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Van Booven v. Pnk (River City), LLC

United States District Court, E.D. Missouri, Eastern Division

June 12, 2015

HOWARD VAN BOOVEN, Plaintiff,
v.
PNK (River City), LLC d/b/a RIVER CITY CASINO AND HOTEL, Defendant.

MEMORANDUM AND ORDER

CAROL E. JACKSON, District Judge.

This matter is before the court on plaintiff's motion for award of attorneys' fees and costs, pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 216(b), and Fed.R.Civ.P. 68. Defendant has filed a response in opposition and the issues are fully briefed.

I. Background

On May 2, 2014, plaintiff Howard Van Booven filed this putative class and collective action against his employer, seeking unpaid overtime, liquidated damages, attorney's fees and other relief for violations of the Missouri Minimum Wage Law (MMWL), Mo. Rev. Stat. §§ 290.500 et seq., and the FLSA. In the ensuing ten months, plaintiff filed three amended complaints, in response to which defendant filed answers, a motion for partial dismissal, and two motions for partial judgment on the pleadings. Plaintiff also filed two motions to proceed as a collective action, which defendant opposed. On January 16, 2015, defendant served plaintiff with an offer of judgment, offering plaintiff $6, 000 for unpaid wages, plus attorney's fees, costs, and expenses as determined by the court. Plaintiff accepted the offer of judgment on January 28, 2015.

Plaintiff originally sought attorneys' fees in the total amount of $70, 915.25 for 183.3 hours of legal time expended by four attorneys, as detailed in three separate billing reports. After initial review, the court directed plaintiff to submit a single chronological billing report for all attorney hours. In addition, the court made a preliminary determination that plaintiff was not entitled to attorneys' fees for work performed in connection with the third amended complaint, on behalf of a new plaintiff who has filed his own action, or completing clerical or administrative tasks. Plaintiff has now submitted a modified billing report in which he seeks attorneys' fees in the amount of $65, 211.50 for 170.65 hours. Plaintiff also requests $501.00 in costs.

II. Discussion

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 the costs of the action." 29 U.S.C. § 216(b). 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 should also consider: "(1) the time and labor required, (2) the novelty and difficulty of the question, (3) the skill requisite to perform the legal services properly, (4) the preclusion of other employment 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." Starks v. Harris Co. Inc., No. 4:12 CV 473 DDN, 2014 WL 1314945, at *2 (E.D. Mo. Mar. 26, 2014) (quoting Zoll v. East Allamakee Cmty. Sch. Dist., 588 F.2d 246, 252 n. 11 (8th Cir. 1978)).

A. Hours Expended

When calculating the lodestar, a district court need not accept counsel's submission of hours as conclusive but should exclude from that total those hours that were not reasonably expended on the litigation. Fires v. Heber Springs Sch. Dist., 565 F.Appx. 573, 575 (8th Cir. 2014) (citing Hensley, 461 U.S. at 433-34). The fee applicant bears the burden of substantiating the claimed number of hours expended. West v. Matthews Intern. Corp., 4:09CV1867 DDN, 2011 WL 3904100, at *3 (E.D. Mo. Sept. 6, 2011) (citing Hensley, 461 U.S. at 437). Hours that are "excessive, redundant, or otherwise unnecessary" are not to be included in an award of fees. Hensley, 461 U.S. at 434. In addition, a court "may reduce attorney hours, and consequently fees, for inefficiency or duplication of services in cases where more than one attorney is used." A.J. v. Kierst, 56 F.3d 849, 864 (8th Cir. 1995). Attorneys' fees for time spent on clerical or administrative tasks are not appropriate. Betton v. St. Louis County, 4:05CV1455 JCH, 2010 WL 2025222, at *7 (E.D. Mo. May 19, 2010). Finally, "[i]n the private sector, billing judgment' is an important component in fee setting... Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Hensley, 461 U.S. at 434 (citation omitted) (emphasis in original).

Where more than one attorney represents a prevailing party, courts must consider the contribution of all attorneys. Schommer v. Accelerated Receivable Solutions, No. 8:11CV95, 2011 WL 3422775, at *3 (D. Neb. Aug. 4, 2011) (citing A.J., 56 F.3d at 863-64). However, "a court may reduce attorney hours, and consequently fees, for inefficiency or duplication of services in cases where more than one attorney is used." Id . (alteration and citation omitted). In this case, several entries include reviews or consultations between the attorneys by telephone or e-mail, for which multiple attorneys billed their time. While case review and consultation are not per se unreasonable, id., the court will deduct some of the hours as duplicative or excessive.

Defendant objects to several entries as unnecessary or excessive because plaintiff relied on documents "recycled" from a similar case filed in this district, Halsey v. Casino One Corp., 4:12-CV-1602 (CDP), changing only the names of the parties. Thus, defendant argues the court should disallow plaintiff's requested fees for drafting, reviewing and filing the original and amended complaints, the motion and memorandum to proceed as a collective action, plaintiff's declaration, and the response in support of plaintiff's motion for conditional certification. Plaintiff argues that using the Halsey documents as a template significantly reduced the amount of time spent drafting documents in this case. While some of this efficiency is evident in the billing records, the court nonetheless finds that, in light of counsels' expertise, the content of the filings, and the relatively minor modifications made, an excessive number of hours were devoted to drafting pleadings, amended pleadings, and motions to proceed as a collective action. Appropriate reductions have been made.

Defendant argues that plaintiff's counsel failed to use appropriate billing judgment by, for example, continuing to work on and bill for responses to motions that were rendered moot because plaintiff decided to file an amended complaint or certification motion. (See, e.g., Oct. 13 and 14, 2014 entries for reviewing motions for partial dismissal while counsel were deciding to amend complaint; Oct. 10, 2014 entry for responses to affirmative defenses). The court agrees that it is inappropriate to bill for time spent on abandoned strategies.

Defendant complains that the billing records of attorney Stuart Platt are excessively vague, making it difficult to tell whether the time he spent was reasonable and necessary. "Incomplete or imprecise billing records preclude any meaningful review by the district court of the fee application for excessive, redundant, or otherwise unnecessary hours and may make it impossible to attribute a particular attorney's specific time to a distinct issue or claim. H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir. 1991) (internal quotation and citation omitted). Thus, "[i]nadequate documentation may warrant a reduced fee." Id . The court agrees that some of Mr. Platt's billing entries are too vague to allow meaningful review and has disallowed such entries. (See, e.g., Sept. 5, 2014 entry "Receipt and review multiple pleadings" for 1.0 hour). The court has also disallowed entries for Mr. Platt's review of documents after they were filed. (See, e.g., Sept. 21, 2014 entry "Receipt and review edited brief in support of certification" for 1.0 hour).

Finally, plaintiff's modified billing statement removes most, but not all, of the entries for low-level case-management tasks ( e.g., reviewing non-consequential entries in the court's electronic case management system), and entries related to the third amended complaint. ...


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