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providing preparation of deposition notices and subpoenas as an example of clerical work
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CASE NO. 00-1511-CIV-SEITZ/GARBER
May 23, 2002
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on Plaintiff Simeon Manriquez's Verified Motion for Attorney Fees and to Tax Costs (D.E. #108) and Plaintiff Simeon Manriquez's Motion for Attorney Fee Enhancement (D.E. #107), pursuant to an Order of Reference entered by United States District Judge Patricia A. Seitz. The Court held a hearing regarding this matter on May 8, 2002, has carefully reviewed the pertinent portions of the record, and is duly advised in the premises. For the reasons set forth below, it is respectfully recommended that the Court GRANT in part and DENY in part Plaintiff's Verified Motion for Attorney Fees and to Tax Costs, DENY Plaintiff's Motion for Attorney Fee Enhancement, and award Plaintiff Manriquez $15,23.33 in attorneys' fees and $2,729.27 in costs.
BACKGROUND
On April 27, 2000, Plaintiffs Simeon Manriquez and Adan Ares commenced this Fair Labor Standards Act action to recover unpaid overtime wages from their former employers. On December 7, 2001, Judge Seitz granted summary judgment in favor of Defendants as to Plaintiff Ares's claims, and granted partial summary judgment as to liability in favor of Plaintiff Manriquez.
Manriquez and Defendants then settled Manriquez's claims for $10,000.00, exclusive of attorneys' fees and costs. On December 28, 2001, Manriquez and Defendants filed their Joint Stipulation for Dismissal with Prejudice, in which they wrote:
Plaintiff . . . and Defendants . . . stipulate that by virtue of a settlement reached between the parties with respect to plaintiff Manriquez, this action is hereby dismissed, with prejudice. This Stipulation does not include any claims to an award of attorney fees and costs with respect to plaintiff Manriquez, which will be determined by the Court.
D.E. #100.
On December 28, 2001, Judge Seitz signed a Final Order of Dismissal as to Manriquez's claims. In that Order Judge Seitz wrote: "[T]his action is DISMISSED WITH PREJUDICE with respect to Plaintiff Simeon Manriquez. The Court will retain jurisdiction over this matter to enforce the terms of the settlement agreement entered into between the parties. All pending motions are DENIED AS MOOT, and this case is CLOSED." D.E. #103. Also on December 28, 2001, Judge Seitz signed the Final Judgment on Claims of Plaintiff Adan Ares. See D.E. #102.
Manriquez contends that as the prevailing party, he is entitled to attorneys' fees of $79,069.54 and costs of $4,634.02. His lead counsel, J.H. Zidell, asserts that he is entitled to a lodestar fee of $39.534.77, which he contends should be enhanced by a factor of 2.0 because of the exceptional result and the degree of risk involved in taking the case. The requested lodestar fee represents: $37.479.16 (149.92 hours at $250.00 per hour) for Mr. Zidell; $1,290.60 (7.17 hours at $180.00 per hour) for associate Jason Remer; and $765.00 (8.5 hours at $90.00 per hour) for "legal assistant" Anthony Georges-Pierre.
Manriquez represents that he is requesting $4,756.52 in costs. However, the itemized costs that he requests total $4,634.02.
Defendants did not file a written response to the Motions, despite the fact that their responses were due on February 25, 2002. However, at the May 8, 2002, hearing regarding these matters, Defendants opposed Manriquez's Motions. Defendants asserted that: (1) Manriquez has not satisfied the terms of the settlement agreement; (2) there has not been a judgment that rendered Manriquez a prevailing party, and based on Buckhannon Bd. Care Home, Inc. v. W Va. Dep't of Health Human Res., 532 U.S. 598, 121 S.Ct. 1835 (2001), he is not a prevailing party by virtue of the settlement agreement; (3) the requested fees are excessive because many of them relate to Plaintiff Adan Ares, who was not a prevailing party; and (4) a fee enhancement is not warranted because this case did not involve any novel legal theories.
The Court has discretion to grant Manriquez's Motions by default because of Defendants' failure to file written responses. See Local Rule 7.1.C.
DISCUSSION
1. Manriquez's Alleged Failure to Satisfy the Terms of the Settlement Does Not Affect His Entitlement to Attorneys' Fees and Costs
Defendants contend that Manriquez has not satisfied the terms of the settlement agreement. Specifically, they assert that Manriquez has not picked up and cashed the $10,000.00 check made to him, and has not signed a release. Plaintiff's counsel responded that he does not agree that signing a release was part of the settlement agreement, but that he has no objection to his client doing so.
If Defendants believe that Manriquez has not complied with the terms of the settlement agreement, then they have two remedies: (1) because Judge Seitz retained jurisdiction to enforce the terms of the agreement, Defendants may file a motion to enforce the agreement, see, e.g., American Disability Ass'n, Inc., v. Chmierlarz, ___ F.3d ___, ___, 2002 WL 820676, *4 (11th Cir. May 1, 2002) ("Thus, it is clear that, even absent the entry of a formal consent decree, if the district court either incorporates the terms of a settlement into its final order of dismissal or expressly retains jurisdiction to enforce a settlement, it may thereafter enforce the terms of the parties' agreement."); or (2) Defendants may file a state-court action to enforce the agreement, cf, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82, 114 S.Ct. 1673, 1677 (1994) ("[W]e think the court is authorized to embody the settlement contract in its dismissal order (or, what has the same effect, retain jurisdiction over the settlement contract) if the parties agree. Absent such action, however, enforcement of the settlement agreement is for state courts, unless there is some independent basis for federal jurisdiction.").
However, Defendants have not cited any authority which suggests either that Manriquez was not a prevailing party because he allegedly did not comply with the settlement agreement's terms, that the Final Order of Dismissal somehow was rendered "non-final" by virtue of Manriquez's alleged failure to comply with those terms, or that the Court should refuse to award Manriquez attorneys' fees because of his alleged failure to comply with those terms.
2. Manriquez is a Prevailing Party
Defendants assert that there has not been a judgment that rendered Manriquez a prevailing party, and that he is not a prevailing party by virtue of the settlement agreement. The Court disagrees.
It is undisputed that pursuant to the parties' settlement, Defendants are required to pay Manriquez the unpaid wages that he sought. Additionally, by virtue of the Final Order of Dismissal Judge Seitz dismissed this action with prejudice and explicitly "retain[ed] jurisdiction over this matter to enforce the terms of the settlement agreement entered into between the parties." D.E. #103. Therefore, Manriquez is a prevailing party. See American Disability Ass'n, Inc., v. Chmierlarz, — F.3d ___, ___, 2002 WL 820676, *4-*5 (11th Cir. May 1, 2002) (District court's action in "either incorporat[ing] the terms of a settlement agreement into its final order of dismissal or expressly retain[ing] jurisdiction to enforce a settlement . . . clearly establishes a `judicially sanctioned change in the legal relationship of the parties,' as required by Buckhannon [Bd Care Home, Inc. v. W Va. Dep't of Health Human Res., 532 U.S. 598, 121 S.Ct. 1835 (2001)]," which is "sufficient to render [a litigant] a `prevailing party.'").
3. Manriquez's Entitlement to Fees and Costs
Plaintiff Manriquez is entitled to recover fees and costs. In Fair Labor Standards Act suits for unpaid overtime wages, "[t]he 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). Thus, "fee awards [are] mandatory for prevailing plaintiffs." Kreager v. Solomon Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir. 1985); see also, e.g., Shelton v. Ervin, 830 F.2d 182, 184 (11th Cir. 1987) ("Section 216 provides for an award of attorney's fees, as opposed to granting the court discretion in awarding such fees, to the prevailing plaintiff in FLSA cases."); Fed.R.Civ.P. 54(d)(1) ("costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs").
4. Amount of Costs Which Manriquez is Entitled to Recover
"Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs . . . ." Fed.R.Civ.P. 54(d)(l); see E.E.O.C. v. W O, Inc., 213 F.3d 600, 620 (11th Cir. 2000). However, the Court may only tax costs that are authorized by statute. See W O, Inc., 213 F.3d at 620. Absent a contrary, explicit statutory provision, the Court may tax only the following costs:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.28 U.S.C. § 1920; see Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445, 107 S.Ct. 2494, 2499 (1987); W O, Inc., 213 F.3d at 620.
A. Mediation Costs
Manriquez requests reimbursement of $204.75 for mediation costs. Mediation costs are not recoverable pursuant to 28 U.S.C. § 1920. See, e.g., Mota v. University of Texas Houston Health Science Center, 261 F.3d 512, 530 (5th Cir. 2001); Sea Coast Foods, Inc. v. Lu-Mar Lobster and Shrimp, Inc., 260 F.3d 1054, 1061 (9th Cir. 2001); George v. GTE Directories Corp., 114 F. Supp. 2 d 1281, 1300 (M.D. Fla. 2000); McKenzie v. EAP Management Corp., No. 98-6062-Civ-Dimitrouleas, 1999 WL 1427707, *2 (S.D. Fla. Sept. 30, 1999); Royal Palace Hotel Assocs., Inc. v. International Resort Classics, Inc., 178 F.R.D. 595, 602-03 (M.D. Fla. 1998); Essex Home Mortgage Servicing Corp. v. Century Mortgage Co., Inc., No. CIV.A. 92-40171-NMG, 1995 WL 301418 (D. Mass. May 12, 1995); Mannings v. School Bd of Hillsborough County, Fla., No. 58-3554-CIV-T-17A, 1994 WL 361994, *1 (M.D. Fla. 1994).
B. Costs for Expert Review of Fee Motion
Manriquez requests $1,375.00 for "Expert review of fee motion by Stuart Rosenfeldt, Esq[.]" Section 1920 only allows recovery of compensation for "court appointed experts . . . ." 28 U.S.C. § 1920 (6). The Court did not appoint Mr. Rosenfeldt as an expert, and therefore Manriquez may not recover the cost of his services.
Section 1920 also allows recovery of "[f]ees and disbursements for . . . witnesses . . . ." 28 U.S.C. § 1920 (3). However, that provision only allows recovery of fees related to a witness's appearance before a federal court "or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States. . . ." 28 U.S.C. § 1821 (a)(1); see Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 463 (11th Cir. 1996). Manriquez does not seek to recover fees related to Mr. Rosenfeldt's appearance in Court or for his deposition, and therefore Manriquez is not entitled to recover the $1,375.00 that they request. Even if Defendants were entitled to recover fees related to Mr. Rosenfeldt's appearance, those fees would be limited to $40.00 per day. See 28 U.S.C. § 1821 (b) ("A witness shall be paid an attendance fee of $40 per day for each day's attendance."); Crawford Fitting Co., 482 U.S. at 439, 107 S.Ct. at 2496 ("when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary."); Morrison, 97 F.3d at 463.
C. Costs for "Perez, Ardon, Zubizarreta, La Corte"
Manriquez has requested reimbursement of $280.00 for "Perez, Ardon, Zubizarreta, La Corte". He has not, however, made any attempt to identify what that cost relates to, and therefore the Court cannot determine whether the cost is authorized by § 1920.
Plaintiffs listed Ramon Perez and Pedro Orlando La Corte on their trial witness list. Additionally, in other entries on his bill of costs Manriquez requested reimbursement related to "[s]ubpoena service plus witness fee" and "[d]eposition copies" for "Ardon, Zubizarreta, Orlando" and "Ramon Perez". However, the Court cannot determine the purpose of the additional $280.00 for which he seeks reimbursement related to those four witnesses. Accordingly, it is recommended that the Court not reimburse Manriquez for that $280.00.
D. Witness Fee Paid to Manuel Diaz
Manriquez requests reimbursement for a $45.00 witness fee that he paid Manuel Diaz on December 11, 2001. It appears that this fee was for Mr. Diaz's appearance at trial. However, this case did not proceed to trial. Therefore, the fee should never have been paid, and Manriquez is not entitled to recover the fee. Even if the Court allows Manriquez to recover that cost, it should be limited to the statutory witness fee of $40.00. See 28 U.S.C. § 1821 (b).
In an entry dated December 7, 2000, Manriquez seeks reimbursement for a separate witness fee related to Manuel Diaz's deposition.
In fact, Mr. Diaz filed a motion to quash his trial subpoena. See D.E. #99. That motion was mooted by the parties' subsequent settlement of the case.
E. Deposition Costs
Deposition costs are taxable only if they were "necessarily obtained for use in the case." 28 U.S.C. § 1920 (2); see E.E.O.C. v. W O, Inc., 213 F.3d 600, 620-21 (11th Cir. 2000); Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460, 465 (11th Cir. 1996). At the May 8 hearing, Defendants contended that many of the depositions taken do not relate to Manriquez's case, but instead relate only to dismissed Plaintiff Adan Ares's case.
Defendants, however, failed to identify the specific deposition costs that they do not believe are taxable and failed to meet their burden to demonstrate that any of the depositions were not necessarily obtained for use in Manriquez's case. See, e.g., Hudson v. Nabisco Brands, Inc., 758 F.2d 1237, 1242 (7th Cir. 1985) (Holding that there is "a presumption that the prevailing party will receive costs" and the non-prevailing party has the burden to rebut that presumption.), overruled on other grounds, Provident Bank v. Manor Steel Corp., 882 F.2d 258, 261 (7th Cir. 1989); Royal Palace Hotel Assocs., Inc. v. Int'l Resort Classics, Inc., 178 F.R.D. 595, 602 (M.D. Fla. 1998); Daugherty v. Westminster Schools, Inc., 174 F.R.D. 118, 123-24 (ND. Ga. 1997); Smith v. Vaughn, 171 F.R.D. 323, 326 (M.D. Fla. 1997); Helms v. Wal-Mart Stores, Inc., 808 F. Supp. 1568, 1571 (ND. Ga. 1992) ("In addition, since both parties should be aware of the reasons to take a deposition, the non-prevailing party should explain why the court should not grant that cost."), aff'd, 998 F.2d 1023 (11th Cir. 1993) (Table); Desisto College, Inc. v. Town of Howey-In-The-Hills, 718 F. Supp. 906, 910 n. 1 (M.D. Fla. 1989), aff'd, 914 F.2d 267 (11th Cir. 1990) (Table). Therefore, all of the deposition costs that Manriquez requests are taxable.
The Court would be better able to better address Defendants' contention regarding deposition costs if Defendants had complied with Local Rule 7.1.C by filing a written response in which they informed the Court of their specific objections.
F. Other Costs
The other costs that Manriquez seeks to recover are taxable to Defendants. Defendants do not object to those costs, and Manriquez is authorized to recover those costs. See 28 U.S.C. § 1920 (3) (witness fees); § 1920(1) ("Fees of the clerk and marshal"); W O, Inc., 213 F.3d at 624 ("We hold that private process server fees may be taxed pursuant to §§ 1920(1) and 1921.").
In summary, it is recommended that the Court award Manriquez $2,729.27 of the costs that he requests.
5. Amount of Fees Which Manriquez is Entitled to Recover
The Court must use the lodestar method to calculate a reasonable attorneys' fee. See Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). Pursuant to that method, the Court must multiply the number of hours that Manriquez's counsel reasonably worked by the prevailing market rate for his work. See Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544 (1984); Kay v. Apfel, 176 F.3d 1322, 1324 (11th Cir. 1999); id. at 1328 (Fee applicants are "entitled to `the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.'"); Loranger, 10 F.3d at 781. To determine the prevailing market rate and hours reasonably worked, the Court may rely both on testimony from other lawyers, see Duckworth v. Whisenant, 97 F.3d 1393, 1396-97 (11th Cir. 1996); Norman v. Housing Auth. of city of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988), and on its own knowledge and experience, see Kay, 176 F.3d at 1328; Loranger, 10 F.3d at 781.
Manriquez contends that the appropriate lodestar fee is $39.534.77, which represents: $37.479.16 (149.92 hours at $250.00 per hour) for lead counsel J.H. Zidell, $1,290.60 (7.17 hours at $180.00 per hour) for associate Jason Remer; and $765.00 (8.5 hours at $90.00 per hour) for "legal assistant" Anthony Georges-Pierre. Defendants respond that 102 of the 165.59 hours for which Manriquez seeks compensation are not compensable because they related to Plaintiff Adan Ares's case.
As a preliminary matter, Manriquez's expert, Stuart Rosenfeldt, Esq., stated that $35,000.00, as opposed to the $39.534.77 that Manriquez requests, is a reasonable lodestar fee. See Rosenfeldt Aff., ¶ 10. Manriquez has not submitted expert testimony to support the $39.534.77 lodestar fee that he requests.
A. Number of Hours Reasonably Worked
Work Performed by Legal Assistant
Manriquez seeks reimbursement of $765.00 for work that "legal assistant" Anthony Georges-Pierre performed. However, Mr. George-Pierre's time is not compensable because Manriquez has not demonstrated that he performed "work traditionally done by an attorney." Allen v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. Unit B 1982); see also, e.g., Missouri v. Jenkins by Agyei, 491 U.S. 274, 285-86, 109 S.Ct. 2463, 2470 (1989); Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988), aff'd, 496 U.S. 154, 110 S.Ct. 2316 (1990).Clerical Work
Manriquez requests reimbursement for work that his attorneys performed, but which was clerical in nature. For example, he requests compensation for work that his lawyers performed with regards to deposition notices and subpoenas. See, e.g., Miller v. Kenworth of Dothan, Inc., 117 F. Supp.2d 1247, 1261 (M.D. Ala. 2000) ("[T]ime for serving the amended deposition notices . . . is purely clerical, and., therefore, any time billed for service is not compensable."); Cuban Museum of Arts and Culture, Inc. v. City of Miami, 771 F. Supp. 1190, 1192 (S.D. Fla. 1991) ("it may indeed be appropriate for members of an attorney's staff to handle clerical work involving the preparation of subpoenas duces tecum").
Work related to deposition notices and subpoenas could be non-clerical in nature, depending on the circumstances. See, e.g., Cuban Museum of Arts and Culture, 771 F. Supp. at 1192 (Attorney's work in preparing subpoenas duces tecum compensable as non-clerical work because of the "speed, accuracy, and precision required in obtaining . . . documents" to which the subpoena related.). However, Manriquez and his counsel have not met their burden of identifying any circumstances that rendered the work at issue non-clerical.
There is a split of authority regarding whether such clerical work is compensable. Compare, e.g., Walker v. Uniied States Dep't of Housing and Urban Development, 99 F.3d 761, 770 (5th Cir. 1996) ("Clerical work, however, should be compensated at a different rate from legal work."), with, e.g., Surge v. Massanari, 155 F. Supp.2d 1301, 1307 (M.D. Ala. 2001) ("requests for . . . non-compensable clerical tasks [are] inappropriate"). Consistent with the majority of courts within the Eleventh Circuit that have considered this issue, this Court concludes that Manriquez is not entitled to reimbursement for clerical tasks that his counsel performed. See, e.g., Surge, 155 F. Supp. 2 d at 1307; Miller v. Kenworth of Dothan, Inc., 117 F. Supp.2d 1247, 1261 (M.D. Ala. 2000) ("Further, to the extent that Smith has billed time for serving the amended deposition notices, the court finds that this task is purely clerical, and, therefore, any time billed for service is not compensable."); Inman v. Apfel, No. 3:97-CV-1273-J-HTS, 2000 WL 1221858, *2 (M.D. Fla. Jul. 14, 2000) ("Defendant is correct that tasks of a clerical nature are not compensable as attorney's fees."); Smith v. Apfel, No. Civ. A. 99-0306-AH-L, 2000 WL 284260, *3 (S.D. Ala. Mar. 10, 2000); Davis v. Apfel, No. Civ. A. 97-1043-P-M, 2000 WL 204591 (S.D. Ala. 2000) ("Plaintiff has also requested reimbursement for 2.9 hours of clerical work at the hourly rate of $10.00. Even though Defendant has not objected to it, normally the cost of clerical work is a part of doing business and it is built into the hourly rates charged by and awarded to attorneys. Such work is not billed separately to clients and the Court finds that Plaintiff is not entitled to be compensated separately for it other than through the $117.00 hourly attorney fee rate.").
Even if clerical work were compensable, it would not be compensable at a paralegal's rate, let alone the attorneys' rates that Manriquez seeks to recover for that work. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 288, 109 S.Ct. 2463, 2472 (1989) ("Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them."); Norman v. Housing Authority, 836 F.2d 1292, 1306 (11th Cir. 1988) ("[A] fee applicant is not entitled to compensation at an attorney's rate simply because an attorney undertook tasks which were mundane, clerical or which did not require the frill exercise of an attorney's education and judgment."); Walker, 99 F.3d at 770; Johnson v. Apfel, No. CW. A. 00-0086-P-C, 2001 WL 303296, *3 n. 2 (S.D. Ala. Mar. 14, 2001).
Additionally, Manriquez has the burden to prove the prevailing market rate for the clerical work for which seeks compensation. See Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). Manriquez has not even attempted to prove that prevailing market rate, and therefore he would not be entitled to compensation for the clerical work even if such work generally were compensable.
Accordingly, it is recommended that the Court deny Manriquez's request for compensation for the following: item 20 (October 8, 2000 — 20 minutes for "Deposition notice"); item 27 (December 7, 2000 — 20 minutes for "Subpoena Manuel Diaz"); item 46 (February 21, 2001 — 45 minutes for "Subpoenas Ardon, Perez, La Corte, Zubizarreta"); item 47 (February 21, 2001 — 20 minutes for "Notice depositions 4 witnesses"); item 48 (February 21, 2001 — 60 minutes for "Draft Subpoenas 1. La Corte, 2. Ardon, 3. Perez, 4. Zubizaretta"); item 67 (March 9, 2001 — 20 minutes by Jason Remer for "Deposition notice"); item 68 (March 9, 2001 — 20 minutes by Jason Remer for "Subpoena Barry Brandt CPA"); and item 111 (December 11, 2001 — 20 minutes for "Subpoena Manuel Diaz for trial").
Unless otherwise noted, all time entries relate to work that lead counsel J.H. Zidell performed.
Additionally, items 103 and 110 appear to include work that was both clerical and nonclerical in nature. See item 103 (December 3, 2001 — 240 minutes for "Begin assembly of trial notebooks as per court Order, doc. List and label docs. to take to printer"); item 110 (December 11, 2001 — 480 minutes; for "Revise trial notebooks after court's summary Judgement order Revise trial stipulation speak to Harry Turk, Esquire Joint jury instructions discussions Prepare for pre-trial conference on December 12, 2001 damage calc."). Manriquez has not demonstrated that the tasks that his counsel performed in assembling a trial notebook and in listing and labeling documents to take to a printer were non-clerical. Additionally, because Manriquez has not separated the clerical and non-clerical tasks, it is impossible to determine how much of the time in those entries is compensable. Therefore, it is recommended that the Court deny in its entirety Manriquez's request contained in item 103, and reduce by fifty percent Manriquez's request contained in item 110 to account for the clerical tasks contained in those requests.
As discussed infra, it is recommended that item 110 be reduced by an additional fifty percent to account for the time that was related to Plaintiff Adan Ares's claims.
Work Related to Unsuccessful Issue
Manriquez is not entitled to compensation for work that his lawyers "spent on discrete and unsuccessful claims." Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988). Plaintiffs attempted to create a class action through the issuance of opt-in notices, and the Court denied Plaintiffs' Motion to Issue Opt-In Notices, see February 2, 2001, Order (D.E. 327), and Plaintiffs' Renewed Motion to Issue Opt-In Notices, see November 21, 2001, Order (D.E. #84). Therefore, Manriquez should not recover from Defendants fees for time that his counsel devoted to that issue. Accordingly, the following time entries are not compensable: item 16 (September 14, 2000 — 150 minutes); item 19 (October 2, 2000 — 60 minutes); item 21 (October 13, 2000 — 30 minutes by Jason Remer); item 22 (October 20, 2000 — 30 minutes); item 23 (October 24, 2000 — 20 minutes); item 35 (January 29, 2001 — IS minutes); item 83 (May 2, 2001 — 20 minutes); item 84 (May 2, 2001 — 300 minutes); and item 86 (July 24, 2001 — 150 minutes).Excessive. Redundant, or Otherwise Unnecessary Hours
Manriquez may not recover fees related to excessive, redundant, or unnecessary hours that his lawyers worked. See Columbus Mills, Inc. v. Freeland, 918 F.2d 1575, 1580 (11th Cir. 1990). In items 94 through; 101, Manriquez seeks reimbursement for twenty-three hours and fifteen minutes that his attorneys devoted in large part to preparation of the Joint Pre-Trial Stipulation (D.E. #79). The Court concludes that fifteen hours of that time was reasonable and necessary, and the remaining eight hours and fifteen minutes was excessive, redundant, or unnecessary.
Item 94 also includes time spent reviewing Defendants' documents and exhibits, and item 96 includes time spent working on jury instructions and the verdict form. Because Manriquez failed to identify how much time was spent on each of those tasks, it is difficult to determine how much time was devoted solely to preparation of the Joint Pre-Trial Stipulation, and how much time is compensable.
In items 73, 81, 82, and 88 through 92, Manriquez seeks reimbursement for forty-one hours and forty minutes of time that his lawyers devoted to the parties' summary judgment motions. In item 90, Manriquez's counsel claims to have spent six hours on August 2, 2001, preparing a reply memorandum in support of his summary judgment motion. However, the reply memorandum was filed on July 27, 2001 (D.E. #71), six days before he allegedly spent those six hours working on that memorandum. Additionally, the reply was combined with a response to Defendants' summary judgment motion, and Manriquez's counsel seeks compensation for an additional twelve and one-half hours related to that combined response and reply memorandum. See items 88, 89. Eighteen and one-half hours is an excessive amount of time to have worked on that memorandum. Therefore, Manriquez is not entitled to compensation for the six hours that his counsel referred to in item 90.
Work That Related to Adan Ares's Claims
Manriquez may not receive compensation for work that his lawyers performed in relation to unsuccessful Plaintiff Adan Ares, unless that work was intertwined with work that they had to perform in relation to Manriquez's claims. See Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988); King v. McCord, 707 F.2d 466, 467-68 (11th Cir. 1983) ("The claims on which plaintiff did not prevail were not sufficiently intertwined with the successful claim as to require compensation."). Additionally, Manriquez has the burden "to provide sufficient evidence for the court to make a correct division[,]" King, 707 F.2d at 468, or to demonstrate that the claims are so intertwined that such a division cannot be made.
In item 33 (January 19, 2001 — 90 minutes) Manriquez seeks compensation for work that related only to Plaintiff Adan Ares. He may not recover from Defendants for that work.
Additionally, in items 1 (April 24, 2000 — 120 minutes), 41 (February 19, 2001 — 210 minutes), and 43 (February 20, 2001 — 300 minutes by Jason Remer) Manriquez seeks compensation for interviewing both clients, preparing both clients for depositions, meeting both clients, and attending both clients' depositions. Manriquez is only entitled to recover half of those amounts.
In all other entries, Manriquez has not even attempted to meet his burden of separating the work that his counsel performed on his behalf from work that they performed on behalf of Adan Ares. In light of the absence of such evidence, the Court concludes that half of all except one of the remaining entries related to work performed on behalf of Ares, not on behalf of Manriquez. Therefore, it is recommended that the Court reduce by an additional fifty percent Manriquez's recovery related to all of those entries. See Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988) ("If the result was partial or limited success, then the lodestar must be reduced to an amount that is not excessive. . . . In doing so, the court may attempt to identify specific hours spent in unsuccessful claims or it may simply reduce the award by some proportion.").
The exception is item 114, which related to preparation of the Motion for Attorneys' Fees. See Jonas v. Stack, 758 F.2d 567, 568 (11th Cir. 1985) ("a prevailing party's counsel is entitled to reasonable compensation when he litigates his own claim for entitlement to § 1988 fees").
Summary of Comvensable Hours
In summary, J.H. Zidell reasonably expended 58 hours and 10 minutes on Plaintiff Manriquez's successful claims, and Jason Remer reasonably expended 3 hours on those claims.
B. 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.'" American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999) (quoting Cullens v. Georgia Dep't of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994)). The Court agrees with Manriquez that the market rate for J.H. Zidell's services is $250.00 per hour, and the market rate for Jason Remer's services is $180.00 per hour. Cf, e.g., Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996) (awarding $275.00 per hour), aff'd, 109 F.3d 771 (11th Cir. 1997) (Table); Cuban Museum of Arts and Culture, Inc. v. City of Miami, 771 F. Supp. 1190 (S.D. Fla. 1991) (awarding $275.00 per hour and $175.00 per hour for two lawyers).
C. Calculation of Lodestar
The lodestar for J.H. Zidell's services is $14,583.33 (58 hours, 10 minutes times $250 per hour), and the lodestar for Jason Remer's services is $540.00 (3 hours times $180 per hour). Thus, the total lodestaris $15,123.33. See Kay V. Apfel, 176 F.3d 1322, 1328 (11th Cir. 1999).
D. Attorneys' Fee Enhancement
Manriquez contends that the Court should adjust the loadstar figure upward by a factor of 2.0 because of the exceptional result, the high degree of risk, the contingency nature of the representation, the small number of local attorneys who are qualified and willing to assume representation in FLSA cases, the novelty and difficulty of the questions presented, and the potential for protracted litigation. Defendants respond that an upward adjustment is not warranted.
"Although upward adjustments of the lodestar figure are . . . permissible," there is "[a] strong presumption that the lodestar figure . . . represents a `reasonable' fee . . . ." Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098 (1986), supplemented, 483 U.S. 711, 107 S.Ct. 3078 (1987). Therefore, such upward adjustments "are proper only in certain `rare' and `exceptional' cases, supported by both `specific evidence' on the record and detailed findings. . . ." Id. Additionally, "[t]he burden of proving that such an adjustment is necessary to the determination of a reasonable fee is on the fee applicant." Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 1548 (1984); see also, e.g., Gary v. Health Care Servs., Inc., 744 F. Supp. 277, 279 (M.D. Ga. 1990), aff'd, 940 F.2d 673 (11th Cir. 1991) (Table).
The Court "may adjust the loadstar upward or downward to reflect a number of different factors," Kay, 176 F.3d at 1327, including:
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill required 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 attorney;
(10) the undesirability of the case;
(11) the nature and length of the professional relationship with the client; and
(12) awards in similar cases.
See id.; Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Taking into consideration the Johnson factors, particularly those that Manriquez cited in support of his request for an enhancement and which are discussed below, the Court concludes that the lodestar figure should not be adjusted upward.
Decisions rendered by the Fifth Circuit prior to October 1, 1981, are binding on federal courts in the Eleventh Circuit. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). In Johnson, the former Fifth Circuit "mandated twelve factors that district courts should balance in fashioning fee awards. Although its balancing test has since been displaced by the lodestar formula, [the Eleventh Circuit] ha[s] expressed [its] approval of district courts considering the Johnson factors in establishing a reasonable hourly rate." Loranger v. Stierheim, 10 F.3d 776, 781 n. 6 (11th Cir. 1994).
Result Achieved
The degree of success is an important factor to consider in determining the appropriate fee award. See Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943 (1983). However, even complete success does not mandate a fee enhancement. See Jones v. Central Soya Co., Inc., 748 F.2d 586, 590-91 (11th Cir. 1984) ("[T]he Supreme Court has never suggested that complete victory alone requires an enhanced award. Indeed, the Court specifically distinguished "excellent' results from `exceptional' results and instructed that only the latter could justify an increased grant of attorney's fees. . . . Winning on all claims does not seem to us to be so unusual that it must be deemed `exceptional.'").
Manriquez's counsel obtained excellent results on Manriquez's behalf However, Manriquez has not demonstrated that the results were so "exceptional" or "rare" as to warrant an enhancement of the fee award. See Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 3098 (1986), supplemented, 483 U.S. 711, 107 S.Ct. 3078 (1987).
Contingent Nature of the Representation
Manriquez and his counsel had a contingent-fee arrangement. Courts generally "may adjust the lodestar figure upward or downward to reflect a number of different factors, including the existence of a contingency fee arrangement." Kay v. Apfel, 176 F.3d 1322, 1327 (11th Cir. 1999). However, "enhancement for contingency is not permitted under federal fee-shifting statutes" such as the FLSA. McKenzie v. Cooper, Levins Pastko, Inc., 990 F.2d 1183, 1186 (11th Cir. 1993). Even if the Court could enhance Manriquez's counsel's fee based on the contingent-fee arrangement, the other relevant factors dictate against such an enhancement.
Number of Local Attornevs who are Qualified and Willing to Assume Revresentation in FLSA Cases
Manriquez's expert, Stuart A. Rosenfeldt, Esq., stated that he believed that Plaintiffs "would have had an extremely difficult time hiring counsel other than Mr. Zidell to handle this FLSA matter in light of the relatively small amount involved as well as the other legal and factual issues which were presented, including the agricultural exemption issue." Rosenfeldt Aff., ¶ 12. Mr. Rosenfeldt also stated that he is familiar with only approximately ten lawyers in South Florida who accept plaintiffs' FLSA cases. Id.
In light of the fee-shifting provision that makes recovery of attorneys' fees mandatory for a prevailing plaintiff; the Court disagrees with Mr. Rosenfeldt's assessment that the "relatively small amount involved" would have deterred attorneys from representing Manriquez in this action. The Court also concludes that the legal issues related to Manriquez would not have deterred a significant number of otherwise qualified lawyers from accepting his case. Finally, the Court does not believe that the number of attorneys in South Florida who accept FLSA cases on behalf of plaintiffs is so small as to warrant an enhancement of the lodestar.
Novelty and Difficulty of the Questions Presented
The main, disputed issues related to Manriquez's claims were whether Defendant Diaz Landscaping is an employer to whom the agricultural exemption applies, and whether Manriquez is an agricultural employee to whom that exemption applies. Those issues are common in FLSA cases, and the Court does not find them to be so novel or difficult as to warrant an enhancement of the lodestar. Degree of Risk and Potential for Protracted Litigation
In fact, Judge Seitz's analysis of those issues comprised only four to four and one-half pages. See Order on Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment (D.R. #91), at 4-9.
Contrary to Manriquez's counsel's contention, the Court concludes that although there was some risk involved with Manriquez's claim, that risk was not so significant as to warrant an enhancement of the lodestar. Additionally, the potential for protracted litigation was not great. After Judge Seitz ruled on the summary judgment motions, the only remaining issues were whether Manriquez worked in excess of forty hours in any week (or weeks), how much time in excess of forty weekly hours he worked, his hourly rate of pay, and whether Defendants' violation of the ELSA was willful. See Joint Pre-Trial Stipulation (D.E. #79), at 4-6.
RECOMMENDATION
For the foregoing reasons, it is RESPECTFULLY RECOMMENDED that the Court GRANT in part and DENY in part Plaintiff's Verified Motion for Attorney Fees and to Tax Costs (DE. #108), and DENY Plaintiff's Motion for Attorney Fee Enhancement (DE. #107). It is recommended that the Court award Plaintiff Simeon Manriquez $15,123.33 in attorneys' fees and $2,729.27 in costs.
The parties have ten (10) days from the date of this Report and Recommendation to file written objections, if any, with the Honorable Patricia A. Seitz, United States District Judge. See 28 U.S.C. § 636. Failure to file timely objections may bar the parties from attacking on appeal the factual findings contained herein. See LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988).