11th Cir. 2007).
“[A]n employee has carried
out his burden if he proves that he has in fact performed work
sufficient evidence to show the amount and extent of that work
as a matter of just and reasonable inference.”
(internal quotation marks omitted).
Id. at 1316
“The burden then becomes
the employer‟s, and it must bring forth either evidence of the
reasonableness of the inference to be drawn from the employee‟s
29 U.S.C. § 211(c) requires employers to “make, keep and
preserve records” of employees and of their “wages, hours, and
other conditions and practices of employment” in accordance with
regulations adopted by the Department of Labor‟s Wage and Hour
Division. 29 U.S.C. § 211(c).
Pursuant to the record keeping
As to those employees subject to minimum wage and
overtime, payroll records must be kept that includes the hours
worked each day and week. 29 C.F.R. § 516.2(a)(7).
non-exempt employees must be preserved for at least three years.
29 C.F.R. § 516.5(a).
Defendants failed to maintain its records
in the manner required by 29 U.S.C. § 211(c), 29 C.F.R. § 516.2,
and 29 C.F.R. § 516.5.
required records has a legal consequence.
“„If the employer
fails to produce such evidence, [which is the case here], the
court may then award damages to the employee, even though the
result be only approximate.‟” Donovan v. New Floridian Hotel,
Inc., 676 F.2d 468, 471 (11th Cir. 1982) (quoting Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946)).
testified that he prepared the summary with his attorneys.
also testified that this summary took into account the actual
break time recorded on his available time cards.
also took into account his normal working days and hours, the
restaurant‟s holidays and his break in service.
Based on Mr.
As set out above, the Defendants have admitted that their
time records are not accurate.
It is impossible to determine
with specificity how many hours Plaintiff worked.
finds that Plaintiff‟ estimate of his hours is a reasonable
approximation and meets the standard set out in Anderson and
As set out above, the Court has found that Plaintiff is due
an additional $4.61 for each hour of uncompensated overtime for
a total due to the Plaintiff of $6,306.94.
employer who violates the provisions of section 206 or section
207 of this title shall be liable to the employee or employees
affected in the amount of their unpaid minimum wages, or their
unpaid overtime compensation . . . and in an additional equal
amount as liquidated damages.”
29 U.S.C. § 216(b) (emphasis
Section § 260 provides that:
In any action . . . to recover unpaid minimum wages,
unpaid overtime compensation, or liquidated damages,
under the Fair Labor Standards Act of 1938 . . ., if
the employer shows to the satisfaction of the court
that the act or omission giving rise to such action
was in good faith and that he had reasonable grounds
for believing that his act or omission was not a
1983 . . ., the court may, in its sound discretion,
award no liquidated damages or award any amount
thereof not to exceed the amount specified in section
216 of this title.
29 U.S.C. § 260.
Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th
“[T]he district court‟s decision whether to award
employer carries its burden of proving good faith.”
employer establishes good faith “if the employer shows to the
satisfaction of the court that the act or omission giving rise
to such action was in good faith and that he had reasonable
violation of the Fair Labor Standards Act.”
Alvarez Perez, 515
F.3d at 1163; accord 29 C.F.R. § 790.22.
“The employer bears
the burden of establishing both the subjective and objective
Alvarez Perez, 515 F.3d at 1163.
Defendants knew of their obligations under the Act and went
to great lengths to avoid them.
Their conduct was willful, and
for these reasons, the Court finds that Defendants have not met
their burden of proving that their failure to comply with the
FLSA was done in good faith.
Mr. Lyles proved damages under the
additional 6,306.94 in liquidated damages is required and hereby
awards this sum to the Plaintiff.
VII. Individual Liability of Burton Stacey, Jr.
relation to an employee.” 29 U.S.C. § 203(d).
The Supreme Court
has emphasized the “expansiveness” of the FLSA's definition of
Falk v. Brennan, 414 U.S. 190, 195 (1973).
and beyond the plain language, moreover, the remedial nature of
the statute further warrants an expansive interpretation of its
provisions so that they will have „the widest possible impact in
the national economy.”
Herman v. RSR Sec. Servs. Ltd., 172 F.3d
132, 139 (2d Cir. 1999) (internal quotation marks omitted).
employers who may be responsible for compliance with the FLSA."
Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965 (6th
overwhelming weight of authority is that a corporate officer
with operational control of a corporation's covered enterprise
is an employer along with the corporation, jointly and severally
liable under the FLSA for unpaid wages.” Patel v. Wargo, 803
Corporate officers have “operational control” when
they are “involved in the day-to-day operation or have some
Even occasional participation by a defendant can be
circumstances demonstrate that the defendant was in charge of
day-to-day operations and exercised direct supervision over the
See Olivas v. A Little Havana Check Cash, Inc., 324
F. App‟x 839, 845-46 (11th Cir. 2009) (per curiam) (finding that
reasonable person could conclude that wife was employer because
she was involved in day-to-day operations and exercised direct
supervision over employees, particularly when her husband was
out of town).
Mr. Stacey is the sole shareholder and President of Burt‟s
At all times relevant to this case, Mr. Stacey
had operational control over Burt‟s Butcher Shoppe, including
the ability to hire, fire, discipline and control its employees.
At all times relevant to this case, Mr. Stacey acted on behalf
of Burt‟s Butcher Shoppe as to Plaintiff‟s compensation.
times relevant to this case, Mr. Stacey made the decision to not
pay Plaintiff at time and one half his regular rate for time
worked in excess of forty hours.
Mr. Stacey was aware that the
FLSA required that Plaintiff be paid an overtime premium.
Stacey actively engaged in a scheme to circumvent the FLSA by
keeping two separate methods of recording work time.
reasons, the Court finds that Mr. Stacey was an “employer” of
Plaintiff as defined in 29 U.S.C. § 203(d), and therefore is
individually liable for Plaintiff‟s damages.
Plaintiff’s Attorney’s Fees and Costs
29 U.S.C. § 216(b) of the FLSA provides that in any action
“allow a reasonable attorney‟s fee to be paid by the defendant,
and costs of the action.” 29 U.S.C. § 216(b).
In the Eleventh
Circuit, an award of attorney‟s fees is mandatory for prevailing
plaintiffs under the FLSA. See Dionne v. Floormasters Enters.,
Inc., 647 F.3d 1109, 1115 (11th Cir. 2011); Kreager v. Solomon &
Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985) (citing 29
U.S.C. § 216(b)).
Additionally, “„[a] request for attorney's fees should not
result in a second major litigation.‟” Norman v. Housing Auth.
of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988)
(alteration in original) (quoting Hensley v. Eckerhart, 461 U.S.
424, 437 (1983)). It is “perfectly proper to award attorney's
fees based solely on affidavits in the record.” Id. at 1303.
“The court, either trial or appellate, is itself an expert on
the question and may consider its own knowledge and experience
independent judgment with or without the aid of witnesses.” Id.
(internal quotation marks omitted).
The first inquiry in setting the amount of attorneys‟ fees
expended” multiplied by “a reasonable hourly rate” determines
Id. at 1302.
“A reasonable hourly rate is the
Staff time is also compensable. See Missouri v. Jenkins, 491 U.S.
274, 285 (1989). “While it is true that time for secretaries, office
managers, and other administrative personnel is deemed to be subsumed
into an attorney's market rate, the same is not true for paralegals,
law clerks, and other legal assistants to the extent they perform work
traditionally performed by an attorney.” Webster Greenthumb Co. v.
Fulton County, Ga., 112 F. Supp. 2d 1339, 1366 (N.D. Ga. 2000)
Plaintiffs to show that the rate is reasonable.
charged by Plaintiff‟s counsel and their staff are reasonable
given their experience, qualifications and willingness to pursue
claims under the FLSA on a fee shifting basis.
counsel divided the work between themselves and there was little
overlap in their efforts.
The Court further finds that the
requested award of attorney‟s fees and costs in this case is
lodestar is $49,571.78.
The general rule is that where “a plaintiff has obtained
reasonably expended on the litigation, and indeed in some cases
circumstances the fee award should not be reduced simply because
the plaintiff failed to prevail on every contention raised in
alternative legal grounds for a desired outcome, and the court's
(Thrash, J.) (citing Jean v. Nelson, 863 F.2d 759, 778 (11th Cir.
Defendants have presented no credible evidence to suggest
that Plaintiff‟s counsel did not spend the time on this matter
for which they seek a recovery of attorney‟s fees; nor have
Defendants presented any evidence that the amount of time spent
on this matter was unreasonable.
Defendants maintain, however,
that Plaintiff‟s claim for attorneys‟ fees should be reduced
because Plaintiff initially sought more damages in his Complaint
guidance as to when such a reduction is warranted. In Hensley,
the Supreme Court held that:
Where the plaintiff has failed to prevail on a claim
that is distinct in all respects from his successful
claims, the hours spent on the unsuccessful claim
should be excluded in considering the amount of a
reasonable fee. Where a lawsuit consists of related
claims, a plaintiff who has won substantial relief
should not have his attorney's fee reduced simply
because the district court did not adopt each
contention raised. But where the plaintiff achieved
only limited success, the district court should award
only that amount of fees that is reasonable in
relation to the results obtained.
Id. at 440.
prevailed on all counts.
He successfully proved he was entitled
to overtime, that the Defendants‟ failure to comply with the
The Court finds that Plaintiff obtained excellent
Accordingly, Plaintiff is awarded attorney‟s fees in the amount
The Court finds that Plaintiff is entitled to litigation
costs associated with pursuing the FLSA claims.
See 29 U.S.C. §
The costs claimed are allowed by the FLSA and 28 U.S.C.
§ 1920. See Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575
(11th Cir. 1988) (finding the costs recoverable by prevailing
plaintiffs in FLSA cases under § 216(b) are limited to those
Plaintiff estimated in the pretrial order that Defendants owed him
$6,085.20 in overtime. Pretrial Order 6, ECF No. 22. This figure is
less than the amount originally claimed in the Complaint.
sought a reduced amount of damages at trial because Plaintiff admitted
during discovery that he quit working for Defendants for a period of
time, a fact not previously disclosed to Plaintiff‟s counsel.
amount of damages estimated in the pretrial order, however, is less
than the amount Plaintiff proved at trial ($6,306.94). The Court also
notes that Plaintiff‟s inability to nail down exactly the amount of
his unpaid overtime compensation was attributable in part to the fact
that Defendants failed to maintain payroll records as required by the
FLSA. The Court finds that under these circumstances, a reduction in
fees based on the amount of damages awarded, compared to the amount
alleged in the Complaint, is not warranted.
28 U.S.C. § 1920 provides:
A judge or clerk of any court of the United States may tax as costs
(1) Fees of the clerk and marshal;
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
however, that Plaintiff is not entitled to recover his witness
fee for Charles Cochran because Cochran did not testify, was not
disclosed until shortly before trial and was not included in the
Plaintiff‟s costs for the Cochran witness fee.
Court awards Plaintiff $1,707.76 in costs.
For the foregoing reasons, Defendants‟ motion for judgment
as a matter of law is denied. Plaintiff Jarvis Lyles is awarded
The Clerk shall enter a Judgment accordingly in favor of
Plaintiff and against Defendants, jointly and severally, in the
total amount of $63,893.42.
All other pending motions shall be terminated as moot.
IT IS SO ORDERED, this 17th day of October, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
(5) Docket fees under section 1923 of this title;
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
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