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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION,

Plaintiff,

v. Case No. 3:10cv378/MCR/CJK

WEST CUSTOMER MANAGEMENT

GROUP, LLC,

Defendant.

_________________________________/

REPORT AND RECOMMENDATION

In an amended Report and Recommendation entered on July 28, 2014, the

undersigned recommended that plaintiff Equal Employment OpportunityCommission

(“EEOC”) be required to pay attorneys’ fees and costs pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). Doc. 307. The district judge

adopted the recommendation subject to certain modifications and referred the matter

to the undersigned to conduct all further proceedings in the event the parties could

not agree on a reasonable award of costs. Doc. 316. After the district judge entered

her order adopting and modifying the report and recommendation, defendant West

Customer Management Group, LLC n/k/a West Business Solutions, LLC (“West”)

filed a supplemental motion for attorneys’ fees and nontaxable expenses, seeking fees

and expenses incurred in litigating the attorneys’ fee issue. Doc. 319. That motion,

as well as the amount of attorneys’ fees and expenses to be awarded, is before the

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undersigned for consideration. As with West’s initial motion for attorneys’ fees and

nontaxable expenses, the EEOC vehemently opposes West’s supplemental motion,

contending the same was untimely filed, and also the amount of fees and expenses

requested. 

According to Local Rule 54.1 of the Northern District of Florida, motions for

attorneys’ fees “shall be filed and served within the time specified in the scheduling

order entered in the case and as otherwise provided in Fed. R. Civ. P. 54(d).” The

scheduling order entered in this case did not address motions for attorneys’ fees and

expenses; the Federal Rules of Civil Procedure thus control. According to Fed. R.

Civ. P. 54(d)(2)(B)(i), “[u]nless a statute or a court order provides otherwise, the

motion must . . . be filed no later than 14 days after the entry of judgment.” 

West filed its initial motion for attorneys’ fees and expenses within fourteen

days of the entry of final judgment in its favor. West filed its supplemental motion

within fourteen days of entry of the district judge’s order adopting the undersigned’s

report and recommendation regarding attorneys’ fees and expenses. The EEOC

argues that West was required to file any motion for attorneys’ fees within fourteen

days of the entry of judgment and that because it did not file its supplemental motion

within that time, it should be stricken or denied. The undersigned is not persuaded

by the EEOC’s position, which has been rejected by the Eleventh Circuit. 

In Villano v. City of Boynton Beach, 254 F.3d 1302 (11th Cir. 2001), the

Eleventh Circuit addressed whether supplemental hours submitted after the entry of

judgment should have been included in the attorneys’ fee award. The local rule at

issue in that case required motions for attorneys’ fees and costs to “be filed and

served within 30 days of entry of Final Judgment or other dispositive order.” Id. The

court held that, “[i]n order to preserve the statutory right to fees and costs,” the rule

had to be construed to “allow supplements to be filed within 30 days after the entry

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of a post-judgment order ruling on a post-judgment motion.” Id. at 1310. The court

cautioned that it “would find a rule that eviscerated a statutory right to fees and costs

in conflict with federal law.” Id. at 1309. Under this court’s local rule, interpreted

in the manner prescribed by the Eleventh Circuit, West had fourteen days after entry

ofthe district judge order’s adopting the Report and Recommendation in which to file

its supplemental motion for attorneys’ fees. Because West filed its motion within that

time, it was timely. 

As to the substance of West’s motion, Local Rule 54.1 outlines the procedure

to be followed with respect to motions for attorneys’ fees. Pursuant to Rule 54.1, 

[i]n any proceeding in which any party isseeking an award

of attorneys’ fees from the opposing party pursuant to any

statute, contract, or law, the party seeking such an award of

attorneys’ fees shall:

(1) Maintain a complete, separate, and accurate record of

time (to the nearest 1/10 of an hour) devoted to the

particular action, recorded contemporaneously with the

time expended, for each attorney and each specific activity

involved in the action (i.e., not just “research” or

“conference”); and

(2) File electronically a summary of such time record with

the clerk by the fifteenth (15th) day of each month during

the pendency of the action, for work done during the

preceding month.

* * * 

(5) Failure to comply with these requirements will result in

attorneys’ fees being disallowed for the omitted period.

Local Rule 54.1(B). Once the court has awarded fees, the party to whom such fees

were awarded shall file “an affidavit setting out the requested amount and specifically

describing the requested rate of compensation and the numbers of hours spent in the

prosecution or defense of the case as are reflected in the monthly reports filed with

this court, with sufficient detail to identify the exact nature of the work performed.”

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N.D. Fla. Loc. R. 54.1(E)(1). The party awarded fees must also “file and serve a

supporting affidavit from an attorney, familiar with the area of law involved, that the

requested rate for hourly compensation is in line with the prevailing market rate for

the work performed.” N.D. Fla. Loc. R. 54(E)(3). 

With regard to the amount of fees and expenses requested in this case, limited

by the district judge to fees and expenses incurred after the date of the pretrial

conference, the undersigned finds that West complied with Local Rule 54.1. Indeed,

West submitted an affidavit from its counsel, Julie A. Springer, setting forth her

credentials, as well as those of the other lawyers and paralegal involved; the number

of hours spent by the attorneys and paralegal; the hourly rates; and the nontaxable

costs incurred. According to the billing records, West’s counsel spent 259.1 hours

from January 17, 2014, the date of the pretrial conference, through January 31, 2014,

the conclusion of trial, and incurred $7,319.67 in nontaxable expenses during that

time. As for the rates, West requests that Ms. Springer and Geoffrey D. Weisbart be

compensated at a rate of $350.00 per hour, that Bane Phillippi be compensated at a

rate of $275.00 per hour, and that Salena Yzaguirre, a paralegal, be compensated at

a rate of $135.00 per hour. West submitted an affidavit from Michael J. Schofield,

a local attorney who has practiced law for over thirty years representing clients in a

variety of matters, including labor and employment disputes. Mr. Schofield affirmed

the reasonableness of the rates charged by West’s counsel. 

The well-established lodestar method guides a determination of the

reasonableness of attorneys’ fees. This method is “properly calculated by multiplying

the number of hours reasonably expended on the litigation times a reasonable hourly

rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984); see also Norman v. Hous. Auth. of

City of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988). A reasonable hourly rate

is based upon “‘the prevailing market rate in the relevant legal community for similar

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services by lawyers of reasonably comparable skills, experience, and reputation.’”1

Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir.1996) (quoting Norman, 836

F.3d at 1299). In calculating the number of hours reasonably expended on the

litigation, the court should exclude excessive, unnecessary, and redundant hours, as

well as time spent litigating “discrete and unsuccessful claims.” Duckworth, 97 F.3d

at 1397. “The fee applicant bears the burden of establishing entitlement and

documenting the appropriate hours and hourly rates.” Norman, 836 F.2d 1292 at

1303. With respect to rates, an applicant may meet its burden by producing either

direct evidence of rates charged under similar circumstances or opinion evidence of

reasonable rates. Id. at 1299. In addition, the Eleventh Circuit has noted that “the

court ... is itself an expert on the question [of attorney’s fees] 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.” Id.

at 1303 (quotation and citation omitted). 

Based on the undersigned’s knowledge and experience, having made and

reviewed fee awards for twenty-four years, as well as Mr. Schofield’s affidavit, the

undersigned finds both the hours and rates requested by West to be reasonable. The

undersigned likewise finds the costs reasonable. In so finding, the court notes the

contentious nature of this litigation, instituted by the federal government with its

To aid in the determination of an attorney's reasonable hourly rate, the court may also 1

consider, to the extent relevant, the factors set out in Johnson v. Georgia Highway Express, Inc., 488

F.2d 714, 717–19 (5th Cir.1974). The Johnson factors include: (1) the time and labor required, (2)

the novelty and difficulty of the questions, (3) the degree of skill necessary to serve the client

properly, (4) the attorney's inability to accept other employment because he accepted the case, (5)

the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the

client or the circumstances, (8) the amount of damages involved and the relief or results obtained,

(9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11)

the nature and length of the attorney's professional relationship with the client, and (12) awards in

similar cases. Id. at 717. The going rate in the community, however, is the most critical factor in

setting the fee rate. Martin v. Univ. of S. Ala., 911 F.2d 604, 610 (11th Cir.1990).

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unlimited resources in a seeming attempt to punish and make an example of West. 

The EEOC has conducted itself throughout these proceedings in an unusually

aggressive, if not vexatious, manner. The EEOC’s response to West’s motion is yet

another example of these tactics. In its response, the EEOC scoffed at West’s expert,

a well-respected local attorney who testified to the reasonableness of the rates West

requested. The EEOC opposed those rates even though its own expert did not find

them unreasonable and, instead, suggested “more appropriate” rates that are not

significantly lower than those requested by West. The EEOC criticized West for

having more than one attorney at trial despite the fact that three attorneys and a

paralegal attended the trial on the EEOC’s behalf. The EEOC opposed West’s

recovery of fees for travel time on the basis that West could have retained local

counsel; notably, however, the EEOC used counsel from out of state. Considering

the circumstances of this case, the undersigned findsthe fees and expensesrequested

by West to be abundantly reasonable. 

 Accordingly, it is respectfully RECOMMENDED as follows:

1. That West be awarded $90,541.50 in attorneys’ fees and $7,319.67 in

nontaxable expenses incurred from the date of the pretrial conference through the

conclusion of the trial. 

2. That Defendant’s Supplemental Motion for Award of Attorneys’ Fees

and Nontaxable Expenses (doc. 319) be GRANTED.

3. That West be allowed twenty-one (21) days in which to submit materials 

in support of its claim for attorneys’ fees and nontaxable expenses incurred in

litigating the attorneys’ fee issue and that the EEOC be allowed fourteen (14) days

thereafter in which to respond. 

4. That the matter be remanded to the undersigned to conduct all further 

proceedings regarding the issue of attorneys’ fees and nontaxable expenses. 

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At Pensacola, Florida, this 24th day of March 2015.

/s/Charles J. Kahn, Jr. 

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

ten days after being served a copy hereof. Any different deadline that may appear on

the electronic docket isfor the court’s internal use only, and does not control. A copy

of any objections shall be served upon any other parties. Failure to object may limit

the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States

v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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