McFadden v. L&J Waste Recycling, LLC et al

Filing 36

MEMORANDUM. Signed by Judge Ellen L. Hollander on 9/20/2017. (c/m 9/20/17 jnls, Deputy Clerk) Modified on 9/20/2017 (jnls, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ALPHONSO MCFADDEN,
Plaintiff,
v.

Civil Action No. ELH-16-2744

L&J WASTE RECYCLING, LLC, et al.
Defendants.

MEMORANDUM
This Memorandum resolves the motion for attorney‟s fees and costs (ECF 35) filed by
plaintiff Alphonso McFadden.

It is supported by a memorandum of law (ECF 36-1)

(collectively, “Motion”) and several exhibits.
The Motion follows the entry of default judgment on July 14, 2017, in favor of
McFadden and against defendants L&J Waste Recycling, LLC (“L&J”); Lenzie M. Johnson, III
(“Johnson III”); and Lenzie M. Johnson, Jr. (“Johnson Jr.”). See ECF 34. The judgment is
rooted in plaitniff‟s uncontested claims that defendants violated of the Fair Labor Standards Act
(“FLSA”), as amended, 29 U.S.C. §§ 201, et seq.; the Maryland Wage and Hour Law
(“MWHL”), as amended, Md. Code (2016 Repl. Vol.), § 3-401 et seq. of the Labor and
Employment Article (“L.E.”); and the Maryland Wage Payment and Collection Law
(“MWPCL”), as amended, L.E. § 3-501 et seq. ECF 1. In particular, plaintiff complained that
he was not paid time and a half for hours worked in excess of 40 hours a week during the period
of his employment, from October 28, 2014 to January 14, 2016. Id. ¶¶ 21-23; ECF 32-2
(McFadden Affidavit), ¶ 4.
Defendants have not responded to the Motion, and the time to do so has expired. No
hearing is necessary to resolve the Motion. See Local Rule 105.6.

I.

Factual Background1

Plaintiff filed suit on August 2, 2016. ECF 1. Through counsel, Johnson III and L&J
moved to dismiss, or in the alternative, for summary judgment. ECF 5. Similarly, through
counsel, Johnson Jr. also moved to dismiss, or in the alternative, for summary judgment. ECF 7.
By Memorandum (ECF 19) and Order (ECF 20) of January 10, 2017, I denied both motions. In
my Order, I directed defendants to answer the Complaint on or before January 31, 2017. ECF
20. However, on January 27, 2017, counsel for defendants moved to withdraw from the case.
ECF 21. Because the motion reflected compliance with Local Rules 101.2(a) and 101.2(b), I
granted the motion to withdraw by Order of the same date. ECF 22.
Defendants were notified of the implications of counsel‟s withdrawal. ECF 24; ECF 25;
see also Local Rule 101.1(a); 101.2(b). And, L&J, a limited liability company, was granted until
March 13, 2017, to obtain counsel. ECF 25.

Further, I directed all defendants to answer the

Complaint by that date. Id. at 2.
By March 27, 2017, no lawyer had entered an appearance for L&J, nor had defendants
answered the Complaint. Therefore, on that date, I directed plaintiff to file a motion for clerk‟s
entry of default as to each defendant, pursuant to Fed. R. Civ. P. 55(a), or show cause why such
action was not appropriate. ECF 26. Plaintiff filed a Motion for Entry of Default as to all
defendants on April 10, 2017. ECF 27. And, on April 20, 2017, the Clerk entered an order of
default as to all defendants. ECF 29.
Thereafter, plaintiff filed a motion for default judgment (ECF 32), supported by several
exhibits.

ECF 32-1 through ECF 32-6.

No opposition was filed.

As set forth in my

Memorandum Opinion (ECF 33) and Order (ECF 34) of July 14, 2017, I granted the motion for
1

I incorporate here the facts set forth in my Memorandum Opinion of July 14, 2017
(ECF 33), awarding judgment on the merits in favor of plaintiff and against defendants.

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default judgment as to liability and awarded statutory damages of $9,450.00.

However, I

deferred entry of an order awarding attorney‟s fees and costs, pending the submission of a proper
motion for such fees.2

The Motion followed.

ECF 35.

It is supported, inter alia, by a

Declaration from plaintiff‟s attorney, George Swegman, Esquire (ECF 35-4) and a billing
statement. ECF 35-2.
Swegman avers that he graduated from law school in 1975 and was admitted to the Pennsylvania
bar that same year. Id. ¶ 4. He was admitted to the Maryland Bar in 2009. Based on counsel‟s
experience, he seeks compensation at a rate of $400 per hour. ECF 35-4, ¶ 4; ECF 35-1 at 9.
The time for paralegals and the law clerk was billed at the rate of $150 per hour. ECF 35-1 at 9;
ECF 35-2. The rates comport with the fee schedule in Appendix B to the Local Rules, titled
“Rules and Guidelines For Determining Attorneys‟ Fees In Certain Cases.”
Further, plaintiff‟s counsel avers that he reviewed and audited the billing statements for
this case. Id. ¶ 9; see also ECF 35-2. Notably, he represents that he has “removed from the
billing statement” all “time for any unnecessary work . . . .” ECF 35-4, ¶ 9. In his view, this
amounted to 8.65 hours of time, valued at $3,459.34.
In support of the Motion, plaintiff has also submitted the Declaration of Richard
Neuworth, Esquire, an experienced practitioner in the field of employment law. ECF 35-5. He
avers that the rates requested by plaintiff “are very reasonable and are within the market rates for
employment litigation in the Baltimore metropolitan area.” Id. ¶ 9. Notably, Neuworth offers no
opinion on the necessity or quality of the legal services rendered in this case. However, he avers
that plaintiff‟s attorney is regarded as an “effective advocate[]” with a reputation as a “highly
skilled” lawyer. Id. ¶ 7.
2

In ECF 33, I identified several issues concerning the request for counsel fees contained
in ECF 32. Those concerns have largely been addressed in the Motion.

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In sum, plaintiff seeks an award for 95.55 hours of work, inclusive of work by counsel,
paralegals, and a law clerk. Id. That corresponds to a fee request in the amount of $23,663.66.
In addition, plaintiff seeks an award of costs in the sum of $700.
II.

Discussion

Pursuant to 29 U.S.C. § 216(b), the court shall “allow a reasonable attorney‟s fee” as well
as “costs of the action.” See also L.E. § 3-427(d). In an FLSA action, the “[p]ayment of costs to
a prevailing plaintiff is mandatory. . . .” Lopez v. Lawns ‘R’ Us, DKC-07-2979, 2008 WL
2227353, at *7 (D. Md. May 23, 2008); see also Burnley v. Short, 730 F.2d 136, 141 (4th Cir.
1984). Plaintiff received a judgment in his favor and, as such, he is the “prevailing party.”
Under the FLSA and other similar fee-shifting statutes, “the costs that may be charged to
losing defendants include „those reasonable out-of-pocket expenses incurred by the attorney
which are normally charged to a fee-paying client, in the course of providing legal services.‟”
Lopez, 2008 WL 2227353, at *7 (finding a $350 filing fee and a $200 service of process fee
“well within the categories of normal and necessary costs of litigation that would normally be
charged to paying clients”) (citation omitted). There is no issue as to the validity of the $700 in
costs.
The “calculation of an attorney‟s fee award involves a three-step process.” McAfee v.
Boczar, 738 F.3d 81, 88 (4th Cir. 2013).
First, in calculating the appropriate award of attorney‟s fees, the court ordinarily
determines the lodestar amount, defined as a “reasonable hourly rate multiplied by hours
reasonably expended.” Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008); see
McAfee, 738 F.3d at 88; Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir.

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2009).3

And, “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.”
Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990) (citations and internal quotation marks
omitted). As discussed, infra, to ascertain what is reasonable in terms of hours expended and the
rate charged, the court generally applies the twelve factors articulated in Johnson v. Georgia
Highway Express Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), adopted by the Fourth Circuit in
Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 (4th Cir. 1978). See McAfee, 738 F.3d at 88;
Robinson, 560 F.3d at 243-44; Plyler, 902 F.2d at 277; Ruth Creek Coal Sales, Inc. v. Caperton,
31 F.3d 169, 174 (4th Cir. 1994).
Second, the court must “subtract fees for hours spent on unsuccessful claims unrelated to
successful ones.” Robinson, 488 F.2d at 244; see also McAfee, 738 F.3d at 88. Third, the court
should award “some percentage of the remaining amount, depending on the degree of success
enjoyed by the plaintiff.” Robinson, 488 F.2d at 244.
“The Supreme Court has indulged a „strong presumption‟” that the “lodestar” figure, as
defined by the Court in Hensley v. Eckerhart, 461 U.S. 424, 434 (1983), “represents a reasonable
attorney‟s fee.” McAfee, 738 F.3d at 88-89. To be sure, “[t]he lodestar method was never
intended to be conclusive in all circumstances.” Perdue v. Kenny A. ex rel Winn, 559 U.S. 542,
554 (2010). The strong presumption in its favor “may be overcome in those rare circumstances
in which the lodestar does not adequately take into account a factor that may properly be
considered in determining a reasonable fee.” Id.
As indicated, the court determines a reasonable fee by assessing, inter alia, whether the
hours worked were reasonable. This allows the court to consider whether counsel expended time
3

In certain types of cases, attorney‟s fees may be calculated based on the percentage of
recovery method. See, e.g., Decohen v. Abbasi, LLC, 299 F.R.D. 469, 481 (D. Md. 2014).

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that was unnecessary or duplicative. The plaintiff “must show that the number of hours for
which he seeks reimbursement 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) (concluding that the attorney‟s fees requested by
plaintiff were reasonable, based on documentation of hours worked and the work completed);
Flynn v. Jocanz, 480 F. Supp. 2d 218, 220–21 (D.D.C. 2007) (awarding requested attorney‟s fees
based on affidavits and the record).
As indicated, in evaluating the reasonableness of the requested legal fees, the court
considers the twelve factors articulated in Johnson, 488 F.2d at 717–19. See McAfee, 738 F.3d at
88-89. The Johnson factors are as follows, 488 F.2d at 717-19:
(1)
(2)
(3)
(4)

the time and labor required;
the novelty and difficulty of the questions;
the skill requisite to properly perform the legal service;
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.
From my earlier review of the initial fee submissions, some of the legal fees that were
requested in ECF 32-4 appeared to be excessive. See id. But, counsel subsequently reduced the
fee request allocated to “pleadings” by 25%, from $5,902 to $4,426.50, which reflects a
reduction of $1,475.50. ECF 35-1 at 8; ECF 35-4, ¶ 9. Similarly, plaintiff initially sought an
award of more than $1,350 in fees regarding a Rule 11 letter that did not appear from the billing

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statement to have ever been sent. ECF 32-4 at 5-6.4 Counsel has since deducted that charge, in
response to my concern. ECF 35-1 at 8; ECF 35-4, ¶ 9. In response to the Court‟s concern,
plaintiff has also deleted fees for work related to plaintiff‟s “vacillation regarding pursuing this
matter.” ECF 35-4, ¶ 9.
Although plaintiff ultimately obtained judgment by default, the court is mindful that,
from the inception of the case on August 2, 2016, through late January 2017, defendants were
represented. And, plaintiff‟s counsel was required to litigate two motions to dismiss. See ECF
5; ECF 7. He did so successfully. See ECF 19; ECF 20. Nevertheless, it does not seem likely,
contrary to the assertion of plaintiff‟s counsel, that counsel has suffered the loss of “significant
opportunity costs” on the ground that “this matter has prevented him from pursuing other legal
matters on which he could have been working.” ECF 35-1 at 11. Nor does plaintiff‟s counsel
identify any case that he actually had to turn down because of the demands of this case. Nor is
an FLSA case an inherently undesirable one.
Counsel also asserts that his firm has spent about 18 months to pursue the claims. Id. at
12. I note, however, that defense counsel withdrew from the case after six months of litigation,
and little of substance occurred in the ensuing months. Indeed, it was the Court that directed
counsel to file for entry of default, in an effort to move the case along. ECF 26. Although the
case presented issues concerning a joint employer, I do not agree that the issues in this case were
particularly complex, especially for an experienced employment law practitioner, such as
plaintiff‟s counsel. See ECF 35-1 at 10, 13.

4

To be sure, Fed. R. Civ. P. 11(c)(2) requires counsel to serve a motion for sanctions on
opposing counsel prior to filing the motion with the Court. Curiously, activities as incidental as
sending reminders for appointments are reflected on the billing statement (ECF 32-4 at 5). Yet,
there was no indication that a Rule 11 letter was actually sent.
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III.

Conclusion

Notably, when entering a default judgment, the court may make an award of attorney‟s
fees for a lesser amount than the moving party requested. See DirecTV v. Agee, 405 F. Supp. 2d
6, 8 (D.D.C. 2005) (concluding, on granting default judgment, that “plaintiff‟s requested relief
… for attorneys‟ fees [was] excessive” and awarding half of what was requested in the plaintiff‟s
motion). In other words, a trial court is vested with discretion in determining the award of fees,
given its “„superior understanding of the litigation.‟” 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)); see also McAfee, 738 F.3d at 88; Robinson, 560 F.3d at 243.
I have carefully reviewed the Johnson factors.

In light of the deductions taken by

counsel, coupled with counsel‟s willingness to forego billing for the obvious effort and work in
connection with the Motion, I am satisfied that plaintiff is entitled to an award of attorney‟s fees
of $23,663.66, plus costs of $700, for a total award of $24,363.66. An Order follows.

Date: September 20, 2017

/s/
Ellen Lipton Hollander
United States District Judge

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