Kabore et al v. Anchor Staffing, Inc. et al

Filing 68

MEMORANDUM re: petition for attorneys fees and costs; Directing Plaintiffs to submit a revised fee request, updated fee spreadsheet and proposed order by October 29, 2012. Signed by Judge Benson Everett Legg on 10/17/12 (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ARNAUD KABORE, et al.,
:
Plaintiffs
:
v.

Civil Case No. L-10-3204
:

ANCHOR STAFFING, INC., et al.
:
Defendants
:
o0o
MEMORANDUM
This collective action suit arises under the Fair Labor Standards Act (“FLSA”) and
various Maryland laws. After both informal and formal discovery and a six-hour mediation
before United States Magistrate Judge Beth P. Gesner, the parties settled Plaintiffs’ claims for a
total of $52,600.00 (approximately $750 per Plaintiff). Now pending is Plaintiffs’ Petition for
Award of Attorneys’ Fees and Costs. Docket No. 62. The parties diverge sharply in their
assessment whether the fees and costs sought by Plaintiffs are reasonable. Plaintiffs seek
$87,495.00 in fees and $3,074.28 in costs, for a total of $90,569.28. Arguing that these figures
are based on excessive hours of billed time, excessive hourly rates, and improper cost
calculations, Defendants contend that Plaintiffs are entitled to no more than $35,609.50 in fees
and $1,204.70 in costs, for a total of $36,814.20. The issues have been fully briefed; no hearing
is necessary. See Local Rule 105.6 (D. Md. 2010).
Calculating attorneys’ fees is indeed a difficult task for a court, requiring the judge to
second guess, based on imperfect information, the time expended by the attorneys. In this case,
the task was exceptionally difficult due to a detailed 37-page fee spreadsheet and many pages of
briefing. In reaching the conclusions stated herein, the Court in no way criticizes or finds fault
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with the fine attorneys on both sides who handled this case. The Court must, however, make
tough judgments in the context of a case in which the requested attorneys’ fees significantly
exceed the total recovery. The Court appreciates that collective actions are permitted in part to
vindicate the rights of individuals who may not have the resources or ability to file suit on their
own. Nevertheless, the fees and costs expended in relation to the total recovery is a metric the
Court must consider. For the reasons set forth below, the Court directs Plaintiffs to submit a
revised fee request consistent with the findings in this Opinion.
I.

Attorneys’ Fees

Under the FLSA, successful plaintiffs are entitled to an award of reasonable attorneys’
fees and costs. Lyle v. Food Lion, Inc., 954 F.2d 984, 988 (4th Cir. 1992). As the Supreme
Court explained in Hensley v. Eckerhart, the “most useful starting point for determining the
amount of a reasonable fee is the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” 461 U.S. 424, 433 (1983). The trial court has discretion
to adjust this figure, the “lodestar” fee, based on certain factors used to assess whether the hours
and rates are reasonable. See Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 & n.28 (4th Cir.
1978) (adopting the twelve factors enumerated in Johnson v. Ga. Highway Express, Inc., 488
F.2d 714 (5th Cir. 1974) and holding that “any award must be accompanied by detailed findings
of fact with regard to the factors considered”).
The Johnson factors are as follows:
(1) the time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4)
the attorney’s opportunity costs in pressing the instant litigation; (5) the
customary fee for like work; (6) the attorney’s expectations at the outset of the
litigation; (7) the time limitations imposed by the client or circumstances; (8) the
amount in controversy and the results obtained; (9) the experience, reputation and
ability of the attorney; (10) the undesirability of the case within the legal
community in which the suit arose; (11) the nature and length of the professional
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relationship between attorney and client; and (12) attorneys’ fees awards in
similar cases.
Id. The Rules and Guidelines for Determining Attorneys’ Fees in Certain Cases, App. B, Local
Rules (D. Md. 2011) (“Guidelines”) also provide helpful guidance to judges in this District.
In the instant case, the Court finds Johnson factors one (the time and labor expended) and
nine (the experience, reputation, and ability of the attorney) to be most relevant. Factor one is at
issue because the parties disagree about the number of hours Plaintiffs’ counsel may reasonably
claim as time spent working on the case. Factor nine is significant because, as in virtually every
case in which attorneys’ fees are recoverable, the experience, reputation, and ability of counsel
are relevant to the reasonableness of hourly rates. Keeping these factors in mind, the Court will
now address the reasonableness of the hours spent by counsel and of counsel’s rates.
A.

Number of Hours Expended

As the fee applicant, Plaintiffs have the burden of demonstrating with sufficient detail
that the hours expended on the litigation for which fees are sought are reasonable. Hyatt v.
Barnhart, 315 F.3d 239, 253 (4th Cir. 2002) (citing Hensley, 461 U.S. at 433). To meet this
burden, Plaintiffs generally must produce “an itemized listing of hours and expenses and a short
description for each entry explaining how the time was spent.” Thompson v. U.S. Dept. of
Housing and Urban Dev., No. MGJ-96-309, 2002 WL 31777631, at *9 (D. Md. Nov. 21, 2002).
An award of attorneys’ fees may not include hours that are excessive, redundant, or unnecessary.
See Hensley, 461 U.S. at 434.
As stated, Plaintiffs’ counsel, the Employment Law Group P.C. (“ELG”), has submitted a
37-page spreadsheet containing detailed, contemporaneous records of the hours expended by
various individuals on the case. For each time entry, the spreadsheet lists the litigation phase, the
date, the biller, a brief description of the work, the amount of time spent, the hourly rate, and the
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total billable amount. See Mem. in Support of Pls.’ Pet. Ex. 5, Docket No. 63-5 (“Fee
Spreadsheet”). Plaintiffs have sufficiently provided the details necessary to justify an award of
attorneys’ fees. As explained below, however, the amount of the award must be adjusted.
Plaintiffs contend that the total amount of hours expended in the prosecution of their
claims is 413.1. This includes work performed by two partners, Scott Oswald and Nick
Woodfield, an associate, Kellee Kruse, and a legal assistant/paralegal, Jeremy Schneider, who
apparently performed “most” of the work on this case “to keep costs down.” Id. at 13. Plaintiffs
assert that, in preparing the Fee Petition, ELG adjusted its billing records by cutting hours that
reflected excessive or unnecessary work. Nevertheless, Defendants take issue with 270 of the
598 time entries on the Fee Spreadsheet. Defendants have created their own spreadsheet, which
adds a column categorizing their objections by type and reorders the entries accordingly.1
Defendants take issue with the following categories of work:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.

Entries 1–28: case evaluation
Entries 29–78: clerical work
Entries 79: duplicative item
Entry 80: duplicative work
Entries 81–86: excessive travel time
Entries 87–91: work related to fee petition
Entries 92 –217: internal meetings
Entry 218–219: unclear entry
Entries 220–252: unnecessary work
Entries 253–266: work related to retaliation claim that was not pursued
Entries 267–270: work related to ELG’s website

Defs.’ Markup of Pls.’ Fee Spreadsheet (“Markup”), Defs.’ Am. Joint Resp. to Pls.’ Fee Pet. Ex.
1, Docket No. 65-1.

For ease of reference, the entry numbers cited in the remainder of this section are all taken from Defendants’
Markup rather than from Plaintiffs’ Fee Spreadsheet. The Markup, however, applies different hourly rates than
those sought by Plaintiff, except with respect to Ms. Kruse. Where total rates are cited by the Court in this section,
they are based on hourly rates sought by Plaintiffs rather than those proposed by Defendants.
1

4

After subtracting the hours accounted for in each of the contested entries, Defendants
calculate the appropriate number of hours for Mr. Schneider to be 120.10 and the appropriate
number of hours for Mr. Woodfield to be 88, leaving zero billable hours attributable to Mr.
Oswald and Ms. Kruse. In their Reply brief, Plaintiffs neither object to the categorizations in
Defendants’ Markup nor provide any argument to rebut the bases for Defendants’ objections as
to each category or time entry. Each category is considered in turn.
i.

Case Evaluation

Defendants argue that fees for the work recorded in Entries 1–28 should not be included
in the total fee award because the work relates to case evaluation activities. In Entry 11, for
instance, Ms. Kruse records 2.5 hours for “Draft[ing] case evaluation presentation; related legal
research (MMWOA, MWPCA, FLSA ‐ liquidated damages, motor carrier exception, overtime
and minimum wage requirements); emailed to Scott Oswald for review.” Entry 20 bills for 2.8
hours during which Ms. Kruse “Drafted Kabore opinion letter (intro and conclusion; summary of
potential client and opt‐in interviews and documents; legal analysis).” In Entry 21, Mr. Oswald
bills for 2.5 hours spent reviewing and editing the opinion letter.
It appears that nearly all of the challenged case evaluation entries, some of which refer to
a “potential client,” record work performed before Plaintiffs’ counsel had begun their formal
representation. As a general matter, counsel may not receive fees for work that could not be
charged to a private client. See, e.g., Hensley, 461 U.S. at 434 (“Hours that are not properly
billed to one’s client also are not properly billed to one’s adversary pursuant to statutory
authority.”) (quoting Copeland v. Marshall, 641 F.2d 880, 891 (1980) (en banc)). Fees for work
recorded in Entries 1–28 that was performed before Plaintiffs’ counsel was retained are not
recoverable. See Jackson v. Estelle Place, LLC, No. 1:08cv984 (LMB/TRJ), 2009 WL 1321506,

5

at *4 (E.D. Va. May 8, 2009) (“[T]he fees related to The Employment Law Group’s examination
of the plaintiffs’ claims before the Group was retained will not be included because a private
client would not be charged for those expenses.”).
Plaintiffs’ counsel have neither provided argument to rebut Defendants’ challenge to the
fees billed in Entries 1–28 nor proffered that the work in these entries was done before Plaintiffs’
counsel had been retained. Based on the work descriptions, the only work that appears to have
been done after Plaintiffs’ counsel was retained is the work recorded in Entries 23–28, which
relates to a “case transition meeting” attended by Mr. Schneider, Ms. Kruse, Mr. Woodfield, and
Mr. Oswald. Fees for this work are recoverable. Fees will not be awarded, however, for the
work recorded in Entries 1–22. The total fee award should be decreased accordingly.
ii.

Clerical Work

Defendants argue that the work billed in Entries 29–78 is clerical and, therefore, should
not be included in the award of attorneys’ fees. Although certain types of work may fall into a
gray area between legal and secretarial work, other types are clearly administrative or secretarial.
The latter may not be awarded as attorneys’ fees. See, e.g., In re Beenbottom, BK10-40335TJM, 2010 WL 2719417 (Bankr. D. Neb. July 7, 2010) (concluding that activities such as “[f]ile
setup, scanning, setting up appointments” are clerical and, therefore, not billable). Fees for work
performed by paralegals are generally recoverable, but only “to the extent they reflect tasks
traditionally performed by an attorney and for which the attorney would customarily charge the
client.” Hyatt, 315 at 255.
The vast majority of entries challenged by Defendants relate to mass mailings and other
administrative work regarding the potential opt-in Plaintiffs. This work is clearly clerical.
Entries 75 and 76 are actually categorized by Plaintiffs themselves as “administrative.” Entry 75

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bills for 0.3 hours of scanning and processing settlement checks. Entry 76 bills for 1.5 hours
spent creating labels and stuffing envelopes. In the most clear-cut instance of billing for clerical
work, Entries 38 and 42 record a total of 10 hours spent folding and stuffing envelopes.
In a few of the challenged entries, it is not clear whether the work was legal or clerical.
In Entry 41, for instance, in which Mr. Woodfield bills for 1.2 hours spent “prepar[ing] for
mailing to 425 opt-ins,” it is not immediately apparent what this “preparation” entailed. In still
other entries, the type of work appears to fall within the gray area between legal and clerical
work, but the time spent on the work nevertheless appears unreasonable. To cite an example,
Entry 67 bills for 40 minutes of reviewing, downloading, and circulating a paperless order
regarding a dispositive motions deadline.
Because almost none of the time recorded in Entries 29–78 reflects legal work
recoverable as attorneys’ fees and because Plaintiffs have not presented any argument to the
contrary with respect to the unclear entries, the Court concludes that Plaintiffs have failed to
meet their burden of proof. Accordingly, the total fee award will be discounted by 90% of the
total fees sought in Entries 29–78; in other words, the reduction should be made by reducing the
total sum in Entries 29–78 by 90%.
iii.

Duplicative Item

Defendants contend that Entry 79 is a duplicative item. The entry, made on March 8,
2011, concerns an email drafted by Mr. Schneider “to OC re obtaining personal identifying
information for potential opt‐ins whose mailers were returned undelivered.” The same
description is repeated at Entry 334, also dated March 8, 2011. Entry 79 bills $46.00 for 40
minutes of work. Entry 334, however, bills $34.50 for 30 minutes of work. Because the two

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entries appear to be duplicative and Plaintiffs have not indicated otherwise, the Court will
decrease the total fee award by the greater amount, $46.00.
iv.

Duplicative Work

Defendants contend that Entry 80 reflects duplicative work. Entry 80 records time spent
by Mr. Schneider, a paralegal, “[a]ttend[ing] and tak[ing] notes during Anchor telephonic
depositions of select opt-in plaintiffs” on October 27, 2011. Mr. Schneider recorded 5 hours of
work for a total of $575.00. In Entry 541, Mr. Woodfield, a partner, bills for “[a]ttend[ing]
depositions of Arnaud Kabore, Everett Tittle, Rodney Moore, Antonio Michie, Antwon Beverly,
Thomas Matthews, John Burnham, Dana Conner, and Steve Lutz,” also on October 27, 2011.
Mr. Woodfield billed a total of $2,000.00 for 5 hours of work.
The Court’s Guidelines provide that “Only one lawyer for each separately represented
party shall be compensated for attending depositions.” Rule 2(b). Although an explanatory
footnote provides that “[d]eparture from this guideline would be appropriate upon a showing of a
valid reason for sending two attorneys to the deposition,” Plaintiffs have made no such showing
here. That Mr. Schneider is a paralegal rather than an attorney is irrelevant because, as stated,
fees for work performed by paralegals are recoverable to the extent that the work could have
been performed by a lawyer and billed to the client. See Hyatt, 315 F.3d at 255. Accordingly,
the total fee award shall be reduced by $575.00, the duplicative amount listed in Entry 80.
v.

Excessive Travel Time

Defendants argue that Entries 81–86 record excessive travel time and that the total fee
award should be reduced accordingly. Under the Court’s Guidelines, “Up to two (2) hours of
travel time (each way and each day) to and from a Court appearance, deposition, witness
interview, or similar proceeding that cannot be devoted to substantive work may be charged at

8

the lawyer’s hourly rate.” Rule 2(e)(ii). In other words, in some instances, an attorney is able to
perform substantive legal work while traveling, such as when the mode of transportation is a
train or airplane that offers internet access. In other instances, such as when an attorney drives
himself to a court appearance or deposition, it is not possible for the attorney to perform legal
work during the journey. In instances of the latter sort, the attorney may bill for “[u]p to two (2)
hours of travel time (each way and each day).” Id.
Mr. Woodfield has recorded round-trip travel time for two Federal Rule of Civil
Procedure 30(b)(6) depositions, on October 5, 2011 and October 24, 2011, and for the settlement
conference before Magistrate Judge Gesner on November 30, 2011. None of the challenged
entries bill for two hours or more of travel time, and the Court assumes that the mode of
transportation made it impossible for Mr. Woodfield to perform substantive legal work. The
total fees sought in Entries 81–86, therefore, need not be reduced.
vi.

Work Related to Fee Petition

Defendants argue that Plaintiffs’ counsel should not receive fees for work done in
connection with the Fee Petition because this work was “made necessary” by ELG’s “excessive
billing,” which also prevented the parties from including attorneys’ fees in their settlement
agreement. Defs.’ Am. Joint Resp. 4, Docket No. 65.
Although it is true as a general matter that a “request for attorneys’ fees should not result
in a second major litigation,” Hyatt, 315 F.3d at 253 (quoting Hensley, 461 at 433), counsel are
entitled to receive reasonable attorneys’ fees for work related to a fee petition. Mr. Schneider
and Mr. Woodfield worked on the 21-page Petition in this case for a total of 4.6 and 5.2 hours,
respectively. This is not excessive. Contra Chapman v. Ourisman Chevrolet Co., AW-08-2545,
2011 WL 2651867, at *15 (D. Md. July 1, 2011) (reducing award because 45 hours spent on

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motion for attorneys’ fees by two experienced attorneys was excessive). The fees billed for work
on the Petition need not be adjusted.
vii.

Internal Meetings

Defendants contend that the total amount of time billed for internal meetings as reflected
in Entries 92–217 is excessive and should be reduced. In Defendants’ view, the case “could have
been handled by one lawyer, with delegation to the paralegal on an as-needed basis, without the
internal meetings.” Defs.’ Am. Joint Resp. 5, Docket No. 65. Defendants further argue that Mr.
Oswald’s time was “entirely unnecessary and his hours were entirely duplicative of Woodfield’s
time.” Id.
Rule 2(d) of the Court’s Guidelines provides that
Generally, only one lawyer is to be compensated for client, third party and
intraoffice conferences, although if only one lawyer is being compensated the
time may be charged at the rate of the more senior lawyer. Compensation may be
paid for the attendance of more than one lawyer where justified for specific
purposes such as periodic conferences of defined duration held for the purpose of
work organization, strategy, and delegation of tasks in cases where such
conferences are reasonably necessary for the proper management of the litigation.

The total amount of time recorded in Entries 92–217 by Mr. Woodfield, Mr. Oswald, and
Mr. Schneider, all of whom billed for their attendance at interoffice meetings between October
12, 2010 and November 30, 2011, is approximately 50 hours. This is not an unreasonable
amount of time for two partners and a paralegal to spend on internal meetings over the course of
thirteen and a half months. As the Guidelines suggests, internal meetings among counsel and
key support staff are an integral part of developing and maintaining a litigation strategy.
Collaboration of this nature fosters productive, regular communication within a law firm and
prevents unnecessary and duplicative work. Internal meetings are particularly important in class
actions such as this one, which involved 72 Plaintiffs and a formal discovery process.
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The internal meetings recorded in Entries 92–217 appear to be of the sort contemplated
by the Guidelines. The meetings were typically weekly or bi-weekly and generally lasted for 0.2
or 0.3 hours each.2 The Fee Spreadsheet is sufficiently detailed in explaining the subject matter
of each meeting. On January 24, 2011, for instance, Mr. Woodfield, Mr. Oswald, and Mr.
Schneider met to discuss “answer to complaint and discovery responses.” See Markup, Entries
125–128.3 A meeting was held on May 18, 2011 to discuss “review of wage information
supplied by defendant.” See Markup, Entries 160–162. The subject of a November 28, 2011
meeting was the upcoming mediation before Judge Gesner. See Markup, Entries 212–214.
Moreover, given that the case “very nearly did not settle,” Plaintiffs’ counsel should not
be penalized for staying on top of the issues and being fully prepared for a variety of outcomes.
See Pls.’ Reply 3–4, Docket No. 67 (noting that a memorandum in support of Plaintiffs’ motion
for summary judgment, though never filed, was provided to Judge Gesner during the mediation,
and asserting that Plaintiffs were prepared to go to trial if necessary). The total fee award need
not be reduced on account of time billed for internal meetings.
viii.

Unclear Entries

Defendants argue that Entry 218, which records a 20-minute teleconference between Mr.
Woodfield and Eric Hovan “re allegations set forth in claim against Defendants,” is unclear and
possibly unrelated to the instant case. Plaintiffs assert, however, that Mr. Hovan is an insurance
adjuster for Ohio Casualty, one of the Defendants’ comprehensive general liability insurance
carriers, and that the telephone conversation related to the allegations in the Complaint.4 Pls.’
Reply 1–2, Docket No. 67. Accordingly, the call was proper and the total fee award need not be
2

Mr. Schneider has recorded more hours than the partners in connection with the meetings, primarily for preparation
time.
3
Entries 127 and 128, both of which record Mr. Oswald’s time for the January 24th meeting, are identical and
appear to be duplicative entries. Plaintiffs’ counsel should reduce the total award request accordingly.
4
This is the only entry that Plaintiffs’ counsel specifically address in the Reply.

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reduced with respect to Entry 218. Nor must the award be reduced with respect to Entry 219,
which Defendants claim is similarly unclear. Entry 219 bills for 20 minutes spent by Mr.
Woodfield typing an email to Mr. Schneider regarding his conversation with Mr. Hovan.
ix.

Unnecessary Work

Defendants argue that Entries 220–252 reflect unnecessary work. Defendants argue, for
instance, that the work recorded in Entries 225–235, which concerns a motion for collective
action notice, was unnecessary because the parties consented during the initial scheduling
conference to a collective action. The motion, however, was prepared in January 2011, whereas
the scheduling conference was not convened until March 2011. The Court, therefore, cannot
deem the work related to the motion to have been unnecessary. Similarly, Defendants challenge
Entries 236–238 as unnecessary because the entries concern discovery motions raising issues that
were ultimately resolved informally in a teleconference with the Court. What Defendants
neglect to consider is that the filing of one of the motions is what prompted the Court to schedule
the call. See Docket Nos. 44 and 46. It cannot be said, therefore, that work related to the
motions was unnecessary.
Finally, Defendants challenge as unnecessary work related to a motion for summary
judgment that Plaintiffs never filed and that was not due until 51 days after the settlement
conference.5 Again, Defendants are incorrect. Counsel are not expected to assume that a case
will settle, and should not be penalized for planning ahead. The motion would have been filed if
the case had not settled. Moreover, the memorandum in support of the motion was provided to
Judge Gesner in connection with the settlement conference and may have played a role in the

The Court’s usual policy is to set a dispositive motions deadline for 30 days after an unsuccessful settlement
conference. In this case, the settlement conference was held on November 30, 2011, meaning that summary
judgment motions would have been due between Christmas and New Year’s. To ensure that counsel would not have
to work immediately before or during the end-of-year holidays, the Court set a deadline of January 20, 2012.
5

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resolution of the case or the terms of the settlement agreement. The Court, therefore, cannot
conclude that work done in connection with the motion was unnecessary. In sum, the hours
billed in Entries 220–252 need not be reduced.
x.

Work Related to Retaliation Claim

Entries 253–266 bill for 7.4 hours of work done by Mr. Schneider and Mr. Woodfield in
connection with a potential retaliation claim by one of the opt-in Plaintiffs. As Defendants
correctly point out, attorneys’ fees are not recoverable for work related to a claim that does not
become part of the lawsuit. See Jackson, 2009 WL 1321506, at *4 (refusing to award fees for
research related to a retaliation claim that was not alleged in the Complaint); see generally
Grissom v. Mills Corp., 549 F.3d 313, 318–19 (4th Cir. 2008) (defining “prevailing party”). The
total award, therefore, will be reduced by the fees sought in Entries 253–266.
xi.

Work Related to ELG’s Website

Entries 267–270 record time for work related to ELG’s website. In Entry 269, for
instance, Mr. Woodfield bills for 0.5 hours of “revis[ing] and update[ing] website content to
communicate with clients.” Defendants argue that it is unclear how such work “contributed to
the resolution of the case.” Defs.’ Am. Joint Resp. 6, Docket No. 65. Defendants are correct in
suggesting that, in general, work related to a law firm’s website should be accounted for as part
of the firm’s overhead expenses, not billed to its clients. This includes website marketing efforts
such as posting noteworthy developments in the law and updates about the firm’s cases and
clients. If, however, ELG’s website was used in this case as a vehicle for providing necessary
information to the opt-in Plaintiffs rather than “communicating” with its clients and prospective
clients in the more general sense, then fees associated with the website work are recoverable.

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When submitting the revised fee request for the Court’s approval, Plaintiffs’ counsel should
reduce the fees in Entries 267–270 as necessary in light of this conclusion.
B.

Hourly Rates

In determining whether counsel’s hourly rates are reasonable, the court must consider
whether “the requested rates are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v.
Stenson, 465 U.S. 886, 890 n.11 (1984). In making this determination, the court should rely
primarily on “affidavits from other attorneys attesting to the reasonableness of the hourly rates,”
but, if necessary, may also apply its own “knowledge of the market.” Beyond Sys., Inc. v. World
Ave. USA, LLC, No. PJM-08-921, 2011 WL 3419565, at *3 (D. Md. Aug. 1, 2011). In this
District, the Court’s market knowledge is encoded in the Guidelines found in Appendix B of the
Local Rules, which provide ranges of reasonable hourly rates based on counsel’s years of
experience as a member of the bar. “While the Guidelines are not binding, generally this Court
presumes a rate is reasonable if it falls within these ranges.” Id. at *4.
Plaintiffs ask the Court to calculate the total fee award by applying the following hourly
rates: $400.00 per hour for Mr. Woodfield and Mr. Oswald (partners), $190.00 per hour for Ms.
Kruse (associate), and $115.00 per hour for Mr. Schneider (legal assistant/paralegal). In support
of their request, Plaintiffs have attached to the Fee Petition supporting declarations prepared by
Michael L. Rowan, Esq., Thomas Gagliardo, Esq., and David E. Schreiber, Esq. The
declarations were originally prepared for and submitted in support of a fee petition filed by Mr.
Woodfield and Mr. Oswald in a Montgomery County, Maryland case following a favorable jury
verdict. See Mem. in Support of Pls.’ Pet. 9 and Exs. 2–4, Docket Nos. 63 and 63-2–63-4.

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Although all three declarants attest that rates higher than those requested in the instant
Fee Petition are reasonable in the employment litigation context, the declarants’ assessments are
based on market rates in Montgomery County and rely on the Laffey Matrix, a guideline metric
that applies to hourly rates for attorneys practicing in Washington, D.C. As Plaintiffs correctly
point out, the Laffey Matrix is not relevant to this case. See Grissom, 549 F.3d at 323
(concluding that Plaintiff had not met its burden of proof in part because it had “provided no
evidence that the Laffey Matrix, which pertains to hourly rates of litigation attorneys in
Washington, D.C., is a reliable indicator of the hourly rates of litigation attorneys in Reston,
Virginia, a suburb of Washington, D.C.”). The relevant community in the instant case is
Baltimore, Maryland, where this Court sits. See id. at 321.
Mr. Woodfield, who has also submitted a declaration in support of the Fee Petition,
acknowledges this shortcoming. Mem. in Support of Pls.’ Pet. Ex. 1, Docket No. 63-1. Mr.
Woodfield asserts that he and Mr. Oswald “customarily charge Laffey Rates for [their] time and
in every circumstance possible, The Employment Law Group, P.C. charges and receives an
hourly rate of $420.00 per hour for [their] time.” Id. at ¶ 13. Mr. Woodfield further asserts that
the ELG typically charges $230.00 per hour for associate time and $135.00 per hour for legal
assistant time. Id. He explains that the rates sought in this case are slightly lower, however,
because the case was filed in Baltimore rather than in Washington, D.C., where market rates are
higher. Id.
The applicable range under the Court’s Guidelines for attorneys who have been admitted
to the bar for 15 years or more is $275–$400. The Guidelines range for an attorney who has
been admitted to the bar for 9–14 years is $225–300. The range for attorneys admitted for less
than 5 years is $150–$190. The range for paralegals is $95–$115. See Rule 3. Defendants point

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out that Mr. Oswald was admitted to the bar in 1997, meaning that he had 13 rather than 15 years
of experience when this case was filed in 2010. Defendants also argue that because Mr.
Woodfield had been admitted for exactly 15 years when the case was filed, his hourly rate should
be closer to the low end of the range. Defendants make the same argument with respect to Ms.
Kruse, who had only been admitted for 2 years when she worked on the case, and Mr. Schneider,
who was then a law student expected to graduate in the spring of 2012.
It is clear that both Mr. Woodfield and Mr. Oswald are seasoned attorneys with
significant experience litigating employment actions including those arising under the FLSA. In
Young v. Viable Commc’ns, Inc., Judge Messitte approved the same hourly rates as those
requested in this case, though it is significant that (i) the fees sought in Young were uncontested
and (ii) Judge Messitte sits in Greenbelt rather than Baltimore. See No. PJM 09-2250, 2011 WL
5825429 (D. Md. Nov. 14, 2011) (granting Petition); see also PJM-09-2250, Pls.’ Pet. for Award
of Att’ys Fees 2, Docket No. 156 (listing requested rates). The Court approves the rates
proposed for Mr. Woodfield, Ms. Kruse, and Mr. Schneider, but will reduce Mr. Oswald’s rate to
$300.00 per hour. It appears that Mr. Oswald had not been barred for 15 years when this case
began. In any event, his billing rate would either be at the high end of the 9–14 year range or the
low end of the 15+ year range. A rate of $300 per hour, therefore, is appropriate here. In
preparing the revised fee request, Plaintiffs’ counsel should recalculate the entries attributed to
Mr. Oswald and adjust the total award accordingly.
II.

Costs

It is well-established that plaintiffs who are entitled to recover attorneys’ fees are also
entitled to recover reasonable litigation-related expenses as part of their overall award. The
Fourth Circuit has explained that such costs may include “those reasonable out-of-pocket

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expenses incurred by the attorney which are normally charged to a fee-paying client, in the
course of providing legal services.” Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988)
(internal quotations omitted). For instance, prevailing Plaintiffs may recover costs for
“necessary travel, depositions and transcripts, computer research, postage, court costs, and
photocopying.” Andrade v. Aerotek, Inc., 852 F. Supp. 2d 637, 644 (D. Md. 2012) (internal
quotations omitted). Under the Court’s Guidelines, “reasonable out-of-pocket expenses
(including long-distance telephone calls, express and overnight delivery services, computerized
on-line research and faxes) are compensable at actual cost.” Rule 4(a). To recover costs in this
case, Plaintiffs’ counsel must have provided sufficiently detailed records. Andrade, 852 F. Supp.
2d at 644.
Plaintiffs seek $3,074.28 in costs and, in support of this request, have attached to the Fee
Petition a spreadsheet detailing a breakdown of costs by date, biller, and description. Mem. in
Support of Pls.’ Pet. Ex. 6, Docket No. 63-6. Defendants argue that the amount sought by
Plaintiffs is excessive because it includes costs that are not recoverable, such as costs for online
legal research billed in connection with case evaluation activities. Defs.’ Am. Joint Resp. 12,
Docket No. 65.
The Court agrees that any costs billed for online research related to evaluation of the case
prior to ELG’s formal representation should not be included in the total fee award. The other
costs sought by Plaintiffs, however, which include costs for couriers, postage, transcripts,
conference calls,6 court fees, and travel, are all sufficiently detailed and appropriate. The Court
finds that Plaintiffs have provided ample evidence of costs reasonably incurred in prosecuting
this action and are entitled to recover $3,074.28 less any costs not recoverable for case
evaluation research.
6

Conference call costs are only recoverable to the extent that the calls were long-distance.

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III.

Conclusion

By October 29, 2012, Plaintiffs shall submit to the Court a revised fee request
accompanied by an updated fee spreadsheet and a proposed order the Court may use in granting
them the appropriate amount of attorneys’ fees and costs. No argument shall be included in this
submission; the Court’s decisions herein are not open for reconsideration. Plaintiffs should
simply re-calculate, based upon the conclusions stated in this Opinion, the total amount of fees
and costs to which they are entitled.

Dated this 17th day of October, 2012

/s/
_______________________________
Benson Everett Legg
United States District Judge

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