United States District Court, M.D. Florida, Jacksonville Division
REPORT & RECOMMENDATION
Patricia D. Barksdale United States Magistrate Judge
Cake brings claims under the Fair Labor Standards Act, 29
U.S.C. §§ 201-219, and the Florida Minimum Wage
Act, Fla. Stat. § 448.110, based on alleged failures to
pay wages and retaliation for complaining about the failures.
This report and recommendation addresses (1) the
defendants' request for expenses incurred in filing a
renewed motion to disqualify Dale Morgado, Esquire, from
representing Ms. Cake in this action, Doc. 39 at 6; and (2)
Ms. Cake's failure to show cause why her case should not
be dismissed for failure to prosecute and follow the
Court's order, Doc. 44.
hearing last year, the defendants' counsel moved to
disqualify Mr. Morgado from representing Ms. Cake in this
action based on his repeated failure to respond to
discovery-related communications, his alleged
misrepresentations to the Court about his ability to
prosecute this case, and the pendency of a state-court writ
of bodily attachment the defendants' counsel contended
would prevent Mr. Morgado from entering the state and
adequately representing Ms. Cake. Doc. 36 at 30. Details of
conduct prompting that motion and delays caused by that
conduct are in the report and recommendation entered on
August 16, 2017. Doc. 34. The Court denied the request to
disqualify Mr. Morgado but warned him that “any
unexcused delay in responding to emails, providing discovery,
or complying with deadlines may result in an order requiring
him to withdraw.” Doc. 35 at 2. The Court then entered
an amended scheduling order. Doc. 38.
later, the defendants renewed their motion to disqualify Mr.
Morgado, explaining he had failed to respond to repeated
attempts to contact him. Doc. 39. They also requested an
award of reasonable expenses incurred in bringing the motion.
Doc. 39 at 6. The Court directed Mr. Morgado to respond to
the motion and cautioned that, if he did not, the Court would
grant the motion and “award the defendants reasonable
expenses incurred in filing the motion.” Doc. 40 at 1.
He did not, and the Court disqualified him and directed the
defendants' counsel to provide evidence of reasonable
expenses. Doc. 42 at 1-2. The defendants' counsel filed a
billing statement and affidavits, which show Sean Walsh-an
associate of Jackson Lewis, P.C., and member of the Florida
Bar since 2014-spent 2.4 hours at $216 an hour preparing the
motion to disqualify; Richard Margulies-a principal of
Jackson Lewis, P.C., and member of the Florida Bar since 1986
with an AV rating by Martindale Hubbell- spent 0.4 hours at
$396 an hour revising the motion; and Jackson Lewis, P.C.,
billed the defendants for those hours, for a total of
$676.80. Docs. 43-1, 43-2.
same order, the Court directed Ms. Cake to, by January 5,
2018, file either a notice that she intends to proceed
without a lawyer or have new counsel enter an appearance on
her behalf. Doc. 42 at 2. When she failed to do either, the
Court ordered her to show cause by March 23, 2018, why her
case should not be dismissed for failure to prosecute and
failure to follow the Court's order. Doc. 44. The latter
order was sent to her last known residential address and
email address, and neither was returned as undeliverable. She
failed to respond, and the time for doing so passed more than
two months ago.
Law & Analysis
1927 of Title 28 of the United States Code provides:
Any attorney or other person admitted to conduct cases in any
court of the United States or any Territory thereof who so
multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys'
fees reasonably incurred because of such
1927 is penal in nature and therefore must be strictly
construed. Norelus v. Denny's, Inc., 628 F.3d
1270, 1281 (11th Cir. 2010). An attorney multiplies court
proceedings unreasonably and vexatiously only if his conduct
is “so egregious that it is tantamount to bad
faith.” Id. at 1282. The standard is
objective, with the attorney's conduct compared to how a
reasonable attorney would have acted under the circumstances.
Id. at 1284. Thus, § 1927 may be applied even
if the attorney does not act knowingly and malevolently.
Id. at 1291. The amount “cannot exceed the
costs occasioned by the objectionable conduct.”
Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010).
Morgado's conduct, as compared to a reasonable attorney
under the same circumstances, is tantamount to bad faith and
has unreasonably and vexatiously multiplied the proceedings.
Earlier, he did not respond to a motion to compel and ignored
the court-imposed deadline to respond to discovery requests
and show cause why expenses should not be awarded. Based in
part on his later representation that his health was to blame
but would not be an issue going forward, the Court found no
bad faith but warned him that “any unexcused delay in
responding to emails, providing discovery, or complying with
deadlines may result in an order requiring him to
withdraw.” Doc. 35 at 2. Shortly thereafter, he failed
to respond to repeated attempts by the defendants'
counsel to contact him about case matters and to the
Court's order directing him to show cause why he should
not be disqualified. Doc. 40 at 1. Because of his actions and
inactions, the Court has had to twice vacate the case
management and scheduling order. Docs. 30, 42. Requiring him
to pay the expenses incurred in filing a renewed motion to
disqualify him is warranted. See Norelus, 628 F.3d
at 1298 (“The time, effort, and money a party must
spend to get another party sanctioned realistically is part
of the harm caused by that other party's wrongful
decide if attorney's fees ordered to be paid under §
1927 are reasonable, courts have applied the lodestar
approach explained in Hensley v. Eckerhart, 461 U.S.
424 (1983), and Norman v. Housing Auth. of City of
Montgomery, 836 F.2d 1292 (11th Cir. 1988). See,
e.g., Danubis Grp., LLC v. Landmark Am. Ins.
Co., 685 Fed.Appx. 792, 801-03 (11th Cir. 2017). Under
that approach, a court's “starting point” is
a calculation of the lodestar figure, which is the number of
hours reasonably expended multiplied by a reasonable hourly
rate. Hensley, 461 U.S. at 433. To arrive at a
reasonable amount, the court then considers other factors
that require an adjustment of the lodestar figure.
Id. at 433-37. 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,
836 F.2d at 1299.
the information about defense counsel, see Doc.
43-1, and my own knowledge of the local market, the rates
charged by them ($396 an hour for Mr. Margulies and $216 an
hour for Mr. Walsh) are the prevailing market rates for
similar services by lawyers of reasonably comparable skills,
experience, and reputation in Jacksonville and are
reasonable, see Norman, 836 F.2d at
1299. Considering the billing records showing no
work that was duplicative, clerical, inflated, or otherwise
unnecessary, see Doc. 43-2 at 3, the time they spent
to prepare the renewed motion (2.4 hours by Mr. Walsh and 0.4