Jose GALVEZ et al., plaintiff,
Jose CUEVAS and Westport Stucco of Florida, Inc., defendants.

2009 WL 1024632 (S.D.Fla 2009)

DANIEL T.K. HURLEY, District Judge.

THIS CAUSE is before the court upon plaintiff's motion for attorneys' fees and costs [DE# 49, 50] which was previously referred to Magistrate Judge James Hopkins for a report and recommendation [DE# 51]. On March 11, 2009, Magistrate Judge Hopkins filed his report and recommendation upon the motion, to which neither side has filed any objection.

Having carefully reviewed the report, and finding the recommendation of Judge Hopkins to be sound and well reasoned, it is ORDERED AND ADJUDGED:

1. The Report & Recommendation of Magistrate Judge Hopkins [DE# 54] is APPROVED and ADOPTED in full.

2. The plaintiff's motion for attorneys' fees and costs [DE# 49, 50] is GRANTED in PART and DENIED in PART, with $23,500 awarded in attorneys' fees and $483.74 awarded for total litigation expenses, as recommended by Magistrate Judge Hopkins.

3. The plaintiffs, JOSE GALVEZ, CARLOS AGUILAR, FERNANDO CANO, NOEL CARDENAS and JOSE MARTIN SALINAS, shall take and recover attorneys fees and costs against the defendants, JOSE CUEVAS and WESTPORT STUCCO OF FLORIDA, INC. jointly and severally, in the TOTAL AMOUNT of $23,983,74, for which let execution issue.

4. Post-judgment interest shall accrue on such sum at the rate prescribed by 28 U.S.C. § 1961 from the date of entry of this judgment until fully satisfied.

DONE and SIGNED in Chambers at West Palm Beach, Florida this 14th day of April, 2009.


JAMES M. HOPKINS, United States Magistrate Judge.

THIS MATTER has come before this Court upon an Order Referring Plaintiffs' Motions for Attorney's Fees and Costs to the undersigned United States Magistrate Judge for a Report and Recommendation. (DE 51). With no response to Plaintiffs' motions having been filed by Defendant Cuevas, and the time for serving such response having elapsed, the matter is now ripe for review. For the reasons that follow, this Court RECOMMENDS that the District Court GRANT IN PART AND DENY IN PART Plaintiffs' motions.


In this action brought under the Fair Labor Standards Act (FLSA), the five named Plaintiffs contend that Defendants unlawfully and willfully failed to pay them minimum wage and overtime wages. (DE 1). After negotiations, Plaintiffs entered into a settlement agreement with Defendant Westport Stucco of Florida, Inc. (“Westport”) and on October 6, 2008, the District Court approved the settlement, whereby Westport would pay $2,000.00 to Plaintiffs. The District Court entered an Order of Dismissal as to Westport only. (DE 43). Thereafter, Plaintiffs sought the entry of default and a default judgment against Defendant Cuevas, who never appeared in the action. (DE 45). On December 8, 2008, the District Court entered a default judgment against Defendant Cuevas in the amount of $24,345.00, plus interest. (DE 48). This amount reflected Plaintiffs' recovery of the $2,000.00 settlement from Westport. (DE 45). The District Court retained jurisdiction to entertain Plaintiffs' motion for fees and costs. (DE 48).

On December 17, 2008, Plaintiff filed the instant motions, seeking $34,650.00 in attorney's fees and $828.74 in taxable costs. (DE 49, 50). As noted above, Defendant Cuevas has not responded to Plaintiffs' motions or this Court's Order to Show Cause.


I. Defendant's Failure to Respond to Plaintiffs' Motions

Because Defendant Cuevas failed to respond to Plaintiffs' motions within the allotted time, Plaintiffs are entitled to have their motions granted by default alone. ... However, courts are not permitted to be generous with the money of others. See American Civil Liberties Union v. Barnes, 168 F.3d 423, 428 (11th Cir.1999). As the Eleventh Circuit has noted, it is as much the court's duty to avoid awarding excessive fees and expenses as it is to see that an adequate fee is awarded. See Barnes, 168 F.3d at 428. Accordingly, this Court will address the merits of the instant motions.

II. Plaintiffs' Motion for Attorney's Fees

Plaintiffs seek to recover a total of $34,650.00 in attorney's fees. Plaintiffs rely on the billing records of their attorney, Paul Bennett Sopp, Esq., who performed all the work in this case. (DE 49, Exhibit A). In support of the fees sought, Plaintiffs have submitted an expert affidavit of Mr. Leonel R. Plasencia, Esq. (“Plasencia”). (DE 49).

It is well settled that the FLSA requires courts to award costs and reasonable attorney's fees to a prevailing plaintiff. See 29 U.S.C. § 216(b). In addition, the entry of a default judgment against a defendant renders a plaintiff the prevailing party. See Simon v. Leaderscape, LLC, 565 F.Supp.2d 1332, 1334 (S.D.Fla.2008) (where a default judgment was entered against all defendants in FLSA action, court deemed plaintiff to be the prevailing party entitled to attorney's fees and costs). Thus, Plaintiffs are entitled to recover their reasonable attorney's fees and costs from the defaulting Defendant Cuevas.


A. Calculation of the Attorney's Fee Award

A reasonable attorney's fee award is “properly calculated by multiplying the number of hours reasonably expended times a reasonable hourly rate.” Barnes, 168 F.3d at 427 (citing Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1994)). This “lodestar” may then be adjusted for the results obtained. See Barnes, 168 F.3d at 427 (citing Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.1994)). The reasonable hourly rate is defined as the “prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Barnes, 168 F.3d at 436 (quoting Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1999)). The fee applicant bears the burden of establishing the claimed market rate. See Barnes, 168 F.3d at 427.

As to the type of evidence that the fee claimant should produce in support of a fee claim, in Barnes, the Eleventh Circuit stated,

The “fee applicant bears the burden of establishing entitlement and documenting the appropriate hours and hourly rates.” Norman, 836 F.2d at 1303. That burden includes “supplying the court with specific and detailed evidence from which the court can determine the reasonable hourly rate. Further, fee counsel should have maintained records to show the time spent on the different claims, and the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activity ... A well-prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or stage of the case.” Id. (citations omitted ).168 F.3d at 427.

In submitting a request for attorney's fees, fee applicants are required to exercise “billing judgment.” Barnes, 168 F.3d at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). If fee applicants do not exercise billing judgment by excluding “excessive, redundant, or otherwise unnecessary” hours, which are hours “that would be unreasonable to bill to a client and therefore to one's adversary irrespective of the skill, reputation or experience of counsel,” the court must exercise billing judgment for them. See Barnes, 168 F.3d at 428 (quoting Norman, 836 F.2d at 1301 ( emphasis in original )).

B. Hourly Rates for Attorney Sopp

Here, all of the hours for Plaintiffs' legal work were billed by Attorney Paul Bennett Sopp, whose claimed hourly rate is $250.00. See Declaration of Paul B. Sopp, Esq. at ¶ 6 (DE 49). According to Mr. Sopp, he has been practicing law for ten years, with a concentration in the area of employment law. Id. at ¶ 6-7. Mr. Sopp has represented many plaintiffs in wage and overtime lawsuits, including collective actions. Id. Plaintiffs have submitted the expert affidavit of Mr. Leonel R. Plasencia, Esq., a litigation attorney who has practiced in this area for twenty-one years. Mr. Plasencia states that the hourly rate charged by Mr. Sopp is “well within the prevailing market rate” for this legal services in this area “by lawyers of reasonabl[y] comparable skills, expertise and reputation.” See Plasencia Declaration at ¶ 7-8 (DE 49).

Having reviewed the qualifications and experience of Mr. Sopp, and noting that Defendant Cuevas has failed to lodge any specific objection to the claimed hourly rate, this Court RECOMMENDS that the District Court find Mr. Sopp's claimed hourly rate of $250.00 to be reasonable. See CC-Aventura, Inc. v. Weitz Co., LLC, 2008 WL 276057 at 2 (S.D.Fla. Jan.31, 2008) (court found $200 was reasonable hourly rate for new attorney and $400 was reasonable for senior associate); DiFrancesco v. Home Furniture Liquidators, Inc., 2008 WL 54401 4 (S.D.Fla. Jan.2, 2008) (court found $250 to be reasonable hourly rate based on counsel's reputation and experience in the area of FLSA litigation).

C. Number of Hours Reasonably Expended

The party seeking attorney's fees must produce “meticulous, contemporaneous time records that reveal for each lawyer whose fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks.” Simon v. Leaderscape, LLC, 565 F.Supp.2d 1332, 1335 (S.D.Fla.2008).

Here, Plaintiffs' counsel billed a total of 139 hours in this matter. (DE 49, Exhibit A). Having reviewed the billing records submitted by Plaintiffs, it appears that Mr. Sopp improperly included costs such as postage, copies, fees for court filings, interpreters and process servers in with his attorney's fees. The Court has deducted these costs from Mr. Sopp's billing records and will address them separately. With regard to the time spent on this case by Mr. Sopp, this Court concludes that many of the billing entries are not sufficiently delineated and that the hours are excessive and, in some instances, duplicative.

At the outset, the Court finds that Mr. Sopp failed to sufficiently break down the time he spent on this case, in that there are many entries in his billing records where he lumped together time spent on assorted tasks. When confronted with billing records compiled in this manner, the Court has “no way to determine whether the amount of time expended for each listed service was reasonable” and “cannot determine the amount of duplication.” Rappaport v. State Farm Lloyds, 2000 WL 1102463 2 (N.D.Tex. Aug.3, 2000) (where attorney did not provide specific breakdown of hours spent on discrete tasks, court reduced fees by twenty percent). See also Hashem-Younes v. Danou Enterprises, Inc., 2008 WL 786759 6 (E.D.Mich. March 20, 2008) (in an application for attorney's fees “[e]ach activity should correspond to the date(s) involved and the number of hours spent on that specific activity”).

Moreover, the hours billed are excessive and duplicative. For example, Mr. Sopp billed over eleven hours to meet with his five clients during the initial stages of the case. Additionally, Mr. Sopp spent an excessive amount of time -- approximately ten hours -- preparing and finalizing a pro forma FLSA complaint and Plaintiffs' notice of consent to join the lawsuit. The Court further finds that Mr. Sopp billed an exorbitant amount of time with regard to scheduling deposition dates. Indeed, between July 8, 2008 and August 25, 2008, there are numerous entries indicating that Mr. Sopp spent approximately 5.5 hours simply noticing and scheduling depositions. Likewise, Mr. Sopp spent over thirteen hours responding to discovery demands and nearly as long to prepare a motion for entry of a default judgment against Defendant Cuevas. Based on these and other entries, the Court finds that overall, the time Mr. Sopp claims he spent on this case is too much in light of his experience with FLSA matters. Dowling v. Kucker Kraus & Bruh, LLP, 2005 WL 1337442 (S.D.N.Y. June 6, 2005) (court reduced attorney's time in light of his experience in the area).

Mr. Sopp also improperly includes clerical and administrative tasks in his billable hours such as the setting up the file, filing documents, calendaring dates, arranging a court reporter, etc. See Hershkovitz v. Innovative Const. & Design, Inc., 2008 WL 824222, *2 (M.D.Fla. March 25, 2008) (clerical work is “not properly chargeable” as an attorney's fee in FLSA case). Thus, time spent on these activities must be deducted.

Based on the foregoing, this Court RECOMMENDS that the District Court reduce Mr. Sopp's time by 45 hours. Under this recommended reduction, the total reimbursable attorney's fees would be for 94 hours at an hourly rate of $250.00 for a total of $23,500.00. (DE 49).