Anderson v. Creve Coeur Urgent Care LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

TORIA ANDERSON, et al., )

)

Plaintiffs, )

)

v. ) Case No. 4:16CV2136 HEA

)

CREVE COEUR URGENT CARE, )

LLC, et al., )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Plaintiffs’ Motion for Attorney Fees and

Costs [Doc. No. 138]. Defendants oppose the Motion. For the reasons set forth

below, Plaintiffs’ Motion will be granted in part and denied in part.

Background

On December 22, 2016, Plaintiffs Toria Anderson and Wendy Medina

(collectively, “Plaintiffs”) filed a three-count Complaint alleging that Defendants,

their former employers, violated the Fair Labor Standards Act (“FLSA”), 29

U.S.C. § 201 et seq. (Count I), violated the overtime provisions of the Missouri

Minimum Wage Law (“MMWL”), Mo. Rev. Stat. § 290.505 (Count II), and

committed breach of contract (Count III).

On July 3, 2019, Plaintiffs filed a motion for summary judgment, which this

Court granted on September 24, 2019. In its Order, the Court ruled that (1)

Defendants violated the FLSA and MMWL by failing to properly compensate

Plaintiffs for overtime hours; (2) Plaintiffs were entitled to liquidated damages on

their FLSA claim; and (3) Defendant Sonny Saggar was individually liable for the

FLSA violations. Plaintiffs seemingly abandoned Count III in their motion for

summary judgment.

Plaintiffs filed their Motion for Relief on October 4, 2019, seeking a total

of $57,353.46, specifically $10,394.06 in unpaid overtime wages and $10,394.06

in liquidated damages for Plaintiff Anderson, and $18,282.67 in unpaid overtime

wages $18,282.67 in liquidated damages for Plaintiff Medina.

The Court ultimately awarded Plaintiff Anderson a judgment of $328.60 and

Plaintiff Medina a judgment of $539.54, for a total award of $868.14.

This matter was set for trial on November 8, 2021. On November 5, 2021,

the parties moved to dismiss the remaining claims with prejudice. On November 8,

2021, the Court entered a Final Judgment awarding Plaintiffs actual and liquidated

damages for their claim that Defendants failed to include weekend shift differential

pay in their calculation of their overtime rates of pay in the amount of $328.60 to

Plaintiff Anderson and $539.54 to Plaintiff Medina, for a total award of $868.14,

and dismissed Plaintiffs’ other claims.

Plaintiff now requests for the Court to order Defendants to pay $210,739.50

in attorneys’ fees and $14,488.73 in costs pursuant to the FLSA and MMWL.

Defendant objects to the amounts and requests the Court’s award for attorneys’

fees and costs be between $1,054.79 and $2,604.42.

Legal Standard

The FLSA provides that, in addition to a judgment awarded to a plaintiff in

an FLSA action, the court shall “allow a reasonable attorney's fee to be paid by the

defendant, and the costs of the action.” 29 U.S.C. § 216(b). Similarly, the MMWL

directs that employers found in violation of the law “shall be liable...for costs and

such reasonable attorney fees as may be allowed by the court or jury.” RSMo §

290.527.

The starting point for determining the amount of reasonable attorneys' fees is

the lodestar amount, which is the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S.

424, 433 (1983). The Court “has great latitude to determine a reasonable hourly

rate because it is intimately familiar with its local bar.” Childress v. Fox Assocs.,

LLC, 932 F.3d 1165, 1172 (8th Cir. 2019). The court also “may rely on

reconstructed time entries to calculate the hours worked if those entries

satisfactorily document the time,” but “should exclude ‘hours that were not

reasonably expended’ from its calculations.” Id., quoting Hensley, 461 U.S. at 434.

Other factors the Court may consider include (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 other employment; (5) the customary

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

client or circumstances; (8) amount involved and results obtained; (9) experience,

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

and length of professional relationship with client; and (12) awards in similar

cases. See Hensley, 461 U.S. at 430 n.3. “In sum, the court should calculate the

reasonable hourly rate and the reasonable number of hours worked, use these two

variables to calculate the lodestar, and, as appropriate, adjust the lodestar to reach

the final award.” Burton v. Nilkanth Pizza Inc., 20 F.4th 428, 431 (8th Cir. 2021)

Discussion

Attorneys’ Fees

Plaintiffs seek attorneys’ fees in the amount of $209,490.00 based on a total

of 688.2 hours expended on the litigation of the claims against Defendants by

Brown, LLC. Plaintiffs also seek attorney’s fees for local counsel Engelmeyer &

Pezzani, LLC, in the amount of $1,249.50, bringing the total to $210,739.50. The

attorneys’ fees for Brown, LLC (“the firm”) include the following fee expenses:

Name and Initials of

Timekeeper Position Hours | Total Billed

Founder of Brown,

Jason Brown ("JTB") LLC | $500.00 76.6 $38,150.00

Nicholas Conlon ("NC") $300.00 529.8 | $158,940.00

Patrick Almonrode ("PA") $300.00] 6.4 | $1,920.00

Ching-Yuan "Tony" Teng

"TT" Associate | $200.00 20.9 $4,180.00

Irene Chan ("IC") $200.00 $1,400.00

Administrative

Bernardo Valdez ("BV") Assistant | $100.00 12.7 $1,270.00

Administrative

Caitlin Keating ("CK") Assistant | $100.00 2.3 $230.00

Administrative

Christy Weser ("CW") Assistant | $100.00 2.2 $220.00

Administrative

Osmara Suazo ("OS") Assistant | $100.00 14 $1,400.00

Administrative

Rebecca Mahabir ("RM") Assistant | $100.00 14.8 $1,480.00

Administrative

Sueherminia Colon ("SC) Assistant | $100.00 0.3 $30.00

Administrative

Vanessa Reyes ("VR") Assistant | $100.00 0.5 $50.00

emmmncens | “Saale onl

Wascar Guerrero ("WG") Assistant | $100.00 0.7 $70.00

TOTAL 688.2 | $209,490.00

In support of their requests, Plaintiffs attached several exhibits, including a

declaration from attorney Jason Brown explaining the extensive background and

work that the firm spent on this case, a resume listing the firm’s qualifications and

experience, the firm’s time records, the firm’s cost records and exhibits supporting

their requested hourly rate from a local attorney and an excerpt from Missouri

Lawyers Weekly. Plaintiffs also attached an affidavit and time records statement

from Anthony Pezzani, local counsel for Engelmeyer & Pezzani.

Defendants do not specifically object to the proposed hourly rates or make

any argument for the Court to consider why the hourly rates are unreasonable using

the proper analysis pursuant to lodestar, but generally objects to the overall total

amount of money requested. Defendants also objects to the amount of hours

Plaintiffs submit they spent on the case, stating the hours are excessive and their

overall success does not merit the amount requested.

The Court must first calculate the lodestar by “multipl[ying] the number of

hours worked by the prevailing hourly rate.” Vines v. Welspun Pipes Inc., 9 F.4th

849, 855 (8th Cir. 2021). When assessing the reasonableness of an hourly rate, the

Court considers “the ordinary fee for similar work in the community.” Drake v.

Steak N Shake Operations, Inc., No. 14-1535, 2019 WL 2075895, *3 (E.D. Mo.

2019), quoting Shakopee v. Mdewakanton Sioux Cmty. v. City of Prior Lake,

Minn., 771 F.2d 1153, 1160 (8th Cir. 1985). A search of FLSA cases in this district

over several years have showed a broad range of hourly rates, supporting

Plaintiffs’ request for $200-$300 per hour for the services of the associate

attorneys and $400 for local counsel attorney Pezzani as a reasonable hourly rate.

See Stockdall v. TG Investments, Inc., No. 4:14CV01557 ERW, 2016 WL

4206012, at *1-18 (E.D. Mo. Aug. 10, 2016) (approving an hourly rate of $300 in a

one-day bench trial); Thornton v. Mainline Commc'ns, LLC, No. 4:12-CV-00479

SNLJ, 2016 WL 687844, at *2 (E.D. Mo. Feb. 19, 2016) (approving hourly rates of

$350 and $250 following grant of partial summary judgment); Raniolo v.

Southport, LLC, No. 4:15CV00601 ERW, 2015 WL 10936741, at *1 (E.D. Mo.

Sept. 1, 2015) (approving hourly rates of $350, $275, and $200 following grant of

summary judgment); Van Booven v. PNK (River City), LLC, No. 4:14-CV-851

CEJ, 2015 WL 3774043, at *5 (E.D. Mo. June 17, 2015) (approving hourly rates of

$350 and $300 following settlement by the parties); Koenig v. Bourdeau Const.

LLC, No. 4:13CV00477 SNLJ, 2014 WL 6686642, at *4 (E.D. Mo. Nov. 26, 2014)

(approving hourly rates of $350 and $250 following settlement by the parties);

Risch v. Natoli Engineering Co., LLC, 2012 WL 4357953, at *4 (E.D. Mo. Sept.

24, 2012) (approving two partners with thirty-years experience their usual $400

hourly rate); and Betton v. St. Louis County, 2010 WL 2025333, at *4 (E.D. Mo.

May 19, 2010) (approving two partners their usual hourly rates of $450 and $400).

However, the cases do not support Plaintiffs’ request for $500 per hour for

the services of attorney Brown. The cases finding an hourly rate of $500

reasonable were class action suits involving complex litigation and unique

circumstances not found here. See Sandoval-Osegura v. Harvey Pallets Mgmt.

Group, LLC, No. 4:19-CV-00096-AGF, 2021 WL 2337614, at *2 (E.D. Mo. June

8, 2021) (finding hourly rates of $500 for partners and $350-400 for associates are

reasonable in light of prevailing rates in the community in a class action settlement

totaling $140,000); Drake, 2019 WL 2075895 at *3 (finding hourly rates of $500

and $475 per hour “reasonable” in complex, multi-year litigation case with almost

300 plaintiffs). Therefore, the Court finds a reasonable hourly rate for Brown is

$400, consistent with local counsel attorney Pezzani’s hourly rate, prevailing rates

in the community, and similar cases.

As to hours expended on the ligation, Plaintiffs seek fees for 688.2 hours for

the firm and 3.1 hours for local counsel. Plaintiffs outlined the firm’s time records

spent in extensive detail, from documenting ten-minute phone calls and emails to

hours spent in depositions, necessary travel, conducting legal research and drafting

and preparing many motions filed in this case. Based on the Court’s lodestar

calculation and its careful review of Plaintiffs’ extensive documents outlining the

reasons in support for their requested attorneys’ fees, the number of hours worked

that Plaintiffs have requested are reasonable. Plaintiffs were successful in this

litigation as they were awarded actual and liquidated damages for their claim that

Defendants failed to include weekend shift differential pay in their calculation of

their overtime rates of pay. A case pending for nearly five years, from December

22, 2016 to November 8, 2021, is going to involve an extensive amount of time

and labor required, as it did here. Therefore, the Court finds Plaintiffs are entitled

to attorneys’ fees in the total amount of $203,070.00. This total includes the

Court’s lodestar calculation adjusting Brown’s hourly rate to $400, which now

totals $30,640.00 instead of Plaintiffs’ original request of $38,150.00. Local

counsel also included a $9.50 charge for discovery processing, which will not be

included in the attorneys’ fee amount as that should have been requested in costs.

Costs

Plaintiffs seek costs in the amount of $14,488.73 for data processing,

depositions, filing fee, mediation fees, miscellaneous, PACER, postage, pro hac

vice fees, process server fees, subpoena for payroll records, travel, and LexisNexis.

Defendants generally oppose, taking issue with the travel and LexisNexis costs, but

do not suggest a specific amount for costs.

“In FLSA cases, costs are not limited to the categories set forth in § 1920 for

prevailing parties. Any costs not allowed as taxable costs under § 1920 may be

allowed as part of attorney's fees, or nontaxable costs, where there is other

statutory authorization. See Sturgill v. United Parcel Service, Inc., 512 F.3d 1024,

1036 (8th Cir. 2008) (holding that reasonable attorney fee includes reasonable out-

of-pocket expenses incurred by an attorney, which are normally charged to a fee-

paying client including expenses that are not enumerated under § 1920). However,

the Eighth Circuit has held that computer-aided research is a component of

attorneys' fees and cannot be taxed as an item of taxable or nontaxable costs in

addition to the attorneys' fee award. Standley v. Chilhowee R-IV School Dist., 5

F.3d 319, 325 (8th Cir. 1993) (citing Leftwich v. Harris-Stowe State College, 702

F.2d 686, 695 (8th Cir. 1983)). ‘[T]he law of this Circuit is that computer-based

legal research must be factored into the attorneys' hourly rate, hence the costs of

the computer time may not be added to the fee award.’” Id.

Thornton, 2016 WL 687844, at *1.

The Court finds that Plaintiffs may recover the costs for data processing,

depositions, filing fee, mediation fees, postage, pro hac vice fees, process server

fees, and subpoena for payroll records, but not costs for miscellaneous, travel,

PACER and LexisNexis. Just like the computer-based research expenses for

LexisNexis and PACER, the Court finds the travel costs have been adequately

factored into the attorneys’ hourly rate. The “miscellaneous” cost is vague, and

Plaintiff provides no reason to justify these costs. The claimed expenses will be

reduced by $7,290.17, which is the total cost amount included for miscellaneous

($38.18), travel ($4,888.72), PACER ($13.50) and LexisNexis ($2,349.77). After

these deductions, the Court will award Plaintiffs costs in the amount of $7,198.56.

Conclusion

Based on the lodestar calculation, the Court finds Plaintiffs’ award for

attorneys’ fees will be awarded in the amount of $203,070.00 for the reasons stated

above. The Court also finds Plaintiffs costs will be awarded in the amount of

$7,198.56. Therefore, Plaintiffs’ Motion will be granted in part and denied in part.

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ Motion for Attorney Fees and

Costs [Doc. No. 138] is GRANTED in part and DENIED in part as set forth

above.

IT IS FURTHER ORDERED that Plaintiffs are awarded attorneys’ fees in

the amount of $203,070.00 and costs in the amount of $7,198.56 for a total of

$210.268.56.

A separate Judgment will accompany this Memorandum and Order.

Dated this 29" day of September, 2022.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

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