Valdez v. Kalmd Home Care LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DOMINGA VALDEZ,

Plaintiff,

Case No.

vs.

6:24-cv-237-GAP-RMN

KALMD HOME CARE LLC,

Defendant.

REPORT AND RECOMMENDATION

This matter is before the Court for consideration on Plaintiff’s

Motion for Attorney’s Fees and Costs (Dkt. 27), filed April 17, 2025.

The Motion has been referred to me for a Report and

Recommendation. Upon consideration, I respectfully recommend

that the Motion be granted in part and denied in part.

I. BACKGROUND

On February 1, 2024, Plaintiff filed a 7-count Complaint

against Defendant Kalmd Home Care alleging violations of the

Family and Medical Leave Act (“FMLA”) (Counts I, II, and III), the

Americans with Disabilities Act (“ADA”) (Counts IV, V, and VI),

and the Florida Civil Rights Act (“FCRA”) (Count VII). Dkt. 1.

Defendant failed to appear, and final default judgment was entered

on April 4, 2025 only on Plaintiff’s FMLA claims. Dkts. 14-1

(Proof of service), 19 (Clerk’s Entry of Default), 25 (Final Default

Judgment). The Report and Recommendation (Dkt. 23), which was

adopted by the Court, directed Plaintiff to file any request for fees in

accordance with the Local Rules. Dkt. 24.

II. LEGAL STANDARD

Under the Family Medical Leave Act (“FMLA”), the court

“shall . . . allow a reasonable attorney’s fees, reasonable expert witness

fees, and other costs of the action to be paid by the defendant.” 29

U.S.C. § 2617(a)(3). The Court calculates reasonable attorney’s fees

according to the lodestar approach, which multiplies the “hours

reasonably expended by a reasonable hourly rate.”

, 836 F.2d 1292, 1299 (11th Cir.

1988). A reasonable hourly rate is the common rate in the area “for

similar services by lawyers of reasonably comparable skills, experience

and reputation.” An applicant requesting attorney’s fees has the

burden of showing “that the requested rate is in line with the

prevailing market rates.” . But the Court “has wide discretion in

exercising its judgment on the appropriate fee based on its own

expertise.” at 1304.

To aid in analyzing a fee request’s reasonableness, the

Supreme Court has stated that courts may consider the factors set

forth in , 488 F.2d 714

(5th Cir. 1974).1 , 489 U.S. 87, 91 (1989).

Those factors include:

(1) The time and labor required;

(2) The novelty and difficulty of the questions

presented;

(3) The skill required 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

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.

, 488 F.2d at 717–19.

III. ANALYSIS

The Court must first consider entitlement to fees. If

entitlement is found, the Court then determines the reasonableness

1 The Eleventh Circuit adopted as binding precedent all decisions of

the former Fifth Circuit handed down before October 1, 1981, like

, 661 F.2d 1206, 1209 (11th Cir.

1981).

of the fee request.2 Lastly, the Court must consider Plaintiff’s request

for costs.

A. Entitlement

The FMLA provides for attorney’s fees to any prevailing

Plaintiff. 29 U.S.C. § 2617. And because Plaintiff prevailed on her

FMLA claims against Defendant Kalmd Home Care, she is therefore

entitled to an award of fees. Dkt. 24 (Order granting default

judgment against defendant on FMLA claims). Thus, I respectfully

recommend the Court find Plaintiff is entitled to an award of

attorney’s fees on her FMLA claims against Defendant Kalmd Home

Care LLC.

B. Reasonableness

The lodestar approach requires the Court to consider the

reasonable hourly rate requested by counsel and the reasonableness

of the hours expended. Attorney Julisse Jimenez submitted billing

records (Dkt. 27-1), an affidavit in support of her motion (Dkt. 27-

2), and a statement of experience for Jimenez and her paralegal

Ursula Lanfranco (Dkt. 27-3). Jimenez states her hourly rate is

$450.00 per hour and that she spent 3.45 hours on this matter.3

2 The Court could deny the motion altogether because it is not

bifurcated, as required by Local Rule 7.01(a). Although I considered

recommending this outcome, I respectfully recommend the Court

consider the motion as properly filed.

3 Jimenez represents that she reduced her hours from the billing

records to represent the hours spent on claims that ultimately failed.

Dkt. 27 at 4 n.3. But, because Jimenez reduced the hours

Jimenez also states that her paralegal’s rate is $75.00 per hour, and

that her paralegal spent 10.56 hours on this matter. Dkt. 27 at 3.

1. Reasonable Hourly Rate

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. , 836 F.2d at

1299. The applicant bears the burden of producing satisfactory

evidence that the requested rate is in line with prevailing market

rates. . (citing , 812 F.2d 1332, 1338

(11th Cir. 1987)). Satisfactory evidence is more than the affidavit of

the attorney performing the work, and such evidence “must speak to

rates actually billed and paid in similar lawsuits.” .

In determining what is a reasonable hourly rate and what

number of compensable hours is reasonable, the court may consider

the factors enumerated in ,

488 F.2d 714 (5th Cir. 1974). , 548

F.3d 1348, 1350 (11th Cir. 2008). The factors are: (1) the

time and labor required; (2) the novelty and difficulty of the

questions; (3) the skill requisite to perform the legal services

properly; (4) the preclusion of other employment by the attorney

due to acceptance of the case; (5) the customary fee in the

community; (6) whether the fee is fixed or contingent; (7) time

without removing the spent on the unsuccessful claims,

the total hours and amounts claimed in the Motion are different than

the itemized entries in the invoice (Dkt. 27-1).

limitations imposed by the client or circumstances; (8) the amount

involved and the results obtained; (9) the experience, reputation, and

the ability of the attorney; (10) the “undesirability” of the case;

(11) the nature and length of the professional relationship with the

client; and (12) awards in similar cases. , 488 F.2d at 717–19.

These factors guide, and are usually subsumed within, the Court’s

lodestar calculation. t, 461 U.S. 424, 434 n.9

(1983).

Jimenez has been licensed for about 16 years. She states that

she has “handled general litigation cases in the areas of business,

commercial litigation, employment and securities law both in state

and federal court, and has also worked in numerous business and real

estate transactions.” Dkt. 27-3. Jimenez states that she has tried

several jury and non-jury trials, has handled appeals to the Third

District Court of Appeals, participated in arbitrations, and “is

experienced in negotiating and mediating cases.” Jimenez states

her reasonable hourly rate is $450.00 per hour. I find this rate

reasonable for an FLSA wage and hour case brought by an attorney

with similar experience as Jimenez in this district. ,

, No. 6:24-cv-903, 2024 WL 4216558, at

*2 (M.D. Fla. Aug. 30, 2024) (finding hourly rate of $450 per hour

reasonable for attorney of similar background and experience in

FLSA wage and hour case). Based on this, I recommend the Court

find the proposed rate reasonable.

Likewise, Lanfranco states that she has provided legal

assistance support and to several litigation attorneys since 2012.

Currently, Lanfranco oversees all legal assistants at her current law

firm. Lanfranco states that her reasonable hourly rate is $75.00

per hour. I find this rate to be reasonable considering the rates

charged for paralegals and legal assistant work typically billed in this

district. , No. 6:23-cv-1706, 2025 WL

1268845, at * 3 (M.D. Fla. Apr. 11, 2025) (noting paralegals in this

district are typically billed between $75.00 and $125.00 per hour).

Based on this, I recommend the Court find the proposed rate for

Lafranco reasonable.

2. Reasonable Hours

Next, the Court must determine whether the hours expended

are reasonable. Fee applicants must exercise “billing judgment,”

meaning they should omit hours that are excessive, redundant, or

otherwise unnecessary, regardless of experience or skill. , 168

F.3d at 428. If fee applicants fail to exclude “excessive, redundant, or

otherwise unnecessary” hours, which are hours “that would be

unreasonable to bill to a client and therefore to one’s adversary

,” the

Court must exercise billing judgment for them. , 836 F.2d

at 1301 (emphasis in original). The “goal in shifting fees (to either

party) is to do rough justice, not to achieve auditing perfection,” and

so “trial courts may take into account their overall sense of a suit, and

may use estimates in calculating and allocating an attorney’s time.”

, 563 U.S. 826, 838 (2011).

Although Counsel did not provide a total, I have added up the

time recorded on the itemized billing statement, which totals 5.45

itemized hours for Jimenez, and 10.38 hours for Lanfranco.

Dkt. 27-1. I find the requested hours unreasonable.

First, litigants may only seek fees for those claims they are the

“prevailing party” on. Counsel’s billing records do not parcel out

specifically what time was spent on the claims she prevailed on and

what time was spent on the claims that ultimately were unsuccessful.

Although counsel states she has voluntarily reduced her overall hours

by two hours to account for this difference, her itemized billing

records do not account for this reduction. Dkt. 27-1. Counsel’s

failure to comply with such a basic time-keeping requirement

significantly impacts the Court’s review of the requested fees.

, 461 U.S. 424, 437 (1983) (“The applicant . . .

should maintain billing time records in a manner that will enable a

reviewing court to identify distinct claims.”).

Second, there are many time entries that are simply

inappropriate for reimbursement. Counsel’s billing records contain

excessive time spent on drafting simple motions, time billed for

impermissible tasks, and hours spent on tasks that were required only

because of counsel’s professional error. For example, between August

29, 2023, and February 1, 2024, when the Complaint was filed, 2.91

hours were spent on preliminary matters such as “Case Review:

Review case Update Chart,” “Review case with JJ,” “Call with client:

Client called for case update” all before a complaint is even drafted

in this case. Dkt. 27-1 at 1. On February 15, February 28, March

25, June 6, July 22, August 22, September 11, and September 12,

2024, time was billed for “Case Review,” “Review case with JJ,” or

some other similarly worded administrative task. On May 7,

2024, .46 hours were billed for drafting “response to order to show

cause,” while on the same day, .55 additional hours were billed for

“Response to order.” On May 13, 2024, .12 hours were billed by

Lafranco for “Finalize and File: Response to order to show cause,”

and .65 hours were billed by Jimenez for “Review and revise response

to order to show cause.” at 2. These are a few examples of the

excessive time entries and time spent on non-reimbursable tasks.

To be clear, counsel includes in her request work that is not

compensable. Administrative or nonlegal clerical work is a non-

reimbursable part of a law firm’s overhead.

, 476 F. App’x 198, 203 (11th

Cir. 2012). And time spent by counsel correcting their own mistakes

should not be charged to a defaulting party.

, 369 F. Supp. 3d 1224, 1227 (N.D. Fla. 2019)

(prevailing party should not recover fees for time spent correcting the

party’s counsel’s error); , 104 F. Supp. 2d 1357, 1360

(M.D. Fla. 2000) (“[T]ime devoted to correcting one’s own errors

should not be reimbursable.”). In sum, upon review of the submitted

records, I conclude these obvious errors and others represent a

substantial lack of billing judgment.

The Court may reduce the number of unreasonably high

hours by either conducting an hour-by-hour analysis or by applying

an across-the-board cut, but not both. , 548 F.3d at 1352

(citing , 10 F.3d 776, 783 (11th Cir. 1994)).

After carefully reviewing the billing records, and because I cannot

determine the reasonableness of the hours requested because counsel

has not parceled out which hours were spent on only the claims she

ultimately prevailed on, I recommend reducing the claimed hours

across-the-board by fifty percent. ,

, No. 8:09-cv-2465, 2012

WL 2226441, at *6 (M.D. Fla. June 15, 2012) (across-the-board

reductions to address the inclusion of work performed pursuing

unsuccessful claims);

, No. 8:20-cv-1952, 2022 WL 1242482, at *5

(M.D. Fla. Apr. 11, 2022), , 2022

WL 1239352 (M.D. Fla. Apr. 27, 2022) (across-the-board

reductions to account for excessive billing practices).

I conclude reducing the fees sought by half is appropriate

considering the pervasiveness of the improper billing practices and

the inability to parcel out the hours spent on the unsuccessful claims.

I therefore respectfully recommend the Court award Plaintiff

$1,622.25 in attorney’s fees.4

C. Costs

Plaintiff also asks the Court to award her $470.00 in taxable

costs. Dkt. 27 at 12. Counsel represents these costs include $405.00

for fees of the Clerk and $65.00 for the service of the summons and

subpoena. Although Counsel should have submitted a proposed

bill of costs to the Clerk to tax these costs, I will address the request

here. Local Rule 7.01(a) (requiring a motion to request

costs) Fed. R. Civ. P. 54(d) (providing procedure

for recovery of taxable costs).

A prevailing party may recover costs as a matter of course

unless otherwise directed by the Court or applicable statute. Fed.

R. Civ. P. 54(d)(1). Congress has determined the costs that are

recoverable under Rule 54(d). 28 U.S.C. § 1920;

, 482 U.S. 437, 441–42

(1987). Fees paid to the Clerk are allowable taxable costs. 28 U.S.C.

§ 1920(1); , No. 8:15-

cv-1017, 2016 WL 11581971, at *4 (M.D. Fla. Aug. 25, 2016),

, 2016 WL 11581970 (M.D. Fla. Sept.

12, 2016). Fees paid to private process servers are taxable too, provide

such fees do not exceed the statutory fees charged by the United

States Marshals Service. , 213 F.3d 600,

4 This amount is 50% of the total amount of attorney’s fees Counsel

is claiming on the itemized billing sheet found on Dkt. 27-1.

624 (11th Cir. 2000). The Marshals Service currently charges $65 per

hour for service, which is the amount sought here. 28 U.S.C.

§ 1921 (authorizing the Marshals Service to collect fees for serving

process); 28 C.F.R. § 0.114 (regulation imposing fee schedule for

certain services). And so, those costs are taxable too.

Because the costs sought are taxable and allowable, I

respectfully recommend the Court award Plaintiff $470.00 in costs.

IV. RECOMMENDATION

Accordingly, I respectfully RECOMMEND the Court:

1. GRANT in part Plaintiff’s Motion for Attorney’s Fees

(Dkt. 27);

2. AWARD Plaintiff a total of $2,092.25, consisting of

an award of attorney fees in the amount of $1,622.25 and costs in

the amount of $470.00;

3. DIRECT the Clerk to enter an amended judgment for

Plaintiff and against Defendant in that amount; and

4. DENY the remainder of Plaintiff’s Motion.

Notice to Parties

“Within 14 days after being served with a copy of [a report

and recommendation], a party may serve and file specific written

objections to the proposed findings and recommendations.” Fed. R.

Civ. P. 72(b)(2). “A party may respond to another party’s objections

within 14 days after being served with a copy.” . A party’s failure

to serve and file specific objections to the proposed findings and

recommendations alters review by the district judge and the United

States Court of Appeals for the Eleventh Circuit, including waiver of

the right to challenge anything to which no specific objection was

made. See Fed. R. Civ. P.72(b)(3); see also 28 U.S.C.

§ 636(b)(1)(B); Ith Cir. R. 3-1.

ENTERED in Orlando, Florida, on June 4, 2025.

he nl, CO ae

ROBERT M. NORWAY

United States Magistrate Judge

Copies to:

Hon. Gregory A. Presnell

Counsel of Record

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