FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 9, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-16115

________________________

D. C. Docket No. 06-22225-CV-PAS

OSCAR PEREZ,

FRANCISCO RENGIFO,

JOHN HUMPHREYS,

JUAN ALBA,

WILHELM PERIERA,

ED MAZZEO,

Plaintiffs-CounterDefendants-Appellants,

MIOMIR MAKSIMCEV,

GEORGE POWELL,

Plaintiffs-Appellants,

DIMITRE KARABOYTCHEV, et al.,

Plaintiffs,

LAW FIRM OF GLASSER, BORETH & KLEPPIN, P.A.,

Interested Party-Appellant,

versus
CAREY INTERNATIONAL, INC.,

a Delaware corporation qualified to

do business in the State of Florida,

CAREY LIMOUSINE FLORIDA, INC.,

a Delaware corporation qualified to

do business in Florida,

Defendants-CounterClaimants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 9, 2010)

Before O’CONNOR, Associate Justice Retired, CARNES and ANDERSON,

*

Circuit Judges.

PER CURIAM:

This appeal is about attorney’s fees and costs in a retaliation lawsuit brought

under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. A court-appointed

special master helped the parties settle the lawsuit, and the parties agreed to have

him consider the plaintiffs’ motion for attorney’s fees and costs as if he were a

magistrate judge. Plaintiffs’ counsel requested $204,525 in fees. The special

master issued a report and recommendation that the plaintiffs’ attorneys should be

Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States *

Supreme Court, sitting by designation.

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awarded a total of $94,080 in fees and $9,342.43 in costs. Those amounts reflected

a reduction in the compensable hours and the hourly rates of the lawyers and a

reduction in the amount of costs requested.

While the special master’s report was being considered by the district court,

plaintiffs’ counsel moved to put into the record a transcript of a session that the

parties had with the special master on August 21, 2007. The district court denied

that motion after finding that the transcript was a record of confidential settlement

negotiations.

The district court adopted the special master’s report and recommendation in

its entirety, except that the court lowered the recommended amount of attorney’s

fees by $2,397.50. Eight of the plaintiffs and the law firm of Glasser, Boreth &

Kleppin, P.A. have appealed the district court’s fees and costs judgment.

I.

“We . . . review the district court’s award of attorneys’ fees and costs for

abuse of discretion, revisiting questions of law de novo and reviewing subsidiary

findings of fact for clear error.” Atlanta J. & Const. v. City of Atlanta Dep’t of

Aviation, 442 F.3d 1283, 1287 (11th Cir. 2006). “In reviewing the district court’s

hourly rate determination, an appellate court must be mindful that, although an

attorney fees award is reviewed for abuse of discretion, the determination of what

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constitutes a reasonabl[e] hourly rate is a finding of fact subsidiary to the total

award and is therefore reviewed under the clearly erroneous standard.” ACLU of

Ga. v. Barnes, 168 F.3d 423, 436 (11th Cir. 1999) (quotation marks and alteration

omitted).

II.

The plaintiffs contend that the district court abused its discretion by finding

that attorney Harry O. Boreth was not entitled to any fees. They also contend that

the court should not have reduced Chris Kleppin’s and Lloyd Glasser’s hourly

rates and the number of hours that they claimed. The plaintiffs also challenge the

district court’s refusal to tax as costs the special master’s fees and the costs

associated with two depositions taken by plaintiffs’ counsel. Finally, they contend

that the district court abused its discretion by finding that the transcript of the

parties’ session with the special master on Aug. 21, 2007, was an inadmissible

record of confidential settlement negotiations. We will address each of those

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contentions in turn.

A.

The plaintiffs sought $17,820 in fees for 39.6 hours of work done by

We reject the plaintiffs’ argument that the special master erred by failing to hold a fee 1

hearing. When determining reasonable attorney’s fees, “[o]ccasionally, evidentiary hearings are

necessary.” Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). Not

always, but only occasionally. See id. This was not one of those occasions. 

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attorney Boreth at an hourly rate of $450. The district court awarded nothing.

Conducting a lodestar analysis, the court found that all of Boreth’s time

“duplicate[d] the work performed by Attorneys Kleppin and Glasser,” which led it

to conclude that none of Boreth’s time was reasonably expended on the litigation.

(R.4-146 at 3.) The court reinforced that conclusion with its finding that the

quality of Kleppin’s work did not reflect guidance from a senior attorney. (See id.)

The plaintiffs assert that district court should have counted Boreth’s work on

the following tasks: (1) reviewing and signing the scheduling report; (2) reviewing

the scheduling order and ensuring that the dates were properly calendared and

scheduled; (3) drafting proposed settlement agreements and an ADEA addendum;

(4) working all day at mediation on July 27 with law partners Glasser and Kleppin.

The plaintiffs argue that Boreth’s presence was required at the mediation because

there were many clients who had different demands, offers, and responses to

offers. They assert that the district court erred by concluding that none of Boreth’s

time was compensable. Their position is that because they were the prevailing

party in the litigation, and Boreth was one of their attorneys, they should be

awarded a lodestar amount of fees for his legal work on their behalf.

The lodestar is calculated using “‘the number of hours reasonably expended

on the litigation multiplied by a reasonable hourly rate.’” Kenny A. ex rel. Winn v.

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Perdue, 532 F.3d 1209, 1219 (11th Cir. 2008) (quoting Hensley v. Eckerhart, 461

U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983)), cert. granted, 129 S. Ct. 1907

(2009). The lodestar is “‘the guiding light of our fee-shifting jurisprudence.’” Id.

(quoting City of Burlington v. Dague, 505 U.S. 557, 562, 112 S. Ct. 2638, 2641

(1992)). Redundant, excessive, or otherwise unnecessary hours should not be

included in the calculation of hours reasonably expended. Hensley, 461 U.S. at

434, 103 S. Ct. at 1939–40. Even when a party prevails, the district court still must

determine whether time was reasonably expended, and if it was not, that time

should be excluded from the fee calculation. See id.

In the present case the district court properly conducted a lodestar analysis

and did not err in its application of the law to the calculation of Boreth’s

compensable fees. Because the record supports the district court’s finding that the

time expended by Boreth was redundant, excessive, or otherwise unnecessary, the

court did not abuse its discretion by concluding that none of Boreth’s time was

compensable.

B.

The plaintiffs sought $15,660 in fees for attorney Glasser based on 34.8

hours of work at an hourly rate of $450. The special master recommended

reducing Glasser’s hourly rate to $350 and his compensable hours to 29.1 for a

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total fee of $10,185. The special master found that $350 an hour was a reasonable

rate for Glasser because of the “nature of the work performed by Mr. Glasser, his

background and experience, and his limited participation in this lawsuit.” (R.4-131

at 13.) The district court adopted those findings. The plaintiffs contend that the

district court should have calculated the lodestar for Glasser using an hourly rate of

$450 because that is Glasser’s usual rate, and the record contains no basis for

reducing it.

“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 v. Hous. Auth. of Montgomery, 836 F.2d

1292, 1299 (11th Cir. 1988). Although “limited participation” is not a proper basis

for reducing an attorney’s hourly rate, the “nature of the work” and the

“background and experience” of the attorney are proper considerations. We cannot

conclude that the district court clearly erred by considering those factors and

setting Glasser’s hourly rate at $350.

In calculating Glasser’s number of compensable hours, the district court

acted within its discretion. The court adopted the special master’s findings that set

out the precise time entries by Glasser that were disallowed, resulting in a

reduction of compensable hours. All of the disallowed time involved consultations

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between multiple partners or one partner’s review of another one’s work. Based on

those findings, the district court’s decision that the hours it disallowed were

duplicative or unnecessary did not amount to an abuse of discretion. See Hensley,

461 U.S. at 434, 103 S. Ct. at 1939–40.

C.

1.

The plaintiffs contend that the district court erred when it set attorney

Kleppin’s hourly rate at $175. In their sessions with the special master, the

plaintiffs did not submit expert fee affidavits because the master planned to set the

hourly rate as it was determined by the district court in a related case, Powell v.

Carey International, Inc., 547 F. Supp. 2d 1281 (S.D. Fla. 2008). In his report the

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special master noted, “At the time the parties agreed to have me issue this report

and recommendation[,] they were aware that I had intended to rely on the hourly

rates utilized by the Court in the not yet issued Powell fee orders in my report. At

that time, neither party objected.” (R.4-131 at 13 n.9.) The plaintiffs’ objections

quickly arose, however, after the district court decided to set Kleppin’s hourly rate

at $175 in Powell.

In Powell the plaintiffs sought $481,887 in attorney’s fees, and the district

The plaintiffs, defendants, counsel for both sides, district judge, magistrate judge, and 2

special master were the same in the present case and in the Powell case. 

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court awarded plaintiffs $88,623.15 in fees. 547 F. Supp. 2d at 1283. Kleppin

sought fees for 1,534.6 hours of work at $270 per hour. Id. at 1284. The district

court found that Kleppin’s “conduct in this case . . . bears directly on the proper

hourly rate and the amount of hours for which he should be compensated.” Id. at

1286. The court had this to say about Kleppin:

Unfortunately, Plaintiffs’ counsel was never able to grasp or was

unwilling to acknowledge the simple legal nature of this case. . . .

Even responding to Defendants’ strenuous defense, this case could

have and should have been litigated in less than a third of Kleppin’s

time. The disturbing undercurrent in this case from the outset has

been on what will ultimately generate the greatest fees rather than

legitimate recovery for Plaintiffs.

Furthermore, Plaintiffs’ counsel’s lack of understanding of the

substantive and evidentiary law, repeated failures to comply with

Court directions and rules, as well as their failure to exercise the

critically important independent judgment, prolonged the litigation

and generated unnecessary work for both counsel and the Court. This

fact bears significantly on the appropriate hourly rate and number of

hours that the Court can consider as reasonable in light of the nature

of the case.

Id.

Specifically, the court criticized Kleppin’s “unrealistic and legally

unsupportable damage calculations” and pointed out that some of the plaintiffs

received less than they would have if they had settled their claims before this

lawsuit was filed. Id. at 1286–88. The court took into account what it described as

Kleppin’s “actions in demanding grossly inflated and totally unsupported damage

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claims and ignoring settled law. . . .” Id. at 1289. The court explained that it had

appointed a special master (the same one as in the present case) to help Kleppin

“learn the procedures for preparing for trial, including the organization of relevant

evidence and the calculation of damages, and to help him learn to present the legal

aspects of the case to a court.” Id. at 1290 n.12. The court also criticized

Kleppin’s motions practice, finding that he “filed multiple motions that often were

a waste of time, money and resources.” Id. at 1290.

As for Kleppin’s hourly rate, the court found that “[b]ased on the quality of

the papers filed, the in-court presentations and the repeated lack of familiarity with

his evidentiary obligations, Kleppin’s performance was more akin to a new

associate and the customary rate in the community for all associates is in the range

of $150 to $350.” Id. at 1294. The court exercised its independent judgment, see

Norman, 836 F.2d at 1303, and determined that a rate of $175 was appropriate for

Kleppin. 546 F. Supp. 2d at 1294. After hearing oral argument, this Court

affirmed the district court’s judgment. Powell v. Carey Int’l, Inc., 323 Fed. App’x

829 (11th Cir. Apr. 21, 2009) (unpublished).

Even in the face of the affirmance of the Powell judgment, which included

an hourly rate of $175 for Kleppin, the plaintiffs contend that is not a reasonable

hourly rate for him. They point out that Kleppin has been awarded higher hourly

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rates in other cases. They argue that the Powell case is different from the present

one, suggesting that the factors leading to a reduced hourly rate in that case do not

justify one here.

We disagree. The special master and the district court specifically found

that the quality of Kleppin’s work product in the present case revealed some of the

same deficiencies that the court had also identified in Powell. In determining a

reasonable hourly rate, “[a] court . . . is itself an expert on the question and may

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

marks omitted). In determining a reasonable hourly rate, a court may assess the

skills of the lawyers and the quality of the representation in the case currently

before the court. See Turner v. Sec’y of Air Force, 944 F.2d 804, 808–09 (11th

Cir. 1991) (affirming district court judgment that took into account counsel’s work

product, preparation, and general ability when setting an hourly rate). We cannot

conclude that the district court clearly erred by finding that the hourly rate it

awarded to Kleppin in the Powell case was also an appropriate hourly rate for the

present case based on the similarity of his performance in both cases. Cf. Norman,

836 F.2d at 1299 (stating that a reasonable hourly rate may be determined based on

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“similar services by lawyers of reasonably comparable skills”).

2.

The plaintiffs also contend that the district court abused its discretion by

reducing Kleppin’s number of compensable hours. Their arguments about

reduction of time are either conclusory, composed of rhetorical questions, or are

otherwise unpersuasive. The district court reduced Kleppin’s number of

compensable hours based on a detailed chart evaluating precisely which hours

were unnecessary, imprecisely logged, excessive, or redundant.

That chart shows that the largest single block of time disallowed is 34.3

hours for work defending against the defendants’ counterclaims. (R-4.131 at 11.)

The special master concluded that it was “[n]on-compensable work as not related

to prosecution of FLSA claims.” (Id.) The district court agreed. (R-4.146 at 7.)

The sole basis for the plaintiffs’ argument that they should have been

compensated for their counsel’s work on the counterclaims is rooted in Lawrence

v. Credit Thrift of Am., Inc., 622 F.2d 1207 (5th Cir. 1980). There is a problem

3

with their reliance on that decision, which is that the decision was vacated when

the case was taken en banc. 628 F.2d 931 (5th Cir. 1980) (en banc). The en banc

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we

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adopted as binding precedent all decisions of the former Fifth Circuit handed down before

October 1, 1981.

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opinion in Lawrence held that the “portion of the opinion of the district court

which denies plaintiff recovery of attorney’s fees for time spent in defending the

compulsory counterclaim is affirmed by an evenly divided court.” Lawrence v.

Credithrift of Am., Inc., 644 F.2d 506 (5th Cir. 1981). As a result, that part of

Lawrence has no precedential value. See Lacy v. Gen. Fin. Corp., 651 F.2d 1026,

1028 (5th Cir. Unit B July 1981) (“An affirmance by an evenly divided court,

however, has no precedential value. . . .”).

In the Lacy opinion, our predecessor court explained that the Truth in

Lending Act permits the award of reasonable attorney’s fees if those fees are

incurred in order to enforce TILA liability. Id. at 1029. The counterclaim in Lacy,

which was for the balance of underlying debt, was related to the TILA claim and

was a compulsory counterclaim. Id. at 1027, 1029. The court held, however, that

the prevailing plaintiff could not collect attorney’s fees incurred in the defense of

the counterclaim because it did not arise under TILA. Id. That reasoning applies

with equal force to the Fair Labor Standards Act claims in the present case.

Furthermore, as the district court recognized, time spent on discrete and

unsuccessful claims is not compensable. See Hensley, 461 U.S. at 434–35, 103 S.

Ct. at 1940; Norman, 836 F.2d at 1302. Thus, the district court correctly

concluded that the time plaintiffs’ counsel spent on the counterclaims was not

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compensable.

D.

The plaintiffs sought $26,605.45 in costs, but the court awarded only

$9,342.43. The largest cost item requested, and disallowed, was for payment of

$13,133.75 for the services of the special master. The district court’s order

appointing the special master had authorized him to apportion his costs between

the parties. See Fed. R. Civ. P. 53(g) (relating to compensation of a special master

and the allocation of payment between the parties). The special master

recommended that his costs should be shared equally by the parties, basing that

recommendation “on the reasons for [his] appointment, the role that [he] played in

the proceedings[,] and [his] observation of the litigation.” (R.4-131 at 18.) The

district court agreed. (R.4-146 at 9.)

The plaintiffs rely on Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316,

1323–24 (5th Cir. 1978), overruled on other grounds by, Copper Liquor, Inc. v.

Adolph Coors Co., 701 F.2d 542 (5th Cir. 1983), to argue that special master costs

are to be paid to the prevailing party even if, when the master was appointed, the

parties agreed to each pay half of the master’s costs. See id. (“The trial court also

taxed the defendants as costs $3,000 which initially had been assessed against the

plaintiffs as their share of the special master’s fee. . . . The fact that the trial court

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appointed the master constitutes a sufficient showing that the master’s services

were necessary. It was thus within the scope of the trial court’s discretion to award

as costs to the prevailing party their share of the special master’s fee.”). But Carpa

did not hold that it was mandatory for the district court to award special master

costs to the prevailing party, only that it was within the court’s discretion to do so.

See id. Moreover, Carpa probably did not survive Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 107 S. Ct. 2494 (1987). In Crawford Fitting the

Supreme Court limited the taxation of costs to those set forth in 28 U.S.C. §§ 1821

and 1920. See id. at 441–42, 107 S. Ct. at 2497. Neither section permits the

taxation of the fees of a special master as costs. See 28 U.S.C. §§ 1821, 1920.

The district court was authorized to split the cost of the special master’s

services between the parties, see Fed. R. Civ. P. 53(g), and it provided legitimate

reasons for doing so. There was no abuse of discretion.

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E.

The plaintiffs contend that the district court abused its discretion when it

prohibited them from filing as part of the record the transcript of a settlement

session with the special master on August 21, 2007. The plaintiffs sought to file

The plaintiffs alternatively argue that the special master is really an expert, and therefore 4

his fees are taxable under 28 U.S.C. § 1920(6). We disagree. The special master functioned as a

special master, not as a court-appointed expert, and his fees are not taxable as costs. See

Crawford Fitting, 482 U.S. at 441–42, 107 S. Ct. at 2497. 

15
that transcript to support their assertion that statements made by the special master

during the August 21 session are inconsistent with his later recommendations about

attorney’s fees. In their reply brief to this Court, the plaintiffs quoted extensively

from the parts of the transcript that they believed supported their arguments. Even

if we were to consider the excerpts from the transcript that the plaintiffs rely on, we

still find their arguments unpersuasive. We are not convinced that the district court

abused its discretion by refusing to admit and consider the transcript of the August

21 hearing, and we are convinced that it would have made no difference.

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III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

We deny as moot both the plaintiffs’ motion to file with this Court the transcript and a 5

related memorandum and the defendants’ motion “to strike (disregard)” the portions of the

plaintiffs’ reply brief that quote from the transcript. 

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