AZAMAR et al v. STERN ENTERPRISES, INC. et al

Filing 94

MEMORANDUM OPINION. Signed by Judge John D. Bates on 12/19/2011. (lcjdb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SILVERIO AZAMAR, et al.,
Plaintiffs,
v.

Civil Action No. 08-1052 (JDB)

LEON STERN, et al.,
Defendants.

MEMORANDUM OPINION
This case arises from the claims of thirteen plaintiffs against defendants Leon Stern and
The Cleaning Infantry, Inc., as their employers, for various alleged violations under the Fair
Labor Standards Act, 29 U.S.C. §§ 201 et seq., and District of Columbia and Maryland labor
laws. See Second Am. Compl. (Dec. 3, 2008). Presently before this Court is [74] plaintiffs'
motion for attorneys' fees, which, for the reasons discussed below, the Court will grant in part
and deny in part.
BACKGROUND
It is not necessary to fully recite the tortured history of this case. But relevant aspects of
that history are as follows. On September 21, 2010, this Court granted plaintiffs' motion for
sanctions and ordered the Clerk of Court to enter Leon Stern in default.1 See Azamar v. Stern,
269 F.R.D. 53, 55 (D.D.C. 2010); Order, ECF Docket No. 6 (Sept. 21, 2010). The sanctioning
of Stern was based on his failure -- through counsel, but also by his own design -- to timely
respond to written discovery requests propounded by plaintiffs, as well as to orders by this Court.

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2008.

A default had already been entered against The Cleaning Infantry on December 31,

Under those circumstances, the Court found that sanctions were warranted under Federal Rule of
Civil Procedure 37(b)(2)(A) and 37(d)(1)(A), and that an order entering default against Stern was
the appropriate sanction. Azamar, 269 F.R.D. at 54-55. On September 22, 2010, an entry of
default, ECF Docket No. 62, was made as to Leon Stern.
The Court held a status conference on October 1, 2010, which was attended by defendant
Leon Stern in addition to all counsel. Upon consideration of the circumstances described by
counsel and Stern and the representations made at the hearing, the Court granted Stern leave to
file a memorandum describing his compliance with discovery obligations. Tr. 13:19-14:7 &
16:10-19:24, 35:12-22. This was duly filed. See Discovery Mem., ECF Docket No. 64 (Oct. 15,
2010). The Court also granted Stern leave to file a motion to vacate the entry of default. See
Def.'s Mot. to Vacate Default, ECF Docket No. 69 (Nov. 15, 2010). The Court ultimately
granted Stern's motion to vacate the entry of default, but concluded that an alternative sanction of
"assessing costs against [Stern] is not only appropriate, but warranted." Azamar v. Stern, 275
F.R.D. 1, 7 (D.D.C. 2011). As this Court noted,
The imposition of costs should come as no surprise to Stern, who
even suggested that some measure of costs, rather than the more
severe sanction of dismissal, would be an appropriate sanction. See
Tr. 9:24–10:1; Def.'s Mot. to Vacate Default ¶ 14 (“rather than a
default, perhaps an award of attorney's fees to the Plaintiff for
having to seek sanctions for the discovery delays may be
warranted”) The Court also advised the parties that should vacatur
be granted, it would consider imposing costs on Stern as a lesser
sanction. Tr. 40:2–3.
Id., 275 F.R.D. at 7. Hence, plaintiffs filed a motion for attorneys' fees as a sanctions
award. See Pls.' Mot., ECF Docket No. 74 (July 21, 2011).

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ANALYSIS
In calculating plaintiffs' fee award, the Court determines the reasonableness of both the
hourly rate charged and the hours expended on the litigation. See Covington v. District of
Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). A "near 'but for' relationship must exist
between the Rule 37 violation and the activity for which fees and expenses are awarded." Cobell
v. Babbitt, 188 F.R.D. 122, 127 (D.D.C. 1999) (citing Westmoreland v. CBS, Inc., 770 F.2d
1168, 1179 (D.C. Cir. 1980)).
Plaintiffs, who have been represented by Gregg C. Greenberg of the Zipin Law Firm,
LLC, assert that Greenberg should be compensated at the hourly rate of $285.00 for an attorney
with four to seven years of experience, as provided in the schedule of rates commonly known as
the "Laffey Matrix". The matrix, which derives its name from the decision in Laffey v.
Northwest Airlines Inc,, 572 F. Supp. 354 (D.D.C. 1983), aff'd in part, rev'd in part on other
grounds, 746 F. 2d 4 (D.C. Cir. 1984), establishes a market rate in the District of Columbia for
attorneys of varying experience levels. Under the "Laffey Matrix," work performed in 2010
would have been compensated at $270 for an attorney with four to seven years of experience;
plaintiffs' counsel graduated in 2007, and accordingly his rate would have been $230 per hour.
Nevertheless, because Stern does not contest the billing rate, and indeed "has no quarrel with the
billing rate" of $285.00, Opp'n at ¶ 6, and because the $285.00 rate is not unreasonable given the
efficiency of plaintiffs' counsel and the quality of representation provided by plaintiffs' counsel in
litigating this case, the Court will apply the $285 rate in calculating the fee award. This result is
also consistent with other courts in this jurisdiction, even though plaintiffs have not provided the
Court with any documentation as to the actual rate charged by counsel. See Tequila Centinela,
S.A. de C.V. v. Bacardi & Co. Ltd., 248 F.R.D. 64, 68 (D.D.C. 2008) (calculating Rule 37 fee
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award based on plaintiff's proposed hourly rate because defendant did not dispute it); Babbitt,
188 F.R.D. at 125-26 ("[T]he Government expressly states that it does not contest the rates asked
by each of the . . . attorneys. In accordance with the law of this district, the court will thus award
the rates as requested, even though plaintiffs' counsel have not met the general standards for rate
documentation.").
Stern does not dispute the reasonableness of the hourly rate charged, but instead focuses
his objections on the scope of the award requested. Specifically, Stern contends that the
proposed award is much too broad, insofar as it encompasses fees for tasks beyond "preparing the
Motion for Default and the Motion for Sanctions." Opp'n ¶¶ 3-4. He further argues that the
"roughly 6 hours" of time billed on July 19, 2010, July 19, 2011, and July 21, 2011 is the
"appropriate billable amount time spent on the issue." Id. at ¶ 5. The Court agrees with Stern's
assessment that the scope of the requested award is too broad, but restricting fees and costs in the
manner that Stern suggests is unwarranted.
Plaintiffs' "sanctions billing statement," attached to their motion for attorneys' fees, lists
tasks ranging from December 10, 2009 to July 21, 2011 that were, in plaintiffs' view, "reasonably
expended and were reasonably necessary." Ex. 2 to Mot. for Atty's Fees ("Ex. 2") ¶ 7. But the
billing statement, on its face, includes tasks that are unrelated to the motion for sanctions; indeed,
these tasks are far removed from the underlying conduct that triggered the entry of default. For
example, plaintiffs seek an award of fees for entries such as drafting and serving their own
discovery requests (12/10/2009); reviewing discovery responses (6/24/2010 and 7/29/2010); and
researching and drafting their motion to strike Stern's counterclaims (10/20/2009 and
10/22/2009). These tasks are either too attenuated from the conduct sanctioned (i.e., opposing
counterclaims), or are the kinds of tasks that plaintiffs would have to do in the ordinary course of
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litigation (i.e., drafting and serving discovery responses). Hence, the Court denies plaintiffs'
request for attorneys' fees with respect to those tasks. See Bacardi, 248 F.R.D. at 69-70
(rejecting request for fees for document review because it would have been done "in any event as
an ordinary and necessary litigation activity").
On the other hand, the Court finds that certain tasks undertaken by plaintiffs would not
have been necessary but for Stern's failure to comply with his discovery obligations and court
orders. These tasks include the time spent by plaintiffs chasing down Stern for his failures to
respond to discovery requests; the time spent by plaintiffs seeking Court intervention with
respect to ongoing discovery disputes due to Stern's non-compliance (1/26/2010, 2/12/2010,
6/25/2010); and tasks related to the motion for default, including court appearances and the
opposition filed by plaintiffs in response to Stern's motion to vacate the entry of default
(9/21/2010, 10/1/2010, 11/15/2010, 11/16/2010).
In reviewing the entries for the tasks described above, the Court finds that the time
expended by plaintiffs' counsel on such tasks is reasonable. Accordingly, the Court will award
the requested amount of attorneys' fees to plaintiffs for the following dates, as described in Ex. 2
-- 1/26/2010; 2/12/2010; 6/25/2010; 7/19/2010; 9/21/2010; 10/1/2010; 11/15/2010; 11/16/2010;
7/19/2011; and 7/21/2011. Adding up the requested amounts for those dates, the Court will
award $4560.00 to plaintiffs in attorneys' fees as sanctions for Stern's conduct.2

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Stern is reminded that these attorneys' fees are awarded in lieu of the original sanction,
which was an entry of default.
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CONCLUSION
For the reasons discussed above, the Court finds that plaintiffs are entitled to an award of
$4560.00. A separate order accompanies this memorandum opinion.

SO ORDERED.

/s/
JOHN D. BATES
United States District Judge
Date: December 19, 2011

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