MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, United States District Judge.
This case arises under the Fair Labor Standards Act ("FLSA"). The Court approved the settlement of Plaintiffs' underlying FLSA overtime and willfulness claims on October 26, 2016. (Doc. 93). Still remaining for the Court to resolve are Plaintiffs' Motion for Attorneys' Fees and Expenses (doc. 96) (the "Fee Motion") and Defendants' Motion To Strike (doc. 102) (the "Strike Motion"). The parties have filed their supporting and opposing materials. (Docs. 97-98, 101, 104). For the reasons stated below, the Fee Motion is
II. Plaintiffs' Fee Motion
Fee Motion Background
Plaintiffs Philip Jason Parker, Carolyn England, Buffy R. Dulaney, William D. McGee, Maisie Slaughter, and Carrie Hannah Borden (the "Named Plaintiffs") initiated this action against Defendants on November 20, 2014. (Doc. 1). On December 30, 2014, the Named Plaintiffs filed an Amended Collective Action Complaint (doc. 9) that asserted overtime as well as uncompensated-time violations of the FLSA. (See generally id.). The Named Plaintiffs further alleged that Defendants engaged in retaliatory conduct against them and that their FLSA violations were willful. Id.
On May 6, 2015, the Court granted the Named Plaintiffs' Motion for Conditional Certification. (Doc. 37). Over the course of the litigation, an additional 27 Plaintiffs consented to joining the case and, at the highest level, counsel were representing a total of 33 Plaintiffs. On October 20, 2015, the parties engaged in mediation, but were unsuccessful in reaching a resolution of the litigation at that time. (Doc. 68).
Subsequently, however, the parties reached a good-faith compromise and presented it to the Court. As set out in the Order Approving FLSA Settlement, judgment was entered in favor of Plaintiffs "in the amount of $208,328.50, plus reasonable attorneys' fees and expenses in an amount to be determined by the Court...." (Doc. 93 at 2). Under the terms of the parties' settlement, this payment to Plaintiffs represents "full relief of recorded unpaid overtime compensation and liquidated
In their Fee Motion, Plaintiffs are seeking $344,501.81 in attorneys' fees (doc. 96 at 4 ¶ 9) and $15,498.19 in expenses (id. ¶ 8) for a total amount of $360,000.00. (Doc. 96 at 5 ¶ 11). "[T]he starting point in any determination for an objective estimate of the value of a lawyer's services is to multiply hours reasonably expended by a reasonable hourly rate. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988).
Norman, 836 F.2d at 1299 (emphasis added).
(Doc. 96-1 at 7-10 ¶¶ 9-13).
The hours claimed by Plaintiffs are:
In arriving at their requested total award (i.e., fees plus expenses) of $360,000.00, Plaintiffs explain:
(Doc. 96-1 at 13 ¶ 19 (emphasis omitted)).
Defendants dispute the reasonableness of Plaintiffs' suggested rates and claimed hours that comprise Plaintiffs' reduced fee amount of $344,501.81. (Doc. 97 at 5).
In accordance with the attached revisions — and for the following reasons — the Court will award Plaintiffs $360,000.00 in reasonable attorneys' fees and expenses.
Reasonableness of Hourly Rates
Mr. Calamusa's affidavit offered in support of his hourly rate substantiates that he was admitted to the Alabama State Bar in 1993 and that he has over 20 years experience as a litigator primarily "in the fields of discrimination, wage and hour, and civil rights." (Doc. 96-1 at 3 ¶ 3). Mr. Calamusa's affidavit further confirms that Mr. Jent was admitted to practice law in 1996 and that he has "more than 20 years experience in employment related matters." (Id. at 96-1 at 7 ¶ 11). Mr. Calamusa's affidavit also includes evidence of the
Ms. Evans's affidavit offered in support of her rate substantiates that she was admitted to the Alabama State Bar in 1998 and that she has over 15 years experience as a litigator in "the areas of [FLSA], securities, arbitration/litigation, employment discrimination litigation, complex litigation, and corporate/business litigation." (Doc. 96-2 at 3 ¶ 2).
In opposing Plaintiffs' suggested hourly rates, Defendants contend that the appropriate legal market for determining reasonable rates is the Decatur/Morgan County market (because this is a Northeastern Division case) and not the rates applicable in the Birmingham/Southern Division market which Defendants maintain are significantly higher. In setting the attorney hourly rate between $225 and $275, Defendants rely upon the affidavit of Barnes F. Lovelace, Jr. ("Mr. Lovelace"). (Doc. 97 at 8); (see also Doc. 98-1 at 2-4 (attaching Mr. Lovelace's hourly rate affidavit)).
Mr. Lovelace has been licensed as an attorney in Alabama since 1983 and currently practices in Decatur, Morgan County, Alabama. (Doc. 98-1 at 2 ¶ 2; id. at 3 ¶ 3).
Relying upon the affidavit of David J. Canupp ("Mr. Canupp"), a defense attorney in this case, Defendants request a reduction to $100.00 per hour for all paralegal time. (Doc. 97 at 9); (see also Doc. 98-2 at 3 ¶ 4 ("Rates for paralegals in the northern part of Alabama typically vary from around $75.00 to $100.00 per hour."); id. ("Based on my familiarity with the rates commonly charged in the Northeastern Division of the Northern District of Alabama, I am of the opinion that $100 per hour represents a normal and customary rate for an experienced paralegal.")). Mr. Canupp's affidavit does not refer to any specific cases in which a court has determined that the paralegal rate in the Northeastern Division is consistent with his opinion.
The thrust of Defendants' contention is that even though Plaintiffs retained Birmingham counsel to represent them, using Birmingham, Southern Division, or District-wide rates is, nevertheless, unreasonable. Instead, Defendants contend that the prevailing market rate should be tied to the Morgan County and/or Northeastern Division area which they assert are substantially lower.
In Cullens v. Ga. Dep't of Transp., 29 F.3d 1489 (11th Cir. 1994), the Eleventh Circuit rejected the plaintiffs' argument that the hourly rate should be tied to the market where the lawyers primarily practiced rather than the place where the case was filed. As the Cullens court explained:
Cullens, 29 F.3d at 1494 (emphasis added).
In their reply, Plaintiffs have countered Defendants' Morgan County/Northeastern Division rate evidence by offering affidavits from two Huntsville attorneys, John Wilmer ("Mr. Wilmer") and Rebekah McKinney ("Ms. McKinney"). (Doc. 101 at 3); (see also Doc. 101-1 at 2-6 ¶¶ 1-9 (attaching Mr. Wilmer's hourly rate affidavit));
The Court, consistent with Cullens and Frazier, agrees with Plaintiffs that an exception can sometimes apply. However, here, the Court finds that Plaintiffs have not met their burden of showing a lack of Northeastern Division lawyers who were willing or able to handle wage and hour cases on a collective basis. First, the opinions offered by Mr. Wilmer and Ms. McKinney are speculative and vaguely worded — indicating that
Based upon his experience practicing law since 1975, Mr. Wilmer opines that "a reasonable rate for defendant's counsel in the Northern District of Alabama for attorneys practicing exclusively in labor and employment law for more than ten (10) years ranges between $300 and $375 per hour" and that attorneys "practicing labor and employment law in Decatur and Morgan County charge the same rates as others practicing in the Northern District of Alabama." (Doc. 101-1 at 4 ¶ 6). Therefore, unlike the opinion offered by Mr. Lovelace, Mr. Wilmer indicates that he has not found an appreciable difference between the prevailing market rate for Decatur/Morgan County and other parts of the Northern District of Alabama with respect to the area of labor and employment law.
Mr. Wilmer further states that "due to the risks involved in taking contingency labor and employment cases, a reasonable rate would be at least $50 higher on both ends of the defendants' range." (Doc. 101-1 at 4 ¶ 7). Therefore, Mr. Wilmer's estimated hourly range for attorneys representing plaintiffs in FLSA collective actions (when factoring in that risk component) runs from $350 to $425 per hour. Mr. Wilmer does not cite to any Northeastern Division cases to substantiate either one of his estimated ranges, and he does not differentiate which rates correspond to which levels of experience. Although Mr. Wilmer opines that rates in the Decatur/Morgan County market are no different than the rest of the Northern District of Alabama, his estimated figures fall slightly below Plaintiffs' higher requested range of $400 to $450 (that draws upon rates reported in Birmingham/Southern Division cases and/or rates that did not account for any division-related disputes or differences in the hourly rate).
Ultimately, the Court has relied on its own expertise in order to reach the appropriate hourly rate for Plaintiffs' counsel who all have greater than 10 years of legal experience. See Norman, 836 F.2d at 1303 (recognizing that a court "is itself an expert on the question and
With these considerations in mind, the Court finds that $375.00 is a reasonable hourly rate for all counsel of record — Messrs. Calamusa, Jent, Slate, and Ms. Evans — as it is in accordance with the prevailing Decatur/Huntsville or Northeastern Division range of rates (that in the undersigned's experience is typically somewhat lower than Birmingham or Southern Division rates, regardless of the practice area) for similar services by lawyers of reasonably comparable skills, experience, and reputation. In particular, all these lawyers have over 10 years in experience and are very close to each other in terms of their total years spent in practice (i.e., ranging from 18 to 23 years). Also, the record does not reflect significant reputational (or other) evidence that supports an adjustment of this rate for any particular lawyer. Further, this hourly rate is within both ranges (i.e., with or without the $50 per hour risk enhancement for representing plaintiffs in contingency cases) sworn to by Mr. Wilmer — one of Plaintiffs' rebuttal experts. Cf. Maner, 602 Fed.Appx. at 494 ("[T]he district court did not clearly err in setting lead counsel's rate at his normal billing rate of $385 and in the middle of the expert's range.").
As for paralegal time, the Court rejects Plaintiffs' proposed rates in part and Defendants'
Reasonableness of Hours Expended
Concerning the hours claimed by Plaintiffs, Defendants argue that Plaintiffs' lack of success on certain claims and block billing warrant an across-the-board reduction of 25%. (Doc. 97 at 15); (see id. ("Because plaintiffs' counsel engaged in the practice of block billing,
The Court also rejects Defendants' contention that a reduction is warranted because 7 Plaintiffs elected to dismiss their claims during the course of the litigation. In particular, the Court finds that any discovery-related time attributable to these 7 Plaintiffs is negligible. As Plaintiffs point out "[t]he dismissal of these seven Plaintiffs did not affect the amount of work done by Plaintiffs' counsel in answering discovery and propounding discovery to the defendants. These dismissed Plaintiffs did not answer their discovery and were already gone from the case by the time depositions took place." (Doc. 101 at 7). Further, in light of the above determinations, Defendants' request for a percentage-based decrease because of an inability to separate out time spent on unsuccessful claims and unnecessary discovery caused by alleged block billing is not warranted.
As a general matter, courts in the Eleventh Circuit determine the reasonable hours expended by performing "a task-by-task examination of the hours billed." ACLU of Ga. v. Barnes, 168 F.3d 423, 429 (11th Cir. 1999) (citing Loranger v. Stierheim, 10 F.3d at 782-83). The Court did so in this case. In total, Plaintiffs have submitted time records reflecting 1057.55
As noted above, Plaintiffs have the burden of establishing the reasonableness of the hours spent on their case. Norman, 836 F.2d at 1303. Indeed, "fee counsel should [maintain] 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." Id. (citing Hensley, 461 U.S. at 437 n.12, 103 S.Ct. at 1941 n.12). "[W]here that party presents inadequate documentation the court may determine a reasonable award based on its own experience." Villano v. City of Boynton Beach, 254 F.3d 1302, 1311 (11th Cir. 2001) (citing Mills by Mills v. Freeman, 118 F.3d 727, 734 (11th Cir. 1997), superseded on other grounds by Eleventh Circuit appellate rule as stated in Gray ex rel. Alexander v. Bostic, 570 F.3d 1321, 1327 n.2 (11th Cir. 2009)).
With these principles in mind, the Court concludes that Plaintiffs' counsel reasonably expended a total of 957.30 hours in litigating this case — a reduction of 99.85 hours or roughly 10% less than the 1057.55 in hours claimed by Plaintiffs as reasonable. Put more specifically, the Court allots that revised total number of hours to the following respective persons:
Attorney Mr. Calamusa 301.40 Hours 17Mr. Jent 166.95 18Ms. Evans 343.65 19Mr. Slate 21.90 20 Paralegal Ms. Allen 98.00 Hours 21Ms. Wiggins 8.50 22Ms. Wilson 14.00 23
In others, the recorded duties were not compensable as they involved tasks that were of no benefit to Plaintiffs, including time spent on the Fee Motion. Further, Plaintiffs' counsel sometimes provided insufficient detail for the Court to discern the nature and quality of the hours expended. Additionally, the Court disallowed all time attributable to travel. See Maner, 602 Fed.Appx. at 492 (concluding that "district court did not err in excluding as unnecessary the hours billed for her attorneys' travel"). In each of these situations, the Court discounted the total amount sought by the unreasonably claimed time.
Multiplying the hours reasonably expended by the reasonable hourly rate, the Court finds that the following modified lodestar calculations are appropriate:
Attorney Hourly Rate Hours Mr. Calamusa $375.00 301.40 $113,025.00 Mr. Jent $375.00 166.95 $ 62,606.25 Ms. Evans $375.00 343.65 $128,868.75 Mr. Slate $375.00 21.90 $ 8,212.50 Lodestar Amount Paralegal Hourly Rate Hours Ms. Allen $125.00 98.00 $ 12,250.00 Ms. Wiggins $125.00 8.50 $ 1,062.50 Ms. Wilson $125.00 14.00 $ 1,750.00 Lodestar Amount
Further, the total modified lodestar amount equals $327,775.00-$312,712.50 for attorneys
No Lodestar Adjustment Based Upon Results Is Appropriate
"After determining the lodestar amount as above, the Court is entitled to adjust the amount of final fees awarded in light of the results obtained through the litigation." Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) (citing Hensley, 461 U.S. at 434, 103 S.Ct. at 1939-40; Norman, 836 F.2d at 1302). "If the court determines that the result obtained was an excellent result, then the award of fees `will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.'" Villano v. City of Boynton Beach, 254 F.3d 1302, 1308 (11th Cir. 2001) (quoting Hensley, 461 U.S. at 435, 103 S.Ct. at 1940). However, "there is a strong presumption that the lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546, 130 S.Ct. 1662, 1669, 176 L.Ed.2d 494 (2010).
The Eleventh Circuit provided particularly meaningful guidance on lodestar adjustments in Norman when it wrote:
836 F.2d at 1302 (citing Hensley, 461 U.S. at 435 n.11, 103 S.Ct. at 1940 n.11). In accordance with the Eleventh Circuit's instructions in Norman, the Court looks to the scope of the litigation as a whole, focusing on the significance of the overall results achieved in light of the substantial hours expended in pursuing this case. With these considerations in mind, the Court finds that neither a result-based enhancement nor such a reduction to the lodestar amount is justified in this case.
Reasonableness of Expenses Incurred
As set out above, Plaintiffs seek to recover expenses in the total amount of $15,498.19. The Court has reviewed the underlying documentation offered by Plaintiffs to substantiate these claimed expenses and finds that a reduction of $2,040.65 is appropriate due to either an insufficient explanation to support the expense or because the reimbursement sought relates to travel between Birmingham and Decatur and/or Huntsville. Concerning travel reimbursement for mileage and meals more specifically, in light of Plaintiffs' failure to demonstrate a lack of attorneys in their area who were willing to handle their claims pursuant to the exception set out in Cullens above, those claimed travel expenses constitute "routine office overhead normally absorbed by the practicing attorney" and, consequently, are not reasonably recoverable under the circumstances of this case. Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 438 (11th Cir. 1999) (internal quotation marks omitted) (quoting Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir. 1983)). Thus, the Court finds that Plaintiffs' recovery for reasonable expenses should be $13,457.54 instead of $15,498.19.
Plaintiffs' Total Award Due
Therefore, as recalculated above, the reasonable fee amount for Plaintiffs to recover is $327,775.00, and the reasonable expense amount is $13,457.54. However, these amounts will be paid over time under the terms of the parties' Settlement Agreement and the fees and expenses started in 2014. For these reasons, the Court finds that increasing each figure by 10% is appropriate. This means that, for expenses, Plaintiffs are entitled to recover an additional $1,345.75 in costs for a total of $14,803.29. Based upon the $360,000.00 negotiated cap, this leaves $345,196.71 with respect to attorney's fees. Adding 10% back into the above recalculated fee figure of $327,775.00 results in an additional $32,777.50 for a total fee revised figure of $360,552.50, which is greater than the cap remainder of $345,196.71. Thus, Plaintiffs' reasonable fee award is $345,196.71, and the total award due is $360,000.00.
III. Defendants' Strike Motion
In their Strike Motion filed pursuant to FED. R. CIV. P. 6(c)(2), Defendants seek to strike the declarations of Mr. Wilmer and Ms. McKinney that Plaintiffs attached to their reply brief. (Doc. 102 at 1). Rule 6(c) covers motions, notices of hearing, and affidavits and states in pertinent part that "[a]ny affidavit supporting a motion must be served with the motion." FED. R. CIV. P. 6(c)(2). Referencing several different cases, Defendants contend that this Court should not consider the declarations of Mr. Wilmer and Ms. McKinney because
In opposition to the Strike Motion, Plaintiffs maintain that the declarations of Mr. Wilmer and Ms. McKinney were appropriately filed in rebuttal to Defendants' affidavit evidence offered to support Defendants' position that the Court should apply Morgan County/Northeastern Division rates as opposed to Birmingham/Southern Division and/or Northern District of Alabama ones. (Doc. 104 at 2). Several cases Defendants cited acknowledge that evidence offered to rebut points made in an opposition is permitted by way of reply. See, e.g., Carlisle, 2015 WL 4092817, at *1 ("Affidavits filed with a reply brief are considered only for the `limited purpose of responding to matters raised in the responses filed by the opposing parties.'"); Tishcon Corp. v. Soundview Communications, Inc., No. CIV.A. 104CV524-JEC, 2005 WL 6038743, at *8 (N.D. Ga. Feb. 15, 2005) ("Namely, the affidavits attached to the reply briefs at issue in Kershner and Shah were considered only because the affidavits were submitted, specifically, for the limited purpose of responding to matters raised in the responses filed by the opposing parties."); Lage v. Ocwen Loan Servicing LLC, 145 F.Supp.3d 1172, 1181, 1182 (S.D. Fla. 2015) (analyzing S.D. Fla. L.R. 7.1(c) which "provides that a reply memorandum `shall be strictly limited to rebuttal of matters raised in the memorandum in opposition without re-argument of matters covered in the movant's initial memorandum of law'" and finding that affidavit which "explicitly rebuts issues raised ... in response to ... original Motion," to comply with that local rule), aff'd, 839 F.3d 1003 (11th Cir. 2016); cf. also ABCO Premium Fin. LLC v. Am. Int'l Grp., Inc., No. 11-23020-CIV, 2012 WL 3278628, at *4 (S.D. Fla. Aug. 9, 2012) ("While the `raising of new issues and submission of new facts in reply brief is improper,' a court has the discretion to consider the additional exhibits despite this `procedural shortcoming.'" (quoting Fisher v. Ciba Specialty Chem. Corp., 238 F.R.D. 273, 311 n.82 (S.D. Ala. 2006))), aff'd, 518 Fed.Appx. 601 (11th Cir. 2013).
Defendants additionally argue that the Court should disregard the declarations of Mr. Wilmer and Ms. McKinney because they were improperly filed as part of Plaintiffs' reply as a way "to supplement the record" which was otherwise insufficiently supported. (Doc. 102 at 3); see also Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) ("By `satisfactory evidence,' we mean `more than the affidavit of the attorney performing the work.'" (citing Norman, 836 F.2d at 1299)). Plaintiffs respond by maintaining that because their initial evidence offered in support of their Birmingham and Northern District of Alabama rates was satisfactory under Eleventh Circuit standards, striking the declarations of Mr. Wilmer and Ms. McKinney is not appropriate. (Doc. 104 at 4).
As set out above, the Norman court thoroughly explained how a fee movant meets the satisfactory evidence test and made it clear that evidence of rates actually charged or previously approved by a court meets the standard. Norman, 836 F.2d at 1299. Plaintiffs included evidence of the rates charged by counsel for hourly, non-contingent labor/employment matters
Accordingly, for these reasons, the Strike Motion is
Plaintiffs' Fee Motion is
Norman, 836 F.2d at 1304-05 (emphasis added).
Ceres Envtl. Servs., Inc. v. Colonel McCrary Trucking, LLC, 476 Fed.Appx. 198, 203 (11th Cir. 2012); see also Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 429 (11th Cir. 1999) ("The imprecision of the billing records submitted by the plaintiffs makes it difficult, if not impossible, to calculate with any precision the number of hours an attorney devoted to a particular task in this litigation."); id. ("The records often lump together all the tasks performed by an attorney on a given day without breaking out the time spent on each task.").