Butler et al v. Directsat USA, LLC et al

Filing 334

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/18/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JEFFRY BUTLER, ET AL.
:
v.

:

Civil Action No. DKC 10-2747

:
DIRECTSAT USA, LLC, ET AL.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor Standards Act (“FLSA”) case is a motion for attorneys’
fees and costs filed by Plaintiffs.

(ECF No. 330).

The issues

have been fully briefed, and the court now rules, no hearing
being deemed necessary.

Local Rule 105.6.

For the following

reasons, Plaintiffs’ motion will be granted in part and denied
in part.
I.

Background
Additional

opinions.

background

can

be

found

(See, e.g., ECF No. 328).

in

prior

memorandum

This collective action was

brought under the FLSA for an alleged failure to pay overtime
wages.
agreed

After
to

settlement

nearly

settle

five

their

agreement,

years

claims
which

of
on

the

litigation,
August

17,

undersigned

the

parties

2015.
approved

The
on

September 3, 2015 (ECF Nos. 328; 329), provides that Defendants
will

pay

each

individual

Plaintiff

a

specified

amount

that

ranges from $54.36 to $4,197.78, depending on the number of

weeks

worked

period.

during

In

the

all,

three-year

Defendants

statute

agreed

to

of
pay

limitations
Plaintiffs

approximately $36,000.

In approving the settlement agreement,

the

a

court

found

that

bona

fide

dispute

remained

as

to

Defendants’ liability for overtime payments under the FLSA, and
that the settlement was a fair and reasonable compromise.

(ECF

No. 328, at 6-8).
The settlement agreement did not include an attorneys’ fee
and cost calculation, instead providing that Defendants will pay
attorneys’ fees and costs incurred by Plaintiffs, in an amount
to be determined by the court following Plaintiffs’ submission
of a request for fees and costs.

(See ECF No. 327-1 ¶ 9).

September 18, Plaintiffs filed such request.

On

(ECF No. 330).

Defendants responded (ECF No. 331), and Plaintiffs replied (ECF
No. 332).
II.

Standard of Review
“The proper calculation of an attorney’s fee award involves

a three-step process.

First, the court must ‘determine the

lodestar figure by multiplying the number of reasonable hours
expended times a reasonable rate.’”

McAfee v. Boczar, 738 F.3d

81, 88 (4th Cir. 2013) (quoting Robinson v. Equifax Info. Servs.,
LLC,

560

F.3d

reasonableness,

235,
the

243
United

(4th

Cir.

States

2009)).

Court

of

In
Appeals

assessing
for

the

Fourth Circuit has instructed district courts to consider what

2

are known as the Johnson factors, which are: (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 relationship between attorney and client; and
(12) attorneys’ fees awards in similar cases.

Id. at 88 n.5

(citing Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28 (4th
Cir. 1978)).
spent

on

Finally,

“Next, the court must ‘subtract fees for hours

unsuccessful
the

court

claims
should

unrelated
award

to

‘some

successful
percentage

ones.’
of

the

remaining amount, depending on the degree of success enjoyed by
the plaintiff.’”

Id. (quoting Robinson, 560 F.3d at 244.

The

Fourth Circuit has noted that a district court’s determination
of attorneys’ fees should stand unless the district court abused
its discretion by reaching a decision that is “‘clearly wrong’
or committing an ‘error of law.’”

Id. at 88 (quoting Brodziak

v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998)).
3

III. Analysis
A.

Lodestar Calculation

1.

Hourly Rate

“[T]he burden rests with the fee applicant to establish the
reasonableness of a requested rate.”

Robinson, 560 F.3d at 244

(quoting Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)).
“In 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,” including, for example, “affidavits of
other local lawyers who are familiar both with the skills of the
fee applicants and more generally with the type of work in the
relevant community.”

Id. at 244, 245 (emphases added) (internal

quotation marks omitted).

As noted by another circuit, “The

general

‘relevant

rule

determining

is
the

that

the

reasonable

hourly

market’
rate

for

for

purposes

of

an

attorney’s

services is ‘the place where the case is filed.’”

Am. Civil

Liberties Union of Georgia v. Barnes, 168 F.3d 423, 437 (11th
Cir. 1999) (quoting Cullens v. Georgia Dep't. of Transp., 29
F.3d 1489, 1494 (11th Cir. 1994)).

The Local Rules provide non-

binding guidelines regarding reasonable hourly rates that vary
depending on how long an attorney has been admitted to the bar.
Local Rules, App’x B.1
1

The Local Rules put forth the following guidelines: $150225 for lawyers admitted to the bar less than five years; $1654

Plaintiffs request the following rates for attorneys who
worked on this case:


Daniel A. Katz (20 years admitted to the bar): $475



Lucy B. Bansal (1 year): $225



Meghan Droste (4 years): $225



Cori Cohen (3 years): $225



Ryan F. Stephan (15 years): $425



James B. Zouras (20 years): $425



Andrew C. Ficzko (6 years): $225



Teresa M. Becvar (2 years): $225



Mark Goldstein (4 years): $225



Jac A. Cotiguala (36 years): $475



Brian Massatt (7 years): $300



Paralegals: $150

(ECF No. 330, at 15-16).2

Plaintiffs argue that these rates are

reasonable because they fall within the guidelines in the Local
Rules

and

because

the

requested

rates

are

lower

than

their

300 for lawyers admitted for five to eight years; $225-350 for
lawyers admitted for nine to fourteen years; $275-425 for
lawyers admitted for fifteen to nineteen years; and $300-$475
for lawyers admitted for twenty years or more.
The rate for
paralegals and law clerks is $95-150.
2

Plaintiffs’ request includes some billing rates at a
higher level than indicated in their brief.
For example, Mr.
Stephan has entries at a $550 rate for a portion of the work he
performed in relation to the settlement agreement.
(ECF No.
330-6, at 101-102).
5

actual rates.
support,

(See ECF Nos. 330-1, at 3; 330-3, at 2).

Plaintiffs

submit

copies

of

affidavits

from

In

other

attorneys in Illinois that were submitted in an action in the
United

States

Illinois.

District

Court

for

the

Northern

District

of

(ECF No. 330-3, at 5-22).

Other than the affidavit of local counsel Daniel A. Katz,
(ECF No. 330-4), Plaintiffs do not provide affidavits or other
evidence of the prevailing reasonable rates in Maryland for work
similar to the work Plaintiffs’ counsel performed on this case.
Defendants contend that the court should reduce the requested
hourly rates, which are at the higher ends of the applicable
guidelines

ranges,

in

light

of

the

prevailing rates within this district.

lack

of

evidence

of

(ECF No. 331, at 22-23).

Specifically, Defendants argue that the rate should be lowered
by a formula based on the exact number of years an attorney has
been practicing within the guidelines range.
Defendants’

request

that

the

court

(Id. at 20-21).
adopt

a

formulaic

approach to determining a reasonable rate within the guidelines
range is unsupported by precedent and generally lowers the rates
by too much.

Plaintiffs have not, however, adequately supported

their requested rates with sufficient evidence.

They have not

produced any specific evidence regarding the prevailing market
rate for similar work within this district, instead providing
copies

of

affidavits

from

attorneys
6

in

Chicago

that

were

originally submitted in a case in Illinois.

Plaintiffs were

explicitly reminded of this requirement in an earlier opinion
(ECF

No.

328,

at

9-10),

but

they

failed

to

provide

any

independent, local evidence justifying the requested rates.
Accordingly, Plaintiffs’ counsel’s hourly rates will be
as follows:



Lucy B. Bansal (1 year): $150



Meghan Droste (4 years): $200



Cori Cohen (3 years): $200



Ryan F. Stephan (15 years): $350



James B. Zouras (20 years): $425



Andrew C. Ficzko (6 years): $225



Teresa M. Becvar (2 years): $150



Mark Goldstein (4 years): $200



Jac A. Cotiguala (36 years): $425



Brian Massatt (7 years): $225


2.

Daniel A. Katz (20 years admitted to the bar): $425

Paralegals and law clerks: $95
Reasonable Hours Worked

Plaintiffs provide itemized time records that list the date
of the work, who did the work, the time spent, and a brief
description of the work.

(ECF Nos. 330-5; 330-6).

Plaintiffs

helpfully divide the litigation into phases in accordance with
the Local Rules.

Specifically, Plaintiffs’ counsel assert they
7

worked

a

total

development

of

and

2,252.38

pleadings;

hours:

984.99

56.55

hours

hours

on

on

case

discovery

and

depositions; 612.71 hours on five motions; 297.85 hours on trial
preparation; 12.80 hours with regard to Defendants’ bankruptcy;
123.18 hours on settlement; and 164.30 hours on the pending fee
petition.

Plaintiffs

assert

that

they

exercised

appropriate

“billing judgment” by reducing certain categories of entries by
one third.

(See ECF No. 330, at 7-8).

Specifically, Plaintiffs

reduced entries relating to meetings and correspondence between
lawyers

and

Furthermore,

certain

court

Plaintiffs

conferences

argue

that

the

and

hours

hearings.
worked

are

reasonable because Defendants “needlessly prolonged litigation
with an unreasonably tenacious defense.”
Defendants
request,
First,

and

take

the

court

Defendants

impermissibly
vagueness.

issue

will

argue

vague,

with

many

address

that

suggesting

(ECF No. 332, at 4-5).
aspects
each

of

Plaintiffs’

argument

many

of

the

196.1

hours

turn.

entries

are

struck

for

be

(See ECF Nos. 331, at 24-26; 331-9).

in

A “court may

reduce the number of hours awarded if the documentation is vague
or

incomplete.”

CoStar

Group,

F.Supp.2d 780, 788 (D.Md. 2000).

Inc.

v.

LoopNet,

Inc.,

106

“‘[C]ounsel, of course, is not

required to record in great detail how each minute of his time
was expended.

But at least counsel should identify the general

subject matter of his time expenditures.’”
8

Id. at 789 (quoting

Hensley

v.

Eckerhart,

461

U.S.

424,

437

n.12

(1983)).

Defendants assert that numerous entries are too vague, including
entries that state “e-mails to and from co-counsel” or simply
“with co-counsel.”

Plaintiffs admit that some entries are less

detailed than others, but argue that the meaning of all entries
is

“certainly

reference

to

ascertainable
the

based

particular

on

category

the

context

and/or

phase

and
of

litigation Plaintiffs described in their fee petition.”
No.

332,

at

9).

The

undersigned

is

able

to

determine

in
the
(ECF
the

meaning of the less-detailed entries to a sufficient degree of
specificity
entries

through

and

the

the

context

stage

of

provided

by

the

litigation.

surrounding
Plaintiffs’

contemporaneous time records “will suffice for purposes of this
motion because they provide an adequate basis for determining
whether

the

hours

claimed

were

reasonably

expended.”

See

CoStar, 106 F.Supp.2d at 789.
Defendants next argue that the court should not award fees
for 629.26 hours of “clerical, administrative, and other nonlegal work.”

(ECF Nos. 331, at 26-27; 331-10).

Plaintiffs

counter only that “[c]lerical and administrative work performed
by legal staff was necessary to advance this litigation and is
compensable; otherwise it would not be categorized as such in
Appendix

B

of

the

Local

Rules.”

(ECF

No.

332,

at

9).

Defendants are correct that “fees for administrative work are
9

generally not recoverable.”

Pfieffer v. Schmidt Baking Co.,

Inc., No. CCB-11-3307, 2014 WL 1291814, at *4 (D.Md. Mar. 28,
2014) (citing Kabore v. Anchor Staffing, Inc., No. L-10-3204,
2012 WL 5077636, at *4 (D.Md. Oct. 17, 2012)).

Such purely

clerical and administrative tasks “should [be] deducted as a
matter of billing discretion.”

Manna v. Johnny’s Pizza, Inc.,

No. CCB-13-721, 2014 WL 794357, at *4 (D.Md. Feb. 25, 2014).
After a careful review of Plaintiffs’ request, the court will
strike 266.76 hours as being purely clerical or administrative
nature.3
Finally, Defendants argue that Plaintiffs’ request includes
“excessive,

redundant,

or

otherwise

unnecessary

hours

spent

performing legal tasks,” including 150.25 hours of overstaffing
on

specific

tasks

and

302.85

hours

Defendants

contend

are

unnecessarily charged by Mr. Cotigula and Mr. Zouras, who are
senior partners.

(ECF Nos. 331, at 27-33; 331-11; 331-13).

In

addition, Defendants request that the court reduce the hours
compensated for time spent on the pending motion for fees by
eighty percent.

(ECF Nos. 331, at 30-31; 331-12).

In short,

Defendants’ primary argument is that Plaintiffs inappropriately
3

Defendants are too liberal in marking entries as clerical
or administrative.
(See ECF No. 331-10).
For example, tasks
such as reviewing a court order or opinion and drafting
documents are not purely administrative or clerical, and thus
are compensable.
Purely clerical work includes such tasks as
the downloading, printing, and transmitting of documents and
work related to scheduling.
See Pfieffer, 2014 WL 1291814, at
*4.
10

seek

compensation

for

work

performing similar tasks.

performed

by

multiple

attorneys

This argument invokes both the Local

Rules and the general principle of billing judgment.

The Local

Rules provide that, absent “a showing of a valid reason for
sending two attorneys” to a deposition or hearing, “[o]nly one
lawyer

for

depositions

each
.

.

party
.

shall

[and]

be

compensated

hearings.”

Local

for

Rules,

attending
App’x

B.

Moreover, “[g]enerally, only one lawyer is to be compensated for
client,

third

party

and

intra-office

conferences.

.

.

.

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

management of the litigation.”

Id.

necessary

for

the

proper

Finally, under the Local

Rules, an attorney can generally recover fees for up to two
hours of travel time at his or her full billing rate; travel
time beyond two hours may be charged at a one-half rate.
To exercise “billing judgment”
means [counsel] must exclude from their fee
applications
“excessive,
redundant,
or
otherwise unnecessary [hours],” [Hensley,
461 U.S. at 434], which are hours “that
would be unreasonable to bill to a client
and
therefore
to
one’s
adversary
irrespective of the skill, reputation or
experience of counsel.” Norman [v. Housing
Authority of Montgomery], 836 F.2d [1292,
Cir.
1988)]
(emphasis
in
1301
(11th
11

original). As we will explain, these fee
applicants did fail to exercise billing
judgment. If fee applicants do not exercise
billing judgment, courts are obligated to do
it for them, to cut the amount of hours for
which payment is sought, pruning out those
that are “excessive, redundant, or otherwise
unnecessary.” Courts are not authorized to
be generous with the money of others, and it
is as much the duty of courts to see that
excessive fees and expenses are not awarded
as it is to see that an adequate amount is
awarded.
Barnes, 168 F.3d at 428; see also Hensley, 461 U.S. at 434 (“The
district

court

also

should

exclude

from

this

initial

fee

calculation hours that were not ‘reasonably expended.’”).
Plaintiffs

attempt

preemptively

to

address

Defendants’

concerns by including a one-third reduction of some entries in
an exercise of “billing judgment.”

Plaintiffs also contend that

the

was

work

of

complexity
defense.

and

multiple
length

attorneys
of

the

case

(ECF No. 332, at 7-9).

necessary

and

due

Defendants’

to

the

tenacious

As is often the case in

disputes over attorneys’ fees, the reality lies somewhere in the
middle.

Plaintiffs

are

correct

that

multiple

attorneys

are

justified for work on some tasks and in conjunction with some
meetings regarding work organization and strategy.
are

also

correct

that

Plaintiffs’

billing

Defendants

records

contain

several examples of overstaffing, including many instances where
multiple

attorneys

bill

for

significant

12

time

reviewing

court

orders, corresponding with each other, and individually reading
the same correspondence from the other side.
Although

Plaintiffs

are

commended

for

attempting

to

exercise billing judgment by proactively applying a one-third
reduction to some entries, their efforts fall well short of the
proper billing judgment anticipated by the Local Rules and case
law.

Moreover,

Plaintiffs

made

no

attempt

to

limit

their

billing for travel in accordance with the Local Rules, and their
request for 164.63 hours for time spent on the fee petition is
excessive,
records.

particularly

when

counsel

kept

contemporaneous

The use of eleven attorneys, many of whom are senior

attorneys, also supports a smaller lodestar number, particularly
because Plaintiffs made no attempt at billing judgment outside
of the limited one-third reductions.

Due to the prevalence of

duplicative and excessive hours spent on routine legal tasks and
correspondence,

a

reduction

of

one

third

is

appropriate.

1,320.5 hours is a reasonable number of hours for this case.
Accordingly, at the reasonable billing rates put forth in the
preceding section, the initial lodestar figure is $391,499.33.4
B.

Adjustments to the Lodestar

Defendants argue for two adjustments to the lodestar: to
account for the “unsuccessful claims” of dismissed Plaintiffs

4

Plaintiffs’ requested lodestar is $684,246.30.
(See ECF
No. 330, at 1). Defendants’ requested lodestar is $221,523.33.
(See ECF No. 331, at 33).
13

and because of Plaintiffs’ overall lack of success. (ECF No.
331, at 33-40).

With regard to unsuccessful claims, Defendants

note that 28 of the 54 Plaintiffs who at some point joined this
collective action were dismissed point prior to the settlement
agreement.

Defendants

also

argue

that

the

final

settlement

amount of $36,000 indicates a lack of overall success in light
of the $300,644.94 Plaintiffs asserted they were owed in damages
in a settlement letter on August 4, 2015.
Plaintiffs

counter

that

they

“were

(ECF No. 331-4).

significantly

successful

throughout the course of the litigation” and “prevailed at every
stage

of

certification

and

decertification,

advanced

and

complied with Defendants’ discovery requests that were out of
proportion to the damages sought, and ultimately recovered 45
minutes of unpaid wages per week.”

(ECF No. 332, at 2, 11).

Defendants have identified 17.55 hours of work performed
solely on behalf of dismissed Plaintiffs.
is

appropriate

because

the

dismissed

Striking these hours

Plaintiffs

achieved

no

benefit from the settlement agreement and their claims were, for
one reason or another, unsuccessful.

Work readily discernible

as being performed solely on behalf of a dismissed Plaintiff
will

be

stricken.

Defendants

have

not,

however,

adequately

supported their contention that work performed on behalf of all
Plaintiffs
portion

of

should
the

be
work

reduced

by

performed
14

a
on

percentage
behalf

of

reflecting
the

a

dismissed

Plaintiffs.

After

this

reduction,

the

lodestar

amount

is

$387,586.00.
Plaintiffs’
limited

fee

relative

settlement

must

success

agreement

injunctive relief.

and

also

be

reduced

in

light

of

the

of

the

represented

by

the

amount

the

of

any

declaratory

absence

or

The Fourth Circuit has described this as the

third step of a fee calculation, noting that courts “should
award some percentage of the remaining amount, depending on the
degree of success enjoyed by the plaintiff.”

McAfee, 738 F.3d

at 88 (citation and internal quotation marks omitted).

Other

times, such a calculation is referred to as an additional focus
on the eighth Johnson factor, which directs a court to look at
“the

amount

in

controversy

and

the

results

obtained.”

See

Jackson v. Estelle’s Place, LLC, 391 F.App’x 239, 243 (4th Cir.
2010).

Regardless of how it is framed, it is appropriate for a

court to adjust the fee awarded based on the amount of success
Plaintiffs enjoyed.

While it is natural, and in some sense

tempting, to compare the amount of fees sought to the monetary
recovery obtained, such an approach is disfavored:
The
Supreme
Court
has
“reject[ed]
the
proposition that fee awards . . . should
necessarily be proportionate to the amount
of damages a civil rights plaintiff actually
recovers.” City of Riverside v. Rivera, 477
U.S. 561, 574 (1986); see also Nigh v. Koons
Buick Pontiac GMC, Inc., 478 F.3d 183, 190
(4th Cir. 2007) (courts may not “reflexively
reduce fee awards whenever damages fail to
meet
a
plaintiff’s
expectations
in
15

proportion to the damages’ shortfall.”).
This is so because plaintiffs “seek [ ] to
vindicate important civil and constitutional
rights that cannot be valued solely in
monetary terms,” and fee awards are used to
deter future violations. City of Riverside,
477 U.S. at 574. Nonetheless, the [4th]
Circuit has instructed “the most critical
factor in calculating a reasonable fee award
is
the
degree
of
success
obtained.”
Brodziak,
145
F.3d
194,
196
(internal
quotations omitted).
Andrade v. Aerotek, Inc., 852 F. Supp. 2d 637, 644 (D. Md.
2012); see also Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d
311, 328 n.20 (4th Cir. 2006) (recognizing that “[a]wards of
attorney’s fees substantially exceeding damages are not unusual
in civil rights litigation”).
The district court should “reduce the award if ‘the relief,
however significant, is limited in comparison to the scope of
the litigation as a whole.’”

McAfee, 738 F.3d at 92 (quoting

Hensley, 461 U.S. at 439-40).

Fee awards should be adequate to

attract competent counsel, but should not produce a windfall to
attorneys.

Id. (citing City of Riverside, 477 U.S. at 580).

The appropriate comparison is “the amount of damages sought to
the amount awarded.”

Id. (citing Mercer v. Duke Univ., 401 F.3d

199, 204 (4th Cir. 2005)).

Here, Plaintiffs sought injunctive

and declaratory relief and damages.
17).

(ECF No. 1, at 13, 15, 16-

Plaintiffs may have enjoyed some success at earlier stages

of the litigation, but the settlement agreement they ultimately
secured

provided

approximately
16

$36,000,

far

less

than

the

$300,644.94 Plaintiffs asserted they were owed in damages.
No.

331-4).

vindicating

As
rights

noted

before,

and

deterring

nonmonetary
future

goals,

(ECF

such

as

can

be

violations,

served by FLSA litigation and can be a measure of a plaintiff’s
success.

The failure to achieve such goals is indicative of

limited success.
certain

legal

During this litigation, the court resolved

issues,

but

never

practices violated the FLSA.
settlement,

Plaintiffs

declaratory

judgment

did
or

determined

Defendants’

Because the parties agreed to a
not

obtain

injunctive

continue to deny liability.

that

any

relief,

benefits
and

of

a

Defendants

In short, “[t]his award was clearly

limited relative to the scope of the litigation” and the relief
Plaintiffs initially sought.

Andrade, 852 F.Supp.2d at 644.

The lodestar amount of $387,586.00 would amount to a windfall
for Plaintiffs’ counsel in light of Plaintiffs relative success
or lack thereof.
On the other hand, Defendants tenaciously litigated this
case, and settlement did not occur until the eve of trial.

See

Imgarten v. Bellboy Corp., 383 F.Supp.2d 825, 840 (D.Md. 2005)
(“Those who elect a militant defense are responsible for the
time and effort they extract from their opponents.

A party

cannot litigate tenaciously and then complain about the time
spent by the opposing party in response.”).

A reduction is

appropriate due to Plaintiffs’ lack of relative success, but not
17

to

the

extent

Defendants

propose.

Accordingly,

Plaintiffs’

requested fee will be further reduced by one third, and they
will be awarded $258,390.67.
C.

Costs

Plaintiffs seek to recover $26,112.07 in litigation costs.
In

support

of

their

request,

Plaintiffs

provide

an

itemized

spreadsheet detailing each cost (ECF No. 330-7), and affidavits
attesting to the accuracy and reasonableness of the costs (ECF
Nos. 330-1 ¶ 17; 330-3 ¶ 17; 330-4 ¶ 11).

Defendants primarily

argue that the request must be denied because Plaintiffs failed
to attach vouchers or bills supporting the costs.
at

40-41).

Local

Rule

109.1(b)

directs

a

(ECF No. 331,
party

that

is

requesting costs to support its request “by affidavit and . . .
a

memorandum

setting

supporting the request.

forth

the

grounds

and

authorities

Any vouchers or bills supporting the

cost being requested shall be attached as exhibits.”
Defendants’ reliance on EMI April Music, Inc. v. Garland
Enters., LLC, No. DKC-11-3352, 2012 WL 2342994, at *3 (D.Md.
June 19, 2012), to suggest that all of Plaintiffs’ costs should
be denied is not persuasive.

The plaintiffs in EMI submitted

“only dollar amounts incurred each month over the course of the
litigation.”

Id.

The plaintiffs provided no description of the

costs other than that the amounts related to necessary work to

18

be done in this case.5
provide
specific

detailed
date

Plaintiffs’

Here, on the other hand, Plaintiffs

descriptions,

the

costs

submission

were

pricing

information,

incurred.

provided

(ECF

Defendants

with

and

No.

the

330-7).

sufficient

information to challenge individual costs, which Defendants did
in a footnote.

(ECF No. 331, at 40 n.11).

attached multiple invoices to their reply.

Moreover, Plaintiffs
(ECF No. 332-5).

Accordingly, Plaintiffs’ request for costs will be assessed, in
full, for reasonableness.
[T]he Fourth Circuit has held that
district courts have discretion to determine
the costs that will be assessed against
losing defendants in FLSA cases.
Roy v.
Cnty. Of Lexington, S.C., 141 F.3d 533, 549
. . .
[C]osts charged to
(4th Cir. 1998).
losing
defendants
may
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.”
Spell
v.
th
McDaniel, 852 F.2d 762, 771 (4
Cir. 1988).
Types of costs charged to losing defendants
include “necessary travel, depositions and
transcripts,
computer
research,
postage,
court costs, and photocopying.”
Almendarez
v. J.T.T. Enters. Corp., No. JKS-06-68, 2010
WL 3385362, at *7 (D.Md. Aug. 25, 2010).
Andrade,

852

F.Supp.2d

at

644.

Defendants

challenge

two

categories of costs sought by Plaintiffs: $1,761.40 for expert
witnesses and professionals, and $4,425.00 in discovery-related
costs.
5

(ECF No. 331, at 41 n. 11).

Plaintiffs’ other requested

The court in EMI also denied the plaintiffs’ motion
without prejudice, providing fourteen days for the plaintiffs to
submit additional detail.
19

costs

appear

reasonable,

sufficient specificity.

necessary,

and

are

detailed

with

As to expert fees, Defendants argue

that the Fourth Circuit has held that such fees are “outside the
rubric of ‘attorney’s fees.’”

(ECF No. 331, at 41 n.11 (quoting

Wheeler v. Durham City Bd. of Ed., 585 F.2d 618, 624 (4th Cir.
1978)).

Expert fees may be separate from “attorney’s fees,” but

Defendants present no argument that they are not recoverable as
litigation costs.
court

ordered

the

Defendants are correct, however, that the
parties

to

(See ECF Nos. 129; 153; 173).

share

certain

discovery

costs.

Plaintiffs have not articulated

why shifting these costs back to Defendants is appropriate, and
they do not address Defendants’ objections to these costs in
their reply.

Accordingly, Plaintiffs’ request will be reduced

by $4,425.00, and they will be awarded $21,687.07 in costs.
IV.

Conclusion
For

the

foregoing

reasons,

Plaintiffs’

motion

for

attorneys’ fees and costs will be granted in part and denied in
part.

Plaintiffs will be awarded $258,390.67 in attorneys’ fees

and $21,687.07 in costs.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

20