United States District Court, N.D. Texas, Dallas Division
ARTURO CASTRO, and all others similarly situated under 29 U.S.C. § 216(b), Plaintiff,
PRECISION DEMOLITION LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
a jury trial and the entry of judgment in his favor for
unpaid overtime pay and liquidated damages under the Fair
Labor Standards Act of 1938 (“FLSA”), 29 U.S.C.
§ 201 et seq., plaintiff Arturo Castro
(“Castro”) moves for an award of $141, 236.50 in
attorney's fees, $1, 272.30 in nontaxable expenses, and
$10, 568.82 in taxable costs. For the reasons that follow,
the court grants the motion to the extent that it awards
Castro attorney's fees in the sum of $41, 333.70 and
nontaxable expenses in the sum of $1, 272.30. The court
otherwise denies the motion.
brought this suit under the FLSA against defendants Precision
Demolition LLC and Precision Demolition, LP (collectively,
“Precision Demolition”), Holfords Prairie
Partners, LLC (“Holfords”), Raymond D. Rinker III
(“Rinker”); and Aaron Smith
(“Smith”), for unpaid overtime wages and
retaliation. Following a six-day jury trial, the jury
returned a verdict partly in favor of Castro, and partly in
favor of defendants. Regarding Castro's FLSA overtime
claim, the jury found that Castro had proved the essential
elements of this claim against Precision Demolition, Rinker,
and Smith; that Precision Demolition had willfully violated
the FLSA; and that Precision Demolition owed Castro $608.85
for unpaid overtime for travel time. Regarding Castro's
FLSA retaliation claim, the jury found that Castro had proved
all of the essential elements of this claim as to Precision
Demolition and awarded him $13, 300 in “Back
pay.” The court entered judgment on the verdict,
awarding Castro judgment against Precision Demolition in the
principal sum of $13, 908.85, together with liquidated
damages in the sum of $608.85, and post-judgment interest.
The court assessed against Castro the taxable costs of court
of Holfords, Rinker, and Smith.
parties then filed motions for judgment as a matter of law
and to alter or amend the judgment. In Castro v.
Precision Demolition LLC, 2017 WL 2954784 (N.D. Tex.
July 11, 2017) (Fitzwater, J.) (“Castro
I”), appeal docketed, No. 17-10895 (5th
Cir. Aug. 14, 2017), the court held, inter alia,
that there was insufficient evidence for a reasonable jury to
have found that Precision Demolition retaliated against
Castro, and it dismissed Castro's retaliation claim with
prejudice. Id. at *8. The court then entered an
amended judgment ordering that Castro recover against
Precision Demolition, Holfords, Rinker, and Smith, jointly
and severally, in the principal sum of $608.85, together with
liquidated damages in the sum of $608.85, and post-judgment
interest. The judgment provided that each party would bear
his or its own taxable costs of court.
now moves for an award of $141, 236.50 in attorney's
fees, $1, 272.30 in nontaxable expenses, and $10, 568.82 in
taxable costs. Defendants object to the motion on various
threshold matter, the court addresses defendants'
argument that Castro's counsel should not be awarded any
fees in this case because they allowed this matter to go to
trial knowing that Castro's overtime claim, as set forth
in the complaint, was not supported by Castro's
deposition testimony or the documents produced in discovery;
they knew that none of the documents in the case supported
the theory that Castro was terminated, but did not amend the
complaint to allege that Castro was demoted and/or
terminated; and the only claim they prevailed on at
trial-Castro's claim for unpaid travel time-was based on
a day-of-trial “epiphany” during which Castro
recalled, for the first time, that he had been promised
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 costs of the action.” 29 U.S.C. § 216(b). Fee
awards are mandatory for prevailing plaintiffs in FLSA cases.
Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th
Cir. 2013) (“[A]n employer who violates the [FLSA] is .
. . required to pay attorney's fees.”); see
also Steele v. Leasing Enters., Ltd., 826 F.3d 237, 249
(5th Cir. 2016) (“Citing 29 U.S.C. § 216(b), [the
Fifth Circuit] has held that ‘[r]easonable
attorney's fees are mandatory' when a court finds
that an employer has violated [29 U.S.C.] § 206.”
(citing Weisel v. Singapore Joint Venture, Inc., 602
F.2d 1185, 1191 n.18 (5th Cir. 1979))); Saizan v. Delta
Concrete Prods. Co., 448 F.3d 795, 799 n.7 (5th Cir.
2006) (recognizing that “prevailing party”
fee-shifting jurisprudence applies in FLSA cases even though
the attorney's fee provision of the statute does not
specifically mention “prevailing party”).
plaintiff must satisfy three requirements to demonstrate
prevailing party status: (1) he must achieve
judicially-sanctioned relief; (2) the relief must materially
alter the legal relationship between the parties; and (3) the
relief must modify the defendant's behavior in a way that
directly benefits the plaintiff at the time the relief is
entered. Petteway v. Henry, 738 F.3d 132, 137 (5th
Cir. 2013). To “prevail, ” the party seeking fees
need not procure a favorable judgment on every claim.
Jenevein v. Willing, 605 F.3d 268, 271 (5th Cir.
2010) (§ 1988 case). A plaintiff's success need not
address the central claim of the case; prevailing-party
status is appropriate where the plaintiff succeeds on
“any significant issue in litigation which achieves
some of the benefit the parties sought in bringing
suit.” Petteway, 738 F.3d at 137 (quoting
Tex. State Teachers Ass'n v. Garland Indep. Sch.
Dist., 489 U.S. 782, 789 (1989)).
undisputed that Castro succeeded on his FLSA unpaid overtime
claim and was awarded $608.85 for unpaid overtime for travel
time and $608.85 in liquidated damages. The court thus
concludes that Castro was the “prevailing party”
in this lawsuit and is entitled to an award of
court now turns to Castro's request for $141, 236.50 in
attorney's fees. As stated above, “[u]nder the
FLSA, an employer who violates the statute is also required
to pay attorney's fees.” Black, 732 F.3d
at 502 (citing 29 U.S.C. § 216(b)). The Fifth Circuit
“use[s] the lodestar method to calculate an appropriate
attorney's fee award under the FLSA.” Id.
(internal quotation marks omitted) (quoting Saizan,
448 F.3d at 799). “The lodestar is calculated by
multiplying the number of hours an attorney reasonably spent
on the case by an appropriate hourly rate, which is the
market rate in the community for [the] work.”
Id. (citation omitted). “The court should
exclude all time that is excessive, duplicative, or
inadequately documented.” Jimenez v. Wood Cnty.,
Tex., 621 F.3d 372, 379-80 (5th Cir. 2010).
“[A]fter calculating the lodestar, a district court may
enhance or decrease the amount of attorney's fees based
on ‘the relative weights of the twelve factors set
forth in Johnson [ v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)
].'” Black, 732 F.3d at 502 (citations
omitted). The fee applicant bears the burden of
substantiating both the requested hours and the hourly rates.
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
determine the lodestar, the court first considers whether the
requested hourly rates are reasonable.
hourly rates to be used in the lodestar calculation are
determined by ‘the prevailing market rates in the
relevant community .'” Barrow v. Greenville
Indep. Sch. Dist., 2005 WL 6789456, at *15 (N.D. Tex.
Dec. 20, 2005) (Fitzwater, J.) (quoting Blum v.
Stenson, 465 U.S. 886, 895 (1984)), aff'd,
2007 WL 3085028 (5th Cir. Oct. 23, 2007). As the fee
applicant, Castro “bears the burden of demonstrating
‘that the requested rates are in line with those
prevailing in the community for similar services by lawyers
of reasonably comparable skill, experience, and
reputation.'” Id. (quoting Blum,
465 U.S. at 895 n.11).
seeks attorney's fees for the services of J.H. Zidell,
Esquire (“Zidell”) at an hourly rate of $350,
increasing during the course of the litigation to $390; for
the services of Robert Manteuffel, Esquire
(“Manteuffel”) at an hourly rate of $390; for the
services of Joshua Petersen, Esquire (“Petersen”)
at an hourly rate of $230, increasing during the course of
the litigation to $260; and for the services of Rosa Nichols
(“Nichols”), a legal assistant, at an hourly rate
of $90. Castro contends that the rates charged have been
found reasonable in this district, citing various cases in
which other judges of this court have found that an hourly
rate of $325 to $350 was reasonable for Zidell's
services and an hourly rate of $350 was reasonable
for Manteuffel's services.
object to the rates Castro seeks for Manteuffel, Zidell, and
Petersen.They contend that the median hourly rate
for Dallas area labor law practitioners is $280, that the
median hourly rate for lawyers with over 25 years of
experience (such as Manteuffel) is $350, that the median
hourly rate for lawyers with 11 to 25 years of experience
(such as Zidell) is $300, and that the median hourly rate for
lawyers with 3-6 years of experience (such as Petersen) is
$250; that Castro cites no authority showing Zidell's
time to have ever been compensated at an hourly rate of $390;
that the only case in which Manteuffel was awarded $390 was
one in which the plaintiffs obtained a default judgment
against pro se defendants; that Castro has made no showing
regarding the customary rate in the community; that Petersen
should not be compensated at an hourly rate of $260 per hour
but should, instead, be compensated at the hourly rate of
$230 since he has not demonstrated that he gained any
substantial education or experience during the course of this
litigation; and that Zidell should be compensated at an
hourly rate of either $300 (which takes into account the
median rate for practitioners of his tenure and the fact that
Zidell has been admitted in Texas only since 2010) or $350 (a
rate previously upheld in this district).
courts are considered experts as to the reasonableness of
attorney's fees[.]” Primrose Operating Co. v.
Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir.
2004). This court has previously found in an FLSA overtime
case that an hourly rate of $350 was reasonable for the
services of both Zidell and Manteuffel. See Arriaga v.
Califco, LLC, 2013 WL 5928852, at *1 (N.D. Tex. Nov. 5,
2013) (Fitzwater, C.J.) (“Given the attorneys'
respective levels of experience and the relevant prevailing
rates, together with [plaintiff's] showing that courts
have awarded fees using similar rates, the court, as an
expert as to the reasonableness of attorney's fees, finds
that [$350 per hour is] customarily charged in this locality
for similar legal services and [is] reasonable.”).
Other judges of this court have also awarded Zidell and
Manteuffel reasonable attorney's fees at an hourly rate
of $350. See, e.g., Pineda v. JTCH Apartments, LLC,
126 F.Supp.3d 797, 803 (N.D. Tex. 2015) (Boyle, J.) (finding
reasonable the following hourly rates: Zidell at
$350.00/hour, Manteuffel at $350.00/hour, and Petersen at
$230.00/hour); Alonso v. Tepa Mar Y Tierra, Inc.,
2014 WL 12577102, at *4 (N.D. Tex. July 8, 2014)
(O'Connor, J.) (finding that $350.00 per hour for Zidell
and $350.00 per hour for Manteuffel were reasonable rates).
Although Castro requests fees for Manteuffel's services
at an hourly rate of $390 and for part of Zidell's
services at this same hourly rate, he does not provide the
court any grounds for awarding fees at this higher rate as
opposed to the $350 hourly rate that judges of this court
have found to be reasonable in similar cases. Accordingly,
based on the court's expertise in determining reasonable
attorney's fees, it finds that an hourly rate of $350 for
the services of Manteuffel and Zidell is reasonable.
requests attorney's fees for Petersen at a rate of $230
to $250 per hour. Petersen has been licensed in Texas since
May 2013. Accordingly, at the commencement of this case,
Petersen had been licensed for fewer than two years, and, at
the time of trial (January 2017), he had been licensed for
fewer than four years. According to the State Bar of Texas
2015 Hourly Fact Sheet, the median hourly rate in Dallas for
an attorney with three to six years of experience is $250,
and the median hourly rate for a Dallas attorney with two
years of experience or less is $217. At least one judge of
this court has awarded Petersen fees at an hourly rate of
$230, see Pineda, 126 F.Supp.3d at 803, and
defendants do not object to this hourly rate. Castro seeks
fees at an hourly rate of $260 for some of Petersen's
services, but he provides no justification for a fee award
above the median for Petersen's level of experience or
above the rate at which Petersen has previously been
compensated by a judge of this court. Accordingly, based on
the court's expertise in determining reasonable
attorney's fees, it finds that $230 per hour is
reasonable for an attorney with Petersen's level of
court now determines the number of hours that were reasonably
expended by Castro's counsel.
present a general objection to Castro's request for fees
for Zidell's services. They maintain that Castro cannot
identify any document associated with this case that Zidell
drafted; that Castro cannot identify any point at which
Zidell made any personal appearance; that there is nothing
for which Zidell billed that either Petersen or Manteuffel
could not have competently handled; that in this simple FLSA
case, there was no need for a second senior lawyer to bill
$18, 000 for “review, ” “docketing, ”
and “conference with associate, ” Ds. Br. 11; and
that Zidell's fees should be excluded entirely. Castro
responds that Zidell billed only 46.6 hours in this case,
which has been pending for over 30 months (which equates to
approximately 1.5 hours per month during the pendency of this
litigation), and argues that defendants cite no legal
authority and present no evidence, other than their anecdotal
observation, that it is improper for a senior attorney on a
file to spend an average of 1.5 hours per month keeping up
with a file and making strategic decisions.
noted, the court should exclude all time that is duplicative.
Jimenez, 621 F.3d at 379-80. “If more than one
attorney is involved, the possibility of duplication of
effort along with the proper utilization of time should be
scrutinized.” Johnson, 488 F.2d at 717. This
court has disallowed, for example, time expended by multiple
attorneys who attended trial unnecessarily. See, e.g.,
Barrow, 2005 WL 6789456, at *15 (disallowing as
duplicative fees for two of four attorneys who represented
plaintiff at trial where plaintiff failed to meet her burden
of demonstrating why it was necessary for four attorneys to
attend trial). Although defendants object to Zidell's
time entries on the ground that “there is nothing for
which Mr. Zidell billed, that either Mr. Petersen, or Mr.
Manteuffel could not have competently handled, ” Ds.
Br. 11, they do not contend that any of Zidell's time
entries are duplicative or unnecessary. In fact, their
argument suggests the opposite (i.e., the time entries
reflect work that should have been done, but by
someone other than Zidell). Nor do they provide any authority
for the ...