Adderley v. Preferred Primary Care Associates LLC

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 24-61295-CIV-DIMITROULEAS/HUNT

ELIZABETH ADDERLEY,

Plaintiff,

vs.

PREFERRED PRIMARY CARE ASSOCIATES LLC,

NESREEN KURTOM, and WAEL EL-SHARIF,

Defendants.

__________________________________________/

REPORT AND RECOMMENDATION

THIS CAUSE is before this Court on Plaintiff’s Verified Motion for Attorney’s Fees

Pursuant to 29 U.S.C. 216(B), ECF No. 18. The Honorable William P. Dimitrouleas

referred this Motion to the undersigned for a report and recommendation. ECF No. 19;

see also 28 U.S.C. § 636(b); S.D. Fla. Mag. R. 1. Upon thorough review of the record

and the Motion, Response, and Reply, the undersigned hereby RECOMMENDS Plaintiff’s

motion be GRANTED IN PART AND DENIED IN PART as set forth below.

BACKGROUND

In her complaint, Plaintiff alleged one count for relief under the Fair Labor

Standards Act (FLSA) 29 U.S.C. § 216(b), contending Defendants failed to pay Plaintiff

full and proper overtime wages and Defendants knowingly and willfully refused to pay

Plaintiff’s legally entitled wages. ECF No. 1. Pursuant to Rule 68 of F.R.C.P., Plaintiff

moved for entry of judgment and acceptance of Defendants’ Offer of Judgment, in the

amount of $3,257.14. ECF No. 11. The Court entered judgment in favor of Plaintiff in the

amount of $3,257.14. ECF No. 12. Pursuant to 29 U.S.C. 261(B), Plaintiff now seeks an

award of $4,880.00 in attorney’s fees. ECF No. 18.

ANALYSIS

As an initial matter, it is undisputed that Plaintiff is entitled to reasonable attorney’s

fees and costs. It is well settled that a prevailing FLSA plaintiff is entitled to recover

attorney’s fees and costs based upon the language of the FLSA, which provides that “[t]he

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); see also Silva v. Miller, 547 F. Supp. 2d 1299, 1304 (S.D. Fla. 2008). In the

instant case, Plaintiff is the prevailing party under the FLSA statute and is entitled to

recover reasonable attorney’s fees. Defendants responded to Plaintiff’s motion and

contest Plaintiff’s entitlement to fees incurred after Defendants attempted to resolve the

matter in full. ECF No. 21.

This Court uses the lodestar method to calculate reasonable attorney’s fees,

multiplying a reasonable hourly rate by the number of hours reasonably expended.

Norman v. House. Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). A

reasonable hourly rate for attorney’s fees is determined by evaluating “the prevailing

market rate in the relevant legal community for similar services by lawyers of reasonably

comparable skills, experience, and reputation.” Id. (citing Blum v. Stenson, 465 U.S. 886,

895 (1984)); see also ACLU v. Barnes, 168 F.3d 423, 438 (11th Cir. 1999) (“The significant

disparity in their experience should be reflected in the rates awarded.”); Brown v. Sch. Bd.

of Broward Cty., No. 08-61592-CIV-DIMITROULEAS, 2010 WL 3282584, at *3 (S.D. Fla.

June 30, 2010) (reducing the requested hourly rate).

The movant bears the burden of proving the requested rate is consistent with

prevailing market rates. Norman, 836 F.2d at 1299. In addition to evidence presented by

the movant, “[a] court . . . is itself an expert on the question and may consider its own

knowledge and experience concerning reasonable and proper fees and may form an

independent judgment either with or without the aid of witnesses as to value.” Id. at 1303

(quoting Campbell v. Green, 112 F.2d 143, 144 (5th Cir. 1940)) (internal quotations

omitted). Thus, even when the submitted evidence is deficient, a court has the power to

make a fee award without the need of further pleadings or an evidentiary hearing. Id.

Moreover, “[a]n evidentiary hearing is unnecessary for issues about which the

district court possesses sufficient expertise: ‘Such matters might include the

reasonableness of the fee, the reasonableness of the hours, and [the] significance of the

outcome.’” Thompson v. Pharmacy Corp. of Am., 334 F.3d 1242, 1245 (11th Cir. 2003)

(quoting Norman, 826 F.2d at 1309). The primary issues here are the reasonableness of

counsel’s hourly rate and the reasonableness of the number of hours expended, matters

over which this Court possesses sufficient expertise.

A. Attorney’s Fees

1. Reasonable Hourly Rate

Plaintiff seeks attorney’s fees based upon professional services rendered. Plaintiff

requests an hourly rate of $400 for counsel for 12.2 total hours of work. ECF No. 18.

When “determining what is a ‘reasonable’ hourly rate and what number of compensable

hours is ‘reasonable,’” this Court must consider twelve factors:

(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.

The reasonable hourly rate is defined as the prevailing market

rate in the relevant legal community for similar services by

lawyers of reasonably comparable skills, experience, and

reputation. The fee applicant bears the burden of establishing

the claimed market rate. The Court may use its own

experience in assessing the reasonableness of attorney’s

fees.

Meyrowitz v. Brendel, 16-81793-CIV-MARRA, 2018 WL 4440492, at *3 (S.D. Fla. Sept.

17, 2018) (internal quotations and citations omitted). Generally, “[a] reasonable hourly

rate is one that is adequate to attract competent counsel in the relevant legal market, but

yet does not produce a windfall to that attorney.” Hermosilla v. Coca-Cola Co., No. 10-

21418-CIV-TORRES, 2011 WL 9364952, at *8 (S.D. Fla. July 15, 2011), subsequently

aff’d, 492 F. App’x 73 (11th Cir. 2012) (citing Blum v. Stenson, 465 U.S. 886, 894–95

(1984)).

This Court has considered the attorney’s affidavit and the twelve factors. Because

of his practice, reputation, and legal experience, counsel requests the following hourly

rate:

• Elliot Kozolchyk, counsel in this case and the sole shareholder of Koz Law,

P.A. with over 14 years of experience, asks for $400 per hour for 12.2 hours.

ECF. No. 18. In support of his requested hourly rate, Plaintiff’s counsel provides multiple

cases from this district in which he was awarded $400 per hour. ECF No. 18.

After the undersigned’s order requiring notice of previously awarded fees and

costs, ECF No. 27, Plaintiff’s counsel provided relevant, uncontested fee awards which

indicate his proposed rate meets the rates previously awarded in the Southern District.

ECF No. 28. Mr. Kozolchyk has over fourteen years of experience in relevant labor and

employment law including FLSA, ECF No. 18, and has received rates between $375 and

$400 per hour, five and seven times respectively. ECF No. 28. The undersigned has

previously recommended an award of $400 per hour and recommends Mr. Kozolchyk

receive the same rate here.

2. Hours Reasonably Expended

Upon determination of the hourly rate, a court must determine the reasonable

number of hours expended in the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). Inquiry into the reasonable number of hours focuses on an attorney’s exercise of

“billing judgment,” such as the attorney’s exclusion of hours “that would be unreasonable

to bill a client, and therefore to one’s adversary irrespective of the skill, reputation, or

experience of counsel.” Am. C.L. Union of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir.

1999) (quoting Norman, 836 F.2d at 1301) (internal quotation marks omitted) (emphasis

omitted). Fee applicants must exclude hours that were not “reasonably expended” or that

are determined to be “excessive, redundant, or otherwise unnecessary” from their fee

calculations. Hensley, 461 U.S. at 434.

“If the court concluded that the number of claimed hours is excessive, it may

engage in ‘an across-the-board cut,’ so long as it provides adequate explanation for the

decrease.” Galdames v. N & D Inv. Corp., 432 F.App’x 801, 806 (11th Cir. 2001). Courts

need not become “green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (2011).

The essential goal for the court is to “do rough justice, not to achieve auditing perfection.”

Id.

Plaintiff’s counsel seeks compensation for 12.2 hours and provided a billing

statement reflecting a 10.9% discount applied by Plaintiff’s counsel. ECF No. 18. This

discount is reflected in the total amount of fees sought—Plaintiff’s counsel incurred

$5,480.00 in fees, but following the 10.9% discount, seeks an award of $4,880.00. Id.

Defendants contend Plaintiff’s counsel billed for hours that were not reasonably incurred,

including: (1) time spent litigating fees, (2) non-recoverable clerical work, and (3)

excessive or unnecessary work. ECF No. 21.

Defendants claim Plaintiff’s counsel should not recover time spent litigating fees

because “the time incurred was not reasonable” and suggest “the resulting fees should

not be awarded.” ECF No. 21. Defendants, however, fail to specify what fees or time

should not be awarded. Id. Defendants also claim Plaintiff’s counsel improperly billed for

1.2 hours of clerical work, a category which is unrecoverable. Id. These time entries

relate to “review of the Court’s paperless orders, electronic notices, and e-mails

transmitting documents.” Id. at p. 16. Defendants argue the filings are purely

administrative and not recoverable.

“It is well established that clerical work such as coordinating schedules and

housekeeping matters are not to be included in an attorney’s fee award, even if an

attorney conducted those tasks.” Gonzalez v. Yoblendz Int’l, LLC, No. 15-61678-CIV-

COHN/SELTZER, 2016 WL 9225573, at *1 (S.D. Fla. June 20, 2016). This Court has

previously denied counsel was entitled to collect 1.8 hours of legal fees for work that

consisted of coordinating schedules, basic communications and procedural matters

usually performed by legal assistants not lawyers. Williams v. R.W. Cannon, Inc., 657 F.

Supp. 2d 1302, 1311 (S.D. Fla. 2009) (denying attorney’s fees for specific hours billed by

a paralegal). The Southern District has consistently drawn a distinction between work

which is traditionally performed by an attorney, or a paralegal on an attorney’s behalf, and

“clerical work, [such as] compilation of facts and statistics and other work which can often

be accomplished by non-lawyers.” Khatabi v. Car Auto Holdings, LLC, No. 21-20458-

CIV-TORRES, 2025 WL 1546514, at *8 (S.D. Fla. May 30, 2025) (quoting Williams, 657

F. Supp. 2d at 1311).

Here, Plaintiff’s counsel billed 1.2 hours for clerical work, including researching a

defendant’s residential address for service, emailing and coordinating with a process

server, reviewing emails that attached affidavits and invoices related to service, and

drafting emails that transmitted documents to opposing counsel. ECF No. 21. These

tasks fall into the clerical work category as they did not require the expertise of a lawyer.

Therefore, the undersigned excludes 1.2 hours of clerical tasks from Plaintiff’s fee award.

Defendants also claim Plaintiff’s counsel improperly billed 9.5 hours for excessive

and unnecessary work, specifically, work that was repetitive and form intensive. ECF No.

21 at 17–20. Defendants suggest a 3.6 hour, or approximately 40%, reduction in those

billed hours. ECF No. 21. Courts routinely find that “adjustments to . . . attorney hours

are warranted [if] the time sought is ‘excessive, redundant or otherwise unnecessary.’”

Nat’l All. for Accessability, Inc. v. Hull Storey Retail Grp., LLC, No. 3:10-CV-778-J-34JBT,

2012 WL 3853520, at *5 (M.D. Fla. June 28, 2012), report and recommendation

adopted, No. 3:10-CV-778-J-34JBT, 2012 WL 3853455 (M.D. Fla. Sept. 4, 2012). Upon

the undersigned’s review of the time submissions, no further reduction is recommended.

Plaintiff’s counsel billed a total of 12.2 hours. The undersigned finds Plaintiff’s

counsel billed for 1.2 hours of clerical work and therefore cuts such from the total.

Accordingly, Plaintiff’s counsel is awarded for 11 hours of work.

3. Lodestar Amount and Adjustment

“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable, but that

presumption may be overcome in those rare circumstances in which the lodestar does

not adequately take into account a factor that may properly be considered in determining

a reasonable fee.” Perdue v. Kenny A., 559 U.S. 542, 553 (2010). The Supreme Court

has specifically identified three circumstances that may justify a deviation from the

lodestar amount: 1) “where the method used in determining the hourly rate employed in

the lodestar calculation does not adequately measure the attorney’s true market value,

as demonstrated in part during the litigation”; 2) “if the attorney’s performance includes

an extraordinary outlay of expenses and the litigation is exceptionally protracted”; and 3)

when there are “extraordinary circumstances in which an attorney’s performance involves

exceptional delay in the payment of fees.” Id. at 554–56.

Here, the undersigned finds no reason to depart from the lodestar calculation in

this case. Therefore, Plaintiff should be awarded for 11 hours of work by one partner, at

a rate of $400 per hour. Considering the previously-applied discount, with which this

Court agrees, gives a straightforward calculation of 11 hours by $400 per hour, for a total

award amount of $4,400.

RECOMMENDATION

Based on the foregoing, the undersigned RECOMMENDS Plaintiff's Verified

Motion for Attorney’s Fees Pursuant to 29 U.S.C. 216(B), ECF No. 18, be GRANTED IN

PART to the extent that Plaintiff be awarded attorney's fees in the amount of $4,400. The

Motion should be otherwise DENIED.

Within seven (7) days after being served with a copy of this Report and

Recommendation, any Party may serve and file written objections to any of the above

finding and recommendations as provided by the Local Rules for this district. 28 U.S.C.

§636(b)(1); S.D. Fla. Mag. R. 4(b). The Parties are hereby notified that a failure to timely

object waives the right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions contained in this Report and

Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).

DONE and SUBMITTED at Fort Lauderdale, Florida, this 25th day of August 2025.

Le bn I

PATRICK M. HUNT

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

Honorable William P. Dimitrouleas

All Counsel of Record