Rembert v. A Plus Home Health Care Agency LLC, 20-3454

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: KETHLEDGE, Circuit Judge.
• Citation: 986 F.3d 613
• Parties: Christina REMBERT, on behalf of herself and others similarly situated, Plaintiff-Appellant, v. A PLUS HOME HEALTH CARE AGENCY LLC; Elliott Osunde; Olurotimi Banjoko; Osaghamudia Osazemwinde, Omoefe Efetevbia, Defendants-Appellees.
• Docket Number: No. 20-3454,20-3454
• Decision Date: 25 January 2021

986 F.3d 613

Christina REMBERT, on behalf of herself and others similarly situated, Plaintiff-Appellant,
v.
A PLUS HOME HEALTH CARE AGENCY LLC; Elliott Osunde; Olurotimi Banjoko; Osaghamudia Osazemwinde, Omoefe Efetevbia, Defendants-Appellees.

No. 20-3454

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 25, 2021

ON BRIEF: Gregory R. Mansell, MANSELL LAW LLC, Columbus, Ohio, Peter G. Friedmann, THE FRIEDMANN FIRM LLC, Columbus, Ohio, for Appellant. Sanjay K. Bhatt, Columbus, Ohio, for Appellees. Frederick M. Gittes, THE GITTES LAW GROUP, Columbus, Ohio, Andrew R. Biller, BILLER & KIMBLE, LLC, Columbus, Ohio, for Amicus Curiae.

Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.

KETHLEDGE, Circuit Judge.

986 F.3d 615

Christina Rembert appeals an award of attorney's fees in her Fair Labor Standards Act suit against A Plus Home Health Care Agency. Although the derelictions of defense counsel significantly prolonged this litigation, the district court reduced the fee request of plaintiff's counsel by nearly two-thirds. We reverse.

Rembert began working as a nurse for A Plus in September 2015. Although she routinely worked more than 40 hours per week, A Plus did not pay her overtime as required by the FLSA. When she confronted a supervisor about the issue, he allegedly told her that the company "couldn't make money" if they paid their employees overtime.

Rembert thereafter brought this suit and moved conditionally to certify an opt-in class. While that motion was pending, the Department of Labor began an investigation of A Plus's pay practices. In May 2018, the district court certified a class comprising nurses and other medical personnel whom A Plus employed but failed to pay overtime. The court also ordered A Plus "to provide to Plaintiff's counsel within 14 days of this order a list in electronic format of all persons potentially fitting within the proposed class." That deadline came and went without any response from defense counsel, which led the magistrate judge to schedule a phone conference, at which defense counsel failed to appear. Finally A Plus provided responsive information about five weeks after the court's original deadline.

The parties then began discovery, which was notable for defense counsel's repeated failure to comply with or even to acknowledge his obligations under the Federal Rules of Civil Procedure. Eventually the magistrate judge again intervened; but again defense counsel failed to act in accordance with his representations to the court or his obligations under the Rules. All the while, Rembert's counsel wrote letters and attempted to call defense counsel about these failures, without any response. Finally, Rembert's counsel prepared and filed a motion to compel. The magistrate judge granted the motion and ordered A Plus to pay "reasonable attorneys’ fees and costs associated with bringing this Motion and the surrounding circumstances." The magistrate judge also encouraged the parties to reach agreement within two weeks as to the amount of fees owed with respect to the motion; but defense counsel again failed to respond to repeated requests by Rembert's counsel to discuss the matter. Rembert was thus forced to prepare and file another motion requesting an award of fees in connection with the motion to compel.

Meanwhile, as a result of the Department of Labor investigation, some members of the class received full payment of the amounts owed to them. Rembert's counsel sent defense counsel an email stating that, "[g]iven your client's clear liability, we are perplexed as to why you continue to drag this out and force both parties to incur significant attorneys’ fees." On July 30, the district court ordered the parties to file, no later than August 16, 2019, a joint report on the status of settlement.

986 F.3d 616

Defense counsel failed to respond to or otherwise cooperate with Rembert's counsel with respect to that report, so Rembert's counsel drafted the report for both parties. Finally, in August, the parties agreed to the entry of judgment in favor of Rembert and the remaining class members in the amount of $18,961, plus "reasonable fees and costs."

Rembert then moved for an award of fees and costs as the prevailing party on her FLSA claim. See 29 U.S.C. § 216(b). The two lawyers serving as her counsel requested hourly rates of $350 and $300, respectively, and submitted detailed billing records in support of a request for 21.2 hours of compensable work in connection with the motion to compel and 98.7 hours on the remainder of the case, for a total request of $38,190 in fees (plus $575 in costs). Defense counsel did respond to that motion, arguing among other things that the court should reduce the compensable hours of Rembert's counsel from 119.9 hours to 80.05.

Six months later, the district court entered an order in which it approved the rates requested by Rembert's counsel but reduced counsel's total compensable hours from a total of 119.9 to 46.2—a 61% reduction in compensable hours, and almost twice the...