Summary
applying Thompson in a case brought under the FLSA
Summary of this case from Reyes v. Falling Star Enterprises, Inc.Opinion
Case No. 05-60728-CIV-COHN/SNO W.
March 13, 2006
ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES
THIS CAUSE came before the Court on Plaintiff Frank Schwartz's Motion For Attorney's Fees [DE 32]. The Court has carefully considered Plaintiff's Motion, the Response [DE 33, 34] by Defendants High Q Seeds Corp., Jose Fernando Aristizabal, and Liliana Aristizabal, and Plaintiff's Reply and the supporting documentation, filed March 10, 2006, and is otherwise fully advised in the premises.
Plaintiff filed this action for overtime wages pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201- 219. The parties resolved this matter at mediation on January 18, 2006. The settlement included the full amount of overtime wages Plaintiff sought, plus costs. The parties, however, were not able to reach an agreement concerning Plaintiff's attorney's fees. Accordingly, the parties agreed to submit the issue of attorney's fees to the Court before stipulating to a dismissal of this action.
The Fair Labor Standards Act provides for a reasonable attorney's fee for prevailing plaintiffs. 29 U.S.C. § 216(b). This Circuit has adopted the lodestar approach in determining an award of attorney's fees. Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1298-1302 (11th Cir. 1988). To establish a lodestar amount, a court must ascertain the number of hours an attorney reasonably expended on litigation and multiply that figure by a reasonable hourly rate.Id. at 1302. The party seeking fees "is responsible for submitting satisfactory evidence to establish both that the requested rate is in accord with the prevailing market rate and that the hours are reasonable." Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996).
After a court determines a lodestar, it may adjust that amount (either upward or downward) based upon a number of factors, including the results obtained in the litigation. Norman, 836 F.2d at 1302. A strong presumption exists that the lodestar figure represents a reasonable fee for counsel's representation.Blum v. Stenson, 465 U.S. 886, 897 (1984); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1150 (11th Cir. 1993). The party seeking an adjustment to the lodestar bears the burden of proving that such an adjustment is necessary to the determination of a reasonable fee. Blum, 465 U.S. at 898.
The Court first turns to the hourly rates charged by Plaintiff's counsel. "A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable Skills experience, anti reputation." Norman, 836 F.2d at 1299. A fee applicant bears the burden of demonstrating with satisfactory evidence that counsel's rates are reasonable.
Satisfactory evidence at a minimum is more than the affidavit of the attorney performing the work. . . . [S]atisfactory evidence necessarily must speak to rates actually billed and paid in similar lawsuits. Testimony that a given fee is reasonable is therefore unsatisfactory evidence of market rate. Evidence of rates may be adduced through direct evidence of charges by lawyers under similar circumstances or by opinion evidence.Id. (citations omitted).
Here, Plaintiff submits a rate of $295/hour for Attorney Don Boswell and $95/hour for paralegal Cathy Bowser. Plaintiff supports Boswell's rates through a declaration by another lawyer experienced in labor and employment law in the Southern District of Florida. Plaintiff also cites several cases where courts in the Southern District have awarded comparable rates. Defendants do not object to these rates. The Court finds both rates reasonable in light of Plaintiff's submission.
With respect to the reasonableness of hours expended by Plaintiff's counsel, a fee applicant must set out the general subject matter of the time expended by the attorney "with sufficient particularity so that the court can assess the time claimed for each activity." Norman, 836 F.2d at 1303. "[A] lawyer may not be compensated for hours spent on activities for which he would not bill a client of means who was seriously intent on vindicating similar rights." Id. at 1301. Thus, fee applicants must use "billing judgment." Id. In ascertaining the number of reasonable hours, a court must deduct "excessive, redundant or otherwise unnecessary hours'" from those claimed.Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Here, Plaintiff submits billing records that reflect 35.1 hours for Boswell and 3.05 hours for Bowser. In addition, Plaintiff states in his Reply that Boswell expended 3.5 hours drafting the Reply. Defendants argue that several time entries should be subtracted as unreasonable. First, Defendants argue that Plaintiff should not receive fees for drafting an amended complaint and for dismissing other defendants originally included in this action, as this time resulted from Plaintiff's attorney's mistakes. Second, Defendants argue that Plaintiff should not have billed 3.3 hours of time in drafting the Motion For Attorney's Fees.
Litigants are generally entitled to recover fees for time spent litigating a fee award, but counsel "should not be compensated for turning the litigation about attorneys' fees into a `second major litigation."' Thompson v. Pharm. Corp. of Am., Inc., 334 F.3d 1242, 1245 (11th Cir. 2003) (quoting Hensley v. Eckerhart, 461 U.S. 424, (1983)). As there is no indication that Plaintiff's 3.5 additional hours expanded this fee dispute unnecessarily, the Court finds this additional time reasonable and recoverable.
Defendants may also suggest that the Court should discount time expended on depositions. For reasons explained more fully below, the Court declines to do so.
The Court finds no merit in either of Defendants' arguments. Filing amended complaints and dismissing defendants are reasonable activities in the course of litigating a dispute and are not always the result of counsel's unreasonable errors. Furthermore, it is reasonable to expend 3.3 hours on drafting a motion for attorney's fees. Even if parts of the motion are "boilerplate," the Motion requires consultation with the expert declarant and a review of billing records.
Otherwise, the Court has carefully reviewed each billing entry for both Boswell and Bowser and holds that the time expended was reasonable in each entry. Accordingly, the Court shall include all hours reported in the attorney's fee award (i.e., 38.6 hours for Boswell and 3.05 hours for Bowser).
Finally, with regard to an adjustment of the ultimate award, Defendants argue that the Court should consider a downward adjustment because of alleged misconduct by Boswell during a deposition of Defendant Jose Aristizabal. Defendants allege that Boswell implicitly threatened the individual Defendants with criminal charges by questioning Jose Aristizabal about certain employment records. The Court has reviewed the excerpts of this deposition transcript and does not find any threat — implied or otherwise — of criminal charges on Boswell's part. Furthermore, the Court does not see any impropriety in Boswell's questioning. Accordingly, Defendants' argument is without merit. The Court declines to adjust the lodestar amount in any respect.
Finally, Plaintiff argues he is entitled to $673.50 in costs incurred in filing his Reply in support of his Motion. Plaintiff incurred this cost in obtaining deposition transcripts to respond to Defendants' allegation that he threatened criminal sanctions against individual Defendants. The Court finds these costs reasonable under the circumstances and shall include them in the final award.
For the foregoing reasons, it is ORDERED AND ADJUDGED that Plaintiff's Motion [DE 32] is GRANTED. Defendant is hereby ordered to remit to Plaintiff $12,350.25 in attorney's fees and costs. Furthermore, the parties shall.
PLEASE TAKE NOTICE that the Court shall remove this action from the calendar and close this case upon receipt of the parties' stipulation of dismissal. If the Court does not receive a stipulation on or before March 22, 2006, the parties shall appear at the Calendar Call scheduled for March 23, 2006, at 1:30 p.m.
DONE AND ORDEED.