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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:20-cv-80993-WPD

TIMOTHY O’BRYAN

Plaintiff,

vs. 

JOE TAYLOR RESTORATION, INC., a Florida

Corporation, AARON GETTY, individually, 

KAREN RADEWICZ, individually, and

GLENDA GALARZA, individually, 

Defendants.

 /

DEFENDANTS’ VERIFIED MOTION FOR ATTORNEY’S FEES, NON-TAXABLE 

COSTS, AND INCORPORATED MEMORANDUM OF LAW

Defendants, JOE TAYLOR RESTORATION, a Florida for profit corporation (“JTR”), 

AARON GETTY, individually, KAREN RADEWICZ, individually, and GLENDA GALARZA, 

individually (hereinafter collectively referred to as “Defendants”), pursuant to 29 U.S.C. § 216(b), 

Fed. R. Civ. P. 11(b)(3), and S.D. Fla. L.R. 7.3(a), hereby file their verified motion for attorneys’ 

fees, non-taxable costs, and incorporated memorandum of law.

I. Introduction

The Families First Coronavirus Response Act (“FFCRA”), Pub. L. No. 116-127, 134 Stat. 

178 (2020), contains two (2) provisions mandating some form of paid leave entitlement for 

employees impacted by COVID-19. At issue here was the Emergency Paid Sick Leave Act

(“EPSLA”) where, in relevant part, an individual may qualify for paid sick leave if the employee 

(1) is subject to a Federal, State, or local quarantine or isolation order related to COVID–19; (2)

has been advised by a health care provider to self-quarantine due to concerns related to COVID–

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19; or (3) is experiencing symptoms of COVID–19 and seeking a medical diagnosis. See FFCRA, 

PL 116-127, March 18, 2020, 134 Stat 178 at 195-96. Importantly, employers were incentivized 

to permit EPSLA leave because it was fully subsidized by the federal government. New York v. 

United States Dep't of Labor, 477 F. Supp. 3d 1, 5 (S.D.N.Y. 2020).

Just hours before the FFCRA and its attendant provisions went into effect, Defendants 

believe O’Bryan attempted to game the system in order to take advantage of his employer and the 

federal government’s response to an unprecedented global pandemic by claiming entitlement to 

EPSLA sick pay. Because the EPSLA was fairly lenient in terms of eligibility, Plaintiff only 

needed to provide Defendants with a modicum of proof — a doctor’s order, COVID-19 test results 

— to justify Defendants’ use of federal tax dollars. He failed to provide same and eventually, his 

story unraveled, forcing him to admit to JTR he lied and thereby causing his termination. 

When Plaintiff sued, Defendants had two choices: (1) settle the case by paying the two (2) 

weeks of sick leave, plus some reasonable sum of attorneys’ fees and costs, or (2) defend it, prevail,

and hope the Court agrees that this case was without the proper evidentiary support from day one, 

which should entitle the prevailing Defendants to fees. Because Defendants did not believe they 

should be forced to settle a case they believed was subjectively and objectively frivolous, 

Defendants chose to defend the case to the bitter end, and the jury justified Defendants’ decision 

to not bow to a frivolous lawsuit.

That said, Defendants appreciate the threshold for purposes of recovering fees. However, 

this case never should have been filed, let alone maintained through trial. O’Bryan’s only

evidentiary support was his own self-serving testimony, notwithstanding there were witnesses 

(family members, co-workers) who theoretically could have offered evidentiary support. O’Bryan

also could have presented testimony from Dr. Jack Newcomer – the very provider who Plaintiff 

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claimed directed him to quarantine. Yet he failed to present any supporting testimony or evidence. 

And notwithstanding the case proceeding through the rendition of a jury verdict, Defendants 

contend O’Bryan pursued this case in bad faith. Bad faith aside, Defendants can demonstrate 

Plaintiff and his counsel maintained this case without evidentiary support. 

Defendants now bring this motion to recover the attorneys’ fees and non-taxable costs 

expended in defense of this lawsuit. JTR was in an untenable position: risk playing fast-and-loose 

with government funding, for which there could have been adverse consequences, or spend 

thousands of hard-earned dollars to defend itself against a lawsuit brought by a plaintiff who JTR 

knew had lied to them about the course of his treatment because he had admitted it to them months 

earlier. This Court must award sanctions to show there are consequences for filing lawsuits so

lacking in evidentiary support, particularly where government dollars are concerned.

II. Factual Basis for Attorney’s Fees and Non-Taxable Costs

a. Facts occurring prior to suit being filed1

At the beginning of 2020, O’Bryan was working for JTR in January 2018 as a cleaning 

technician, responsible for cleaning and tear-down of drywall affected with mold, fire, or water 

damage. Beginning the week of March 16, 2020, O’Bryan’s work attendance became erratic. On 

March 18, 2020, he texted his supervisor, Glenda Galarza, he “left [work] shortly after lunch 

[because he] was starting to get a headache, which usually ends with a migraine.” He did not work 

at all on March 19 or 20. At this time, Plaintiff did not believe he had contracted COVID-19. The 

next week, O’Bryan was absent from work again on March 25 and March 26, this time due to an 

alleged “stiff back” and a previously scheduled doctor’s appointment for his back pain.

1 The facts are derived from the unopposed facts in support of Defendants’ summary 

judgment (ECF No. 34 and 35) and the parties’ joint pre-trial stipulation (ECF No. 57).

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After regular business hours on March 30, 2020, O’Bryan claims he began coughing.

Notwithstanding he did not believe he had COVID-19 at this time, O’Bryan emailed Karen 

Radewicz, then the head of HR for JTR, inquiring how to receive pay for any time he might miss 

due to COVID-19. Radewicz immediately advised O’Bryan he would be able to use accrued, or 

borrow against future unaccrued, paid time off. During this inquiry, O’Bryan did not mention 

anything to Radewicz about experiencing a cough, dizziness, or a chest cold. Yet approximately 

twelve hours later, in the early morning hours of March 31, O’Bryan advised Galarza via text 

message he wasn't coming in because he “[w]as up coughing and a little dizzy last night [but had] 

no fever []. The coughing started yesterday. Feels like a chest cold.” O’Bryan did not work on 

March 31 or April 1, 2020 (or any day thereafter for JTR).

On April 2, 2020, Galarza and Radewicz notified O’Bryan JTR would require him to 

provide a negative COVID-19 test before returning to work and provided him with forms to 

complete to determine his eligibility for the newly passed EPSLA. In completing and returning the 

forms on April 2, O’Bryan initially indicated he was “subject to a Federal, State or Local 

Quarantine or Isolation Order related to COVID-19.” Since he selected that option, Radewicz 

advised O’Bryan that the Department of Labor -- not just JTR -- required “the name of the 

government entity that issued the quarantine or isolation order to which [he] was subject.” 

Radewicz also cautioned O’Bryan, “You may not receive federal funds for Sick Leave if you do 

not meet the qualifications set forth by [DOL].” It is undisputed O’Bryan never provided any 

applicable government entity’s order.

On April 6, 2020, O’Bryan left a voice mail for Galarza, indicating he felt “100% better” 

and was ready to return to work. On April 7, Galarza responded, advising him to provide a doctor’s 

note confirming he was not contagious and releasing him to return to work. O’Bryan then 

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backtracked, advising Galarza by email that he spoke to Dr. Newcomer that very day (April 7), 

who “advised [him] to self-quarantine the two weeks.” O’Bryan added he started “running a fever 

last night but [had] no other symptoms.” A little less than a week later, on April 13, O’Bryan

repudiated his April 7 email about Dr. Newcomer’s quarantine order by emailing Galarza and 

stating he was “feeling fine and ready to come back Wednesday, the 15th,” due to his quarantine 

ending, adding, as of April 13, 2020, he “never got any symptoms.”

On April 14, 2020, O’Bryan updated his April 2 sick leave form, this time indicating 

(consistent with his repudiated April 7 email) that Dr. Newcomer ordered him to self-quarantine 

due to concerns related to Covid-19. During his April 14 appointment — his first visit with Dr. 

Newcomer since allegedly developing COVID symptoms — Dr. Newcomer noted O’Bryan selfreported a “fever” of 100.1 degrees “two weeks prior”, but at the time of the visit, Dr. Newcomer 

did not observe any signs or symptoms of COVID-19, including a fever. In fact, the notes 

confirmed the self-reported fever resolved within 24 hours. Dr. Newcomer’s progress note for 

April 14, 2020, confirms Plaintiff was healthy and ready to return to work as of April 14, and that 

he had no symptoms or signs of Covid-19. Notably absent from Dr. Newcomer’s April 14 notes is 

a quarantine order.

When asked for a doctor’s note to substantiate the physician-ordered quarantine, O’Bryan 

provided JTR with a note on April 15, 2020, which stated, in part, that O’Bryan “had fever 14 days 

prior,” “had been self-quarantined at home,” and “[a]s he’s evaluated today, he is healthy and 

ready to return to work.” But since he previously had advised JTR on April 7, 2020, of Dr. 

Newcomer’s alleged quarantine order, Radewicz advised O’Bryan again that JTR needed a 

doctor’s note stating he was out of work as of April 7 because of a physician-ordered quarantine.

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Instead, on April 16, 2020, O’Bryan advised JTR he scheduled an appointment for April 17, 2020, 

to get a COVID-19 test – after his 2-week quarantine already had expired.

Dr. Newcomer’s April 17, 2020, Progress Note confirms once again he never directed 

O’Bryan to quarantine or isolate. Dr. Newcomer also confirms in this note he was not informed of 

any claimed fever until two weeks after the fact and only in connection with the request for a 

return-to-work letter on April 14. Dr. Newcomer had a “frank discussion” with Plaintiff, in which 

he told Plaintiff he could not write a return-to-work letter, a “medical-legal document,” without 

any basis for doing so. Dr. Newcomer’s note concludes, “I will not write letter that I directed his 

action when in fact I did not”. 

Because he had not provided a negative COVID-19 test, and because – separate and apart 

from his alleged sick pay eligibility -- he was seeking to return to work after advising Defendants 

of his doctor’s direction to quarantine, Defendants contacted O’Bryan by phone on April 20, 2020, 

to determine if he indeed had followed through with his COVID-19 test, whether he knew the test 

results, and to otherwise form expectations for both sides as they proceeded. During the call,

O’Bryan admitted he had been dishonest about Dr. Newcomer directing him to quarantine on April 

7 and apologized to for lying about it. The truth was, he never was directed to quarantine by a 

medical provider. In fact, O’Bryan felt poorly about everything that had transpired because he 

“teaches his sons to be honest and to do the right thing.” Finally, he mentioned he was already 

thinking of quitting or not returning to work following his self-quarantine. JTR then terminated 

O’Bryan because he was dishonest, and he understood JTR terminated him for that reason.

b. Facts brought out during the course of the lawsuit and trial

On May 22, 2020, in response to Plaintiff’s presuit demand letter, undersigned counsel sent 

a lengthy and comprehensive email to O’Bryan’s counsel, including screenshots of documentary 

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evidence setting forth many of the facts detailed above. See May 22, 2020, email attached hereto 

as Exhibit “A”. In particular, the correspondence set forth the details concerning (1) O’Bryan’s 

erratic late-March-2020 work attendance; (2) the March 31 and April 1-2, 6-7, 13-17 emails with 

JTR and O’Bryan; and (3) a summary of the April 20 phone call wherein O’Bryan admitted his 

dishonesty. Id. Given the objective frivolity of the facts as known at or before the time suit was 

filed, Defendants notified Plaintiff and his counsel of their intent to seek sanctions under applicable 

rules and statutes in the event they determined to file suit. Id. 

On June 23, 2020, O’Bryan sued Defendants under the Family and Medical Leave Act and 

the FFCRA for interference with use of FMLA rights and retaliation for exercising FMLA rights, 

seeking damages and attorney’s fees as compensation. ECF No. 1. The FMLA did not appear to 

apply to the facts as pled. As temporarily amended by the FFCRA, the Emergency Family and 

Medical Leave Expansion Act entitled certain employees to 12 weeks of FMLA leave per year 

“because of a qualifying need related to a public health emergency,” 29 U.S.C. § 2612(a)(1)(F), if

the employee is unable to work (or telework) due to a need for leave to care for the 

son or daughter under 18 years of age of such employee if the school or place of 

care has been closed, or the childcare provider of such son or daughter is 

unavailable, due to a public health emergency.

Id. at § 2620(a)(2)(A). The requisite “public health emergency” must be related to COVID-19. Id. 

at § 2620(a)(2)(B). Since there were no allegations in the complaint related to childcare, it did not 

appear as if O’Bryan could state a cause of action.

Within the first few months of the litigation, Defendants served Dr. Newcomer with a nonparty subpoena, seeking the medical records related to O’Bryan’s treatment. Within one week, Dr. 

Newcomer’s office provided all records for O’Bryan’s visits in 2020. After reviewing the records, 

which included the April 17 note where Dr. Newcomer fully disavowed ever ordering O’Bryan to 

quarantine, Defendants provided a copy of the subpoenaed records to O’Bryan’s counsel. 

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Importantly, O’Bryan’s counsel acknowledged this was the first time he himself even had 

reviewed Dr. Newcomer’s records, confirming his failure to investigate these same records presuit. See October 12, 2020, email attached hereto as Exhibit “B”.

At that time, Defendants served (but did not file) their first motion for Rule 11 sanctions, 

arguing both the facts and the causes of action were frivolous. Defendants argued the FMLA causes

of action were fatally flawed due to the lack of allegations related to childcare. Supporting the 

objective frivolity of the case’s facts, Defendants argued the points from its May 22, 2020, email,

and added arguments based on Dr. Newcomer’s records. See Exhibit “A”. Yet O’Bryan failed to 

dismiss or even agree to amend the complaint prior to the running of Rule 11’s twenty-one (21) 

day safe-harbor provision. Defendants therefore filed the Rule 11 motion along with a motion for 

judgment on the pleadings, for the same legal grounds as argued in the Rule 11 motion. In 

response, and considering the import of Dr. Newcomer’s medical records, O’Bryan actually 

dismissed Count II of his complaint (for alleged retaliation) -- albeit after the safe-harbor period 

expired – and filed an amended complaint with the Court’s permission re-alleging only the count 

for two weeks of unpaid sick leave pursuant to the EPSLA.

Ultimately, this Court denied the first Rule 11 motion – relating to the original complaint 

and not the amended complaint -- but did state, “Defendants may bring any fact-based Rule 11 

motion before the Court at the appropriate time, if they can do so in good faith and without 

Defendants themselves or their counsel violating Rule 11.” ECF No. 30. After the amended 

complaint was filed, and after Plaintiff admitted his dishonesty at his deposition in this case, 

Defendants again served (but did not file) a second Rule 11 motion, based on the frivolous nature 

of the facts as they were known at that time (and, truly, on May 22, 2020). See November 23, 2020,

email, attached as Exhibit “C.” 

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Defendants moved for summary judgment, which this Court denied based on allegedly

disputed facts. See ECF No. 49. At trial, O’Bryan neither identified nor called as witnesses anyone 

who might offer corroborating testimony supporting Plaintiff’s claims he was experiencing 

symptoms of COVID-19 and seeking a medical diagnosis — no one from any COVID-19 testing

facility, no medical provider, no co-workers, not even family members. Nor did he introduce any 

COVID-19 test result as support for his own self-serving testimony he tested positive after he was 

terminated. It is hardly surprising the jury took all of about an hour to deliberate and reach their 

unanimous verdict in favor of Defendants. The jury did not even reach Defendants’ affirmative 

defense, instead simply finding O’Bryan failed to prove his claim in the first instance.

III. Argument and Memorandum of Law

a. Law at issue

i. “Prevailing Defendant” fees under 29 U.S.C. § 216(b)

EPSLA claims are judged under FLSA standards. Employers who do not provide paid sick 

leave as required under the EPSLA are considered to have failed to pay minimum wages in 

violation of section 6 of the FLSA, 29 U.S.C. § 206, and such employers are subject to enforcement 

proceedings described in sections 16 and 17. 29 U.S.C. §§ 216, 217. The FLSA entitles a prevailing 

defendant to attorney's fees where the district court finds the plaintiff “litigated in bad faith.” 

Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998); Kreager v. Solomon & 

Flanagan, 775 F.2d 1541, 1543 (11th Cir. 1985); Hubbard v. Jerry's Seamless Guttering, Inc., 2020 

WL 6038110, at *3 (S.D. Fla. Oct. 6, 2020); Goss v. Killian Oaks House of Learning, 248 

F.Supp.2d 1162, (S.D. Fla. 2003). This power derives from common law; courts possess the 

“inherent power” to award attorneys' fees to a prevailing defendant when a plaintiff has “acted in 

bad faith, vexatiously, wantonly or for oppressive reasons. Alyeska Pipeline Co. v. Wilderness 

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Society, 421 U.S. 240, 258-59 (1975). Bad faith is determined by conduct and motive, rather than 

on the case’s validity. Murray v. Playmaker Services, LLC, 548 F. Supp. 2d 1378, 1381 (S.D. Fla. 

2008), aff'd, 325 Fed. Appx. 873 (11th Cir. 2009), citing Kreager, 775 F.2d at 1543. In this context,

“bad faith” “is not limited to filing, but also encompasses “acts preceding and during litigation.” 

Flores v. Park W. Parking LLC, 2008 WL 11409098, at *8 (S.D. Fla. Feb. 1, 2008), citing Kreager, 

775 F.2d at 1543; see also Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991) (“When it 

becomes apparent that discoverable evidence will not bear out the claim, the litigant and his 

attorney have a duty to discontinue their quest.”).

ii. Rule 11

Rule 11 generally requires litigants “‘stop-and-think’ before initially making legal or 

factual contentions.” See Fed. R. Civ. P. 11 advisory committee's note (1993); Brown v. Generac 

Power Sys., Inc., 2021 WL 1030229, at *2 (S.D. Fla. Feb. 27, 2021), report and recommendation 

adopted, 2021 WL 1022872 (S.D. Fla. Mar. 17, 2021). Unlike an award of fees to a prevailing 

defendant under 29 U.S.C. § 216(b)), Rule 11 involves an “objective standard for testing conduct”: 

“‘reasonableness under the circumstances’ and ‘what was reasonable to believe at the time’ the 

pleading [or other document] was submitted.” Flores, 2008 WL 11409098, at *10.

By presenting to the court a pleading, written motion, or other paper--whether by signing, 

filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the 

best of the person's knowledge, information, and belief, formed after an inquiry reasonable under 

the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, 

cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by 

existing law or by a nonfrivolous argument for extending, modifying, or 

reversing existing law or for establishing new law;

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(3) the factual contentions have evidentiary support or, if specifically so 

identified, will likely have evidentiary support after a reasonable 

opportunity for further investigation or discovery;

Fed. R. Civ. P. 11(b). If, after notice and a reasonable opportunity to respond, the court determines 

that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, 

law firm, or party that violated the rule or is responsible for the violation. Fed. R. Civ. P. 11(c).

A sanction imposed under this rule must be limited to what suffices to deter 

repetition of the conduct or comparable conduct by others similarly situated. 

The sanction may include nonmonetary directives; an order to pay a penalty 

into court; or, if imposed on motion and warranted for effective deterrence,

an order directing payment to the movant of part or all of the reasonable 

attorney's fees and other expenses directly resulting from the violation.

Fed. R. Civ. P. 11(c)(1), (4); Showan v. Pressdee, 922 F.3d 1211, 1224 (11th Cir. 2019). A court 

may subject a represented party to Rule 11 sanctions if, for example: (1) the allegations in the 

complaint were frivolous and the plaintiff “knew or should have known that the allegations in the 

complaint were frivolous ...,” Byrne v. Nezhat, 261 F.3d 1075, 1117 (11th Cir. 2001); (2) Plaintiff 

“misrepresent[ed] facts in the pleadings ...,” id. at 1118; or (3) the action was frivolous and Plaintiff 

“was the ‘mastermind’ behind the frivolous case ...,” id. Additionally, Rule 11 “‘stresses the need 

for some prefiling inquiry....’” Mike Ousley Productions, Inc. v. WJBF-TV, 952 F.2d 380, 382 (11th

Cir. 1992), citing Donaldson v. Clark, 819 F.2d 1551, 1555 (11th Cir. 1987) (en banc). The 

reasonableness of the inquiry may depend on such factors as “how much time for investigation 

was available to the signer,” and “whether he had to rely on a client for information as to the facts 

underlying the [violative document].” Id. at 1556.

Rule 11 motions are not required to be filed before the offending provision is disposed of. 

In Abreu v. Alutiiq-Mele, LLC, 2012 WL 4369734, at *9 (S.D. Fla. Aug. 3, 2012), report and 

recommendation adopted in part, 2012 WL 4369663 (S.D. Fla. Sept. 24, 2012), the court held a 

Rule 11 motion that was served three (3) months before (but filed after) defendants’ summary 

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judgment motion was granted complied with the 21-day safe harbor provision. Id. So long as a 

Rule 11 motion is served in compliance with its 21-day safe harbor provision and prior to final 

judgment being entered, the motion can be filed after the offending paper is disposed of. Id.2

iii. Appropriateness of sanctions if a case is decided by a jury

It is expected this motion will be opposed because the case went to a trial on the merits 

before a 7-person jury and, therefore, the case could not be objectively or subjectively frivolous.

3

However, the Eleventh Circuit has upheld Rule 11 sanctions imposed after a case went to trial and 

resulted in a defense verdict, particularly when there was not an adequate pre-trial investigation. 

In Mike Ousley, 952 F.2d at 383, the Eleventh Circuit upheld Rule 11 sanctions against plaintiff’s 

attorney due to a failure to conduct an adequate pretrial inquiry. Id. (“Hooper does not claim that 

he lacked the time to investigate the facts; he was not forced to rely solely on his client, because 

he could have contacted the two men from whom his client claimed to have received information; 

and he did not depend on another lawyer.”); see also Battles v. City of Ft. Myers, 127 F.3d 1298 

(11th Cir. 1997). Here, Plaintiff’s counsel certainly could have attempted to speak to Plaintiff’s 

family members, medical provider and even his co-workers, yet he simply rested on Plaintiff’s 

“testimony”. 

Courts also have imposed sanctions under different fee-shifting statutes under prevailingdefendant standards for failure to produce evidence at trial. In cases interpreting 42 U.S.C. § 1988 

and the authority of Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), courts have 

held where there is “no evidence” produced at trial to substantiate discrimination claims, the claim 

2 Additionally, the served Rule 11 motion need not be identical to the filed one, so long as it 

raises the same issues. Abreu, 2012 WL 4369734, at *10.

3

Importantly, the jury unanimously ruled in favor of Defendants, deciding against O’Bryan 

in the first instance without reaching Defendant’s proffered defenses.

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is frivolous and attorney's fee awards to the defendant may be granted. See Harris v. Plastics Mfg. 

Co., 617 F.2d 438, 440 (5th Cir. 1980) (awarding attorney's fees to a Title VII defendant because 

there was “no evidence” to support the claim). “A firmly held belief in injustice by people who 

receive unfavorable employment actions, unsupported by any reasonable basis...is not enough to 

insulate party and counsel from responsibility to the opposing party and system for pursuing 

meritless litigation.” Gilyard v. S.C. Dept. of Youth Services, 667 F. Supp. 266, 277-78 (D.S.C. 

1985).

b. Summary of the Motion

Defendants seek attorney’s fees and non-taxable costs under the authority of the two 

statutes cited above. Defendants seek sanctions under the prevailing defendant, bad-faith FLSA 

standard against O’Bryan personally for bringing a claim which he knew was not factually 

supported from the start, but at the very least, for continuing the litigation in bad faith after receipt 

of Dr. Newcomer’s records. Defendants also seek Rule 11(b)(3) sanctions against O’Bryan and 

his counsel for maintaining a factually frivolous case, which became plain at the latest when they 

received Dr. Newcomer’s records stating he never directed O’Bryan to quarantine at any time.

c. An award of sanctions under Rule 11(b)(3) against O’Bryan and his

counsel is warranted because O’Bryan’s factual contentions never had any evidentiary 

support at the outset or a chance at evidentiary support after discovery.

The undisputed facts of this case demonstrate O’Bryan twice attempted to qualify for 

emergency paid sick leave under the EPSLA for reasons he knew or had reason to know would 

not apply. First, on April 2, 2020, O’Bryan alleged he was subject to a governmental (federal, 

state, or local) quarantine order. That was not true at the time the statement was made and it was 

not made true at any point thereafter. O’Bryan was unable to provide any document substantiating 

a government-ordered quarantine for him, nor was there any testimony at trial to that extent. Then, 

on April 14, 2020, O’Bryan updated (and back-dated to April 7) the employer’s sick leave form 

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and indicated his medical provider directed him to quarantine as of April 7, 2020. As this Court 

well knows, Dr. Newcomer completely disavowed any alleged direction to quarantine. This 

certainly would have been known to O’Bryan on April 17, 2020 (when Dr. Newcomer’s chart note 

indicates he spoke to O’Bryan), but at worst, it was made clear on October 12, 2020, when 

Defendants provided Dr. Newcomer’s subpoenaed records to O’Bryan and his counsel. 

And while he never relied on this point when he attempted to justify his eligibility for 

emergency sick pay prior to filing suit, O’Bryan also attempted to assert during the litigation he 

qualified for emergency sick pay as he was “experiencing symptoms of COVID-19 and seeking a 

medical diagnosis.” Yet the only evidence produced in support of this theory was O’Bryan’s own 

unsupported self-serving testimony that he started “coughing” on March 31, 2020, and allegedly 

had a “fever” on April 6, 2020. Dr. Newcomer’s notes contradict the claim of fever on April 6, 

noting only Plaintiff self-reported a fever on April 1 that resolved within a day. No other witness 

offered corroborating testimony as to O’Bryan’s alleged experience of COVID-19 symptoms. Nor 

did O’Bryan introduce any COVID-19 test to support his self-serving testimony that he tested 

positive after Defendants terminated him. In other words, O’Bryan’s only scintilla of evidence in 

support of his claim was his ipse dixit statements that he had isolated symptoms at two different 

points in time and that he was “trying” to get an appointment with his doctor and/or for a COVID19 test.

Supporting the objective frivolity of this case is the fact that neither theory required any

discovery at all. O’Bryan knew he was never subject to a government-ordered quarantine. O’Bryan 

knew he never was directed to quarantine by Dr. Newcomer – not on April 7, not on April 14, not 

ever. He knew neither of these scenarios were true at the of the initial complaint; it was not 

reasonable for O’Bryan to believe he was subject to a government- or physician-ordered quarantine 

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at any time. Yet Plaintiff pursued his frivolous lawsuit up through and including trial, and the jury 

rightfully returned a verdict against him. Moreover, any chance of gathering evidentiary support 

during discovery was uniquely in O’Bryan’s control. He could have offered the testimony of his

co-workers, who he claimed were with him when he allegedly started “coughing” as he returned

from a job site on March 30, 2020. He could have offered the testimony of his wife and/or three 

(3) adult sons, about his alleged symptoms and/or efforts to seek a COVID-19 test or medical 

diagnosis. But he didn’t. Said plainly, he had no chance of establishing he was experiencing 

symptoms of COVID-19 and seeking a diagnosis for same on the strength of his testimony alone

– particularly when he admitted lying, initially to his employer and subsequently to a jury of his 

peers.

As cited above, Rule 11 sanctions are warranted due to a lack of adequate pre-filing 

investigation and lack of evidentiary support for the alleged claims See Mike Ousley and Battles. 

Hughes v. Defender Assn’ of Philadelphia, 509 F. Supp. 140, 141 (E.D. Pa. 1981) is persuasive as 

there was a failure to produce evidence and reliance on conclusory testimony only. The plaintiff 

alleged he was discriminated against in the terms and conditions of employment, demoted, and 

finally terminated because he is black. Hughes, 509 F. Supp. at 141. After a verdict in favor of the 

former employer, fees were sought under 42 U.S.C. § 1988 and the authority of Christianburg 

Garment Co., 434 U.S. at 421 (“[A] district court may in its discretion award attorney's fees to a 

prevailing party in a Title VII case upon a finding that the plaintiff's action was frivolous, 

unreasonable, or without foundation, even though not brought in subjective bad faith.”). 

The court awarded the former employer attorneys’ fees and costs because the plaintiff’s 

case “consisted largely of his conclusory allegations that he had been discriminated against, and 

that his fellow employees were racists.” Id. at 142. Similarly, the plaintiff offered “no evidence in 

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support of his charge that he had been discriminated against in the terms and conditions of 

employment.” Id. The court even stated, “Although I believed that Hughes had produced virtually

no evidence to support a finding that he had been discriminated against, out of an abundance of 

caution I allowed the case to go to the jury, which after thirty minutes' deliberation returned a 

verdict in favor of the defendants.” Id. As a result of a stipulation reached between the parties, the 

court ultimately awarded the former employer only its attorney’s fees incurred after the verdict,

but importantly opined, “Had they not withdrawn their request, defendants may well have been 

entitled to an award for the fees they incurred in defending the case until verdict.” Id. 

In sum, O’Bryan brought this lawsuit seeking emergency paid sick leave under the EPSLA, 

a government program with lenient eligibility standards. Even before this lawsuit was filed, 

O’Bryan knew or should have known he did not do what was necessary to qualify for the sick pay 

leave. He did not produce any quarantine order from a governmental entity or a physician. He also 

failed to produce any evidence other than his own conclusory testimony about his experiencing 

symptoms of, and seeking diagnosis for, COVID-19. The allegations in the Amended Complaint 

were frivolous and O’Bryan knew or should have known that before the case was filed, and 

certainly after Dr. Newcomer provided his medical records. Rule 11 sanctions are appropriate.

d. An award of prevailing-defendant attorney’s fees under 29 U.S.C. § 

216(b) against O’Bryan personally is appropriate for the same reasons as above.

In addition to the factual basis set forth above for the Rule 11(b) sanctions, O’Bryan knew 

or should have known he was not entitled to paid sick leave under the EPSLA. Defendants 

subpoenaed O’Bryan’s medical records from Dr. Newcomer, which revealed that not only did Dr. 

Newcomer not order O’Bryan to ever quarantine, but that O’Bryan did not even report to him on 

April 14 or 17 with any signs or symptoms of COVID-19. In fact, Dr. Newcomer confirmed in this 

note he was not informed of any claimed fever by O’Bryan until two weeks after the fact and only 

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in connection with the request for a return-to-work letter on April 14. If Dr. Newcomer, whose 

practice involves diagnosing signs and symptoms of diseases, confirmed O’Bryan had no signs or 

symptoms of COVID-19 while O’Bryan was visiting the doctor for that very diagnosis, that should 

have been the end of it. Instead, O’Bryan maintained his suit, causing Defendants to have to incur 

further fees all the way through trial to defend themselves. Tellingly, after Defendants provided 

O’Bryan’s counsel with the medical records, which clearly stated he never directed him to 

quarantine and in fact he had no signs or symptoms of COVID-19, O’Bryan dismissed the 

retaliation count of his Amended Complaint, knowing he would not be able to prove Defendants’ 

termination of his employment constituted retaliation. Yet Plaintiff’s counsel doubled down on the 

two (2) week emergency paid sick leave claim, notwithstanding this claim turned on the same 

evidence.

In Flores, an action for allegedly unpaid overtime, the plaintiff had provided objectively 

reasonable bases for continuing litigation. Flores, 2008 WL 11409098, at *8. The Flores plaintiff 

produced evidence that (1) the defendants did not properly maintain record of overtime worked; 

(2) although plaintiff was primarily responsible for recording his time, his supervisors maintained 

“backup” sheets, later shown to be inaccurate; and (3) plaintiff regularly and routinely was paid 

overtime wages in cash. Flores, 2008 WL 11409098, at *14–15. The court thus held it was 

objectively reasonable for the plaintiff to believe a jury might find for him and defendant was 

likewise not entitled to fees under 29 U.S.C. § 216(b). Id. at *16. Here, O’Bryan did not produce 

a single witness to corroborate his claim he experienced COVID-19 symptoms, his claim that he 

sought a medical diagnosis at any time prior to his after-the-fact visits confirmed by Dr. 

Newcomer’s chart notes, when Plaintiff desperately needed a return-to-work letter, or his claim 

that he tried to get tested. And Dr. Newcomer did not observe any signs or symptoms of COVIDCase 9:20-cv-80993-WPD Document 92 Entered on FLSD Docket 07/28/2021 Page 17 of 20
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19 when he finally saw Plaintiff after his quarantine period, instead noting in his charts O’Bryan 

self-reported an isolated one-day fever two weeks prior. And O’Bryan made no attempt to 

introduce any alleged COVID-19 test at trial. Sanctions should be granted under the prevailing 

defendant standard of 29 U.S.C. § 216(b).

IV. Amount of Attorney’s Fees and Non-Taxable Costs Sought

a. Identity, experience, & qualifications for each timekeeper:

Daniel R. Levine’s qualifications are set forth in his affidavit. See Affidavit of Daniel R. 

Levine, attached as Exhibit “D.” He has been practicing in the State of Florida, exclusively in labor 

and employment law, for over twenty-five (25) years, designated by the Florida Bar as a BoardCertified Specialist in this practice area since 2002. Alex B.C. Ershock has been practicing in the 

State of Florida since 2012. He first worked at the Attorney General’s Office for four years, at a 

private firm for nearly four years, and now works for undersigned counsel’s Firm, working

primarily on labor and employment matters. He is admitted to practice before all federal courts in 

the State of Florida, and the Eleventh Circuit Court of Appeals. Alicia Kendrick has been 

practicing as a paralegal since 1994. She has been employed with Mr. Levine since 2005 and has 

been a Florida Registered Paralegal for 13 years.

b. Number of hours reasonably expended and reasonable hourly rates

Timekeeper Hourly 

Rate

Number of Hours Total Fees Charged 

Daniel R. Levine $450.00 160.00 $ 72,000.00

Alex B.C. Ershock $300.00 196.40 $ 53,920.00

Alicia Kendrick $125.00 22.10 $ 2,762.50

TOTAL 378.50 $ 126,807.50

Non-Taxable Costs Total

Mediation $ 700.00

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c. Description of the tasks done by each timekeeper:

Mr. Levine was lead counsel in this matter and represented all Defendants; Mr. Ershock

and Ms. Kendrick assisted in representation. Detailed time entries and descriptions of tasks done 

by each timekeeper are provided in the bills and invoices, which are attached hereto as Composite 

Exhibit “E.” The hourly rate and time expended are reasonable. Defendants have incurred 

$126,807.50 in attorneys’ fees in the defense of this suit. 

Defendants also incurred $700.00 in non-taxable mediation costs. See Exhibit “F.” It is

well settled mediation expenses are recoverable as non-taxable costs. Wen Liu v. Univ. of Miami, 

Sch. of Med., 2018 WL 4613326, at *4 (S.D. Fla. Sept. 26, 2018); see also Taverna Imports, Inc. 

v. A&M Wine & Spirits, Inc., 2019 WL 12446711, at *6 (S.D. Fla. Oct. 2, 2019) (award of 

mediation costs permissible under Court’s inherent authority).

WHEREFORE, Defendants, JOE TAYLOR RESTORATION, a Florida for profit 

corporation (“JTR”), AARON GETTY, individually, KAREN RADEWICZ, individually, and 

GLENDA GALARZA, individually, respectfully request this Court enter an Order awarding them

attorneys’ fees of $126,807.50, non-taxable costs in the amount of $700.00, and any further relief 

this Court deems just and proper.

VERIFICATION UNDER LOCAL RULE 7.3(a)(7)

Exhibit D is a sworn statement from the primary billing attorney regarding the fees and 

costs reasonably incurred in defense of this matter, which is sufficient to verify the contents of 

this motion. See Arnold v. Heritage Enterprises of St. Lucie, LLC, 2018 WL 1796265, at *4 (S.D. 

Fla. Jan. 25, 2018), report and recommendation adopted, 2018 WL 1795447 (S.D. Fla. Feb. 13, 

2018); Hernandez v. Target Corp., 14-21062-CIV, 2016 WL 4006656, at *2 (S.D. Fla. Mar. 30, 

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2016); Morris v. Arizona Beverage Co., L.L.C., 2005 WL 5544961, at *8 (S.D. Fla. Feb. 9, 

2005).

LOCAL RULE 7.3(a)(8) CERTIFICATION 

Pursuant to Local Rule 7.3(a)(8), undersigned counsel hereby certifies he served a draft of 

this motion in accordance with Local Rule 7.3(a) on July 12, 2021. Opposing counsel reviewed 

the motion and responded, “I don’t think much of a conferral is needed given the grounds raised 

in the motion,” but that if there was “anything else” to talk about, undersigned could reach out. On 

July 26, 2021, fourteen days after the initial service of the motion, opposing counsel’s objections 

to time entries and hourly rates, with supporting legal authority, were due per the Local Rule. No 

objections as to time or amount were received by undersigned counsel.

In sum, the parties were unable to agree on any issues of entitlement to fees or amounts of 

fees.

Dated: July 28, 2021 Respectfully submitted,

Boca Raton, FL

s/ Daniel R. Levine

DANIEL R. LEVINE, ESQ.

Florida Bar No. 0057861

E-mail: DRL@PBL-Law.com

PADULA BENNARDO LEVINE, LLP

3837 NW Boca Raton Blvd., Suite 200

Boca Raton, FL 33431

Telephone: (561) 544-8900

Facsimile: (561) 544-8999

Attorneys for Defendants

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