Christina Rembert, on behalf of herself and others similarly situated v. Aplus Home Health Care Agency LLC

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0017p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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.
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No. 20-3454
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:17-cv-00287—James L. Graham, District Judge.
Decided and Filed: January 25, 2021
Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
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.
_________________
OPINION
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KETHLEDGE, Circuit Judge. 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
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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.

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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. 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 reduction that
defense counsel had sought. The court then cut the fee award an additional $1,660, on the
ground that judges in the Southern District of Ohio “typically approved” fee awards of no more
than 35% of the “total settlement amount” (meaning the amount of the judgment plus the amount
of fees and costs awarded). That left Rembert with a total award of $13,790. We review the
award for an abuse of discretion. See Moore v. Freeman, 355 F.3d 558, 565 (6th Cir. 2004).
The FLSA provides that, if the court enters judgment in favor of a plaintiff on a claim of
unpaid overtime in violation of the Act, “[t]he court in such action shall . . . allow a reasonable
attorney’s fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). The
award of a reasonable fee to a prevailing plaintiff is therefore mandatory under the FLSA. A
reasonable fee is “adequately compensatory to attract competent counsel” but “avoids producing

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a windfall for lawyers.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (quotation
omitted). “[T]he lodestar method yields a fee that is presumptively sufficient to achieve this
objective.” Perdue v. Kenny A., 559 U.S. 542, 552 (2010). To calculate the lodestar, the court
first determines counsel’s reasonable hourly rate(s) and the number of hours that counsel
“reasonably expended” on the case. Waldo v. Consumers Energy Co., 726 F.3d 802, 821 (6th
Cir. 2013). The district court has some discretion regarding the rates and hours that are
reasonable, “but only when the court provides a clear and concise explanation of its reasons for
the fee award.” Gonter v. Hunt Valve Co., 510 F.3d 610, 616 (6th Cir. 2007). Multiplying
reasonable rates times reasonable hours yields the lodestar. See Waldo, 726 F.3d at 821.
Rembert challenges the district court’s fee determination on several grounds. First, she
argues (along with the Ohio Employment Lawyers Association as amicus) that the district court
abused its discretion—because its action was contrary to law, see Gonter, 510 F.3d at 616—
when it capped the fees awardable under the FLSA at 35% of the “total settlement amount[.]”
We agree. The court’s reasoning overlooked the Supreme Court’s observation that the lodestar
figure already “includes most, if not all, of the relevant factors constituting a ‘reasonable’
attorney’s fee[.]” Perdue, 559 U.S. at 553 (some internal quotation marks omitted). More to the
point, as the Second Circuit observed in a similar case, “[n]either the text nor the purpose” of the
FLSA “supports imposing a proportionality limit on recoverable attorneys’ fees.” Fisher v.
SD Protection Inc., 948 F.3d 593, 603 (2d Cir. 2020). The very reason that the FLSA (and the
civil-rights acts) mandate an award of reasonable fees to prevailing plaintiffs is that the monetary
value of their claims is often too small to support the cost of litigating them. If courts in these
cases capped the awardable fees at some percentage of that monetary value, therefore, many
workers with valid FLSA claims—the nurse who was underpaid $1,500, the laborer underpaid
$900—would be unable to “attract competent counsel” to represent them. Geier, 372 F.3d at
791. Regardless of local precedent, therefore, a district court abuses its discretion if it limits the
fees awardable under the FLSA to a percentage of the plaintiff’s recovery. That is what
happened here.
All that said, the amount of the plaintiff’s recovery can be relevant to the amount of a fee
award. Specifically, if a plaintiff is only partially successful in obtaining recovery on her claims,

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the court might reasonably award counsel a reduced fee (assuming the court has not already
incorporated that factor into the lodestar). See Farrar v. Hobby, 506 U.S. 103, 115 (1992). But
here Rembert and several opt-in plaintiffs obtained 100% of the recovery due to them under the
Act.
Second, Rembert argues that the district court failed adequately to explain the reasons for
reducing her counsel’s compensable hours by nearly two-thirds. “The district court should state
with some particularity which of the claimed hours the court is rejecting, which it is accepting,
and why.” U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1193 (6th Cir. 1997)
(brackets and internal quotation marks omitted). We lack any such particularity here. The court
provided no explanation of any kind for its determination that—of the 21.2 hours that plaintiffs’
counsel spent working on the motion to compel and otherwise dealing with what the magistrate
judge understatedly called “the surrounding circumstances”—only 8.9 hours were compensable.
Nor did the court offer much explanation of its determination of the hours that Rembert’s
counsel “reasonably expended” on the rest of the litigation, which spanned three years.
Rembert’s counsel submitted detailed time entries for every one-tenth of an hour for which they
sought compensation. Yet of the 98.7 hours they spent working on this case, the district court
found that only 37.3 were compensable. The court did say that, in determining the hours
Rembert’s counsel reasonably expended on the case, “the court included those which involved
work or services requiring an attorney, such as drafting legal memoranda, reviewing court orders
and participating in conferences with the magistrate judge.” Order at 4. And the court said that
it “excluded all other entries, including ones that represented tasks a non-lawyer could perform
(such as filing items on the court’s electronic case filing [ecf] system and gathering information
from clients) and entries that appeared to be duplicative.” Id.
Nowhere in the court’s order, however, is there any indication of “which of the claimed
hours” it rejected. U.S. Structures, 130 F.3d at 1193. Nor was it proper to exclude time
“gathering information from clients” on the ground that a “non-lawyer” could have performed
that work. Attorneys may communicate directly with their clients; indeed they often must do so.
See, e.g., Ohio Rules of Professional Conduct 1.4(a). The law refers to an attorney-client
privilege, not a paralegal-client one. Nor was it proper to exclude as “duplicative” entries for

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communications between the two attorneys (both of whom are respected members of the
employment-litigation bar) who represented Rembert and the opt-in class members. To the
contrary, co-counsel may consult each other to avoid duplicative work and otherwise to
maximize their efficiency and effectiveness. See Ne. Ohio Coal. for the Homeless v. Husted,
831 F.3d 686, 706 (6th Cir. 2016). Nor, apparently, did the court take into account the
100% recovery in this case—or that the actions and omissions of defense counsel indisputably
prolonged this litigation and rendered it much less efficient than it could have been. The court
therefore abused its discretion in these respects as well.
In determining fee awards, courts should not “‘become green-eyeshade accountants[,]’”
but instead must content themselves with “‘rough justice[.]’” Carter v. Hickory Healthcare, Inc.,
905 F.3d 963, 970 (6th Cir. 2018) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)). We have
ourselves reviewed both the district court’s docket in this case, document-by-document, and the
billing records of Rembert’s counsel, line-by-line. And though we are mindful of our
limited role in adjudicating fee disputes, we see nothing more than de minimis entries (if any) for
non-compensable time. Moreover, litigation about the amount of fees awardable—particularly
with respect to the modest amounts claimed here—is often a self-defeating exercise for everyone
concerned. Viewing counsel’s time entries in light of the record as a whole, therefore, we
respectfully conclude that the district court abused its discretion when it did not grant in full the
amounts requested in counsel’s fee petition.
* * *
The district court’s March 24, 2020 order is reversed, and the case is remanded with
instructions to grant forthwith counsel’s petition for fees and costs in the amount of $38,765.00.
Rembert’s counsel is also entitled to a reasonable fee and costs for this appeal, see Ne. Ohio
Coal. for the Homeless v. Sec’y of Ohio, 695 F.3d 563, 576 (6th Cir. 2012)—which for
everyone’s sake we hope is not the subject of another appeal.

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