Anderson et al v. Creve Coeur Urgent Care LLC et al

Filing 141

OPINION, MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Plaintiffs' Motion for Attorney Fees and Costs [Doc. No. 138 ] is GRANTED in part and DENIED in part as set forth above. IT IS FURTHER ORDERED that Plaintiffs are awarded attorneys' fees in the amount of $203,070.00 and costs in the amount of $7,198.56 for a total of $210.268.56. A separate Judgment will accompany this Memorandum and Order. Signed by District Judge Henry Edward Autrey on 9/29/22. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TORIA ANDERSON, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
CREVE COEUR URGENT CARE, )
LLC, et al.,
)
)
Defendants.
)

Case No. 4:16CV2136 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Attorney Fees and
Costs [Doc. No. 138]. Defendants oppose the Motion. For the reasons set forth
below, Plaintiffs’ Motion will be granted in part and denied in part.
Background
On December 22, 2016, Plaintiffs Toria Anderson and Wendy Medina
(collectively, “Plaintiffs”) filed a three-count Complaint alleging that Defendants,
their former employers, violated the Fair Labor Standards Act (“FLSA”), 29
U.S.C. § 201 et seq. (Count I), violated the overtime provisions of the Missouri
Minimum Wage Law (“MMWL”), Mo. Rev. Stat. § 290.505 (Count II), and
committed breach of contract (Count III).
On July 3, 2019, Plaintiffs filed a motion for summary judgment, which this
Court granted on September 24, 2019. In its Order, the Court ruled that (1)

Defendants violated the FLSA and MMWL by failing to properly compensate
Plaintiffs for overtime hours; (2) Plaintiffs were entitled to liquidated damages on
their FLSA claim; and (3) Defendant Sonny Saggar was individually liable for the
FLSA violations. Plaintiffs seemingly abandoned Count III in their motion for
summary judgment.
Plaintiffs filed their Motion for Relief on October 4, 2019, seeking a total
of $57,353.46, specifically $10,394.06 in unpaid overtime wages and $10,394.06
in liquidated damages for Plaintiff Anderson, and $18,282.67 in unpaid overtime
wages $18,282.67 in liquidated damages for Plaintiff Medina.
The Court ultimately awarded Plaintiff Anderson a judgment of $328.60 and
Plaintiff Medina a judgment of $539.54, for a total award of $868.14.
This matter was set for trial on November 8, 2021. On November 5, 2021,
the parties moved to dismiss the remaining claims with prejudice. On November 8,
2021, the Court entered a Final Judgment awarding Plaintiffs actual and liquidated
damages for their claim that Defendants failed to include weekend shift differential
pay in their calculation of their overtime rates of pay in the amount of $328.60 to
Plaintiff Anderson and $539.54 to Plaintiff Medina, for a total award of $868.14,
and dismissed Plaintiffs’ other claims.
Plaintiff now requests for the Court to order Defendants to pay $210,739.50
in attorneys’ fees and $14,488.73 in costs pursuant to the FLSA and MMWL.
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Defendant objects to the amounts and requests the Court’s award for attorneys’
fees and costs be between $1,054.79 and $2,604.42.
Legal Standard
The FLSA provides that, in addition to a judgment awarded to a plaintiff in
an FLSA action, the court shall “allow a reasonable attorney's fee to be paid by the
defendant, and the costs of the action.” 29 U.S.C. § 216(b). Similarly, the MMWL
directs that employers found in violation of the law “shall be liable...for costs and
such reasonable attorney fees as may be allowed by the court or jury.” RSMo §
290.527.
The starting point for determining the amount of reasonable attorneys' fees is
the lodestar amount, which is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S.
424, 433 (1983). The Court “has great latitude to determine a reasonable hourly
rate because it is intimately familiar with its local bar.” Childress v. Fox Assocs.,
LLC, 932 F.3d 1165, 1172 (8th Cir. 2019). The court also “may rely on
reconstructed time entries to calculate the hours worked if those entries
satisfactorily document the time,” but “should exclude ‘hours that were not
reasonably expended’ from its calculations.” Id., quoting Hensley, 461 U.S. at 434.
Other factors the Court may consider include (1) the time and labor required; (2)
the novelty and difficulty of the questions; (3) the skill requisite to perform the
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legal service properly; (4) the preclusion of other employment; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the
client or circumstances; (8) amount involved and results obtained; (9) experience,
reputation, and ability of the attorneys; (10) undesirability of the case; (11) nature
and length of professional relationship with client; and (12) awards in similar
cases. See Hensley, 461 U.S. at 430 n.3. “In sum, the court should calculate the
reasonable hourly rate and the reasonable number of hours worked, use these two
variables to calculate the lodestar, and, as appropriate, adjust the lodestar to reach
the final award.” Burton v. Nilkanth Pizza Inc., 20 F.4th 428, 431 (8th Cir. 2021)
Discussion
Attorneys’ Fees
Plaintiffs seek attorneys’ fees in the amount of $209,490.00 based on a total
of 688.2 hours expended on the litigation of the claims against Defendants by
Brown, LLC. Plaintiffs also seek attorney’s fees for local counsel Engelmeyer &
Pezzani, LLC, in the amount of $1,249.50, bringing the total to $210,739.50. The
attorneys’ fees for Brown, LLC (“the firm”) include the following fee expenses:

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In support of their requests, Plaintiffs attached several exhibits, including a
declaration from attorney Jason Brown explaining the extensive background and
work that the firm spent on this case, a resume listing the firm’s qualifications and
experience, the firm’s time records, the firm’s cost records and exhibits supporting
their requested hourly rate from a local attorney and an excerpt from Missouri
Lawyers Weekly. Plaintiffs also attached an affidavit and time records statement
from Anthony Pezzani, local counsel for Engelmeyer & Pezzani.
Defendants do not specifically object to the proposed hourly rates or make
any argument for the Court to consider why the hourly rates are unreasonable using
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the proper analysis pursuant to lodestar, but generally objects to the overall total
amount of money requested. Defendants also objects to the amount of hours
Plaintiffs submit they spent on the case, stating the hours are excessive and their
overall success does not merit the amount requested.
The Court must first calculate the lodestar by “multipl[ying] the number of
hours worked by the prevailing hourly rate.” Vines v. Welspun Pipes Inc., 9 F.4th
849, 855 (8th Cir. 2021). When assessing the reasonableness of an hourly rate, the
Court considers “the ordinary fee for similar work in the community.” Drake v.
Steak N Shake Operations, Inc., No. 14-1535, 2019 WL 2075895, *3 (E.D. Mo.
2019), quoting Shakopee v. Mdewakanton Sioux Cmty. v. City of Prior Lake,
Minn., 771 F.2d 1153, 1160 (8th Cir. 1985). A search of FLSA cases in this district
over several years have showed a broad range of hourly rates, supporting
Plaintiffs’ request for $200-$300 per hour for the services of the associate
attorneys and $400 for local counsel attorney Pezzani as a reasonable hourly rate.
See Stockdall v. TG Investments, Inc., No. 4:14CV01557 ERW, 2016 WL
4206012, at *1-18 (E.D. Mo. Aug. 10, 2016) (approving an hourly rate of $300 in a
one-day bench trial); Thornton v. Mainline Commc'ns, LLC, No. 4:12-CV-00479
SNLJ, 2016 WL 687844, at *2 (E.D. Mo. Feb. 19, 2016) (approving hourly rates of
$350 and $250 following grant of partial summary judgment); Raniolo v.
Southport, LLC, No. 4:15CV00601 ERW, 2015 WL 10936741, at *1 (E.D. Mo.
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Sept. 1, 2015) (approving hourly rates of $350, $275, and $200 following grant of
summary judgment); Van Booven v. PNK (River City), LLC, No. 4:14-CV-851
CEJ, 2015 WL 3774043, at *5 (E.D. Mo. June 17, 2015) (approving hourly rates of
$350 and $300 following settlement by the parties); Koenig v. Bourdeau Const.
LLC, No. 4:13CV00477 SNLJ, 2014 WL 6686642, at *4 (E.D. Mo. Nov. 26, 2014)
(approving hourly rates of $350 and $250 following settlement by the parties);
Risch v. Natoli Engineering Co., LLC, 2012 WL 4357953, at *4 (E.D. Mo. Sept.
24, 2012) (approving two partners with thirty-years experience their usual $400
hourly rate); and Betton v. St. Louis County, 2010 WL 2025333, at *4 (E.D. Mo.
May 19, 2010) (approving two partners their usual hourly rates of $450 and $400).
However, the cases do not support Plaintiffs’ request for $500 per hour for
the services of attorney Brown. The cases finding an hourly rate of $500
reasonable were class action suits involving complex litigation and unique
circumstances not found here. See Sandoval-Osegura v. Harvey Pallets Mgmt.
Group, LLC, No. 4:19-CV-00096-AGF, 2021 WL 2337614, at *2 (E.D. Mo. June
8, 2021) (finding hourly rates of $500 for partners and $350-400 for associates are
reasonable in light of prevailing rates in the community in a class action settlement
totaling $140,000); Drake, 2019 WL 2075895 at *3 (finding hourly rates of $500
and $475 per hour “reasonable” in complex, multi-year litigation case with almost
300 plaintiffs). Therefore, the Court finds a reasonable hourly rate for Brown is
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$400, consistent with local counsel attorney Pezzani’s hourly rate, prevailing rates
in the community, and similar cases.
As to hours expended on the ligation, Plaintiffs seek fees for 688.2 hours for
the firm and 3.1 hours for local counsel. Plaintiffs outlined the firm’s time records
spent in extensive detail, from documenting ten-minute phone calls and emails to
hours spent in depositions, necessary travel, conducting legal research and drafting
and preparing many motions filed in this case. Based on the Court’s lodestar
calculation and its careful review of Plaintiffs’ extensive documents outlining the
reasons in support for their requested attorneys’ fees, the number of hours worked
that Plaintiffs have requested are reasonable. Plaintiffs were successful in this
litigation as they were awarded actual and liquidated damages for their claim that
Defendants failed to include weekend shift differential pay in their calculation of
their overtime rates of pay. A case pending for nearly five years, from December
22, 2016 to November 8, 2021, is going to involve an extensive amount of time
and labor required, as it did here. Therefore, the Court finds Plaintiffs are entitled
to attorneys’ fees in the total amount of $203,070.00. This total includes the
Court’s lodestar calculation adjusting Brown’s hourly rate to $400, which now
totals $30,640.00 instead of Plaintiffs’ original request of $38,150.00. Local
counsel also included a $9.50 charge for discovery processing, which will not be
included in the attorneys’ fee amount as that should have been requested in costs.
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Costs
Plaintiffs seek costs in the amount of $14,488.73 for data processing,
depositions, filing fee, mediation fees, miscellaneous, PACER, postage, pro hac
vice fees, process server fees, subpoena for payroll records, travel, and LexisNexis.
Defendants generally oppose, taking issue with the travel and LexisNexis costs, but
do not suggest a specific amount for costs.
“In FLSA cases, costs are not limited to the categories set forth in § 1920 for
prevailing parties. Any costs not allowed as taxable costs under § 1920 may be
allowed as part of attorney's fees, or nontaxable costs, where there is other
statutory authorization. See Sturgill v. United Parcel Service, Inc., 512 F.3d 1024,
1036 (8th Cir. 2008) (holding that reasonable attorney fee includes reasonable outof-pocket expenses incurred by an attorney, which are normally charged to a feepaying client including expenses that are not enumerated under § 1920). However,
the Eighth Circuit has held that computer-aided research is a component of
attorneys' fees and cannot be taxed as an item of taxable or nontaxable costs in
addition to the attorneys' fee award. Standley v. Chilhowee R-IV School Dist., 5
F.3d 319, 325 (8th Cir. 1993) (citing Leftwich v. Harris-Stowe State College, 702
F.2d 686, 695 (8th Cir. 1983)). ‘[T]he law of this Circuit is that computer-based
legal research must be factored into the attorneys' hourly rate, hence the costs of
the computer time may not be added to the fee award.’” Id.
Thornton, 2016 WL 687844, at *1.
The Court finds that Plaintiffs may recover the costs for data processing,
depositions, filing fee, mediation fees, postage, pro hac vice fees, process server
fees, and subpoena for payroll records, but not costs for miscellaneous, travel,
PACER and LexisNexis. Just like the computer-based research expenses for
LexisNexis and PACER, the Court finds the travel costs have been adequately
factored into the attorneys’ hourly rate. The “miscellaneous” cost is vague, and
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Plaintiff provides no reason to justify these costs. The claimed expenses will be
reduced by $7,290.17, which is the total cost amount included for miscellaneous
($38.18), travel ($4,888.72), PACER ($13.50) and LexisNexis ($2,349.77). After
these deductions, the Court will award Plaintiffs costs in the amount of $7,198.56.
Conclusion
Based on the lodestar calculation, the Court finds Plaintiffs’ award for
attorneys’ fees will be awarded in the amount of $203,070.00 for the reasons stated
above. The Court also finds Plaintiffs costs will be awarded in the amount of
$7,198.56. Therefore, Plaintiffs’ Motion will be granted in part and denied in part.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Attorney Fees and
Costs [Doc. No. 138] is GRANTED in part and DENIED in part as set forth
above.
IT IS FURTHER ORDERED that Plaintiffs are awarded attorneys' fees in
the amount of $203,070.00 and costs in the amount of $7,198.56 for a total of
$210.268.56.
A separate Judgment will accompany this Memorandum and Order.
Dated this 29th day of September, 2022.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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