Case: 14-10427   Date Filed: 08/21/2014   Page: 1 of 14




                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10427
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:12-cv-00666-JDW-TGW



WILLIAM C. MARTINEZ,

                                                            Plaintiff-Appellant,

                                  versus

HERNANDO COUNTY SHERIFF'S OFFICE,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (August 21, 2014)

Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      William Martinez and his counsel, Cornell & Associates PA, appeal the

district court’s award of $10,900.50 in attorney’s fees, in their favor, after partially

prevailing in Martinez’s underlying Fair Labor Standards Act (“FLSA”) action

against his employer, Appellee Hernando County Sheriff’s Office (“Sheriff’s

Office”). On appeal, Martinez argues that the district court committed various

errors in calculating the award. Appellee moves for an award of attorney’s fees

under Rule 38, Fed. R. App. P., as a sanction against Martinez and his counsel for

bringing a purportedly frivolous appeal. After a thorough review of the record and

the parties’ briefs, we affirm the district’s court’s award of attorney’s fees and

deny Appellee’s Rule 38 motion.

                                           I.

      We briefly describe the factual background to give context for this appeal.

From 2008 to 2011, Martinez worked as a handler of police dogs for the Sheriff’s

Office’s K-9 Unit. Initially, Martinez was assigned one dog, Kevlar, and was paid

for after-hours care of Kevlar for 45 minutes each day at a rate of one-and-one-half

times the minimum wage. In March 2008, Martinez acquired a bloodhound named

Darla, who, at Martinez’s suggestion, was taken into the K-9 Unit and assigned to

Martinez. Martinez cared for Kevlar and Darla until he was removed from the K-9

Unit in May 2011.




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       In the underlying FLSA action filed in the Middle District of Florida

(“Middle District”) in March 2012, Martinez alleged that the Sheriff’s Office failed

to compensate him for (1) an additional 45 minutes each day for after-hours care of

Darla; and (2) after-hours time spent training Darla.1 The district court granted in

part and denied in part the Sheriff’s Office’s motion for summary judgment,

limiting Martinez’s recovery to a period of two years beginning on March 28,

2010. 2 Following a three-day bench trial in July 2013, the district court awarded

Martinez 10 minutes per day of compensation for Darla’s care, ultimately resulting

in an overtime compensation award of $1,075.44.3 The court found in favor of the

Sheriff’s Office on the training claim.

       Martinez timely moved for an award of attorney’s fees as a prevailing party

under 29 U.S.C. § 216(b). Martinez sought a total award of $79,850.63 in

attorney’s fees based on a rate of $500 per hour for lead counsel, Mr. G. Ware

Cornell, and $200 per hour for co-counsel.




       1
          Martinez also initially challenged the Sheriff’s Office’s calculation of overtime pay
based on the federal minimum wage rather than his regular hourly wage, but he conceded this
claim at the summary judgment stage.
       2
          Under the FLSA, the general statute of limitations for recovery of unpaid overtime
wages is two years. 29 U.S.C. § 255(a); Morgan v. Family Dollar Stores, Inc., 

,
1280 (11th Cir. 2008). However, if the violation was “willful,” the statute of limitations is
extended to three years. 

district court initially awarded Martinez $4,203.20, but that amount was calculated
using Martinez’s regular hourly rate. The court later recalculated the award using the federal
minimum wage as the basis, resulting in an award of $1,075.44.
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      In support of the motion, Martinez submitted the following: (1) a declaration

by Mr. Cornell, who attested to his experience and rates and asserted that the case

had not settled due, in part, to discovery abuses by the defendant, such as taking

depositions of persons not relevant to the lawsuit for the purpose of embarrassing

Martinez; (2) billing records; (3) two orders from the Southern District of Florida

(“Southern District”) awarding Mr. Cornell $400 per hour; (4) a declaration by

Robert Beck, III, a client who swore that he paid Mr. Cornell $500 per hour to

represent him and his father in “complex litigation brought by a major law firm”

which had been conducted in “four courts”; (5) an affidavit by John Phillips, an

attorney practicing in Tampa, Florida, who swore that he was “familiar with the

amount customarily charged in the Tampa market by attorneys at large, multi-

practice firms for attorney fees . . . in commercial and labor and employment

litigation cases,” and that a reasonable market rate in Tampa for someone of Mr.

Cornell’s qualifications and experience was $500 per hour; and (6) a declaration by

John W. Andrews, an attorney practicing in Tampa, who stated that he believed

Mr. Cornell’s “requested rate [was] within the generally accepted community

standards in the Middle District for lawyers with his level of experience and

qualifications.”

      The district court granted Martinez’s motion to the extent that it awarded

him $10,900.50 in attorney’s fees. In reaching this amount, the court first reduced


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Mr. Cornell’s rate to $300 per hour, rather than $500 per hour, and reduced the

rates for co-counsel to $125 per hour. Second, the court deducted 38 hours of

travel time, reducing the number of reasonable hours expended from 173.05 to

135.05 hours. Finally, the court applied an overall “lodestar reduction” of 75%

based on Martinez’s “limited recovery.”

      Martinez filed a timely motion under Rule 59(e), Fed. R. Civ. P., to alter or

amend the attorney’s fees award. He raised several arguments in the motion:

(1) the award was inadequate to effectuate the purposes of the FLSA; (2) the court

effectively capped rates for FLSA cases and failed to address purported discovery

abuses in the case; (3) reducing both the hourly rate and applying a lodestar

reduction amounted to an unjust double reduction; (4) the 75% reduction should

not have applied to time spent after summary judgment; and (5) the disallowance

of all travel time was unreasonable. The district court denied the Rule 59(e)

motion, and Martinez now brings this appeal.

      Martinez argues that the court erred with respect to each reduction, and he

contends that the overall result was unreasonable.4 He also argues that the court

erred in denying his motion to alter or amend the attorney’s fees judgment.

                                               II.




      4
          Martinez does not challenge on appeal the reduction with respect to co-counsel.
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      We review a district court’s award of attorney’s fees for abuse of discretion,

reviewing underlying questions of law de novo and findings of fact for clear error.

Atlanta Journal & Constitution v. City of Atlanta Dep’t of Aviation, 

,

1287 (11th Cir. 2006). Although a district court has “wide discretion” in

calculating an attorney’s fee award, “the district court must articulate the decisions

it made, give principled reasons for those decisions, and show its calculation” to

allow for “meaningful review.” Norman v. Housing Auth. of City of Montgomery,

, 1304 (11th Cir. 1988).

                                         III.

      When a plaintiff prevails in a FLSA action, the district court “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). The first step in calculating a reasonable attorney’s fee award is to

determine the “lodestar”—the product of multiplying reasonable hours expended

times a reasonable hourly rate. Am. Civil Liberties Union v. Barnes, 

,

427 (11th Cir. 1999). The lodestar may then be adjusted after considering other

factors, such as the results obtained. Id.; Hensley v. Eckerhart, 

, 434,

, 1940, 

(1983).

      A.     Hourly Rate Reduction




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      Martinez first contends that the district court erred in reducing his hourly

rate by ignoring evidence showing what Mr. Cornell charges his fee-paying clients

and rates he had previously been awarded. Martinez asserts that the court

effectively imposed a cap on rates for FLSA cases in the Middle District, and he

suggests that qualified attorneys will give up representing workers in these cases if

they are not adequately compensated.

      “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.” 

. The applicant bears the

burden of producing satisfactory evidence that his requested rate is reasonable.

Testimony that a given fee is reasonable is unsatisfactory because “satisfactory

evidence necessarily must speak to rates actually billed and paid in similar

lawsuits.” 

attorney charges his clients is “powerful, and perhaps the

best, evidence of his market rate.” Dillard v. City of Greensboro, 

,

1355 (11th Cir. 2000). However, “a court should hesitate to give controlling

weight to prior awards, even though they may be relevant.” 

court’s calculation of a reasonable rate is a factual matter that is reviewed for clear

error. 

.

      Here, the district court did not clearly err in determining that $300 per hour

for Mr. Cornell was a reasonable rate. The court correctly stated and applied the


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law, focusing on the market rate for FLSA cases in the Middle District for

attorneys of comparable experience, and it properly placed the burden on Martinez.

The court acknowledged that “Mr. Cornell is a board certified civil trial attorney

with approximately thirty-eight years of experience,” and it examined Martinez’s

evidence in support of the requested fee award. The court then adequately

explained why it did not find Martinez’s evidence persuasive, and we discern no

clear error in its findings. Specifically, our review of Martinez’s evidence shows

that it did not “speak to rates actually billed and paid in similar lawsuits” in the

Middle District. See 

.

      Moreover, the district court is entitled to rely on its own experience and

judgment in coming to a reasonable hourly rate. See 

While the district

court’s rate of $300 per hour may have been slightly lower than awards made to

attorneys of comparable or somewhat less experience in other cases from the

Middle District referenced in the court’s order, the rate was not clearly erroneous.

      B.     Travel Hours Reduction

      Martinez next contends that the district court erred in deducting the 38 hours

of travel time. He acknowledges that there is “no hard and fast rule” regarding

travel time, but asserts that the court improperly discredited Mr. Cornell’s

declaration, which emphasized that the travel time was the result of limited

availability of lawyers handling police dog compensation cases.


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      To determine the number of hours reasonably expended in the litigation, the

court must exclude hours “that would be unreasonable to bill to a client and

therefore to one’s adversary irrespective of the skill, reputation or experience of

counsel.” 

(quoting 

) (emphasis

in original). In addition, although there are no precise rules with respect to travel

time, a fee applicant seeking to recover expenses incurred for retaining non-local

counsel generally “must show a lack of attorneys practicing in that place who are

willing and able to handle his claims.” See 

(applying this standard with

regard to reasonable hourly rates).

      The district court did not clearly err in excluding Mr. Cornell’s travel hours.

Martinez presented no evidence showing a lack of local counsel willing and able to

handle his police canine compensation claim. Other than Mr. Cornell’s

declaration, which states that “few employment lawyers wish to take [police canine

cases] on,” nothing was presented to the district court to indicate whether Martinez

even attempted to retain counsel other than Mr. Cornell. The court found that Mr.

Cornell is located in Weston, Florida, approximately a 3.5 trip to the Tampa

courthouse where the case was filed and tried, which resulted in the 38 travel

hours. We respect Martinez’s right to retain counsel of his choice, but, like the

district court, we do not think it reasonable to pass the costs of Mr. Cornell’s travel

on to the Sheriff’s Office without a showing of a lack of local counsel.


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      C.     Lodestar Reduction and Reasonableness of the Fee Award

      Martinez argues that the 75% reduction of the lodestar was “confiscatory”

and that the court placed undue emphasis on the results obtained. He asserts that

he successfully defended the defendant’s motion for summary judgment on every

contested ground, prevailed on one of claims that went to trial, and expended half

of the overall time after summary judgment. He contends that the district court’s

award was unreasonable because the various reductions, taken together, cut the

requested award by over 86% and amounted to a rate of less than $60 per hour for

an experienced and well-qualified attorney.

      A lodestar figure “is itself strongly presumed to be reasonable.” Resolution

Trust Corp. v. Hallmark Buildings, Inc., 

, 1150 (11th Cir. 1993); see

Perdue v. Kenny A. ex rel. Winn, 

, 552, 

, 1673, 176 L.

Ed. 2d 494 (2010). Nonetheless, the district court may adjust the lodestar for

“results obtained.” 

, 103 S. Ct. at 1940. Relevant here,

when “a plaintiff has achieved only partial or limited success, the product of hours

reasonably expended on the litigation as a whole times a reasonable hourly rate

may be an excessive amount. This will be true even where the plaintiff’s claims

were interrelated, nonfrivolous, and raised in good faith.” 

103 S. Ct. at

1941. Accordingly, the district court has discretion to reduce an award to account




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for situations where the lodestar figure is unreasonable in light of the limited

success obtained. See 

103 S. Ct. at 1941.

      The district court did not abuse its discretion in reducing the lodestar figure

by 75% and awarding $10,900.50 in attorney’s fees. Martinez was only partially

successful in his claims, so the court was permitted to adjust the lodestar

downward. See 

103 S. Ct. at 1940-41. Because the court found that

it was unable to determine the number of hours spent on the unsuccessful claims, it

had discretion to “simply reduce the award to account for the limited success.” Id.

at 

.

      The district court’s reduction of the lodestar was reasonably proportionate to

Martinez’s success in the lawsuit. In his amended response to the Sheriff’s

Office’s interrogatories, Martinez had estimated his total damages at $236,952.87,

and had sought $61,030.13, or about 25.75% of the total damages, for the only

claim on which he recovered (for after-hours care of Darla). Ultimately, Martinez

recovered only $1,075.44 on that claim, or about 1.8% of the $61,030.13 sought.

Therefore, the district court, rather than being “confiscatory” or unfairly punitive in

light of the modest recovery obtained, appears to have credited Martinez with

success on the full amount of asserted damages for the claim based on after-hours

care of Darla. Accordingly, we conclude that the district court’s attorney’s fees

award was firmly within the bounds of its discretion.


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      We also reject Martinez’s various other challenges to the fee award. The

district court did not impermissibly “double count” because the factors considered

by the court in determining the lodestar figure were not considered by the court in

adjusting the lodestar downward by 75%. See Bivins v. Wrap It Up, Inc., 

, 1352 (11th Cir. 2008). Indeed, the court followed the proper procedure in

determining the award by first calculating the lodestar figure (reasonable hours

times reasonable rate) and then adjusting that figure for results obtained. See

-304. Moreover, while the court may have been

permitted to apply the 75% reduction only to time spent before summary judgment,

Martinez has not shown that it was an abuse of discretion not to do so.

      Because we conclude that the district court did not abuse its discretion in

awarding attorney’s fees, we necessarily reject Martinez’s contentions that the

court erred by failing to consider purported discovery abuses or by awarding a fee

insufficient to vindicate the intent of the Congress in enacting the FLSA. See, e.g.,

, 130 S. Ct. at 1672 (“[A] ‘reasonable’ fee is a fee that is

sufficient to induce a capable attorney to undertake the representation of a

meritorious . . . case.”). Any additional hours Mr. Cornell may have spent as a

result of opposing counsel’s purported misconduct were included in the court’s

reasonable-hours determination, and so were reflected in the final award. And, in

light of the $1,075.44 award on the merits, we cannot say that an attorney’s fees


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award of $10,900.50 frustrated congressional intent or was insufficient to induce to

capable attorney to undertake representation of the case.

      For the reasons stated, we affirm the district court’s award of $10,900.50 in

attorney’s fees in favor of Martinez and his counsel and the denial of Martinez’s

Rule 59(e) motion.

                                         IV.

      Appellee filed a motion for sanctions against Martinez and his counsel in

this Court pursuant to Rule 38 for filing this appeal. In its motion, Appellee argues

that the appeal is “frivolous” because the challenge to the attorney’s fees award is

“without basis in law or fact,” and Martinez and his counsel instead “attempt to

obscure the salient issue by hurling groundless allegations” of misconduct against

Appellee’s counsel. Martinez responds in opposition to the motion.

      Rule 38, Fed. R. App. P., provides, “If a court of appeals determines that an

appeal is frivolous, it may, after a separately filed motion or notice from the court

and reasonable opportunity to respond, award just damages and single or double

costs to the appellee.” “Rule 38 sanctions have been imposed against appellants

who raise ‘clearly frivolous claims’ in the face of established law and clear facts.”

Farese v. Scherer, 

, 1232 (11th Cir. 2003) (quotation marks

omitted). Although we have ruled against Martinez and his counsel in this appeal,

we conclude that the appeal was not clearly frivolous and deny the Rule 38 motion.


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                                         V.

      In short, we affirm the district court’s award of attorney’s fees and the denial

of Martinez’s Rule 59(e) motion, and we deny Appellee’s Rule 38 motion.

      AFFIRMED.




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