United States District Court, M.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
F. MOORER, UNITED STATES MAGISTRATE JUDGE.
action is assigned to the undersigned magistrate judge to
conduct all proceedings and order entry of judgment by
consent of all the parties pursuant to 28 U.S.C. §
636(c). See Docs. 45, 46. Pending before the Court
is the Joint Motion for Approval of Plaintiff’s
Acceptance of Defendant’s Offer of Judgment (Doc. 121,
addition, Defendant previously filed a Status Report (Doc.
125, filed 10/20/17) which the Court now construes as a
“Motion to Reinstate” the various motions for
attorneys’ fees (Docs. 93, 114, and 115). It is ORDERED
that the motion to reinstate is GRANTED and those motions are
reopened. Therefore, also pending are Defendant’s
Motion for Attorney’s Fees (Doc. 93, filed 2/10/17),
Plaintiff’s Petition for Attorneys’ Fees,
Expenses and Costs (Doc. 114, filed 8/25/17), and the former
counsel’s Petition for Attorneys’ Fees (Doc. 115,
filed 8/25/17). The Court held a hearing on the matters on
December 1, 2017 after negotiations between the parties
reached an impasse. After a review of the motions, responses,
oral arguments, and relevant law, the Court issues this
memorandum opinion and order.
Background and Procedural History
procedural history has been previously recited in great
detail in the memorandum opinion on the motion for sanctions
and memorandum opinion on the motion for summary judgment.
See Docs. 87, 92, 98. The Court incorporates by
reference the detailed facts and conclusions from those
opinions. In sum, the Court found that Plaintiff Morrison
deliberately and with bad faith destroyed evidence.
See Doc. 92. After the Court issued its order and
opinion, Defendant filed its request for attorney’s
fees. See Doc. 93. Defendant requests a total of
$22,680.00 for fees related to the sanctions motion.
See Doc. 93 at p. 1. Specifically, counsel requests
a rate of $450.00 per hour for 50.4 hours of work. The Court
issued an order directing Plaintiff to show cause why the
motion should not be granted. Plaintiff timely responded in
opposition to the motion for attorney’s fees.
See Doc. 97. Plaintiff avers that the extensive
relief imposed in the ruling on the motion for sanctions and
the broad discretion on whether fees and expenses should be
imposed, requests that the relief already given in the motion
for sanctions be sufficient. Plaintiff further argues the
awarding of fees and expenses would be excessive.
Id. Alternatively, even if the Court did award fees
and expenses, Plaintiff opposes the hourly rate and the
amount of time spent. The motion related to the
Defendant’s attorney’s fees is now fully briefed
and ripe for review.
to the Defendant’s motion for attorney’s fees, on
March 23, 2017, the Court also issued its Memorandum Opinion
and Order on the Motion for Summary Judgment wherein the
Court granted summary judgment as to the Plaintiff’s
overtime claim and denied summary judgment as to
Plaintiff’s minimum wage claim. See Doc. 98.
Concurrently, the Court issued an order setting the case for
a status conference and instructed that “the parties
shall not incur any additional attorneys’ fees, costs,
or expenses with the exception of reviewing this order,
reviewing the Memorandum Opinion issued this same date, and
any communication to the clients regarding this order and
ruling on summary judgment. If the parties need to incur
additional expenses outside of those parameters, they should
first contact the Court.” See Doc. 99. The
status conference was set for the following week. At the
status conference, the Court suggested the possibility of
mediation and also discussed resetting the trial and
corresponding pretrial deadlines. The trial was reset for
September 18, 2017. See Doc. 102.
August 4, 2017, the parties filed a Notice of Acceptance of
Offer of Judgment and requested cancellation of the pretrial
conference and trial. See Doc. 110. The parties also
indicated that attorney’s fees for both sides remained
an issue and further briefing would be needed. See
Doc. 111. Plaintiff timely filed her motions for
attorneys’ fees and bill of costs. See Docs.
114, 115, and 116; see also Doc. 18, Notice of
Attorneys’ Lien. The Court also entered an order
requesting a copy of the Offer of Judgment and a Joint Motion
to Approve Settlement under FLSA.
Offer of Judgment and Approval
Rule of Civil Procedure 68 provides, in relevant part, that
at least 14 days before trial, a defendant may serve upon a
plaintiff an offer of judgment to be taken against the
defendant for money with cost then accrued. Fed. R. Civ. P.
68(a). Courts are somewhat mixed on the use of an offer of
judgment in Fair Labor Standards Act (“FLSA”)
cases. However, what is clear is that in FLSA cases, Courts
must still determine whether a settlement is a fair and
reasonable resolution in order to give it final and binding
effect. See, e.g., Arencibia v. Miami Shoes, Inc.,
113 F.3d 1212 (11th Cir. 1997) (discussing FLSA settlements
in the context of Rule 68 offers of judgment); Silva v.
Miller, 307 F.Appâx 349 (11th Cir. 2009) (discussing
requirement of judicial oversight in context of an offer of
judgment even when full claimed amount is paid when
attorney’s fees are involved); Norman v. Alorica, Inc.,
2012 U.S. Dist. LEXIS 159512 (S.D. Ala. Nov. 7, 2012) (same);
Baxter v. Automated Gate Sys., Inc., 2010 U.S. Dist.
LEXIS 100566, 2010 WL 3730900, *2 (M.D. Fla. Sept. 2, 2010)
(same); Delgado v. Excel One, Inc., 2009 U.S. Dist.
LEXIS 43476, 2009 WL 1456452, *1 (M.D. Fla. May 22, 2009)
(same); Urshan v. Orlando Utilities Comm’n,
2009 U.S. Dist. LEXIS 68066, 2009 WL 2392060, *2 (M.D. Fla.
Apr. 20, 2009) (same).
case at hand, Plaintiff originally sought back pay for the
minimum wage claim in the amount of $7,160.01 (including
interest accrued). See Doc. 95 at p. 8 and Ex. F.
Later, in the joint motion for approval of the accepted offer
of judgment, Plaintiff increased her claim to $9,214.76.
While normally that would be a matter of concern for the
court, it is not a factor in this particular instance. It
seems apparent from the Offer of Judgment and correspondence
relating to it that the amount pertains to both the minimum
wage principal amount and liquidated damages.
on a review of the Offer of Judgment, it is clear that
Plaintiff was compensated for that amount plus liquidated
damages and a small additional amount rounded up regardless
of which number is used. See Doc. 121, Ex. B.
Specifically, “the judgment shall provide for an award
of damages, including compensatory and liquidated damages, in
the total amount of $10,000.00.” Id. at
(1). The Offer of Judgment also
provided for an award of reasonable fees and costs.
Id. at (2) and (3). Finally, the offer of judgment
preserved appellate rights. Id. at (4). As the total
value clearly covers Plaintiff’s minimum wage claim,
the Court finds that the settlement is a fair and reasonable
settlement of a bona fide dispute for the sole remaining
claim. Therefore, the joint motion for approval of settlement
evaluating a request for attorneys’ fees, the Court
applies the “lodestar” method. Hensley v.
Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 1939,
76 L.Ed.2d 40 (1983); Ass’n of Disabled
Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th
Cir. 2006). The “lodestar” is found by
“multiply[ing] the number of hours reasonably expended
on the litigation by the customary fee charged in the
community for similar legal services.” Neptune
Designs, 469 F.3d at 1359. The fee applicant bears the
burden of “establishing entitlement and documenting the
appropriate hours and hourly rates.” Norman v.
Hous. Auth. of City of Montgomery, 836 F.2d
1292, 1303 (11th Cir. 1988). To satisfy this burden, the fee
applicant shall supply to the court: (1) specific and
detailed evidence from which it can determine the reasonable
hourly rate for the community and (2) records evidencing time
spent on different claims and setting out with sufficient
particularity the general subject matter of the time
expenditures so that the court can assess the time claimed
for each activity. Am. Civil Liberties Union of
Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999).
determining the lodestar, the court then addresses whether
the award should be adjusted upwards or downwards.
Pennsylvania v. Delaware Valley Citizens' Council for
Clean Air, 478 U.S. 546, 565-66, 106 S.Ct.
3088, 3098-99, 92 L.Ed.2d 439 (1986); Neptune
Designs, 469 F.3d at 1359. In conducting this inquiry,
the court is guided by the twelve factors set out in
Johnson v. Georgia Highway Express, Inc., 488 F.2d
714, 717-19 (5th Cir. 1974).,  See also Hensley, 461
U.S. at 429-30, 103 S.Ct. at 1937-38 (endorsing the
Johnson factors). These twelve factors are:
(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
employment by the attorney due to acceptance of the case; (5)
the customary fee in the community; (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
Hensley, 461 U.S. at 430 n. 3, 103 S.Ct. at 1937 n.
3; Johnson, 488 F.2d at 717-19. Finally, when
awarding an attorney’s fee, the “[c]ourts are not
authorized to be generous with the money of others, and it is
as much the duty of courts to see that excessive fees and
expenses are not awarded as it is to see that an adequate
amount is awarded.” Barnes, 168 F.3d at 428.
Defendants’ Attorneys’ Fees from
Plaintiff’s Spoliation and Sanction
January 25, 2017, this Court entered a lengthy opinion which
granted Defendant’s motion for sanctions due to
Plaintiff’s spoliation of evidence. See Doc.
92. In the motion, Defendant requested attorney’s as a
part of the sanction, but did not include the supporting
documentation as it was not yet fully determinable. Thus, at
the end of the opinion, the Court instructed the defendant to
file his requested attorneys’ fees on or before
February 10, 2017. Defendant timely filed his renewed motion
for attorneys’ fees with his specific amounts and
supporting documentation. See Doc. 93. Specifically,
he provided billing statements for the time spent on the
deletion of emails and corresponding sanctions motion.
Defendant also submits an affidavit from another attorney
supporting his requested rate.
is clear that the sanctions a court may impose against a
party of spoliation of evidence include an award of
attorney’s fee incurred by the injured party as a
result of the spoliation. Swofford v. Eslinger, 671
F.Supp.2d 1274, 1280 (citing Flury v. Daimler Chrysler
Corp., 427 F.3d 939, 945 (11th Cir. 2005)). With regard
to those fees, “the amount of fees and costs awarded
may not exceed the ‘costs, expenses, and
attorneys’ fees reasonably incurred because of [the
sanctionable] conduct.’” Id. at 1287
(quoting Amlong & Amlong, P.A. v. Denny’s,
Inc., 500 F.3d 1230, 1239 (11th Cir. 2007)). As such,
the Court turns to whether Defendant’s requested amount
is reasonable and appropriate under the circumstances.
counsel seeks an award of $22,680.00 for fees related to the
sanctions motion. See Doc. 93 at p. 1. This
represented 50.4 hours or work at a requested rate of $450.00
per hour. Plaintiff opposes the imposition of
attorney’s fees and argues the sanction previously
imposed is more than adequate to address the
Perhaps the Court should have been clearer in its sanctions
opinion, but the question of whether attorney’s fees
would be imposed was already impliedly answered when the
court requested that Defendant file a “properly
supported motion for attorney’s fees.” The award
of attorney’s fees remains part of the sanctions order.
Thus, the sole question remaining is whether the fees sought
are reasonable and what amount the Court will impose.
Reasonable hourly rates
counsel seeks $450 per hour, but acknowledges that his rate
is the prevailing rate for the Atlanta, Georgia metropolitan
area. Plaintiff argues that a more appropriate rate for the
Middle District of Alabama (Montgomery) is $200-$250 for a
lawyer with 17 years of experience. Therefore, Plaintiff
proposes $212.50 as the midpoint between those amounts.
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, 836 F.3d at 1299 (citing
Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104
S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984). The Court has
reviewed the evidentiary submissions and arguments of the
Defendant and Plaintiff with regard to the appropriate rate.
counsel submitted an affidavit from Gary B. Andrews (another
Atlanta based attorney) as well as his own affidavit.
See Doc. 93 at p. 7-17. In both affidavits, they
conclude the $450 rate sought is reasonable. In fact, Mr.
Andrews indicates it is even slightly lower than he would
expect from Mr. Moore based on his qualifications and
experience. Id. at p. 17. Plaintiff submits a
declaration from Matthew P. Teague as support for the
assertion that the $450 rate sought is too high for the local
area. Mr. Teague is a partner at the Montgomery-based firm
Beasley, Allen, Crow, Methvin, Portis & Miles, P.C. In
his affidavit, he provides the prevailing rate for an
attorney with 17 years of experience would be between $200
and $225 per hour. See Doc. 97, Ex. A. Although
opinion testimony can satisfy an attorney’s burden to
prove reasonable hourly rates, “where there is a lack
of documentation, a district court may make an independent
judgment based on its own experience and knowledge concerning
the rates charges by lawyers of similar skill in similar
lawsuits in the same market area.” Miller v.
Kenworth of Dothan, Inc., 117 F.Supp.2d 1247, 1254 (M.D.
the Middle District of Alabama, skilled lawyers with twenty
years or more experience may expect to receive $300 an hour,
lawyers with ten years or more experience may receive between
$200 and $250 an hour, and associates may expect to receive
$150-185 an hour. In the Middle District of Alabama,
paralegals may expect to receive between $50 and $85 an
hour.” Weekes-Walker v. Macon County Greyhound
Park, Inc., 31 F.Supp.3d 1354, 1360 (M.D. Ala. 2014)
(Fuller, J.) (citations omitted); see also Alfa Corp. v.
Alfa Mortgage, Inc., 560 F.Supp.2d 1166, 1180 (M.D. Ala.
2008) (Watkins, J.); Simpleville Music v. Mizell,
511 F.Supp.2d 1158, 1163 (M.D. Ala. 2007) (Thompson, J.);
Gaylor v. Comal Credit Union, Civ. Act. No.
2:10-cv-725-MHT, 2012 U.S. Dis. LEXIS 75972, 2012 WL 1987183
(M.D. Ala. 2012) (Thompson, J.) (using same fee structure).
findings of other courts with regard to attorney’s fees
(even those within this same district) are not binding, the
undersigned does find, in the Court’s experience, the
above statement regarding rates to be essentially accurate
within this district with some adjustments for inflation over
the last few years. When looking to the rates requested by
Defense counsel, the Court does find that they merit some
reduction. The preliminary question is: what constitutes the
“relevant legal community” for purposes of
determining the prevailing market rate? “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.’” Barnes, 168 F.3d at 437 (citing
Cullens v. Georgia Department of Transportation, 29
F.3d 1489, 1494 (11th Cir. 1994)). As this case was filed in
the Middle District of Alabama – Northern Division, the
Court finds that is the relevant market for this case. The
rates requested by defense counsel are not entirely in line
with the rates generally requested in the Middle District of
Alabama. The rates requested by counsel are more in line with
the rates appropriate for the Northern District of Georgia.
As such, the Court adjusts the rate to $325.00 taking into
consideration Mr. Moore’s years of experience to
include specialized experience in electronic
determined the reasonably hourly rates for the services
provided in the case, the Court now must address the number
of hours reasonably expended on the matter. Plaintiff argues
that several entries are “block time entries” and
therefore should have 10-24% across the board reductions.
See Doc. 97 at p. 3-5. The Court has carefully
reviewed all of counsel’s billing summaries. While
there is some block billing, a review of the blocks
establishes that it relates to the motion for sanctions and
the deletion of the gmail account. Further, the time expended
relating to the motion for sanctions is reasonable. The
motion itself was comprehensive, thoroughly researched, and
supported by significant evidence. Therefore, after a careful
review of the submitted billing statement, the Court finds
the 50.4 hours spent were reasonable.
Adjustment to Lodestar Amount
of the lodestar amount does not necessarily terminate the fee
analysis. After determining the lodestar amount, “the
court must next consider the necessity of an adjustment for
results obtained.” Norman, 836 F.2d at 1302.
The Court generally uses the Johnson factors in
determining whether an increase or decrease is appropriate.
Defendant prevailed on the heavily contested sanctions
motion. However, as the Court is utilizing its inherent
authority to impose attorney’s fees as a sanction, the
Court looks to whether any further adjustments are
appropriate. The current amount approved after the reduction
in rate is $16,380.00 (50.4 x $325). The Court finds that no
further reduction or increase is needed.
Plaintiff’s Attorney’s Fees
has two sets of attorneys’ fees for
second counsel, David Arendall and Allen Arnold filed a
Notice of Attorneys’ Lien upon their withdrawal.
See Doc. 18. In the lien, they seek $10,207.50 for
attorneys’ fees, costs, and expenses pursuant to the
contract Plaintiff entered into with the law firm.
Id. They attach the fee agreement signed by
Plaintiff. Id., Exhibit A. The original attorneys
also submitted a more detailed motion for attorney’s
fees and bill of costs once a settlement had been reached.
See Docs. 115-116.
Plaintiff’s current counsel Robert Childs, Jr. also
submits a request for attorney’s fees and costs.
See Doc. 114. Originally, counsel requested
$60,838.75 in attorneys’ fees and $4,885.01 in costs.
Id. at p. 2. However, after reviewing
Defendant’s response in opposition, counsel
acknowledged that certain amounts were inadvertently included
and should be excluded. Thus, the revised fee petition seeks
$47,920.00 in attorneys’ fees and $1,457.68 in costs
accrued by the attorney and $2,741.48 accrued directly by
Plaintiff. See Docs. 120, 122.
the Court will deal with a review of costs in a later
section, but the Court must first look to whether
attorneys’ fees are warranted and if so, how to
reconcile the two different motions for separate attorneys
and finally what amount may be reasonable.
first to whether attorney’s fees are appropriate.
Firstly, the Offer of Judgment clearly provides “for an
award of reasonable attorneys’ fees to Plaintiff for
services rendered by her counsel up to and including the date
of receipt of this offer that are attributable solely to
Plaintiff’s claim for alleged unpaid minimum wage, on
the condition that Plaintiff must prove such fees in the
manner provided by law.” See Doc. 121, Exhibit
A ¶ 2. Further, FLSA requires that 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). “FLSA requires
judicial review of the reasonableness of counsel’s