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Laurie Campbell, On Her Own Behalf and On Behalf of Others Similarly v. South Florida Barbeque

November 30, 2011

LAURIE CAMPBELL, ON HER OWN BEHALF AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SOUTH FLORIDA BARBEQUE, INC., D/B/A SONNY'S BBQ PALM BEACH BLVD., DALE COYNE AND ALAN HOROWITZ, INDIVIDUALLY, DEFENDANTS.



OPINION AND ORDER

This matter comes before the Court on plaintiffs' Motion for Award of Attorneys' Fees and Costs (Doc. #101) filed on September 20, 2011. Defendants filed a Memorandum in Opposition (Doc. #107), plaintiffs filed a Reply (Doc. #112), and defendants filed a Sur-Reply (Doc. #113).

I.

On October 12, 2010, plaintiff Pennie Proctor, on behalf of herself and others similarly situated, filed a Complaint (Doc. #1) for relief under the Fair Labor Standards Act (FLSA), against South Florida Barbeque, Inc. d/b/a Sonny's BBQ Palm Beach Blvd, which filed an Answer and Affirmative Defenses (Doc. #15) on November 8, 2010. Additional plaintiffs joined and responded to the Court's interrogatories. On January 25, 2011, an Amended Complaint (Doc. #39) was filed adding Dale Coyne and Alan Horowitz, individually, as defendants. On March 28, 2011, plaintiff advised the Court that a settlement had been reached. (Doc. #56.) On May 12, 2011, plaintiff filed a Motion to Approve and/or Enforce Settlement (Doc. #60), the motion was opposed, doc. #61, and the Magistrate Judge issued a Report and Recommendation (Doc. #64) recommending that the motion be denied. Defendants subsequently filed a Motion to Enforce Settlement or Dismiss Plaintiffs' Claims as Moot (Doc. #67) and on June 15, 2011, the Court issued an Opinion and Order (Doc. #76) adopting the Report and Recommendation, finding no meeting of the minds, and denying the requests to approve or enforce a settlement.

On July 1, 2011, a Second Amended Complaint (Doc. #85) was filed to change the name of the representative plaintiff to Laurie Campbell. Defendants tendered Offers of Judgment and plaintiffs filed Notices of Acceptance in response. As a result, the Magistrate Judge issued a Report and Recommendation (Doc. #99) deeming the notices as motions for approval and recommending approval of the settlements as fair and reasonable. The recommendation was adopted on September 21, 2011, by Opinion and Order (Doc. #102) and an Amended Judgment (Doc. #106) issued on October 4, 2011. The parties did not agree to the amount of a reasonable award of attorney's fees and costs to counsel for plaintiffs.

II.

The parties do not dispute that plaintiffs are the prevailing party, plaintiffs are entitled to an award of attorney's fees and costs, or that the motion was timely filed. Defendants also agree that plaintiffs are entitled to a reasonable award of fees as the prevailing parties. At issue is what constitutes a reasonable amount of fees. Plaintiffs seek $31,610.45 in attorney and paralegal fees. Defendants suggest that the "blended" hourly rate suggested by plaintiffs should be rejected and the hours reduced for an award of $14,121.95.

A reasonable attorney fee is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), and a "reasonable hourly rate" is "the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation," Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). In determining the reasonable amount of hours, the Court may conduct an hour-by-hour analysis or it may reduce the requested hours across the board. Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008).

A. Reasonable Hourly Rate:

Plaintiffs seek a "blended rate" of $300.00 per hour for attorneys Andrew Frisch, Richard Celler, and Kelly Amritt, regardless of their level of experience. (Doc. #112-1, Exh. G, ¶ 2.) Andrew Frisch has been practicing law since 2001*fn1 (doc. #101-4, Exh. D, ¶ 6), Richard Celler has been practicing law since 1999 (doc. #112-1, Exh. G, ¶ 3), and Kelly Amritt was admitted to the Florida Bar in 2003 but left the firm in 2010 (id. at ¶ 6). Counsel suggests that the Middle District of Florida has awarded similar hourly fee rates for FLSA cases and $300 has specifically been found to be a reasonable hourly rate for Mr. Frisch.*fn2

The cases cited by plaintiffs are all favorable cases located in the Orlando and Tampa Divisions of the Middle District of Florida. (Doc. #101, pp. 11-12, p. 13.) The Affidavit of Gregg Shavitz, Esquire (Doc. #101-5, Exh. E) suggests that $350.00 an hour is an appropriate rate for Mr. Frisch, but Mr. Shavitz does not provide his own billing rate as a comparison. Also submitted is an Expert Fee Report (Doc. #101-6, Exh. F) by a practitioner in the Middle District of Florida regarding the general reasonableness of the fee request.

The applicable prevailing market in this case is the Fort Myers area, where the hourly rates are generally lower than Orlando or Tampa. Counsel are proposing a blended hourly rate of $300 whether counsel has 12 years of experience or 7 years of experience. The Court is not inclined to apply a blanket $300 hourly rate for all counsel regardless of experience level.

Counsel also seeks a blended $95.00 an hour rate for the paralegals. Heather McManus has two years of experience and Kelly Romero has eleven years of experience. (Doc. #1-104, Exh. D, ¶ 11.) The Court declines to apply a blended rate for paralegals of such varying experience. The Court will accept $95.00 for Kelly Romero but will reduce and apply a separate rate for Heather McManus.

The Court will accept and apply the following hourly rates for counsel and ...


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