Salinas et al v. Commercial Interiors, Inc. et al

Filing 180

REPORT AND RECOMMENDATIONS re 170 MOTION for Attorney Fees filed by William Ascencio, Mario Salinas, Franklin Henriquez, Bernaldino Salinas. Signed by Magistrate Judge Gina L Simms on 6/8/2018. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
(SOUTHERN DIVISION)

Mario Salinas, et al.,
Plaintiffs,
v.
Commercial Interiors, Inc., et al.,
Defendants.

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Civil Case No. 8:12-cv-1973-PWG

REPORT & RECOMMENDATIONS
This “Report and Recommendations” addresses the “Motion for Attorneys’ Fees” and the
memorandum in support of the same (ECF Nos. 170, 175) and “Bill of Costs” (ECF No. 171)
filed by Plaintiffs.
Pursuant to 28 U.S.C. § 636, and Local Rule 301.5(b), the Honorable Paul W. Grimm
referred this matter to me to issue a report and make recommendations. I believe that the issues
have been fully briefed, and do not believe that a hearing is necessary. L.R. 105.6. As set forth
more fully below, I ultimately recommend that the Court grant the Motion for Attorneys’ Fees
and award costs.
I.

Procedural Background
This protracted litigation began almost six years ago on July 2, 2012, when Plaintiffs

filed a Complaint against Defendant Commercial Interiors, Inc. (“Commercial”) and J.I. General
Contractors, Inc. (“J.I.”), alleging violations of the Fair Labor Standards Act (“FLSA”), the
Maryland Wage and Hour Law (“MWHL”), and the Maryland Wage Payment and Collection
Law (“MWPCL”). (ECF No. 1). Plaintiffs initially intended to bring the action individually, as

a collective action under the FLSA, and as a Class Action under Fed. R. Civ. P. 23(b)(3). See id.
Class and collective action certifications were ultimately denied (ECF No. 67), and Plaintiffs
filed a Second Amended Complaint on March 31, 2014 with five remaining individuals. (ECF
No. 78).
On June 13, 2014, Commercial filed a motion for summary judgment, asserting, in
relevant part, that Commercial is not liable as a “joint employer.” (ECF No. 86). On July 11,
2014, Plaintiffs filed a cross-motion for partial summary judgment “seeking a determination that
Commercial is jointly liable.” (ECF No. 87). The Honorable Frederick J. Motz entered an order
and memorandum opinion granting Commercial’s motion and denying Plaintiffs’ motion. (ECF
Nos. 93, 94). A three-day bench trial with J.I., the remaining Defendant, resulted in judgment in
favor of Plaintiffs. (ECF No. 105). The parties subsequently briefed the first of Plaintiffs’
motion for attorneys’ fees and bill of costs, (ECF Nos. 110, 111), and the Court granted a partial
award of fees and costs on May 6, 2015. (ECF No. 121).
Plaintiffs filed a motion for reconsideration as to Commercial’s joint employer status
with Judge Motz. 1 (ECF Nos. 95, 122). Plaintiffs filed an appeal in the United States Court of
Appeals for the Fourth Circuit (“Fourth Circuit”) of the order granting Commercial’s motion for
summary judgment. (ECF No. 124). The Fourth Circuit reversed and remanded on January 26,
2017, finding for Plaintiffs, and established a new six-factor test to determine whether an
employer is a joint employer under the FLSA. (ECF No. 125). On remand, Plaintiffs filed a
motion for summary judgment against Commercial on the joint employer issue, (ECF No. 133),
which was granted by Judge Motz on June 19, 2017. (ECF No. 140). Plaintiffs promptly moved
for an award of attorneys’ fees and costs as the prevailing party.

1

(ECF No. 143, 144).

After a review of the record, it appears that there was no ruling on this motion.
2

Commercial subsequently moved for reconsideration based on a discovery irregularity, which
was granted. (ECF No. 141, 152). Plaintiffs then withdrew their motion for attorneys’ fees for
Plaintiffs’ motion for summary judgment against Commercial. (ECF No. 154).
Plaintiffs filed a motion for reconsideration of the order granting Commercial’s motion
for reconsideration (ECF No. 152) on August 15, 2017, ECF No. 157, which the parties fully
briefed. This case was then reassigned to the Honorable Paul W. Grimm, who granted Plaintiffs’
motion for reconsideration on November 13, 2017 following a status conference. (ECF No.
168). Plaintiffs filed the instant motion for attorneys’ fees and bill of costs. (ECF No. 170, 171).
The matter was referred to me to author a Report and make recommendations. (ECF No. 172).
II.

Attorney’s Fees and Costs
A.

Legal Standard

The payment of attorney’s fees and costs to employees who prevail on FLSA claims is
mandatory, 29 U.S.C. § 216(b), 2 while the amount awarded is discretionary. See Randolph v.
Powercomm Construction, Inc., 715 Fed. App’x 227, 230 (4th Cir. 2017); Burnley v. Short, 730
F.2d 136, 141 (4th Cir. 1984). To recover attorney’s fees and costs, a plaintiff must be a
“prevailing party,” a threshold question for which the Court accords a “generous formulation.”
Hensley v. Eckerhart et al., 461 U.S. 424, 433 (1983). 3 A plaintiff is a prevailing party for the
purpose of an attorney’s fees award if the plaintiff succeeds “on any significant issue in litigation
which achieves some of the benefit . . . sought in bringing suit.” Id. (citation omitted).

2

In an FLSA action, “[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).
3

Although Hensley explains the standards of “prevailing party” under 42 U.S.C. § 1988,
Hensley extends the standards to “all cases in which Congress has authorized an award of fees to
a ‘prevailing party,’” Hensley, 461 U.S. at 433 n.7, and its standards are therefore pertinent to an
award of fees under the FLSA.
3

Where a Plaintiff is a prevailing party, a court must then determine what fee is
reasonable. Hensley, 461 U.S. at 433. To do so, courts engage in a three-step process. First, a
court must calculate the lodestar, “the number of reasonable hours expended times a reasonable
rate.” Randolph, 715 Fed. App’x at 230 (citing McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir.
2013)). To determine what is reasonable in the lodestar calculation, a court is bound to apply the
factors set forth in Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717–19 (5th Cir.
1974). See id. These twelve factors are the following:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the skill requisite to perform the legal service properly; (4) the preclusion of
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.
Id. (“Johnson factors”).
Second, per Randolph, the second step requires a district court to subtract fees for hours
spent on unsuccessful claims unrelated to successful ones. 715 Fed. App’x at 230. In that regard,
a court must adjust the number of hours to delete duplicative or unrelated hours, and the number
of hours must be reasonable and represent the product of “billing judgment.” Rum Creek Coal
Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994). Third, a court should award “some
percentage of the remaining amount, depending on the degree of success enjoyed by the
plaintiff.” Randolph, 715 Fed. App’x at 230 (citing to McAfee, 738 F.3d at 88).
An attorney’s fees award that is greater than the amount of judgment is not unusual.
There is no rule that requires proportionality between the amount of judgment and fee award
under civil rights statutes. See Nelson v. A & H Motors, Inc., No. 12-2288, 2013 WL 388991,
at *2 (D. Md. Jan. 30, 2013) (citing City of Riverside v. Rivera, 477 U.S. 561, 573–81 (1986)).
4

The FLSA is a civil rights statute. See id. at *2, n.3 (citing CBOCS West, Inc. v. Humphries, 553
U.S. 442, 454 (2008)). The Supreme Court has opined that a rule requiring proportionality
would “seriously undermine Congress’ purpose” and prevents victims who frequently cannot pay
counsel at market rates from effective access to the justice system. Riverside, 477 U.S. at 576;
see also id. at *2. The Fourth Circuit has accordingly recognized that “[a]wards of attorney’s
fees substantially exceeding damages are not unusual in civil rights litigation.” Nelson, 2013
WL 388991, at *2 (citing Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 328 n.20 (4th Cir.
2006)). Proportionality, then, is considered “only to the extent that amount is relevant to the
Johnson factor of amount in controversy and results obtained.” Id.
This Court’s Local Rules state, in relevant part, “a bill of costs shall be filed within
fourteen (14) days of the entry of judgment.” L.R. 109.1. Further, “a party objecting to any
requested costs shall submit a memorandum in opposition to the request within the time
permitted by L.R. 105.2.” Id.
B.

Plaintiffs’ Motion for Attorney’s Fees

Plaintiffs’ motion requests attorney’s fees in the amount of $312,911.53. (ECF No. 175
at 1). This number is predicated on 996.89 hours of work after a purported write off of 153.91
hours. Id. at Ex. 2. Plaintiffs’ motion requests the following:
(a)

Written discovery: 88.12 hours, including a twenty-percent reduction to account
for any additional overlap between compensable and non-compensable work.
Plaintiffs aver written discovery “was essential to revealing the nature of
Defendants’ relationship and establishing Commercial as Plaintiffs’ joint
employer.” Id. at 14.

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(b)

Depositions: 108.01 hours, including a thirty-percent reduction and excluding
duplicated work of a second attorney.

Plaintiffs made this discount “in

recognition of the fact that a portion of deposition time was also spent inquiring
into Plaintiffs’ pre- and post-shift work claims, which were ultimately not
successful.” Id. at 15.
(c)

Motions practice: 352.49 hours, including a ten percent reduction “in an exercise
of up-front billing discretion,” and excluding “time spent on motions for which
Plaintiffs were unsuccessful” and “time that was either redundant or unrelated to
Plaintiffs’ success against Commercial.” Id. at 16.

(d)

Hearings: 28.15 hours for preparation for and/or attendance at three hearings,
excluding a hearing regarding withdrawal of J.I.’s counsel and second attorney
time for one hearing. See id.

(e)

Fee petition preparation:

127.25 hours spent preparing the instant motion,

including ten hours set aside for a reply. See id. at 17.
(f)

Appeal: 270.84 hours spent on appeal, including a twenty-percent reduction and
excluding 77.35 hours in “up-front billing discretion.” Id. at 17–18. 4

In support of the motion, Plaintiffs submitted a record of hours billed by each attorney for
specific tasks, four declarations, two affidavits, and four additional documents relating to the
appeal. (See ECF No. 175-1) (“Index of Exhibits”). According to Plaintiffs, they “narrowly
tailored” the fee request “to exclude any amounts for those aspects of the litigation as to which
they were unsuccessful.” (ECF No. 175 at 13).

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Plaintiffs excluded hours worked in the following phases of litigation: (1) case
development, investigation, and administration; (2) pleadings; (3) trial preparation and post-trial
motions; (4) trial; and (5) alternative dispute resolution. Id. at 13–17.
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In addition, Plaintiffs also represent that they excluded any duplicative billing consistent
with Appendix B of this Court’s Local Rules, as well as any bills for work covered by the
previous fee award (ECF No. 121). See id.
Plaintiffs contend that they set forth attorney and paralegal rates that are within the range
prescribed by the Court’s Local Rules and supported these rates with attorney declarations. See
id. at 18–19, Exs. 2–7; L.R. Appendix B. Furthermore, Plaintiffs conducted their own analysis
of the requested rates and hours pursuant to the Johnson factors, asserting that Plaintiffs’
requested amount of attorney’s fees is reasonable. (ECF No. 175 at 19–27).
Finally, Plaintiffs aver, in part, that the Randolph “step two is already subsumed within
Plaintiffs’ lodestar calculation,” and that further downward adjustment is not warranted in
Randolph’s step three. Id. at 28–29.
C.

Commercial’s Opposition

In its Opposition to Plaintiffs’ Motion for Attorney’s Fees (ECF No. 178), Commercial
asserts that Plaintiffs’ degree of success is minimal, and thereby maintains that their attorney’s
fees request is disproportionate to the damages Plaintiffs recovered. Commercial specifically
contends: (1) Plaintiffs did not prevail on the class and collective certification actions; (2)
Plaintiffs did not prevail on two out of three of their claims in the Second Amended Complaint
(the pre- and post- shift claims); (3) because Plaintiffs only recovered a small amount relative to
the amount in controversy, the number of attorney work hours is unjustified; (4) too many
attorneys and paralegals worked on Plaintiffs’ case (ten and three, respectively); (5) Plaintiffs
recovered only a fraction of the amount allegedly in controversy (Plaintiffs “recovered from
Commercial less than one half of one percent of the amounts they claimed on behalf of these
plaintiffs;” “recovered from Commercial less than one ten thousandth of the amount allegedly in

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controversy when they filed this action, as a class and collective action;” and collected only eight
percent of the amount claimed for the five plaintiffs); and (6) attorney’s fees at 300 times the
amount of recovery is unreasonable because it is disproportionate. (ECF No. 178 at 7–9).
In addition, Commercial claims that although the Fourth Circuit’s decision “was
displeasing to Commercial, it is hardly the earth shaking decision plaintiffs claim.” Id. at 9.
Next, Commercial avers that “success” means economic benefit to the Plaintiffs. Id. at 9.
Commercial advances these arguments as it performs its own analysis of the Johnson
factors, as explained more fully below. Id. at 10–17. It is worth noting that in its Opposition,
Commercial fails to mention steps two or three of the Randolph process. Nor does Commercial
mention a dollar amount or a percentage by which this Court should reduce Plaintiffs’ attorney’s
fees. Id.
D.

Plaintiffs’ Reply to Commercial’s Opposition

Plaintiffs filed a reply brief, maintaining that: (1) they seek fees only for issues on which
they attained total success; (2) proportionality arguments like Commercial’s have been squarely
rejected; (3) they recovered for compensable injuries that distinguish their case from nominal
awards recovered in civil rights cases; (4) even plaintiffs who recover a relatively modest
statutory amount are entitled to reasonable attorney’s fees; and (5) the Johnson factors support
the full award of the attorney’s fees requested. (ECF No. 179).
III.

Analysis and Findings
A.

Motion for Attorney’s Fees
1.

Plaintiffs are a Prevailing Party

As an initial matter, I find that Plaintiffs are indisputably a prevailing party under the
meaning of the FLSA. Hensley, a leading Supreme Court case on the prevailing party issue, is

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instructive. In dicta, the Hensley Court opines that there are cases where “the plaintiff’s claims
for relief will involve a common core of facts.” Hensley, 461 U.S. at 435. In such cases,
counsel’s time will be “devoted generally to the litigation as a whole, making it difficult to
divide the hours expended on a claim-by-claim basis.” Thus, in awarding attorney’s fees, the
district court should focus on “the significance of the overall relief obtained by the plaintiff in
relation to the hours reasonably expended on the litigation.” Id.
I now address Commercial’s first, second, and fifth arguments as summarized previously
(see supra, Part II.C.), which in essence amounts to an assertion that Plaintiffs are not a
prevailing party.
First, I find that Commercial’s contention that Plaintiffs were unsuccessful on the class
and collective action claims misses the mark. Similarly, Commercial’s focus on the unsuccessful
claims against both J.I. and Commercial are also misplaced for this attorney fee petition. The
prior fee award received by Plaintiffs related to these unsuccessful claims (see generally ECF
No. 121), whereas this fee petition relates to the success of Plaintiffs’ claim against Commercial
subsequent to a change in the joint employer law. 5
Here, I find that Plaintiffs seek attorney’s fees solely for the joint employer issue, which
was ultimately taken up on appeal. On appeal, judgment in favor of Commercial was reversed,
and, on remand, this issue was decided in favor of Plaintiffs. It was after this successful appeal
that Plaintiffs sought the maximum amount allowable under the statute, $1,041.00, which was so

5

In Commercial’s Opposition, Commercial even concedes that the previous fee award
addressed these unsuccessful claims. See ECF No. 178 at 16–17 (noting that Judge Motz
“determined that plaintiffs were not entitled to bring this action as a class action nor as a
collective action . . . [and] that more than 99% of the monetary claims brought on behalf of these
plaintiffs against both defendants were not valid” before he “considered plaintiffs’ fee petition”
and made the previous fee award).
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awarded. (See ECF Nos. 157, 168). In sum, as to this single issue—the only issue to which the
instant fee petition applies—Plaintiffs were successful and are the prevailing party.
2.

Johnson Factors Analysis

I also find that the twelve Johnson factors weigh in favor of finding that Plaintiffs’
attorney’s fees are reasonable. Commercial does not actually dispute the following factors: (1)
the skill requisite to perform the legal service properly; (2) the preclusion of employment by the
attorney due to acceptance of the case; (3) the customary fee; (4) whether the fee is fixed or
contingent; (5) time limitations imposed by the client or the circumstances; (6) the experience,
reputation, and ability of the attorneys; or (7) the nature or length of the professional relationship
with the client. (See ECF No. 178 at 10–15). I have reviewed the Index of Exhibits and
pleadings, and find that Plaintiffs have complied with the Local Rules and the relevant law
analyzing these factors.
As to the remaining factors, I will address each in turn.
a.

Time and labor required

Commercial objects to the amount of time and labor expended; in particular, Commercial
notes that ten attorneys and three paralegals devoted time to this case. Id. at 10. A review of
Plaintiffs’ submission reveals this assertion as true; however, I find that many of these attorneys
worked only a limited number of hours on the case as support for the main attorneys. This
staffing arrangement is not unreasonable. The time and labor expended demonstrates an overall
efficiency over six years of litigation.
Next, Commercial contends that Plaintiffs improperly include billing entries for
discovery that “relate wholly or in part to JI and issues involving JI” in their motion for
attorney’s fees. Plaintiffs aver that J.I.-focused discovery was properly included as essential to

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proving Commercial’s joint employer status. Id. at 11. This factual scenario is analogous to
Andrade v. Aerotek, 852 F. Supp. 2d 637, 643 (D. Md. 2012), where Aerotek disputed billing
entries relating to “interrogatories, document production, depositions, deposition preparation, or
other discovery-related work” that was the basis for all of plaintiffs’ claims, both successful and
unsuccessful. In that case, the Honorable Catherine C. Blake held that it did not matter that the
information obtained in discovery was used for both successful and unsuccessful claims. There,
Judge Blake awarded fees in part because the plaintiffs “directly relied on information obtained
during discovery to make their successful . . . claim.” Id. I find that the discovery in the instant
case was necessary to establish any joint employer relationship between J.I. and Commercial.
Although discovery necessarily focused on issues beyond the joint employer issue, I find that
Plaintiffs’ additional reduction of twenty percent for these billing entries accounts for any
potential overlap among issues.
b.

Compare Rum Creek, at 175.

Novelty and difficulty of the questions

Contrary to Commercial’s assertions, I next find that the decision on appeal was an
important one, as the Fourth Circuit established a new test for determining whether a joint
employer relationship exists. See Salinas v. Commercial Interiors, Inc., 848 F.3d 125, 140–41
(4th Cir. 2017) (“But unlike many of our Sister Circuits, we have not identified specific factors
courts should consider in determining whether a joint employment relationship exists . . . In light
of this confusion . . . we now set forth our own test for determining whether two persons or
entities constitute joint employers for purposes of the FLSA.”). This factor thus weighs in favor
of Plaintiffs’ fee award.

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c.

Amount involved and the results obtained

Plaintiffs claim that the amount in controversy is $1,041.00, i.e., the amount sought after
remand after the Fourth Circuit appeal. Commercial incorrectly asserts that the amount in
controversy is from “[e]arlier in the litigation” or “at plaintiffs’ initial filing” ($352,956.40 and
two million to 3.2 million dollars, respectively). ECF No. 178. I find that the amount sought
after remand is the amount in controversy. See Part III.A.1, supra. In light of this finding, I
further find that Plaintiffs obtained excellent results with a $1,041.00 recovery on the total
$1,041.00 sought.
Commercial’s proportionality argument, see Part II.C.(5)–(6), is that Plaintiffs only
recovered a fraction of the amount allegedly in controversy. This proportionality argument must
also fail because in FLSA cases, attorney’s fees awards are frequently disproportionate to the
amount recovered. See Jones v. Southpeak Interactive Corp. of Del., 777 F.3d 658, 676 (4th Cir.
2015) (“A court may consider whether a fee award seems reasonable in light of the amount of
damages awarded. However, ‘a substantial disproportionality between a fee award and a verdict,
standing alone, may not justify a reduction in attorney’s fees.’”) (quoting McAfee, 738 F.3d at
94); see also Reyes v. Clime, No. PWG-14-1908, 2015 WL 3644639, at *4 (D. Md. June 8, 2015)
(noting that disproportionality is common in FLSA actions, “where vulnerable plaintiffs may be
vindicating important rights that entitle them to relatively modest compensation.”); see also
Nelson, supra, at *2.
As stated above, because of Plaintiffs’ remarkable appellate success, this factor weighs in
favor of Plaintiffs’ award.

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d.

“Undesirability” of the case

Commercial disagrees with Plaintiffs that FLSA cases with a joint employer issue are less
desirable, but offers no evidence to rebut Plaintiffs’ declarations stating otherwise. I find that
Plaintiffs have met their burden, and that prior to Jacobson v. Comcast Corp., 740 F. Supp. 2d
683 (D. Md. 2010), lawyers were reluctant to accept such FLSA cases. Accordingly, this factor
weighs in favor of Plaintiffs.
e.

Awards in similar cases

Similarly, to counter Plaintiffs’ motion, Commercial cites to multiple examples of fee
awards in FLSA cases, purportedly arguing that none of these cases are similar to this case where
the amount of attorney’s fees sought is three hundred times the amount recovered by Plaintiffs.
(ECF No. 178 at 16). Plaintiffs cite to cases where attorneys have received fees significantly
larger than what Plaintiffs recovered. (See ECF No. 175 at 27–28) (citing, e.g., Andrade, supra,
for its $110,115.94 award on a $13,940.08). None of the cases cited involve plaintiffs who
achieve success on appeal and cause a change in the standard for determining whether two
employers have a joint employer relationship. I find that the cases Plaintiffs cite, in combination
with their success on appeal, support a finding that the fees sought are reasonable.
3.

Randolph: Step Two and Three Analysis

I have reviewed all of the billing records listed in Part II.B. I find that they reflect work
pertaining to the joint employer issue, or that Plaintiffs have otherwise appropriately reduced
hours to account for any potential overlap on related issues with a common core of facts except
for as set forth below. See Hensley, 461 U.S. at 435 (“Where a plaintiff has obtained excellent
results, his attorney should recover a fully compensatory fee.”).

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Plaintiffs aver that their preemptive discount of $58,059.97 absolves the court from
engaging in what I call a step two or step three Randolph analysis of the amount of fees
requested.

See id. at 14–18, 28 (“Any further subtraction at step two would thus be

unwarranted.”). I find that the Court should make some modifications.
For the reasons explained below, I will further adjust certain entries on the submitted
billing records:
Billing Record Number
275
306
311
394
412
413
414
502
555
559
560

Original Amount
$592.00
$1425.00
$1698.00
$840.00
$3,357.50
$175.00
$1650.00
$75.00
$525.00
$150.00
$37.50

Adjusted Amount
$0.00
$1187.00
$1244.00
$0.00
$197.50
$0.00
$1500.00
$0.00
$262.50
$0.00
$0.00

Entry 275 has no description, and seems duplicative of 276. It has been stricken.
(a)

Entries 306 and 311 exceed the allowable maximum travel time to be compensated
at the full attorney’s rate. I have recalculated the total to reflect two hours at the
full rate and the excess charged at half of the attorney’s rate. See L.R. Appendix B
(explaining compensable travel times).

(b)

Entry 394 has an insufficient description and has been stricken.

(c)

Entries 412, 413, and 414 seem to all refer to the same intra-office conference call,
which lasted 0.5 hours. Entry 412 erroneously bills 8.5 hours. I adjusted 412 to
reflect the proper amount of time by deducting 8 hours. To avoid charging three
attorneys’ time for the conference call billed to the most senior attorney in entry

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412, I subtracted 0.5 hours from entry 414 and struck entry 313 in its entirety.
See id.
(d)

Entry 502 and 559 reflect a more junior attorney or paralegal charging for the same
intra-office conference call. They have been stricken entirely.

(e)

Entry 555 is partially duplicative of an attorney’s charge for an intra-office
conference call in 556. The duplicative time has been stricken.

(f)

Entry 560 is duplicative of 561 and has been stricken in its entirety.

(g)

In total, I make a downward adjustment of $6,134.00 based on my own review of
the records.

In sum, I find that the requested fees are reasonable and that no further downward
adjustments are necessary. I have multiplied the number of reasonable hours expended by the
reasonable rates for each attorney as instructed by Randolph, and followed the other Randolph
requirements. I ultimately recommend a total attorney’s fees award of $306,777.53.
B.

Bill of Costs

Plaintiffs submitted a bill of costs totaling $9,485.95: $1,062.00 from the Fourth Circuit
mandate (relating to the opening brief, joint appendix, and reply brief) and the remaining
$8,423.95 in deposition transcript costs. (See ECF No. 171; ECF No. 130). I find that Plaintiffs’
bill of costs is supported by an accompanying affidavit from Ryan E. Griffin, Esq. and the
appropriate invoices. (See ECF No. 171; L.R. 109.1(b)). Commercial filed an opposition to the
bill of costs, making three arguments: (1) the costs related to the mandate were untimely; (2)
Plaintiffs are not entitled to deposition transcript costs for depositions appended as exhibits to
motions that they lost; and (3) Plaintiffs are not a “prevailing party” under Fed. R. Civ. P. 54.
See ECF No. 173 at 2. These arguments lack merit.

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First, as mentioned in Part III.A.1, supra, Plaintiffs are clearly the prevailing party under
Fed. R. Civ. P. 54.
Next, with regard to Commercial’s second argument, I find that Plaintiffs not only relied
on these deposition transcripts for their unsuccessful motions, but also for their successful
motions against Commercial related to the joint employer issue. (See ECF No. 171-2 at 1, Ex.
1). I find that Plaintiffs’ use of the same transcripts as exhibits to a losing motion is irrelevant, as
they relied on them for the joint employer issue. I therefore find the $8,423.95 in deposition
transcript costs appropriate.
Finally, the amount on the bill of costs related to the mandate was timely filed
($1,062.00). Local Rule 109.1(a) has two parts. First, the rule provides that “a bill of costs shall
be filed within fourteen (14) days of the entry of judgment, or of the entry of an order denying a
motion, filed under Fed. R. Civ. P. 50(b), 52(b), or 59.” L.R. 109.1(a). The rule then says that
“[a] bill of costs incurred on appeal taxable in this Court should be filed within fourteen (14)
days of the issuance of the mandate by the Court of Appeals or, in the event of review by the
Supreme Court, within fourteen (14) days of the entry of judgment by the Supreme Court.” Id.
In this case, the judgment was entered on November 13, 2017, and the bill of costs was filed on
November 28, 2017. Thanksgiving was on November 23, 2017. The costs at issue are taxable to
the appellee, not to this Court. See id.; see also Fed. R. App. P. 39(a)(3) (“[I]f a judgment is
reversed, costs are taxed against the appellee”). Because Plaintiffs filed fourteen days after the
entry of judgment, I find that the bill of costs was timely filed.
Accordingly, I find and recommend that Plaintiffs be awarded $9,485.95 in costs.

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IV.

Conclusion

In sum, I respectfully recommend that the Court:
1) award Plaintiffs $306,777.53 in attorney’s fees; and
2) award Plaintiffs $9,485.95 in costs.

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Dated: June _, 2018

/s/
The Honorable Gina L. Simms
United States Magistrate Judge

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