McFeeley et al v. Jackson Street Entertainment, LLC et al
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.
Civil Action No. DKC 12-1019
JACKSON STREET ENTERTAINMENT,
LLC, ET AL.
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.
For the following reasons, Plaintiffs’ motion will
be granted in part and denied in part.
Additional background can be found in the United States
judgment for Plaintiffs.
See McFeeley v. Jackson Street Entm’t,
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
(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).
granted in part and denied in part Plaintiffs’ motion to dismiss
Plaintiffs amended their complaint for a second time to add
individuals who had opted-in to the certified class.
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.
(See ECF No. 87).
Plaintiffs and against Defendants; jointly and severally for a
(ECF No. 93).
attorney’s fees and costs.
(ECF No. 101).
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
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.
(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.”
29 U.S.C. § 216(b).
The payment of
however, is within the sound discretion of the trial court.”
Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984).
also allows for the recovery of attorney’s fees and costs.
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.,
courts to consider what are known as the Johnson factors, which
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
attorney and client; and (12) attorneys’ fees awards in similar
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
is “‘clearly wrong’ or committing an ‘error of law.’”
Id. at 88
(quoting Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998)).
“[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
Id. at 244, 245 (internal quotation marks
regarding reasonable hourly rates that vary depending on how
long an attorney has been admitted to the bar.
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.
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
Plaintiffs also submit declarations from Mr.
(ECF Nos. 136-3; 136-4).
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,
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
performed prior to the appropriate month in 2014.
provided and the guidelines in the Local Rules.
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).
the removed entries appear to be for work done on behalf of
In the end, Plaintiffs seek recovery for
624.4 hours of work.
A close review of the billing
As Plaintiffs note, eight removed hours are for work
performed in relation to their motion to compel, for which they
have already been compensated.
This collective action stretched over more than
four years and was defended aggressively by Defendants.
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
Accordingly, after modifying the billing rates as
Adjustments to the Lodestar
To the extent that any Johnson factors remain after the
determination of the lodestar, none support a reduction.
ECF No. 136, at 9-15); see also Andrade v. Aerotek, Inc., 852
Johnson factors “are subsumed in the rate and hour analysis).
solely on behalf of dismissed 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
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
See Jackson v. Estelle’s Place, LLC, 391 F.App’x
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
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.
Moreover, the FLSA is “a statute
standards’ for employees, including those marginalized workers
achieve adequate wages,” such as Plaintiffs.
3191896, at *8.
McFeeley, 2016 WL
Plaintiffs’ success helped secure the rights
protected by the FLSA for themselves and others.
no reduction to the lodestar is warranted, particularly because
Defendants did not oppose Plaintiffs’ motion.
be awarded $166,963.00 in attorney’s fees.
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.
Cnty. Of Lexington, S.C., 141 F.3d 533, 549
. . .
[C]osts charged to
(4th Cir. 1998).
reasonable out-of-pocket expenses incurred
by the attorney which are normally charged
to a fee-paying client, in the course of
McDaniel, 852 F.2d 762, 771 (4
Types of costs charged to losing defendants
include “necessary travel, depositions and
court costs, and photocopying.”
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.
In addition, the Local Rules
reimbursement for official government travel in effect at the
time the expense was incurred.”
Local Rule, App’x B.
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
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.
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.
attorney’s fees and costs will be granted in part and denied in
Judgment will be entered in favor of Plaintiffs in the
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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