Saman v. LBDP, Inc. et al
Filing
41
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/6/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ROSA SAMAN
:
v.
:
Civil Action No. DKC 12-1083
:
LBDP, INC., et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this wage and
hour law case is a motion for attorneys’ fees and costs filed by
Plaintiff Rosa Saman.
briefed,
and
necessary.
the
Local
(ECF No. 34).
court
Rule
now
rules,
105.6.
The issues have been fully
no
For
hearing
the
being
following
deemed
reasons,
Plaintiff’s motion will be granted in part and denied in part.
I.
Background
Plaintiff brought claims under the Fair Labor Standards Act
(“FLSA”), the Maryland Wage and Hour Law (“MWHL”), the Maryland
Wage
Payment
and
Collection
Act
(“MWPCL”),
and
for
wrongful
termination against Defendants LBDP, Inc. d/b/a La Baguette De
Paris,
Unyoung
Lee,
and
unpaid wages and bonuses.
Edward
Sokvary,
seeking
to
recover
The original complaint alleged that,
from August 23, 2009 through February 25, 2012, Plaintiff worked
as an hourly employee at LBDP.
owners
and
operators
of
LBDP
Ms. Lee and Mr. Sokvary were
who
“created,
maintained
and
administered” the company’s employment policies; had “the power
to
hire
and
fire
employees”;
controlled
“handle[d]
payroll
responsibilities.”
Plaintiff
alleged
that,
scheduling;
(ECF
throughout
her
No.
1
¶
employment,
and
3).
she
“typically work[ed] between 55-65 hours per week and sometimes
was required to work in excess of 100 hours per week,” but
“Defendants refused to pay [her] at the rate of one-and-one half
(1½) times her regular rate of pay for hours worked per week in
excess of forty (40).”
(Id. ¶¶ 12, 15).
Defendants filed a partial motion to dismiss, arguing that
the complaint failed to state a claim under the MWPCL and that
the
court
lacked
supplemental
jurisdiction
state law wrongful termination claim.
over
Plaintiff’s
(ECF No. 9).
Plaintiff
voluntarily dismissed her MWPCL claim (ECF No. 12), but opposed
Defendants’ motion to the extent it sought dismissal of her
wrongful
termination
claim
(ECF
No.
13).
In
a
Memorandum
Opinion and Order filed on November 7, 2012, the court dismissed
Plaintiff’s
wrongful
matter jurisdiction.
termination
claim
for
lack
of
subject
(ECF Nos. 16 & 17).
On November 21, 2012, Defendants filed their answer to the
complaint.
(ECF
No.
18).
Concurrently
with
their
answer,
Defendants sought an order staying all discovery and referring
the
case
to
a
United
States
2
Magistrate
Judge
for
early
mediation.
(ECF No. 19).
After Plaintiff indicated that she
did not oppose mediation (ECF No. 22), the case was referred to
Magistrate Judge Charles Day on December 10, 2012 (ECF No. 23).
On February 4, 2013, Plaintiff’s unopposed motion for leave to
file an amended complaint that corrected a misnomer was granted.
(ECF Nos. 25 & 26).
On April 9, 2013, the parties participated in a settlement
conference before Judge Day.
On or about May 3, 2013, the
parties executed a settlement agreement that resolved both this
lawsuit
and
a
second
lawsuit
filed
by
Plaintiff
against
Defendants in the Circuit Court for Montgomery County, Maryland,
which asserted a claim for abusive discharge.
The
settlement
Plaintiff
agreement
$28,000
to
provided
settle
her
that
FLSA
(ECF No. 28-3).1
Defendants
and
MWHL
will
claims.
pay
The
settlement agreement also requires Defendants to pay Plaintiff
for attorneys’ fees and costs incurred in prosecuting her FLSA
claims, in an amount to be determined by this court following
Plaintiff’s
costs.
court
submission
(Id. ¶ 2d).
approved
the
of
a
motion
requesting
such
fees
and
In a Memorandum Opinion and Order, the
settlement
agreement,
providing
Plaintiff
fourteen (14) days to file a motion for attorneys’ fees and
1
The state case is captioned Rosa Saman v. LBDP, Inc., et
al., No. 370562-V.
3
costs.
(ECF Nos. 32 & 33).
Plaintiff filed such a motion on
June 24, 2013, requesting $34,098 in attorneys’ fees and $477.68
in costs.
(ECF No. 34).
On July 11, 2013, Defendants filed an
opposition, objecting only to the attorneys’ fees (ECF No. 35),
and Plaintiff replied on July 26, 2013 (ECF No. 36).
Plaintiff
sought additional fees incurred in preparing the reply, to which
Defendants moved for leave to file a surreply to challenge this
request.
The court granted this request (ECF No. 39), and the
Defendants filed their surreply on November 1, 2013 (ECF No.
40).
II.
Analysis
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.”
attorneys’
fees
claims
mandatory.
is
and
29 U.S.C. § 216(b).2
costs
“The
to
employees
amount
of
who
the
The payment of
prevail
on
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 attorneys’ fees and costs. See
Md. Code Ann., Lab. & Empl. § 3–427 (“If a court determines that
2
The parties agreed that Plaintiff is deemed to be the
“prevailing party” for purposes of the attorneys’ fees and cost
provisions of the FLSA. (ECF No. 28-3 ¶ 2d).
4
an employee is entitled to recovery in an action under this
section, the court may allow against the employer reasonable
counsel fees and other costs.”).
“The most useful starting point for determining the amount
of a reasonable fee is the number of hours reasonably expended
on
the
litigation
multiplied
by
a
reasonable
hourly
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
is commonly known as the “lodestar” method.
This approach
Grissom v. The
Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008).3
what
constitutes
“reasonable”
rate,
a
“reasonable”
numerous
number
factors
may
rate.”
of
In deciding
hours
prove
and
a
pertinent,
including:
(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;
3
Maryland courts also use the “lodestar” method
determining attorneys’ fees under fee-shifting statutes.
e.g., Friolo v. Frankel, 373 Md. 501, 504-05 (2003).
5
when
See,
and (12) attorneys’ fees awards in similar
cases.
Robinson v. Equifax Info. Servs., 560 F.3d 235, 243–44 (4th Cir.
2009) (quoting Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28
(4th Cir. 1978)).4
“[T]he burden rests with the fee applicant to
establish the reasonableness of a requested rate.”
Id. 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
4
The Supreme Court of the United States recently appeared
to question the approach adopted by the United States Court of
Appeals for the Fourth Circuit in Kimbrell's - originally set
out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974) - describing it as an “alternative” to the
lodestar method and explaining that it provides too little
guidance for district courts and places too great of an emphasis
on subjective considerations. See Perdue v. Kenny A., 559 U.S.
542,
551-52
(2010)
(“[T]he
lodestar
method
is
readily
administrable, and unlike the Johnson approach, the lodestar
calculation is objective, and thus cabins the discretion of
trial judges, permits meaningful judicial review, and produces
reasonably predictable results.” (internal citations omitted)).
Nonetheless, “the Johnson factors, as opposed to the Johnson
method,
are
still
relevant
in
informing
the
court’s
determination of a reasonable fee and a reasonable hourly rate”;
“[Perdue] cautions against using a strict Johnson approach as
the primary basis for determining reasonable attorneys’ fees,
but nowhere calls into question the idea of using relevant
Johnson factors in helping to come to a reasonable fee.”
Spencer v. Cent. Servs., LLC, No. CCB–10–3469, 2012 WL 142978,
at **5–6 (D.Md. Jan. 13, 2012) (internal quotations marks and
citations omitted).
6
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 (internal quotation marks
omitted).
Plaintiff’s attorneys are: Mr. Scott Mirsky, a partner at
the law firm of Bromberg Rosenthal in Rockville, Maryland; Ms.
Sherry
Zangueneh,
an
associate
of
the
same
firm;
Kimberly Jones, a paralegal of the same firm.
that
they
following
spent
hourly
122.8
rates:
hours
$300
on
for
Zangueneh, and $90 for Ms. Jones.
this
case
Mr.
and
Ms.
They represent
and
Mirsky,
request
$150
for
(ECF No. 34-1, at 3).
the
Ms.
The
122.8 hours was divided among the three in the following manner:
106.6 for Mr. Mirsky, 13.7 hours for Ms. Zangueneh, and 0.7
hours for Ms. Jones.
(ECF No. 34-5).5
Defendants dispute both
the hourly rates and the hours expended.
These issues will be
considered in turn.
A.
Hourly Rate
Plaintiff submits an affidavit by Mr. Mirsky in support of
the requested rate.
Mr. Mirsky avers that he is a partner with
the firm with extensive experience in employment disputes, who
has been practicing law for over fifteen years.
5
Ms. Zangueneh
Plaintiff’s attorneys are not seeking fees for 1.8 of the
122.8 hours worked. (ECF No. 34-5).
7
is an associate with the firm who has practiced law for seven
years and has assisted Mr. Mirsky in many previous employment
law
cases.
In
support
of
their
requested
hourly
rates,
Plaintiff’s attorneys submit that Mirsky, Zangueneh, and Jones’s
proposed rates in this case are identical to the rates Bromberg
Rosenthal charge to all of its clients who retain the firm on an
hourly basis and within the court’s guidelines regarding hourly
rates.
(ECF
Nos.
34-1,
at
3;
34-3
¶¶
5-6);
Local
Rules,
Appendix B.6
Defendants argue that Mr. Mirsky’s $300/hour billing rate
is
unreasonable,
$275/hour.7
They
and
argue
instead
that
request
the
reason
an
hourly
why
an
rate
of
experienced
attorney is justified in receiving a high rate is because his
very experience will result in economies of time due to the lack
of need for extensive background legal research.
(ECF No. 35,
6
The guidelines provide that lawyers admitted to the bar
for fifteen (15) years or more have an hourly rate between $275
and $400.
The hourly rate of lawyers admitted to the bar for
five (5) to eight (8) years is $165 to $250. Paralegals’ hourly
rate is between $95 and $115.
The local rules point out that
“[t]hese rates are intended solely to provide practical guidance
to lawyers and judges when requesting, challenging and awarding
fees. The factors established by case law obviously govern over
them.”
7
In a petition filed October 21, 2011 – only five months
before he began work on this case – Mr. Mirsky stated that his
hourly rate was $275/hour. Zhou v. Metro. Life Ins. Co., No. AW
09-1516, ECF No. 44.
8
at 14 (citing Buffington v. Balt. Cnty., Maryland, 913 F.2d 113,
(4th
130
Cir.
1990)).
According
to
the
Defendants,
such
efficiencies were not present here, as evidenced by Plaintiff’s
attorneys claiming 122.8 hours on what Defendants characterize
as
a
“straightforward”
FLSA
case.
Additionally,
Defendants
point to the absence of any supporting affidavits from counsel
in
the
community
that
the
amount
appropriate for a case of this type.
of
time
expended
was
(Id.).
Defendants seem to be confusing the prevailing rate for
work of this type with the prevailing amount of hours worked for
such straightforward FLSA cases.
Plaintiff
latter.
to
produce
evidence
There is a requirement on
only
of
the
former,
not
the
Plaintiff’s attorneys do not need to employ a fellow
practitioner to go through the record and determine what would
be an appropriate amount of time spent.
Nevertheless,
short.
There
attorney’s
own
is
Plaintiff’s
a
submission
requirement
affidavits,
the
that,
fee
as
“[i]n
to
rate
addition
applicant
must
falls
to
the
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, 902 F.2d at 277, such as “affidavits of other
local lawyers who are familiar both with the skills of the fee
applicants
and
more
generally
with
9
the
type
of
work
in
the
relevant community,” Robinson, 560 F.3d at 245.
Plaintiff was
explicitly reminded of this requirement in an earlier opinion in
this case, (ECF No. 32, at 15-17), but she failed to follow the
opinion’s clear roadmap.
Accordingly, Mr. Mirsky’s hourly rate
will be reduced to $275/hour.
B.
Hours Worked
In terms of the hours worked, Plaintiff’s attorneys 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
done.
(See ECF No. 34-4).
stages:
Case
Practice,
Development,
Alternative
Preparation.
They divide the litigation into six
Pleadings,
Dispute
Discovery,
Resolution,
and
Fee
Motions
Petition
Defendants object to the amount of work done at
each stage.
As an initial matter though, it is necessary to consider
the
relationship
unsuccessful
of
claims.
Plaintiff’s
In
cases
successful
where
some
claims
of
a
with
her
plaintiff’s
claims prevail and others fail, the court must subtract hours
spent on those unsuccessful claims that are “distinct in all
respects from his successful claims. . . .
Where a lawsuit
consists of related claims, a plaintiff who has won substantial
relief should not have his attorney’s fee reduced simply because
the
district
court
did
not
adopt
10
each
contention
raised.”
Hensley, 461 U.S. at 440.
A claim is distinctly different if it
is “based on different facts and legal theories.”
Id. at 434.
Plaintiff was unsuccessful in this court on two claims:
MWPCL
and
wrongful
termination.
The
former
was
voluntarily
dismissed by Plaintiff and this court dismissed the latter for
lack
of
subject
sufficiently
matter
related
to
jurisdiction.
Plaintiff’s
The
MWPCL
successful
FLSA
claim
and
is
MWHL
claims.
All three involve Plaintiff’s wages and Defendants’
payment,
or
lack
thereof,
of
those
wages
to
Plaintiff.
Therefore, the MWPCL claim is not so distinct that any work
performed
on
it
will
be
subtracted
from
the
eligible
hours
worked.
The
distinct.
wrongful
termination
claim,
however,
is
entirely
That claim arises from Plaintiff’s allegation that
Defendants terminated her employment for obtaining a temporary
restraining order against a fellow employee after he allegedly
assaulted her.
(ECF No. 1 ¶¶ 16-19).
This is entirely distinct
from her wage and hour claims and will be subtracted from the
hours worked.
Plaintiff’s attorneys acknowledge that they are
not entitled to fees for work on the wrongful termination claim
and represent that they have “endeavored to only include billing
items related to Ms. Saman’s overtime claims.”
10).
(ECF No. 34-3 ¶
A review of the attorneys’ itemized time records reveals
11
that many of the entries specifically reference work done on the
FLSA claim or work undertaken after November 7, 2012, the day
the
wrongful
there
are
termination
many
entries
claim
before
was
dismissed.
November
7,
Nevertheless,
2012
reference specifically work on an overtime claim.
that
do
not
While it may
be unrealistic to expect an attorney to keep records so finely
detailed that he could confidently represent exactly how many
seconds of a telephone call were spent on one facet of a case as
opposed
to
another,
the
law
is
clear
that
attorneys’
fees
incurred for work entirely distinct to the successful claims
shall
not
indication
be
that
exclusively,8
exacted
on
awarded.
a
all
an
entry
Therefore,
was
twenty-five
hours
claim was dismissed.9
worked
in
concerned
(25)
the
absence
with
overtime
percent
before
the
reduction
wrongful
of
an
claims
will
be
termination
This figure reflects the fact that one of
Plaintiff’s four claims was unsuccessful and entirely distinct
and it is not entitled to attorneys’ fees.
8
For example, “Continued drafting demand letter; Reviewed
client’s time cards; Worked on spreadsheet of hours; Telephone
calls to client regarding time cards.” (ECF No. 34-4, at 2).
9
For example, “Telephone call to client regarding status.”
(ECF No. 34-4, at 4).
12
1.
Case Development10
Plaintiff seeks fees for thirty-nine hours at this stage of
the litigation, divided as follows: 36.1 hours for Mr. Mirsky,
1.9 hours for Ms. Zangueneh, and 0.7 hours for Ms. Jones.11
During this phase, the attorneys represent that they met with
Plaintiff, reviewed payroll documents, performed legal research
and
investigated
the
facts
of
the
case
and
Defendants.
Additionally, they met with Defendants’ former counsel in an
10
Defendants criticize Plaintiff’s attorneys for engaging
in “block-billing.” Block-billing is “a list of multiple tasks
performed within a single time entry that does not identify the
portion of work performed on each included task,” Miller v. U.S.
Foodservice, Inc., No CCB-04-1129, 2006 WL 2547212, at *1 (D.Md.
Aug. 30, 2006), such as the March 2, 2012 entry: “Initial
meeting with client; Legal research regarding FLSA issue;
Reviewed documents from client,” (ECF No. 34-4, at 2).
Defendants’ objection has some merit but not nearly the force
they desire.
Miller involved a situation where only certain
fees were reimbursable. Judge Blake criticized plaintiff’s use
of block-billing because it made it impossible to tell how much
time was spent on uncovered work, especially where the
corresponding descriptions of the work performed were vague
(e.g., “emails”). 2006 WL 2547212, at *2. In the present case,
many of Defendants’ claims of block-billing can be distinguished
by the fact that the multiple tasks, while lumped together in
one entry, are more descriptive than those in Miller and all
connect to Plaintiff’s successful FLSA claim, for which
Plaintiff shall collect reasonable attorneys’ fees.
To the
extent that a work description is either unclear as to which
aspect of the case it concerns, or concerns work done on the
entire case, a 25% reduction will be taken for such work done
before the wrongful termination claim was dismissed on November
7, 2012.
11
Plaintiff’s attorneys are not seeking fees for 0.3 hours
worked at this stage.
13
attempt to settle the case.
They submit that part of the hours
incurred was due to the fact that Defendants’ payroll system
calculated work in fifteen-day periods.
As FLSA violations are
based on work done weekly, Plaintiff’s attorneys had to examine
each pay stub Plaintiff received in her two and a half year
employment and convert the time worked to a weekly figure.
(ECF
No. 34-1, at 6-7).
As an initial matter, those time entries that involve work
performed before November 7, 2012 in furtherance of the entire
case will be reduced by 25% for the reasons discussed above.
Only Mr. Mirsky did such work at this stage of the litigation
and his hours will be reduced from 36.1 to 29.1.
Turning to Defendants’ objections, they first object to the
number of telephone calls, emails, and meetings with Plaintiff.
A review of the frequency and length of these interactions does
not reveal unreasonable practices.
Second,
Defendants
argue
that
Mr.
Mirsky
undertook
an
excessive amount of legal research given the relative simplicity
of this case and his many years of experience in employment law.
Also,
Defendants
Mirsky
to
bill
contend
his
that
hourly
it
rate
was
to
inappropriate
convert
sheets when he has a paralegal at his disposal.
19-20).
14
for
Plaintiff’s
Mr.
time
(ECF No. 35, at
According to the time records, Mr. Mirsky spent fifteen
hours performing legal research.12
nature
of
this
case
and
Mr.
Given the straightforward
Mirsky’s
self-acknowledged
experience in employment law matters, this is an unreasonably
long amount of time and his hours will be reduced accordingly.
Additionally, there is no reason why Mr. Mirsky needs to bring
his legal expertise (and correspondingly high hourly rates) to
bear on the job of deciphering Defendants’ time-sheets.
While
they go to the heart of Plaintiff’s injury, it is a task that
requires no legal skill and should have been assigned to Mr.
Mirsky’s paralegal.
period
will
Zangueneh
be
will
Accordingly, Mr. Mirsky’s hours for this
reduced
remain
from
at
an
1.9
adjusted
26.1
hours
and
Ms.
hours
drafting
to
Jones
16.
will
Ms.
be
credited with 3.7 hours.
2.
Mr.
Pleadings
Mirksy
spent
12.9
the
original
complaint, the amended complaint, and reviewing and analyzing
the Defendants’ answer.
same tasks.
Ms. Zangueneh spent 2.4 hours on the
(ECF No. 34-1, at 7-8).
Defendants argue that
there is no indication Plaintiffs subtracted time spent on their
12
This number is not precise as some of the entries include
tasks that were not legal research (e.g., initial client
meeting; factual investigation).
The hours worked for such
entries are included in their entirety in the fifteen hour
figure.
15
dismissed
claims,
nor
is
it
reasonable
to
spend
four
hours
amending a complaint where the amendments consist of deleting
dismissed claims and correcting a defendant’s name.
(ECF No.
35, at 21).
Plaintiff’s time records do not indicate that the hours
spent on the pleadings before the dismissal of the wrongful
termination claim on November 7, 2012 were spent exclusively on
wage and hour claims.
25%.
Therefore, those hours will be reduced by
This leads to 10.2 hours for Mr. Mirsky and 2.2 hours for
Ms. Zangueneh.
Further, Defendants are correct that spending four hours –
divided between Mr. Mirsky (2.2 hours) and Ms. Zangueneh (1.8
hours) – on the amended complaint is unreasonable.
In their own
motion to amend the complaint, Plaintiff avers that they wish to
amend the complaint to correct one of the Defendant’s names due
to a scrivener’s error.
substantive
claims.
change,
along
(ECF No. 25).
with
(See ECF No. 25-2).
deleting
That was the only
the
two
dismissed
It is reasonable to expect Ms.
Zangueneh to handle this task in one hour.
Consequently, Mr.
Mirsky’s credited hours for this stage will be reduced a further
2.2 hours to 8.0 hours total and Ms. Zangueneh’s credited hours
will be reduced a further 0.8 hours to 1.4 hours total.
16
3.
Discovery
Plaintiff
discovery.
requests
This
6.1
work
hours
included
for
Mr.
preparing
Mirsky’s
work
interrogatories
on
for
each Defendant; a request for document production; and requests
for
admission
Plaintiff
served,
for
each
acknowledges
but
they
Defendant.
that
were
the
“prepared
(ECF
discovery
so
they
No.
34-1,
at
8).
documents
were
not
could
sent
out
be
immediately upon the Court’s issuance of a Scheduling Order.”
(Id.).
Plaintiff argues that this was reasonable because at the
time the discovery requests were being prepared, resolution of
the claims appeared very unlikely and thus discovery could open
at any moment and they needed to be prepared.
(Id.).
The discovery work was reasonable and Plaintiff’s request
will be granted in full for this portion of the case.
When
Plaintiff
that
was
preparing
discovery,
it
was
foreseeable
discovery would open at some time in the future, even after
Defendants
filed
a
motion
to
dismiss
part
of
Plaintiff’s
complaint.
See Kabore v. Anchor Staffing, Inc., No. L-10-3204,
2012 WL 5077636, at *8 (D.Md. Oct. 17, 2012) (“Counsel are not
expected to assume that a case will settle and should not be
penalized for planning ahead.”).
17
4.
Motions Practice
Mr. Mirsky requests 9.1 hours and Ms. Zangueneh requests
2.1 hours for this portion of the litigation, which included
their review of Defendants’ settlement offers and drafting a
response to Defendants’ motion to mediate.
10).
Defendants
object,
arguing
that
(ECF No. 34-1, at 9it
is
excessive
for
Plaintiff to expend 2.7 hours crafting a two-page response to a
motion to mediate, which was devoid of any legal analysis.
(ECF
No. 35-1, at 22-23).
Plaintiff’s request will be reduced in two ways.
First,
Defendants’ settlement offers were for all claims, including the
ultimately
unsuccessful
termination claim.
and
entirely
distinct
unlawful
Accordingly, work performed before November
7, 2012 will be reduced by 25%.
Second, Plaintiff’s work on
their response to Defendants’ motion to mediate will be reduced
by half to reflect the short and straightforward nature of the
response.
(See ECF No. 22).
Therefore, Mr. Mirsky will be
granted 6.8 hours and Ms. Zangueneh 0.9 hours.
5.
Alternative Dispute Resolution
Plaintiff’s attorneys represent that they spent 26.5 hours
in the ADR portion of this litigation, divided as follows: 24.7
for Mr. Mirsky and 1.8 for Ms. Zangueneh.
Plaintiffs
prepared
for
mediation;
18
During this phase,
drafted
a
letter
to
Magistrate
Judge
Day
outlining
their
case’s
strengths
and
weaknesses; participated in mediation; attempted to resolve the
remaining fee issue with Defendants; and met with Plaintiff to
explain the proposed settlement.
Defendants
argue
that,
once
excessive amount of hours.
record
leads
reasonable.
to
the
(ECF No. 34-1, at 10-11).
again,
Plaintiff
has
billed
an
But a review of Plaintiff’s time
conclusion
that
the
hours
worked
was
The mediation was the most important part of this
litigation as it lead to the ultimate resolution which avoided
discovery, further motions, and perhaps a trial, all of which
would have led to greater attorneys’ fees.13
The hours will be
reduced by 25%, however, for work done before November 7, 2012
that was not exclusively on the wage and hour issues.
Following
the reduction, Mr. Mirsky will be awarded 24.4 hours of work and
Ms. Zangueneh 1.8 hours.
6.
Drafting of Fee Petition
Finally, Plaintiff’s attorneys request 17.7 hours for Mr.
Mirsky and 5.5 hours for Ms. Zangueneh for researching case law
on attorneys’ fees and preparing the fee request.
Defendants’
contend that they agreed to litigate only those fees incurred as
13
Defendants point out that the entry “11/14/2012: SMZ:
Additional Work on discovery requests: 1.50 hours” is more
properly put under the “Discovery” heading.
They are correct,
but the billing remains reasonable and will be considered in
computing reasonable hours for the ADR stage of litigation.
19
of the April 9, 2013 mediation date.
litigate “fees on fees.”
incurring
position
excessive
that
Defendants argue that Plaintiff is
hours,
Plaintiff
There was no agreement to
keeping
has
made
with
this
their
FLSA
overarching
case
much
more
complicated than it needed to be in order to extract a large
bounty of attorneys’ fees.
(ECF No. 35, at 24).
These objections are unpersuasive.
support
for
their
assertion
that
they
Defendants provide no
only
agreed
to
fees
incurred up to the date of mediation and it is settled law in
this
circuit
that
a
party
can
recover
preparing a motion for attorneys’ fees.
F.2d 650, 652 (4th Cir. 1987).
expenses
incurred
in
Ganey v. Garrison, 813
On the other hand, a review of
Plaintiff’s time record indicates that the hours worked are not
reasonable.
support
Particularly
for
the
hourly
where
rate,
counsel
and
the
failed
to
declaration
provide
and
fee
petition overlap, Mr. Mirsky will be credited with 10 hours.
Finally, Plaintiff requests an additional 6.8 hours for Mr.
Mirsky and 2.3 hours for Ms. Zangueneh to account for their
preparation
of
the
Reply
to
Defendants’
Plaitniff’s Motion for Attorneys’ Fees and Costs.
2, at 2).
Opposition
to
(ECF No. 36-
Defendants filed a surreply challenging this request.
They repeat their argument that their settlement agreement was
silent on fees but produce an email from Mr. Mirsky where he
20
says that “[o]ur fee petition will seek fees associated with
preparing the petition.”
(ECF No. 40-1, at 1).
According to
Defendants, this indicates that Plaintiff is deviating from his
prior position because the reply is not part of the petition.
This argument is unpersuasive.
As discussed above, it is
established law that attorneys can recover fees incurred when
preparing their fee petition.
Defendants cite no authority for
the proposition that the reply is not part of that motion.
A
review of Plaintiff’s billing in preparing the reply indicates
that the hours worked are reasonable and not overly redundant,
excessive, or unnecessary and will be granted in full.
7.
In
Total Hours Worked
sum,
Mr.
Mirsky
is
credited
with
78.1
hours.
Ms.
Zangueneh is credited with 13.8 hours and Ms. Jones is credited
with 3.7 hours.
At their respective billing rates, this leads
to a lodestar figure of $23,880.50.
C.
Additional Johnson Factors
No further adjustment of the lodestar is necessary.
All of
the Johnson factors were considered, many of which were subsumed
in the rate and hour analysis.
The other factors point in
opposing directions and counsel against any further adjustment.
This
FLSA
case
was
not
complex,
counseling
in
favor
of
reduction, but Plaintiff reached a large settlement, receiving
21
$28,000
to
settle
her
FLSA
claims
which
$33,000 (ECF No. 36-1; ECF No. 32, at 4).
she
valued
at
over
Such a high degree of
success counsels against reduction, especially where the Fourth
Circuit
has
instructed
that
“the
most
critical
factor
in
calculating a reasonable fee award is the degree of success
obtained.”
(internal
Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998)
quotations
omitted).
Defendants
complain
that
Plaintiff unnecessarily put three members of the firm on this
case, but in truth, this case was handled almost exclusively by
Mr. Mirsky, who accounted for eight-two percent of the credited
hours.
In any event, it does not follow that simply because a
contingent
of
lawyers
worked
on
a
case
suspect, even in a relatively simple case.
it
is
automatically
The concern would
arise only if that army of lawyers overlitgated the case beyond
what is reasonable.
Such objections are valid but are better
evaluated in terms of how much time was spent on the matter,
instead of how many lawyers contributed to the effort.
Such an
evaluation was done in the preceding sections, and Plaintiff’s
billable hours were reduced where it was appropriate.
Finally,
Defendants provide multiple cases where the court awarded a much
smaller fee for a similarly simple case.
(See ECF No. 35, at
27-28 (discussing Nelson v. A&H Motors, Inc., No. JKS-12-2288,
2013 WL 388991 (D.Md. Jan. 30, 2013); Azam-Qureshi v. The Colony
22
Hotel,
Inc.,
540
F.Supp.2d
1293
(S.D.Fla.
2008)).
As
highlighted by Plaintiff though, both of those cases involved
much smaller claims where the litigation was not as protracted.
As discussed above, a review of Plaintiff’s time record does not
reveal any overly redundant, excessive, or unnecessary billing
beyond that which has been subtracted from the fee award.14
D.
Costs
Plaintiff’s
costs,
including
attorneys
filing
also
fees,
seek
$477.68
process
for
services,
litigation
and
postage.
District courts have discretion to determine the costs that will
be taxed in FLSA cases.
Roy v. Cnty. of Lexington, S.C., 141
F.3d 533, 549 (4th Cir. 1998).
“those
reasonable
Costs that may be charged include
out-of-pocket
expenses
incurred
by
the
attorney which are normally charged to a fee-paying client, in
the course of providing legal services.”
F.2d 762, 771 (4th Cir. 1988).
Plaintiff’s
attorneys
appear
Spell v. McDaniel, 852
Here, the expenses requested by
to
be
reasonable
and
typical.
Defendants have not objected to an award of costs and they will
be awarded in full.
14
To the extent Defendants wish to use their fees incurred
as a tool of comparison, they will not be considered as it is
not relevant to an examination of an opposing party’s fee
request. Nelson, 2013 WL 388991, at *2 n.4.
23
III. Conclusion
Plaintiff’s motion for attorneys’ fees and costs will be
granted in part and denied in part.
Judgment will be entered in
favor of Plaintiff and against Defendants for the amount of
$24,358.18.
Defendants also requested that the court provide
for extended payment terms because they are a small business.
Plaintiff
payment
in
automatic
opposes
ten
this
(10)
fourteen
request
days.
(14)
day
and
seeks
Once
a
stay
is
an
judgment
in
order
directing
is
entered,
an
effect
pursuant
to
Federal Rule of Civil Procedure 62(a).
Post-judgment interest
accrues pursuant to 28 U.S.C. § 1961.
The court declines to
make any adjustments.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
24
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