Melgar Morataya v. Nancy's Kitchen of Silver Spring, Inc. et al

Filing 95

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 11/8/2016. (kns, Deputy Clerk)

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IN THE UNITED STATES DISTRICT-COURT
FOR THE DISTRICT OF MARYLlAND
Southern Division
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JESSICA MELGAR MORA T AYA,
Plaintiff,

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v.

Case No.: GJH-13-01888

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NANCY'S KITCHEN
SI)RING, INC.
et al.,

OF SILVER

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Defendants.

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MEMORANDUM

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OI)INION

Presently pending before the Court is Plaintiffs Motion for Attorney's Fees, ECF No. 80,
and Plaintiffs Motion to Withdraw Memorandum in Support of Motion for Attorney's Fees and
Costs and Substitute a New Corrected Memorandum ("Motion to Withdraw and Substitute"),
ECF No. 89. No hearing is ,necessary. Local Rule 105.6 (D. Md.). Because Plaintiff has
submitted her substitute Memorandum within thirty-five days from the date the Motion for
Attorney's Fees was tiled, see Local Rule 109.2(a), the Court will grant the Motion to Withdraw
and Substitute, ECF No. 89. For the following reasons, Plaintiff's Motion for Attorney's Fees,
based upon the new corrected Memorandum, is granted in part.
I.

BACKGROUND
A. Factual and Procedural

History

This case arises out of a dispute between PlaintitT Jessica Marlene Melgar Morataya
("Plaintiff' or "Morataya") and Defendants Nancy's Kitchen of Silver Spring, Inc. ("Nancy's
Kitchen") and Roy G. Barreto (collectively, "Defendants") under the Fair Labor Standards Act

("FLSA"), 29 U.S.C.

* 3-401

9 201

el seq., the Maryland Wage and Hour Law, Md. Code. Lab. & Empl.

el seq., and the Maryland Wage Payment and Collection Law, Md. Code. Lab. & Empl.

93-501 el seq. Following a two-day bench trial on October 26 and 27. 2015, the Court entered
judgment in favor of Plaintiff and awarded damages in the amount of$66,571.18

in a

Memorandum Opinion dated May 20, 2016. ECF No. 78. Pursuant to Local Rule 109.2(a),
Plaintiff timely moved for an award of attorney's fees and costs on June 3, 2016. ECF No. 80.
Defendants submitted a Motion in Opposition on June 17,2016. ECF No. 88. On June 30, 2016,
Plaintiffs counsel submitted a Motion to Withdraw and Substitute a New Corrected
Memorandum due to errors in their initial attorney's fees spreadsheet. ECF No. 89. Defendants
did not consent to this Motion and filed an Opposition to Plaintiffs Motion to Withdraw and
Substitute. ECF No. 93. Plaintiff filed a Reply in Support of her Motion to Withdraw on July 27,
2016. ECF No. 94.
In her initial motion, ECF No. 80, Plaintiff requested $107,871.30 in attorney's fees and
$7,040.45 in costs. In the substituted motion, ECF No. 89-1 at 20,1 Plaintiff requested
$121,239.80 in attorney's fees, based upon the corrected spreadsheet, and $7,040.45 in costs.
Plaintiff also submitted a Supplemental Motion requesting an additional $6,528.00 for the 21.1
hours spent on this case since filing the original Motion for Attorney's Fees. ECF No. 92. In her
Reply in Support, Plaintiff conceded two deductions totaling $265.00. ECF No. 94 at 9.
Therefore, Plaintiff is now requesting $127,502.80 in fees and $7,040.45 in costs, for a total
amount of $134,543 .25.

I

Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to page numbers generated by

that system.

2

B. Plaintiffs Motion to Withdraw and Substitute
In Plaintift's Motion to Withdraw and Substitute, counsel states that the first Motion for
Attorney's Fees and Costs, ECF No. 80 was "based on a flawed fees spreadsheet." ECF No. 89-1
at 1. Counsel explains:
To prepare the spreadsheet that became Exhibit A of the Motion
for Attorney's Fees and Costs, ECF No. 80-3, a law clerk
downloaded the electronically recorded billing data onto an Excel
spreadsheet. ([Porter Decl., ECF No. 89-3] ~ S(a).) ... To conform
to the requirements of Appendix B of the Local Rules, the entries
were sorted into separate categories. (ld. ~ S(b).) In doing so, the
Columns A, B, and C for each entry were always moved together;
however, Column 0, containing the amount of time taken to do
each task, was not always moved along with the rest of the
columns in the entry. (ld.) The resulting document thus accurately
describes each task performed, the person who performed each
task, and the date he or she performed it. (ld. S(c).) But, for the
vast majority of the entries, Column 0, which states the hours
worked, did not correctly match the tasks performed, as reflected
in the specific time entries. (ld.)

'1

ECF No. 89-1 at 4. In support of the Motion to Withdraw and Substitute, Plaintiff also submits a
sworn declaration of Robert Porter, an associate attorney and timekeeper at Melehy & Associates
LLC, counsel for Plaintiffs. Porter Decl., ECF No. 89-3. Mr. Porter avers that he "thoroughly
investigat[ed] the matter" and understood the aforementioned explanation to be the reason for the
errors in the first spreadsheet. Id. at 2.
In opposition to Plaintiffs Motion to Withdraw and Substitute, Defendants assert that
Plaintiffs counsel has submitted "false, misleading and untruthful representations regarding his
time records and the activities supported by the time records," and that such action constitutes a
Fed. R. Civ. P. Rule I I(b) violation warranting sanctions and denial oI'attorney's fees. ECF No.
93 at 3. Defendants claim that "Plaintiff offers no sensible reason as to why the second set of
time records should be accepted by this court." ld. at 4.

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Rule 11 sanctions are not appropriate here. Rule 11(b) provides that "[b]y presenting to
the court a pleading, \witten motion, or other paper-whether
later advocating it-an

by signing, tiling, submitting, or

attorney or unrepresented party certifies that to the best of the person's

knowledge, information, and beliet~ formed after an inquiry reasonable under the circumstances .
. . the factual contentions have evidentiary support ... " Fed. R. Civ. P. ll(b). Notwithstanding
that a motion for sanctions must be made separately from any other motion and served on the
opposing party 21 days before tiling it with the court, see Fed. R. Civ. P. II(c)(2) (describing
what is known as the "safe harbor" provision), the Court acknowledges that Plaintiffs counsel
"has admitted to, apologized for, explained the cause of, and corrected [the] errors [in the initial
faulty spreadsheet]." ECF No. 94 at 2. Plaintitfs took affirmative steps to correct the errors with
the Court, and did not seek to recover fees for the time spent drafting either the Motion to
Withdraw and Substitute or Reply in Support. ECF No. 89-1 at 2; ECF No. 94 at 1. Based on a
review of the applicable time sheets, the Court accepts that "Plaintitl's counsel has maintained
adequate records; the errors were in the spreadsheet counsel created, not the underlying
contemporaneous billing records." ECF No. 94 at 4. Thus, the Court will not issue sanctions or
deduct attorney's fees for this oversight. and will accept Plaintit1's request to withdraw ECI' No.
80 and revicw Plaintiffs New Corrected Memorandum, ECF No. 89.
II.

STANDARD OF REVIEW
The payment of attorney's fees and costs to employees who prevail on FLSA claims is

mandatory, 29 U.S.C. ~ 216(b), while the amount awarded is within the sound discretion of the
trial court. Burnley v. Shorl, 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. Eckerharl, 461 U.S. 424, 433 (1983). This Court entered

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judgment in favor of Ms. Morataya at trial: thereliJrc. she is a "prevailing party" entitlcd to
attorney's fees. The Court must now determine what fce is "reasonable:'

Hens/ey. 46 I U.S. at

433.
The most useful starting point for establishing thc proper amount of an award is the
"Iodestar:' or ..the number of hours reasonably expended. multiplied by a reasonablc hourly
rate:' Id.: see a/so

RUlli

Creek Coal Sa/eoi'.Inc.

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Capel'/on. 31 F.3d 169. 174 (4th Cir. 1994).

The court must adjust the number of hours to dclete duplieative or unrelated hours. and the
number of hours must be rcasonable and represent the product of"billingjudgmcnt."
(eiting Hem/ey. 461 U.S. at 437). "When the plaintiffprcvails

lei at 175

on only some ofthc claims. the

number of hours may be adjusted downward: but where lilll reliefis obtained. thc plaintin-s
attorney should receive a fully compensatory fce and in cascs of exceptional success. even an
enhancement." lei at 174-75 (internal citations omitted). In assessing the overall reasonableness

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of the lodestar. the court mav also consider the twelve factors set limh in Johnson\'. (ieor~ia
.
f1ig/nray F:xpress. Inc.. 488 F.2d 714. 717-19 (5th Cir. 1974) (..the Johnson tilCtors").
speeitieally:
(I) The time and labor required: (2) Thc novelty and ditlieulty of the
questions raised: (3) The skill requisite to perfol1n the legal services
propcrly: (4) The preclusion of cmployment by the attorney due to
aeeeptance of the case: (5) The customary Icc: (6) Whether the fee is
tixed or contingent: (7) Time limitations imposed by the client or the
circumstanees: (8) The amount involvcd and thc results obtained: (9)
The experiencc. reputation. and ability of the attorncys: (10) The
undesirability of the case: (II) The nature and length of the
professional relationship between the attorney and the client: and (12)
Attorney's Ice awards in similar cases.
See Capel'/on. 31 F.3d at 175.
The party seeking an award of attomey' s fees "bears the burdcn of establishing
entitlement to an award and documcnting the appropriate hours cxpended and hourly rates:'
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Hensley, 461 U.S. at 437. The party challenging the requested award "bears the burden of
explaining its objections with sutlicient detail and specific reference to the plaintiff's 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 122288,2013 WL 388991, at *3 (D. Md. Jan. 30, 2013) (citing Rode v. De//arciprete, 892 F.2d
1177, 1183 (3d Cir. 1990)).

III.

DISCUSSION
A, Reasonable Rate
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 "atlidavits 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, LLC, No. PJM-08-92I ,2011 WL 3419565 at *3
(D. Md. Aug. 11,2011). In this District, the Court's "market knowledge" is set forth 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:
$165-300.
(c) Lawyers admitted to the bar for nine (9) to fourteen (14) years:
$225-350.
(d) Lawyers admitted to the bar for fifteen (15) to nineteen (19)
years: $275-425.

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(e) Lawyers admitted to the bar for twenty (20) years or more:
$300-475.
(I) Paralegals and law clerks: $95-150.
Loc. R. app. B(3) (D. Md. July 1,2016).2 PlaintifTasks the Court to award attorney's fees at the
following rates: Omar Vincent Melehy: $475.00 (member of the bar since 1987); Suvita Melehy:
$375.00 (worked as an attorney since 1997); Robert Porter: $300.00 (member of the bar since
2004); William Steinwedel: $175.00 (member of the bar since 2010); Aaron Robison: $175.00
(member of the bar since 2012); and paralegals: $110.00. ECF No. 89-1 at 12-14; Melehy
Declr., ECF No. 80-4 at 2, 6-7. These rates are within the ranges set forth in Appendix B.
Further, the Court acknowledges that "Plaintiff's counsel is proposing rates that are below Laffey
Matrix3 rates, below the firm's customary and normal rates, and below the rates in the firm's
retainer agreement with Plaintiff." ECF No. 90 at 7-8; see also ECF No. 89-1 at 15. The
proposed rates are hence reasonable, and Defendants have not presented arguments to the
contrary.

B. Reasonable Hours
As required by Appendix B of the Local Rules, counsel for Plaintiff submitted their fee
application accompanied by time records organized by litigation phase: (i) case development,
background investigation, and case administration; (ii) pleadings; (iii) interrogatories, document
productio~, and other written discovery; (iv) depositions; (v) motions practice; (vi) attending
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:
$95-115. See Loc. R.. app. B(3) (D. Md. February 1,2013). While some work on this case was performed prior to
July 2014, footnote 6 to Appendix B 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." Id. n.6. Therefore, the Court will
apply post-July 2014 Local Guidelines rates to all entries in this case.
J The Laffey matrix is a metric primariiy used by the U.S. Attorney's Office to calculate rates for attorneys
practicing in Washington, D.C. See Kabore v. Anchor Staffing. Inc., Civil Case No. L-10-3204, 2012 WL 5077636.
at *9 (D. Md. Oct. 17,2012).

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court hearings; (vii) trial preparation and post-trial motions; (viii) attending trial; (ix) ADR; and
(x) fee petition preparation. Defendants have objected to numerous individual time entries in five
of these categories. The Court will offer a summation of the arguments raised and its own
detennination herein.

i. Time Spent

011

Written Discovery

First, Defendants claim that specific time entries spent on written discovery were
unreasonable. ECF No. 93 at 4. For example, Defendants argue that certain subpoenas,
interrogatories, and document requests were '"form documents" and therefore should not have
taken the amount of time that PlaintitT's counsel billed. ECF No. 93 at 4 (citing ECF No. 89-2 at
Nos. 131, 132, 99, 151, 152, 156).4 Plaintiff counters by arguing that '"these written discovery
requests were carefully tailored to the specific facts of the case" and explaining that time was
added due to the use of a Spanish-language interpreter. ECF No. 94 at 5. Plaintiff also explains
that 2.0 hours to review bank records was reasonable and indeed essential to determine whether
Nancy's Kitchen met the $500,000 threshold under the FLSA. Id. Defendant offers no case law
or substantiation for their claims that such hours are unreasonable. The Court agrees that these
entries are reasonable and should not be deducted from the lodestar.

ii. Time Spellt

011

Depositions

Second, Defendants claim that time spent on depositions was unreasonable. ECF No. 93
at 4. Specifically, Defendants object to billing for drafting the deposition subpoena for Blanca
Guzman because Ms. Guzman's deposition was ultimately cancelled. Id. (citing ECF No. 89-2,
No. 232). Plaintiffs counsel now concedes that although drafting the subpoena was reasonable at
the time, they will agree to deduct this entry of$175.00 because Ms. Guzman was not ultimately
deposed. ECF No. 94 at 6. Defendants' other objections to Plaintiffs time entries spent on
4

Numbered citations here refer to specific billing entries in Plaintiff's timesheets, ECF No. 89-2.

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deposing Roy and Yanda Barreto, Yung Jun, and Agnelo Gonsalves are without merit. ECF No.
93 at 4 (citing, e.g., ECF No. 89-2, Nos. 203, 212, 225, 248, 261). During discovery, Plaintiffs
counsel determined that Ms. Barreto, Mr. Yun, and Mr. Gonsalves were essential sources of
information, as they were individuals employed by Nancy's Kitchen and close to the facts of the
case. ECF No. 94 at 7. Mr. Yun and Mr. Gonsalves were Defendants' accountants, and their
testimony was thus "key to showing Nancy's Kitchen met the $500,000 FLSA threshold." ld.
The hours spent preparing for their depositions were not unreasonable.

iii. Time Spellt all Motiolls Practice
Defendants then argue that time spent on motions practice was unreasonable because
"granting of the motions did not result in any lessening of trial time" and "these motions
involved no novel or new issues of law, no novel or controversial case law and no multiple
plaintiffs:' ECF No. 93 at 5 (citing, e.g., ECF No. 89-2, Nos. 286, 291, 300, 304, 335). The
Court cannot agree. Plaintiffs first dispositive motion addressed whether Nancy's Kitchen was
covered under the FLSA as "an enterprise engaged in commerce," whether Defendants were
entitled to a "tip credit" as an offset, and whether Mr. Barreto was individually liable for Nancy's
Kitchen's wage violations. ECF No. 39. Plaintiffs second partially-dispositive

motion addressed

whether Defendants could use their weekly cash tip remittances as an offset against their wage
obligations. ECF No. 42. As evidenced by the lengthy motions for summary judgment and
accompanying exhibits submitted by either side, litigating these issues involved extensive fact
gathering and legal analysis. ECF No. 37; ECF No. 39. Resolving these issues through motions
practice, while protracted, narrowed the issues for trial. Defendants' arguments here are thus
unpersuaslve.

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iv. Time Spent on Trial Preparation
Next, Defendants claim that time spent on trial preparation, 21.3 hours, was
unreasonable. ECF No. 93 at 5 (citing, e.g., ECF No. 89-2, Nos. 368, 374, 381, 395, 405, 406).
Again, Defendants offer no citations to authority or other support for this claim. Plaintiffs'
counsel counter by arguing that, "21.3 hours is a remarkably short amount of time to prepare for
a trial in federal court." ECF No. 94 at 8. The Court cannot say that Plaintiff's time entries on
these activities are unreasonable.
v. Time Spent on Fee Petitions
Finally, Defendants assert that time spent on the fee petition was unreasonable. ECF No.
93 at 5. Plaintitl's counsel responds that drafting the motion for attorney's fees required legal
research and explanation of all of their work on the case. ECF No. 94 at 8. Indeed, Appendix B
of the Local Rules specifically provides for reasonable attorney's fees for "fee petition
preparation." Loc. R. app. B(l)(b)(x). The Court does not find the time Plaintiff spent on
preparing the fee petition to be unreasonable.
C. Successful or Unsuccessful Claims
Defendants argue that because summary judgment was eventually granted in favor of
Mrs. Yanda Barreto-the
Kitchen-Plaintiffs

wife of Defendant Roy Barreto and former employee of Nancy's

attorney's fees and costs accrued while litigating claims against Mrs.

Barreto should be deducted. ECF No. 88 at 2-3. Defendants do not point to specific entries
involving solely Mrs. Barreto, but ask the Court to "cut the requested attorney's fees and costs by
at least one third." ld. at 3.
In its earlier opinion, this Court ruled that Yanda Barreto was not Plaintiff's employer
and thus dismissed her from the case. ECF No. 44 at 5-9. However, simply because one

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defendant in a multi-defendant case is ultimately dismissed from the suit does not mean the
Court must make a corresponding deduction in attorney's fees. See Cent. States, Se. & Sw. Areas
Pension Fund v. Cent. Cartage Co., 992 F. Supp. 980, 984 (N.D. Ill. 1998) (declining to reduce
fees when one of two defendants was dismissed from the case where remaining defendant could
not point to work done solely on the claim against the dismissed defendant). When claims
involve a "common core of facts ... [mJuch 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»,
"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 each contention
raised." Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). The same principle holds true for
multiple defendants, in so far as the legal work done on the defendants is jointly related. See
Cartage Co" 992 F. Supp. at 984.
Here, Plaintiffs claims against Mrs. Barreto mirrored Mr. Barreto, therefore the legal
work done on both Mr. and Mrs. Barreto was intertwined. See ECF No.1; ECF No. 90 at 3.
Defendants have not carried their burden to show the Court that hours that appear to be
"blended" are "in fact segregable." See Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 127 (1st
Cir. 2004).5 Further, as Plaintiff notes, "while Plaintiffs counsel did spend time deposing her,
Mrs. Barreto would have been a key witness even if she were not a party: she was one of only a
few people who worked in the restaurant and she prepared Plaintiff's weekly cash payments and
handed them to Plaintiff." ECF No. 90 at 2. The Court will not deduct attorney's fees on this
basis,

, Indeed, the very entries Defendants cite on this point, ECF No. 89-2 at Nos. 203, 204, and 206, specifically state
"Preparing for the depositions of Roy and Vonda Barreto" (emphasis added).

II

D. Johnson factors6
i. Novelty and Difficulty of Questions Raised, & Requisite Skill
Defendants contend that "[t]here was absolutely no novelty or difficulty as to questions
presented in this case" and ""the services rendered in this case could have been rendered by more
junior attorneys at more junior hourly rates." ECF No. 88 at 3. Defendants' arguments are not
persuasive. This case involved litigating multiple dispositive motions and a two-day trial.
Plaintiffs also note the difficulty and time-intensity oflitigating this case due to Defendants'
aggressive strategies. ECF No. 90 at 4. As the Supreme Court aptly noted in City of Riverside, a
defendant "cannot litigate tenaciously and then be heard to complain about the time necessarily
spent by the plaintiff in response." City of Riverside v. Rivera, 477 U.S. 561, 580 n.ll (1986).
Moreover, the novelty and complexity of a case and the skill required are generally already
reflected in the rates applied and hours expended. See Perdue v. Kenny A. ex rei. Winn, 559 U.S.
542,553 (2010). Therefore, the Court does not find the application of the Johnson factors here to
warrant a downward departure from the lodestar amount.
E. Costs
Defendants have not objected to Plaintiff's requests for costs, ECF No. 80-9. There!ore,
the Court will grant those amounts in full.
IV.

CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Attorney's Fees based upon the New

Corrected Memorandum, ECF No. 89, is granted in part. The Court will apply the deductions of
$265.00 specified in Plaintiffs Reply in Support, ECF No. 94, and will grant the revised amount

• The Supreme COUI1has "recently shed doubt on the reliability" of utilizing the twelve Johnson factors, arguing that
such an approach may lead to subjective application and disparate results. See Andrade v. Aero/ek. Inc., 852 F. Supp.
2d 637, 645-M6 (D. Md. 2012) (citing Perdue v. Kenny A. ex reI. Winn, 559 U.S. 542, 551 (2010)). Accordingly,
the Coul1 will only address the factors that are relevant and raised by the pal1ies.

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of$127,502.80

in fees (including the supplemental fees of$6,528.00,

ECF No. 92) and

$7,040.45 in costs. A separate Order shall issue.

Date: November

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d&e

2016

United States District Judge

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