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Evans v. Caregivers, Inc.

United States District Court, M.D. Tennessee, Nashville Division

April 20, 2018

LISA EVANS and DENISE STARKS Plaintiffs,
v.
CAREGIVERS, INC. and ROBERT DEBLASIO Defendants.

          Campbell Magistrate Judge

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY, U.S. MAGISTRATE JUDGE.

         Pending before the Court is the Plaintiffs' Motion for Attorneys' Fees and Costs (Docket No. 53) filed pursuant to the Order of August 15, 2017 (Docket No. 43) directing Plaintiffs to file a motion for attorneys' fees related to an evidentiary hearing in this matter and the filing of the instant motion. The Motion was referred to the undersigned to prepare a Report and Recommendation. Docket No. 63. For the reasons stated herein, the undersigned recommends that the Plaintiffs' motion be GRANTED in part, as explained in and subject to the reasons herein.

         BACKGROUND

         This is an action for damages brought under the Fair Labor Standards Act (“FLSA”) and as a collective action on behalf of similarly situated individuals who worked as home caregivers for Defendants. Docket No. 1. The court granted Plaintiffs' unopposed motion for conditional certification, approval of notice and consent forms and ordered disclosure of contact information for former and current employees. Thereafter, Plaintiffs filed a motion requesting an evidentiary hearing to determine the propriety of sanctions against Defendants based upon the alleged intentional interference by Defendant DeBlasio related to the notice and opt-in process alleging he intimidated potential opt-in plaintiffs to decline to participate in the action. Docket No. 33. Following the evidentiary hearing, the court found that Defendant DeBlasio “interfered in the notice and opt-in process.” Docket No. 43. The Court ordered in part that “the Plaintiffs may file a motion for attorneys' fees incurred by them in connection with this motion and hearing. The court will award reasonable attorneys' fees.” Id. Plaintiffs thereafter filed the instant motion along with declarations, exhibits and supporting memorandum of law. Docket Nos. 53, 53-1 and 54. Defendants have filed a response in opposition to the motion. Docket No. 58. Plaintiffs filed a reply. Docket No. 61.

         STANDARD OF REVIEW

         Because the Plaintiffs' entitlement to attorneys' fees has previously been determined by the district court, the only issue is what constitutes a reasonable attorney fee in the instant case. A reasonable attorney fee is generally calculated by utilizing the “lodestar method.” The Northeast Ohio Coalition for the Homeless v. Hustead, 831 F.3d 686, 702 (6th Cir. 2016). “Lodestar” is the number of hour reasonably expended on the litigation multiplied by a reasonable hourly rate. Id. Applicants seeking attorney's fees must exercise billing judgment, and the court may exclude hours that were not “reasonably expended.” Id. The court has broad discretion in determining the amount of a fee award. Hensley v. Eckerhart, 103 S.Ct. 1933, 1944 (1983). In addition to consideration of the lodestar figure courts may consider other factors to determine if the fee is reasonable. Cramblit v. Fikse, 33 F.3d 633 (6th Cir. 1994).

         ANALYSIS

         A. Reasonableness of the Hourly Rate

         The court has a broad discretion in determining a reasonable hourly rate for an attorney. The Northeast Ohio Coalition, 831 F.3d at 715. “Ordinarily courts look to ‘[rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'” Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995)(quoting Blum v. Stenson, 465 U.S. 886, 896, n. 11, 104 S.Ct. 1541 (1984)). There is a presumption in favor of the community market rates. See, e.g., Blum 465 U.S. at 895, 104 S.Ct. 1541 (“'[R]easonable fees' . . . are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.”); Adcock-Ladd v. Secretary of Treasure, 227 F.3d 343, 350 (6th Cir. 2000)(“A trial court, in calculating the “reasonable hourly rate” component of the lodestar computation, should initially assess the “prevailing market rate in the relevant community.'” (quoting Blum, 465 U.S. at 895, 104 S.Ct. 1541)).

         To determine the local market rate, courts should consider a combination of its own expertise and judgment and may consider proof of rates charged in the community under similar circumstances, opinion evidence of reasonable rates, and the attorney's actual billing rate and fee awards from prior cases. See Wells v. Corporate Accounts Receivable, 683 F.Supp.2d 600, 602 (W. D. Mich. 2010).

         Plaintiffs seek an award of attorneys' fees in the amount of $22, 675.50 and $589.90 for litigation expenses. Docket No. 53. Plaintiffs utilized three attorneys and two paralegals in relation to this matter. Docket No. 53-1, pp. 6-7. The court will address the hourly rate as to each in turn. Plaintiffs contend that the billing rate for M. Reid Estes is $520.00 per hour which they assert is reasonable based upon his over thirty years of experience emphasizing employment matters. Id. Plaintiffs seek an hourly rate of $475.00 for Peter F. Klett based on his over twenty years of litigation experience. Plaintiffs seek a billing rate of $315.00 per hour for R. Cameron Caldwell based on over seven years of litigation experience in FLSA collective action cases. Id. Plaintiffs seek a billing rate of $190.00 per hour for senior paralegal Pam Partee and $180.00 per hour for paralegal Jennifer Council. Id.

         In support of their argument for the reasonableness of the requested rates, Plaintiffs rely on the affidavit of Paul Klett which contends that the hourly rates are reasonable; an affidavit from attorney Robert Boston filed in a separate action filed decided in 2015 by Judge Nixon related to a fee request by Reid Estes that Mr. Estes' then requested hourly rate of $430.00 per hour was reasonable; and a copy of the billing statements of Plaintiffs' team for their work. Docket No. 54, 54-1 and 2. Defendant argues that the “self-serving statements” of Plaintiffs' counsel are insufficient especially in the absence of additional evidence such as guidelines or surveys of rates in the market to aid the court in determining the prevailing rate. While Defendants suggest no alternative rate, they contend the court should use its own knowledge and experience and reduce the rates accordingly. Docket No. 58, p. 4.

         The “prevailing market rate” for attorneys in this district has not been conclusively set. In 2013, this Court reported that the rate for experienced attorneys seeking recovery of fees in federal fee shifting statutes in the Middle District of Tennessee generally ranges between $250.00 to $275.00 per hour. McCutcheon v. Finkelstein Kern Steinberg & Cunningham, No. 3-11-cv-0696, 2013 WL 4521016, at *2 (M. D. Tenn. Aug. 27, 2013)(Sharp, J.)(setting attorney's fees at $275.00); see also, Siddle v. Crants, No. 3:09-cv-00175, 2013 WL 1245678, at *16 (M.D. Tenn, March 26, 2013)(Trauger, J.)(same). In 2014, this Court found that $395.00 per hour was a reasonable fee. Stewart v. CUS Nashville, LLC, 3:11-cv-342, 2014 WL 116593, at *8 (M. D. Tenn. January 10, 2014)(Trauger, J.); Osborne v. Nicholas, Fin., Inc. No. 3:12-cv-00185, 2014 WL 6871401, at *4 (M. D. Tenn. December 5, 2014)(Bryant, J.). In 2015, this Court adopted the rate of $395 per hour as the high end rate for experienced attorneys in this jurisdiction specifically authorizing that rate for Mr. Estes. Melton et al. v. VIP Home Nursing and Rehabilitation Service, d/b/a/ CareAll, et al., 3:10-cv-00691, Order M. D. Tenn, January 8, 2015(Nixon, ...


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