Rojo v. Burger One LLC et al

Filing 144

The Court grants in part and denies in part Rojo's 143 Motion for Attorneys' Fees and Costs and awards Rojo $25,015.50 for his attorneys' fees and $515.00 for his costs and related nontaxable expenses under Section 216(b). The Court will enter a separate judgment against both defendants. (Ordered by Magistrate Judge David L. Horan on 3/4/2025) (agc)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CUPERTINO JURADO ROJO and
§
all others similarly situated under 29 §
U.S.C. 216(b),
§
§
Plaintiff,
§
§
V.
§
§
BURGER ONE LLC and CHRIS
§
SRIVARODOM,
§
§
Defendants.
§

No. 3:11-cv-2968-BN

MEMORANDUM OPINION AND ORDER
Plaintiff Cupertino Jurado Rojo has filed a Motion for Attorneys’ Fees and
Costs under 29 U.S.C. § 216(b). See Dkt. No. 143. No response was filed.
For the reasons explained below, the Court grants in part and denies in part
Rojo’s Motion for Attorneys’ Fees and Costs [Dkt. No. 143].
Background
Prior orders have documented the background of this case. See Dkt. Nos. 35 &
140.
Cupertino Jurado Rojo filed his complaint in this court against Defendants
Burger One LLC and Chris Srivarodom alleging violations of the Fair Labor
Standards Act (“FLSA”). See Dkt. No. 1.
In 2013, the Court granted in part and denied in part Rojo’s motion for default
judgment against Burger One LLC. See Dkt. No. 35. All that remains as to Burger

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One is to enter judgment against it on the Court’s prior findings on the motion for
default judgment – which has not been set aside or vacated.
And most recently, the Court granted Rojo’s motion for default judgment
against Chris Srivarodom. See Dkt. No. 140.
And, so, Burger One and Srivarodom are jointly and severally liable for paying
Rojo’s total damages of $32,302.40, which includes liquidated damages. See Dkt. No.
140 at 15
Rojo now seeks reasonable attorneys’ fees and costs of court under 29 U.S.C. §
216(b). He also seeks to collect post-judgment attorneys’ fees incurred in collecting
the default judgment.
Legal Standards
“Under the FLSA, an employer who violates the statute is [ ] required to pay
attorney[s’] fees.” Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (citing
29 U.S.C. § 216(b) (“The court in such action shall, in addition to any judgment
awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by
the defendant, and costs of the action.”); Singer v. City of Waco, Tex., 324 F.3d 813,
829 n.10 (5th Cir. 2003) (“The FLSA requires an employer who violates the statute to
pay attorney’s fees. See 29 U.S.C. § 216(b).”)).
“This Court uses the ‘lodestar’ method to calculate attorneys’ fees.” Heidtman
v. Cty. of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999); see also Serna v. Law Office of
Joseph Onwuteaka, P.C., 614 F. App’x 146, 157 (5th Cir. 2015) (applying lodestar
method to claims under the FDCPA). The lodestar is calculated by multiplying the

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number of hours that an attorney reasonably spent on the case by an appropriate
hourly rate, which is the market rate in the community for this work. See Smith &
Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012).
The parties seeking reimbursement of attorneys’ fees bear the burden of
establishing the number of hours expended through the presentation of adequately
recorded time records as evidence. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.
1993). The Court should use this time as a benchmark and then exclude any time
that is excessive, duplicative, unnecessary, or inadequately documented. See id. The
hours remaining are those reasonably expended.
There is a strong presumption of the reasonableness of the lodestar amount.
See Perdue v. Kenny A., 559 U.S. 542, 552 (2010). “However, after calculating the
lodestar, a district court may enhance or decrease the amount of attorney’s fees based
on the relative weights of the twelve factors set forth in [Johnson v. Georgia Highway
Exp., Inc., 488 F.2d 714 (5th Cir. 1974)].” Black v. SettlePou, P.C., 732 F.3d 492, 502
(5th Cir. 2013). Because the lodestar is presumed to be reasonable, it should be
modified only in exceptional cases. See Watkins, 7 F.3d at 457.
Analysis
I.

Attorneys’ Fees

As a threshold matter, Rojo is a prevailing party under 29 U.S.C. § 216(b)
because this Court has found that Burger One and Srivarodom are jointly and
severally liable for Rojo’s total damages of $32,302.40, which includes liquidated
damages. See Dkt. No. 140 at 15; see also Buckhannon Bd. & Care Home, Inc. v. W.

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Virginia Dep’t of Health & Hum. Res., 532 U.S. 598, 603 (2001) (The “prevailing
party” for purposes of awarding reasonable attorneys’ fees under fee-shifting statutes
is one who has been awarded some relief by the court.).
And, so, Rojo is entitled to recover his reasonable attorneys’ fees and costs from
Defendants.
Rojo seeks recovery of $25,015.50 in attorneys’ fees for 62.5 total hours of work
performed by attorney Robert Manteuffel at an hourly rate of $390 and attorney
Jamie H. Zidell at an hourly rate of $425. See Dkt. No. 143 at 3.
Mr. Manteuffel and Mr. Zidell performed 44.2 and 18.30 hours of work,
respectively. See id. at 3-4.
Considering the evidence and approvals of similar rates submitted by Rojo’s
counsel, these rates are reasonable and within the market rates for attorneys
handling this type of litigation in the Dallas area. See Lopez v. Fun Eats & Drinks,
LLC, No. 3:18-cv-1091-X-BN, 2023 WL 4551576, at *5 (N.D. Tex. June 28, 2023)
(finding hourly rates between $375 and $475 reasonable in FLSA case); see also
Mancia v. JJ Chan Food, Inc., No. 3:12-cv-2467-L (BF), 2016 WL 4468092, at *2 (N.D.
Tex. June 21, 2016) (finding Mr. Manteuffel’s rate of $390 per hour and Mr. Zidell’s
rate of $360.23 per hour reasonable).
Rojo’s counsel’s billing records and supporting documentation include a
narrative description of the work done and the number of hours that it took to
complete the work. See Dkt. Nos. 143-1 & 143-2. Rojo’s counsel asserts that
“significant portions” of the 62.5 hours of attorneys’ time in this case, which was filed

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in 2011, were “related to conferring with Defendants and filing status reports
regularly, as well as obtaining entry of the final default judgment.” Dkt. No. 143 at
8.
Having reviewed the billing records and supporting documentation, the time
spent handling the various tasks in this matter as described was reasonable.
And, so, the Court finds that the appropriate lodestar here to be calculated as
44.2 hours for work performed by Mr. Manteuffel at a rate of $390 per hour and 18.30
hours for work performed by Mr. Zidell at a rate of $425 per hour for a total of
$25,015.50.
Rojo does not seek an enhancement of the attorneys’ fees and there are no other
exceptional circumstances. The Court has also considered the Johnson factors and
finds that none of them weigh in favor of modifying the lodestar.
And, so, the Court awards Rojo his attorneys’ fees in the lodestar amount of
$25,015.50.
II.

Costs and Related Nontaxable Expenses

Rojo seeks $515.00 in costs under Federal Rule of Civil Procedure 54(d) and 28
U.S.C. § 1920. See id. at 10.
Rule 54(d)(1) provides that “costs – other than attorney’s fees – should be
allowed to the prevailing party.” FED. R. CIV. P. 54(d)(1). Under Section 1920, the
Court may tax as costs the following:
(1) fees of the clerk and marshal; (2) fees for printed or electronically
recorded transcripts necessarily obtained for use in the case; (3) fees
and disbursements for printing and witnesses; (4) fees for
exemplification and the costs of making copies of any materials

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where the copies are necessarily obtained for use in the case; (5)
docket fees under section 1923; (6) compensation of court appointed
experts, compensation of interpreters, and salaries, fees, expenses,
and costs of special interpretation services under section 1828.
28 U.S.C. § 1920.
And, “[i]n addition to the taxable costs listed under 28 U.S.C. § 1920, Texas
District Courts have also determined that [additional] costs are ... appropriately
awarded to prevailing parties in FLSA cases as part of a reasonable fee.” Castro v.
Precision Demolition LLC, No. 3:15-cv-213-D, 2017 WL 6381742, at *10 (N.D. Tex.
Dec. 14, 2017) (cleaned up).
“Reimbursement for travel, meals, lodging, photocopying, long-distance
telephone calls, computer legal research, postage, courier service, mediation, exhibits,
document scanning, and visual equipment are types of litigation expenses that are
recoverable under the FLSA as part of an attorneys’ fee award.” Hilton v. Exec. Self
Storage Assocs., Inc., No. CIV.A. H-06-2744, 2009 WL 1750121, at *16 (S.D. Tex. June
18, 2009) (cleaned up).
Rojo seeks to recover his filing and service of process fees. See Dkt. No. 143 at
10.
Rojo is entitled to the $350.00 filing fee under Section 1920(1).
As for the service of process fees, “the United States Court of Appeals for the
Fifth Circuit has held that, ‘absent exceptional circumstances, the costs of a private
process server are not recoverable under Section 1920,’” Harris v. Dallas Cty. Hosp.
Dist., No. 3:14-cv-3663-D, 2016 WL 8674685, at *2 (N.D. Tex. Aug. 5, 2016) (quoting

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Marmillion v. Am. Intern. Ins. Co., 381 Fed. Appx. 421, 431 (5th Cir. 2010)
(unpublished)).
But the service of process fees are appropriate related nontaxable expenses to
award under Section 216(b). Accord Lopez, 2023 WL 4551576, at *6; Mancia, 2016
WL 4468092, at *4.
And, so, Rojo is also entitled to the $165 in fees incurred for serving process
on Defendants.
III.

Post-Judgment
Judgment

Attorneys’

Fees

in

Collection

of

Default

Rojo seeks to collect post-judgment attorneys’ fees incurred in collecting the
default judgment. See Dkt. No. 143 at 13.
In support of this, Rojo cites a case from the Southern District of Florida
allowing recovery of post-judgment attorneys’ fees under the FLSA. See DiFrancesco
v. Home Furniture Liquidators, Inc., No. 06-21709-CIV, 2009 WL 36550 (S.D. Fla.
Jan. 6, 2009).
The court in DiFrancesco pointed to other courts that had awarded postjudgment collection fees in cases involving other federal statutes and found their
applied reasoning “equably applicable” to the FLSA. DiFrancesco, 2009 WL 36550, at
*4-5 (citing Free v. Briody, 793 F.2d 807 (7th Cir. 1986) (awarding fees in Employee
Retirement Income Security Act [ERISA] case); Nunez v. Interstate Corporate
Systems, 165 Ariz. 410, 799 P.2d 30, 31 (Ariz. App. 1990) (awarding fees in a Fair
Debt Collection Practices [FDCPA] case)).

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But whether a plaintiff may recover attorneys’ fees for collecting on a default
judgment is not settled under Fifth Circuit law. And, absent binding law or
persuasive authority from other district courts in this Circuit, the Court declines to
extend the court’s holding in DiFrancesco to the instant case.
And, so, the Court denies Rojo’s request for post-judgment attorneys’ fees
incurred in collecting the default judgment.
Conclusion
The Court grants in part and denies in part Rojo’s Motion for Attorneys’ Fees
and Costs [Dkt. No. 143] and awards Rojo $25,015.50 for his attorneys’ fees and
$515.00 for his costs and related nontaxable expenses under Section 216(b).
The Court will enter a separate judgment against both defendants.
SO ORDERED.
DATED: March 4, 2025

______________________________________________________________________________________________________________________

DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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