United States District Court, M.D. Florida, Fort Myers Division
REPORT AND RECOMMENDATION
DOUGLAS N. FRKZIER, UNITED STATES MAGISTRATE JUDGE.
THE UNITED STATES DISTRICT COURT
cause is before the Court on Plaintiffs Joleen Doherty and
Kimberly Coleman's Motion for an Award of Attorney's
Fees and Costs (Doc. 21) filed on February 28, 2019.
Defendant filed a Response to Plaintiffs' Motion for an
Award of Attorney's Fees and Costs (Doc. 24) on March 14,
2019. Plaintiffs are requesting the Court to enter an order
awarding $9, 974.00 in attorney's fees and $400.00 in
costs pursuant to 29 U.S.C. § 216(b). For the reasons
explained below, the undersigned respectfully recommends that
Plaintiffs' motion be GRANTED IN PART AND DENIED
case arises from Plaintiffs' failed attempt to join in
the case Rumreich v. Good Shepherd Day School of
Charlotte, Inc., 2:17-cv-292-38MRM. In
Rumreich, Plaintiffs were granted leave to join in
the action pursuant to Rule 20 of the Federal Rules of
Federal Procedure, but failed to do so before plaintiff
Rumreich's claim was resolved. See (Order,
Rumreich v. Good Shepherd Day School of Charlotte,
Inc., 2:17-cv-292-38MRM (M.D. Fla. September 18, 2018).
case was initiated by Plaintiffs by Complaint (Doc. 1) on
September 26, 2018. On December 12, 2018, Plaintiffs filed
notices informing the Court that they had accepted
Defendant's Rule 68 offer of judgment. After the parties
had submitted sufficient information concerning the
Plaintiffs' acceptance of the offers of judgment, the
undersigned entered a Report and Recommendation recommending
that the District Court accept Plaintiffs' acceptance of
the offers of judgment as a fair and reasonable resolution of
a bona fide dispute of the FLSA issues. On May 20, 2019, the
District Court entered an Order (Doc. 28) accepting and
adopting the undersigned's Report and Recommendation. The
question of attorney's fees is now ripe for review.
FLSA provides that courts “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).
“A reasonable attorneys' fee is ‘properly
calculated by multiplying the number of hours reasonably
expended on the litigation times a reasonable hourly
rate'” to obtain the “lodestar.”
Wales v. Jack M. Berry, Inc., 192 F.Supp.2d 1313,
1317 (M.D. Fla. 2001) (quoting Blum v. Stenson, 465
U.S. 886, 888 (1984)); see also Lawrence v. Berkley Grp.,
Inc., No. 10-61069-civ-KMW, 2013 WL 12239477, at *1
(S.D. Fla. Feb. 20, 2013).
party seeking fees “bears the burden of establishing
entitlement and documenting the appropriate hours and hourly
rates.” Norman v. Housing Auth. of Montgomery,
836 F.2d 1292, 1303 (11th Cir. 1988). “[A]n applicant
may meet this burden by producing either direct evidence of
rates charged under similar circumstances, or opinion
evidence of reasonable rates.” Wales, 192
F.Supp.2d at 1317 (citing Norman, 836 F.2d at 1299).
A court may, however, rely on its own expertise and judgment
in assessing the value of counsel's services.
Id. (citing Norman, 836 F.2d at 1303).
first step in reaching the lodestar is to determine a
reasonable hourly rate, which “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 (citing
Blum, 465 U.S. at 895-96 n.11).
Plaintiffs are requesting an hourly rate of $500.00 for
attorney Bill B. Berke, Esq. and an hourly rate of $135.00
for paralegal Christine Boutchyard. (Doc. 21 p. 6). Defendant
argues that these hourly rates should be denied because they
are well above the prevailing market rate. (Doc. 24 p. 5-8).
Rumreich, the District Court entered an order
finding that $350.00 was a reasonable hourly rate for Mr.
Berke. The undersigned recommends that the District Court
again find that $350.00 an hour is a reasonable hourly rate
for Mr. Berke given the lack of complexity in this case and
taking into account the length of counsel's experience
handling cases of this nature. The undersigned makes no
finding as to whether Ms. Boutchyard's requested hourly
rate is reasonable because, as will be explained below,
Plaintiffs have failed to demonstrate that the work performed
by Ms. Boutchyard is recoverable in this case.
Number of Hours Expended
second step in the lodestar analysis is determining what
hours were reasonably expended in pursuing the action. Fee
applicants must exercise “billing judgment” and
exclude hours “that would be unreasonable to bill to a
client.” ACLU of Ga., 168 F.3d at 428 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
represent that Mr. Berke expended 19.30 hours in
representation in this case. Plaintiffs contend that there
are no examples of excessive time being spent on specific
tasks, there are no duplicative services and none of the time
billed was nonproductive. (Doc. 21 p. 6). Defendant argues
that Plaintiffs' counsel's hours should be capped
because Plaintiffs unreasonably prolonged this litigation.
(Doc. 24 p. 9). In addition, Defendant argues that