Lee v. Krystal Co.
Lee v. Krystal Co.
Opinion of the Court
ORDER
This matter comes before the Court on plaintiffs Motion for Award of Attorney’s Fees (doc. 34) and Plaintiffs Supplementary Fee Petition (doc. 40). The attorney’s fee issue has been extensively briefed and is now ripe for disposition.
I. Relevant Background.
Plaintiff, Reena Lee, brought this action against The Krystal Company (“Krystal”) alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). The gravamen of Lee’s claims was that Krystal had failed to pay her straight-time wages that were due and owing, and that it had also failed to comply with FLSA record-keeping requirements.
Left undecided by the Offer of Judgment and the August 28 Order were the issues of fees and costs, both of which Lee claims. In subsequent filings, Lee has requested an award of attorney’s fees and costs in the total amount of $30,105.87.
II. Analysis.
A. Governing Legal Standard.
The text of the FLSA leaves no doubt that reasonable attorney’s fees and costs are to be awarded as a matter of course to prevailing plaintiffs. See 29 U.S.C. § 216(b) (when employer violates FLSA’s overtime or minimum-wage provisions, the court “shall ... allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action”); Kreager v. Solomon & Flanagan, P.A, 775 F.2d 1541, 1542 (11th Cir. 1985) (“Section 216(b) of the [FLSA] makes fee awards mandatory for prevailing plaintiffs.”). Here, Krystal correctly concedes that Lee is a prevailing plaintiff who is therefore entitled to recover a reasonable fee under § 216(b). See doc. 36, at 18 (“Krystal does not dispute that Plaintiff may be awarded a reasonable attorneys fee.”). What Krystal stridently opposes, however, is the reasonableness of the sums claimed by Lee in her fee petition. As such, this analysis will focus squarely on the “reasonableness” requirement for FLSA fee recovery.
It is well established that “[t]he starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.... The product of these two figures is the lodestar and there is a strong presumption that the lodestar is the reasonable sum the attorneys deserve.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008) (internal citations and quotation marks omitted).
In fixing a reasonable fee, courts in this Circuit consider the twelve factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), which are as follows: “1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the skill requisite to perform the legal service properly; 4) the preclusion of other employment by the attorney due to the acceptance of the case; 5) the customary fee; 6) whether the fee is fixed or contingent; 7) time limitations imposed by the client or the circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation and ability of the attorneys; 10) the ‘undesirability’ of the case; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1340 n. 7 (11th Cir. 1999); see also Bivins, 548 F.3d at 1350 (“In determining what is a reasonable hourly rate and what number of compensable hours is reasonable, the court is to consider the 12 factors enumerated in Johnson.").
The Court’s examination of plaintiffs fee petition and supporting exhibits proceeds in recognition of these principles. The Court has weighed all of the Johnson factors in evaluating the reasonableness of the claimed hourly rates and compensable hours, and in determining whether upward or downward adjustment from the lodestar is appropriate.
B. Reasonable Hourly Rate.
Plaintiff requests a fee award calculated pursuant to the following hourly rates: Banks C. Ladd, Esq., $250.00; Mary Carol Ladd, Esq., $225.00; Stacie Vitello, Esq., $150.00; and Stephanie Booth, Esq., $150.
“A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). “The general rule is that the relevant market for purposes of determining the reasonable hourly rate for an attorney’s services is the place where the case is filed.” American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999) (citation and internal quotation marks omitted). An exception is that a party may recover “the non-local rates of an attorney who is not from the place in which the case was filed” upon a showing of “a lack of attorneys practicing in that place who are willing and able to handle his claims.” Id. At all times, “[t]he party seeking attorney’s fees bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates.” Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (citation and internal quotation marks omitted).
In its lengthy Response to the fee petition, Krystal does not challenge the billing rates of Banks Ladd, Vitello or Booth. Moreover, these requested rates have evidentiary support in the form of affidavits
However, Krystal does attack the $225.00 hourly rate claimed by attorney Mary Carol Ladd, reasoning that the evidentiary showing is deficient on that point and that her lack of experience in wage-hour litigation warrants a rate of just $150 per hour. (Hetrick Decl. (doc. 36, Exh. 2), 5.) Again, it is plaintiffs burden to establish the reasonableness of the requested rates. See, e.g., Norman, 836 F.2d at 1299 (“The applicant bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates.”). Yet plaintiffs initial showing was largely silent as to Mary Carol Ladd’s qualifications, skills, experience, reputation and so on. In response to this objection, plaintiff supplied the Affidavit of Mary Carol Ladd (doc. 38-1), documenting her 14 years of legal experience in the federal and state courts of Alabama. Although Ms. Ladd does have substantial experience in the general commercial litigation realm, she acknowledges having been engaged in the FLSA field for little more than one year. This lack of specialization in an area of law that demands it weighs strongly against the well above-average hourly rate plaintiff claims for Ms. Ladd’s time.
C. Reasonable Hours.
1. Legal Standard and Defendant’s Objections.
Of course, reasonable hourly rates are only one parameter in the lodestar calculation. The other is reasonable hours. In this regard, “[f]ee applicants must exercise what the Supreme Court has termed billing judgment.... That means they must exclude from their fee applications excessive, redundant, or otherwise unnecessary hours.” ACLU of Georgia, 168 F.3d at 428 (citations and internal marks omitted). Thus, the district court “must be reasonably precise in excluding hours thought to be unreasonable or unnecessary,” and “is charged with deducting for redundant hours.” Norman, 836 F.2d at 1301. “If fee applicants do not exercise billing judgment, courts are obli
Krystal’s position is that the hours submitted in Lee’s fee petition are unreasonable in the following respects: (i) excessive use of 0.1-hour incremental billing entries for tasks requiring much less than 6 minutes (such as sending or receiving e-mails, receiving documents, and the like); (ii) excessive billings ($2,240) for intraoffice communications among plaintiffs counsel; (iii) billings in the amount of $3,708.25 for claims against Broome and McLemore, as to whom Lee dismissed her claims; (iv) billings in the amount of $2,047.50 for a summary judgment motion that was never filed; (v) excessive billings ($2,347.50) for legal research on the “joint employer” question; (vi) billings ($375) for clerical or paralegal work billed out at attorney rates; (vii) excessive billings ($3,462.50 + $2,972.50) for litigating the attorney’s fee issue; and (viii) inappropriate use of multiple attorneys at high billing rates for straightforward litigation.
2. Krystal’s Meritless Objections to Hours Expended.
Certain of Krystal’s stated concerns miss the mark. For example, the Court does not credit defendant’s contention that Lee cannot recover fees related to her unsuccessful pursuit of claims against Broome and McLemore. On that score, defendant relies on the proposition that “[a] court should not award fees for time spent on unrelated, unsuccessful claims.” Shannon v. BellSouth Telecommunications, Inc., 292 F.3d 712, 717 (11th Cir. 2002) (emphasis added). But defendant overlooks the “unrelated” qualifier. In fact, Lee’s FLSA claims against Broome and McLemore were intertwined with her FLSA claims against Krystal. She was nominally employed by Broome and McLemore’s company, Elite Security; however, Lee contended that she was jointly employed by both Elite and Krystal. It was hardly unreasonable for her to pursue claims against both potential employers simultaneously, especially given the uncertainty as to whether one or both entities would ultimately be classified as her employing entity.
Similarly, the Court will not reduce Lee’s fee award for the time her counsel spent researching the “joint employer” legal issue that lay at the center of the case. Krystal frames the law of joint employers as “clear-cut” and insists that it “did not require difficult concepts to grasp.” (Doc. 36, at 10.) Nonetheless, the fact remains that Krystal injected the issue into the case in its Answer by asserting that “Krystal did not employ the plaintiff,” and that Broome/McLemore were “exclusively responsible for any failure on their part to pay her wages.” (Doc. 8, at 5.) Under the circumstances, Lee’s attorneys were justified in devoting time and attention to researching the “joint employer” issue on which the litigation would likely turn had it proceeded on the merits. Nor does the expenditure of 10.4 hours by plaintiffs counsel to research that issue in fits and starts over a 14-month period appear unreasonable or unwarranted, given the centrality of this issue to Lee’s claims, the strictures of Rule 11, and Krystal’s sustained pushback on the joint employer issue.
The Court also rejects Krystal’s arguments that plaintiffs billings on the fee issue itself are unreasonable. Without question, time expended on litigating a statutory attorney’s fee petition is recoverable. See, e.g., Martin v. University of South Alabama, 911 F.2d 604, 610 (11th Cir. 1990) (“It is well settled that time expended litigating attorney fees is fully compensable.”);» Raetano v. M. Russell, LLC, 2010 WL 3259434, *2 n. 3 (M.D.Fla. July 29, 2010) (“Time expended litigating attorney’s fees is compensable.”). While the Court agrees that the amount of ink the parties have spilled concerning Lee’s fee petition is both regrettable and disproportionate to the value of the underlying dispute, Krystal bears considerable responsibility for this state of affairs. Given Krystal’s “contest-everything” approach to the fee petition, plaintiff cannot be faulted for incurring substantial fees to develop, flesh out, and bolster her fee petition against defendant’s withering attacks. Another way to put it is this: If a defendant chooses to argue tooth and nail about numerous facets of an attorney’s fee petition, then it is reasonable for the plaintiff to expend the necessary time to defend its petition. Here, the magnitude of Lee’s billings for the fee issue is directly proportional to the level of resistance that defendant chose to apply. While the Court agrees with Krystal that $6,000 is a nontrivial sum for a plaintiff to spend litigating a fee issue (particularly where the underlying claim was worth just $1,218), it would be surprising if Krystal’s own fees incurred on this issue were substantially lower, particularly given Krystal’s decision to file an 18-page opposition brief and to retain a local lawyer to review plaintiffs billings on a line-by-line basis, spanning an additional 18 single-spaced pages of exhibits. It takes two to tango, and tango Krystal did. Under all the relevant facts and circumstances, the Court will not disallow plaintiffs time spent of necessity
3. Krystal’s Meritorious Objections to Hours Expended.
Although not all of its arguments against Lee’s fee petition are persuasive, Krystal does advance several points demonstrating unreasonable aspects of the hours claimed by plaintiff. First, defendant accurately observes that plaintiffs counsel demonstrate a propensity to bill time in tenth-hour fractional increments for events that reasonably required much less, such as “Call to Elite Security and leave voice mail message for same,” “Receipt of returned letter sent to Defendant Vernan [sic] McLemore,” “Receipt and review of alias summons filed by Krystal,” “Receipt of executed summons,” “Receipt and review of amended service list,” “Email initial disclosures to opposing counsel,” and so on. A modest reduction in claimed hours is appropriate to correct for this billing methodology.
Second, defendant shows that Lee’s fee petition includes more than 10 hours for intraoffice communication between plaintiffs multiple lawyers. (Hetrick Deck, ¶ 10 & Exh. 1, at 9-11.) These types of billings are disfavored, and are subjected to close scrutiny to prevent abuse. See, e.g., Mogck v. Unum Life Ins. Co. of America, 289 F.Supp.2d 1181, 1194 (S.D.Cal. 2003) (“the Court believes that Monson and Horner inappropriately billed for communicating with one another”); In re Latshaw Drilling, LLC, 481 B.R. 765, 799 (Bankr.N.D.Okla. 2012) (reducing hours from fee petition where “time records reflect that interoffice conferences (in person, or by phone or email) between and among the professionals billing in this case represent a sizable portion of the total hours billed”); In re Skyport Global Communications, Inc., 450 B.R. 637, 649 (Bankr.S.D.Tex. 2011) (excluding from reasonable hours duplicative and/or redundant time entries for intraoffice communications involving multiple attorneys on the same side); In re Wildman, 72 B.R. 700, 710 (Bankr.N.D.Ill. 1987) (“Generally, attorneys should work independently, without the incessant ‘conferring’ that so often forms a major part of many fee petitions.”).
The deeper issue, of course, lies in plaintiffs counsel’s decision to staff this narrowly-circumscribed, straightforward
Third, defendant takes aim at the reasonableness of plaintiffs 8.9 hours expended on an unfiled summary judgment motion. The Court agrees with Lee that it is not per se unreasonable to bill a client for (or to include in a fee petition) time expended on a motion that never was actually filed. What is objectionable, however, is the timing of counsel’s work on Lee’s summary judgment motion. According to the fee petition, Lee’s counsel commenced billing for summary judgment issues in December 2011, before Krystal had even filed an answer. There was also a spate of billings for summary judgment in April 2012, some five months before the dispositive motions deadline fixed by the Rule 16(b) Scheduling Order. Plaintiff has not explained (and the Court cannot perceive) why it was reasonable to commence work and billings on a Rule 56 motion five months before the governing deadline. Plaintiffs time entries for summary judgment in early August 2012 are only slightly more defensible, given that (i) the dispositive motions deadline remained more than a month away, and (ii) settlement discussions had picked up steam in the preceding weeks, such that a negotiated resolution prior to the Rule 56 deadline appeared likely. Under these circumstances, the bulk of plaintiffs time entries for summary judgment is unreasonable and will be discounted.
Fifth, defendant asserts that the hours included in plaintiffs fee petition are not reasonable because plaintiff staffed the matter inappropriately with four timekeepers, including two of them at a high level of experience and elevated rates. This Order has already alluded to this “too-many-eooks” problem and the concomitant billing inefficiencies, for which some deduction is appropriate under applicable law. See generally ACLU of Georgia, 168 F.3d at 433 (“The time billed for excessive lawyers in a courtroom or conference when fewer would do may obviously be discounted.”) (internal quotes omitted). The Court therefore credits this objection.
In summary, then, the Court concludes that plaintiffs requested total of 133.6 attorney hours spread across four timekeepers is unreasonable because it includes excessive incremental billing for ephemeral activities, unnecessary billings for intraoffice communications, billings for a prematurely prepared summary judgment brief, billings for tasks that are properly deemed clerical or paralegal work, and unnecessary billings for multiple-attorney redundancies. Faced with these circumstances, a court “has two choices: it may conduct an hour-by-hour analysis or it may reduce the requested hours with an across-the-board cut.” Bivins, 548 F.3d at 1350; see also Loranger, 10 F.3d at 783 (“where a fee application is voluminous, an hour-by-hour analysis of a fee request is not required”). The Court selects the latter approach, in lieu of parsing voluminous time entries on a line-by-line basis. Upon careful examination of plaintiffs fee records, and with due regard for (albeit not unqualified acceptance of) defendant’s estimates of the number of hours falling within each of these categories of unreasonable billings, the Court imposes a 20% across-the-board cut of each timekeeper’s billable hours claimed in the fee petition.
For purposes of the lodestar calculation, then, the “reasonable hours” for each of plaintiffs timekeepers are as follows: Banks Ladd, Esq., 61.2 hours; Mary Carol Ladd, Esq., 17.5 hours; Stacie Vitello, Esq., 3.1 hours; and Stephanie Booth, Esq., 25.0 hours. Computing the arithmetic of multiplying reasonable hours by reasonable rates, the Court finds that the lodestar amounts are as follows: (i) for Mr. Ladd, 61.2 hours at $250/hour, or
D. Adjustments to the Lodestar Amount.
Of course, computation of the lodestar does not necessarily conclude the fee analysis. “[T]here is a ‘strong presumption’ that the lodestar is the reasonable sum the attorneys deserve.” Bivins, 548 F.3d at 1350. “After the lodestar is determined by multiplication of a reasonable hourly rate times hours reasonably expended, the court must next consider the necessity of an adjustment for results obtained. If the result was excellent, then the court should compensate for all hours reasonably expended.” Norman, 836 F.2d at 1302 (explaining that the lodestar may be reduced for partial or limited success, or may be enhanced for “exceptional” results “that are out of the ordinary, unusual or rare”). More generally, the lodestar may be adjusted for reasonableness utilizing the 12 factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Neptune Designs, 469 F.3d at 1359. For her part, plaintiff professes to seek no enhancement to the lodestar.
Krystal’s two most prominent criticisms of the lodestar amount warrant further examination. First, a recurring theme in Krystal’s filings is that Lee’s counsel improperly and recklessly ran up fees even though the case could have been settled in its infancy.
However, that is not what happened here. All record evidence shows that plaintiffs counsel repeatedly initiated and pursued settlement discussions with defendant, making reasonable demands in good faith as far back as June 2011.
Second, Krystal urges erasure of large swaths of the requested fees because they eclipse Lee’s actual damages by a considerable margin. This disparity between Lee’s lodestar fee amount ($22,-577.50) and her recovered wages ($1,218.00) is substantial and undeniable, and may properly be considered in evaluating the reasonableness of the fee request. Nonetheless, there is no strict rule of proportionality between fees and damages. As the Eleventh Circuit opined in an analogous setting, “Because damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases ... to depend on obtaining substantial monetary relief.... A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small po
In short, the Court finds that no enhancement or reduction is warranted for results obtained or plaintiffs counsel’s role in the settlement process. More generally, and after consideration of the parties’ remaining debates concerning application of various Johnson factors here, the Court concludes that the lodestar fee adequately reflects the skill and experience of the attorneys, and the complexity and difficulty of the litigation, such that no modification or adjustment of that figure is appropriate.
E. Costs.
Aside from attorney’s fees, Lee seeks an award of costs and expenses in the total amount of $805.87, which may be disaggregated into the following constituent parts; (i) civil filing fee, $350.00; (ii) service of process fee to Keith Investigations,
The law is clear that a prevailing plaintiff in an FLSA case is entitled to “costs of the action.” 29 U.S.C. § 216(b); see also Santillan v. Henao, 822 F.Supp.2d 284, 301 (E.D.N.Y. 2011) (“As a general matter, a prevailing plaintiff in an action under the FLSA ... is entitled to recover costs from the defendant.”). “Under the FLSA, costs include reasonable out-of-pocket expenses.” Smith v. Diffee FordLincoln-Mercury, Inc., 298 F.3d 955, 969 (10th Cir. 2002); see also Shorter v. Valley Bank & Trust Co., 678 F.Supp. 714, 726 (N.D.Ill. 1988) (similar).
Defendant’s position is that the service of process fee, PACER charge and WEST-LAW charges are not compensable. With regard to the service of process fee, the Court finds that the $130 charge was reasonably incurred by Lee in attempting to perfect service on Broome and/or McLemore, and may be properly shifted to Krystal pursuant to § 216(b). However, the PACER charge is not documented or explained in any meaningful way, and appears invalid given that litigants in this District Court get a “free look” at all filings in their case, with no PACER charges. “Fee applicants bear the burden of providing sufficient detail in their records to explain and support their requests for fees and costs.” Andrade v. Aerotek, Inc., 852 F.Supp.2d 637, 645 (D.Md. 2012). Lee has not met that burden as to the PACER charge. Moreover, as to the WESTLAW charge, the Court agrees with Magistrate Judge Nelson that plaintiffs counsel’s practice of billing a $10 monthly fee for WESTLAW use on each of its files is “a thinly-veiled attempt to make an expense of an item of law firm overhead,” and that such a charge is unreasonable and should be disallowed. See Wolff, 2012 WL 5303665, at *9.
After subtracting the $10 PACER fee and $180 WESTLAW charge, plaintiff will be awarded reasonable costs of $615.87.
III. Conclusion.
For all of the foregoing reasons, plaintiffs Motion for Award of Attorney’s Fees (doc. 34) is granted in part, and denied in part. Plaintiff is awarded reasonable attorney’s fees in the total amount of $22,577.50, and costs in the amount of $615.87.
. Lee initially named two additional defendants, Brian Broome and Vernon McLemore, both individually and doing business as Elite Security. Lee nominally worked for Elite, which provided security services at a Krystal location; however, she sued both Elite’s principals and Krystal under the FLSA on the theory that they jointly employed her, such that each of them was responsible for paying her wages. On January 16, 2012, the undersigned entered an Order (doc. 11) granting Lee’s request to dismiss her claims against Broome and McLemore without prejudice. The apparent basis for that request was Lee’s assessment that Broome and McLemore are "judgment-proof.” Nonetheless, Krystal has pursued cross-claims against Brown and McLemore, and ultimately obtained a Clerk’s Entry of Default (doc. 27) against both of
. This amount consists of an initial petition totaling $27,103.37, and a supplemental petition (relating to the preparation of plaintiff’s reply brief on fees and attendant failed settlement discussions) in the amount of $3,002.50.
. Judging by the zeal with which the parties have pressed their respective positions on fees, neither side has been mindful of the well-worn admonition that "[a] request for attorney’s fees should not result in a second major litigation.” Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).
.See also Norman, 836 F.2d at 1299 (to fashion a fee award, the court “is to multiply hours reasonably expended by a reasonable hourly rate”); Mayson v. Pierce, 806 F.2d 1556, 1557 (11th Cir. 1987) ("The starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”).
. This Court found in recent years that an attorney with 25 years of practice and lauded as having "superior experience, reputation, and skill” (but limited civil rights expertise) was entitled to a reasonable hourly rate of $250. See Trotter v. Columbia Sussex Corp., 2010 WL 383622, *5 (S.D.Ala. Jan. 29, 2010). A few months ago, the Court fixed an hourly rate for plaintiff’s counsel in a Title VII lawsuit at $280, which was "near the upper end of the range of fees attainable in the Mobile market for contingent-fee plaintiff’s civil rights work.” Johnson v. TMI Management Systems, Inc., 2012 WL 4435304, *4 & n. 7 (S.D.Ala. Sept. 26, 2012). Ms. Ladd's hourly rate in this case must be set at a substantial discount to those in Trotter and Johnson.
. The fact that Lee ultimately took a voluntary dismissal of her claims against Broome and McLemore does not alter this calculus. According to plaintiff, she abandoned her claims against those individuals after determining that they were judgment-proof. (Doc. 39, at 3.) Far from being irresponsible or wasteful, plaintiffs decision to jettison those claims under those circumstances was prudent and eminently reasonable, as a means of containing fees and controlling expenditures on claims that were unlikely to blossom into a collectible judgment.
. See, e.g., Popham v. City of Kennesaw, 820 F.2d 1570, 1578 (11th Cir. 1987) (if successful and unsuccessful claims involve common core of facts or related legal theories, and if plaintiffs overall relief was excellent, "his attorney should be fully compensated for all time reasonably expended on the litigation”); Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir. 1998) (where claims are interrelated, for fee purposes "we focus on the overall success of the plaintiff rather than the success or failure of each of the plaintiff's causes of action,” such that plaintiff is not penalized if his successful claims "give him all that he reasonably could have asked for”).
. As an aside, the Court notes errors in Krystal's classification of most of the hours it attributes to the Broome/McLemore claims. (See Hetrick Deck, 7, and Exh. 1 at 2-4.) More than three-quarters of those time entries were dated after Lee’s dismissal of her claims against Broome and McLemore on January 13, 2012 {see doc. 10). Thus, those entries relate to Lee's remaining claims against Krystal, and her intended use of evidence regarding Elite Security to prove up a joint employer theory against Krystal. Defendant’s failure to appreciate this nuance merely reinforces the intertwined, closely related nature of Lee's claims against Krystal and those against the Elite principals.
. In this same vein, the Court overrules Krystal’s objection that Lee's reply brief amounts to a "cathartic exercise” for which defendant should not have to pay. (Doc. 44, at 2.) While the "description” field of a couple of plaintiff's time entries related to the reply brief betrays an emotional edge, the actual time expended on the reply appears reasonable, given the plethora of fee petition criticisms invoked by Krystal. And the Court does not credit defendant’s contention that it is all plaintiff's fault the fee issue was not settled out of court, inasmuch as the record does not support such a characterization. If anything, both sides appear culpable in their decision to litigate fees to the hilt, rather than working together to achieve a readily attainable compromise without the burden, expense and drag on judicial resources attendant to their election to escalate their fee dispute into a pitched battle.
. That said, intraoffice communications are not per se unreasonable or unbillable. Under proper circumstances, they may be quite helpful in ensuring efficient staffing, coordination of attorney effort, and the like. See, e.g., Oklahoma Natural Gas Co. v. Apache Corp., 355 F.Supp.2d 1246, 1262-63 (N.D.Okla. 2004) (“Obviously, lawyers working together on a case must communicate with each other and that communication may spare the client duplication of effort”); In re Frontier Airlines, 74 B.R. 973, 977-78 (Bankr.D.Colo. 1987) (where multiple attorneys perform interrelated functions that require "some degree of coordination and communication among them, ... intraoffice conferences among counsel are not only expected but are necessary, and there is no reason why compensation should not be provided for such services”).
. To be sure, plaintiff explains that senior counsel was simply fulfilling his obligation “to shift work to junior attorney's [sic ] who bill at lower rates in order to keep fees in check" and took advantage of the "different skill sets" that different attorneys brought to the table, such as Ms. Ladd's brief-writing acumen. (Doc. 39, at 2.) The law supports this general proposition. After all, Eleventh Circuit precedent is clear that "a fee applicant is entitled to recover for the hours of multiple attorneys if he satisfies his burden of showing that the time spent by those attorneys reflects the distinct contribution of each lawyer to the case and is the customary practice of multiple-lawyer litigation.” ACLU of Georgia, 168 F.3d at 432. If Lee's arguments were correct, however, the time sheets submitted with her fee petition would look quite different, and the final amount claimed would be smaller. For starters, many of the routine, relatively low-skill tasks for which Mr. Ladd recorded billable time could and should have been downstreamed to a junior timekeeper. They were not. Likewise, Ms. Ladd's brief-writing expertise would largely have been a non-factor in this case (at least until the fee petition, as to which only 6 of her 21.9 billed hours related) given the dearth of briefing antecedent to the fee dispute. The point is simple: for all her rationalizations about efficiency, plaintiff has not shown why the differential skills and billing rates of the various attorneys necessitated bringing so many of them onboard, with the side effect of frequent internal conferences, for which plaintiff unreasonably seeks to bill Krystal.
. The law is clear that "purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.” Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288 n. 10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989); see also Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973 (D.C.Cir. 2004) (applying Jenkins rule and indicating that "[w]e do not understand why attorney or even legal assistant skills were required” for tasks such as filing briefs, delivering documents, and so on); Coleman v. Houston Independent School Dist., 1999 WL 1131554, *9 (5th Cir. Nov. 8, 1999) ("Paralegal expense is recoverable only to the extent that the work performed is similar to that typically performed by lawyers.... Otherwise, paralegal expense is an unrecoverable overhead expense.”); Branch Banking and Trust Co. v. Imagine CBQ, LLC, 2012 WL 1987830, *3 (S.D.Ala. June 4, 2012) ("As to reasonable paralegal fees, only time spent performing work traditionally performed by attorneys will be compensated.”).
. Such restraint is prudent, given the high bar a plaintiff must satisfy to obtain enhancement of the lodestar amount. See, e.g., Lane v. Capital Acquisitions and Management Co., 554 F.Supp.2d 1345, 1350 (S.D.Fla. 2008) ("Enhancement of the lodestar should be made only in exceptional cases where need and justification for such enhancement are readily apparent and supported by clear evidence of record.”).
. See, e.g., doc. 36, at 2 ("Plaintiff and Krystal engaged in settlement discussions during the early stages of this litigation,” but those efforts failed because "[e]ach time settlement was discussed ... Plaintiff's attorney’s fees in creased dramatically”); doc. 36, at 7 ("attempts to settle plaintiffs case were hampered by ever-rising attorney's fees of plaintiff’s counsel”); doc. 36, at 9 (fees incurred in April 2012 were unreasonable "especially given the fact that settlement discussions were ongoing”); doc. 36, at 10 ("Settlement discussions took place early on in the litigation.”); doc. 36, at 11 ("It is without question that this case could have been resolved much earlier than it did, thus freeing Plaintiff's counsel to engage in other pursuits.”); doc. 44, at 2 ("In sum, the present case could have been settled on a reasonable basis well before any need to prepare a supplemental fee petition arose.”).
. Indeed, plaintiffs counsel's initial letter dated June 30, 2011 demanded that Krystal pay $1,217.08 in straight-time wages, $767.29 as a penalty under 29 U.S.C. § 216(b), and $2,500 in attorney's fees. (Doc. 35, Exh. 1.) To be sure, plaintiff's counsel did not have $2,500 in time (or 10 hours, at $250/hour) invested in the case to that point, but as an initial demand the figure was not so outlandish or unreasonable as to raise an inference of bad faith, nor would it have precluded Krystal from making a reasonable offer to settle the matter at that time. Indeed, there is no indication that Lee would not have discounted that figure to reach an amicable resolution upon appropriate counteroffer from Krystal, which evidently never materialized. Also, the June 30 letter cautioned Krystal of Lee's right to fees under 29 U.S.C. § 216(b) and of the certainty that the meter would continue running and that "[additional fees will accrue as this matter progresses.” {Id.) Having apparently chosen not to get serious about settling the case for another year, Krystal cannot reasonably complain now that those additional fees did, in fact, accrue, just as Lee's attorney had warned.
. See, e.g., Azam-Qureshi v. The Colony Hotel, Inc., 540 F.Supp.2d 1293, 1298 (S.D.Fla. 2008) (plaintiff’s counsel’s behavior did not amount to nuisance suit where "Plaintiff's counsel initiated settlement of the suit and was forthcoming about the amount that its client was seeking”); Rodriguez v. Super Shine and Detailing, Inc., 2012 WL 2119865, *6 (S.D.Fla. June 11, 2012) (finding no evidence "that Plaintiff’s counsel engaged in a pattern of behavior designed to increase attorney’s fees,” and discounting "suggestion that the Plaintiff refused a reasonable settlement offer made by the Defendants, as there is no evidence of any prior settlement offers in the record”).
. See also Fegley v. Higgins, 19 F.3d 1126, 1134-35 (6th Cir. 1994) (for purposes of FLSA fee petition, "Courts should not place an undue emphasis on the amount of the plaintiffs recovery because an award of attorney fees here encourages the vindication of congressionally identified policies and rights.”) (citation and internal marks omitted); Monis v. Affinity Health Plan, Inc., 859 F.Supp.2d 611, 622 (S.D.N.Y. 2012) ("Fee awards in wage and hour cases are meant to encourage members of the bar to provide legal services to those whose wage claims might otherwise be too small to justify the retention of able, legal counsel.”) (citation and internal quotation marks omitted); Garcia v. R.J.B. Properties, Inc., 756 F.Supp.2d 911, 917 (N.D.Ill. 2010) ("in assessing ‘reasonableness,’ the court is not free to second-guess Congress's determination that the Fair Labor Standards Act is worthy of enforcement and that plaintiffs who prove a violation of that Act are entitled to recovery of the fees that such litigation reasonably costs”); Rodriguez, 2012 WL 2119865, at *7 ("[Fjee awards should not simply be proportionate to the results obtained, especially in FLSA cases, as fee awards in FLSA cases are often greater than the amount recovered by the plaintiff____This is to ensure that individuals with small claims can obtain representation necessary to enforce their rights.”) (citations and internal quotation marks omitted); Wolff, 2012 WL 5303665, at *4 ("there is no per se rule of proportionality” in calculating attorney's fees in FLSA cases); Alford v. Martin & Gass, Inc., 2009 WL 2447936, *5 (E.D.Va. Aug. 3, 2009) ("in a FLSA case, 'undue emphasis' should not be placed on the amount of the plaintiff's recovery”).
Reference
- Full Case Name
- Reena LEE v. The KRYSTAL COMPANY
- Cited By
- 19 cases
- Status
- Published