McFeeley et al v. Jackson Street Entertainment, LLC et al

Filing 140

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/15/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LAURA MCFEELEY, ET AL.
:
v.

:

Civil Action No. DKC 12-1019

:
JACKSON STREET ENTERTAINMENT,
LLC, ET AL.

:

MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor Standards Act (“FLSA”) case is an unopposed motion for
attorney’s fees and costs filed by Plaintiffs.

(ECF No. 136).

The court now rules, no hearing being deemed necessary.
Rule 105.6.

Local

For the following reasons, Plaintiffs’ motion will

be granted in part and denied in part.
I.

Background
Additional background can be found in the United States

Court

of

Appeals

for

the

judgment for Plaintiffs.
LLC,

--F.3d--,

2016

WL

Fourth

Circuit’s

opinion

affirming

See McFeeley v. Jackson Street Entm’t,
3191896

(4th

Cir.

June

8,

2016).

Plaintiff Laura McFeeley initiated this collective action under
the FLSA and the Maryland Wage and Hour Law (“MWHL”) by filing a
complaint on April 3, 2012, which was amended to add a second
named plaintiff.

(ECF Nos. 1; 3).

Defendants Jackson Street

Entertainment, LLC; Risque, LLC; Quantum Entertainment Group,

LLC; Nico Enterprises, Inc.; XTC Entertainment Group, LLC; and
Uwa Offiah (collectively, the “Defendants”) answered the amended
complaint and asserted counterclaims.

(ECF No. 4).

The court

granted in part and denied in part Plaintiffs’ motion to dismiss
the

counterclaims.

(ECF

Nos.

12;

13).

On

May

6,

2013,

Plaintiffs amended their complaint for a second time to add
individuals who had opted-in to the certified class.
31).

(ECF No.

After the court granted Plaintiffs’ motion for partial

summary judgment (ECF Nos. 56; 57), the remaining issues went to
trial in February 2015.

Following a three-day jury trial, the

jury returned verdicts as to the amount of compensatory damages
to which each plaintiff is entitled.
February

10,

2015

the

court

(See ECF No. 87).

entered

judgment

in

favor

On
of

Plaintiffs and against Defendants; jointly and severally for a
total

amount

of

$265,276.50,

liquidated damages.
On

May

19,

which

included

compensatory

and

(ECF No. 93).

2015,

Plaintiffs

attorney’s fees and costs.

filed

a

(ECF No. 101).

motion

to

recover

After the Defendants

filed an appeal with the Fourth Circuit, this court stayed the
action and deferred ruling on Plaintiffs’ motion until after the
adjudication of the appeal.

(ECF No. 123).

On April 13, 2016,

the undersigned granted in part and denied in part a motion to
compel, for contempt, and for sanctions filed by Plaintiffs and
awarded Plaintiffs $1,800.00 in attorney’s fees for work related
2

to the motion.

(ECF No. 134).

On June 8, the Fourth Circuit

affirmed the judgment in favor of Plaintiffs.

(ECF No. 135).

On June 21, Plaintiffs filed the pending motion for attorney’s
fees and costs, which requests $170,970.00 in attorney’s fees
and $6,903.96 in costs.

(ECF No. 136).

Defendants have not

responded and the time to do so has passed.

On July 8, the

Fourth Circuit denied Defendants’ petition for a rehearing en
banc, and the mandate was issued July 18.
II.

(ECF Nos. 138; 139).

Standard of Review
In any action under the FLSA, “[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 the action.”
attorney’s

fees

claims

mandatory.

is

and

costs

29 U.S.C. § 216(b).
to

“The

employees
amount

of

The payment of

who

prevail

on

the

attorney’s

FLSA
fees,

however, is within the sound discretion of the trial court.”
Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984).

The MWHL

also allows for the recovery of attorney’s fees and costs.

See

Md. Code Ann., Lab. & Empl. § 3–427.
“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.,
3

LLC,

560

F.3d

reasonableness,

235,
the

243
Fourth

(4th

Cir.

2009)).

Circuit

has

In

instructed

assessing
district

courts to consider what 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)).

“Next, the court must

‘subtract fees for hours spent on unsuccessful claims unrelated
to successful ones.’

Finally, the court should award ‘some

percentage of the remaining amount, depending on the degree of
success enjoyed by the plaintiff.’”
F.3d at 244).

Id. (quoting Robinson, 560

The Fourth Circuit has noted that a district

court’s determination of attorney’s fees should stand unless the
district court abused its discretion by reaching a decision that
4

is “‘clearly wrong’ or committing an ‘error of law.’”

Id. at 88

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

The

Id. at 244, 245 (internal quotation marks

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; $165300 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.
5

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

Gregg Greenberg (5-9 years admitted to the bar during
the course of this litigation): $295



Michael Amster (3-7 years): $295



John McDonough (3-7 years): $250



Amy DiBiasio (1-4 years): $225



Jason Friedman (1-4 years): $225



Paralegals and law clerks: $135

(ECF No. 136, at 8-9).

Plaintiffs argue that the rates are

reasonable because they fall within the guidelines in the Local
Rules.

(Id.).

Amster,

their

Maryland

Plaintiffs also submit declarations from Mr.
lead

attorney,

requested rates.
Because

counsel,
to

and

support

Mitchell
the

L.

Batt,

reasonableness

a

local

of

the

for

the

(ECF Nos. 136-3; 136-4).

Plaintiffs

provide

sufficient

support

requested billing rates and because their motion is unopposed,
the rates will, in large part, be granted.

The rates of Mr.

Amster and Mr. McDonough, however, will be reduced for a portion
of the hours spent on this action.

Mr. Amster was admitted to

the bar in September 2009 and Mr. McDonough was admitted in
December 2009, which means that they were admitted to the bar
for less than five years until September and December 2014,

6

respectively.
requested

rates

(ECF
are

No.

136-3,

within

¶¶

the

1-2).

Although

guidelines

for

an

their

attorney

admitted to the bar for five to eight years, they are higher
than the guidelines for someone admitted less than five years,
and Plaintiffs do not articulate why a higher rate is justified
for

the

Amster

entire
and

Mr.

time

period.

McDonough

Accordingly,

will

be

reduced

the
to

rate
$225

performed prior to the appropriate month in 2014.
requested

rates

are

reasonable

in

light

of

the

for
for

Mr.
work

All other
declarations

provided and the guidelines in the Local Rules.
2.

Hours Worked

Plaintiffs provide itemized time records that list the date
of the work, who performed the work, the time spent, a brief
description of the work, and the litigation phase for which the
work was performed.

(ECF No. 136-1).

Mr. Amster asserts that

Plaintiffs’ counsel worked a total of 655.1 hours on this case
and exercised billing judgment by eliminating 30.7 hours for
“excessive or unnecessary work.”

(ECF No. 136-3 ¶ 6).

Many of

the removed entries appear to be for work done on behalf of
dismissed plaintiffs.2

In the end, Plaintiffs seek recovery for

624.4 hours of work.

(Id.).

records

reveals

that

the

A close review of the billing
number

2

of

hours

requested

is

As Plaintiffs note, eight removed hours are for work
performed in relation to their motion to compel, for which they
have already been compensated.
7

reasonable.

This collective action stretched over more than

four years and was defended aggressively by Defendants.

It

presented some relatively novel employment law issues, included
multiple parties on both sides, and ultimately went to trial and
was heard on appeal in the Fourth Circuit.

In short, this was a

fairly complex case that required counsel to spend significant
time

litigating,

reasonable.
discussed

in

and

Plaintiffs’

request

of

624.4

hours

is

Accordingly, after modifying the billing rates as
the

preceding

section,

the

lodestar

figure

is

$166,963.00.
B.

Adjustments to the Lodestar

To the extent that any Johnson factors remain after the
determination of the lodestar, none support a reduction.

(See

ECF No. 136, at 9-15); see also Andrade v. Aerotek, Inc., 852
F.Supp.2d

637,

646

(D.Md.

2012)

(noting

that

“most”

of

the

Johnson factors “are subsumed in the rate and hour analysis).
Furthermore,

Plaintiffs

have

removed

the

solely on behalf of dismissed plaintiffs.

hours

spent

working

Finally, Plaintiffs’

level of success supports awarding the full lodestar amount.
The Fourth Circuit has described the analysis of the level of
success 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
8

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.”
239,

243

See Jackson v. Estelle’s Place, LLC, 391 F.App’x
(4th

Cir.

2010).

As

the

Fourth

Circuit

recently

articulated, a court should “reduce the award if ‘the relief,
however significant, is limited in comparison to the scope of
the litigation as a whole.’

. . . What the court must ask is

whether ‘the plaintiff achieve[d] a level of success that makes
the hours reasonably expended a satisfactory basis for making a
fee award.’”

Doe v. Ray, --F.App’x--, 2016 WL 4191505, at *9

(4th Cir. Aug. 9, 2016) (quoting Hensley v. Eckerhart, 461 U.S.
424, 434, 436 (1983)).
Here, Plaintiffs recovered a significant amount in damages,
including liquidated damages.
which

Congress

thought

was

Moreover, the FLSA is “a statute
necessary

to

provide

‘fair

labor

standards’ for employees, including those marginalized workers
unable

to

exert

sufficient

leverage

or

bargaining

achieve adequate wages,” such as Plaintiffs.
3191896, at *8.

power

to

McFeeley, 2016 WL

Plaintiffs’ success helped secure the rights

protected by the FLSA for themselves and others.

Accordingly,

no reduction to the lodestar is warranted, particularly because
Defendants did not oppose Plaintiffs’ motion.
be awarded $166,963.00 in attorney’s fees.
9

Plaintiffs will

C.

Costs

Plaintiffs seek to recover $6,903.96 in litigation costs.
In support of their request, Plaintiffs provide an itemized list
detailing each cost (ECF No. 136-2) as well as Mr. Amster’s
declaration attesting to the accuracy and reasonableness of the
costs (ECF No. 136-3 ¶ 9).
[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.
provide

that

“[m]ileage

is

In addition, the Local Rules
compensable

at

the

rate

of

reimbursement for official government travel in effect at the
time the expense was incurred.”

Local Rule, App’x B.

The

following requested costs are clear, reasonable, and will be
awarded in their entirety: $55.00 for a tracer invoice; $88.50
for mileage; $5.32 for postage for correspondence with defense
counsel;

a

$350.00

filing

fee;

10

$2,806.67

for

expert

witness

fees;

and

$3,173.79

for

deposition

transcripts.

Postage

requested for correspondence to the dismissed plaintiffs will
not be awarded.

The following entries are vague or unclear and

will not be awarded because the court is unable to determine
their reasonableness: “ck 3359;” “Circuit Court for PG County;”
and “Largo, Maryland 20774.

Deposition.”

See Andrade, 852

F.Supp.2d at 645 (denying a request for certain costs because
the “entries lack[ed] the basic level of detail sufficient for
the court to understand the nature of the costs or why they
should be granted”).

Accordingly, Plaintiffs will be awarded

$6,479.28 in costs.
IV.

Conclusion
For

the

foregoing

reasons,

Plaintiffs’

motion

for

attorney’s fees and costs will be granted in part and denied in
part.

Judgment will be entered in favor of Plaintiffs in the

amount

of

costs.

A separate order will follow.

$166,963.00

for

attorney’s

fees

and

$6,479.28

/s/
DEBORAH K. CHASANOW
United States District Judge

11

for