Clancy v. Skyline Grill, LLC et al

Filing 24

REPORT AND RECOMMENDATIONS re 18 MOTION for Attorney Fees filed by Thomas A. Clancy Signed by: Judge Magistrate Judge Paul W. Grimm Objections to R&R due by 12/26/2012 Responses due by 12/26/2012. Signed by Magistrate Judge Paul W. Grimm on 12/5/2012. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THOMAS CLANCY,
Plaintiff,
v.
SKYLINE GRILL, LLC, et al.,
Defendants.

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Civil Case No.: ELH-12-1598

REPORT AND RECOMMENDATION
This Report and Recommendation addresses Plaintiff Thomas Clancy’s Bill of Costs
and/or Motion for Attorney’s Fees, ECF No. 18. ECF No. 15. Defendant Skyline Grill, LLC t/a
Skyline Bar and Grill (“Skyline Grill”) has not yet filed a response. I find that a hearing is
unnecessary in this case. See Fed. R. Civ. P. 55(b)(2); Loc. R. 105.6. For the reasons stated
herein, I recommend that Plaintiff’s Motion for Attorney’s Fees be GRANTED, and that
attorney’s fees be AWARDED, as set forth herein, unless Skyline Grill shows cause within
fourteen (14) days why the Court should not grant such relief.
I.

FACTUAL AND PROCEDURAL HISTORY
On August 15, 2012, in accordance with 28 U.S.C. § 636 and Local Rules 301 and 302,

Judge Hollander referred this case to me to review Plaintiff’s Motion for Default Judgment as to
Defendant Skyline Grill, ECF No. 10, and to make recommendations regarding damages. ECF
No. 15. As more fully discussed in the Report and Recommendation that I issued on November
5, 2012, ECF No. 17, Plaintiff filed a five-count complaint against Defendant, alleging that
Defendant failed to pay Plaintiff regular and overtime wages in violation of the Fair Labor
Standards Act, 29 U.S.C. §§ 201–219 (1998 & Supp. 2007) (“FLSA”) (Count One); the

Maryland Wage Payment Collection Law, Lab. & Empl. §§ 3-501 – 3-509 (“MWPCL”) (Count
Two); and the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401 – 3-431
(2008) (“MWHL”) (Count Three); and that Defendant was liable to Plaintiff for breach of
contract (Count Four) and in quantum meruit (Count Five). Compl. ¶¶ 38, 39, 44, 48, 50 & 55,
ECF No. 1. I recommended that, after either Defendants William Mulholland and Marcus
Donovan default or this matter is adjudicated as to all defendants, to the extent consistent with
any adjudicated verdict, the Court grant Plaintiff’s Motion as to Defendant Skyline Grill on
Counts One, Two, Three, and Four, and deny Plaintiff’s Motion as to Defendant Skyline Grill on
Count Five. I also recommended that the Court award Plaintiff $400.00 in costs.
I noted that reasonable attorney’s fees are mandatory under 29 U.S.C. § 216(b), and Lab.
& Empl. §§ 3-507.2(b)(1) & 3-427(d) provide that the Court may award reasonable attorney’s
fees to the employee. On that basis, I recommended that the Court award attorney’s fees and
directed Plaintiff to submit a bill of costs within fourteen (14) days of my Report and
Recommendation, with Defendant’s response, if any, to be submitted within fourteen (14) days
thereafter.
In Plaintiff’s Bill of Costs, he seeks $26,211 in attorney’s fees. Pl.’s Bill of Costs 5. He
submits an itemization of the hours spent on this case to date, Pl.’s Itemization, ECF No. 18-2,
and the Declarations of Timothy W. Romberger and Sharon M. Donahue, co-counsel for
Plaintiff, ECF Nos. 18-3 & 18-4. These documents provide the details necessary to justify an
attorney’s fee award, see Thompson, 2002 WL 31777631, at *9.
II.

DISCUSSION
In calculating an award of attorney’s fees, the Court must determine the lodestar amount,

defined as a “reasonable hourly rate multiplied by hours reasonably expended.” Grissom v. The

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Mills Corp., 549 F.3d 313, 320–21 (4th Cir. 2008); see Plyler v. Evatt, 902 F.2d 273, 277 (4th
Cir. 1990) (stating that, “[i]n addition to the attorney’s own affidavits, the fee applicant must
produce satisfactory specific evidence of the prevailing market rates in the relevant community
for the type of work for which he seeks an award” (citations omitted)). A trial court may
exercise its discretion in determining the lodestar amount because it possesses “‘superior
understanding of the litigation’” and the matter is “‘essentially’” factual. Thompson v. HUD, No.
MJG-95-309, 2002 WL 31777631, at *6 n.18 (D. Md. Nov. 21, 2002) (quoting Daly v. Hill, 790
F.2d 1071, 1078–79 (4th Cir. 1986)). In addition to considering the various factors articulated in
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974) and adopted
by the Fourth Circuit in Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978),1 the Court
must be convinced that the “number of hours for which . . . reimbursement is [sought is]
reasonable and does not include hours that are excessive, redundant, or otherwise unnecessary.”
Travis v. Prime Lending, No. 3:07cv00065, 2008 WL 2397330, at *4 (W.D. Va. June 12, 2008).
Here, Plaintiff seeks a total of $26,211.00 in attorney’s fees, “represent[ing] [83] hours in
attorney time at the rate of $300.00 per hour, and an additional 11.4 hours in paralegal time at the
rate of $115.00 per hour.” Pl.’s Bill of Costs 5; see Supplement to Plaintiff’s Bill of Costs and/or
Motion for Attorney’s Fees, ECF No. 20 (clarifying that Plaintiff seeks compensation for 83
hours of attorney time, not 38, as stated in his Bill of Costs).
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Appendix B to this Court’s Local

The factors Johnson articulated as relevant to lodestar calculations are: “(1) the time and labor
required; (2) the novelty and difficulty of the questions; (3) the skill requisite to properly perform
the legal service; (4) the preclusion of other employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9)
the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11)
the nature and length of the professional relationship with the client; and (12) awards in similar
cases.” Thompson, 2002 WL 31777631, at *6 n.19 (citing Johnson, 488 F.2d at 717–719). It is

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Rules, Rules and Guidance for Determining Attorneys’ Fees in Certain Cases, provides that
$275–400 is a reasonable hourly fee for “[l]awyers admitted to the bar for fifteen (15) years or
more,” and $95–115 is a reasonable hourly fee for “[p]aralegals and law clerks.” Loc. R. App’x
B, at 3.d, e (footnote omitted). Plaintiff’s counsel Timothy Romberger has been practicing law
since 1993, a period of more than fifteen years. Romberger Decl. ¶ 3. He is “admitted to
practice in various states and before numerous United States District Courts throughout the
nation.” Id. Most of his career has “focused on the practice of employment law and litigation on
behalf of both employers and employees,” and he has “substantial experience representing both
employers and employees in FLSA and wage and hour cases.” Id. Plaintiff’s counsel Sharon
Donahue had been admitted to the Maryland and Washington D.C. bars for at least fifteen years.
Donahue Decl. ¶ 3. Since graduation from law school in 1996, Ms. Donahue has “represent[ed]
economically and culturally diverse clients in employment law matters, domestic law matters
and bankruptcy.

Id.

For attorneys of their experience, the requested $300 per hour is a

reasonable rate and well below what they might charge.

See Loc. R. App’x B, at 3.d.

Additionally, $115 per hour is a reasonable rate for the paralegal who worked on this case and
who had ten years of experience as a paralegal in civil litigation. See Donahue Decl. ¶ 6; Loc. R.
App’x B, at 3.e.
In their time sheet, counsel assert that they and Ms. Donahue’s paralegal collectively
devoted 94.4 hours to this litigation, including 18 hours for case development, background
investigation and case administration; 38.1 hours for pleadings; 16.6 hours for motions; and 21.7
hours for preparation of the Bill of Costs. Pl.’s Itemization 1–7; see Thompson, 2002 WL
31777631, at *9–10 (noting that the prevailing party must “justify the hours for which an award

the duty of the trial court “to determine in the first instance which of the Johnson factors are

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is sought,” generally by “an itemized list of hours . . . and short description for each entry”;
“minutely detailed records” are not required to support a fee request) (citing Fair Housing
Council of Greater Wash. v. Landow, 999 F.2d 92, 97–98 (4th Cir. 1993); Daly v. Hill, 790 F.2d
1071, 1080 (4th Cir. 1986)).

The 94.4 hours (83 attorney hours and 11.4 paralegal hours)

included time spent conferring between counsel and with the client regarding the case; effecting
service of process; drafting the Complaint; and drafting and filing the Motion Requesting Entry
of Default, Motion for Default Judgment as to Defendant Skyline Grill, and Bill of Costs; as well
as 2.8 hours (2.7 attorney hours and 0.1 paralegal hours) drafting and filing the Motions for
Entry of Default as to the other defendants. See Pl.’s Itemization 1–5 & 7. Plaintiff should not
recover for hours his attorney spent working on motions for entry of default with regard to the
other defendants at this time; those fee requests will be proper in conjunction with any motions
for default judgment Plaintiff files as to those defendants.2 Therefore, I find that 80.3 hours is a
reasonable amount of time for counsel to have spent on this litigation, and 11.3 hours is a
reasonable amount of time for the paralegal to have spent on this litigation.
III.

CONCLUSION
In light of the foregoing, I recommend that the Court GRANT relief in the form of

payment of attorney’s fees by Defendant Skyline Grill of $25,389.50—representing the sum of
$300 per hour multiplied by 80.3 hours ($24,090), and $115 per hour multiplied by 11.3 hours
($1,299.50), unless Skyline Grill shows cause why the Court should not grant such relief.

relevant to the determination of a reasonable fee in a particular case.” Id.
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Likewise, any hours spent on this case and claimed in Plaintiff’s Bill of Costs and/or Motion
for Attorney’s Fees should be excluded from any future motion for attorney’s fees.

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The parties have fourteen (14) days in which to file objections to this Report and
Recommendation. See Fed. R. Civ. P. 72(b)(2); Loc. R. 301.5.b. A proposed Order follows.

Dated: December 5, 2012

/S/
Paul W. Grimm
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THOMAS CLANCY,
Plaintiff,
v.
SKYLINE GRILL, LLC, et al.,
Defendants.

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Civil Case No.: ELH-12-1598

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ORDER

For the reasons stated in the Report and Recommendation that United States Magistrate
Judge Paul W. Grimm submitted on December 5, 2012, and the time for filing objections to the
Report and Recommendation having passed, it is, this _____th day of ___________, 2012,
ORDERED that Plaintiff is AWARDED $___________ in attorney’s fees, based on the
reasonable amount demonstrated in Plaintiff’s timely-filed Bill of Costs.

Ellen Lipton Hollander
United States District Judge