United States District Court, M.D. Florida, Tampa Division
REPORT AND RECOMMENDATION
P. FLYNN UNITED STATES MAGISTRATE JUDGE.
the Court is Yessenia Drayton's (“Plaintiff”)
request for attorney's fees and costs included in her
Motion for Default Judgment (Doc. 13). Upon consideration, it
is recommended that Plaintiff's request be granted in
part and denied in part.
brought this action under the Fair Labor Standards Act
(“FLSA”) against her employer, Avia Premier Care,
LLC (“Defendant”), seeking unpaid minimum wages
(Doc. 1). Defendant failed to file an answer or otherwise
respond to the Complaint. After an entry of default by the
Clerk, Plaintiff filed a Motion for Default Judgment seeking
unpaid minimum wages, liquidated damages, and reasonable
attorney's fees and costs (Doc. 13). On December 20,
2018, the District Judge granted in part Plaintiff's
Motion for Default Judgment and directed the Clerk to enter
judgment in favor of Plaintiff in the amount of $3, 829.02
(Doc. 16 at 4). The Court then retained jurisdiction to
consider Plaintiff's request for attorney's fees and
costs, which the Court referred to the undersigned for a
Report and Recommendation. Id.
contends that she is entitled to an award of attorney's
fees under both section 216(b) of the FLSA and section 448.08
of the Florida Statutes. A party that prevails on a FLSA
claim is entitled to reasonable attorney's fees and
costs. See 29 U.S.C. § 216(b) (stating that
“[t]he court in such action shall . . . allow a
reasonable attorney's fee . . . and costs of the
action.”). Similarly, section 448.08 of the Florida
Statutes states that “a prevailing party in an action
for unpaid wages” may be awarded “the costs of
the action and a reasonable attorney's fee.” Fla.
Stat. § 448.08.
preliminary matter, this case was brought before the Court
under its federal question jurisdiction (Doc. 1 at 1). Only
in a diversity case or a supplemental jurisdiction case is a
federal court required to apply the substantive law of a
forum state. See Erie R. Co. v. Tompkins, 304 U.S.
64, 78 (1938) (stating that “[e]xcept in matters
governed by the Federal Constitution or by acts of Congress,
the law to be applied in any case is the law of the
state”). Statutes allowing the recovery of
attorney's fees are substantive law. See McMahan v.
Toto, 256 F.3d 1120, 1132 (11th Cir. 2001), amended
on reh'g, 311 F.3d 1077 (11th Cir. 2002) (stating
that “it is clear that statutes allowing for recovery
of attorney's fees are substantive for Erie
purposes”). Therefore, section 448.08 of the Florida
Statutes is inapplicable in this case. Cf Zunde v. Intl.
Paper Co., No. 3:98CV439-J-20B, 2000 WL 1763843, at *2
(M.D. Fla. July 20, 2000) (applying Florida law in granting
an award of statutory fees under Florida Statute §
448.08 in a case brought under the diversity jurisdiction of
as discussed above, the Court granted default judgment in
favor of Plaintiff in the total amount of $3, 829, 02.
Therefore, Plaintiff is the prevailing party in this case and
is entitled to an award of attorney's fees under section
216(b) of the FLSA. See Morillo-Cedron v. Dist. Dir. for
the U.S. Citizenship & Immigration Servs., 452 F.3d
1254, 1257 (11th Cir. 2006) (stating that “‘a
prevailing party' is one who has been awarded some relief
by the court”). Plaintiff's counsel seeks a total
of $21, 225 in attorney's fees. This amount consists of
$10, 612.50 of actual fees incurred during the litigation and
the application of a 2.0 enhancement fee multiplier (Doc. 13,
determining a prevailing party's entitlement to fees, the
Court must then consider the reasonableness of the amount of
fees and costs award. The calculation of attorney's fees
under federal fee-shifting statutes is based on the
“lodestar” method. Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 546 (2010). Under this method,
courts multiply the reasonable hourly rate by the reasonable
hours expended in the litigation. See Blum v.
Stenson, 465 U.S. 886, 888 (1984); Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983). A final lodestar
amount “embodies a presumptively reasonable fee.”
Yellow Pages Photos, Inc. v. Ziplocal, LP, 846 F.3d
1159, 1164 (11th Cir. 2017).
instance, Plaintiff seeks $10, 612.50 in attorney's fees
for work performed by two attorneys and a paralegal, as
described in the following table:
review of Plaintiff's Motion for Default and the
supporting evidence, the Court finds that the requested
attorney's fees are unreasonable and recommends that
attorney's fee be awarded in ...