Gutierrez v. The 1873 Club of Texarkana

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

COURTNEY GUTIERREZ PLAINTIFF

v. Case No. 4:20-cv-4108

THE 1873 CLUB OF TEXARKANA;

CROSSTIES OF TEXARKANA, INC.;

CROSSTIES TEXARKANA HOLDINGS,

INC.; ALLISON MUNN; JOE GAY; and

RONALD LESLIE MUNN DEFENDANTS

ORDER

Before the Court is Plaintiff’s Motion for Costs and Attorneys’ Fees. (ECF No. 31).

Defendants responded. (ECF No. 33). Plaintiff replied. (ECF No. 34). The matter is ripe for

consideration.

I. BACKGROUND

On December 15, 2020, Plaintiff filed this action, alleging that Defendants willfully

violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the Arkansas

Minimum Wage Act (“AMWA”), Ark. Code Ann. § 11-4-201, et seq., by failing to pay her for all

hours worked, including overtime. Defendants answered, denying liability.

On April 20, 2021, the parties filed their joint Rule 26(f) report. After that, the docket

reflects no other activity in this case until October 8, 2021, when the parties filed a joint motion

for referral to settlement conference. The Court granted that motion, and the conference was

initially set for December 2, 2021. It was later cancelled and ultimately reset for March 18, 2022.

The parties attended the settlement conference with the Honorable Mark E. Ford, United States

Magistrate Judge for the Western District of Arkansas, and tentatively settled Plaintiff’s claims as

to liability damages only. They then moved for, and received, the Court’s approval of their

settlement agreement. The Court dismissed Plaintiff’s claims with prejudice, except to the extent

that they involve attorneys’ fees and costs. On that issue, the parties asked for thirty days to try to

settle the issue of fees and costs. If they could not agree on fees and costs, Plaintiff would file a

contested fee petition.

The parties could not agree, so Plaintiff has now filed her motion for attorneys’ fees and

costs. Defendants oppose the motion.

II. DISCUSSION

Plaintiff asks for an award of $14,017.25 in attorneys’ fees and $1,062.00 in costs, for a

total of $15,079.25. Defendants argue these amounts are unreasonable and should be reduced.

The Court will separately address fees and costs.

A. Attorneys’ Fees

Plaintiff asks for $14,017.25 in attorneys’ fees. Defendants argue this amount is too much

and should be reduced.

The FLSA contains a fee-shifting scheme that mandates an award of reasonable attorneys’

fees to a prevailing plaintiff. See 29 U.S.C. § 216(b). The AMWA provides similarly. See Ark.

Code Ann. § 11-4-218(a)(1)(B)(ii). There is no dispute that Plaintiff is a prevailing party in this

case. The burden of proving reasonable attorneys’ fees rests with Plaintiff, the fee applicant here.

See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). She must submit evidence supporting the

hours worked and rates claimed. Id. at 433.

The starting point for determining attorneys’ fees is the lodestar, which is calculated by

multiplying the number of hours reasonably expended by the reasonable hourly rate.1 Fish v. St.

1 The Court considers twelve factors when calculating the lodestar: (1) time and labor required; (2) novelty and

difficulty of the questions; (3) skill requisite to perform the legal service properly; (4) preclusion of other employment

due to acceptance of 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 involved and the results obtained; (9) the experience,

Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002). “[T]he lodestar method produces an award

that roughly approximates the fee that the prevailing attorney would have received if he or she had

been representing a paying client who was billed by the hour in a comparable case.” Perdue v.

Kenny A. ex rel. Winn, 559 U.S. 542, 546 (2010). “A reasonable fee is one that is adequate to

attract competent counsel, but . . . [does] not produce windfalls to attorneys.” Hendrickson v.

Branstad, 934 F.2d 158, 162 (8th Cir. 1991).

Defendants argue that Plaintiff’s requested attorneys’ fees are not based on reasonable rates

or a reasonable number of hours. The Court will separately determine reasonable rates and hours,

and then will use them to calculate the lodestar.

1. Reasonable Hourly Rates

Plaintiff requests attorneys’ fees for the work of five attorneys, a paralegal, and a student

law clerk. For the attorneys, she seeks rates of $383.00 per hour for Josh Sanford; $300.00 per

hour for Vanessa Kinney; $285.00 per hour for Krista Sheets; $190.00 per hour for Courtney

Lowery; and $150.00 per hour for Samuel Brown. She seeks rates of $100.00 per hour for the

paralegal and $75.00 per hour for the law clerk. Defendants argue these rates are excessive and

should be reduced.

A “reasonable hourly rate” is the ordinary rate for similar work in the community where

the case is litigated, which in this case is Texarkana, Arkansas. See Miller v. Dugan, 764 F.3d

826, 831 (8th Cir. 2014). Plaintiff offers no evidence of the prevailing rate in Texarkana for

services like those performed in this case, but the Court can use its own experience and knowledge

reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar cases. Hensley, 461 U.S. at 430 n.3. For AMWA claims, the

Court considers mostly identical factors outlined in Chrisco v. Sun Industries, Inc., 304 Ark. 227, 229-30, 800 S.W.2d

717, 718-19 (1990).

of prevailing market rates to determine reasonableness. See Warnock v. Archer, 397 F.3d 1024

(8th Cir. 2005).

Plaintiff’s attorneys are experienced in litigating wage and hour cases.2 But this was not a

novel or complicated case, and it did not require any special skill to do the services provided.

Plaintiff alleged that she worked for Defendants for three months and was not properly paid

minimum wage and overtime. After Defendants answered the complaint and the parties filed their

joint Rule 26(f) report, the docket reflects that the case sat dormant until the parties asked to go to

settlement conference, where they settled Plaintiff’s claims as to liability in the amount of

$6,400.00. No substantive issues were ever litigated and the joint motion for referral to settlement

conference was the first motion filed in the case. The case was never certified as a class or

collective action, and no other plaintiff joined or opted in. Apparently, Plaintiff sent initial

discovery requests to Defendants, but then agreed that Defendants did not have to respond because

settlement talks were already underway. Nothing indicates that this case was undesirable, that

taking it precluded counsel’s employment elsewhere, or that any time limitations were imposed.

Plaintiff also offers no evidence of what her attorneys would customarily charge a traditional, fee-

paying client.

Considering the above factors, all but one of Plaintiff’s asserted rates exceed the prevailing

market rate in Texarkana, Arkansas. Using the Court’s knowledge of the Texarkana market,

reasonable rates will be assessed as follows: $250.00 per hour for Mr. Sanford, $175.00 per hour

for Ms. Kinney, $150.00 per hour for Ms. Sheets, $150.00 per hour for Ms. Lowery, $150.00 per

hour for Mr. Brown, $75.00 per hour for the paralegal, and $25.00 per hour for the law clerk.

2 Mr. Sanford provided a declaration in support of the fee request that, in part, outlined each attorney’s overall

experience and, for most, their specialization within his firm. (ECF No. 31-2, pp. 6-7).

2. Reasonable Number of Hours Worked

A fee applicant must make a “good faith effort to exclude from a fee request hours that are

excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. However, counsel’s

submission of hours is not conclusive, and the Court must exclude any time that was not reasonably

expended on the litigation. Id. at 433-34. The Court has “substantial discretion in deciding the

number of hours to be awarded” for a contested fee petition like this one. Dean v. Bradford Ests.,

LLC, No. 4:19-cv-0748-BSM, 2020 WL 8642227, at *1 (E.D. Ark. Nov. 24, 2020).

Plaintiff seeks fees for 51.85 total hours of work: 31.9 hours by Krista Sheets, 7.25 hours

by Josh Sanford, 3.3 hours by Vanessa Kinney, 2.6 hours by Courtney Lowery, 0.9 hours by

Samuel Brown, 3.5 hours by the paralegal, and 2.4 hours by the law clerk. Plaintiff states that her

attorneys and their support staff originally billed 77.25 hours for a total of $20,611.95, but then

performed a self-audit and reduced those amounts to 51.85 and $14,017.25, respectively. Despite

that, the bulk of Defendants’ objections argue that more cuts are necessary.

i. Excessive Entries

Defendants suggest that the use of seven timekeepers—five attorneys, a paralegal, and a

law clerk—is generally excessive for this straightforward FLSA case, especially given that it

settled relatively easily. The use of multiple attorneys on a case is not per se unreasonable. In

some cases, it can “be more efficient and lead to a reduction in the total number of hours worked.”

Franklin v. Magnolia Flooring Mill, LLC, No. 1:17-cv-1073-SOH, 2019 WL 2427952, at *4 (W.D.

Ark. June 10, 2019). This can certainly be true if specialist lawyers are the sole contributors to

discreet subparts of the case that align with their area of expertise, allowing them to do that work

more efficiently than a generalist lawyer. But a problem arises if too many lawyers unreasonably

bill work for certain tasks, especially in a routine case like this one. See Oden v. Shane Smith

Enters., Inc., 27 F.4th 631, 632 (8th Cir. 2022) (noting Plaintiff’s counsel’s history of “over-

staffing cases, micro-managing associates, billing attorneys’ rates for administrative tasks, and

failing to self-audit records that are submitted to the court for reimbursement”). The Court will

not make a blanket reduction because multiple timekeepers worked on this case, but rather will

reduce specific instances of unnecessary or duplicative billing.

Next, Defendants take issue with the fact that three attorneys billed time in connection with

this case’s complaint. Ms. Lowery billed 2.10 hours on December 15, 2020, for among other

things, preparing and drafting the complaint and summons, conferencing with Mr. Sanford

regarding the complaint and the defendants’ identities, and then editing the complaint. That same

day, Mr. Sanford billed 0.3 hours conferencing with Ms. Lowery about the complaint and the

defendants’ identities, and 0.25 hours editing and revising the complaint.

Mr. Sanford’s entries that day were unnecessary. In his declaration, he states that Ms.

Lowery is an “expert in screening and drafting FLSA claims” and that she specializes in drafting

wage and hour complaints, making her the most efficient choice for that task. (ECF No. 31-2, pp.

7, 15). He represents that in 2020, “no attorney in the United States drafted more FLSA lawsuits

than Ms. Lowery.” (ECF No. 31-2, p. 7). If that is true, it was unnecessary for Mr. Sanford to

conference with her about the complaint and then edit her work product afterwards. Cf. Rorie v.

WSP2, LLC, No. 5:20-cv-5106-CDC, 2021 WL 4900992, at *4 (W.D. Ark. Oct. 20, 2021) (“Mr.

Sanford simultaneously asks this Court to recognize SLF lawyers as ‘experts’ in the FLSA field

for whom higher than average hourly rates are appropriate but then asks the Court to award fees

for his micromanagement of these lawyers.”). Nothing stops Mr. Sanford from personally

overseeing the work done by a specialist attorney at his firm, but Defendants do not have to pay

for it. See Oden v. Shane Smith Enters., No. 4:19-cv-0693-BRW, 2020 WL 8073626, at *2 (E.D.

Ark. Dec. 16, 2020) (“SLF certainly can engage in a ‘collaborative approach’ involving constant

oversight by a senior lawyer, but it cannot expect (nor should it ask) Defendant[s] to pay for the

practice.”). The Court will subtract 0.55 hours from Mr. Sanford’s total.

For the same reasons, it was unnecessary for Ms. Lowery to conference with Mr. Sanford

about the complaint, purportedly her area of expertise. Ms. Lowery block-billed her entry on

December 15, 2020, making it difficult to tell from that entry how much time she spent on

conferences. The Court will subtract 0.3 hours from Ms. Lowery’s time, matching the amount of

time Mr. Sanford billed for the same conferences.

Ms. Sheets, the primary attorney on this case, billed 1.9 hours on December 28, 2020, for

reviewing the then-filed complaint and prior correspondence between Plaintiff and Defendants.

Defendants do not have to pay for Plaintiff’s attorneys reading filings created by their co-counsel.

See id. at *3 (excluding time billed for reviewing co-counsel’s filings). Because Ms. Sheets block-

billed her entry on December 28, 2020, the Court cannot tell how she split her time between

reviewing the complaint and reviewing Plaintiff’s prior correspondence with Defendants. The

Court will reduce Ms. Sheets’ time by 0.5 hours.

Defendants take a similar issue with the fact that two attorneys and the paralegal billed

time for editing and reviewing the settlement agreement, which was originally drafted by defense

counsel. The Court agrees that this is excessive.

Mr. Sanford’s declaration states that Mr. Brown’s practice focuses on wage and hour

settlement and that he finalizes several settlements per week, making his involvement in settlement

matters “efficient and highly beneficial.” (ECF No. 31-2, pp. 7, 15). However, the paralegal billed

the most time on the settlement agreement, billing 0.6 hours on April 13, 2022, for editing and

revising it. (ECF No. 31-1, p. 15). Mr. Brown billed 0.2 hours on May 3, 2022, for reviewing

edits to the settlement agreement made by defense counsel and for corresponding with them

regarding the same. There is nothing unreasonable about the paralegal acting as the primary editor

on the settlement agreement or about Mr. Brown communicating with opposing counsel about

edits made to the agreement.

However, Ms. Sheets also billed time on the settlement agreement. She billed 0.2

combined hours on April 18 and 21, 2022, for examining the settlement agreement, and billed

another 0.2 combined hours on April 18 and 20, 2022, for conferencing with Mr. Brown about the

settlement terms. It is unclear why Ms. Sheets examined the paralegal’s edits to the settlement

agreement and later conferenced with Mr. Brown about those edits. Much like how Ms. Lowery

was the specialist who drafted the complaint, Mr. Brown is purportedly the specialist whose role

was to finalize the settlement. Thus, if an attorney needed to review the settlement agreement, he

should have done it. Nothing prevents Ms. Sheets from reviewing the subparts of a case that

specialists work on, but Defendants do not have to pay for it. Cf. Murdock v. McNair, No. 5:17-

cv-5225-TLB, 2018 WL 6314569, at *1 (W.D. Ark. Dec. 3, 2018) (holding that defendants do not

have to pay for time spent mentoring other attorneys); Burchell v. Green Cab Co., Inc., No. 5:15-

cv-5076-PKH, 2016 WL 894825, at *3 (W.D. Ark. Mar. 8, 2016) (cutting time billed for “oversight

and, to some extent, education” of a lawyer). 0.4 hours will be subtracted from Ms. Sheets’ time.

Defendants also ask for reduction of multiple instances where Mr. Sanford and Ms. Sheets

both billed time for examining and/or reading the same court orders or CM/ECF notifications.

(ECF No. 33, pp. 9-10). It was unnecessary for Mr. Sanford to bill for reading orders that were or

should have been read by Ms. Sheets—the lead attorney—given the case’s straightforward nature

and the small amount of substantive work done on it. See Oden, 2020 WL 8073626, at *2 (cutting

time billed for a “‘collaborative approach’ involving constant oversight by a senior lawyer”), aff’d

sub nom. Oden, 27 F.4th 631. The following numbered entries from Mr. Sanford on the billing

spreadsheet will be cut as duplicative and/or unnecessary: 100, 112, 135, 232, 243, 305, 314, 364,

412, 460, 475, 493, 507. 1.3 hours will be subtracted from Mr. Sanford’s time.

For similar reasons, the Court also cuts multiple billed entries from Mr. Sanford for

“examination” of various emails and inter-office memoranda. Billing for “examination” of a

document is too vague for the Court to tell whether the action was necessary. See Rorie, 2021 WL

4900992, at *4 (speaking unfavorably of the practice of billing for “examining” documents and

excluding the same). It also implies that Mr. Sanford was not a participant in the examined email

exchanges, because he billed multiple other entries for “receive, read and prepare response to”

emails. A fee-paying client would not reasonably pay for a firm’s senior partner to read emails

that were sent or received by junior attorneys. See Oden, 2020 WL 8073626, at *2 (cutting time

billed for a “‘collaborative approach’ involving constant oversight by a senior lawyer”). The

following numbered entries from Mr. Sanford on the billing spreadsheet will be cut as duplicative

and/or unnecessary: 11, 13, 43, 61, 62, 112, 159, 174, 205, 257, 270, 310, 339, 342, 343, 355,

360, 366. 1.8 hours will be subtracted from Mr. Sanford’s time.

Moving to another issue, Ms. Sheets appears to have billed twice for reading the same

order. On May 18, 2022, she billed 0.1 hour for examining the Court’s order lifting the trial setting.

On May 20, 2022, she again billed 0.1 hour for examining the order lifting the trial setting. A fee-

paying client would not pay for an attorney to read the same order twice. The second billing entry

will be cut, and 0.1 hour will be subtracted from Ms. Sheets’ time.

Finally, the Court must cut several billing entries involving unexplained acronyms. On

December 11, 2020, Mr. Sanford billed 0.1 hour for “Examination of NOA-Banes.” On March

10, 2022, Ms. Sheets billed 0.1 hour for “Conference with ZB re: NOA.” That same day, the

paralegal billed 0.4 hours for “Preparation and drafting of NOA.” On March 14, 2022, Mr. Sanford

billed 0.1 hour for “Examination of NOA-KS.” The Court does not know what “NOA” refers to,

what significance it has in this case, or if it is even related to this case. Nothing in Plaintiff’s

motion, supporting brief, or exhibits explains what “NOA” is.3 Thus, the Court finds these entries

unnecessary and will cut all time related to them. The Court will subtract 0.2 hours from Mr.

Sanford’s time, 0.4 hours from the paralegal, and 0.1 hour from Ms. Sheets. A similar cut will be

made for Mr. Sanford’s billing entry for “Examination of JNOS” on March 21, 2022. That

acronym and its relevance to this case are not explained, so its associated billing entry is therefore

unnecessary. 0.1 hour will be subtracted from Mr. Sanford’s time.

ii. In-House Communication

Defendants take issue with there being sixty-seven billing entries categorized as “In House

Communication.” They argue this is excessive and should be significantly reduced. Plaintiff

argues that frequent intra-firm communication, often through conferencing, allows for more

efficient work because lawyers can share information and knowledge with one another, thereby

saving time for the lawyer doing the work. Plaintiff also states that her counsel pre-emptively

excluded the in-house communication billables for all timekeepers except Mr. Sanford and Ms.

Sheets.

Plaintiff’s counsel have repeatedly been admonished for excessive intra-office

communication. See, e.g., Huffman v. Associated Mgmt. Ltd., No. 4:20-cv-1296-BRW, 2021 WL

3122338, at *5 (E.D. Ark. July 22, 2021) (outlining multiple federal courts’ examination and

criticism of Plaintiff’s counsel’s billing practices), aff’d, No. 21-2859, 2022 WL 1114631 (8th Cir.

Apr. 14, 2022). The Court appreciates that counsel excluded all billing entries for intra-office

3 Notably, Mr. Sanford’s supporting declaration defines at least one acronym used in the billing spreadsheet. (ECF

No. 31-2, p. 11).

communications other than those from Mr. Sanford and Ms. Sheets. However, even those entries

are excessive for a case as straightforward as this one.

Mr. Sanford and Ms. Sheets billed a combined 7.4 hours for in-house communication. Some

of those billings have already been addressed in the previous section or will be addressed in

subsequent sections. What remains here are the billing entries for conferencing.

Mr. Sanford billed twice for intra-firm conferences, for a total of 0.4 hours. (ECF No. 31-

1, pp. 1, 8). On December 8, 2020, he billed 0.3 hours for a conference with someone designated

by the initials “AS” about “merits, facts, defenses.” Then, on September 8, 2021, he billed 0.1

hour for a conference with someone with the initials “KS,” presumably Ms. Sheets, about

“damages; call with OC.”

The Court will allow the first conference but not the second. Throughout the case, Ms.

Sheets was the sole biller for all other conferences she had with Mr. Sanford, so it is unclear why

she did not bill for the September 8, 2021, conference instead of him. Given that their other

conferences were billed for only by Ms. Sheets, a traditional fee-paying client would likely not

agree to pay for that instance being billed for by Mr. Sanford at a much higher hourly rate. Cf.

Huffman, 2021 WL 3122338, at *6 (cutting the higher rate for time billed for activities performed

by two lawyers), aff’d, 2022 WL 1114631. 0.1 hour will be subtracted from Mr. Sanford’s total.

That leaves Ms. Sheets, who was the primary biller for intra-firm conferences. She billed

forty-five times for conferences, for a total of 4.7 hours. Again, some of those billings are

addressed elsewhere in this order. But for the remaining entries, a small reduction is necessary to

eliminate redundancies and excessiveness, given that this was a simple case involving one client.

0.5 hours will be subtracted from Ms. Sheets’ time.

iii. Discovery

Plaintiff’s counsel and their staff billed a total of 4.1 hours on discovery. On August 9,

2021, a law clerk billed 1.3 hours for preparing discovery requests. That day and the next, Ms.

Sheets billed 0.6 hours for revising and conferencing about those discovery requests. On August

11, 2021, the law clerk billed 1.1 hours for preparing more discovery requests, and Ms. Sheets

billed 0.6 hours later that day for revising and conferencing about them.

On September 9, 2021, Ms. Sheets billed 0.1 hour for receiving and responding to an email

from Defendants’ counsel about an extension of time to respond to discovery. From November

15, 2021, through January 14, 2022, Ms. Sheets billed four entries at a combined 0.4 hours for

conferencing about the discovery deadline. On January 11, 2022, the paralegal billed 0.3 hours

for drafting Plaintiff’s supplemental disclosures. Over the next few days, Ms. Sheets billed a total

of 0.3 hours for conferencing about the supplemental disclosures, and the paralegal billed 0.2 hours

for drafting an email to Defendants’ counsel about the same.

Defendants argue that the time Plaintiffs’ counsel billed on discovery was unnecessary,

given that the case settled without the use of formal discovery. The Court disagrees.

The discovery period formally began on April 20, 2021, when the parties filed their joint

Rule 26(f) report. The discovery deadline passed on January 16, 2022. The parties first asked to

go to settlement conference on October 8, 2021. The settlement conference was originally set for

December 2, 2021, but it was eventually rescheduled for March 18, 2022.

Had Plaintiff’s counsel or staff billed for discovery after the case settled at the settlement

conference, or even after the discovery period ended, it would have been unnecessary. But that

did not happen here. All discovery-related billing entries occurred during the discovery period.

There is nothing unreasonable about Plaintiff’s counsel preparing initial discovery requests or

supplemental disclosures and serving them on Defendants before the case settled and while the

discovery period was still open.4 No reduction in time is warranted for the discovery-related

entries.

iv. Client Communication

Plaintiff’s billing spreadsheet has thirty-eight entries—mostly categorized as client

communication and billed by Ms. Sheets—the substance of each is described as “ATTORNEY-

CLIENT PRIVILEGE.” Defendants argue that these entries are too vague to show that these

entries were necessary, and thus, they should all be removed.

On July 6, 2022, the Court ordered Plaintiff to provide these billing entries in unredacted

form for in camera review. Plaintiff did so on July 12, 2022. To avoid any issue with

confidentiality, the Court will not discuss the specifics of these entries.5 However, the Court has

reviewed all unredacted “ATTORNEY-CLIENT PRIVILEGE” entries. A slight reduction is

necessary to eliminate excessive client communication. 0.5 hours will be subtracted from Ms.

Sheets’ time.

v. Settlement Conference

Defendants argue that Ms. Sheets and Mr. Sanford billed redundantly for the settlement

conference.

4 The discovery deadline passed roughly two months before the parties attended the settlement conference and the

parties never asked for an extension of that deadline. It is unclear how the parties intended to address discovery if

they had not settled at the settlement conference. Regardless, whatever informal agreement the parties had about

Defendants not needing to respond to propounded discovery requests before attending the settlement conference had

no impact on the discovery obligations set by the Court’s Final Scheduling Order.

5 A few of the entries perhaps should not have been redacted on the billing spreadsheet based on attorney-client

privilege. The descriptions of some redacted entries have a similar level of detail as other unredacted “client

communication” entries on the billing spreadsheet, like Ms. Sheets’ unredacted billing entries 191 and 198 regarding

emails to Plaintiff “re: case status” and “re: update,” or her unredacted billing entry 296 for a phone call to Plaintiff

“re: MJSC cancelled.” (ECF No. 31-1, pp. 7, 11).

Ms. Sheets billed an hour on December 2, 2021, preparing for the settlement conference.

However, the settlement conference was cancelled on December 2, 2021, transferred to a new

magistrate judge, rescheduled for February 3, 2022, cancelled again, and ultimately reset for March

18, 2022. On March 17, 2022, Ms. Sheets billed 1.1 hours preparing for the settlement conference.

Defendants appear to argue that the March 17, 2022, billing entry was redundant and should be

excluded. The Court disagrees. Ms. Sheets spent an hour preparing for the initial settlement

conference, which was cancelled the day it was set to occur. Three months later, she spent a similar

amount of time preparing for the rescheduled conference. That is not unreasonable given the

length of time that had passed. Those billing entries will not be reduced.

Defendants also take issue with Ms. Sheets billing 3.9 hours for “[t]ravel time and

attendance at Court for settlement conference (Zoom).” (ECF No. 31-1, p. 14). They argue that

the settlement conference was held virtually, so it is unreasonable to bill for time spent on travel.

Plaintiff contends that this entry was just boilerplate language that was not adjusted to account for

the fact that no travel occurred. Obviously, Defendants would not be required to pay for travel

time billed in connection with a virtual settlement conference. Defendants provide no evidence

that this occurred, though, so the Court will not reduce the time entry.

Finally, Defendants point out that Mr. Sanford billed 0.2 hours receiving and responding

to emails from Ms. Sheets about the progress of the settlement conference as it was occurring.

They argue that this communication was unnecessary and should be cut. This time will be allowed

because it is brief.

vi. Fee Petition

Vanessa Kinney, who Mr. Sanford describes as having “extensive briefing experience,

especially in preparing fee petitions,” (ECF No. 31-2, p. 15) billed 3.3 total hours in connection

with the instant fee petition. On June 11, 2022, she billed 1.4 hours for downloading “billing,”

formatting the billing spreadsheet, and categorizing billing entries. On June 12, 2022, she billed

1.5 hours for drafting the fee petition and the supporting brief and declaration. Later that day, she

billed 0.4 hours for editing and revising the same.

Defendants argue this time is excessive, given that the petition is similar in form and

substance to fee petitions submitted in other cases by the same counsel. Defendants also argue

that duplicative billings for reviewing the petition must be removed.

1.9 hours is not too long to draft and edit the fee petition and supporting brief. See Huffman

2021 WL 3122338, at *6 (stating it “should take a[n] hour or two” to draft an FLSA fee petition).

There are no instances on the billing spreadsheet (ECF No. 31-1, pp. 17-18) of anyone else

reviewing or editing the fee petition, so no reductions are required on that basis.

However, the Court will cut the 1.4 hours Ms. Kinney billed for downloading billing data,

creating the billing spreadsheet, and categorizing the billing entries on it. Although the billing

spreadsheet is helpful to the Court here, its creation is non-legal clerical work that cannot be passed

onto Defendants in a fee-shifting award. See Shrader v. OMC Aluminum Boat Group, Inc., 128

F.3d 1218, 1222 (8th Cir. 1997) (stating that clerical work is not compensable in a fee-shifting

award); Rorie 2021 WL 4900992, at *4 (describing the preparation of FLSA billing spreadsheets

as clerical work); Hill-Smith v. Silver Dollar Cabaret, Inc., No. 5:20-cv-5051-TLB, 2020 WL

4741917, at *3 n.3 (W.D. Ark. Aug. 14, 2020) (same). 1.4 hours will be subtracted from Ms.

Kinney’s total.

3. Lodestar Calculation and Adjustment

Using the above-determined reasonable rates and hours, the lodestar is calculated as

follows:

Reasonable Hourly Reasonable Hours

Billed By Value

Rate Worked

Josh Sanford $250 3.20 $800.00

Vanessa

$175 1.90 $332.50

Kinney

Krista Sheets $150 29.80 $4,470.00

Samuel Brown $150 0.90 $135.00

Courtney

$150 2.30 $345.00

Lowery

Law Clerk $25 2.40 $60.00

Paralegal $75 3.10 $232.50

Total 43.50 $6,375.00

The Court can adjust the lodestar amount “in extraordinary circumstances,” but “there is a

strong presumption that the lodestar is sufficient.” Perdue, 559 U.S. at 546. To determine whether

extraordinary circumstances exist, the Court considers whether other factors suggest upward or

downward adjustment of the lodestar amount. Hensley, 461 U.S. at 434. In doing so, the Court

considers the factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir.

1964).6 See Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir. 2001). The Court need only address

any factors that warrant explicit consideration. Griffin v. Jim Jamison, Inc., 188 F.3d 996, 997-98

(8th Cir. 1999).

As previously discussed, this was a straightforward wage and hour case that was settled

without the parties conducting any meaningful discovery or motion practice. Any Johnson factor

6 The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill

requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of

the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client

or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of

the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the

client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. Most of these factors are covered in the initial

lodestar calculation. Hensley, 461 U.S. at 434.

relevant here has already been covered above when determining the lodestar. Thus, the lodestar

represents an appropriate amount for this routine case and no further adjustment is necessary.

Plaintiff will be awarded reasonable attorneys’ fees of $6,375.00.

B. Costs

The FLSA and AMWA also allow for reasonable costs to be paid to a prevailing plaintiff.

See 29 U.S.C. § 216(b); Ark. Code Ann. § 11-4-218(a)(1)(B)(ii); see also Fed. R. Civ. P. 54(d)

(stating costs taxable under 28 U.S.C. § 1920 should be awarded to a prevailing party unless a

statute, rule, or court order says otherwise). Plaintiff spent $402.00 on this case’s filing fee and

$660.00 to hire a private process server. She asks to recover each, for a total of $1,062.00.

Defendants have no problem with the $402.00 filing fee but argue that the use of a private process

server cannot be recovered as costs.

Recovery of the filing fee is proper and will be allowed. As for the process-server costs,

Defendants are right that expenses for using a private process server are not contemplated by 28

U.S.C. § 1920, and normally cannot be recovered as costs by a prevailing party under Rule 54(d).

See Crues v. KFC Corp., 768 F.2d 230, 234 (8th Cir. 1985). But “[i]n FLSA cases, costs are not

limited to the categories set forth in § 1920 for prevailing parties.” Koenig v. Bourdeau Const.

LLC, No. 4:13-cv-0477-SNLJ, 2014 WL 6686642, at *5 (E.D. Mo. Nov. 26, 2014). The Eighth

Circuit has interpreted other fee-shifting statutes as going beyond section 1920 and allowing an

award of all “reasonable out-of-pocket expenses” that would normally be charged to a fee-paying

client. See Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1036 (8th Cir. 2008) (affirming in

a Title VII case an award of costs that would not be allowed under 28 U.S.C. §1920). Courts have

extended that rationale to FLSA cases and “routinely grant[]” requests for “[r]eimbursement for

reasonably incurred out-of-pocket expenses.” See, e.g., Harris, 2018 WL 617972, at *14 (D.

Minn. Jan. 29, 2018). The Court does so here.

Section 1920 aside, Defendants do not argue that the use of a private process server was

unnecessary or unreasonable in this case. The private process server costs will be allowed.

Plaintiff will be awarded reasonable costs of $1,062.00.

III. CONCLUSION

For the above-stated reasons, Plaintiff’s motion for attorneys’ fees and costs (ECF No. 31)

is hereby GRANTED IN PART AND DENIED IN PART.7 Plaintiff is awarded $6,375.00 in

reasonable attorneys’ fees and $1,062.00 in reasonable costs, for a total of $7,437.00. These fees

and costs shall be paid pursuant to the six-month installment plan in the parties’ settlement

agreement.

No other issues remain, so the Clerk of Court is DIRECTED to close this case. The Court

retains jurisdiction to vacate this order upon cause shown that the settlement has not been

completed and further litigation is necessary.

IT IS SO ORDERED, this 22nd day of July, 2022.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge

7 Plaintiff requested a hearing on the instant motion, which has been fully briefed. The parties had a full and fair

opportunity to provide any argument and evidence relevant to the motion. The Court does not believe that a hearing

would aid in its understanding of the facts or in its determination of the legal issues presented. Accordingly, the

request for a hearing is DENIED.