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Ortiz v. N.H. Inc.

United States District Court, S.D. Florida

December 12, 2017

KATHERINE MITCHELL CRUZ ORTIZ, JOISELYN C. ROBLETO, and all others similarly situated under 29 U.S.C. 216b, Plaintiffs,
v.
N.H. INC. a/k/a MERIDIAN FOOD MARKET, MONEY GRAM, MOHAMMED HOSSAIN, Defendants.

          ORDER ON DEFENDANTS' MOTION FOR A DETERMINATION OF FEES AND COSTS

          EDWIN G. TORRES UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on N.H. Inc.'s (“N.H. Inc.”) a/k/a Meridian Food Market, Money Gram, and Mohammed Hossain's (“Defendants”) motion for a determination of fees and costs against Katherine Mitchell Cruz Ortiz and Joiselyn C. Robleto (“Plaintiffs”). [D.E. 60]. Plaintiffs responded on November 28, 2017 [D.E. 69] to which Defendants replied on December 5, 2017. [D.E. 70]. Therefore, Defendants' motion is now ripe for disposition. After careful consideration of the motion, response, reply, relevant authority, and for the reasons discussed below, Defendants' motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         Plaintiffs filed this action pursuant to the Fair Labor Standards Act (“FLSA”) for unpaid overtime wages during their employment as cash checking clerks. Plaintiff Ortiz sought unpaid wages from February 20, 2012 through January 9, 2017 and Plaintiff Robleto sought unpaid wages from June 1, 2012 through January 9, 2017. [D.E. 1]. Plaintiffs resigned their employment positions on January 9, 2017 and filed this action against Defendants on January 13, 2017. Plaintiffs alleged in their statement of claims that they worked sixty-five hours per week and that all of the time spent working over forty hours during any particular week was uncompensated.

         On September 27, 2017, the Court permitted Plaintiffs to dismiss their claims against Defendants without prejudice. [D.E. 58]. In doing so, the Court held that if Plaintiffs decided to re-file this action at a later date, Plaintiffs would pay all taxable costs and attorneys' fees that Defendants incurred in defending this action. Plaintiffs were also ordered to preserve all documents that Defendants previously requested in discovery, including cell phone records and tax returns for the relevant time period that Plaintiffs alleged they were owed unpaid wages. If Plaintiffs failed to preserve the documents requested, their claims would be limited to the time period that Plaintiffs could sue for unpaid wages in any subsequent action.

         II. ANALYSIS

         Defendants' motion seeks an attorney fee award of $20, 776.60 and costs of $1, 088.90 following Plaintiffs' decision to voluntarily dismiss their claims without prejudice. On November 13, 2017, the Court held that - in situations where courts have voluntarily dismissed a plaintiff's claims and awarded fees and costs - courts have determined those amounts before a plaintiff re-files. See, e.g., Paul v. Georgia S., 2010 WL 4639239, at *2 (M.D. Ga. Nov. 4, 2010) (“The Court believes an attorney's fees and costs assessment is appropriate here. In the event Plaintiffs ever refile any action against Defendant upon these or substantially similar facts in any court, Plaintiffs will be required to pay the costs and attorney's fees Defendant incurred in defending this action.”) (emphasis added); Tesma v. Maddox-Joines, Inc., 254 F.R.D. 699, 702 (S.D. Fla. 2008) (“By noon on Tuesday, January 6, 2008, Defendant shall file with the Clerk of this Court a Memorandum together with supporting Affidavits and Exhibits consistent with Local Rule 7.3 of the United States District Court for the Southern District of Florida establishing the fees and costs incurred in the defense of this action”) (emphasis in original); Jones v. Smartvideo Techs., Inc., 2007 WL 1655855, at *4 (N.D.Ga. June 4, 2007) (“If Plaintiff wishes to refile, he should reimburse Defendants the costs and fees they incurred in preparing for Plaintiff's deposition. So that the amount to be paid as a condition of refiling may be known, Defendants shall file within five (5) days an affidavit describing the costs and fees incurred for this Court's approval.”). Therefore, Defendants are entitled to a determination of their reasonable attorneys' fees and costs.

         In reaching our determination of the appropriate fee award in this case, we acknowledge that in awarding attorneys' fees “courts are not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to see that an adequate amount is awarded.” ACLU of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999). Courts have considerable discretion when determining whether a party to a case should receive a fee award. See Cullens v. Georgia Dept. Of Transp., 29 F.3d 1489, 1492-1493 (11th Cir. 1994) (emphasizing that the district court is “empowered to exercise discretion in determining whether an award is to be made and if so its reasonableness.”).

         An award must be reasonable and must fall within the guidelines for fee awards promulgated by the Eleventh Circuit. See Norman v. Housing Auth. Of Montgomery, 836 F.2d 1292, 1299-1302 (11th Cir. 1988). It is consequently within a court's ultimate discretion to adjust the fees to an amount it deems proper according to the Eleventh Circuit's parameters. See, e.g., Columbus Mills, Inc. v. Freeland, 918 F.2d 1575, 1580 (11th Cir. 1990) (“[T]he Norman Court left to the discretion of the district court the decision of whether to prune excessive hours”); Cullens, 29 F.3d at 1492 (“[W]e reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.”) (quotation omitted).

         In determining an appropriate fee award, we employ the lodestar method. See City of Burlington v. Dague, 505 U.S. 557, 562 (1992) (“The ‘lodestar figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence. We have established a ‘strong presumption' that the lodestar represents the ‘reasonable' fee”). This method allows for a reasonable estimate of the value of an attorney's service because the movant submits evidence “supporting the hours worked and rates claimed.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). If the movant's documentation of hours worked is inadequate, “the district court may reduce the award accordingly.” Id.

         More specifically, the lodestar method requires the Court to first determine an attorney's reasonable hourly rate, and to multiply that rate by the number of hours reasonably expended. See, e.g., Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994); Norman, 836 F.2d at 1299; Harbaugh v. Greslin, 365 F.Supp.2d 1274, 1279 (S.D. Fla. 2005). Following the Court's calculation, “the court must next consider the necessity of an adjustment for results obtained.” Norman, 836 F.2d at 1302. Accordingly, when awarding fees, the Court must allow meaningful review of its decision and “articulate the decisions it made, give principled reasons for those decisions, and show its calculation.” Id. at 1304 (citation omitted).

         A. Reasonable Hourly Rate

         The first step is to determine the reasonable hourly rate. The Eleventh Circuit defines the reasonable hourly rate as “the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience and reputation.” Norman, 836 F.2d at 1299. Several factors may be considered in arriving at that prevailing market rate, as set forth in Johnson v. Georgia Highway Express, Inc.[1] The movant is required to submit to the Court satisfactory evidence to establish that the requested rate accurately reflects the prevailing market rate. See Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996); Norman, 836 F.2d at 1299 (finding that the burden lies with fee applicant “of producing satisfactory evidence that the requested rate is in line with prevailing market rates” and “satisfactory evidence necessarily must speak to rates actually billed and paid in similar lawsuits.”). Ultimately, the Court remains an expert on the issue of hourly rates in its community, and may properly consider “its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.” Loranger, 10 F.3d at 781 (quoting Norman, 836 F.2d at 1303).

         The Florida Supreme Court has also provided guidance in determining a reasonable rate under the lodestar method:

In establishing this hourly rate, the court should assume the fee will be paid irrespective of the result, and take into account all of the Disciplinary Rule 2-106 factors except the “time and labor required, ” the “novelty and difficulty of the question involved, ” the “results obtained, ” and “[w]hether the fee is fixed or contingent.” The party who seeks the fees carries the burden of establishing the prevailing “market rate, ” i.e., the rate charged in that community by lawyers of reasonably comparable skill, experience and reputation, for similar services.

Florida Patient's Comp. Fund v. Rowe, 472 So.2d 1145, 1150-51 (Fla. 1985) holding modified by Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990)). And the Eleventh Circuit has emphasized that “[l]egal skill may be a function of experience, but that is not always the case. Further, legal skill has no intrinsic value unless it is used to further the client's interest, which is to obtain a just result quickly and economically.” Norman, 836 F.2d at 1300.

         Defendants submit Mrs. Langbein's declaration in support of her hourly rate along with a redacted billing statement which details the work performed. Mrs. Langbein graduated from the University of Florida with high honors in 1974 and she received her law degree from Nova University in 1980. Mrs. Langbein has practiced in the area of labor and employment for 37 years and has been employed in several prestigious positions throughout her legal career. She claims that her normal hourly rate in labor and employment litigation varies from $325.00 to $400.00 per hour and that she been awarded fees at the $400 per hour rate in prior cases. However, Mrs. Langbein only seeks an hourly rate at the lowest end of that spectrum in support of her request for $20, 776.60 in fees.

         Defendants' arguments are well taken with respect to Mrs. Langbein's requested hourly rate, especially given the lack of opposition from Plaintiffs.[2] And after an independent review of the prevailing market rate for wage and employment attorneys in the Southern District, including a thorough consideration of the 12 Johnson factors, we find that $325 per hour is more than reasonable for an attorney who has practiced in this field for nearly four decades. See, e.g., Rodriguez v. Demolition King, Inc., 2015 WL 3970570, at *4 (S.D. Fla. June 30, 2015) (“While the undersigned recognizes that Mr. Pollack is a skilled attorney, the undersigned finds that an hourly rate of $400.00 per hour is too high of an hourly rate for this typical Fair Labor Standards Act case, and further finds that an hourly rate of $350.00 per hour is more appropriate for an attorney of Mr. Pollack's experience in this Fair Labor Standards Act case.”); James v. Wash Depot Holdings, Inc., 489 F.Supp.2d 1341, 1351 (S.D. Fla. 2007) (“[T]he Court will grant Kleppin fees at the rate of $270 an hour, which is the top of the range suggested by the Defendant's expert for an Associate who has been practicing for between 5-8 years.”). When coupled with the Court's own expertise in awarding fees in similar cases, together with a review of the record and supporting materials submitted in support thereof, we conclude that a $325.00 hourly rate is appropriate for Mrs. Langbein. Therefore, to this extent, Defendants' motion is GRANTED.

         B. Reasonable Number of Hours Expended

         The second step of the lodestar analysis requires the Court to determine the reasonable number of hours expended in the case. The award must exclude compensation for 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.” A.C.L.U. of Georgia, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301) (emphasis in original). The fee applicant bears the burden of establishing that the time for which compensation is sought was reasonably expended on the litigation and must provide the Court with specific and detailed evidence that will allow for an accurate determination of the amount of fees to award. See A.C.L.U. of Georgia, 168 F.3d at 428. If the fee applicant fails to exercise required billing judgment, the Court is obligated to A[prune] out those [hours] that are excessive, redundant, or otherwise unnecessary.@ Id. at 428. And if there is inadequate documentation supporting the number of hours expended, the court may reduce those hours accordingly. See Florida Patient's Comp. Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985); see also Loper v. New York City Police Dep't, 853 F.Supp. 716, 721 (S.D.N.Y. 1994) (“[W]here adequate contemporaneous records have not been kept, the court should not award the full amount requested”).

         As in the analysis of reasonable hourly rates, the Court is presumed to be an expert in reviewing the number of hours expended on litigation for the purpose of attorney's fees. Norman, 836 F.2d at 1303. “If the court concludes that the number of claimed hours is excessive, it may engage in ‘an across-the-board cut, ' so long as it provides adequate explanation for the decrease.” Galdames v. N & D Inv. Corp., 432 Fed.Appx. 801, 806 (11th Cir. 2001). Accordingly, it is “perfectly proper to award attorney's fees based solely on affidavits in the record.” Id. at 1303 (citing Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1030 (5th Cir. 1980)).

         Mrs. Langbein billed 64 hours to defend this case. Mrs. Langbein's time entries, amongst other things, range from telephone calls, drafting motions, e-mail communications, revisions to various drafts, and research, and preparing for depositions. Plaintiffs argue that Mrs. Langbein's time sheets are excessive because Mrs. Langbein billed 26.7 hours for frivolous work conducted after Plaintiffs filed their motions for voluntary dismissal. Plaintiffs also contend that Defendants had no legitimate reason to continue accruing fees when Plaintiffs sought to dismiss their claims without prejudice. As such, Plaintiffs conclude that after they filed their motions for voluntary dismissal on August 22, 2017, any fees after that date are improper and should be rejected.

         We disagree in part. While we will not completely rehash the sequence of events that post-date Plaintiffs' motions to voluntarily dismissal their claims, Mrs. Langbein had to incur some fees to adequately represent the interests of her clients. For instance, there was no Court Order excusing Plaintiffs from responding to written discovery or appearing at their depositions simply because Plaintiffs had recently filed their motions to voluntarily dismiss their claims. In other words, Defendants incurred fees to comply with the Court's Orders and additional costs to enforce those Orders. Moreover, Mrs. Langbein had to conduct research and spend time preparing responses to Plaintiffs' motion for sanctions that ...


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