Stewart v. CUS Nashville, LLC et al

Filing 183

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 1/10/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MISTU BLU STEWART, on behalf of herself
and all others similarly situated,

)
)
)
Plaintiffs,
)
)
v.
)
)
CUS NASHVILLE, LLC, COYOTE UGLY
)
SALOON DEVELOPMENT CORP., COYOTE )
UGLY ENTERTAINMENT, INC., and
)
LILIANA LOVELL,
)
)
Defendants.
)

Case No. 3:11-cv-342
Judge Aleta A. Trauger

MEMORANDUM
The plaintiff has filed a Motion for Attorney’s Fees and Costs (Docket No. 175), to which
the defendants have filed a Response in opposition (Docket No. 178), and the plaintiff has filed a
Reply (Docket No. 182). For the reasons stated herein, the motion will be granted and, subject to
the reductions set forth herein, the plaintiff will be awarded $54,295.08.
BACKGROUND
I.

Procedural History1
A.

Complaint and Motion to Dismiss

On April 7, 2011, plaintiff Misty Blu Stewart filed a Complaint against the defendants on
behalf of herself and similarly situated current and former employees of “Coyote Ugly” brand

1

The procedural and factual history of this case is detailed in the court’s previous
opinions, orders, and Findings of Fact and Conclusions of Law (see Docket Nos. 19, 55-56, 103,
110, 147-150, and 172-173), familiarity with which is assumed. The court summarizes the most
relevant aspects of the case history herein.

1

“Saloons” nationwide. (Docket No. 1, Compl.) The Complaint alleged that, in violation of the
Fair Labor Standards Act (“FLSA”), bartenders, waitresses, and/or and barbacks at Coyote Ugly
Saloons nationwide (1) were forced, as a matter of uniform company policy, to share their “tip
pool” with security guards (“Tip Pool Claims”); and/or (2) were forced to work “off the clock”
and/or were not paid overtime (collectively, “Off-the-Clock Claims”). The Complaint named
multiple defendants, including Coyote Ugly Saloon Nashville, LLC, Coyote Ugly Saloon
Development Corp., Coyote Ugly Entertainment, Inc. (“CUEI”), and Liliana Lovell (founder and
Chief Executive Officer of the Coyote Ugly enterprise).
On May 24, 2011, the defendants filed a (partial) Motion to Dismiss the Complaint
(Docket No. 12), seeking to dismiss (1) the Tip Pool Claims, and (2) claims against defendant
CUEI. With respect to CUEI, the defendants argued that CUEI was not an “employer” for
purposes of the claimed FLSA violations, while Stewart argued that, under Rule 56(f), she was
entitled to discovery on this issue. With respect to the Tip Pool Claims, the parties agreed that,
(a) under 29 U.S.C. §§ 203(m) and 203(t), employees who “customarily and regularly receive
more than $30 a month in tips” may pe paid less than the federal minimum wage and may share
in a “tip pool” under appropriate conditions, and (b) the authoritative case on this issue was
Kilgore v. Outback Steakhouse of Fla., Inc., 160 F.3d 294 (6th Cir. 1998), in which the Sixth
Circuit construed §§ 203(m) and 203(t) as applying to employees who “sufficiently interact with
customers in an industry [] where undesignated tips are common.” Kilgore, 160 F.3d at 301. The
parties vigorously disagreed about whether the role of security guards at Coyote Ugly Saloons
met the Kilgore standard.
The court denied the defendants’ request to dismiss CUEI without prejudice, on the

2

grounds that discovery was warranted under Rule 56(f). The court also denied the request to
dismiss the Tip Pool Claims, finding that discovery on the issue was warranted because “it is
entirely unclear how and to what extent these security personnel interact with customers, which is
the touchstone issue under Kilgore.” (Docket No. 19 at p. 6.)
B.
`

Motion for Court-Supervised Notice

On November 15, 2011, Stewart filed a Motion for Expedited Court-Supervised Notice

(Docket No. 32).2 In her motion, Stewart asked the court to conditionally certify, with respect to
both the Tip Pool Claims and the Off-the-Clock Claims, a collective action on behalf of all tipped
employees who had worked at one or more of the eight company-owned Coyote Ugly Saloons
within the relevant time frame (three years).3 (Id. at p. 1.)
In support of her motion, Stewart attached affidavits from herself and three other current
or former bartenders, including Samantha Ranger and Megan Rivera. (Docket Nos. 34-37.)
Stewart’s supporting Memorandum also contained a detailed section relating to the “employer”
status of each defendant, including CUEI. In response, the defendants conceded that the eightcompany Coyote Ugly Saloons required tip pooling with bartenders, but argued (this time based
on evidence) that the security guards did not meet the Kilgore standard as a matter of law. The
defendants also attempted to dispute the Nashville declarants’ accusations of time-shaving and

2

On November 14, 2011, November 15, 2011, and January 26, 2012 – before the court
ruled on Stewart’s motion for conditional certification – several additional individuals filed
consents to join the case as party plaintiffs. (See Docket Nos. 30-31 and 52.) For purposes of
linguistic simplicity and because the case caption retained Stewart’s name as the lone named
party plaintiff, the court will generally refer to “Stewart” or “plaintiff” in the singular when
referencing the parties’ positions, unless the context requires otherwise.
3

The defendants represented that the proposed class included at least 1,260 bartenders, in
addition to an unspecified number of barbacks. (See Docket No. 44 at p. 14).

3

unpaid overtime work and argued that the court should, at a minimum, limit the Off-the-Clock
Claims to employees at the Coyote Ugly Saloon in Nashville only (as opposed to nationwide),
because (unlike the Tip Pool Claims) Stewart had not shown any nationwide policy or other
indicia of nationwide similarity concerning those claims. The plaintiffs’ Reply focused largely
on the defendants’ arguments concerning the Tip Pool Claims. (See Docket No. 49.)
On February 13, 2012, the court granted in part and denied in part the relief requested by
Stewart. The court found that Stewart had made the requisite “modest factual showing” of
similarity between herself and other putative class members with respect to (1) bartenders,
barbacks, and waitresses at Coyote Ugly Saloons nationwide on the Tip Pool Claims, and (2)
bartenders at the Nashville Coyote Ugly Saloon (rather than nationwide) on the Off-the-Clock
Claims. Therefore, the court conditionally certified a nationwide class with respect to the Tip
Pool Claims and a Nashville-based class with respect to the Off-the-Clock Claims. After
receiving notification of the lawsuit, over 50 individuals (including Stewart) joined the lawsuit.

Although she had filed an affidavit in support of the Motion for Expedited Court-Supervised
Notice, Rivera did not join the lawsuit. Also, on December 3, 2012, following discovery, the
parties entered into a Joint Stipulation dismissing claims by 17 plaintiffs, including (1) four
plaintiffs dismissed with prejudice because they did not actually meet the requirements of either
conditionally certified class, (2) two plaintiffs dismissed with prejudice because their claims fell
outside the statute of limitations, (3) Tip Pool Claims by two out-of-state plaintiffs,4 and (4) 9

4

As described herein, Stewart later filed a Motion to Reconsider, in which she asked the
court to certify a nationwide class for the Off-the-Clock claims – i.e., to expand that class from a
Nashville-specific class to a nationwide class. The court denied that motion without prejudice,
thereby refusing to allow any out-of-state plaintiffs with putative Off-the-Clock Claims to
proceed to trial. The two plaintiffs identified in ¶ 3 of the Joint Stipulation were among the
4

plaintiffs dismissed without prejudice – including Ranger and Craft, who also had filed affidavits
supporting the Motion for Expedited Court-Supervised Notice – for failure to provide timely
written discovery responses pursuant to a court order.
By the time the case reached trial, the Nationwide Tip Pool Class included 37 individuals,
and the Off-the-Clock Class included 11 individuals.

C.

Retaliation Claims

On July 31, 2011, Stewart moved for leave to amend to add three individual retaliation
claims under FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), and to add claims against
five individual defendants. (See Docket No. 99.) The court initially found that (1) the proposed
claims against individual defendants were futile, (2) the proposed individual retaliation claims by
two of the opt-in plaintiffs (Samantha Thomas and Sarah Stone) were not futile and would
proceed, and (3) the individual retaliation claim by Stewart was futile because it failed to state a
claim and therefore would not proceed. (Docket No. 103.) Stewart filed a Motion for
Reconsideration of the court’s decision with respect to Stewart’s individual retaliation claim
(Docket No. 105), which the court granted (Docket No. 110). Accordingly, the court permitted
Stewart to file an Amended Complaint asserting all three retaliation claims. (Docket No. 111,
Am. Compl.)5

putative nationwide Off-the-Clock Class that was never certified (conditionally or otherwise) in
this lawsuit. Therefore, these two plaintiffs’ claims were ultimately dismissed in their entirety
before trial.
5

Briefly, Stewart alleged that defendant Lovell had retaliated against her by posting
inflammatory statements about Stewart on the internet; plaintiff Thomas (a former employee at a
Coyote Ugly Saloon in San Antonio) alleged that she was terminated without cause immediately
after asking her manager about the nature of the lawsuit; and Stone (a former employee at a
Coyote Ugly Saloon in Oklahoma) alleged that Coyote Ugly Director of Operations Daniel
Huckaby made offensive and derogatory comments towards Stone at a company function, driving

5

D.

Motion fors Summary Judgment and Motion for Reconsideration

On December 6, 2012, the parties filed several motions relevant to the court’s
consideration of the appropriate fee award here.
First, the defendants filed a Motion for Summary Judgment and for Class Decertification
(Docket No. 119), in which they asked the court to (1) grant judgment in their favor on the
nationwide Tip Pool Claims, (2) grant judgment for the defendants on the individual retaliation
claims, and (3) decertify the Nashville class or, at a minimum, dismiss plaintiff Katherine J.
Sharbar-Timberlake as a plaintiff. Stewart’s Response in opposition to the motion contained
sections addressing legal and factual issues specific to the nationwide Tip Pool Claims and the
retaliation claims. (See Docket No. 135 at pp. 3-14 (addressing Tip Pool Claims, including
application of Kilgore, relevant facts concerning security guards, whether an “industry standard”
was established and/or relevant, and/or whether issues of fact remained) and pp. 14-18
(addressing retaliation claims by Stewart and out-of-state plaintiff Stone)). Stewart’s brief
devoted only a single paragraph to the Off-the-Clock Claims, without reference to any legal
authority. (Id. at pp. 18-19.)6
Stone to quit (i.e., a constructive discharge). (See Docket No. 111, Am. Compl. ¶¶ 45-69.)
6

For their part, the defendants filed a substantial volume of material in support of their
motion as it related to the Tip Pool Claims, retaliation claims, and defendant CUEI. (See
generally Docket Nos. 120-22 and 143-144). For example, bartenders at Coyote Ugly Saloons in
locations other than Nashville filed affidavits describing the relationship and respective roles of
the bartenders, barbacks, and security guards at the non-Nashville locations – affidavits that were
relevant only to the Tip Pool Claims. (See Docket No. 121, Exs. 10-17 (including, inter alia,
Cayan Benjamin Affidavit (relating to Milwaukee, Wisconsin location)), Christhian Guzman
Affidavit (relating to Oklahoma City, Oklahoma location), and Veronica Riojas Affidavit
(relating to San Antonio, Texas location).) The defendants also filed the Declaration of Jeffrey
Wiseman, which contained factual allegations specific to CUEI. (Id., Ex. 4.) The defendants’
25-page Memorandum in support of the motion contained at least 17 pages concerning facts and
legal issues specific to the Tip Pool Claims, CUEI, and the retaliation claims, (Docket No. 121 at
6

Second, Stewart filed a cross-Motion for Summary Judgment (Docket No. 123), in which
she sought judgment on (1) the nationwide Tip Pool Claims, and (2) plaintiff Stone’s retaliation
claim – both of which the court ultimately dismissed following the bench trial. Stewart’s Rule 56
motion did not address the Nashville Off-the-Clock claims. Stewart filed a 15-page
Memorandum in support of the motion (Docket No. 125), a Statement of Facts (Docket No. 126),
and a Notice of Filing attaching supporting evidence (Docket No. 127). Stewart also filed a
Reply in support of the motion (Docket No. 142.)7
Third, Stewart filed a Motion for Reconsideration (Docket No. 126), in which she asked
the court to “reconsider” its refusal to certify a nationwide class for the Off-the-Clock Claims.
On February 6, 2013, the court denied the cross-motions for summary judgment, finding,
in most relevant part, that disputed issues of fact precluded summary judgment in favor of either
side on the nationwide Tip Pool Claims, the Nashville Off-the-Clock claims, and the individual
retaliation claims. (See generally Docket Nos. 147 and 148.) The court also construed the
plaintiffs as finally abandoning their claims against CUEI. On February 8, 2013, the court denied
without prejudice the plaintiffs’ request to expand the Nashville Off-the-Clock Class to include
current and former employees nationwide. (Docket Nos. 150 and 151.)8

pp. 5-22), but only two pages of legal argument specific to the Nashville Off-the-Clock Claims
(id. at pp. 23-24).
7

The defendants filed a substantial volume of material in response to Stewart’s motion,
all of which related to claims that were ultimately dismissed following the bench trial. (See
Docket Nos. 132 (Memorandum with attached exhibits), 133 (Notice of Filing), and 134
(Response to Stewart’s Statement of Undisputed Material Facts).) For example, the defendants
filed affidavits concerning general tip pooling practices in the markets in which the companyowned Coyote Ugly Saloons are located. (See Docket No. 132, Exs. 22-25.)
8

The court criticized the plaintiffs for failing to show why, in the exercise of reasonable
diligence, they could not have discovered information concerning the proposed nationwide Off7

E.

Bench Trial and the Court’s Findings of Fact and Conclusions of Law

The court held a bench trial from April 16-18, 2013, after which the parties submitted
proposed findings of fact and conclusions of law. During the bench trial, the court heard
extensive testimony specific to claims that were ultimately dismissed, including testimony from
out-of-state plaintiffs who maintained only Tip Pool Claims and/or retaliation claims, as well as
other non-Nashville witnesses who testified to facts related only to the Tip Pool Claims.9 The
court also heard testimony concerning the Nashville Off-the-Clock Claims, including testimony

the-Clock Claims and raised it with the court before the summary judgment deadline. (Docket
No. 150 at 9-10.)
9

For example, on Day 1 of the bench trial, approximately half of the day was spent
hearing testimony from non-Nashville plaintiffs specific only to the Tip Pool Claims. See, e.g.,
Docket No. 166, Apr. 16, 2013 Trial Transcript (Day 1), at pp. 7-59 (testimony of San Antonio
bartender plaintiff Gina Peterson); pp. 59-82 (former San Antonio bartender plaintiff Samantha
Thomas); 87-108 (former Austin, Texas bartender plaintiff Deloris Fields); and 108-133 (former
Oklahoma City bartender plaintiff Nauzi Jagosh).) On Day 2 of the bench trial, the plaintiffs
similarly presented direct testimony from several parties and witnesses whose testimony related
only to the Tip Pool Claims and/or retaliation claims. (See, e.g., Docket No. 167, Apr. 17, 2013
Trial Transcript (Day 2), at pp. 367-405 (Oklahoma City bartender plaintiff Sarah Stone,
concerning Stone’s individual retaliation claim); 336-350 (former Memphis bartender plaintiff
Erica Small, relating to tip pool); 352-359 (bar patron David Griner concerning interactions with
security guards); 417-465 (defendant Liliana Lovell, relating to, inter alia, nature of defendants’
business, qualities of and relationships between and among the bartenders, barbacks, security
guards, and other staff at Coyote Ugly Saloons nationwide, and facts concerning the retaliation
claims). On Day 3 of the bench trial, in response to the plaintiffs’ presentation of evidence
concerning the Tip Pool Claims, the defendants presented evidence from numerous nonNashville rebuttal witnesses whose testimony related only to the Tip Pool Claims. (See Docket
No. 168, Apr. 18, 2013 Trial Transcript (Day 3) at pp. 631-641 (Memphis bartender Cassie
Farrier), 642-650 (Memphis bartender Ashleigh Wilson), 651-661 (Milwaukee bartender Hannah
Gilbert); 662-674 (Denver security guard Matt Keeling); 676-692 (San Antonio security guard
Sean Gilleland); 694-706 (former San Antonio bartender, waitress, and manager Veronica
Riojas); 719-732 (former San Antonio and Austin security guard Dustin Carlile); 732-739
(patron of Austin location Issam Chahine); 740-751 (former Austin, Nashville, and Key West
bartender Bethany Needham – no testimony about Nashville Off-the Clock Claims); 752-764
(Fort Lauderdale and Austin bartender Kelly Byrne); and 764-781 (Oklahoma City assistant
manager Amber Almond)).
8

that (1) management employees had altered time records before and after employee shifts, and (2)
Stewart and bartender Meggan Conti were not compensated for additional work they performed
during required dance practices and, in Stewart’s case, a 2009 photo shoot.
On August 8, 2013, pursuant to Fed. R. Civ. P. 52, the court issued its Findings of Fact
and Conclusions of Law (Docket No. 172) and an associated Order (Docket No. 173). First, the
court found that the security guards at company-owned saloons satisfied the Sixth Circuit
standard for the types of employees who “customarily and regularly receive tips” as set forth in
29 U.S.C. § 203(m). Therefore, the court found that the tip pool did not violate the FLSA and
granted judgment to the defendants on the nationwide Tip Pool Claims. Second, the court found
that management willfully had altered time records at the Nashville Coyote Ugly Saloon to deny
plaintiffs credit for hours they had worked. Third, the court found Stewart was entitled to
compensation for a 2009 photo shoot, but the court also found that (a) Conti and Stewart had not
proven that they were not compensated for dance practices, and (b) Stewart’s remaining
individual compensation claims were time-barred. Fourth, the court granted judgment for the
defendants on the three individual retaliation claims. Therefore, of the various collective and
individual claims asserted in this case, the court found in favor of the defendants on all claims
other than (1) claims by 11 individuals that management had willfully altered their time records,
and (2) Stewart’s individual claim that she was not compensated for a single photo shoot in 2009.
With respect to the issue of damages for unpaid wages by the Nashville plaintiffs, the
court found that those plaintiffs were entitled to: (1) 30 minutes of uncompensated overtime for
each 11:00 a.m. day-shift clock-in and each 7:00 pm. night-shift clock-in appearing in their time
records, (2) 20 minutes of uncompensated time for each 7:00 p.m. day-shift clock-out time; (3)

9

30 minutes of uncompensated time for 3:00 a.m. night-shift clock-outs on Fridays or Saturdays
and 15 minutes of uncompensated time for 3:00 a.m. night-shift clock-outs on other nights. The
court also found that the plaintiffs were entitled to liquidated damages under 29 U.S.C. § 216(b).
For each of the 11 plaintiffs, the court estimated the applicable amount of uncompensated time
based on the aforementioned formula, multiplied that amount by the $2.13 hourly wage, and
doubled that amount to account for liquidated damages. The court calculated that the eleven
plaintiffs were entitled to a total of $394.75 in restitution – reflecting damages amounts ranging
from a low of $0.53 to a high of $110.48 – and an equivalent amount of liquidated damages for a
willful violation, for a total of $789.50.
II.

Motion for Fees and Costs
In her Motion for Fees and Costs, Stewart asks the court to award her attorneys

$168,408.25 in fees (reflecting 426.35 hours of work at a rate of $395 per hour) and $5,537.55 in
costs accrued during their work on the case. In support of the motion, she has filed an itemized
billing statement from her attorneys, declarations from her attorneys Stephen Grace and Randall
Burton, and declarations from three local attorneys not involved in the case (Charles Yezbak III,
Douglas Janney, III, and Kerry Knox), each of whom attests to the reasonableness of Grace and
Burton’s rates and the hours they expended on the case. (See Docket No. 177, Exs. 1-6.) In
response, the defendants argue that the requested fee award should be reduced for several
reasons.10 The defendants have not introduced any competing affidavits.
ANALYSIS

10

Although the defendants’ Response seeks a reduction of the requested costs, the
defendants do not identify any specific costs that they believe should be disallowed.
10

I.

Legal Standard for Fee Award
Under § 16(b) of the FLSA, 29 U.S.C. § 216, “[t]he court . . . shall, in addition to any

judgment awarded to a plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the
defendant.” United Slate, Tile & Composition Roofers, Damp & Waterproof Works’ Ass’n, Local
307 v. G &M Roofing & Sheet Metal Co., 732 F.2d 495, 501 (6th Cir. 1985) (quoting 29 U.S.C. §
216(b)). As explained by the Sixth Circuit:
The design of the Fair Labor Standards Act is intended to rectify and eliminate
labor conditions detrimental to the maintenance of the minimum standard of living
for workers. The availability and award of attorney fees under § 216(b) must
reflect the obvious congressional intent that the policies enunciated in § 202 be
vindicated, at least in part, through private lawsuits charging a violation of the
substantive provisions of the wage act. Moreover, the purpose of § 216(b) is to
insure effective access to the judicial process by providing attorney fees for
prevailing plaintiffs with wage and hour grievances; obviously Congress intended
that the wronged employee should receive his full wages without incurring any
expense for legal fees or costs.
Id. at 501-502 (internal quotation marks, citations, and ellipsis omitted). Although an award of
fees under the FLSA is mandatory, the amount of the award is within the discretion of the trial
court. Fegley v. Higgins, 19 F.3d 1126, 1134 (6th Cir. 1994) (citing United Slate, 732 F.3d at
502).
In setting a “reasonable” fee award, “the starting point is the ‘lodestar’ amount, which is
calculated by multiplying the number of hours reasonably expended on the litigation by a
reasonable hourly rate.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551-52 (6th Cir.
2008); see also Moore v. Freeman, 355 F.3d 558, 565 (6th Cir. 2004); Adcock-Ladd v. Sect’y of
Treasury, 227 F.3d 343, 349 (6th Cir. 2000). Once the lodestar is determined, “[t]he trial judge
may then, within limits, adjust the ‘lodestar’ to reflect relevant considerations peculiar to the
subject litigation.” Adcock-Ladd, 227 F.3d at 349. In calculating the lodestar, the court should

11

exclude any hours that were not “reasonably expended” or that were “excessive, redundant, or
otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 4374 (1983). The party seeking
fees has the burden of documenting the amount of fees they are requesting. Gonter v. Hunt Valve
Co., 510 F.3d 610, 616 (6th Cir. 2007); Reed v. Rhodes, 179 f.3d 453, 471 (6th Cir. 1999).
In determining the lodestar amount and/or any adjustments thereto, the court may
consider the following twelve factors listed in Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 717,
717-19 (5th Cir. 1974):
(1) the time and labor required by a given case; (2) the novelty and difficulty of
the questions presented; (3) the skill needed to perform the legal service properly;
(4) the preclusion of employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the amount involved
and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.
Adcock-Ladd, 227 F.3d at 349 n.8.
“A highly important Johnson factor is the result achieved.” Id. at 349 (emphasis in
original). Thus, “[w]here a plaintiff has obtained excellent results, his attorney should recover a
fully compensatory fee.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). “[A]
strong presumption favors the lawyer’s entitlement to his lodestar fee.” Adcock-Ladd, 227 F.3d
at 350 (internal quotation marks omitted). Accordingly, modifications to the lodestar are proper
only in certain rare and exceptional cases, supported by both specific evidence on the record and
detailed findings. Id.
In making adjustments under the Johnson factors, an attorney is not entitled to recover for
a claim that is unsuccessful and “distinctly different” in terms of facts and legal theory from a
successful compensable claim. See Hensley, 461 U.S. at 434. The Supreme Court has stated that

12

a potential adjustment for the “results obtained” is “particularly crucial where a plaintiff is
deemed prevailing even though he succeeded on only some of his claims for relief.” Id. Thus,
the court must consider the following questions: “First, did the plaintiff fail to prevail on claims
that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a
level of success that makes the hours reasonably expended a satisfactory basis for making a fee
award?” Id. As the Court has explained:
In some cases a plaintiff may present in one lawsuit distinctly different claims for
relief that are based on different facts and legal theories. In such a suit, even
where the claims are brought against the same defendants – often an institution
and its officers . . . – counsel’s work on one claim will be unrelated to his work on
another claim. Accordingly, work an unsuccessful claim cannot be deemed to
have been expended in pursuit of the ultimate result achieved. The congressional
intent to limit awards to prevailing parties requires that these unrelated claims be
treated as if they had been raised in separate lawsuits, and therefore no fee may be
awarded for services on the unsuccessful claim.
Id. at 434-35.
Even where the claims are not entirely distinct, “the court should focus on the
significance of the overall relief obtained by the plaintiff in relation to the hours reasonably
expended on the litigation.” Id.
Where a plaintiff has obtained excellent results, his attorney should recover a fully
compensatory fee. Normally this will encompass all hours reasonably expended
on the litigation. . . . If, on the other hand, a plaintiff has achieved only partial or
limited success, the product of hours reasonably expended on the litigation as a
whole times a reasonable hourly rate may be an excessive amount. This will be
true even where the plaintiff’s claims were interrelated, nonfrivolous, and raised in
good faith. Congress has not authorized an award of fees whenever it was
reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel
tried the case with devotion and skill. Again, the most crucial factor is the degree
of success obtained.
Id.; see also Mann v. Acclaim Fin. Servs., Inc., 348 F. Supp. 2d 923, 930 (S.D. Ohio) (“Where a
lawsuit consists of related claims, a plaintiff achieving limited success should be awarded only

13

fees that are reasonable in relation to the results obtained. However, in the case of a plaintiff who
has won substantial relief, the award of attorney’s fees should be not be limited merely because
the court did not adopt each and every contention raised.”); Bates v. Dura Auto. Sys., Inc., 2011
WL 3664444, at *4 (M.D. Tenn. Aug. 19, 2011) (where six out of seven plaintiffs obtained some
relief at trial, proportionately reducing fees by 1/7 for non-successful plaintiff and further
reducing fees by 20% across the board to account for nominal and/or partial recovery by
remaining plaintiffs). The Supreme Court has stated that “[t]here is no precise rule or formula”
for calculating the amount of such a reduction; thus, “the district court may attempt to identify
specific hours that should be eliminated, or it may simply reduce the award to account for the
limited success.” Hensley, 461 U.S. at 436-37.
In applying Hensley, the Sixth Circuit has recognized that “litigation is not an exact
science” and that “good lawyering . . . often requires lawyers to plead in the alternative” and,
therefore, “when claims are based on a common core of facts or are based on related legal
theories, for the purpose of calculating attorney fees they should not be treated as distinct claims,
and the cost of litigating related claims should not be reduced.” Jordan v. City of Cleveland, 464
F.3d 584, 604 (6th Cir. 2006) (finding no basis to reduce fee award, where plaintiff’s results were
“nothing short of exemplary” and plaintiff had “obtained virtually all the types of relief he
requested.”). That is, “full credit” should be given to a “meaningfully successful plaintiff rather
than making a mechanical per-losing claim deduction” in the award. Id.
II.

Application
In support of her fee request, Stewart has filed a billing statement reflecting work on this

case by attorneys Grace and Burton from March 22, 2011 (shortly before she filed the initial

14

Complaint) through September 10, 2013, when she filed the instant motion. The billing
statement contains itemized descriptions of the date on which the work was performed, the
number of hours expended (in 0.1 increments), the attorney performing the work (either Grace or
Burton), and a succinct but sufficient description of the work performed (e.g., “Review Answer
of Defendants”).
According to Stewart, the billing statement reflects only work performed that relates to
the claims on which certain plaintiffs prevailed (the Nashville Off-the-Clock Claims) but not any
work attributable solely to the remaining claims that were dismissed. Stewart essentially agrees
that she is not entitled to reimbursement for work performed only on the National Tip Pool
Claims and retaliation claims. (See Docket No. 176 at p. 2 (“Plaintiffs’ Counsel have exercised
reasonable billing judgment by reducing their total lodestar for any work performed only on the
National class or the retaliation claims, which were ultimately dismissed.”).)11
A.

Rate

In determining whether a requested rate is reasonable, the court should consider whether
the requested fee is consistent with “the prevailing market rate in the relevant community.”
Adcock-Ladd, 227 F.3d at 350 (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). Here, Grace
and Burton seek compensation at a rate of $395 per hour. The defendants concede that, as a
general matter, this rate “is not inconsistent with other employment case lead attorney rates
awarded in this district.” (Docket No. 178 at p. 3.) Furthermore, the defendants have not
submitted any materials rebutting the affidavits filed by highly credentialed employment law

11

For example, Stewart represents that her attorneys “are not seeking the hours spent
preparing and defending the depositions of Ms. Thomas and Ms. Stone, as all their claims were
dismissed.” (Docket No. 176 at p. 3.)
15

attorneys Yezbak, Janney, and Knox, each of whom avers that the $395 rate is a reasonable one
for a plaintiff’s attorney in this type of case and in this district.12 Grace and Burton have also
provided unrebutted affidavits, which indicate that (a) they fronted the costs of this litigation with
no promise of payment, and (b) both attorneys are highly experienced in employment litigation,
including FLSA cases. The court is also familiar with attorneys Grace and Burton from other
cases and is familiar with rates charged by equivalently experienced and qualified counsel within
this district. Based on the essentially unrebutted information before the court, the court finds that
the $395 rate for both Grace and Burton is presumptively reasonable.
Whether Grace and Burton (rather than another attorney or professional at a lower hourly
rate) justifiably performed all of the tasks referenced in the billing statement is a distinct question
that court the addresses separately herein
B.

Clerical Work

The defendants argue that some of the work performed by Grace and/or Burton was either
clerical or should have been performed by another attorney or legal professional at less than a
“lead attorney” rate. Indeed, it appears that Grace and Burton performed all of the work in this
case, without delegating any responsibility to a lower priced attorney, a paralegal, or clerical
employee.
The defendants have identified 13.4 hours of time reflecting essentially clerical work,
including task entries such as 0.5 hours to “[l]ocate New Orleans process server” and “prepare
service package for server” (August 8, 2011) and 11.9 hours for “preparation of Notice of

12

As Stewart points out, the defendants have not disclosed the rates charged by their own
counsel for comparison purposes.
16

Mailing” and similar tasks (March 7 and 8, 2012). In her Reply, Stewart does not address the
defendants’ argument concerning these specific entries; thus, she does not contend that these
tasks should be reimbursed at any particular rate. The court agrees with the defendants that it
was unnecessary for Grace and Burton to perform these clerical functions, which could have been
performed by a clerical employee. The court accordingly will deny payment for these 13.4 hours.
Burton also billed 1.8 hours for preparing a Notice of Filing of Unpublished Cases and for
“locating” the underlying cases. The court finds that this work could have been performed by a
paralegal at a lower rate. In the absence of a suggested figure from either party, the court finds
that a paralegal reasonably could have charged $75 per hour to perform that task. See
McCutcheon v. Finkelstein Kern Steinberg & Cunningham, 2013 WL 4521016, at *3 (M.D.
Tenn. Aug. 27, 2013) ($75 appropriate as a default paralegal rate); Smith Cnty. Educ. Ass’n v.
Smith Cnty. Bd. of Educ., 2012 WL 78382, *2 (M.D. Tenn. Jan. 10, 2012) (same); Garcia v.
Conway, 2011 WL 6778258, at *1 (M.D. Tenn. Dec. 23, 2011) (same).
C.

Unjustified Work/Work on Distinct Claims

The defendants argue that Grace and Burton (a) spent too much time on certain tasks, (b)
should have delegated certain tasks to lower-priced attorneys or legal professionals, and/or (c)
seek remuneration for work on unsuccessful claims.
As an initial matter, the court regards the retaliation claims and the nationwide Tip Pool
Claims as factually and legally distinct from the Nashville Off-the-Clock Claims, a point that
Stewart has implicitly conceded by purporting to remove charges attributable “only” to those
claims. The nationwide Tip Pool Claims implicated evidence concerning Coyote Ugly
operations nationwide at eight company-owned stores, which the defendants conceded operated

17

under a company-wide policy requiring the bartenders and barbacks to split tips in the “tip pool”
with security guards. The relevant facts concerning this claim involved the relative roles of
bartenders, barbacks, and security guards and, in particular, the amount of interaction between
security guards and customers (or potential customers) of the Saloons nationwide. The disputed
legal issue concerned the court’s application of 29 U.S.C. §§ 203(m) and (t) as they relate to tippooling arrangements and, in particular, the application of Kilgore and related caselaw
concerning whether, and under what circumstances, security guards constitute employees who
“customarily and regularly receive tips.”
By contrast, the Nashville-specific Off-the-Clock Claims involved distinct proof
concerning (a) whether managers at the Nashville Coyote Ugly Saloon had shaved time to reduce
wages for the bartenders and (b) whether two particular employees (Stewart and Conti) should
have received pay for attending particular company-required activities, including dance practices,
training sessions, and a photo shoot. The parties’ dispute concerning the Off-the-Clock Claims
was largely factual. The defendants did not dispute that, as a legal matter, it would have been
illegal for managers to shave time. With the exception of some minor disputes about whether
certain specific incidents occurred outside of the statute of limitations and/or fell within the scope
of the Nashville class, the parties simply disputed whether the evidence showed that time-shaving
had actually occurred and to what extent.13 Testimony concerning the time-shaving issue focused
on Coyote Ugly’s timekeeping system and whether the entries on that system accurately reflected

13

The parties also disputed whether the statute of limitations barred Stewart and/or Conti
from receiving payment for certain of those activities. Although the court found before trial that
some of the events occurred outside the statute of limitations and were time-barred, the court
granted partial relief to Stewart following the bench trial, awarding her $20.70 (plus liquidated
damages) for a calendar photo shoot.
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the “clock-in” and “clock-out” times for the Nashville bartenders. The retaliation claims also
involved distinct proof having no bearing on the Off-the-Clock Claims.
The court agrees with the defendants that Stewart has not culled out all of the time
attributable only to the factually and legally distinct claims that were unsuccessful. First, the
defendants’ Motion to Dismiss only concerned claims that were later dismissed, including the Tip
Pool Claims and the claims against CUEI. Therefore, Stewart’s counsel’s work on the motion,
which did not implicate any issues concerning the successful Off-the-Clock Claims, “cannot be
deemed to have been expended in pursuit of the ultimate result achieved.” Hensley, 461 U.S. at
425 The court accordingly will disallow entries related to the Motion to Dismiss billed between
May 24, 2011 and June 29, 2011, which total 21.4 hours.14
Second, Stewart’s Motion for Leave to Amend and the related Motion for
Reconsideration concerned Stewart’s attempt to add individual retaliation claims by Stewart and
two of the opt-in plaintiffs. In her Response, Stewart does not address the defendants’ argument
that time spent on these two motions should not be reimbursed. The court has identified 9.0
hours of time attributable specifically to the two motions.15 Because that time was spent only
with respect to claims that were dismissed on the merits, the court finds that the time was not
14

These include the following entries: (1) 2.8 hours on 5/24/11; (2) 1.4 hours on 6/7/11,
(3) 4.8 hours on 6/13/11; (4) 3.6 hours on 6/14/11; (5) 8.2 hours by Burton and Grace combined
on 6/17/11 (excluding 0.2 hours by Grace on an unrelated task); and (6) 0.6 hours on 6/29/11.
Also, the court notes that the defendants have also argued that the time spent by Burton
addressing the Motion to Dismiss, even if otherwise compensable, was “excessive.” Although
that argument is rendered moot by the court’s ruling that no time spent addressing that motion is
compensable, the court would not have found it excessive for Burton to spend approximately 2.5
to 3 business days addressing the complex procedural and legal issues implicated by the Motion
to Dismiss.
15

The defendants identified 7.5 hours of time related to the motions. The court has
identified an additional 1.5 hours of time (1.2 hours on 9/24/12 and 0.3 hours on 10/2/12).
19

expended “in pursuit of the ultimate result achieved” with respect to the successful Off-the-Clock
Claims. Therefore, the court will disallow those entries from the fee award.
Third, Stewart’s Motion for Summary Judgment concerned only the Tip Pool Claims and
the retaliation claim by Stone, both of which the court dismissed on the merits following the
bench trial. The billing statements reflect at least 27.6 hours spent on that motion, which cannot
be regarded as made in pursuit of the ultimately successful Off-the-Clock Claims.16
Fourth, the defendants have identified several entries that they contend reflect work
performed on dismissed claims, including (1) 4.1 hours meeting with Stewart, Rivera, and
Ranger, where Rivera never opted into the case and Ranger was later voluntarily dismissed; (2)
1.2 hours meeting with Craft, where Craft was later voluntarily dismissed, (3) 0.2 hours filing
consent forms for Ranger and Craft, and (4) 0.4 hours preparing information concerning Ranger.
Stewart’s Reply only obliquely addresses this argument, stating that Grace and Burton justifiably
met with “witnesses such as Megan Rivera, Samantha Ranger, and Anna Craft to gather
information to support plaintiffs’ successful motion for notice.” (Docket No. 182 at p. 3.)
However, Stewart’s position is insufficient: the motion for expedited notice related both to the
Tip Pool Claims and to the distinct Off-the-Clock Claims. Therefore, to the extent the attorneys
spent time with Ranger, Craft, and Rivera addressing the factually and legally distinct Tip Pool
Claims and/or any claims by Ranger, Craft, and Rivera specifically, that time should not be
reimbursed. On the other hand, in determining that conditional certification of the Nashville Offthe-Clock Claims was appropriate, the court relied on affidavits from Ranger, Craft, and Rivera,

16

These include: 6.9 hours on 12/4/12, 8.4 hours in 12/5/12, 7.8 hours on 12/6/12, 1.6
hours on 1/4/13, 2.4 hours on 1/11/13, and 0.5 hours on 1/16/13.
20

which in part addressed those claims. Therefore, at least some work referenced in the entries
relating to Ranger, Craft, and Rivera concerned the successful Off-the-Clock Claims,
notwithstanding the fact that their particular claims did not proceed to trial. Under the
circumstances, the court will award fees for only half of the 5.3 hours spent meeting with these
individuals in November 2012 and no fees for the 0.6 hours spent preparing consents or other
information for Ranger and Craft.
In summary, the court will reduce the potentially compensable hours as follows: (1) 21.4
hours related to the Motion to Dismiss; (2) 9.0 hours related to the Motion for Leave to Amend
and Motion for Reconsideration; (3) 27.6 hours related to Stewart’s Motion for Summary
Judgment; and (4) 3.25 hours (2.65 hours + 0.6 hours) related to claims by Ranger, Craft, and
Rivera. The court will also reduce the rate to $75 for 1.8 hours that should have been performed
by a paralegal at a lower billing rate. The court will therefore disallow $24,769.75 of the
requested fees (61.25 hours X $395/hr + 1.8 hours X $(395-75)/hr).
D.

Relative Success on the Claims

At each stage in this litigation, the plaintiffs (and the defendants) spent significant time
and effort litigating the nationwide Tip Pool Claims, which involved more plaintiffs (or potential
plaintiffs) and implicated more extensive briefing and attorney effort than the individualized
Nashville Off-the-Clock Claims. As described in the court’s discussion of the procedural history
of this case, even as to tasks that in part concerned the Off-the-Clock Claims, such as preparing
Stewart’s Response to the defendants’ Motion to Summary Judgment, the bulk of the work
related to the unsuccessful claims.
For example, in connection with the Motion for Expedited Court-Supervised Notice, the

21

parties filed extensive submissions relating to the Tip Pool Claims, including affidavits that in
whole or in part introduced facts specific to those claims, as well as substantial briefing specific
to those claims. The parties’ submissions concerning the defendants’ Motion for Summary
Judgment largely related to the unsuccessful Tip Pool Claims and individual retaliation claims.
The plaintiffs’ motion to expand the Nashville class shortly before trial was denied. Substantially
more than a majority of the bench trial was devoted to the Tip Pool Claims and retaliation claims,
including numerous witnesses who testified exclusively about either or both of those claims. Had
those distinct claims not been part of the bench trial, the trial would have been considerably
shorter, perhaps involving only a handful of witnesses and documents. The post-trial
submissions also included extensive sections relating specifically to the Tip Pool Claims and
retaliation claims. In sum, if this case concerned only the legal and factually distinct Nashvillespecific Off-the-Clock Claims on which a subset of plaintiffs ultimately prevailed, substantially
more than a majority of the work performed on the case would have been unnecessary.
Furthermore, the results achieved by Stewart were meager. First, numerous opt-in
plaintiffs were dismissed before trial. Second, the class of 37 claimants on the nationwide Tip
Pool Claims collectively sought $16,132 in restitution (and equivalent liquidated damages), but
recovered zero. Thus, over two-thirds of the opt-in plaintiffs whose claims proceeded to trial –
including all of the non-Nashville plaintiffs – recovered nothing for their participation in this
lawsuit. The three individual retaliation plaintiffs (including Stewart and two out-of-state opt-in
plaintiffs) sought unspecified damages for embarrassment and humiliation, and Stone also
claimed approximately $20,800 in back wages. Despite the presentation of proof and argument
specific to the retaliation claims, the court dismissed them. Third, and finally, even with respect

22

to the successful claims, Stewart recovered only a fraction of the damages she demanded on
behalf of the 11-person Nashville class: the plaintiffs in that class sought about $4,400 in
restitution for the Off-the-Clock Claims (plus an equivalent amount of liquidated damages), but
recovered less than $400 in restitution plus an equivalent amount of liquidated damages. Thus,
even though the court found a willful violation, Stewart recovered less than 10% of the damages
she sought for the Off-the-Clock Claims. In sum, Stewart failed to prove the claims implicated
by the vast majority of plaintiffs (i.e. the Tip Pool Claims), the retaliation claims were dismissed
on the merits following the bench trial, and Stewart and her Nashville co-plaintiffs only
recovered a small fraction of the damages sought on the Off-the-Clock Claims.
In light of these considerations, the court finds that (1) even after accounting for work
plainly spent only on the dismissed claims as detailed in the previous section, the remaining total
time entries still include a substantial amount of time devoted to the unsuccessful claims, which
time is not compensable; and (2) awarding the lodestar amount would be excessive and unjust in
light of the meager results achieved. Taken in combination, these considerations justify a
substantial reduction of the requested fee award.
At the same time, the court finds that this reduction must be limited, because the court is
cognizant of the fact that Congress specifically provided for a reasonable fee award for successful
FLSA plaintiffs, regardless of the monetary amount of the judgment. Following the bench trial,
the court found that the defendants had committed serious and willful violations of the FLSA’s
wage-and-hour provisions by shaving time off the Nashville bartenders’ time clock entries.
Although the monetary amounts at issue were small, the court appreciates that every dollar counts
for individuals working at the bottom of the wage scale and that Congress chose to provide a

23

financial incentive to attorneys to protect workers against employers who flout (in this case
willingly) an employee’s right to his or her wages, even where the value of that employee’s
claims is very low. See United Slate, 732 F.2d at 503(“[T]ransfixion on the damages amount in
establishing fees would penalize those litigants whose cases carry slight pecuniary damages, but
which present instances of significant statutory violations.”); Fegley, 19 F.3d at 1134-35 (“The
purpose of the FLSA attorney fees provision is to insure effective access to the judicial process
by providing attorney fees for prevailing plaintiffs with wage and hour grievances. Courts should
not place undue emphasis on the amount of the plaintiff’s recovery because an award of attorney
fee here encourages the vindication of congressionally identified policies and rights.”) (internal
quotation marks and citations omitted). Be that as it may, the court also appreciates that
plaintiffs’ attorneys are not entitled to a windfall by recovering litigation expenses attributable to
failed claims that had little or no factual and legal overlap with successful claims joined in the
same proceeding.
Taking into account these competing considerations, the court finds that a reduction of the
remaining fees by two-thirds is warranted. Of the remaining 351.70 hours of potentially
compensable time at the $395 rate (i.e., $138,921.50), a 66.7% reduction results in $46,307.17 in
fees, or an equivalent of approximately 117.2 hours of work.17
As to the 11.6 hours spent by Grace and Burton on the fee application itself, the Sixth
Circuit has held that, subject to appropriate limitations, attorneys are entitled to reasonable time
spent on a fee application, not to exceed 5% of the time spent on the main case. Coulter v. State

17

Accounting for the previous reductions leaves 363.3 hours of compensable time. 11.6
hours of that remaining time was spent on the fee application itself, which the court will address
separately.
24

of Tenn., 805 F.2d 146, 151 (6th Cir. 1986). Pursuant to Coulter, the court will therefore limit
compensation for the fee application to 5% of the post-adjustment compensable hours (i.e., 5% of
117.2 hours), or approximately 5.9 hours of attorney time ($2,315.36).18
The defendants have not specifically challenged Stewart’s cost demand of $5,537.55,
which is supported by appropriate documentation.. In the absence of any meaningful challenge,
the court finds that demand to be reasonable and substantiated.
Therefore, the court will award total fees and costs of $54,295.08 ($46,307.17 + $135 +
$2,315.36 + $5,537.55). The court finds that this amount best approximates the amount of
compensable time that Stewart’s counsel reasonably spent pursuing the Off-the-Clock Claims.
The court notes that, notwithstanding substantial reductions to the amount demanded by Stewart,
this award is approximately 69 times the value of the underlying judgment against the defendants
for $789.50 in favor of the 11 plaintiffs who prevailed on their Off-the-Clock Claims. The
court’s award – which best approximates the work performed relative to the successful claims
here – provides sufficient incentive for counsel to represent future plaintiffs seeking payment for
“off-the-clock” time and/or uncompensated overtime, even where those plaintiffs’ claims have a
monetary value as low as the successful claims at issue here. Thus, the court does not construe
its award as somehow frustrating the FLSA’s intent to vindicate the rights of all aggrieved

18

The defendants have also argued that it was excessive for Stewart’s attorneys to spend
5.2 hours drafting discovery requests and 50.3 hours preparing Stewart’s Proposed Findings of
Fact and Conclusions of Law. The court’s across-the-board reduction renders these arguments
moot. Nevertheless, the court notes that it would not have found any inherent reason to conclude
that the time spent on these tasks was excessive or unnecessary for Burton to undertake,
particularly where the defendants did not identify why the court should treat the time as
excessive, did not articulate what amount of time would have been reasonable, and did not
provide the time that their own attorneys spent working on equivalent tasks.
25

employees, whatever the pecuniary value of their underlying (and valid) claims.
In sum, this is an extraordinary case, in which Stewart’s attorneys devoted substantial
resources to claims that did not prove successful for a supermajority of the plaintiffs and that
resulted in only a fractional recovery on a distinct set of successful claims by a subset of
plaintiffs. Therefore, although the ultimate fee and costs award is approximately 70% less than
what Stewart has requested, the court finds that a substantially reduced award is justified under
the exceptional circumstances presented in this case.
CONCLUSION
For the reasons stated herein, the court will award fees and costs of $54,295.08.
An appropriate order will enter.

______________________________
ALETA A. TRAUGER
United States District Judge

26