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Only the Westlaw citation is currently available.

United States District Court, S.D. Florida.

Carolina MATAMOROS, Appellant/Plaintiff,

v.

BROWARD SHERIFF'S

OFFICE, Appellee/Defendant.

CASE NO. 18-CV-62813-SMITH/VALLE

|

Signed April 18, 2022

Attorneys and Law Firms

Nathaly Saavedra, PereGonza The Attorneys, PLLC, Doral,

FL, Peter Michael Hoogerwoerd, Remer & Georges-Pierre,

PLLC, Miami, FL, for Appellant/Plaintiff.

Gale Ciceric Payne, Fort Lauderdale, FL, for Appellee/

Defendant.

REPORT AND RECOMMENDATION TO DISTRICT

JUDGE

ALICIA O. VALLE, UNITED STATES MAGISTRATE

JUDGE

*1 THIS MATTER is before the Court upon Defendant

Broward Sheriff's Office's Motion for Appellate Fees (the

“Motion”), which the Eleventh Circuit transferred to the

District Court for a determination of entitlement and amount,

if any. See generally (ECF Nos. 56, 60); see also (ECF No.

62). United States District Judge Rodney Smith referred the

Motion to the undersigned for a Report and Recommendation.

See (ECF No. 61).

Having reviewed the Motion, Plaintiff's Response (ECF

No. 65), and Defendant's Reply (ECF No. 66), and being

otherwise duly advised in the matter, the undersigned

respectfully recommends that the Motion be GRANTED IN

PART for the reasons set forth below.

I. PROCEDURAL HISTORY

The procedural history of this case is set forth in the prior

opinions of the District Court and the Eleventh Circuit,

which are incorporated by reference. See (ECF No. 20)

(Order on Motion to Dismiss); (ECF No. 40) (Order

granting Defendant's Motion for Summary Judgment); (ECF

No. 56) (Eleventh Circuit Opinion affirming the District

Court's dismissal and summary judgment orders). Below is a

summary of the proceedings relevant to the instant Motion,

substantially as appearing in the Eleventh Circuit's Opinion.

Plaintiff Carolina Matamoros sued the Broward Sheriff's

Office under the Florida Civil Rights Act of 1992, Fla. Sta.

§ 760.01 (the “FCRA”), and the Family and Medical Leave

Act of 1993, 29 U.S.C. § 2601 (the “FMLA”). See (ECF No.

1); see also (ECF No. 10) (the “Amended Complaint”). More

specifically, the Amended Complaint alleged that the Sheriff's

Office interfered with and retaliated against Plaintiff under the

FMLA by suspending her (Counts I and IV, respectively), and

also discriminated and retaliated against her because of her

association with her disabled son in violation of the FCRA

(Counts II and III, respectively). Id. Only the FCRA claims

(Counts II and III) are relevant to the instant Motion.

Defendant moved to dismiss Counts II, III, and IV. See (ECF

No. 11). The District Court granted Defendant's motion in

part, dismissing Count II on the basis that the FCRA did

not permit an associational discrimination claim. See (ECF

No. 20 at 3-5). Subsequently, Defendant sought and obtained

summary judgment on the remaining counts (Counts I, III,

and IV). See (ECF Nos. 21, 40). As to the FCRA retaliation

claim in Count III, the District Court determined that Plaintiff

had failed to establish a causal nexus between the filing of

her EEOC charge and her termination. (ECF No. 40 at 8,

10). In this regard, the District Court found that “there is no

record evidence that the ultimate decisionmakers knew about

Plaintiff's EEOC [c]harge.” Id. at 10.

On appeal, Plaintiff challenged the District Court's earlier

dismissal of Count II (FCRA associational discrimination

claim) and its grant of summary judgment on Count III

(FCRA retaliation claim).1

*2 On June 25, 2021, the Eleventh Circuit affirmed the

District Court's dismissal and summary judgment orders,

and transferred Defendant's motion for appellate fees to the

District Court for determination of entitlement and amount.

See (ECF Nos. 56, 60). In the Motion, Defendant seeks

$25,194 in appellate attorneys’ fees for having prevailed on

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the two FCRA claims (Counts II and III).2See (ECF No. 60

at 19).

II. LEGAL STANDARDS

A. Entitlement to Fees and Costs Generally

Under the “American Rule,” each party must pay its

own attorneys’ fees, unless a statute or contract provides

otherwise. Hardt v. Reliance Standard Life Ins. Co., 560 U.S.

242, 253 (2010) (citations omitted); In re Martinez, 416 F.3d

1286, 1288 (11th Cir. 2005) (prevailing litigants are generally

not entitled to an award of attorneys’ fees unless provided

by statute or contract). Relevant to Counts II and III of the

Amended Complaint, the FCRA provides:

[T]he court, in its discretion, may allow the prevailing party

a reasonable attorney's fee as part of the costs. It is the

intent of the Legislature that this provision for attorney's

fees be interpreted in a manner consistent with federal law

involving a Title VII action.

Fla. Stat. § 760.11(5).

As discussed above, the District Court initially dismissed

Count II and later granted summary judgment for Defendant

as to Count III. See (ECF Nos. 20, 40). The Eleventh Circuit

affirmed those rulings. See (ECF No. 56). On these facts,

the undersigned finds that Defendant is the prevailing party.3

See, e.g., Head v. Medford, 62 F.3d 351, 355 (11th Cir. 1995)

(a defendant who obtains summary judgment in its favor is

the prevailing party); Glob. Pat. Holdings, LLC v. Panthers

BRHC LLC, No. 08-CV-80013, 2009 WL 10667023, at *1

(S.D. Fla. Jan. 7, 2009) (“In light of the dismissal with

prejudice, [d]efendants are clearly prevailing parties[.]”).

B. Attorneys’ Fees to Prevailing Defendants in Civil

Rights Actions

Courts have found that the rationale and policy considerations

supporting an award of attorney's fees under Title VII apply

equally to attorney's fees under the FCRA. See Christiansburg

Garment Co. v. EEOC, 434 U.S. 412 (1978); see also Quality

of Life, Corp. v. City of Margate, No. 17-CV-61894, 2020

WL 8812832, at *2 (S.D. Fla. Dec. 9, 2020) (noting that the

rationale and policy considerations supporting an award of

attorney's fees under Title VII apply equally to attorney's fees

under the ADA).

Under Title VII, a prevailing plaintiff should ordinarily be

awarded attorneys’ fees in all but special circumstances.

See Bruce v. City of Gainsville, GA, 177 F.3d 949, 951

(11th Cir. 1999) (citing Christiansburg, 434 U.S. at 416-17).

However, the equitable and policy considerations supporting

an award of fees to a prevailing civil rights plaintiff do not

apply to prevailing defendants, as to whom a more stringent

standard applies. Id. As to prevailing defendants, “a district

court may in its discretion award attorney's fees ... 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.” Bruce, 177 F.3d at 951

(citing Christiansburg, 434 U.S. at 418-21). Moreover, for a

plaintiff's claims “[t]o be deemed ‘meritless’ for purposes of

assessing a prevailing defendant's [entitlement to] attorney's

fees, it is not enough that the plaintiff ... ultimately lost [the]

case.” Id.; Head, 62 F.3d at 356 (“Merely because plaintiff

did not ultimately prevail on [its] federal claims does not

determine that [the] claims were groundless.”). Thus, “the

grant of summary judgment, in and of itself, does not mean

that an action is frivolous.” Baker v. Alderman, 158 F.3d 516,

524 (11th Cir. 1998).

*3 Although determining frivolousness requires a caseby-case analysis, three factors guide the Court's inquiry:

“(1) whether the plaintiff established a prima facie case; (2)

whether the defendant offered to settle; and (3) whether the

trial court dismissed the case prior to trial or held a full-blown

trial on the merits.” Sullivan v. Sch. Bd. of Pinellas Cty., 773

F.2d 1182, 1189 (11th Cir. 1985). These factors are “general

guidelines ... not hard and fast rules” to determine whether

a case or claim is frivolous. Id. Further, “[i]n determining

whether a claim is frivolous, [the Court] views the evidence

in the light most favorable to the non-prevailing plaintiff.”

Barnes v. Zaccari, 592 F. App'x 859, 872 (11th Cir. 2015)

(citing Cordoba v. Dillard's, Inc. 419 F.3d 1169, 1179 (11th

Cir. 2005)).

Lastly, the Christiansburg frivolity standard applies not only

to trials in civil rights cases, but also to plaintiffs’ appeals.

See Young v. New Process Steel, LP, 419 F.3d 1201, 1206

(11th Cir. 2005). Thus, appellate attorneys’ fees can only be

awarded upon a finding that the appeal was frivolous. Bruce,

177 F.3d at 951 (citing Christiansburg, 434 U.S. at 412).

III. AN AWARD OF APPELLATE FEES IS

WARRANTED

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A. Count II (Associational Disability Under the FCRA)

Having reviewed the record, including the parties’ oral

argument before the Eleventh Circuit, and viewing the

evidence in the light most favorable to the non-prevailing

plaintiff, Barnes, 592 F. App'x at 872, the undersigned

concludes that Plaintiff's appeal of the dismissal of Count

II was legally frivolous. Thus, the undersigned recommends

that Defendant be awarded appellate fees in connection with

Plaintiff's appeal of the District Court's dismissal of Count II.

In reaching this conclusion, the undersigned applied the

Sullivan factors, all of which weigh in favor of Defendant.4

As to the first factor, Plaintiff failed to establish a prima facie

case as to Count II. See (ECF No. 20 at 3-5). More specifically,

the District Court concluded that “[b]ecause the FCRA's plain

language does not include a provision that protects against

association discrimination, Plaintiff has failed to state a claim

for discrimination under the FCRA.” Id. at 4-5. The Eleventh

Circuit resoundingly agreed, finding that the FCRA's “plain

language” foreclosed Plaintiff's position. (ECF No. 56 at 8).

The Eleventh Circuit explained that “state courts are the

ultimate expositors of state law,” and noted that no Florida

court had interpreted the FCRA to include associational

discrimination. Id. at 9-10. The Circuit Court emphasized that

“in the decades since [the FCRA was enacted], the FCRA

has remained unchanged in this respect” and the Court did

not have a “license to rewrite that law.”5Id. at 10. Thus,

the Circuit Court concluded that it “would be improper ... to

create a wholly new doctrine, virtually out of whole cloth, that

would work a profound change in Florida's law.” Id. at 10;

see also id. at 14 (further noting that “[d]ecades back, the old

Fifth Circuit recognized that ‘substantive innovation’ in state

law is something that ought to be left to state courts”).

*4 Simply put, both the District Court and the Court of

Appeals unreservedly held that Plaintiff's association claim

was precluded by the clear language of the FCRA, so that

Plaintiff could not bring an association claim. Thus, the first

Sullivan factor weighs decidedly in Defendant's favor. The

second and third Sullivan factors likewise weigh in favor of

Defendant: (i) no settlement offer was extended to Plaintiff

during the litigation;6 and (ii) the FCRA associational claim

was dismissed by the court early in the litigation. (ECF Nos.

20 at 3-5, 60 at 9).

Moreover, notwithstanding Plaintiff's argument to the

contrary, this was not a claim of first impression that required

judicial resolution. See (ECF No. 62 at 3-4). Instead, Count

II was dismissed early in the litigation based on the District

Court's straightforward application of clear and controlling

legal precedent that foreclosed associational disability claims

under the FCRA. As Plaintiff concedes, “[a]dvocacy of

a claim after it is clearly no longer tenable may subject

the plaintiff to attorney's fees, even though the complaint

was not initially frivolous.” (ECF No. 65 at 6). Such is

the case here. Under these circumstances, the undersigned

finds that it was legally frivolous for Plaintiff to continue

to pursue this claim on appeal. Although perhaps not

initially brought in subjective bad faith, Plaintiff's subsequent

appeal of the District Court's dismissal of Count II was

frivolous, unreasonable, and without foundation. Thus, in

the undersigned's discretion, Defendant should be awarded

reasonable fees as to Count II.

B. Count III (FCRA Retaliation Claim)

In granting summary judgment for Defendant on Count III

alleging FCRA retaliation, the District Court found that

“Plaintiff's FCRA retaliation claim fail[ed] because [Plaintiff]

has not established the third element of her claim—that the

decision to terminate her was causally related to the protected

activity of filing her EEOC [c]harge.” See (ECF No. 40 at

8). The District Court noted that “[b]oth temporal proximity

and knowledge of the decisionmaker [were] missing.” Id.

at 9. Specifically, the Court found “no record evidence that

the ultimate decisionmakers knew about Plaintiff's EEOC

[c]harge.” Id. at 10 (emphasis added). The Court wrote:

The only record evidence indicates that members of

the PSC were unaware of Plaintiff's [EEOC charge]

and there is no evidence that the Executive Director of

Defendant's Department of Professional Standards, ... who

made the ultimate decision to terminate Plaintiff had any

knowledge that Plaintiff had filed an EEOC [charge].

Thus, Plaintiff has not established the necessary causal

connection because there is a lack of temporal proximity

between her protected activity and the adverse employment

action and the decisionmakers lacked knowledge of the

Plaintiff's protected activity.

Id.

The Eleventh Circuit, in turn, made “quick work” of Plaintiff's

FCRA retaliation claim. (ECF No. 56 at 15). After noting the

legal requirement of a “causal link” to prove the third element

of a retaliation claim, the Circuit Court readily concluded—

as the District Court had previously concluded—that Plaintiff

had failed to establish a prima facie case of retaliation. Id. at

16. Specifically, the Circuit Court noted:

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[Plaintiff] hasn't shown that any of her supervisors, the

investigators, or members of the Professional Standards

Committee who took the relevant adverse actions were

aware that she had filed an EEOC charge, and all

decisionmakers testified that they had no knowledge of it.

You can't retaliate against something you don't know exists.

And on this record, there is no evidence that the relevant

decisionmakers knew of [Plaintiff's] protected activity, so

any adverse action taken against her couldn't have been in

retaliation for it.... And her cat's-paw theory likewise fails,

principally because she hasn't shown, or even suggested,

the existence of any ‘biased recommendations’ from other

Sheriff's Office employees to the relevant decisionmakers.

*5 Id. at 17-18 (emphasis added). Thus, the Eleventh Circuit

affirmed the District Court's summary judgment in favor of

Defendant. Id. at 18.

After reviewing the record and viewing the evidence in

the light most favorable to the non-prevailing plaintiff, the

undersigned concludes that Plaintiff's appeal on Count III

was factually frivolous. Thus, the undersigned recommends

that Defendant be awarded appellate fees in connection with

Plaintiff's appeal of the District Court's grant of summary

judgment in favor of Defendant on Count III.

As with Count II, the undersigned applied the Sullivan factors,

all of which again weigh in favor of Defendant. First, Plaintiff

failed to establish a prima facie case, so that an award of

fees to the prevailing Defendant would be appropriate. See

Quintana v. Jenne, 414 F.3d 1306, 1310 (11th Cir. 2005).

In addition, no settlement offer was extended during the

litigation and the trial court granted summary judgment in

favor of Defendant as to Count III after full discovery. See

Sullivan, 773 F.2d at 1189. All three factors thus weigh in

favor of an award of fees.

Plaintiff correctly argues that although her appellate

arguments were ultimately unavailing, losing the appeal

should not automatically result in a post hoc finding by this

Court that her claim was frivolous. See (ECF No. 65 at 7). The

undersigned agrees. “The fact that a plaintiff may ultimately

lose [her] case is not in itself a sufficient justification for

the assessment of fees.” Hughes v. Rowe, 449 U.S. 5, 14

(1980); see also Head, 62 F.3d at 356 (“Merely because

plaintiff did not ultimately prevail on [its] federal claims does

not determine that [the] claims were groundless.”). But more

than a post hoc analysis of the merits of Plaintiff's claims

informs the undersigned's conclusion. Instead, critical to the

undersigned's conclusion is Plaintiff's failure to present any

evidence to support the retaliation claim in Count III. Indeed,

the District Court granted summary judgment for Defendant

because “Plaintiff's FCRA retaliation claim fail[ed] because

[Plaintiff] has not established the third element of her claim

—that the decision to terminate her was causally related to

the protected activity of filing her EEOC [c]harge.” (ECF

No. 40 at 8). The District Court further noted that “[b]oth

temporal proximity and knowledge of the decisionmaker

[were] missing.” Id. at 9. Notably, the Court found “no

record evidence that the ultimate decisionmakers knew about

Plaintiff's EEOC [c]harge.” Id. at 10 (emphasis added).

Moreover, even after full discovery, Plaintiff failed to offer

any evidence of pretext to counter Defendant's legitimate

reasons for its disciplinary actions. Id. at 11.

The Eleventh Circuit concurred. See (ECF No. 56 at

15-16). Like the District Court, the Circuit Court found “no

evidence that the relevant decisionmakers knew of [Plaintiff's]

protected activity, so any adverse action taken against her

couldn't have been in retaliation for it.... And her cat'spaw theory likewise fails, principally because she hasn't

shown, or even suggested, the existence of any ‘biased

recommendations’ from other Sheriff's Office employees to

the relevant decisionmakers. Id. at 17-18 (emphasis added).

*6 Against this background, where Plaintiff offered no

evidence to support her retaliation claim, the undersigned

finds that the case was so lacking in arguable merit so as to

be groundless and without foundation, warranting an award

of fees to the prevailing Defendant. It is the complete absence

of evidence to support the retaliation claim that distinguishes

the instant case from other cases in which other courts in this

District have found plaintiffs’ claims not frivolous and denied

fees to prevailing defendants. See, e.g., Guevara v. Fla. E.

Coast Ry., LLC., No. 18-CV-24726, 2020 WL 5578960, at

*3-5 (S.D. Fla. Aug. 7, 2020) (denying prevailing defendant

fees because, although plaintiff's claims “were undeniably

weak, ... [p]laintiff advanced some evidence in support of

his claims”) (emphasis added) (citations omitted), report and

recommendation adopted, 2020 WL 5572100 (S.D. Fla. Sept.

17, 2020) (J. Smith); see also Gilroy v. Baldwin, No. 16-

CV-14521, 2021 WL 6427476, at *3 (S.D. Fla. Dec. 15, 2021)

(noting that frivolity has been found in cases where plaintiffs

did not introduce any evidence to support their claims)

(emphasis added) (citations omitted); Minus v. Miami-Dade

Cnty., No. 19-CV-25113, 2021 WL 5238604, at *2 (S.D. Fla.

Oct. 30, 2021) (noting that frivolity has been found when a

motion for summary judgment or a motion for involuntary

dismissal has been granted where plaintiff did not introduce

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any evidence to support its claim) (emphasis added) (citation

omitted); Sloan v. Miami Dade Cnty., No. 18-CV-21517, 2020

WL 5902486, at *5 (S.D. Fla. Jan. 24, 2020) (referencing

lack of evidence as a factor in awarding attorney fees to

prevailing defendant) (emphasis added); Fair Hous. Ctr. of

Greater Palm Beaches, Inc. v. Shutters Condo. Ass'n, Inc., No.

08-CV-81566, 2011 WL 13172602, at *2-3 (S.D. Fla. Feb. 9,

2011) (denying prevailing defendant fees where appeals court

reviewed evidence presented to the jury and issue was weight

of the evidence, not lack of evidence) (emphasis added). This

critical distinction guides the undersigned's conclusion.

In sum, after considering the relevant factors, and in the

exercise of its discretion, the undersigned concludes that an

award of attorney's fees against Plaintiff and in favor of the

prevailing Defendant is appropriate as to Counts II (legally

frivolous) and III (factually frivolous).

IV. DETERMINING REASONABLE FEES

A. The Lodestar Method of Determining Fees

Courts in the Eleventh Circuit use the “lodestar” method

to calculate the value of an attorney's services. Norman v.

Hous. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.

1988). Under the lodestar method, a court first determines the

reasonable rate of an attorney's services and then determines

if the hours expended by counsel are reasonable. Id. at

1299-1302. “A reasonable hourly rate is the prevailing market

rate in the relevant legal community for similar services

by lawyers of reasonably comparable skills, experience,

and reputation.” Id. at 1299. The relevant legal community

is “the place where the case is filed.” ACLU of Ga. v.

Barnes, 168 F.3d 423, 437 (11th Cir. 1999) (quotations and

citation omitted). The movant “bears the burden of producing

satisfactory evidence that the requested rate is in line with

prevailing market rates[.]” Norman, 836 F.2d at 1299.

When determining whether the number of hours expended by

counsel is reasonable, the court “must deduct time spent on

discrete and unsuccessful claims.” Id. at 1302 (citing Hensley

v. Eckerhart, 461 U.S. 424, 435 (1983)). Further, courts 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 F.3d at 428. Thus,

when a court finds the number of hours claimed by counsel

is unreasonably high, the court may conduct an hour-by-hour

analysis or reduce the requested hours with an across-theboard cut, but not both. Bivins v. Wrap it Up, Inc., 548 F.3d

1348, 1351 (11th Cir. 2008); see also Procaps S.A. v. Patheon

Inc., No. 12-CV-24356, 2013 WL 6238647, at *16-17 (S.D.

Fla. Dec. 3, 2013) (reducing party's fee request with acrossthe-board cut based upon billing inefficiencies). Finally,

courts need not become “green-eyeshade accountants.” Fox

v. Vice, 563 U.S. 826, 838 (2011). Instead, the essential goal

for the court is to “do rough justice, not to achieve auditing

perfection.” Id.

B. Reasonable Hourly Rates

*7 “A reasonable hourly rate is the prevailing market rate in

the relevant legal community for similar services by lawyers

of reasonably comparable skills, experience, and reputation.”

Norman, 836 F.2d at 1299 (citing Blum v. Stenson, 465

U.S. 886, 895-96 n.11 (1984)). The relevant market is “the

place where the case is filed.” Barnes, 168 F.3d at 437

(quotation marks and citation omitted). Here, the relevant

legal community is South Florida.

Defendant seeks an award for legal services performed

by attorney Gale Ciceric Payne. (ECF No. 60 at 18) (the

“Affidavit”). According to the Affidavit, attorney Payne

billed Defendant, a public agency, at a discounted hourly

rate of $130. (Affidavit ¶ 5). Although the Affidavit

does not describe counsel's skills and experience, the

undersigned has reviewed attorney Payne's Florida Bar

profile, which reflects that he graduated from Duke

University School of Law and has been practicing law since

October 1980. See State Bar of Florida, Member Profile of

Gale Ciceric Payne, https://www.floridabar.org/directories/

findmbr/profile/?

num=306967&key=eaa063d0960609848e84c4eee7eb9602

(last visited April 18, 2022). Plaintiff, for her part, does not

address the reasonableness of counsel's rate. See generally

(ECF No. 65).

In determining reasonable hourly rates in South Florida,

the undersigned may consider certain factors, including

“the attorney's customary fee, the skill required to perform

the legal services, the attorney's experience, reputation and

ability, the time constraints involved, preclusion of other

employment, contingency, the undesirability of the case, the

attorney's relationship to the client, and awards in similar

cases.” Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D.

Fla. 1996) (citing factors articulated in Johnson v. Ga.

Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)

(the “Johnson factors”)).7 The Court also may consider its

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own knowledge and experience concerning reasonable and

proper fees and may form an independent judgment either

with or without the aid of witnesses as to value. Loranger

v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994) (quoting

Norman, 836 F.2d at 1303).

The Court has considered the relevant Johnson factors, the

time records submitted by counsel, and the record in this

case. See generally (ECF No. 60 at 22-32). Additionally, the

undersigned has considered counsel's Notice of Previously

Awarded Fees and Costs.8See (ECF Nos. 67, 68). Based on

this review, and the Court's own judgment and expertise, and

despite the sparsity of biographical information in counsel's

Affidavit, the Court finds that $130 is a reasonable discounted

hourly rate for attorney Payne's services in the South Florida

community. The Court is “deemed an expert on the issue of

hourly rates in this community and may properly consider ‘its

own knowledge and experience concerning reasonable and

proper fees and may form an independent judgment either

with or without the aid of witnesses as to value.’ ” Fiedler v.

Anglin's Beach Café, LLC, No. 15-60989, 2017 WL 1278632,

at *1 (S.D. Fla. Apr. 3, 2017) (quoting Loranger, 10 F.3d at

781). Thus, the undersigned recommends that attorney Payne

be awarded fees at the discounted hourly rate of $130.

C. Reasonable Hours Expended

*8 Having determined counsel's reasonable hourly rate, the

undersigned next determines the reasonableness of the hours

expended by the attorney working on the case. As a general

rule, attorneys must exercise what the Supreme Court has

termed “billing judgment.” Hensley, 461 U.S. at 434. That

means they must exclude from fee applications “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.” Norman, 836 F.2d at 1301 (quotations

and citations omitted).

Importantly, “if fee applicants do not exercise billing

judgment, courts are obligated to do it for them.” Barnes,

168 F.3d at 428. The fee applicant also bears the burden of

providing specific and detailed evidence so that the court

can determine the necessity and reasonableness of the time

claimed for the action. Id. at 427, 432-33. In the end, however,

“exclusions for excessive or unnecessary work on given tasks

must be left to the discretion of the district court.” Norman,

836 F. 2d. at 1301.

The undersigned has reviewed counsel's billing records. (ECF

No. 60 at 22-32). Although the billing records reflect 387.6

hours of work, Defendant seeks only $25,194 in fees, which

is “one half of the $50,338 total fees expended for this

entire appeal.”9 (Affidavit ¶ 6). According to Defendant,

this reduction seeks to exclude the time it spent addressing

Plaintiff's two FMLA claims (Counts I and IV), which do not

contain a statutory provision for attorneys’ fees to a prevailing

defendant. Id.

As with the reasonableness of the claimed hourly rate,

Plaintiff has not addressed the reasonableness of the hours

claimed by attorney Payne. See generally (ECF No. 65).

Nonetheless, the Court has independently reviewed counsel's

billing records and finds that some adjustment is necessary

to account for a number of billing inefficiencies. First,

Defendant's offer to cut its fees in half to account for time

spent on the two non-FCRA claims, although laudable, is

nonetheless arbitrary and unsupportable. Instead, Defendant

should have reviewed the billing records to more accurately

excise the hours expended on the non-compensable FMLA

claims.10 See Estrada v. Alexim Trading Corp., No. 10-

CV-23696, 2012 WL 4449470, at *12 (S.D. Fla. Sept. 26,

2012) (assessing the entire record, including specific billing

entries, to determine which hours were non-compensable).

In addition, the billing records contain several other billing

inefficiencies that require further adjustment to the hours

claimed. See generally (ECF No. 60 at 26-32) (billing

records). For example, the billing records reveal repeated

instances of inappropriate “block billing.” “Block billing”

is the practice of including multiple distinct tasks within

the same time entry. See Interim Healthcare, Inc. v. Health

Care@Home, LLC, No. 17-CV-61378, 2019 WL 6791465, at

*6 (S.D. Fla. Nov. 27, 2019). To illustrate, without indicating

how much time was spent on each task, the 5.5 hour time

entry for 4/2/20 reflects “[r]eceipt and review of Appellant's

Initial Brief; Outline points raised therein; Analyze issues

and counter arguments; Review Federal Rules of Appellate

Procedure and the Local Rules of the U.S. Court of Appeals

for the Eleventh Circuit; Calendar deadlines for Answer Brief

and Appellee's Appendix; Review deadline for Appellant's

Appendix.” (ECF No. 60 at 22). Similarly, the time entry for

4/3/20 reflects 5.6 hours spent to “[d]igest points argued in

Initial Brief; Check record to verify what issue(s) were raised

by appellant for the first time on appeal; Outline facts not

raised in Initial Brief and those to be featured in Answer Brief;

Review of record cites addressed in Initial Brief; Review of

pertinent portions of the record not referenced in Initial Brief;

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Prepare for Answer Brief.” Id. Additional examples of block

billing appear throughout the billing records. See, e.g., 4/6/20

time entry for 5.9 hours; 4/8/20 time entry for 6.3 hours;

4/9/20 time entry for 6.6 hours; 4/10/20 time entry for 7.1

hours; 4/13/20 time entry for 5.9 hours; 4/15/20 time entry for

7.5 hours; 5/14/20 time entry for 7.5 hours; and 5/4/21 time

entry for 3 hours.

*9 The billing records also reflect that counsel billed for

the performance of non-legal administrative and clerical

tasks, including, for example, “[c]alendar[ing] deadlines for

Answer Brief and Appellee's Appendix” (time entry for

4/2/20); cross-checking Appellant's record citations (time

entry on 4/24/20); checking deposition citations (time entry

for 5/3/20); calculating hours worked (time entry for 5/14/20);

preparing and checking supplemental appendix (time entries

for 5/21/20 and 5/28/20); electronically filing appellate brief

and serving paper copies on the Court (time entry for

5/29/20); and filing acknowledgement form (time entry for

4/13/21). See (ECF No. 60 at 22-32). These tasks appear

to be clerical rather than “work traditionally done by an

attorney,” and are not compensable at attorney or paralegal

rates. Kennedy v. Bonom Enters., Inc., No. 18-CV-62175,

2019 WL 1429513, at *3 (S.D. Fla. Mar. 29, 2019) (noting

that plaintiff could not recover fees for paralegal work that

was clerical in nature rather than work traditionally performed

by an attorney); Sensat v. Beryhill, No. 15-CV-24727, 2018

WL 5257143, at *4 (S.D. Fla. Oct. 22, 2018) (deducting

counsel's hours that pertained to “strictly clerical tasks”).

While the undersigned does not doubt that counsel worked

in good faith on the projects attributed to this case, the

Court must be able to verify the need or relatedness of

those projects before it can approve payment for the time

incurred. Interim Healthcare, 2019 WL 6791465, at *6

(citation omitted). Because of inappropriate block billing,

however, it is impossible for the undersigned “to ascertain

how much time was spent on each task.” Dial HD, Inc. v.

ClearOne Commc'ns, Inc., 536 F. App'x 927, 931 (11th Cir.

2013); Maiden Specialty Ins. Co. v. Three Chefs & a Chicken,

Inc., No. 12-CV-22724, 2014 WL 11429052, at *10 (S.D.

Fla. Jan. 28, 2014), report and recommendation adopted,

2014 WL 11429053 (S.D. Fla. Mar. 13, 2014) (reducing

fees for block billing where court was unable to determine

if the amount of time spent on each task was reasonable);

Estrada, 2012 WL 4449470, at *11 (reducing hours for block

billing where counsel failed to separate the entries to allow

the court to properly determine whether a reasonable amount

of time was spent reviewing a particular filing as opposed to

conferring about the filing).

For the foregoing reasons, the undersigned concludes that a

further reduction in the requested fees is appropriate.11 Rather

than conducting an hour-by-hour analysis of counsel's time

entries, the undersigned recommends an across-the-board

30% reduction to the amount of fees requested to account

for hours expended on the FMLA claims, block billing, and

other billing inefficiencies. See, e.g., Interim Healthcare,

2019 WL 6791465, at *6 (recommending a 10% reduction

for billing inefficiencies); Ovalle v. Perez, No. 16-CV-62134,

2017 WL 7792719, at *2 (S.D. Fla. Nov. 9, 2017), report and

recommendation adopted, 2017 WL 7796183 (S.D. Fla. Nov.

30, 2017) (adopting a 10% reduction for use of block billing,

redacted time entries, and redundancy in efforts); Shipping

and Transit, LLC v. 1A Auto, Inc., 283 F. Supp. 3d 1290 (S.D.

Fla. 2017) (adopting 15% reduction in fees based on billing

inefficiencies); Rubenstein v. Fla. Bar, No. 14-CV-20786,

2015 WL 1470633, at *4-6 (S.D. Fla. Mar. 31, 2015), report

and recommendation adopted, 2015 WL 11216722 (S.D.

Fla. Apr. 22, 2015) (adopting a 30% reduction to counsel's

hours for use of block billing); see also Bivins, 548 F.3d

at 1350 (noting that when the number of hours claimed is

unreasonably high, a court may conduct an hour-by-hour

analysis or may reduce the requested hours with an acrossthe-board cut). Consequently, the undersigned recommends

that Defendant be awarded $17,635.80 in attorneys’ fees

($25,194 × .70 = $17,635,80).

V. RECOMMENDATION

*10 Accordingly, for the reasons set forth above, the

undersigned respectfully RECOMMENDS that Defendant's

Motion for Appellate Attorney's Fees (ECF No. 60) be

GRANTED IN PART and that Defendant be awarded

$17,635.80 in appellate attorney's fees.

Within fourteen (14) days after being served with a copy

of this Report and Recommendation, any party may serve

and file written objections to any of the above findings and

recommendations as provided by the Local Rules for this

District. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). Failure

to timely object waives the right to challenge on appeal the

District Court's order based on unobjected-to factual and legal

conclusions contained in this Report and Recommendation.

11th Cir. R. 3-1 (2021); see Thomas v. Arn, 474 U.S. 140

(1985).

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DONE AND ORDERED in Chambers at Fort Lauderdale,

Florida, on April 18, 2022.

All Citations

Slip Copy, 2022 WL 2340951

Footnotes

1 Plaintiff also challenged the District Court's summary judgment in favor of Defendant as to Counts I and IV (FMLA

interference and retaliation claims).

2 To be clear, Defendant incurred $50,388 in appellate fees, but requests an award of only $25,194. See (ECF No. 60 at

19). In the Motion, Defendant acknowledges that the FMLA, unlike the FCRA, does not provide for an award of attorney's

fees to a prevailing defendant. Id. Accordingly, Defendant has reduced its appellate fees ($50,388) by half to exclude

fees incurred in connection with the FMLA claims. Id. Defendant's method for adjusting its fees will be addressed below.

See Section IV.C., infra.

3 Without explanation or supporting case law, Plaintiff summarily argues that Defendant is not the prevailing party. See,

e.g., (ECF No. 65 at 4, 5). Arguments raised in cursory fashion are deemed waived. See Bryan v. Saul, No. 19-CV-63164,

2021 WL 707594, at *10 n.11 (S.D. Fla. Feb. 6, 2021).

4 As discussed above, Sullivan requires consideration of three factors in determining whether a claim or case is frivolous:

(i) whether Plaintiff established a prima facie case; (ii) whether Defendant offered to settle; and (iii) whether the trial court

dismissed the case prior to trial or held a full-blown trial on the merits. Sullivan,773 F.2d at 1189.

5 At oral argument before the Eleventh Circuit, Plaintiff's counsel candidly admitted that he was asking the Court to “change

Florida law” and seek an “advisory opinion” from the Florida Supreme Court. See Audio Recording of Oral Argument

(“Oral Argument”) at time entry 1:40-1:50. But, as Judge Newsom pointed out, the Eleventh Circuit will certify a question

to the Florida Supreme Court only when the Court is “pretty dog-gone uncertain about the result” and not “so the Florida

Supreme Court can innovate” the law. (Oral Argument at 28:50-29:27). Thus, the Eleventh Circuit rejected Plaintiff's

request that it certify to the Florida Supreme Court the question of whether the FCRA covers associational discrimination,

explaining that “the question isn't close, and the sources of Florida law ... more than suffice to allow us to reach a principled

conclusion.” See (ECF No. 56 at 14 n. 4).

6 Plaintiff does not dispute Defendant's assertion that no settlement offer was extended during the litigation. (ECF No.

60 at 9).

7 The Eleventh Circuit has adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior

to the close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).

8 Counsel's Notice of Previously Awarded Fees lists more than 20 cases in which counsel has been awarded his nondiscounted trial and appellate attorney's fees in this District in the last two years. See generally (ECF No. 68). The courtapproved fee awards have ranged from $150 to $500. Id.

9 The billing records did not tally the total hours expended, thus requiring the undersigned to add the time entries to obtain

the total hours claimed: 387.6 hours. At an hourly rate of $130, this results in a fee request of $50,388.

10 For example, the billing records contain several entries reflecting time expended on the FMLA claims. See, e.g., time

entries for 5/5/20, 5/13/20, 5/14/20. (ECF No. 60). However, because of poor billing practices, it is impossible for the

undesigned to determine how much time Defendant spent working on the FMLA claims.

11 This further reduction would also address billing inefficiencies resulting from potentially excessive or duplicative work.

Once again, because of the pattern of block billing, the Court is unable to ascertain the reasonableness of seemingly

duplicative tasks, which are carried over from one day to the next. See, for example, time entries for drafting and revising

Evidentiary Hearing Exhibit 24

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answer at 4/6/20, 4/7/20, 4/8/20, 4/9/20, 4/10/20, 4/13/20, 4/14/20, 4/15/20, 4/16/20, 4/17/20, 4/18/20, 4/19/20, 4/20/20,

4/21/20, 4/22/20.

End of Document © 2023 Thomson Reuters. No claim to original U.S.

Government Works.

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