ROBIN L. ROSENBERG, District Judge.
THIS CAUSE came before the Court upon Plaintiffs Verified Motion for Attorney's Fees [D.E. 28], Bill of Costs [D.E. 29], and an Amended Memorandum in Support of Bill of Costs [D.E. 31].
Upon due consideration of the Motion, Bill of Costs, and Amended Memorandum in Support (hereinafter, "Memorandum in Support") and the record, it is ORDERED AND ADJUDGED that Plaintiffs Verified Motion for Attorney's Fees is GRANTED and the costs sought in the Bill of Costs are taxed against the Defendants jointly and severally. This Order covers the time period from the initiation of the lawsuit through January 26, 2015. While the Defendants have defaulted and have not filed a response to the Motion for Attorney's Fees, Bill of Costs, or the Memorandum in Support, the Court has an independent obligation to review fee motions and bills of costs to independently determine whether the hourly rates sought are reasonable, the number of attorney hours sought are reasonable, and that the costs sought to be taxed are properly taxable pursuant to the cost statute.
This was an overtime case under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. Valley alleged that he was required to, among other things, work without proper payment for his overtime and that his final paycheck was withheld. [D.E. 1]. Valley sought back wages, liquidated damages, prejudgment interest, attorneys' fees, and litigation expenses. (See generally, Complaint). All three of the Defendants defaulted, and this Court ultimately entered a Default Final Judgment in Valley's favor [D.E. 24], which was then amended by the Court resulting in an Amended Default Final Judgment. [D.E. 27]. Valley obtained a final judgment in his favor for all monies in which he was seeking in this suit, and the Court reserved
Valley seeks an award, of attorneys' fees against Defendants jointly and severally. The Eleventh Circuit and Supreme Court have issued opinions that guide courts in the decision-making process with respect to the award of attorneys' fees and the taxation of costs.
Under the FLSA, a prevailing plaintiff is entitled to an award of reasonable attorney's fees. 29 U.S.C. § 216(b); Christiansburg v. Garment Co. EEOC, 434 U.S. 412, 415 n. 5, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); Dale v. Comcast Corp., 498 F.3d 1216, 1221 n. 8 (11th Cir. 2007). Determining a reasonable fee pursuant to 29 U.S.C. § 216(b) is left to the sound discretion of the district judge, to and including the exclusion of excessive or unnecessary work. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983);
A district court's "decision regarding the appropriate hourly rate may be made either by analyzing the affidavits submitted by counsel or, if this documentation is insufficient, by relying upon the court's expertise." Avirgan v. Hull, 705 F.Supp. 1544, 1549 (S.D.Fla.1989) (citing Norman v. Housing Auth., 836 F.2d at 1303). The 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 Auth., 836 F.2d at 1299 (citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). At the heart of the reasonable hours concept is the guidance from the United States Supreme Court requiring fee applicants to use "billing judgment" in the listing of the hours spent on a case, making "a good faith effort to exclude from a fee request hours that are excessive, redundant, or
Further, it is appropriate for a court to base an attorneys' fee award on current hourly rates, rather than historical rates, because such an approach takes into account that the attorney was not paid for the work at the time it was performed and also accounts for inflation. McKenzie v. Cooper, Levins & Pastko, Inc., 990 F.2d 1183, 1186 (11th Cir. 1993). What a lawyer charges his fee-paying clients "is powerful, and perhaps the best, evidence of his market rate." Dillard v. City of Greensboro, 213 F.3d 1347, 1354-55 (11th Cir. 2000); Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332, 1336-37 (11th Cir. 2001) (holding that the agreed upon billing rate is a strong indication of a reasonable rate but affirming the award of an hourly rate that exceeded that agreed upon billing rate because "the agreed-upon fee rate does not necessarily act as a cap or ceiling in determining the reasonable hourly rate").
Once the prevailing market rate is determined, it is then multiplied by the number of reasonable hours expended on the matter. Norman v. Housing Auth., 836 F.2d at 1299. The resulting figure, known as the "lodestar," may thereafter be enhanced or reduced depending on certain circumstances. Pennsylvania v. Delaware Valley Citizens' Council II, 483 U.S. 711, 745, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987). The most important consideration in adjusting a resulting lodestar is the degree of a plaintiff's success in litigation. Hensley, 461 U.S. at 433, 103 S.Ct. 1933. In the event of a limited success, the court should only award a fee that is reasonable in accordance with that result. Id. at 440, 103 S.Ct. 1933. But even if a result is exceptional, an enhancement of the lodestar is only permissible in limited circumstances not relevant here because no enhancement of the lodestar is sought by Valley.
When analyzing the market rates attested to, the district court may still consider in calculating the lodestar any of the twelve factors in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), which was the which was the pre-Hensley and Norman v. Housing Auth. standard.
The "going rate" in the legal community is the most critical factor in determining a reasonable fee. Martin v. University of South Alabama, 911 F.2d 604, 610 (11th Cir. 1990). The pertinent "legal community" used to base an applicable hourly rate is the city where the plaintiff s attorney has his office, not where the case was tried. Brooks v. Georgia State Bd. of Elections, 997 F.2d 857, 868-69 (11th Cir. 1993). The attorney seeking fees bears the burden of producing satisfactory evidence that the requested rate is in line with the going rate. Norman, 836 F.2d at 1299. Satisfactory evidence is more than the affidavit of the plaintiffs attorney, and such evidence should pertain to rates actually billed and paid in similar suits. Id. "Evidence of rates may be adduced through direct evidence of charges by lawyers under similar circumstances or by opinion evidence." Id. The weight to be given to opinion evidence is affected by the detail contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of case and client, and breadth of the sample of which the expert has knowledge. Id.
According to the Motion for Attorney's Fees, only one lawyer, Chris Kleppin, Esq., performed work for Valley in this case. Valley seeks $400.00 per hour for Mr. Kleppin. Mr. Kleppin has submitted evidence that he bills numerous defense clients, and has for a number of years, at $400.00/hr in FLSA cases. (Aff. of Kleppin ¶¶ 3, 4, 6). Valley has also referred to several published opinions in which Mr. Kleppin was awarded $300.00 per hour for work performed in 2008 and 2009 in FLSA cases. Dent v. Giaimo, 665 F.Supp.2d 1295 (S.D.Fla.2009) (Ryskamp, J.) (plaintiff vigorously contested the $300.00 per hour hourly rate—requesting award of $187.50 per hour—but, court awarded $300.00 per hour noting that "[t]he Court finds that $300 an hour is a reasonable rate for an attorney of Mr. Kleppin's skill and experience.... After examining Mr. Kleppin's time sheet, the Court further finds that the time spent during the selected periods is reasonable.... Defendant's Motion was well-reasoned, thorough and persuasive"); Ortiz v. D & W Foods, Inc., 657 F.Supp.2d 1328 (S.D.Fla.2009) (Gold, J.) (awarding Mr. Kleppin $300.00 per hour, and noting that he was efficient, and based on "rates charged and approved in this district for comparable work and skill, that $300 is an appropriate hourly rate for [Mr. Kleppin]"); Tesma v. Maddox-Joines, Inc., 2009 WL 230158 (S.D.Fla.2009) (Zloch, J.) (awarding Mr. Kleppin $300.00 per hour);
There are decided cases awarding $400.00 hourly rates to lawyers who have less experience than Mr. Kleppin. See, e.g., CC-Aventura, Inc. v. Weitz Co., 2008 WL 276057 (S.D.Fla.2008) (holding that an 8-year associate could recover $400.00 per hour).
Given the foregoing, I find that a reasonable hourly rate for Mr. Kleppin to be $400.00/hr.
While the prevailing party need only submit evidence indicating what the hours worked were, Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), in this case the hours that were actually worked and billed have been submitted. The Supreme Court has stated the following with respect to the assessment of whether the number of hours submitted is reasonable:
Id. at 435, 103 S.Ct. 1933. This language applies to Valley in this case, as Valley was successful against the Defendants with respect to all causes of action brought by Valley, thus, all of the fees should be recoverable. Id. at 434-35, 103 S.Ct. 1933. The Eleventh Circuit has agreed with this rationale. Norman, 836 F.2d at 1302.
Valley attached documentation in the form of defense counsel's time records to the Motion for Attorney's Fees which is sufficient evidence as to defense counsel's reasonable hours worked. The hours total 15.2 (as of January 26, 2015), all of which are for Mr. Kleppin. These hours appear to be reasonable for litigating the causes of action asserted and the circumstances of a default. Valley's theory of this case was that the Defendants violated the Fair Labor Standards Act for overtime and failed to provide him his last paycheck, and therefore, pursuant to Hensley and Norman, Plaintiff's counsel is entitled to their entire fee, as they prevailed on all of these causes of action.
Finally, it is well settled that expended litigating attorneys' fees is fully compensable. Thompson v. Pharmacy Corp. of Am., Inc., 334 F.3d 1242, 1244-46 (11th Cir. 2003) (reversing district court's decision to deduct all attorney time attributed to efforts to recover attorneys fees as an abuse of discretion).
The lodestar for all attorneys in this case (reasonable hourly rate) x (reasonable hours billed) is: $400.00/hr x 15.2 hrs = $4,560.00.
Having determined the lodestar by multiplying the reasonable hourly rate by a reasonable number of hours worked, the Court may then adjust the lodestar, as discussed above, upward or downward, to reflect a number of different factors, but the Court declines to do that in this case, and notes that Valley himself does not seek an enhancement.
Valley seeks an order taxing costs against the Defendants. Concerning the taxation of costs, the Court has discretion in considering a motion to tax costs. Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 462 (11th Cir. 1996). "[A]lthough the district court has discretion to deny a prevailing party costs, such discretion is not unfettered." Head v. Medford, 62 F.3d 351, 354 (11th Cir. 1995). "[W]here the trial court denies the ... costs, the court must give a reason for its denial of costs so that the appellate court may have some basis upon which to determine if the trial court acted within its discretionary power." Id. (citing Gilchrist v. Bolger, 733 F.2d 1551, 1557 (11th Cir. 1984)).
The Eleventh Circuit has held that Rule 54(d) "creates a presumption in favor of awarding costs to the prevailing party" which the losing party must overcome. Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991); Delta Air Lines, Inc. v. August, 450 U.S. 346, 352, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). In fact, Rule 54 specifically states that:
(emphasis added). A district court's discretion to deny costs (in particular to a prevailing plaintiff under a civil rights statute or the Fair Labor Standards Act) is quite limited, as the courts have noted that "[t]he presumption in favor of awarding costs to the prevailing party is difficult to overcome, and the district court's discretion is narrowly confined-the court must award costs unless it states good reasons for denying them.... Generally, only misconduct by the prevailing party worthy of a penalty ... will suffice to justify denying costs." Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 945 (7th Cir. 1997). "[T]he language of the rule reasonably bears intendment that the prevailing party is prima facie entitled to costs and it is incumbent on the losing party to overcome that presumption . [since] denial of costs ... is in the nature of a penalty for some defection on his part in the course of the litigation." Gilchrist v. Bolger, 733 F.2d 1551, 1557 (11th Cir. 1984).
In light of the fact that Valley is entitled to recover costs because of the final judgment in his favor, the Court will analyze all costs that he is entitled to under the costs statute, 28 U.S.C. § 1920. The cost statute, 28 U.S.C. § 1920 specifically enumerates taxable costs as including:
28 U.S.C. § 1920 (2008). Additionally, the aforementioned Valley is entitled to certain costs pursuant to 29 U.S.C. § 216(b).
Pursuant to § 1920(1), "fees of the clerk and marshal" may be taxed as costs. This includes service of process costs. Although § 1920(1) specifically mentions the term "marshal," since the Marshal's Service rarely serves process anymore, the current trend is to read § 1920 as contemplating costs for the service of process in
This Circuit has held that § 1920(1), read in conjunction with § 1921,
Valley, according to his Bill of Costs and Memorandum in Support incurred the following costs associated with service of process in this case. Copies of the invoices were attached to Valley's Memorandum in Support as Exhibit "1".
Filing fee for Clerk of Court—Complaint $400.00
Service of Summons on Felix Ruiz $45.00
Service of Summons on Gail Ruiz $45.00
Service of Summons on Ocean Sky Limo $45.00
________
Total Service of Process $535.00
Photocopying is a taxable cost pursuant to 28 U.S.C. § 1920(4). Scroggins v. Air Cargo, Inc., 534 F.2d 1124, 1133 (5th Cir. 1976). Generally, a prevailing party may recover the costs of photocopies of documents attributable to discovery, pleadings, correspondence, copies of exhibits, documents tendered to opposing counsel, and documents submitted to the Court for consideration. See, e.g., Brewer-Giorgio v. Bergman, 985 F.Supp. 1478, 1485 (N.D.Ga.1997); Grady v. Bunzl Packaging Supply Co., 161 F.R.D. 477, 479 (N.D.Ga.1995); Desisto College, Inc. v. Town of Howey-in-the-Hills, 718 F.Supp. 906, 913 (M.D.Fla.1989) (finding that "[c]opies attributable to discovery" are a category of copies recoverable under § 1920(4)).
Valley seeks to tax as costs each copy that was made of a document (e.g., motions, attachments to motions) and discovery exhibits copies of original documents to be used as evidence provided by his client to used as exhibits. Valley requests that he be allowed to recover $.25 per page for copy costs, and he points out that there are Southern District of Florida cases holding that $.25 per page is reasonable. Pawnbrokers and Secondhand Dealers Ass'n v. City of Fort Lauderdale, 711 F.Supp. 1084, 1086 (S.D.Fla.1989); American Automotive Accessories v. Fishman, 991 F.Supp. 995, 998 (N.D.Ill.1998).
On Exhibit 1, the Court notes that it includes column titles "User Name" and "Total Copy Counter." Each group appears to be paired with a corresponding total copy count which appears to list the total number of copies billed to that particular group. Id. While some of the entries on the Exhibit are marked out or redacted by handwritten lines, the entries that are not marked out reveal the number of copies associated with this case, Volley v. Ocean Sky Limo. The entries relating to Valley total $14.75 copies, and thus the Court will tax as costs in favor of Valley the amount of $14.75 ($.25 per page).
Valley is entitled to interest flowing from the date of the Default Final Judgment, December 22, 2014 on any and all costs taxed by the Court. BankAtlantic v. Blythe Eastman Paine Webber Inc., 12 F.3d 1045, 1052 (11th Cir. 1994) (holding that "interest shall accrue on Paine Webber's taxable costs from the date the court entered final judgment in favor of Paine Webber on the merits of BankAtlantic's action, November 24, 1989"—BankAtlantic asserted that the cost interest should run from July 3, 1991, the day the district court adopted the magistrate's report and recommendation as to costs); Georgia Ass'n of Retarded Citizens v. McDaniel, 855 F.2d 794, 799 (11th Cir. 1988) (holding that "[w]e conclude that when a district court taxes costs against a losing party, the award of costs bears interest from the date of the original judgment"). At least one district court in the Southern District has expressly followed BankAtlantic on this point. Chiever v. R.J. Schor, Inc., 2008 WL 4097795 (S.D.Fla.2008). Other courts have followed Georgia and interpreted the law in this regard in the same manner as BankAtlantic without mentioning BankAtlantic. See, e.g., Lane v. Capital Acquisitions and Management Co., 554 F.Supp.2d 1345, 1355 (S.D.Fla.2008) and Navarro v. Broney Automotive Repairs, Inc., 2008 WL 2901440 (S.D.Fla.2008). Other circuits follow this rubric as well. Jenkins by Agyei v. Missouri, 931 F.2d 1273 (8th Cir. 1991); Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir. 1983); and Finkelstein v. Bergna, 804 F.Supp. 1235, 1240 (N.D.Cal.1992).
Based on the foregoing, it is ORDERED AND ADJUDGED that Valley's counsel (Glasser & Kleppin, P.A.) is awarded $4,560.00 in attorney's fees and $549.75 in costs against the Defendants jointly and severally. The Court will issue a final judgment as to the fees and costs in a separate document.
