Selby et al v. Sip & Bite Restaurant, Inc. et al

Filing 88

MEMORANDUM AND ORDER granting in part 80 Plaintiffs' Motion for Attorneys' Fees and Costs. Signed by Judge Marvin J. Garbis on 8/17/2015. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STEPHANIE A. SELBY, et al.
Plaintiffs
vs.

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SIP & BITE RESTAURANT, INC.,
et al.
Defendants

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CIVIL ACTION NO. MJG-13-1531

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MEMORANDUM AND ORDER RE: LEGAL FEES
The Court has before it Plaintiffs' Motion for Attorneys'
Fees and Costs [ECF No. 80] and the materials submitted relating
thereto.

I.

The Court finds that a hearing is unnecessary.

BACKGROUND
A.

There Shall be a Fee Award

In this case, Howard B. Hoffman ("Hoffman"), Bradford W.
Warbasse ("Warbasse") and Stephen J. Springer ("Springer")
represented three Plaintiffs who recovered, by their acceptance
of Offers of Judgment, a total of $116,000.1

The Orders of

Judgment [ECF No. 77, 78, and 79] each provide that "[t]o the
extent allowed, [Plaintiffs] may seek costs and Attorneys' fees
as provided by law."

1

Two additional Plaintiffs accepted Offers of Judgment –
totaling $9,000 – on December 22, 2014. [ECF Nos. 60, 61].

The instant case was brought pursuant to the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the
Maryland Wage and Hour Law ("MWHL"), Md. Code Ann., Lab. & Empl.
§ 3-401 et seq.
The FLSA provides that "[t]he court . . . shall, in
addition to any judgment awarded to the plaintiff or plaintiffs,
allow a reasonable attorney's fee to be paid by the defendant,
and costs of action." 29 U.S.C. § 216(b).

The MWHL provides

that "[i]f a court determines that an employee is entitled to
recovery in an action under this section, the court shall award
to the employee . . . reasonable counsel fees and other costs."
Md. Code Ann., Lab. & Empl. § 3-427(d)(1)(iii).
There is no doubt that Plaintiffs were prevailing parties
against Defendants in the instant case.

Accordingly, the Court

shall award Plaintiffs a reasonable attorney's fee as part of
their costs.

B.

Amount of Award
1.

The Hourly Rates

The Court finds it appropriate to determine the fee award by
reference to counsel's reasonably necessary professional time and
a reasonable hourly rate.

See Pennsylvania v. Delaware Valley

Citizens' Council for Clean Air, 478 U.S. 546, 564-65 (1986);
E.E.O.C. v. Service News Co., 898 F.2d 958, 965 (4th Cir. 1990).
2

Warbasse seeks an hourly rate of $425.

In the course of

this case, however, Magistrate Judge Gallagher awarded Plaintiffs
fees for two hours of Warbasse's professional time at the rate of
$400 per hour. [ECF Nos. 37, 38].

The Court accepts this rate as

reasonable and finds no reason to increase it.
Hoffman seeks an hourly rate of $325, and refers to awards
for his professional time made by other Judges of this Court at a
rate of $300 per hour in 2011 and 2012.

The Court finds a modest

increase of $25 per hour reasonable in light of the time that has
passed since the prior awards.
Springer seeks an hourly rate of $400 that is unopposed by
Defendants.

2.

Determinations

The Court has considered Plaintiffs' claims, Defendants'
objections, and Plaintiffs' reply.

The Court hereby determines

that it shall:


Correct Hoffman's arithmetic error.



Disallow multiple lawyer billing for the same time
by allocating the duplicative charged time among the
billing lawyers.



Not disallow one lawyer's billing for communications
with co-counsel in the absence of duplicative
billing.

3



Disallow, as not necessary, the 2.5 hours of time
charged for April 22, 2015 trial preparation.2



Disallow fee petition time.



Not disallow the claim for the expert witness fee.3

3.

The Award

As detailed in the tables included in the Appendix attached
hereto, the Court shall award the total amount of $125,389.19 as
set forth herein.

Attorney
Hoffman

Hours
Claimed
73.6

Adjustment
Net
20.5
53.1

$/hour
325

Fee
$ 17,257.50

Springer

100.5

2.2

98.3

400

$ 39,320.00

Warbasse

156.9

9.05

147.85

400

$ 59,140.00

Total Fees

$ 115,717.50

2

The letter Order of March 4, 2015 [ECF No. 70] stated that
an April 13 settlement conference was scheduled and that, absent
settlement, the Court would issue a Trial Scheduling Order
leading to a trial commencing on June 11 or July 6. It was not
reasonably necessary for Plaintiffs' counsel ("Hoffman"), on
April 22, in the absence of the Trial Scheduling Order, to
devote 2.5 hours to review timing requirements and to begin to
prepare voir dire questions, jury instructions, and the pretrial
order.
3
Although referred to as a "cost," this expenditure is a
"fee" and can be awarded as such.
4

Costs4

$

9,671.69

____________
Total Award

$ 125,389.19

III. CONCLUSION
For the foregoing reasons:
1.

Plaintiffs' Motion for Attorneys' Fees and Costs
[ECF No. 80] is GRANTED in part.

2.

Plaintiffs shall recover a total of $ 125,389.19
of fees and costs.

3.

A Supplemental Judgment shall be issued herewith.

SO ORDERED, on Monday, August 17, 2015.

/s/__________
Marvin J. Garbis
United States District Judge

4

No adjustments have been made to Plaintiffs' claimed costs.
5

APPENDIX
A.

Case Development:

DATE
05/23/13
02/14/14
03/26/14
08/13/14

ADJUSTMENT
conference
conference
conference
conference

time
time
time
time

.25
.5
.25
1.0

1.3

HBH
.05
.3
.3
.15

SJS

BWW
.25
.3
.15
.1

.8

duplicative
duplicative
duplicative
duplicative

BWW
.3
.25
.5
.25

.3

Telephone
Telephone
Telephone
Telephone

HBH
.3

SJS

0

.8

HBH

SJS BWW
.25 .25
.2
.2
.45 .45

TOTAL

B.

Pleadings:
No adjustments

C.

Written Discovery:

DATE
09/12/13
10/15/13
10/15/13
10/24/13

ADJUSTMENT
Telephone conference
Telephone conference
Telephone conference
Telephone conference

duplicative
duplicative
duplicative
duplicative

time
time
time
time

TOTAL

D.

Depositions:

DATE
ADJUSTMENT
03/21/14 Telephone conference duplicative time
06/30/14 Deposition conference

0
TOTAL

6

E.

Motion Practice:

DATE
07/15/13
12/18/13
08/13/14
09/02/14

ADJUSTMENT
conference
conference
conference
conference

duplicative
duplicative
duplicative
duplicative

time
time
time
time

HBH
.3
.15
.25
.3

.25
.3

1.0

Telephone
Telephone
Telephone
Telephone

SJS

.55

HBH
9.0
1.3
.4
.4

SJS

BWW
.3
.15

.45

TOTAL

F.

Court Hearing:

DATE
08/09/13
08/09/13
08/09/13
08/09/13

ADJUSTMENT
Arithmetic error
Travel time duplicative
Hearing time duplicative
Client conference duplicative

BWW
.7
.4
.35

11.1 0

1.45

TOTAL

G.

Trial Preparation:

DATE
ADJUSTMENT
04/22/15 Unnecessary trial preparation

H.

Trial:
No adjustment

7

SJS

BWW

2.5
TOTAL

HBH
2.5

0

0

I.

ADR

DATE
ADJUSTMENT
04/21/15 ADR conference duplicative

HBH
4.6

SJS

BWW
4.6

4.6

0

4.6

HBH
.2

SJS
.2

BWW

.2

.2

0

TOTAL

J.

Fee Petition:

DATE
ADJUSTMENT
12/28/14 Fee petition matter

TOTAL

K.

Total Time Adjustments:
Hoffman

20.5 hours

Springer

2.2 hours

Warbasse

9.05 hours

8