Randolph v. Powercomm Construction, Inc. et al
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 10/31/2016. (kns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
South em Divisioll
et al., *
Case No.: GJH-13-0I696
INC., et al.,
Presently pending before the Court is Plaintiffs' Motion for Attorney's Fees and Costs,
ECF No. 167, and accompanying Memorandum of Points and Authorities ("Petition Memo"),
ECF No. 168. No hearing is necessary. Local Rule 105.6 (D. Md. 2016). For the following
reasons, Plaintiffs' Motion for Attorney's Fees and Costs will be granted, in part, and denied, in
part. Plaintiffs shall submit a revised request for fees and costs based upon the Court's
determinations set forth in this Opinion.
This case arose from a dispute over whether Defendants PowerComm Construction, Inc.
and PowerComm's owner, David Kwasnik, Sr., paid Plaintiffs, who worked for Defendants as
traftic controllers, the appropriate overtime wages. ECF No. 166 at 1.1 The parties entered a
settlement agreement on December 22,2015, totaling $100,000.02.1d. at 7; ECF No. 156 at 9.
Upon the parties' motion, this Court held a Fairness Hearing on February 18,2016 to determine
I Page cites to documents filed on the Court's electronic filing system (CM/ECF) refer to page numbers generated
by that system.
the fairness of the agreement. See ECF No. 166 at I. The Court approved the settlement
agreement in a Memorandum Opinion dated April 28, 2016. fd. However, the parties were
unable to reach an agreement regarding the attorney's fees, and the Court directed Plaintiffs to
file a motion for attorney's fees within fourteen days. fd. at 9. Plaintiffs filed the instant Motion
for Attorney's Fees and Costs with an accompanying Memorandum, ECF Nos. 167 and 168, on
May II, 2016, and Defendants filed their Response and Opposition Memorandum, ECF No. 170,
on May 27, 2016. Plaintiffs submitted a Supplemental Fee Petition and Reply, ECF No. 171, on
June 7, 2016, and Defendants filed an Opposition Memorandum, ECF No. 172, on June 23,
Plaintiffs request $227,577.50 in attorney's fees, representing 939.60 hours of work, and
$7916.02 in costs (totaling $235,493.52) in their initial Memorandum of Points and Authorities
in Support of Plaintiffs' Petition for Award of Attorneys' Fees and Costs, ECF No. 168 at 15,21.
Plaintiffs request an additional $3, 107.50 in fees to cover their work performed and costs
incurred since May 10,2016, the day before their initial request, in their Supplemental Fee
Petition, ECF No. 171. Therefore, Plaintiffs now seek a total of $238,60 1.02. Plaintiffs submit
detailed time sheets, ECF No. 168-1; ECF No. 168-2, and aver that "The Employment Law
Group, P.e. ... cut any excessive or unnecessary work performed by the Employment Law
Group, P.C., as well as any other billable time in other circumstances where it deemed it
necessary to cut." ECF No. 168 at 14.
In response, Defendants have contested, on various grounds, the hourly rates and number
of hours used in Plaintiffs' calculations. Defendants also disagree with Plaintiffs'
characterization of the "results obtained." Additionally, Defendants claim that Plaintiffs
"breach[ed] the confidentiality of settlement discussions and correspondence in [their] petition,"
and plead the Court to "fully consider this conduct when assessing plaintiffs' counsel's fees."
ECF No. 170 at 1,4. Defendants therefore request that the Court "recalculate the amount of fees
based on the appropriate hourly rates," "subtract(J improper and/or not compensable items from
plaintiffs counsel's hours and costs," and "reduc[e] the fees related to both the unsuccessful
claims and the minimal amount recovered." Id. at 21.
The payment of attorney's fees and costs til employees who prevail on FLSA claims is
mandatory, 29 U.S.C.
while the amount awarded is within the sound discretion of the
trial court. Burnley v. Short, 730 F.2d 136, 141 (4th CiT. 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, 461 U,S. 424, 433 (1983). A plaintiff is a
"prevailing party" for the purpose of attorney's fees if the plaintiff succeeds "on any significant
issue in litigation which achieves some of the benefit the parties sought in bringing suit." Id.
Plaintiffs here obtained payment following the parties' settlement agreement, which was .
affirmed by this Court, and is therefore a "prevailing party" entitled to attorney's fees. See
Nelson v. A&H Motors, Inc., Civil No. JKS 12-2288,2013 WL 388991, at *1 (D. Md. Jan. 30,
2013). This contention is not disputed by the parties.
Having determined that the Plaintiffs are entitled to attorney's fees in this case, the Court
must now determine what fee is "reasonable," Hensley, 461 U.S. at 433 (1983). The most useful
starting point for establishing the proper amount of an award is the "lodestar," or "the number of
hours reasonably expended, multiplied by a reasonable hourly rate." Id.; see also Rum Creek
Coal Sales. Inc. v. Caperton, 31 F.3d 169, 174 (4th CiT. 1994). The 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." Id. at 175 (citing Hensley, 461 U.S. at 437). To
determine the reasonableness of the lodestar and necessary adjustments, the court may also
consider the twelve factors set forth in Johnson v. Georgia Highway Express. Inc., 488 F.2d 714
717-19 (5th Cir. 1974), specifically:
(1) The time and labor required; (2) The novelty and difficulty of the
questions raised; (3) The skill requisite to perform the legal services
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 between the attorney and the client; and (12)
Attorney's fee awards in similar cases.
Id. The party seeking an award of attorney's fees "bears the burden of establishing entitlement to
an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S.
at 437. The party challenging the requested award "bears the burden of explaining its objections
with sufficient detail and specific reference to the plaintiffs time records to allow the court to
evaluate those challenges without itself pouring over the time records searching for unnecessary
charges." Nelson v. A&H Motors, Inc., Civil No. JKS 12-2288,2013 WL 388991, at *3 (D. Md.
Jan. 30. 2013) (citing Rode v. Del/arciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
In determining whether counsel's hourly rates are reasonable, the court must consider
whether "the requested rates are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and reputation." Blum v.
Stenson, 465 U.S. 886, 890 n. 11 (1984). The court may rely on "affidavits from other attorneys
attesting to the reasonableness of the hourly rates," and also the court's "knowledge of the
market." Beyond Sys., Inc. v. World Ave. USA, LLe, No. PJM-08-92I, 2011 WL 3419565 at *3
(D.Md. 2011). In this District, the Court's "market knowledge" is reflected in Appendix B of the
U.S. District Court of Maryland Local Rules, which provides Guidelines Regarding Hourly
Rates based upon length of professional experience, as follows:
(a) Lawyers admitted to the bar for less than five (5) years: $150225.
(b) Lawyers admitted to the bar for five (5) to eight (8) years:
(c) Lawyers admitted to the bar for nine (9) to fourteen (14) years:
(d) Lawyers admitted to the bar for fifteen (15) to nineteen (19)
(e) Lawyers admitted to the bar for twenty (20) years or more:
(I) Paralegals and law clerks: $95-150.
Loc. R. app. B(3) (D. Md. July 1,2016).2 Plaintiffs ask the Court to award their attorneys' fees at
the top end of the Guidelines in each respective category: $475.00 per hour for Nicholas
Woodfield, $425.00 per hour for R. Scott Oswald, $225.00 per hour for associate time, and
$150.00 per hour for law clerk time. ECF No. 168 at II. Plaintiffs' requests are based on the fact
that Mr. Woodfield has been a member of the bar since September 1995 (twenty years of
practice as of September 2015), Mr. Oswald since October 1997 (15-19 years of practice at all
times relevant to the action), Associate Andrea Downing since April 2010 (less than five years of
2 The Court adopted these rates in July 2014. Prior to July 2014 and at all times relevant to this action, the rates
were as follows: (a) Lawyers admitted to the bar for less than five (5) years: $150-190. (b) Lawyers admitted to the
bar for five (5) to eight (8) years: $165-250. (c) Lawyers admitted to the bar for nine (9) to fourteen (14) years:
$225-300. (d) Lawyers admitted to the bar for fifteen (15) years or more: $275-400. (e) Paralegals and law clerks:
S95-115. See Loc. R., app. 3(3) (D. Md. February 1,2013). While some work on this case was performed prior to
July 2014, footnote 6 to Appendix 3 notes that, "One factor that might support an adjustment to the applicable range
is an increase in the cost oflegal services since the adoption of the guidelines." !d. n 6. Therefore, the Court will
apply post-July 2014 Local Guidelines rates to all entries in this case.
practice before April 20 IS), and Associates Andrew Witko since October 2014 and Kenneth
Bledsoe since December 2014 (less than five years at all times relevant to the action). Plaintiffs
also attach the Declaration of Nicholas Woodfield, ECF No. 168-3, the Declaration of Brian
Markovitz in Support of Plaintiffs' Petition for Award of Attorney's Fees and Costs, ECF No.
168-4,3 and a Memorandum Opinion from the Circuit Court for Montgomery County, Maryland,
Balderrama v. Lockheed Marlin, Inc., Case No. 390843-V (Cir. Ct. Mont Co., Md. June 18,
20 IS), in which the Employment Law Group received a favorable judgment and award of
attorney's fees.4 While Plaintiffs seem to propose rates based upon other metrics, such as the
Laffey matrix5 and prevailing rates in the Washington, D.C. metropolitan area, Plaintiffs billed
their time following the Guidelines from the Local Rules, and the Court finds no reason to
deviate from the Guidelines here. See Kabore, 2012 WL 5077636 at *9 (declining to use other
metrics such as Laffey and applying Guidelines from the Local Rules).
Plaintiffs also provide detailed information about Mr. Woodfield and Mr. Oswald's
professional acumen. Mr. Woodfield, a principal at the Employment Law Group, has practiced in
, In his Declaration, Mr. Markovitz, a partner at Joseph, Greenwald & Laake, P.A., a Greenbelt, Maryland-based
litigation law finn, and a member of the Metropolitan Washington Employment Lawyers Association (MWELA),
states his opinion that the rates billed by the Employment Law Group in this case, in accordance with the Local
Guidelines, were "extremely reasonable and consistent with reasonable prevailing market rates," Markovitz Decl.,
ECF No. 168-4 ~ 12.
4 The Circuit Court for Montgomery County found that rates upwards of$600
per hour for partners and $SOO per
hour for associates were reasonable and approved similar rates for Woodfield and Oswald; however, the Court made
clear that this was based upon "the relevant legal community" being "the Washington D.C. metropolitan area, which
includes northern Virginia, Washington D.C., and Montgomery County." Balderrama, at 13-14. This Court is not
bound by the decision in Balderrama, as held previously in Sipe v. Pro)ecl Execulion and Control Consulling, Civil
Action No.: CBD-12-IS79, 2016 WL 893687, at'S (D. Md. March 8, 2016),
5 The Laffey matrix is primarily used by the U.S. Attorney',
Office to calculate rates for attorneys practicing in
Washington, DC. See Kabore v. Anchor Slaffing. Inc., Civil Case No. L-10-3204, 2012 WL S077636, at '9 (D. Md.
Oct. 17,2012); ECF No. 168 at II. In Mr. Woodfield's declaration, Mr. Woodfield states that "Mr. Oswald and I
customarily charge Laffey rates for our time and in every circumstance possible ... However. because this matter
was filed in the District of Maryland, we have billed my time under the Local Rules' Guidelines Regarding Hourly
Rates ... " Woodfield Decl., ECF No. 168-3 ~ 17. Further, in Kabore, this Court noted that the Laffey matrix was not
relevant to a dispute for attorney's fees involving Mr. Woodfield and Mr. Oswald, in part because there was no
evidence that the Laffey matrix was a reliable indicator for legal communities outside Washington D.C. See 20 12
WL S077636 at '9. Accordingly, the Court here declines to use the Laffey matrix in place of the rates set forth in the
the field of state and federal litigation since 1996, focusing his practice primarily on Fair Labor
Standards Act claims. See Woodfield Dec!., ECF No. 168-3 ~, 2, 4. He has secured numerous
favorable verdicts and summary judgments on behalf of his clients. /d. at 4. Mr. Oswald, also a
principal at the Employment Law Group, has been admitted to practice since 1997. /d. at 6. He is
the President Elect of the Metropolitan Washington Employment Lawyers Association, and has
also secured numerous favorable judgments on behalf of his clients./d. Additionally, Plaintiffs
provide detailed information about the relevant experience of their associate attorneys. /d. at 4-5.
The majority of the work on this case was performed in 2013, 2014, 2015, and 2016, as
noted on Plaintiffs' time sheets. See ECF No. 168-1. Work on this case began in April 2013 and
has lasted until the present time. /d. However, it appears that Plaintiffs' counsel has billed all of
their time on this case by current rates and the top end of the guidelines. As Defendants point
out, "for more than two years of billings, 2013 to the end of August 2015, Woodfield should
have been billing at most, $425 (not $475) since the range was $275-425." ECF No. 170 at 13.
While discretionary, another judge on this court has previously applied the hourly rate based on
when counsel actually performed the work, rather than applying the current rate to all hours of
work performed in a case. See Flores v. Hoge, Civil Action No. DKC 15-1988, 2016 WL
2924918 at *5 (May 19,2016, D. Md. 2016) (determining hourly rate by noting that "when
performing the work on this case, the attorneys had been admitted to the bar for approximately
six years."). The Court agrees with Defendants' argument here that Mr. Woodfield should have
been billing at $425 per hour prior to September 2015, because he did not yet have twenty years
of experience. While providing for attorney's fees under the FLSA acts to further the important
purposes of the statute, see Amaya v. Young & Chang, Civil Case No. PWG-14-749, 2014 WL
3671569, at *4 (D. Md. July 22, 2014), "[aJn award of attorney's fees is not designed to provide
Plaintiffs' attorney with a windfall." Almendarez v. J. T.T. Enterprises Corp., Civil No. JKS 0668,2010 WL 3385362 at *4 (D. Md. Aug. 25, 2010).
It is also worth noting that there are two recent decisions from other judges in this
jurisdiction awarding attorney's fees to Mr. Woodfield and Mr. Oswald. In Manna v. Johnny's
Pizza, Inc., No. CCB-13-721, 2014 WL 794357, at *3 (D. Md. Feb. 24, 2014), Judge Blake
applied a rate of$400 for Mr. Woodfield, $350 for Mr. Oswald, $150 for a two-year associate
attorney, and $115.00 for law clerks and assistants. Id. (reducing Oswald's fee to $350 from
Plaintiffs' requested $400 because Oswald had fewer years of experience than Woodfield). Two
years earlier in Kabore v. Anchor StajJing. Inc., No. BEL-I0-3204, 2012 WL 5077636, *10 (D.
Md. Oct. 17,2012), Judge Legg awarded a rate of $400 for Mr. Woodfield, $300 for Mr.
Oswald, and $150 for an associate attorney.
Here, it would be reasonable to apply an hourly rate of$475 for Mr. Woodfield after
September 2015, but the Court will limit the rate to $425 per hour prior to September 2015,
based on his requisite level of experience. Given Judge Chasanow's decision just two years ago
to apply a rate of$400 for Mr. Woodfield, nothing here warrants an increase to $475 for that
same time frame, prior to his twentieth year of practice. See Flores v. Hoge, 2016 WL 2924918
at *5 ("Last year, Mr. Zelikovitz was awarded an hourly rate of$225 performed in an FLSA
case. This case presents no particularly complicated issues that warrant such a sharply increased
rate from one year to the next. Accordingly, a rate of$250 is reasonable."). The Court therefore
applies an hourly rate of$425 for Mr. Woodfield between the commencement of the case and
September 2015, and $475 between September 2015 and the present.
The Court will apply an hourly rate of $400 for Mr. Oswald throughout the entire case, as
he has fewer years of experience than Mr. Woodfield, and was awarded an hourly rate of$350
by this Court just two years ago. Kabore, 2012 WL 5077636 at *3. Likewise, the Court will
apply an hourly rate of$200 for Plaintiffs' associate attorneys, as a second-year associate in the
Kabore case was awarded a rate of $150 just two years ago. Id. The Court accepts Plaintiffs'
proposed rate of$150 for law clerks, Nicole Raviele and Lauren Galloway, as reasonable.
Plaintiffs shall submit a revised fee request, recalculating the entries ofMr. Woodfield based
upon the hourly rate of$425 for hours worked prior to September 2015 and $475 for hours
worked after September 2015, $400 for all entries performed by Mr. Oswald, and $200 for all
. entries performed by Andrea Downing, KerUleth Bledsoe, and Andrew Witko.
C. Reasonable Hours
I. Excessive HOllrs
Defendants contest the number of hours expended on particular tasks. Defendants
disagree, for example, that spending 11.7 hours drafting a complaint, 23.5 hours preparing for
and reading defendants' 30(b)(6) deposition, and 54.9 hours drafting plaintiffs' discovery
responses was reasonable. ECF No. 170 at 7-8. After reviewing Plaintiffs' detailed time sheets
documenting these tasks, the Court first notes that Plaintiffs' counsel sufficiently documented the
individual biller, specific description of each task, and time allotted. See Kabore v. Anchor
Staffing, Inc., No. 10-3204,2012 WL 5077636, at *2 (D. Md. Oct. 17,2012) (noting that
Plaintiffs' counsel, from the Employment Law Group, by "submitt[ing] a 37-page spreadsheet
containing detailed, contemporaneous records of the hours expended by various individuals on
the case ... sufficiently provided the details necessary to justify an award of attorney's fees.").
Given the large number of plaintiffs and protracted litigation in this case, the Court does not find
these hours expended to be unreasonable. See Rando/ph v. PowerComm Constrllction, Inc., GJH13-1696 at 3, 6 (D. Md. Apr. 16,2016) (noting "[s]ince [certification], more than fifty plaintiffs
have opted-in to the collective action" and "the parties have engaged in lengthy, and at times,
contentious litigation for more than two years"). Accordingly, the Court will not deduct hours or
payment for these tasks.
2. Case Evaluation
Defendants also object to the compensability of "case evaluation," or time entries made
before PlaintilTs' counsel had been retained. ECF No. 170 at 8. In particular, Defendants contest
16.0 hours billed before Plaintiffs' counsel held their "transition meeting." Id. at 8-9. In Kabore,
the court noted that "[a]s a general matter, counsel may not receive fees for work that could not
be charged to a private client," and declined to award attorney's fees to the Employment Law
Group before they had been retained, i.e. before a "case transition meeting" was held. 2012 WL
5077636, at *3 (citing Hensley v. Eckerhart,461
U.S. 424, 434 (1983». Here. as in Kabore.
Plaintiffs did not rebut Defendants' argument in their Supplemental Fee Petition and Reply. ECF
No. 171. nor did they proffer "that the work in these entries was done before Plaintiffs' counsel
was retained." /d. at *4. Therefore, the Court will deduct those 16.0 hours.
Defendants object to the payment for "clerical items" and point to nearly a hundred
individual entries in PlaintilTs' time sheets totaling 43.6 hours. "Although certain types of work
may fall into a gray area between legal and secretarial work, other types are clearly
administrative or secretarial. The latter may not be awarded as attorneys' fees." Kabore, 2012
WL 5077636, at *4. The Court has reviewed the entries cited by Defendants, and agrees that the
majority of these entries constitute "clearly administrative" work. For example, Plaintiffs'
counsel bill numerous times for "download[ing), sav[ing), and circulat[ing)" various electronic
files by Associates Kenny Bledsoe and Law Clerk Nicole Raviele. See. e.g., ECF No. 168-1 at
882.6 In Kabor~, the court found that "reviewing, downloading, and
circulating a paperless order" was "unreasonable" to recover as attorney's fees. Additionally, this
Court concurs that entries such as "[ s]tum~d, stamped, and printed 55 mailings to clients" for
2.20 hours, id. at No. 1445, "[ c]alendared meeting with NWW re MSJ and Discovery" for 0.10
hours, id. at No. 1217, and "[ s]canned 7 verilication forms from opt-ins" for 0.20 hours, id. at
No. 791, are "clearly administrative." A few entries, however, are not clearly administrative. For
example, "[r]ead Response to D's motion to stay discovery and downloaded filing and saved" for
0.40 hours, id. at No. 1235, "appears to fall within a gray area." Kabore, 2012 WL 5077636, at
*4. Plaintiffs have not presented any argument to the contrary as to these entries in their Reply,
ECF No. 171. Therefore, the Court will deduct 90% of the requested reductions here, as in
Kabore, or 39.24 hours.
4. Duplicative Fees
Defendants argue that compensating multiple lawyers attending the same hearing
constitutes "duplicative billing." ECF No. 170 at 10. Specifically, they contend "Plaintiffs'
counsel triple billed for the August 12,2014, hearing." ld. The Court agrees. In Sipe v. Project
Execution and Control Consulting, Civil Action No.: CBD-12-1579, 2016 WL 893687, at *4 (D.
Md. March 8, 2016), this Court held that "Plaintiff cannot recover fees for multiple attorneys
attending a single deposition, hearing, and intra-office conference." Under Local Rules Appendix
B, Rule 2(b), "[0 ]nly one lawyer for each separately represented party shall be compensated for
attending depositions." ld. (citing Loc. R. app. B(2)(d) (D. Md. 2016)). Accordingly, just as in
Sipe, the Court "will allow compensation only for the most senior lawyer who attended the
deposition." This leads to a deduction of 8.2 hours. Defendants also point out that in two
Numbered citations here refer to specific entries in Plaintiffs' timesheets, ECF No. 168-1 and ECF No. 168-2.
instances, two billings are identical to one another. Nos. 633 and 634; Nos. 113 and 114. The
Court has reviewed the disputed entries, and agrees that those 0.6 hours must be stricken.
5. Supplemental Fees
Defendants object that the supplemental costs of filing the fee petition, as requested in
Plaintiffs' supplemental fee petition are not compensable. ECF No. 172 at 1':-2.While it is true
that a "request for attorneys' fees should not result in a second major litigation," Hyatt v.
Barnhart, 315 F.3d 239, 253 (4th Cir. 2002) (quoting Hensley, 461 U.S. at 433), "counsel are
entitled to receive reasonable attorneys' fees for work related to a fee petition." Kabore, 2012
WL 5077636, at *6. Indeed, Appendix B of the Local Rules provides for reasonable attorney's
fees for "fee petition preparation." Loc. R. app. B(I)(b)(x). Accordingly, the Court will grant
attorney's fees for preparing the fee petition.
6. Private Investigator Fees
Next, defendants contest the payment of "private investigator fees." ECF No. 170 at II.
The Court agrees with Defendants' arguments on this point. "Given the broad discovery tools
available in civil litigation, the need for an investigator is highly questionable and in this Court's
experience has not been sought by a civil litigant in a fee petition." Jackson v. Estelle Place.
LLC, No. 1:08cv984, 2009 WL 1321506, at *3 n. I (E.D. Va. May 8, 2009), affirmed, 391 Fed.
Appx. 239 (4th Cir. 2010); see also Assoc. Gen. Contractors of America v. Stokes, Civil Action
No. I: IIcv795 (GBL/TRJ), 2012 WL 7782745, at * II (E.D. Va. Nov. 20, 2012) (noting that
charges for private investigators have been "routinely disallowed in the Fourth Circuit''). Here,
Plaintiffs argue that a private investigator was needed "to respond to defendants' reckless and
overly aggressive litigation strategies." ECF No. 171 at 5. While the litigation was "fiercely
contested," the Court does not agree Defendants' strategy justifies payment for a private
investigator. ECF No. 166 at 7. Therefore, the Court will subtract those 161.1 hours or
$24,167.00 for the private investigation fees.
D. Degree of Success
In general, after calculating the lodestar, the court should subtract fees for hours spent on
unsuccessful claims unrelated to successful ones. See Grissom v. The Mills Corp., 549 F.3d 313,
321 (4th Cir. 2008) (citing Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002».
Defendants argue that because ten out of 65 plaintiffs were eventually dismissed on summary
judgment, the Court should reduce the attorney's fees proportionally. ECF No. 170 at 14-15
(citing Grissom). Defendants point to Chapman v. Ourisman Chevrolet Co.. Inc., Civil Action
No. A W-08-2545, 20 II WL 2651867, at *17-18 (D. Md. July I, 20 II), in which the court
awarded a proportional amount of attorney's fees where only two of the fourteen plaintiffs were
successful. Defendants' arguments are unavailing. First, the Grissom case, on its face, applies to
unsuccessful claims, and not to unsuccessful parties. Second, even if the principle did apply to
unsuccessful parties, "[wlhere 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 each contention raised." Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). When claims
involve a "common core of facts," "much of 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."
Andrade, 852 F. Supp. 2d at 640 (citing Brodziak v. Runyon, 145 F.3d 194, 197 (4th Cir. 1998)).
Third, in Chapman, as Defendants themselves cite, "Plaintiffs only obtained a marginal amount
of the damages sought." Here, while ten out of65 plaintiffs were dismissed on summary
judgment, the overall recovery of $100,000.02 "represents thirty-eight percent of their claimed
damages that fall within the statute oflimitations."
ECF No. 166 at 7.
Unsurprisingly, Defendants and Plaintiffs have drastically different views on how
Plaintifi's' level of success should be characterized. Courts appear to have taken differing
approaches on quantifying "success." In Alford v. Martin & Gass, Inc., No. I :08cv595
(LMBITRJ), 2009 WL 2447936, at *3 (E.D. Va. Aug. 3, 2009), the court noted in its discussion
of the Johnson factors, "[plaintiffs]
recovery was significantly more than the defendants' initial
settlement offer and exceeded their final settlement offers ... this factor weighs heavily in
plaintiff s favor." Id. In Chapman, by contrast, the court found it reasonable to reduce the award
fees when "Plaintiffs only obtained a marginal amount of the damages sought."
Chapman v. Ourisman Chevrolet Co., Inc., Civil Action No. AW-08-2545, 2011 WL 2651867,
at*18 (D. Md. July 1,2011).
In making its determination, the Court notes that while "the degree of success obtained
by the plaintiff is the most critical factor in determining the reasonableness of a fee award,"
Hensley, 461 U.S. at 436-37, the Court does "not reflexively reduce fee awards whenever
damages fail to meet a plaintiff's expectations in proportion to the damages' shortfall." Id. at *17
(quoting Nigh v. Koons Buick Pontiac GMC, Inc., 478 F.3d 183, 190 (4th Cir. 2007)). Further,
the Court does not wish to disincentivize plaintiffs' counsel from reaching reasonable settlements
by reducing their attorney's fees awards in cases of more moderate amounts. While Plaintiffs
here did not ultimately recover the damages sought at the beginning of litigation, their final
award was successful. Accordingly, the Court will not reduce attorney's fees here on the basis of
E. Propriety of Disclosing the Settlement Negotiations
Defendants object to Plaintifi's' reference to the settlement discussions in Plaintiffs'
Petition Memo. ECF No. 170 at I, 2 n. I ("In a stunning violation of Fourth Circuit law, the
Local Rules, and the Federal Rules of Evidence, plaintitTs' counsel repeatedly breaches the
confidentiality of settlement discussions," and "the Court should take this blatant violation fully
into account as it makes other determinations."). Defendants cite to Local Rule 607.4, which
states in relevant part:
The Court's ADR process is confidential. Unless otherwise agreed
by the parties and the Court, no disclosure shall be made to
anyone, including the judicial ofticer to whom the case is assigned,
of any dispute resolution communication that in any respect
reveals the dispute resolution positions of the parties or advice or
opinions of neutrals. No such communication shall be admissible
in any subsequent proceeding except as permitted by the Federal
Rules of Evidence.
Local Rule 607.4 (D. Md. 2016) (emphasis added). Federal Rule of Evidence 408(a) provides
that ofTers to compromise or statements made during compromise negotiations are "not
admissible ... either to prove or disprove the validity or amount ofa disputed claim." Fed. R.
Evid. 408(a). However, several courts have squarely held that Federal Rule of Evidence 408 does
not bar consideration of settlement discussions when determining attorney's fees. EMf Catalogue
Partnership v. CBS/Fox Co., No. 86 Civ. 1149 (PKL), 1996 WL 28813, at *2 (S.D.N.Y. May 24,
1996); Smith v. Borough of Dunmore, No. CIV A 3:05-CV -1343, 2008 WL 4542246, at * II
(M.D. Pa. Oct. 9, 2008). Moreover, the Third, Seventh, and Ninth Circuits have held that district
courts properly considered settlement negotiations when deciding fee petitions. Smith v. Borough
of Dunmore, 633 F.3d 176 (3d Cir. 2011); Moriarty v. Svec, 2333 F.3d 955 (7th Cir. 2000); A.D.
v. Cal. Highway Patrol, 712 F.3d 446 (9th Cir. 2013). Even assuming that Plaintiffs' reference to
the settlement discussions in their Petition was improper, there is no prejudice to the Defendants.
as judgment in this case has already been rendered. Therefore, the Court declines to levy any
deduction based on these references.
Finally. Defendants object to a number of Plaintiffs' costs. Specifically, Defendants
contest private investigator costs and online research where "the nature of the search was not
specified." ECF No. 170 at 20. The Court agrees based on its foregoing analysis that private
investigator costs, just as private investigator fees, are not compensable and should be deducted
accordingly. As to the online research, Defendants cite Manna v. Johnny's Pizza, Inc., No. 13721,2014 WL 794357, at *8 (D. Md. Feb. 24, 2014) (not awarding for legal research when it
was "not clear what research plaintiffs' counsel conducted). The Court does not find the same
deficiencies here. First and foremost, Plaintiffs' cost entries, ECF No. 168-2, which are separated
from their fee entries, ECF No. 168-1, reference "Online Research" as unspecified, presumably,
because the cost entries are merely subscription payments to "West Payment Center" for
West law research. See, e.g. ECF No. 168-2 at Nos. 8,20,25,32.
Moreover, where time was
spent researching, Plaintiffs' fee entries, ECF No. 168-1, do specify what was researched. See,
e.g., Nos. 592 ("Researched DMD electronic filing procedures for information on issuance of
summons"); 945 ("Researched additional legal authority re standards governing party-to-party
communication and sanctions where standards have been violated."). Therefore, the Court will
not deduct for online research costs.
Accordingly, for the reasons stated above, Plaintiffs' Motion for Attorney's Fees and
Costs, ECF No. 167, is granted, in part, and denied, in part. Plaintiffs shall submit a revised
request for attorney's fees and costs, applying the hourly rates set forth above, and making the
appropriate deductions of hours as specified in this Opinion. A separate Order shall issue.
George J. Hazel
United States District Judge
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