Case Information
*1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 19-60512-CIV-SINGHAL/STRAUSS DARREN RYAN PAUL,
Plaintiff,
v.
AMERICAN LIBERTY VAN LINES LLC, et al. ,
Defendants.
_____________________________________/
REPORT AND RECOMMENDATION
THIS MATTER is before the undersigned on Plaintiff’s Verified Motion for Attorney’s Fees and Incorporated Memorandum of Law [DE 25] (“Motion”). The Motion was referred to the undersigned’s predecessor for a report and recommendation pursuant to the District Court’s Paperless Order [DE 26]. It was then reassigned to the undersigned on January 29, 2020 [ see DE 31]. The undersigned has reviewed the Motion, Defendants’ Response in Opposition to the Motion [DE 28], Plaintiff’s Reply in Support of the Motion [DE 29], and the record in this case. For the reasons discussed herein, the undersigned RECOMMENDS that the Motion [DE 25] be GRANTED IN PART and DENIED IN PART . Specifically, the undersigned recommends a fee award in the amount of $5,635.00 .
I. BACKGROUND
Plaintiff brought this action under the Fair Labor Standards Act (“FLSA”). On October 29, 2019, the Court entered its Order Approving Settlement and Dismissing Action with Prejudice as to Settling Defendants [DE 21] (“Order Approving Settlement”). The subject Settlement Agreement [DE 20-1] resolved the issues in this case (other than the amount of reasonable attorney’s fees) between Plaintiff and all Defendants other than Shawn Thompson (“Settling *2 Defendants”). Therefore, as indicated in paragraph 4 of the Order Approving Settlement, this case remains open and pending as to Mr. Thompson.
As set forth in the Settlement Agreement [DE 20-1], the Settling Defendants agreed to pay Plaintiff’s attorney’s fees in an amount to be determined by the Court. Pursuant to the Motion, Plaintiff now seeks to recover attorney’s fees in the amount of $7,200.00 (18 hours at a rate of $400.00 per hour). The Settling Defendants do not dispute Plaintiff’s entitlement to reasonable attorney’s fees. They do, however, contend that only $3,150.00 of the attorney’s fees incurred by Plaintiff are reasonable. Specifically, the Settling Defendants contend that (1) the hourly rate of Plaintiff’s attorney should be reduced to $350.00, (2) the hours sought should be reduced to 13.5, and (3) the lodestar (reasonable hours multiplied by reasonable hourly rate) should be reduced by one-third based on the results obtained. As to the results obtained argument, the Settling Defendants assert that Plaintiff ultimately obtained less than one-third of what he sought in the Complaint. Succinctly, as reflected in Plaintiff’s Statement of Claim [DE 1-3], Plaintiff sought $6,518.06 (half of which was alleged liquidated damages).
II. ANALYSIS
In FLSA cases, a plaintiff who prevails is entitled to an award of reasonable attorneys’
fees. 29 U.S.C. § 216(b);
Mayer v. Wall St. Equity Grp., Inc.
,
Fee applicants are required to exercise billing judgment and to exclude entries that are
excessive or otherwise unnecessary.
Am. Civil Liberties Union v. Barnes
,
A. Reasonable Hourly Rate
According to the Motion, Plaintiff’s counsel, Elliot Kozolchyk, is an attorney who has been practicing for ten years in the area of employment law. He is the only shareholder at his firm. Plaintiff asserts that Mr. Kozolchyk’s reasonable hourly rate is $400.00. The Settling Defendants counter that Mr. Kozolchyk’s reasonable hourly rate is $350.00. The undersigned agrees with the Settling Defendants.
Following the filing of the Motion, the undersigned directed Plaintiff to submit information regarding his attorney’s fee awards from the last two years [ see DE 32]. Plaintiff’s counsel thereafter submitted a Notice of Previously Awarded Fees [DE 35]. Therein, Plaintiff’s counsel lists nine fee awards. In six of the nine matters, the court found $350.00 to be a reasonable hourly rate for Plaintiff’s counsel. Although the court determined that Plaintiff’s counsel’s reasonable hourly rate was $375.00 or $400.00 in the other three matters, those matters were not contested.
Moreover, on February 28, 2020 (less than 2 weeks prior to the issuance of this Report and Recommendation), Judge Rosenberg found that $350.00 was a reasonable hourly rate for Plaintiff’s counsel. See Aldana v. Audiology Distribution, LLC , No. 19-cv-80339, at DE 69 (S.D. Fla. Feb. 28, 2020). Based on the undersigned’s own knowledge of reasonable hourly rates in this *4 community, the undersigned agrees with Judge Rosenberg and recommends that the District Court find $350.00 per hour to be a reasonable hourly rate for Plaintiff’s counsel.
B. Hours Reasonably Expended
The undersigned has carefully reviewed the time records of Plaintiff’s counsel and concludes that the majority of hours expended were reasonable. As an initial matter, the undersigned finds that the billing entries that are not contested set forth hours that were reasonably expended. With respect to the remaining entries, the undersigned’s recommendations are discussed herein.
First, the Settling Defendants seek a reduction from 2.0 hours to 1.0 hour for the January 19, 2019 entry (“Met and Interviewed Client”). The undersigned agrees with the proposed reduction. Plaintiff argues that “[t]wo hours is not excessive to meet with a new client involving an employment dispute” [DE 29]. While that may be true in many instances, this is a simple FLSA case that involves a small amount at issue and a short four-month period. Under the circumstances, 2.0 hours is excessive, and only 1.0 hour should be awarded.
Second, the Settling Defendants seek a reduction from 0.5 hours to 0.2 hours for the February 26, 2019 entry (“Prepared Exhibit A to the Complaint, the Statement of Claim”). The undersigned disagrees with the proposed reduction. The amount of time spent was reasonable.
Third, the Settling Defendants seek a reduction from 0.2 hours to 0.1 hours for the March 4, 2019 entry (“Reviewed DE 6, Order to Meet, Confer, and File JSR”). The undersigned agrees with the proposed reduction. The time spent reviewing the standard three-page Order [DE 6] was excessive given that Plaintiff’s counsel regularly represents FLSA plaintiffs in cases pending before this Court.
Fourth, the Settling Defendants seek reductions for Plaintiff’s counsel’s preparation of discovery on June 21, 2019 (three separate entries for 0.8, 0.7, and 0.9). The Settling Defendants’ counsel asserted it was his “understanding that written discovery had not been exchanged in the case at that time” [DE 28]. In the Reply [DE 29], Plaintiff attaches proof that discovery was served on June 21, 2019. As such, the undersigned agrees with Plaintiff that the foregoing objection is baseless.
The Settling Defendants, however, also contend a reduction should be made to account for the discovery served on Shawn Thompson (who is not one of the Settling Defendants). Based upon this objection, the undersigned recommends that the time entries for preparing interrogatories and requests for admissions each be reduced by 0.1. The undersigned only recommends a small reduction because the majority of time incurred preparing the discovery would have been incurred regardless of whether Mr. Thompson was included within the discovery requests. With respect to the request for production, only a single request for production was served. In other words, while Plaintiff served separate sets of interrogatories and requests for admissions on Mr. Thompson, Plaintiff did not serve a separate request for production on Mr. Thompson. With the two reductions of 0.1, the June 21, 2019 time entries should be 0.8, 0.6, and 0.8.
Fifth, the Settling Defendants seek a reduction from 0.2 hours to 0.1 hours for the September 27, 2019 entry (reviewing and responding to email). Based upon the records before the Court, this time entry is not excessive.
Finally, the Settling Defendants seek a reduction from 1.2 hours to 0.6 hours for the October 3, 2019 entry (review of email and discovery propounded by Defendants). The undersigned agrees with the proposed reduction as the time is excessive based on the description provided.
Applying the foregoing reductions, the undersigned finds that 16.1 hours of the 18 hours expended were reasonable. Therefore, the lodestar figure for this matter is $5,635.00 (16.1 hours multiplied by $350.00 per hour).
C. Adjustment for Results Obtained
“The product of reasonable hours times a reasonable rate does not end the inquiry. There
remain other considerations that may lead the district court to adjust the fee upward or downward,
including the important factor of the ‘results obtained.’ ” ,
Nevertheless, the undersigned does not agree that any basis exists to reduce the lodestar in
this case. As the Settling Defendants note in their Response, “[a] lodestar figure ‘is itself strongly
presumed to be reasonable.’ ” DE 28 at p. 6 (quoting
Martinez v. Hernando Cty. Sheriff’s Office
,
III. CONCLUSION
For the reasons discussed above, the undersigned RECOMMENDS that the District Court enter an Order GRANTING IN PART and DENYING IN PART the Motion [DE 25], and awarding Plaintiff attorney’s fees of $5,635.00 (16.1 hours multiplied by a reasonable hourly rate of $350.00).
The parties will have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation within which to file written objections, if any, with the Honorable
Raag Singhal, United States District Judge. Failure to timely file objections shall bar the parties
from a
de novo
determination by the District Judge of an issue covered in the Report and shall bar
the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this
Report except upon grounds of plain error if necessary in the interest of justice.
See
28 U.S.C. §
636(b)(1);
Thomas v. Arn
,
DONE AND SUBMITTED in Fort Lauderdale, Florida, this 9th day of March 2020. Copies furnished via CM/ECF to:
Hon. Raag Singhal
Counsel of Record