Vasquez v. Direct Home Logistics Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSHUA VASQUEZ,

Plaintiff,

v. Case No. 8:23-cv-01041-WFJ-AAS

DIRECT HOME LOGISTICS INC., and

MICHAEL F. ELDRIDGE,

Defendants.

_____________________________________/

ORDER

Before the Court is Plaintiff’s Verified Motion for Attorneys’ Fees and Costs

Pursuant to 29 U.S.C. § 216(b) and Local Rule 7.1, Doc. 65. Defendants have filed

a response in opposition, Doc. 66. Upon careful review of the filings, Plaintiff’s

motion is granted in part. Plaintiff may recover $6,643.24 in costs and $8,301 in

fees.

BACKGROUND

In January 2023, Plaintiff Joshua Vasquez filed suit against Defendants Direct

Home Logistics Inc., Marcus Furley Eldridge, and Michael F. Eldridge in Florida

state court. See generally Doc. 1-1. Defendants were served with process in April

and May of 2023, and removed the case to this Court on May 11. Doc. 1 at 2. The

complaint alleged a violation of 29 U.S.C. § 207, the Fair Labor Standards Act of

1938, for Defendants’ failure to properly pay Mr. Vasquez for overtime worked.

Doc. 1-1 at 4–5. Mr. Vasquez worked as a driver for Direct Home’s trucking related

business. Doc. 64 at 1–2. Per the complaint, Mr. Vasquez allegedly worked 600

overtime hours for which Defendants owed him $9,000. Doc. 1-1 at 2.

The parties, excluding Marcus Furley Eldridge,1 proceeded to a two-day

bench trial beginning June 27, 2024. Docs. 55, 58. Relevant here, defense counsel

cross examined Mr. Vasquez about his pre-trial interrogatory answers, which did not

align with his live testimony. Doc. 62 (Transcript of Bench Trial Day One) at 44–

58. Specifically, Mr. Vasquez testified he did not work every week of the relevant

period, while his interrogatory answers reflected he worked eighty hours per week

for sixteen consecutive weeks. Id. at 49; Doc. 61-2 at 4–5.

The Plaintiff’s trial testimony was spotty and not credible. The Plaintiff’s

claims varied and conflicted.

All in all, his interrogatories advanced a total of 640 hours of overtime

worked, amounting to “approximately $27,851.00 - $28,275.00” in overtime

compensation earned that Defendants never paid. Docs. 66 at 3; 61-2 at 6. In closing

argument, Plaintiff’s counsel calculated yet another figure that Defendants allegedly

1 Plaintiff voluntarily dropped Marcus Furley Eldridge as a Defendant on June 26, 2024. Doc.

51.

owed Mr. Vasquez for overtime worked: $3,362.25. Doc. 63 (Transcript of Bench

Trial Day Two) at 34. Ultimately, the Court could rely upon only Defendants’

Dispatch Track Route Summary Report to conclude that Plaintiff worked 34.37

overtime hours, for which Defendants owed him $443.21. Doc. 64 at 6. This was the

only consistent and apparently accurate and logical figure presented at any time in

this case. Adding the liquidated damages required by statute, the Court found

Defendants liable for $886.42 in total. Id. at 7.

Plaintiff now moves for attorneys’ fees and costs. Doc. 65. Pursuant to the

hourly rates of $550/hour and $350/hour, Plaintiff’s attorneys claim 124 hours of

work have resulted in $52,295 in fees. Doc. 65 at 3, 8. Plaintiff’s attorneys also

request $8,107 for costs. Doc. 65 at 3, 7–8. Defendants offer many reasons why

Plaintiff’s request is unreasonable, including but not limited to Plaintiff’s: failure to

contact Defendants or their counsel before filing the lawsuit, repeated rejection of

settlement offers, excessive rates and time spent, and lack of successful result. Doc.

66 at 2, 5, 6–8, 10–13. Defendants acknowledge that the FLSA entitles Plaintiff to

collect reasonable attorneys’ fees, but argue that this is a case where Plaintiff’s award

should be significantly reduced if not zero. Id. at 13.

LEGAL STANDARD

The FLSA provides that the Court shall, “in addition to any judgment awarded

to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the

defendant, and costs of the action.” 29 U.S.C. § 216(b). The prevailing party in an

FLSA case is the one who obtains either “(1) a judgment on the merits, or (2) a

settlement agreement enforced through a consent decree.” Mayer v. Wall St. Equity

Grp., Inc., 514 F. App’x 929, 934 (11th Cir. 2013) (citation omitted).

In some FLSA cases, courts have found that the reasonable fee and cost award

is zero. See generally Woods v. On Baldwin Pond, LLC, No. 6:13-cv-726-Orl-

41DAB, 2016 WL 4927639 (M.D. Fla. Sept. 16, 2016) (finding Plaintiff’s counsel

was not entitled to fees when he seemingly concocted and prolonged litigation over

an overtime claim his client knew little to nothing about, failed to confer with the

defendants before filing suit, requested fees for claims he obviously spent little time

on, etc.); Goss v. Killian Oaks House of Learning, 248 F. Supp. 2d 1162 (S.D. Fla.

2003) (finding Plaintiff’s counsel was not entitled to fees when lawsuit was frivolous

to begin with and counsel exaggerated the amount of hours expended); Sahyers v.

Prugh, Holliday & Karatinos, P.L., 560 F.3d 1241 (11th Cir. 2009) (affirming

Plaintiff’s counsel was not entitled to fees when he failed to try to resolve dispute

with the defendant law firm before filing suit).

Even if the fee and cost award should not be zero, courts retain the discretion

to reduce unreasonable requests for attorneys’ fees. P&K Rest. Enter., LLC v.

Jackson, 758 F. App’x 844, 850 (11th Cir. 2019) (“[T]he determination of a

reasonable fee pursuant to § 216(b) is left to the sound discretion of the trial

judge[.]”) (internation quotation marks omitted). In making appropriate adjustments

to the hours expended, a court may “conduct an hour-by-hour analysis or [] reduce

the requested hours with an across-the-board cut[;]” it may not do both. Bivins v.

Wrap It Up, Inc., 548 F.3d 1348, 1350–51 (11th Cir. 2008).

DISCUSSION

While Plaintiff has not been a model of efficient resolution of legal disputes,

the Court still awards Plaintiff some of his requested attorneys’ fees and costs as

prescribed by the FLSA. See Johnson v. Southern Florida Paving Grp., LLC, No.

16-CV-62689-VALLE, 2020 WL 5113592, at *2–4 (S.D. Fla. Aug. 31, 2020)

(rejecting defendants’ argument that the reasonable fee award should be zero, but

still reducing requested fees). Plaintiff’s costs and fees are reduced and awarded

according to the analysis below.

I. Plaintiff may recover $6,643.24 in costs.

Defendants object to some of the items in Plaintiff’s list of $8,107 in costs,

specifically arguing that the expedited subpoena service, trial transcript, and

deposition transcripts would all cost less if they were timely ordered. Doc. 66 at 9.

Defendants further object to the mediation fee and accompanying proof of mail as

non-recoverable. Id. at 9–10. Defendants finally note that Plaintiff dropped Marcus

Eldridge as a party and therefore did not “prevail” over him as would entitle Plaintiff

to associated fees and costs. Id. at 10.

At the outset, the Court agrees with Defendants that Plaintiff is not a

“prevailing party” over Marcus Eldridge since he was dropped from the case the day

before trial began. Doc. 66 at 10. Plaintiff, therefore, has obtained neither a judgment

nor a settlement and consent decree against Marcus Eldridge. See Mayer, 514 F.

App’x at 934; Kenny v. Critical Intervention Servs., Inc., 358 F. Supp. 3d 1348, 1354

(M.D. Fla. 2019) (explaining that absent a judgment or settlement establishing the

plaintiff as the prevailing party, the court cannot yet assess the reasonableness of

attorneys’ fees). Because Plaintiff has not prevailed over Marcus Eldridge, he is not

entitled to the $90 cost of serving Marcus Eldridge.

In general, prevailing parties in FLSA cases are limited to recovering costs

enumerated in 28 U.S.C. § 1920. Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1575

(11th Cir. 1988). 28 U.S.C. § 1920 provides that a judge may tax as costs the

following:

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily

obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any

materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of

interpreters, and salaries, fees, expenses, and costs of special

interpretation services under section 1828 of this title.

Specifically regarding the costs of service of process, “fees for private process

servers may be taxed under Section 1920(1), [but] such costs must not exceed the

fees authorized by Section 1921 and are calculated according to the schedule of fees

collected by the United States Marshals Service.” Pilipajc v. Atria Grp., LLC, No.

8:13-cv-2415-T-35JSS, 2016 WL 7228875, at *5 (M.D. Fla. Jan. 19, 2016) (citing

Beach-Mathura v. American Airlines, Inc., 571 F. App’x 810, 812 (11th Cir. 2014)),

report and recommendation adopted, 2016 WL 7228877. Explained differently, 28

U.S.C. § 1921 authorizes the USMS to charge fees for the service of process,

including summons, complaints, and subpoenas. The amount of fees charged is

established by 28 C.F.R. § 0.114(a)(3), currently collecting $65 per hour for personal

service. Here, Plaintiff’s list of costs contains three entries for service upon

“Marcus,” “Michael,” and “Direct Home” for $90 each. Doc. 65 at 8. Plaintiff cannot

recover the $90 cost to serve Marcus Eldridge, as discussed supra, and can recover

only $65 each for the service upon Michael Eldridge and Direct Home. Pilipajc,

2016 WL 7228875, at *5.

In the same vein, Plaintiff’s list of costs contains three entries for subpoena

service upon trial witnesses for $270 each, dated the day the bench trial began. Doc.

65 at 8. Unjustified expedited costs, however, are not recoverable. Paguaga v.

Pinnacle One Price Dry Cleaning of Davie, LLC, No. 20-22694-Civ-

WILLIAMS/TORRES, 2023 WL 2388272, at *3 (S.D. Fla. Mar. 7, 2023) (finding

the plaintiff could not recover costs associated with an unjustified rush subpoena)

(citing Osorio v. Dole Food Co., No. 07-22693-CIV, 2010 WL 3212065, at *11

(S.D. Fla. July 7, 2010), report and recommendation adopted, 2010 WL 3212062).

Plaintiff has not explained the delay or consequent rush in serving the subpoenas.

Thus, the Court finds that Plaintiff may not recover the $270 expedited price, but

may recover only $65 for the service of each subpoena. Pilipajc, 2016 WL 7228875,

at *5.

Similarly, rush fees associated with unnecessarily expedited transcripts are

not recoverable. Barrera v. Weiss & Woolrich Southern, 900 F. Supp. 2d 1328, 1335

(S.D. Fla. 2012); Rodriguez v. Super Shine & Detailing, Inc., No. 09-23051-CIV,

2012 WL 2119865, at *10 (S.D. Fla. June 11, 2012). Here, Plaintiff’s 266-page trial

transcript cost $1,560, apparently pursuant to the seven-day expedited rate of $5.85

per page. Doc. 65 at 7; Transcript Orders, U.S. DIST. CT. MIDDLE DIST. FLA.,

https://www.flmd.uscourts.gov/transcript-orders (last visited Oct. 17, 2024).

Because the Court requested that the parties submit proposed findings of fact and

conclusions of law within thirty days of the conclusion of trial, it would not be

appropriate to reduce Plaintiff’s costs to the ordinary thirty-day transcript rate of

$4.40 per page. Doc. 63 at 42–43; Transcript Orders. Per Plaintiff’s time records,

however, the first discussion about ordering the trial transcript occurred on July 10—

nearly two weeks after the conclusion of trial on June 28. Docs. 65 at 8; 58.

Accordingly, it is appropriate to reduce Plaintiff’s transcript cost to the expedited

fourteen-day rate of $5.10 per page. This makes Plaintiff’s trial transcript cost

$1,356.60 rather than $1,560.

As for the deposition transcripts, Plaintiff provides that three transcripts cost

a total of $3,417.59. Doc. 65 at 8. Defendants argue that “Esquire charged an 80%

fee for 3-day expedited, which means the normal cost of the transcripts would have

been $1898.66[.]” Doc. 66 at 9. Defendants offer no documentation or further

explanation of this calculation. Both Plaintiff’s time entries and list of costs reflect

the depositions occurring on June 13 and 17, 2024, with their respective transcripts

placed on the same date. Doc. 65 at 8–9. The trial occurred June 27 and 28. Docs.

55, 58. The Court has no basis upon which to evaluate the expedited fees or

determine if they were unnecessary. Accordingly, Plaintiff will be awarded

$3,417.49 for the deposition transcripts.

Finally, courts have not allowed for recovery of mediation costs because they

are not listed in 28 U.S.C. § 1920. Lewis v. Florida Default Law Grp., P.L., No.

8:10-cv-611-T-30AEP, 2012 WL 252837, at *4 (M.D. Fla. Jan. 26, 2012); Williams

v. R.W. Cannon, Inc., 657 F. Supp. 2d 1302, 1317–18 (S.D. Fla. 2009). Thus,

Plaintiff cannot recover the $500 cost for the mediation and $5.40 for the proof of

mail of the mediation check. After making all the above changes, Plaintiff’s

recoverable costs are reduced from $8,107 to $6,643.24.

II. Plaintiff may recover $8,301 in fees.

Plaintiff’s attorneys assert that 124 hours of work have been expended on this

case, incurring $52,295 in attorneys’ fees thus far. Doc. 65 at 3, 11. Defendants

object to many of Plaintiff’s specific time entries, arguing: both opposing counsels’

hourly rates should be reduced, many tasks should have been completed by a

paralegal and charged according to an appropriate decreased rate, many tasks took

longer than they should have, and some tasks were due to Plaintiff’s own negligence

and should not be chargeable against Defendants. Doc. 66 at 10–13.

Courts use the lodestar method to calculate the value of an attorney’s services,

multiplying the hours reasonably expended by a reasonable hourly rate. Norman v.

Hous. Auth. of Montgomery, 836 F.2d 1292, 1298–99 (11th Cir. 1988). To determine

a reasonable number of hours and rate, courts consider the twelve factors outlined in

Johnson v. Georgia Highway Exp., Inc., 448 F.2d 714, 717–19 (5th Cir. 1974): (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 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.

As to the hourly rate specifically, courts consider “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. Courts

may also consider their own expertise on proper fees and form an independent

judgment with or without the aid of witnesses. Loranger v. Stierheim, 10 F.3d 776,

781 (11th Cir. 1994). Here, Plaintiff’s counsel Robert Twombly is a managing

partner of White & Twombly, P.A., licensed since 1995, who claims his hourly rate

for legal services is $550. Doc. 65 at 7–8. Defense counsel on this FLSA case has

similar credentials and charges $375 per hour for his work. Doc. 66 at 7; see also

Johnson, 2020 WL 5113592, at *6 (collecting FLSA cases where requested hourly

rate was reduced to $375); but see Pena v. RDI, LLC, No. 8:17-cv-01404-T-AAS,

2019 WL 3017574, at *1–2 (M.D. Fla. July 10, 2019) (finding unopposed motion in

FLSA case for attorney’s fees at $425/hour was reasonable). Accordingly, the Court

reduces Mr. Twombly’s hourly rate to $400. Similarly, Plaintiff’s counsel Daniel

Castilla is an attorney at White & Twombly, licensed since 2023, who claims his

hourly rate is $350. Docs. 65 at 7–8; 66 at 7–8. Defendants suggest that “$200 per

hour for a first year attorney is more than reasonable.” Doc. 66 at 8; see also

Moragomez v. Seasins LLC, No. 20-22390-Civ-SCOLA/TORRES, 2020 WL

6828945, at *6 (S.D. Fla. Oct. 30, 2020) (finding $225/hour was reasonable rate for

first-year attorney in FLSA case). The Court reduces Mr. Castilla’s rate to

$215/hour. Lastly, work that should have been done by a paralegal will be billed at

$100/hour. E.g., Patterson v. Acad. Fire Prot., Inc., No. 3:13-cv-87-J-34JBT, 2014

WL 169812, at *6 (M.D. Fla. Jan. 8, 2014) (finding hourly rate of $100 for paralegal

work in FLSA case reasonable).

As to the reasonable number of hours expended, attorneys must exercise

billing judgment. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Hours that are

excessive, redundant, or otherwise unnecessary should be excluded from a fee

request. Id. Exclusions for excessive and unnecessary work are left to the discretion

of the district court. Norman, 836 F.2d at 1301. The following entries on Plaintiff’s

time sheet will be modified, while those not mentioned will retain the same time

entry (found at Doc. 65 at 8–11) but be charged per the lower rates discussed supra:

Date Original Task Original Reduced And/Or Reason Reduced

Time Rate Time Reduced Fee

Entry Entry Rate Awarded

Mar. 0.5 Drafted and $550 0.5 $100 Paralegal $50

31, filed three task

2023 summons

requests

Apr. 0.2 Reviewed $550 0.2 $100 Paralegal $20

11, three task

2023 summons

issued by

Court

May 0.3 Reviewed $550 0.3 $100 Paralegal $30

11, and filed task

2023 three return

of

summons

Dec. 0.1 “Update on $550 0 $400 Ambiguous $0

12, Case” and

2023 therefore

unable to be

deemed

necessary

Jan. 10 Reviewed $350 5 $215 Excessive $1,075

19, discovery,

2024 drafted

responses,

sent for

filing

Feb. 2 Drafted $350 1 $215 Excessive $215

15, second

2024 requests for

discovery

Mar. 3 Drafted $350 0 $215 Unnecessary $0

15, motion to

2024 vacate

dismissal,

researched

Mar. 0.3; 0.5 Met and $350 0; 0 $215 Unnecessary $0

19, conferred

2024 with

opposing

counsel

regarding

motion to

vacate

dismissal;

Drafted

revised

motion to

vacate

dismissal

May 8, 0.1 “Case $550 0 $400 Ambiguous $0

2024 Status” and

therefore

unable to be

deemed

necessary

May 0.2 Drafted $350 0.2 $100 Paralegal $20

13, notice of task

2024 appearance

May 0.5 Drafted $350 0.5 $100 Paralegal $50

15, subpoena task

2024

May 0.2; 1.5; Drafted $350 0.2; 1.5; 0 $100; Paralegal $170

16, 0.1 motion to $100; task &

2024 appear via $215 unnecessary

Zoom;

Drafted

witness and

exhibit list;

Resent

affidavit

May 0.1 Resent $350 0 $215 Unnecessary $0

17, affidavit

2024

May 3 Prepared $350 2 $215 Unnecessary $430

21, for and

2024 attended

pretrial

conference

June 0.1 Spoke with $350 0 $215 Redundant $0

20, client about

2024 upcoming

trial

June 8 Reviewed $350 2 $215 Excessive $430

25, FLSA and

2024 how to

calculate

amounts

owed

June 0.5; 16 Drafted $350; 0.2; 8 $215; Excessive $43;

26, notice of $550 $400 $3,200

2024 dropping

party;

Prepared

for trial

June 16 Day one of $550 8 $400 Excessive $3,200

27, trial;

2024 Prepared

for day two

of trial

June 3 Day two of $550 0 $400 Unnecessary $0

28, trial

2024

July 9 Finished $350 0 $215 Excessive $0

27, draft of

2024 proposed

findings of

fact and

conclusions

of law

July 2 Completed $350 0 $215 Excessive $0

28, revisions to

2024 proposed

findings of

fact and

conclusions

of law

After incorporating these changes into Plaintiff’s original timesheet, and multiplying

all the unmodified time entries by the lower hourly rates, Plaintiff’s lodestar figure

for recoverable attorneys’ fees is $20,752.50.

While there is a presumption that the lodestar is the reasonable amount of fees

attorneys can recover, a downward adjustment is warranted if the prevailing party

only partially succeeded. Bivins, 548 F.3d at 1350–51 (citing Resolution Trust Corp.

v. Hallmark Builders, Inc., 996 F.2d 1144, 1150 (11th Cir. 1993)). “If . . . a plaintiff

has achieved only partial or limited success, the product of hours reasonably

expended on the litigation as a whole times a reasonable hourly rate may be an

excessive amount[;] . . . the most critical factor is the degree of success obtained.”

Hensley, 461 U.S. at 436. Here, Plaintiff’s filings alleged various amounts of unpaid

overtime wages to which he was entitled, ranging from $9,000 to $28,275. Docs. 1-

1 at 2; 61-2 at 6. At trial, he was unable to testify with any credibility as to exactly

how much overtime he did, what he did, and what the Defendants owed him. Doc.

62 at 49. Relying upon Defendants’ work documentation, the only accurate and

complete data presented in the case, the Court determined that Defendants owed

Plaintiff $443.21 in overtime pay. Doc. 64 at 6. This is hardly a successful result.

Moreover, this is the result of a matter that could have been resolved prior to filing

suit, and certainly prior to the two-day trial that produced no credible evidence

beyond the Defendants’ existing forms. Accordingly, Plaintiff’s lodestar figure is

reduced by sixty percent. See Wales v. Jack M. Berry, Inc., 192 F. Supp. 2d 1313,

1328–29 (M.D. Fla. 2001) (reducing lodestar figure by sixty-seven percent).

Plaintiff’s attorneys may recover $8,301 in fees.

CONCLUSION

Accordingly, it is hereby ORDERED and ADJUDGED:

Plaintiff’s Verified Motion for Attorneys’ Fees and Costs, Doc. 65, is granted

in part. Plaintiff is awarded $6,643.24 in costs and $8,301 in fees.

DONE AND ORDERED at Tampa, Florida, on October 17, 2024.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record