United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs' motion and
application for attorneys' fees (Doc. 93),
Defendants' opposition (Doc. 95) and Plaintiffs' Bill
of Costs (Doc. 94).
8, 2014, 14 Plaintiffs initiated this FLSA collective again
against Defendants. (Doc. 1). On March 12, 2015, Stokes was
terminated as a plaintiff. (Doc. 24). On May 12, 2015, White
was terminated as a plaintiff. (Docs. 35, 37). On June 9,
2015, Wilkins was terminated as a plaintiff. (Docs. 42, 43).
On June 10, 2015, Plaintiffs' counsel's request to
withdraw from representing Carrier, Hannon and McGee in this
case was granted. (Docs. 32, 44). On July 1, 2015, Carrier,
Hannon and McGee were terminated as plaintiffs. (Doc. 49). On
March 22, 2016, Portis was terminated as a plaintiff. Thus,
as of March 23, 2016, seven (7) plaintiffs remained in this
case - Ford, Franklin, Knight, Law, Poellnitz, Reed and
August 19, 2016, these seven (7) plaintiffs moved the Court
for approval of the settlement agreements. (Docs. 80). The
motion was denied but with leave to refile. (Doc. 81). On
November 17, 2016 these plaintiffs moved the Court for
approval of the amended settlement agreements. (Doc. 84). On
November 30, 2016, this Court granted the parties' joint
motion to approve the amended settlement agreement and
release (Doc. 84), reserving the issue of attorneys' fees
and costs for another day. (Doc. 85). In so doing, the Court
… as this is an FLSA case, the Court had to determine
whether the settlement is a “fair and reasonable
resolution of a bona fide dispute” of the claims raised
to approve the settlement. Lynn's Food Stores, Inc.
v. United States of Am., 679 F.2d 1350, 1354-1355
(11th Cir. 1982). This includes an assessment of
attorneys' fees and costs. As such, in granting the
parties' motion to approve the amended settlements, the
Court considered the parties' representations that
“Plaintiffs' counsel will be filing an application
for an additional, separate sum of reasonable attorneys'
fees and costs, meaning that counsel's recovery is in no
way related to those sums to be paid to Plaintiffs in
compromise of their claims.” (Doc. 84 at 8). The
parties stated that they disagreed on the amount to
attorneys' fees to be assessed and so “agreed to
let the Court determine” the amount, as set forth in
the proposed settlement agreements at Paragraph 7.
(Id. at 10). Paragraph 7(a) of the settlement
(a) NAVIKA has agreed to pay the reasonable attorneys'
fees and costs incurred by FORD, with such fees being
determined by the Court. The Parties agree that counsel for
FORD shall file a motion to determine the reasonable
attorneys' fees incurred by counsel for FORD herein in
accordance with Local Rule 7.0. The Parties further agree
that, unless the Court orders otherwise, such motion shall be
submitted on the papers and payment for reasonable
attorney's fees shall be made within thirty (30) days
after the Court determines and awards such.
granting on the motion to approve the settlement, the Court
As set forth above, the motion is GRANTED and the settlement
agreements are APPROVED. The parties have agreed that the
Court will calculate attorneys' fees in this matter.
Under the FLSA attorneys' fees are an integral part of
damages and thus judgment will not be entered until the
attorneys' fee determination is resolved. See Shelton
v. Ervin, 830 F.2d 182, 184 (11th Cir.1987)
(“…[W]e hold that attorney fees are an integral
part of the merits of FLSA cases and part of the relief
sought therein. Thus, a final determination as to the award
of attorney fees is required as part of the final appealable
85). The Court ordered briefing and counsel for Plaintiffs
filed a motion and application for attorneys' fees (Doc.
86), Defendants' responded (Doc. 87), Plaintiffs'
replied (Doc. 88) and counsel submitted a Bill of Costs (Doc.
Plaintiffs sought attorneys' fees and costs “to be
paid by the Defendants.” (Doc. 86). According to
counsel, they recovered $41, 560.00 for the seven (7)
Plaintiffs on their FLSA claims against the Defendants.
(Docs. 86 at 5, 86-1 (Decltn. Steele)). Plaintiffs'
counsel sought recovery of an additional $68, 999.50 in
attorneys' fees and $1, 160.69 in costs/expenses for
litigating this case on behalf of all 14 of the original
plaintiffs from July 4, 2014-December 21, 2016, as well
as $2, 120.00 for preparing the fees motion:
After excluding hours that have been eliminated through the
exercise of billing judgment; reducing the hourly rates in
accordance with the prevailing market rates in Mobile,
Alabama; analyzing the decisions of this Court;
Plaintiffs' counsel reduced the 536.10 hours expended
prosecuting this matter to 450.8 for which counsel is seeking
compensation. Plaintiffs' current lodestar is $68,
999.50-which leads to an effective “blended” rate
of $153.06 per hour. Plaintiffs seek costs and expenses in
the amount of $1, 160.69. Consequently, the question before
this Court is whether the $68, 999.50 lodestar amount of fees
for Plaintiffs' counsel's work prosecuting this
action and the $2, 120.00 lodestar amount for preparing this
application are reasonable.
86 at 2). Plaintiffs also separately filed Bill of Costs
seeking an additional $733.90 ($400 for fees of the
clerk and $333.90 for service of the
summons/petition). (Docs. 89, 89-1, 89-2). While Defendants
agreed to pay reasonable fees and costs per the
terms of the settlement, they vigorously opposed the specific
amount of fees and costs requested. (Doc. 88).
February 9, 2017, this Court denied Plaintiffs' motion
for attorneys' fees/costs and bill of costs, granting
Plaintiffs leave to file a new motion, specifying, in part,
…First, for FLSA fees recovery there must be an
assertion that the fees were negotiated separately from
Plaintiffs' settlements to avoid any taint in the
agreements….Court is satisfied that this assertion has
been made: “Plaintiffs' counsel will be filing an
application for an additional, separate sum of reasonable
attorneys' fees and costs, meaning that counsel's
recovery is in no way related to those sums to be paid to
Plaintiffs in compromise of their claims.” (Doc. 84 at
Second, Defendants, via execution of the seven (7)
settlements, agreed to pay Plaintiffs reasonable
attorneys' fees and costs as determined by this Court
for those plaintiffs. (Doc. 84-1 at 6 at
¶7(a)). Plaintiffs' recovery is thus limited to the
fees and costs incurred for Ford, Franklin, Knight, Law,
Poellnitz, Reed and Williams. Counsel's billing records
do not sufficiently differentiate among plaintiffs, making it
unclear as to which entries relate to the seven (7)
plaintiffs versus the terminated/dismissed plaintiffs.
Plaintiffs acknowledge that “some of the time was not
identified and written off” in response, but contend
that counsel's overall reduction of fees basically
remedies such. (Doc. 88 at 4-6). While Plaintiffs have
“conceded” some entries should be removed, the
better course - for clarity and to avoid confusion - is for
counsel to review the billing records and submit a new motion
seeking only those fees and costs relating to the seven (7)
Third, the billing records include time entries by 11
non-lawyers. (Doc. 86 at 9). Concerning non-lawyer paralegals
and non-lawyer law clerks, a court may award fees for their
work, but only to the extent they perform work
“traditionally done by an attorney.”
Vanderbilt Mortg. And Fin., Inc. v. Crosby, 2015 WL
5178719, *2 (S.D. Ala. Sept. 54, 2015); SE Prop.
Holdings, LLC v. 145, LLC, 2012 WL 6681784, *4-5 (S.D.
Ala. Dec. 21, 2012). See also Brown v. Lambert's Cafe
III, 2016 WL 325131, *6 and note 4 (S.D. Ala. Jan. 27,
2016). “[W]ork that is clerical or secretarial in
nature is not separately recoverable.' Id.
(denying attorney's fees for such clerical and
secretarial work as gathering materials and copying, mailing,
and refiling them).” SE Prop., 2012 WL
6681784, *5. While the Court can discern the two (2)
non-lawyer law clerk entries as they have been named and
identified by counsel (W.Thorne “WC” and C.Agboli
“CA”), counsel has failed to identify which of
the remaining nine (9) billers (K.McNeil, K.Dodd, C.Taylor,
C.Fenton, D.Francis, A.Caballero, S.Fuller, D.Detgen and
K.Flores) are non-lawyer paralegals versus non-lawyer
[FN3] While counsel has listed nine (9) non-lawyers at Doc.
86 at 9, he has provided no further information.
Fourth, with regard to the time entries by non-lawyer and
non-paralegal “staff, ” clerical or secretarial
tasks (i.e., administrative work) are not recoverable, as
those are overhead expenses. Missouri v. Jenkins,
491 U.S. 274, 288 at note 10 (1989) (“purely clerical
or secretarial tasks should not be billed at a paralegal
rate, regardless of who performs them”). Such
non-recoverable tasks include time billed for: setup of a
file, calendaring deadlines, receiving, reviewing, and
indexing documents, sending or receiving emails with
documents attached, preparing civil cover sheets and summons,
receiving and indexing certified mail receipts, e-filing
documents with the Court, receiving and indexing those
documents, mailing and telefaxing correspondence, making
calls to clients, obtaining pleadings from the court's
database, printing documents, miscellaneous scanning of
documents, etc. See, e.g., Cormier v.
ACAC Inc., 2013 WL 6499703, *5 (S.D. Ala. Dec. 11,
2013); Whitney Bank v. Davis-Jeffries-Hunold, Inc.,
2012 WL 5470131, *7 (S.D. Ala. Nov. 9, 2012); Andriello
v. CFI Sales & Marketing, Inc., 2012 WL 3264920, *9
(M.D. Fla. Jan. 4, 2012); Miller v. Kenworth of Dothan,
Inc., 117 F.Supp.2d 1247, 1261 (M.D. Ala. 2000).
[FN4] See also Espino v. Commissioner of Social
Security, 2015 WL 6705453, *2 (M.D. Fla. Nov. 2, 2015)
(clerical tasks such as “Review Summons Issued, ”
“Call to Clerk to confirm Summons were sent to Marshall
for service, ” “Download/Combine and OCR
Transcript, live bookmark, ” and “Download, file
and save Corrected transcript in parts, ” are not
compensable as attorney fees); Classic Harvest LLC v.
Freshworks LLC, 2017 WL 393730, *2 (N.D.Ga. Jan. 30,
2017) (downloading, scanning or saving files or docket
entries are not recoverable); Peress v. Wand, M.D.,
597 F.Supp.2d 1320, 1325-1326 (S.D. Fla. 2008) (an attorney
in an FLSA case should not be permitted to recover fees for
clerical time for e-filing, on line research of addresses,
preparing civil cover sheets and summonses and for reviewing
the CM/ECF email for documents prepared and filed by
…The billing records include numerous entries
for such tasks (e.g., including but not limited to
-- 8/11/16 “receive settlement agreement and W9 form
signed from client: scan to file and save, ” 8/15/16
“re-scan settlement agreements into S drive for
clients”, “KD”'s “further
preparation of documents for client correspondence”,
“CT”'s “conference with counsel
regarding strategy on service affidavits, ”
“DF”'s “compilation of correspondence
and pleadings regarding all parties in lawsuit, ”
“AC”'s “analysis of scheduling
order/docket control order”, “DD”'s
“save supplemental report regarding settlement to S
drive, ” “Operation of
Spreadsheet…”, etc. (Docs. 86-2; 86-10). The
non-recoverability for clerical tasks may also be applicable
to those entries labeled “Assistance
with….” (Id.) Further, as presented,
counsel's entries for non-lawyer staff could be viewed as
non-recoverable block billing. See, e.g.,
Longhini v. New Way Foods, Inc., 2016 WL 6806243, *3
(S.D. Fla. Nov. 16, 2016); Pronman v. Styles, 2016
WL 3661940, *4 (S.D. Fla. Mar. 15, 2016). [FN5]….
[FN5] “Block billing may occur where a single billing
entry contains compensable legal tasks and non-compensable
secretarial tasks. See Peress v. Wand, 597 F.Supp.2d
1320, 1325 (S.D. Fla. 2008). Block billing may also occur
where time spent on multiple non-secretarial tasks is
inadequately described. See Williams v. R. W. Cannon,
Inc., 657 F.Supp.2d 1302, 1310 n. 4 (S.D. Fla.
2009).” “The Court is not able to determine from
these records what time was spent pursuing legal aims and
what time was attributed to non-compensable clerical tasks.
Therefore, such blended entries will not be awarded under the
FLSA fee shifting provision.” Nipper v. Lakeland
Hotel Investors, Ltd., 2010 WL 4941718, *5 at note 4
(M.D. Fla. Nov. 30, 2010).
….While some entries in this category contain work
that may be legal, with a number of them counsel has failed
to separate legal from non-legal work. Entries for
administrative tasks (however listed) should be removed.
While Plaintiffs have “conceded” that “a
10% reduction of the time block billed is
appropriate” they fail to identify those entries
and/or acknowledge any entries that are a hybrid of legal and
clerical tasks. (Doc. 88 at 9). For clarity and to avoid
confusion, the better course is for Plaintiffs to review the
billing records and submit a new motion for fees and costs
that removes any such billing from its request…..
…..The FLSA mandates that in any action brought by an
employee to enforce Section 206 or Section 207 of the Act,
the 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). In a FLSA action,
allowable costs are set forth in 28 U.S.C. § 1920. These
costs include: 1) fees of the clerk and marshal; 2) fees for
printed or electronically recorded transcripts necessarily
obtained for use in the case; 3) fees and disbursements for
printing and witnesses; 4) fees for exemplification and costs
of making copies of any materials where the copies are
necessarily obtained for use in the case; 5) docket fees
under section 1923; and 6) compensation of court appointed
experts, compensation of interpreters, and salaries, fees,
expenses and costs of special interpretation services under
… Plaintiffs' also filed a Bill of Costs in which
they seek an additional $733.90 ($400 for fees of the clerk
and $333.90 for service of the summons/petition, including
“rush” fees). (Docs. 89, 89-1, 89-2). As
highlighted by Defendants (Doc. 87 at 19-20), Plaintiffs'
costs request does not delineate the amounts incurred for the
seven (7) plaintiffs versus the terminated and/or dismissed
plaintiffs… Moreover, as to the service fees,
“[f]ees of the clerk and marshal” may be taxed as
costs (i.e., the statute authorizes a court to tax
private process server fees as costs where the rates do not
exceed what it would cost to have the U.S. Marshal effectuate
service). U.S. E.E.O.C. v. W&O, Inc., 213 F.3d
600, 623-624 (11th Cir. 2000). Private server fees
in excess of that amount, “rush fees, ” and
courier fees are not recoverable. See,
e.g., Id.; F.D.I.C. v. Hoolihan,
2013 WL 6597052, *1 (M.D. Fla. Dec. 16, 2013); Blowbar,
Inc. v. Blow Bar Salon, Inc., 2013 WL 6244531, *6 (M.D.
Fla. Dec. 3, 2013)…..
…And while Plaintiffs now appear to concede that
certain costs are not recoverable by “amending”
its request as follows: “Plaintiffs amend their request
for costs of $733.90 consistent with the verified bill of
costs, and § 1920 filed contemporaneously with this
brief” this only creates more confusion. (Doc. 88 at
10). For clarity, the better course is for Plaintiffs to
review the costs and submit a new request for same, with
90 at 3-9).
the deficiencies in Plaintiffs' motion, leave was given
to file a new motion for attorneys' fees and costs that
would address and cure the concerns detailed and provided the
Court with only the relevant billing entries and
legally recoverable fees and costs for the seven (7)
Plaintiffs (Ford, Franklin, Knight, Law, Poellnitz, Reed and
Williams). (Id. ...