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Touzout v. America Best Car Rental Kf Corp.

United States District Court, S.D. Florida

November 30, 2017

MARC TOUZOUT, and all others similarly situated, Plaintiff,
v.
AMERICA BEST CAR RENTAL KF CORP. d/b/a America Best Crfk Corp. d/b/a Sunshine Rent-A-Car et al, Defendants.

          ORDER AWARDING ATTORNEY'S FEES AND COSTS TO PLAINTIFF'S COUNSEL AND TO PLANITFF'S FORMER COUNSEL

          WILLIAM MATTHEWMAN, UNITED STATES MAGISTRATE JUDGE.

         THIS CAUSE is before the Court upon Plaintiff, MARC TOUZOUT's ("Plaintiff) Motion for an Award of Attorneys' Fees and Costs [DE 134] filed on July 12, 2017. Defendants, America Best Car Rental KF Corp., Kamal Fereg, Omar Fajardo, and Roberto Hiptyn ("Defendants"), have filed a Response [DE 136]. Plaintiff filed a Reply [DE 137], Defendants filed a Sur-Reply [DE 140], and Plaintiff filed a Sur-Response [DE 143]. Plaintiffs Former Counsel, Saenz and Anderson, PLLC, and its attorneys of record, Ruben Martin Saenz, Esq., Ilona Demenina Anderson, Esq., and Ria N. Chattergoon, Esq. (collectively, "Former Counsel") filed a Motion for Bill of Costs [DE 135] and Motion for Attorneys' Fees [DE 145]. Defendants filed Responses to both Motions [DE 144 and DE 151] and Plaintiffs Former Counsel filed Replies [DE 146 and DE 154]. The matters are now ripe for review. For the reasons that follow, this Court GRANTS IN PART AND DENIES IN PART Plaintiffs Motion for Attorney's Fees & Costs [DE 134] and Former Counsel's Motions for Bill of Costs [DE 135] and for Attorneys' Fees [DE 145]. In Part I, the Court will address Plaintiffs claim for attorney's fees and costs filed by his second counsel, Juan C. Perez, Esq. In Part II, the Court will address Plaintiffs Former Counsel, Saenz & Anderson, PLLC.'s request for attorney's fees and costs.

         I. Plaintiffs Counsel. Juan C. Perez, Esq.'s Motion for Attorney's Fees & Costs [DE 134]

         A. BACKGROUND

         This case was originally filed on August 24, 2015, and arose out of Plaintiff s job with Defendant, America Best Car Rental KF Corp., first as a car-washer, then as an office worker. Plaintiff alleged overtime, retaliation, discrimination, and harassment claims. Plaintiffs Second Amended Complaint [DE 49], filed on February 24, 2016, alleged ten different counts, including wage and hour violations under the Fair Labor Standard Act ("FLSA") (Counts I-II), retaliation under the FLSA (Count III), religious discrimination and religious harassment under Title VII and the Florida Civil Rights Act ("FCRA") (Counts IV - VI), national origin discrimination and national origin harassment under Title VII and the FCRA (Count VII), retaliation under Title VII and the FCRA (Counts VIII-IX), and violation of 42 U.S.C. § 1981 (Count X). See DE 49.

         This Court granted summary judgment in favor of Defendant America Best Car Rental KF Corp., as to Plaintiffs claims asserted in Count IV (Violation of Title VII - Religious Discrimination), Count V (Violation of Title VII - Religious Harassment), Count VI (Violation of the FCRA - Religious Discrimination and Harassment), Count VII (Violation of VII -Discrimination and Harassment Based on Plaintiffs National Origin), Count VII [sic] (Violation of the Florida Civil Rights Act of 1992 - National Origin Discrimination), and Count X (Violation of 42 U.S.C. § 1981) as to Defendant America Best. See DE 111. The Court denied Defendant's Partial Motion for Summary Judgement [DE 94] as to the remaining counts, and the case proceeded to trial on Count I (Wage and Hour Violation by the Corporate and Individual Defendants), Count II (Wage and Hour Violation by the Corporate and Individual Defendants), Count III (Federal Statutory Violation Pursuant to 29 U.S.C. § 215(a)(3) (Retaliation)), Count VIII (Violation of Title VII - Retaliation), Count VIII (Violation of Title VII - Retaliation), Count IX (Violation of the FCRA - Retaliation), and Count X (Violation of 42 U.S.C. § 1981) as to Defendant Kamal Fereg [DE 111].

         The case proceeded to jury trial and on June 15, 2017, the jury returned a verdict in favor of Plaintiff, Marc Touzout and against Defendants in the amount of $1, 938.00 on Count I of the Second Amended Complaint for failure to pay overtime wages and in the amount of $84.00 on Count II of the Second Amended Complaint for failure to pay minimum wages under the FLSA. See DE 129. Plaintiff was also awarded liquidated damages from Defendants in an amount equal to the above overtime and minimum wage awards [DE 133]. The jury returned a verdict against Plaintiff and in favor of Defendants on all other counts. On June 23, 2017, final judgment was entered in favor of Plaintiff and against Defendant on Counts I and II, awarding Plaintiff a total of $4, 044.00 plus post-judgment interest at the rate of 1.19% beginning on June 23, 2017. Id. Final judgment was entered in favor of Defendants against Plaintiff on Count III (FLSA Retaliation), Count VIII (Title VII Retaliation), Count IX (FCRA Retaliation), and Count X (42 U.S.C. § 1981 Discrimination). Id. The Court also explicitly reserved jurisdiction as to the issue of costs and attorney's fees. Id.

         Plaintiff filed his Motion for Attorney's Fees & Costs, seeking $7, 215.00 in fees and $225.00 in costs for a total award of $7, 440.00. [DE 134, pg. 9]. Plaintiffs counsel seeks an hourly rate of $185.00 per hour and claims to have expended 39 hours in this case. Id. Plaintiff argues that the hourly rate is reasonable and total award requested is reasonable under both the "lodestar" method and Johnson 12 factor test. [DE 134, pg. 5-6].

         In Defendants' Response to the motion, Defendants first argue that Plaintiffs Motion should be dismissed because Attorney Perez filed the Motion before waiting to see if Defendants could resolve the Motion without filing it with the Court. [DE 136, pg. 4]. Defendants allege that Plaintiff sent an email to defense counsel and attached a draft of the motion and asked if it could be resolved. However, without waiting for response, Plaintiff filed the Motion 51 minutes later without speaking to defense counsel. Id. Defendants claim that this is a violation of Local Rule 7.3, requiring a good faith effort to resolve the motion before filing it. Id.

         In the alternative, Defendants do not challenge Plaintiffs entitlement to reasonable attorney's fees and costs as to the Counts on which Plaintiff is the prevailing party, but Defendants do argue that Plaintiffs claimed time is excessive. [DE 136, pg. 8]. Defendants also do not challenge Plaintiffs requested hourly rate [DE 136, pg. 7], however Defendants claim that Plaintiff is seeking fees for time expended on matters in which he was unsuccessful, and that Plaintiffs counsel did not need to spend as much time as he claims on several aspects of the case. [DE 136, pg. 9]. For example, Defendants argue that time spent on discussing the motion for summary judgment should be struck because Defendants prevailed on the non-FLSA issues. [DE 136, pg. 8]; it should only have taken Plaintiff an hour to consult with client and prepare for trial rather than 2.5 hours; and Plaintiff should not receive fees for the third day of trial because he lost on several of the counts. [DE 136, pg. 9-10].

         Defendants also argue that Plaintiff should not receive costs in the amount of $225.00 because Plaintiff failed to describe what these costs were for or to support the claim for costs with any documentation as required by Local Rule 7.3. Based on this reasoning, Defendants suggest this Court award $4, 014.50 in attorney's fees.

         In Plaintiffs Reply [DE 137], he argued that he filed the motion for attorney's fees prior to conferring with defense counsel inadvertently and due to excusable neglect. He also argued that there was no prejudice to Defendants because the parties still entered into settlement discussions, and were unsuccessful in attempting to settle. [DE 137, pg. 4]. Plaintiff also rejects Defendants' objections to the time entries, arguing that Attorney Perez portrayed the time spent on the case "in a conservative context, " and he spent time effectively and efficiently while keeping Plaintiff abreast of the progression of the case. [DE 137, pg. 5]. Plaintiff clarified that the costs were for serving subpoenas, and attached the billing statement to the reply. [DE 137, pg. 9]. He stated that the total amount for serving the subpoenas was $175.00, as stated on the attached bill, and there was about $25.00 in copy charges. [DE 137, pg. 6].

         In Defendants' Sur-reply [DE 140], Defendants argue that Plaintiffs requests for costs should be denied because Plaintiff failed to provide a bill of costs or documentation supporting the claim of $225.00 in costs. They additionally argue that the costs should be denied because the witnesses subpoenaed were not permitted to testify at trial. See DE 123, pg. 3-4; DE 140, pg. 4. Defendants also re-assert their argument that Plaintiffs Motion should be dismissed because Plaintiff failed to comply with Local Rule 7.3 by not first attempting to settle the attorney's fees issue prior to filing the Motion. [DE 140, pg. 5].

         Plaintiff filed a Sur-response [DE 143] in which he re-iterates his arguments that failing to confer with Defendants prior to filing the Motion did not prejudice Defendants and occurred due to excusable neglect. Plaintiff also waived his claim for costs, and now seeks $7, 215.00 solely in attorney's fees.

         B. DISCUSSION

         1. ENTITLEMENT TO ATTORNEY'S FEES

         There is no dispute that Plaintiff is entitled to attorney's fees. It is well settled that a prevailing FLSA plaintiff is entitled to recover attorney's fees and costs based upon the language of the FLSA, which provides that "[t]he court... 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." 29 U.S.C. § 216(b); see also Silva v. Miller, 547 F.Supp.2d 1299, 1304 (S.D. Fla. 2008). In the case at hand, a jury found the Defendants failed to pay Plaintiff overtime wages and failed to pay Plaintiff minimum wages under the FLSA, so Plaintiff is the prevailing party under the FLSA statute and is entitled to recover reasonable attorney's fees. Defendants do not contest entitlement in any of its motion memoranda.

         2. CALCULATION OF THE ATTORNEY'S FEE AWARD

         A reasonable attorney's fee award is "properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Am. Civil Liberties Union v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1994)). This "lodestar" may then be adjusted for the results obtained by the attorney. See Barnes, 168 F.3d at 427 (citing Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994)). "In determining what is a 'reasonable' hourly rate and what number of compensable hours is 'reasonable, ' the court is to consider the 12 factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)." Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). These factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite 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.

Id. at 1350 n. 2 (citation omitted).

         The reasonable hourly rate is defined as the "prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation." Barnes, 168 F.3d at 436 (quoting Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1999)). The fee applicant bears the burden of establishing the claimed market rate. See Barnes, 168 F.3d at 427. The Court may use its own experience in assessing the reasonableness of attorney's fees. Norman, 836 F.2d at 1299.

         With regard to the type of evidence that the fee claimant should produce in support of a claim, in Barnes, the Eleventh Circuit has stated,

The "fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates." Norman, 836 F.2d at 1303. That burden includes "supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate. Further, fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity . ... A well-prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or stage of the case." Id. (citations omitted).

168 F.3d at 427.

         In submitting a request for attorney's fees, fee applicants are required to exercise "billing judgment." Barnes, 168 F.3d at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). If fee applicants do not exclude "excessive, redundant, or otherwise unnecessary" hours, which are hours "that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel, " the court must exercise billing judgment for them. See Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301 (emphasis in original)). The burden rests on plaintiff to submit a request for fees that will enable the court to determine how much time was reasonably expended. Loranger, 10 F.3d at 782.

         When responding to motions for attorney's fees, opponents are required to lodge specific objections to any requests. See Barnes, 168 F.3d at 427 (stating that objections from fee opponents must be to be specific and "reasonably precise"); Norman, 836 F.2d at 1301 ("[a]s the district court must be reasonably precise in excluding hours thought to be unreasonable or unnecessary, so should the objections from fee opponents.") Failing to lodge specific objections is generally deemed fatal. See, e.g., Gray v. Lockheed Aeronautical Sys. Co., 125 F.3d 1387, 1389 (11th Cir. 1997); Scelta v. Delicatessen Support Srvcs. Inc., 203 F.Supp.2d 1328, 1333 (M.D. Fla. 2002).

         a. COUNSEL&#3 ...


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