The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ABEL LEON VEGA,
Plaintiff,
v. Case No: 8:23-cv-993-CEH-NHA
FRIENDS OF DOLPHINS, LLC and
SHELDON PLAZA, LLC,
Defendants.
ORDER
This matter comes before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Natalie Hirt Adams (Doc. 33), in which she
recommends that the Court grant-in-part and deny-in-part Plaintiff Abel Leon Vega’s
Motion for Default Judgment and Attorneys’ Fees (Doc. 27). Plaintiff has filed a
limited Objection to the R&R (Doc. 34). Upon consideration of the R&R, Plaintiff’s
Objection, and upon this Court’s independent examination of the file, the Court
determines that the Objection is due to be overruled, and the R&R should be adopted
in every respect.
I. BACKGROUND
Plaintiff filed this Fair Labor Standards Act (“FLSA”) action against
Defendants Friends of Dolphins, LLC, and Sheldon Plaza, LLC, on May 5, 2023.
Doc. 1. He alleged one count of retaliation under the Florida Workers’ Compensation
Act (“FWCA”), and one count of willful violations of the FLSA. Id. Neither
Defendant has appeared in this action despite proper service. See Docs. 9, 10, 22.
After successfully moving for a clerk’s default against both Defendants, Plaintiff
sought a default judgment and attorneys’ fees. Docs. 11, 12, 13, 14. The magistrate
court denied the motion without prejudice, explaining that the Complaint’s allegations
were insufficient as to his FLSA claim, and that he had not adequately supported his
request for attorneys’ fees. Doc. 17. With respect to the latter finding, the magistrate
court indicated that Plaintiff’s submissions did not provide enough details regarding
the hours claimed or the requested fee rate of $750 per hour. Id.
Plaintiff sought leave to amend the Complaint, which the Court granted. Docs.
19, 20, 21. After serving the Amended Complaint on both Defendants, Plaintiff
obtained another clerk’s default against them. Docs. 22, 23, 24, 25, 26. Plaintiff then
filed a renewed Motion for Default Judgment and Attorneys’ Fees. Doc. 27. With
respect to attorneys’ fees, he provided an affidavit in support of his request for
compensation for 17.9 hours at a rate of $650 per hour. Doc. 27-3; Doc. 27-2 ¶ 8. He
described his expertise in employment law and explained that his usual rate for new
non-contingency clients is $800.00 per hour. Id. ¶ 6.
The magistrate court issued an Order to Show Cause that directed Plaintiff to
provide additional information regarding the FLSA count and his damages request.
Doc. 28. Plaintiff responded promptly. Doc. 29. The magistrate court then noticed a
hearing on Plaintiff’s motion, noting that “Plaintiff’s counsel should be prepared to
demonstrate that both his requested hourly rate and specific time entries are
reasonable.” Doc. 30. Plaintiff’s counsel did not appear for the hearing. Docs. 31, 32.
He subsequently moved to reschedule it, citing a scheduling error. Doc. 32. The
magistrate court denied the motion to reschedule, and explained that it had afforded
Plaintiff multiple opportunities to meet his burden of supporting the reasonableness of
his fee request and it did not find that his proffered reason for missing the hearing was
sufficient to warrant scheduling another hearing. Doc. 35; Doc. 33 at 27 n.9.
In the R&R, the magistrate court recommends that Plaintiff’s renewed Motion
for Default Judgment and Attorneys’ Fees be granted-in-part and denied-in-part. Doc.
33. The magistrate court found that the allegations of the Amended Complaint
adequately support Plaintiff’s FLSA claim but not his workers’ compensation claim.
Id. With respect to the FLSA claim, the magistrate court recommends that Plaintiff
be awarded most of the damages he sought in unpaid overtime premiums and
liquidated damages, as well as the costs and post-judgment interest he requested. Id.
However, the magistrate court recommends that the Court award only $6520.00 in
attorneys’ fees instead of Plaintiff’s request of $11,635.00. Id. at 24-28. The magistrate
court found that a portion of the time expended by counsel was not reasonable, and
therefore recommends reducing the hours claimed from 17.9 to 16.3. Id. at 27-28.
Further, the magistrate court found that counsel’s requested hourly rate of $650 was
unreasonable because it exceeds the rate typically awarded, and instead recommends
an hourly rate of $400 considering counsel’s significant experience in handling FLSA
claims. Id. at 26-27.
Plaintiff filed a timely Objection to the R&R. Doc. 34. He objects only to the
magistrate court’s recommendation to reduce the hourly rate to $400.00 from the
requested rate of $650. Id. Plaintiff noted that counsel has been practicing law for close
to 30 years and is Board Certified in Labor and Employment by the Florida Bar. Id. at
2. He argues that counsel was hired based on his qualifications, skills, reputation, and
years of experience, all of which justify an hourly rate of $650. Id. In support, he cites
a 2022 case in the Middle District of Florida in which this Court awarded the same
attorney a rate of $675, as well as a 2022 case in which a less-experienced colleague
received a rate of $550 in the Northern District of Florida. Id. at 3-4. He therefore asks
the Court to award attorneys’ fees at an hourly rate of $650.
II. LEGAL STANDARD
Congress vests Article III judges with the power to “designate a magistrate judge
to hear and determine any pretrial matter pending before the court,” subject to various
exceptions. 28 U.S.C. § 636(b)(1)(A). The Federal Magistrate Judges Act further vests
magistrate judges with authority to submit proposed findings of fact and
recommendations for disposition by an Article III judge. 28 U.S.C. § 636(b)(1)(B). A
party may file written objections to the proposed findings and recommendations
within fourteen days. Id. § 636(b)(1). The written objections must be “specific” and
“clear enough to permit the district court to effectively review the magistrate judge’s
ruling.” Knezevich v. Ptomey, 761 F. App'x 904, 906 (11th Cir. 2019). After conducting
a careful and complete review of the findings and recommendations, a district judge
may accept, reject, or modify the magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982). The district
judge “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1).
III. DISCUSSION
Plaintiff’s Objection is limited to the R&R’s recommendation that the Court
award attorneys’ fees at an hourly rate of $400 instead of the requested rate of $650.
Under the FLSA, a court must “allow a reasonable attorney’s fee to be paid by the
defendant[.]” 29 U.S.C. § 216(b). 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. Housing Auth. of Montgomery,
836 F.2d 1292, 1299 (11th Cir. 1988). “The applicant bears the burden of producing
satisfactory evidence that the requested rate is in line with prevailing market rates.” Id.
(citation omitted). “Satisfactory evidence” must comprise more than the affidavit of
the attorney performing the work, and “must speak to rates actually billed and paid in
similar lawsuits,” such as “charges by lawyers under similar circumstances.” Id. The
district court “has wide discretion in exercising its judgment on the appropriate fee
based on its own expertise.” Id. at 1304.
Upon a de novo review, the Court agrees with the magistrate court that Plaintiff
has not met his burden of establishing that his requested rate is in line with the
prevailing market rate for attorneys of similar skill and experience in similar cases.
The Objection is therefore due to be overruled.
Plaintiff argued in his motion that an hourly rate of $650 is “in keeping with the
prevailing market rates charged in similar employment cases by attorneys with
comparable skill, reputation, and experience.” Doc. 27 at 14. In support, he cited one
case in which a court in this District approved an hourly rate of $675 for the same
attorney, as well as an affidavit from counsel in which he detailed his 29 years of
experience and his expertise in employment law. Id., citing Doc. 27-2 and McNamara
v. Brenntag Mid-South, Inc., No. 8:21-cv-618-MSS-JSS (M.D. Fla. Feb. 17, 2022). His
Objection cited two additional cases in which he and his less-experienced colleagues
received rates of $675 and $550, respectively. Doc 34 at 3-4 , citing Lyttle v. Trulieve,
Inc., No. 8:19-cv-2313-CEH-TGW (M.D. Fla Aug. 18, 2022), and Bradley v. All State
Express, Inc., No. 1:22-cv-30-MW-GRJ (N.D. Fla. June 28, 2022).
Despite the cases Plaintiff identifies, a survey of recent individual FLSA cases
in the Tampa Division of the Middle District of Florida does not support a finding that
$650 is the prevailing market rate, even for an attorney with comparable experience to
Plaintiff’s counsel. See, e.g., Traini v. All Craft Marine, LLC, No. 8:24-cv-639-JSM-AAS,
2024 WL 4818508, *2 (M.D. Fla. July 25, 2024) (collecting cases, finding $425 was a
reasonable hourly rate for attorney with 24 years of experience who was board-
certified in labor and employment law); Hernandez v. Drop Runner, LLC, No. 8:23-cv-
1302-TPB-JSS, 2023 WL 8720197, *2 (M.D. Fla. Nov. 21, 2023) (approving hourly
rate of $400 for attorney with more than 20 years of experience; collecting cases and
observing that “[c]ourts in this district have approved an hourly rate of $400 for counsel
with similar experience in similar FLSA actions.”), report and recommendation
adopted by 2023 WL 8716602 (Dec. 18, 2023); Dixon . Waste Pro of Fla., Inc., No. 8:22-
cv-327-VMC-SPF, 2022 WL 18587780, *3 (M.D. Fla. Dec. 16, 2022) (collecting cases
and concluding, “[i]n the Tampa division, $650 per hour in an individual FLSA case
pushes the bounds of reasonable.”), report and recommendation adopted by 2023 WL
1781516 (Feb. 6, 2023); Alvarez v. Gregory HVAC LLC, No. 8:19-cv-1826-CEH-JSS,
2022 WL 3101768, *6 (M.D. Fla. Aug. 4, 2022) (Honeywell, J.) (finding $400 was a
reasonable hourly rate for an employment attorney with 22 years of experience in an
individual FLSA case); see also Jackson v. Creation Maintenance Inc., No. 6:23-cv-38-
WWB-LHP, 2024 WL 1494306, *7 (M.D. Fla. Feb. 21, 2024) (in Orlando division,
finding $400 rate for attorney admitted to practice in 1996 was “reasonable and
customary in the Central Florida legal market.”); Vinson v. Thee Tree House, LLC, No.
8:22cv1928-WFJ-SPF, 2023 WL 6464114, *4 (M.D. Fla. Oct. 4, 2023) (in motion for
damages following summary judgment in an individual FLSA case, granting plaintiff’s
request for an hourly rate of $350 for attorney from same firm as Plaintiff’s counsel
who was admitted to practice in 2000). Plaintiff criticizes the 2019 cases on which the
magistrate court relied in the R&R as “stale,” arguing that they “do not reflect the
current hourly rate for employer lawyers of [his counsel’s] experience and
qualifications.” Doc. 34 at 2-3. But the cases cited in this paragraph, all from the last
two years, suggest otherwise.
In turn, Plaintiff fails to identify any individual FLSA case in which a Tampa
court found an hourly rate of $650 to be reasonable. He does cite two cases involving
class action settlements, one under the FLSA and another under the Fair Credit
Reporting Act, in which the court approved a negotiated hourly rate of $675 for the
same counsel. See McNamara v. Brenntag Mid-South, Inc., No. 8:21-cv-618-MSS-JSS
(M.D. Fla. Feb. 17, 2022); Lyttle v. Trulieve, Inc., No. 8:19-cv-2313-CEH-TGW (M.D.
Fla Aug. 18, 2022). Plaintiff takes issue with the magistrate court’s finding that a fee
awarded in a class action case is distinguishable from a fee awarded in an individual
case. Doc. 34 at 4, citing Doc. 33 at 26 n.8. However, the Court finds no error in this
distinction. In determining reasonableness, a court must consider fees awarded in
“similar lawsuits” and under “similar circumstances.” See Norman, 836 F.2d at 12991;
see also Tissone v. Osco Food Svcs., LLC, No. 19-61358-CIV, 2021 WL 870526, *1 (S.D.
Fla. March 9, 2021) (overruling objection to R&R that recommended a lower hourly
rate for an individual FLSA case with minimal litigation that ended in default
judgment; citing cases in which courts held the same). Plaintiff’s failure to identify
individual FLSA cases in the Tampa division in which courts approved the hourly rate
he requests is a further indication that there is a distinction between individual and
class actions, contrary to his contention.2
1 The Norman court noted that some of the traditional factors listed in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974), still “have utility in establishing the hourly rate”
under the modern approach to calculating attorneys’ fees. 836 F.2d at 1299. Those factors
include “the novelty and difficulty of the questions, “the skill requisite to perform the legal
service properly,” and “awards in similar cases”—to which the question of whether a case is
an individual or class action is highly relevant. Johnson, 488 F.2d at 718-19.
2 The Court acknowledges the Northern District of Florida individual FLSA case Plaintiff
cites in his Objection, in which counsel received a rate of $550. See Bradley v. All State Express,
Inc., No. 1:22-cv-30-MW-GRJ (N.D. Fla. June 28, 2022). To the extent this case is relevant
to the Middle District of Florida, however, it appears to be an outlier rather than an indication
of the prevailing market rate.
Plaintiff did not meet his burden of establishing that the hourly rate he requested
was reasonable. Accordingly, his Objection is due to be overruled and the R&R
adopted in every respect, including the recommended hourly rate of reasonable
attorneys’ fees. Default judgment will be entered in Plaintiff’s favor as to Count II.
With respect to Count I, retaliation under the Florida Workers’ Compensation
Act, the R&R recommends a dismissal without prejudice because the allegations are
insufficient to plausibly allege a causal connection between Plaintiff’s application for
workers’ compensation and his termination. Doc. 33 at 18-21. Plaintiff does not object
to this recommendation. However, Count I arises under state law, and its resolution
would require analysis of Florida law. Having resolved Count II, the only federal law
claim, the Court declines to exercise its supplemental jurisdiction over Count I. See 28
U.S.C. § 1367(c)(3) (“[D]istrict courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if…the district court has dismissed all
claims over which it has original jurisdiction.”); Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are
eliminated before trial, the balance of factors to be considered under the pendent
jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will
point toward declining to exercise jurisdiction over the remaining state-law claims.”).
Therefore, to the extent Plaintiff wishes to pursue this claim, he may do so in state
court. Count I will be dismissed without prejudice.
Accordingly, it is ORDERED:
1. Plaintiff’s Objection to the Report and Recommendation (Doc. 34) is
OVERRULED.
2. The Report and Recommendation of the Magistrate Judge (Doc. 33) is
ADOPTED, CONFIRMED, and APPROVED in all respects and is made
a part of this Order for all purposes, including appellate review.
3. Plaintiff’s Motion for Default Judgment and Attorneys’ Fees (Doc. 27) is
GRANTED-IN-PART and DENIED-IN-PART. The motion is granted to
the extent that Plaintiff is entitled to a default judgment on his FLSA claim,
as set forth herein. The motion is otherwise denied.
4. Plaintiff, Abel Leon Vega, is entitled to Judgment in his favor as to Count II
of the Amended Complaint against Defendants, Friends of Dolphins, LLC,
and Sheldon Plaza, LLC.
5. Plaintiff, Abel Leon Vega, shall recover from Friends of Dolphins, LLC, and
Sheldon Plaza, LLC, jointly and severally, unpaid overtime damages in the
amount of $4,877.71, liquidated damages in the amount of $4,877.71,
attorneys’ fees in the amount of $6,520.00, and costs in the amount of
$488.00, plus post-judgment interest.
6. The Clerk is directed to enter a Judgment in favor of Plaintiff Abel Leon
Vega and against Defendants, Friends of Dolphins, LLC, and Sheldon
Plaza, LLC, consistent with this Order.
7. The Court declines to exercise supplemental jurisdiction over the state law
claim in Count I of the Amended Complaint. Count I is dismissed without
prejudice.
8. The Clerk is directed to CLOSE this case.
DONE and ORDERED in Tampa, Florida on December 27, 2024.
Chak pre CoiwardsNons sgt el
Charlene Edwards Honeywell
United States District Judge
Copies furnished to:
Counsel of Record
Unrepresented Parties