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Cake v. Casual Concepts, Inc

United States District Court, M.D. Florida, Jacksonville Division

June 5, 2018

Candi Cake, Plaintiff,
v.
Casual Concepts, Inc., Ronald LeGrand, & John Long, Defendants.

          REPORT & RECOMMENDATION

          Patricia D. Barksdale United States Magistrate Judge

         Candi 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.

         I. Background

         At a 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.

         A month 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.

         In the 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.

         II. Law & Analysis

         A. Expenses

         Section 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 conduct.[1]

         Section 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).

         Mr. 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 conduct.”).

         To 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.

         Considering 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.[2] 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 ...


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