Morrison v. Charles J. Veale, M.D., P.C.

KARLA MORRISON, Plaintiff, v. CHARLES J. VEALE, M.D., P.C., Defendant.

CASE NO. 3:14-cv-1020-TFM [wo]

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION

December 14, 2017

MEMORANDUM OPINION AND ORDER

This 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, filed 9/14/17).

In 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.

I. BACKGROUND AND PROCEDURAL HISTORY

The 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.

Subsequent 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 incuradditional 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.

On 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.

II. Offer of Judgment and Approval

Federal 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. App'x 349 (11th Cir. 2009) (discussing requirement of judicial oversight in context of an offer of judgment even when full claimedamount is paid when attorney's fees are involved);¹ 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).

In the 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.

Based 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).², ³ The Offer of Judgment also provided for an award of reasonable feesand 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 is approved.

III. Attorneys' Fees

In 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 applicantshall 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).

After 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).⁴, ⁵ 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 cases.

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...