Kyriakoulis v. DUPAGE HEALTH CENTER, LTD. et al

Filing 121

MEMORANDUM OPINION AND ORDER Signed by the Honorable John F. Grady on March 27, 2014. Mailed notice(cdh, )

10-7902.141

March 27, 2014

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EFSTRATIA KYRIAKOULIS,

)
)
Plaintiff,
)
)
v.
)
)
DUPAGE HEALTH CENTER, LTD., d/b/a )
HEALTH STOP, DR. SYED NASIR GHANI, )
and JOSEPH ANTHONY PUTHENVEETIO,
)
)
Defendants.
)

No. 10 C 7902

MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiffs’ amended petition for
attorneys’ fees and costs in this wage and hour case following
their recovery of a total of $8,777.50 in a three-day jury trial.
The verified petition seeks $168,607.50 in attorneys’ fees.

We

instructed the parties to try to work out a settlement of the fees,
but whatever efforts took place were unsuccessful. We then ordered
the parties to follow the procedures in Local Rule 54.3 and that
has resulted in an amended petition by plaintiffs and a response by
the defendants that objects to certain specific charges included in
the petition and seeks reductions totaling $51,982.52. They also
request that the plaintiffs’ total fees be limited to $60,000.00
because of the small amount of their recovery.

The defendants do

not object to the plaintiffs’ requested hourly rates nor to the
$4,998.09 in costs sought by the plaintiffs.

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The original complaint named only one plaintiff, Efstratia
Kyriakoulis.

Later

amendments

added

the

plaintiffs

Crystal

Pfingston and Paula Patel.
Prior to filing suit, the plaintiff Kyriakoulis offered to
settle her claim for a total of $11,250, plus attorneys’ fees
accrued to the date of the offer, November 19, 2010.
plaintiffs’ Amend. Mem.)
defendants

offered

(Exhibit 2 to

In a letter dated March 7, 2011, the

$2,500.00,

which

would

include

attorneys’ fees, to settle Kyriakoulis’s claim.

costs

Id., Ex. 4.

and
They

never made any offer to settle the claims of the plaintiffs
Pfingston and Patel.
The Defendants’ Objections
We need not consider the portions of the fee petition to which
there are no objections and will discuss only the items to which
the defendants do object.
I.

Drafting the Complaint

This case was brought by the plaintiff Kyriakoulis under the
Fair Labor Standards Act (“FLSA”) and related Illinois statutes
seeking unpaid wages and overtime compensation allegedly earned by
her as a receptionist for the defendants, who operate a health
clinic.
The defendants’ first objection is to the $1,987.50 claimed by
the plaintiffs for the six hours spent in drafting the six-count
complaint.

The defendants argue that three of the six counts were

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“copied, almost word for word from an FLSA / class action amended
complaint previously filed by plaintiffs’ counsel in Gerald Farmer
v. Direct Sat USA, 08 CV 3962.”
a

table

of

the

paragraphs

in

(Resp. at 2.)
the

Farmer

Defendants provide
complaint

and

the

paragraphs in the Kyriakoulis indicating what they claim to be the
identical language.

They argue that, “[g]iven the degree of

copying, it should not have taken six hours to draft the present
complaint.

Give counsel 2 hours; one hour each for drafting the

complaint or $750.00.”

(Resp. at 2-3.)

We think the defendants have oversimplified the work in
drafting the complaint.

It is true that complaints in cases

alleging violation of various federal statutes tend to be similar
in format and language.

But this is because the issues are pretty

much the same from case to case, even though the facts differ
considerably.

Lawyers who specialize in wage and hour litigation

on behalf of plaintiffs, as do the plaintiffs’ attorneys in this
case, would be inefficient if they did not recycle the language
that has passed muster in previous wage and hour cases when they
draft a new complaint.

But it is not a matter of simply pressing

a button and watching while a draft of a new complaint jumps out.
While paragraphs are similar, they are rarely identical. Here, the
Farmer case, which the defendants compare to this case, was a class
action with only one plaintiff. Kyriakoulis was a single plaintiff
individual action, with no class allegations.

This required

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changes in personal pronouns and deletion of language that was
appropriate in the Farmer class action but not in Kyriakoulis.
More than that, however, the Kyriakoulis and Farmer complaints have
very different allegations concerning the parties to the litigation
and particularly in regard to who did and failed to do what.
Paragraphs 3 and 4 of Kyriakoulis contain detailed allegations
about the roles of the two individual defendants in the operation
of the health clinic in order to demonstrate that each of them is
an “employer” subject to the requirements of the relevant statutes.
While the language used to describe the roles of the two defendants
is no doubt typical of language used to describe the roles of
individual defendants in other wage and hour cases, we assume that
the drafters of this complaint took care to insure that, as far as
they could determine, the allegations did accurately describe what
the two individual defendants did to render themselves “employers.”
We are unable to say that six hours was an excessive amount of
time to spend on drafting this complaint, and we overrule the
defendants’ objection to the dollar amount charged.
II.

In

the

TIME SPENT RESISTING DEFENDANTS’ MOTION
TO DISMISS CERTAIN COUNTS OF THE COMPLAINT
Farmer

case,

supra,

Judge

St.

Eve

granted

the

defendant’s motion for summary judgment as to three common law
counts of the amended complaint alleging unjust enrichment, quantum
meruit, and breach of implied contract.

She held, in accordance

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with the prevailing federal case law throughout the country, that
such common law claims are preempted by the FLSA.
In the original complaint in this case, Count IV alleged
unjust enrichment, Count V alleged quantum meruit, and Count VI
alleged breach of implied contract.

The defendants moved to

dismiss those counts on the basis of Farmer and the numerous
authorities cited in Farmer.

Plaintiffs opposed the motion and

claim $2,100.00 for the 4.2 hours they spent in drafting their
opposing brief.
We granted the defendants’ motion in a Memorandum Opinion
issued June 9, 2011.

Like Judge St. Eve, we held that the FLSA

preempts state common law causes of action, citing some of the
numerous

authorities

to

that

effect.

We

commented

on

the

deficiency of the plaintiffs’ counter-argument, noting that the
cases they cited were obviously distinguishable in that they
involved state law statutory causes of action.
The defendants argue that the plaintiffs should have known
their common law counts would be met with a motion to dismiss and
that the motion would be granted. The plaintiffs respond that they
“had a good faith basis to believe their claims would withstand a
motion to dismiss.

As plaintiffs themselves concede, Judge St.

Eve’s non-binding decision was entered on summary judgment, not a
motion to dismiss.”

(Pls.’ Reply, p. 7.)

But the question is one

of law — whether state common law claims are preempted by the FSLA.

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Whether that question of law is decided on a motion to dismiss or
a motion for summary judgment is immaterial; the law is the same
either way.
The fact is that plaintiffs’ counsel had no good faith basis
for including Counts IV, V, and VI in this complaint and the
defendants’

objection

to

the

$2,100.00

plaintiffs

claim

for

opposing the motion to dismiss is sustained.
III.
Counsel

TIME SPENT ON MOTION FOR SUMMARY JUDGMENT
claim

a

total

of

$22,455.00

for

their

work

on

plaintiffs’ motion for summary judgment. The defendants argue that
the motion accomplished nothing and that counsel should receive
nothing for their efforts.
something.

In fact, the motion did accomplish

It was orally argued on July 18, 2012, and at the

conclusion of the arguments we granted the motion on two issues:
(1) contrary to the defendants’ contention, the plaintiff Pfingston
is not a “volunteer” — she could not waive her rights under the
FLSA and was entitled to compensation for all work that she
performed; and (2) the defendant Anthony Puthenveetio was an
“employer” within the meaning of the FLSA and state labor laws.
The plaintiffs’ motion also sought judgment for specific
monetary amounts in favor of each of the three plaintiffs on the
basis that there were no genuine factual issues concerning their
entitlement to those amounts.

We found against the plaintiffs on

these aspects of their motion, concluding that there were genuine
factual issues in regard to the defendants’ liability to each of

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them.

These issues are what occupied us in the three-day trial.

The defendants contended that the plaintiffs did not work the
overtime they claimed, and, even if they did, the defendants did
not know about it and could not with reasonable diligence have
discovered that they worked the overtime hours.

(See Court’s Jury

Instructions Nos. 9 & 10.) The facts were obviously disputed. The
disputes were genuine; their resolution depended upon credibility
determinations that had to be made by the trier of fact.

A

reasonable, but unsuccessful argument for summary judgment is
compensable.

See Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir.

1995) (“[T]he touchstone in such a case is not whether a particular
argument was successful, but rather whether it was reasonable.”).
But the portion of the plaintiffs’ motion devoted to the amounts
they claimed that they were entitled to receive was unreasonable.
If the plaintiffs’ time records showed how much time was spent
on the unreasonable portion of its motion, we could simply deduct
the

amount

of

claimed

fees

that

were

related

to

that

work.

However, the time records show the time spent on summary judgment
without indicating what specific amounts of time were spent on any
of the issues as to which summary judgment was sought.

It was

important to establish as the law of the case that the plaintiff
Pfingston could not waive her rights under the FSLA and could not
be found to have worked overtime as a volunteer if the defendants
knew or with reasonable diligence could have discovered that she
was working overtime hours.

But how much work did it take to

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persuade us that that is indeed the law?

Surely plaintiffs’

counsel, who have specialized for years in FSLA cases, knew that to
be the law before they ever heard of Crystal Pfingston.

While the

fee petition makes general references to time spent on “legal
research,” we doubt that any significant time was spent on the nonwaiver rule.

On the question of whether Anthony Puthenveetio was

an employer or not, counsel were fully familiar with the law
applicable to that question, and no legal research would have been
necessary.

Investigation as to what Mr. Puthenveetio did and

failed to do in the operation of the health clinic would have taken
some time.

The need for a finding that Puthenveetio was an

employer is unclear, inasmuch as the corporate defendant, DuPage
Health

Center

Ltd.

and

Dr.

Syed

Nasir

Ghani,

President

and

principal shareholder, admitted that they were employers.
We believe that a fair estimate of the fair value of the time
plaintiffs’ counsel spent on the two successful items of their
summary

judgment

$22,455.00.

motion

is

fifteen

percent

of

the

claimed

We therefore reduce the fees claimed for the summary

judgment motion by $19,086.00.
IV.

FEES INCURRED BECAUSE OF THE
CONTINUANCE OF THE TRIAL DATE

The case was set to go to trial on July 26, 2012.

The court

and the parties were prepared to proceed on that date, but,
approximately two days before July 26, one of the plaintiffs was
arrested and incarcerated.

No one knew how long the plaintiff

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would be incarcerated, so the trial was continued to November 5,
2012.

The defendants object to the $24,920.00 in fees claimed by

the plaintiffs for time spent preparing for the November trial.
“Plaintiffs, not Defendants, caused this continuance.

Plaintiffs,

not defendants, should accordingly be responsible for plaintiffs’
counsel bringing themselves up to speed for the second trial
[date].”

(Defs’ Mem. at 5.)

In reply, the plaintiffs do not deny

that the time spent by their attorneys in getting ready for the
November

trial

resulted

in

fees

of

$24,920.00;

that

their

preparation was duplicative; and that the continuance of the trial
was necessitated by the fact that one of the plaintiffs was
arrested and incarcerated.

Their only argument is that defense

counsel charged his clients for 10.75 hours of time getting ready
for the November trial.
staggering.

Therefore, “Defendants’ hypocrisy is

Plainly, Defendants themselves recognize, by paying

their counsel’s invoice for these same services, they recognize
that it was reasonable, necessary and warranted for their own
counsel to ‘get up to speed’ for the second trial.”

(Pls.’ Reply,

p. 8) But plaintiffs miss the point. Of course defense counsel was
entitled to be paid for work that was necessitated by the trial
continuance.

Similarly, the plaintiffs’ attorneys are entitled to

be paid by the plaintiffs for the time they spent getting up to
speed.

But the plaintiffs offer no reason why defendants should

have to pay the plaintiffs’ fees occasioned solely because of
plaintiffs’

need

for

a

trial

continuance.

We

sustain

the

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defendants objection and will deduct the sum of $24,920.00 from the
fees claimed by the plaintiffs.
V.

“IMPROPER FEES/PILING ON”

This is an objection to miscellaneous items.
6-7.)

(Defs.’ Mem. at

They object to a $300.00 item for filing a motion to strike

defendants’ sur-reply.

“The Court indicated that this motion was

improper and denied it.”

The defendants give no reference to the

record to support their indication that we held the motion to be
“improper,” and we think it more likely that we simply held that
although the sur-reply was filed without leave of court we would
consider it anyway and give plaintiffs leave to respond if they
desired to do so.

In any case, we overrule the objection.

Defendants object to a $275.00 charge for legal research done
by “someone named Mark.”

Defendants are correct that the subject

of the research is not identified and we therefore have no way of
knowing if it was necessary or that the amount of time was
reasonable.

The objection is sustained and $275.00 will be

deducted.
The remaining objections in this category are directed to $125
charges for work done by persons who are obviously paralegals. The
defendants argue that the work is law firm overhead, but plaintiffs
are correct that the type of work performed (filing, drafting of
notices and the like) is appropriate for paralegals to perform. We
take

judicial

notice

of

the

appropriate rate for paralegals.

fact

that

$125

an

hour

is

We overrule this objection.

an

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VI.

PROPORTIONALITY

The defendants object to $10,500 in fees sought by attorney
Zouras for over 70 meetings with and emails to attorney Fizcko.
They object as well to the $2,475.00 attorney Fizcko seeks for more
than 30 meetings with and emails to attorney Zouras. (Defs.’ Resp.
at 7-8.)

Defendants concede that they “understand the need for

counsel to meet,” but argue that the needs of this case did not
require that much conferring and emailing between counsel.

They

suggest that the propriety of these fees “can only be evaluated via
proportionality,” citing the comment of the Seventh Circuit in
Bauer v. J.T. Joint Arbitration Bd. of Plumbing Contractors and
Chicago Journeymen Plumbers’ Local Union 130, U.A., 562 F.3d 784,
793

(7th

Cir.

2009)

that

“we

have

also

considered

the

proportionality of attorneys’ fees and the total damage award as a
factor

in

request.”

determining
We

will

the

deal

overall
in

a

moment

proportionality.

The

problem

we

attorneys

and

Zouras

is

Fizcko

reasonableness

see

with
in

that

the
they

the

of

question

hours
are

the

spent

fee
of
by

documented

insufficiently to satisfy us that the plaintiffs have met their
burden of proving that the hours were truly necessary. A number of
the conferences and emails are listed simply as that — “conference”
and “email” with no indication of the subjects discussed.

The

majority of the entries, however, do indicate, in very general
terms, what the subject matter was – i.e. “discovery,” “meeting re
court tomorrow,” “meeting re defendants’ discovery responses and

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other matters,” and “meeting re deps next week.”
complicated case.
handled it.

This was not a

One attorney, rather than two, could have

It appears that Messrs. Zouras and Fizcko conferred

with or emailed each other, or both, about every step that was
taken in the case.

More documentation than they have given us

would be necessary to carry their burden of demonstrating that this
was necessary work.

We believe that a reasonable reduction of the

amount requested for these conferences and emails would be fifty
percent of the $12,975.00 requested.

We will therefore deduct

$6,400.00.
As for making the fee award proportional to the amount of
plaintiffs’ recovery in the case, both sides recognize that it is
sometimes necessary for plaintiffs to incur fees far in excess of
the small recoveries typically awarded in FLSA cases if they are to
recover anything at all.

Anderson v. AB Painting & Sandblasting,

Inc., 578 F.3d 542, 546 (7th Cir. 2009).

Unless plaintiffs’

counsel have a reasonable expectation that the fee award for a
successful claim will fully compensate them for the necessary work,
plaintiffs would be unable to find competent counsel willing to
take on these cases.
step

of

the

way,

as

In this case, the defendants fought every
they

were

entitled

to

do.

But

their

experienced counsel surely knew the risk they were taking in regard
to the possible fee award.

The defendants suggest that the total

award should be limited to $60,000.00.

(Defs.’ Mem. at 8.)

in our view, would be contrary to the applicable law.

This,

We have

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ruled on the specific objections the defendants have made to the
plaintiffs’ fee petition and the combined reductions we have found
appropriate come to 52,781.00.

Subtracting this amount from the

$168,607.50 requested, we award the plaintiffs their attorneys’
fees in the amount of $115,826.50, plus costs of $4,998.09, for a
total of award at this time of $120,824.59.1

DATE:

March 27, 2014

ENTER:

___________________________________________
John F. Grady, United States District Judge

1/
The amounts deducted are $2,100.00 for opposing the motion to dismiss,
$19,086.00 for the unreasonable portions of plaintiffs’ summary judgment motion,
$24,920.00 for “getting up to speed” for the November trial, $275.00 for
undocumented legal research, and $6,400.00 for conferences and emails between
attorneys Fizcko and Zouras, for a total of $52,781.00.