Urban v. SB 2028 LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO. 24-60652-CIV-DIMITROULEAS/HUNT
DAVID RICHARD URBAN,
Plaintiff,
v.
SB 2028 LLC D/B/A
BELLA MONTE DELICATESSEN,
and KENNETH D. HINES,
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. 34. 	The Honorable William P. Dimitrouleas
referred this Motion to the undersigned for a report and recommendation. 	ECF No. 35;
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 argument of counsel at a hearing on the
Motion, the applicable law, and the entire record, undersigned hereby RECOMMENDS
Plaintiff’s motion be GRANTED IN PART AND DENIED IN PART as set forth below.
BACKGROUND
On April 21, 2024, Plaintiff filed suit under the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 216(b), for unpaid overtime wages and liquidated damages. 	On February
20, 2025, the parties filed a Joint Motion to Approve Settlement, ECF No. 29, which this
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Court approved. ECF No. 30. Plaintiff now seeks an award of reasonable attorney’s fees.
ECF No. 34.
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.
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
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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. 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.
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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 their practice, reputation, and legal experience, counsel request, the following hourly
rates:
• 	Elliot Kozolchyk, counsel in this case with over 15 years of experience, asks
for $400 per hour for 39.6 hours of work.
• 	Dillon Cuthbertson, a first-year associate and co-counsel in this case, requests
a rate of $300 for 16 hours of work.1
ECF. No. 34-1 at 6.
After the undersigned’s order requiring notice of previously awarded fees and
costs, 	Plaintiff’s 	counsel 	provided 	relevant 	fee 	awards 	which 	indicate 	that 	Mr.
Kozolchyk’s proposed rate meets the rates previously awarded in the Southern District.
1 Plaintiff’s counsel maintains these hours represent an 8.1 percent reduction in the actual
number of hours billed.
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ECF No. 42. The undersigned has previously recommended an award of $400 per hour
for Mr. Kozolchyk, and recommends he receive the same rate here.
In that same Notice, counsel indicated that Mr. Cuthbertson had recently been
awarded a rate of $250 per hour in this district. 	The undersigned finds this previous
award to be in keeping with rates commonly awarded in this district. 	Therefore, it is
recommended that Mr. Cuthbertson be awarded a rate of $250 per hour for his work on
this case.
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.
Plaintiff’s counsel seeks compensation for 39.6 hours for Mr. Kozolchyk, and 16
hours for Mr. Cuthbertson. Plaintiff provided a billing statement reflecting an 8.1 percent
discount applied by Plaintiff’s counsel. 	ECF No. 34-1. 	This discount is reflected in the
total amount of fees sought—Plaintiff’s counsel allege they incurred $22,460 in fees, but
following the 8.1 percent discount, seek an award of $20,640. Id.
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Defendants contend Plaintiff’s counsel billed for hours that were not reasonably
incurred, in that counsel’s actions needlessly increased the time spent in this case. ECF
No. 36 at *1. Courts routinely find that “adjustments to . . . attorney hours are warranted
[if] the time sought is ‘excessive, redundant or otherwise unnecessary.’” 	Nat’l All. for
Accessibility, 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). 	The undersigned has
therefore examined Plaintiff’s billing records to determine if a reduction in hours is
appropriate.
The undersigned notes that the case underwent an unsuccessful mediation and
settled roughly on the eve of trial. 	The Parties had submitted witness and exhibit lists,
and Defendant had filed a Motion in Limine. No dispositive motions were filed. Plaintiff
argues that extensive discovery was necessary due to Defendant’s own defense of the
case.
Having examined the billing records, the Court does indeed find that counsel’s
claimed hours are somewhat excessive, though not to the extent claimed by Defendant.
The Court agrees with Defendant that there are instances of apparent double billing, in
that Mr. Cuthbertson and Mr. Kozolchyk both charged for tasks that required only one
attorney. Although this may have been the result of training a new associate, this is not
the kind of work appropriate to consider in the fee-shifting context. Additionally, the Court
observed several entries spent on tasks such as reviewing docket entries and other
simple functions that, read together, appear excessive. This Court has previously denied
counsels’ requests to collect legal fees for work that consisted of coordinating schedules,
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basic communications, and procedural matters usually performed by legal assistants, not
lawyers. See Williams v. R.W. Cannon, Inc., 657 F. Supp. 2d 1302, 1311 (S.D. Fla. 2009).
Accordingly, these hours should be excluded.
“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. 	The undersigned finds an additional 10 percent across-the-board cut appropriate
here. 	Accordingly, Mr. Kozolchyk should be compensated for 35.6 hours of work, while
Mr. Cuthbertson should be compensated for 14.4 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
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an attorney’s performance involves exceptional delay in the payment of fees.” Id. at 554–
56.
In this case, the undersigned finds no reason to depart from the lodestar,
calculation. Therefore, Plaintiff should be awarded $14,240 for Mr. Kozolchyk (35.6 hours
at $400 per hour), and $3,600 for Mr. Cuthbertson (14.4 hours at $250 per hour), for a
total award of $17,840.2
2 Plaintiff also asks this court to find that Plaintiff will be entitled to its additional fees and
costs associated with collection of Plaintiff’s fees. The undersigned sees no need for a
preemptive ruling on the issue, and recommends the Court deny Plaintiff’s request.
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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. 34, be GRANTED IN
PART to the extent that Plaintiff be awarded attorney’s fees in the amount of $17,840,
with post judgment interest accruing from the date the Court issues its Order. The Motion
should be otherwise DENIED.
Within fourteen (14) 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 13th day of January
2026.
_____________________________________
PATRICK M. HUNT
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Honorable William P. Dimitrouleas
All Counsel of Record
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