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Doherty v. Good Shepherd Day School of Charlotte County, Inc.

United States District Court, M.D. Florida, Fort Myers Division

June 5, 2019

FORT M JOLEEN DOHERTY and KIMBERLY COLEMAN, Plaintiffs,
v.
GOOD SHEPHERD DAY SCHOOL OF CHARLOTTE COUNTY, INC., Defendant.

          REPORT AND RECOMMENDATION

          DOUGLAS N. FRKZIER, UNITED STATES MAGISTRATE JUDGE.

         TO THE UNITED STATES DISTRICT COURT

         This 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 IN PART.

         This 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).

         This 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.

         The 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).

         The 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).

         a. Hourly Rate

         The 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).

         Here, 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).

         In 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.

         b. Number of Hours Expended

         The 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)).

         Plaintiffs 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 ...


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