WILLIAM H. STEELE, Chief Judge.
This matter comes before the Court on plaintiff's Motion for Award of Attorney's Fees (doc. 34) and Plaintiff's Supplementary Fee Petition (doc. 40). The attorney's fee issue has been extensively briefed and is now ripe for disposition.
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.
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 plaintiff's 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.
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 plaintiff's 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 plaintiff's 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.
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 obligated
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 plaintiff's 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.
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
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 plaintiff's 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 plaintiff's 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 non-trivial 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 plaintiff's 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 plaintiff's time spent of necessity
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 plaintiff's 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 plaintiff's multiple lawyers. (Hetrick Decl., ¶ 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 plaintiff's counsel's decision to staff this narrowly-circumscribed, straightforward
Third, defendant takes aim at the reasonableness of plaintiff's 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. Plaintiff's 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 plaintiff's time entries for summary judgment is unreasonable and will be discounted.
Fifth, defendant asserts that the hours included in plaintiff's 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-cooks" 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 plaintiff's 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 plaintiff's 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 plaintiff's 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
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 plaintiff's 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 potential
In short, the Court finds that no enhancement or reduction is warranted for results obtained or plaintiff's 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.
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 Ford-Lincoln-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 WESTLAW 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 plaintiff's 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.
For all of the foregoing reasons, plaintiff's Motion for Award of Attorney's Fees (doc. 34) is