Berrios v. Green Wireless, LLC et al

Filing 35

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/27/2016. (kns, Deputy Clerk)

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IN THE UNITED STATES J)JSTRICT COURT,
FOR HIE DISTRICT OF MARYLAND
Southern Division

DIANA C. BERRIOS

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Plaintiff,

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Case No.: G,/H-I.t-3655

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GREEN WIRELESS, LLC, et a!.

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Defendants.

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MEMORANDUM OPINION
Prcscntly pcnding bclilrc thc Court is Diana C. Berrios' ("Ijlaintilr)
Attorneys' Fces. ECF No. 31. arising out of her succcssfullawsuit

Motion for

against Michacl Shin

("Dcl'cndant") lill' violations of the Fair Labor Standards Act ("FLSA"). 29 U.S.c. ~ 201 el seq ..
thc Maryland Wagc and Hour Law ("MWHL"). Md. Codc. Lab. & Empl. ~ 3-401 el seq .. and thc
Maryland Wagc Paymcnt and Collection Law ("MWPCL"). Md. Codc. Lab. & Empl. Artiele ~
3-501els('q.

Plainlilrs
I.

No hcaring is ncccssary. Loc. R. 105.6 (D. Md. 2016). For thc following rcasons.
Motion fiJI'Attorneys' Fees is granted. in part.
BACKGROUND

This case bcgan as a lawsuit against Plaintiffs li1l'l11cr mployers Grcen Wirelcss. L1.c.
c
Michael Shin. and Michacl Pak. lilr unpaid ovcrtimc wagcs.' ECF NO.1. Atier serving alllhrcc
dcfcndants and hearing no rcsponsc. Plaintiff tiled Motions for Clerk's Entry of Default. ECF
Nos. 6 & 15. Dcfault was cntcrcd against Grccn Wirelcss on March 30. 2015. and against

I Plainti IT has only obwincd
judgment against one defendant. Michael Shin. 1r Shin satisfies the judgment.
intends to dismiss the remaining defendants. ECF No. 31 at I.

Plaintiff

Mcssrs. Shin and Pak on Scptcmbcr I. 2015. Eel' Nos. 8 & 16. Plaintiff thcn moved for default
judgmcnt against all thrcc Dcfendants on Octobcr 22. 2015. ECF NO.1 8. Whilc this motion was
pcnding. Mr. Shin madc an offer to Plaintiff that judgment bc entcred against him in thc amount
of$3.000. cxclusive ofattorncys'

lecs and costs. Plaintiffnotilicd

the Court ofhcr acccptancc of

that offcr on Dcccmbcr 15.2015. and thc Court approvcd thc conscntjudgmcnt

on April 18.

2016. ECF No. 29. PlaintilTs Delault Judgmcnt as to thc rcmaining Dcfcndants was denicd
without prejudicc. Id
In the prcscntly pending motion. Plainti ITrequcsts $15.036.50 in attorncys' lees and
cxpcnses. bascd on 53.8 hours of work completed by two attorneys and scveral paralcgals Irom
thc law linn of Zipin. Amster & Grccnberg. LLC. and $795.00 in litigation relatcd costs. ECF
No. 31-3. Dcfcndant submittcd a Rcsponsc to Plaintitrs

Motion on May 19.2016. arguing that

thc Court should dcny Plaintiff-s rcqucst for attorncy's fecs in liJll. or in the alternativc. reducc
thc award to rcflect a reasonablc ratc of fees and costs. ECF No. 32. PlaintilT tiled a Rcply in
support of thcir Motion on May 31. 2016. and notcd that the total compensable hours had risen to
58.6 fora total of$15.657.50
II.

STANDARD

in attorncy's lees. ECF No. 33.

OF REVIEW

Thc payment of attorney's fees and costs to cmployccs who prcvail on FLSA claims is
mandatory. 29 U.S.c.
trial court./Jurnley

* 216(b). whilc thc amount awardcd is within the sound discretion ofthc

\'. Sho!'!. 730 F.2d 136. 141 (4th Cir. 1984). To recovcr attorncy's lees and

costs. a plaintilTmust bc a "prcvailing party:' a thrcshold question for which the C01ll1accords a
"gencrous formulation:'

lIensley

". EckerI1ll!'!:461

U.S. 424. 433 (1983). A plaintilTis a

"prcvai ling party" j()r thc purpose of attorney's lecs if thc plaintiff succecds "on any signi licant
issuc in litigation which achicvcs somc ofthc bcnefit thc parties sought in bringing suit:' Id

Plaintiff hcrc obtained payment fiJllowing a Rule 68 Offer of Judgmcnt. which was al1inned by
this Court. and is therefore a "prevailing party"' entitled to attorney"s fees. This eontention is not
disputed by the parties.
The most useful starting point fl)r establishing the proper amount of an award is the
"Iodestar:' or ,.the number of hours reasonably expended, multiplied by a reasonable hourly
rate:'llcl1.Iky
Caper/oil.

\'. Ecker/wr/.

461 U.S. 424. 433 (1983): scc also Rum Crcck Coal Salcs. Illc. \'.

31 F.3d 169. J 74 (4th Cir. 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:'

Capertoll.

31 F.3d. at 175 (citing HCIISley, 461 U.S. at 437).

"When the plaintilTprevails on only some of the claims. the number of hours may be adjusted
downward: but where full reliefis obtained. the plaintiffs attorney should receive a fidly
compensatory fee and in cases of exceptional success. even an enhancement:'

Id at 174-75

(internal citations omitted). In assessing the overall reasonableness of the lodestar. the court may
also consider the twelve f~lctors set forth in.lo/7I1sol1 \'. Gcorgia Highway Erprcss. IlIc.. 488 F.2d
714. 717-19 (5th Cir. 1974) ("the Johnson f[\etors"). specifieally:
(1) The time and labor required: (2) The novelty and difliculty of the
questions raised: (3) The skill requisite to perllmn the legal services
properly: (4) The preclusion of employment by the attorney due to
acceptance of the case: (5) The customary Ice: (6) Whether the fee is
lixed 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 ahility of the attorneys: (10) The
undesirability of the ease: (II) The nature and length of the
professional relationship hetween the attorney and the client: and (12)
Attorney's Ice awards in similar cases.
Scc Capcrtoll.

31 F.3d at 175. These factors. however. "usually are suhsumed within the initial

calculation of hours reasonahly expended at a reasonable hourly rate [. i.c .. the lodestar]." Ralldlc
\'. Ii & !' Capillli. IlIc .. 513 F. App'x 282. 283-84 (4th Cir. 2013)(quoting HCIIslcy

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Eckcrhar/.

461 U.S. 424. 434 n. 9). Furthermore, "[i]n considering the .Iohnson/Barher factors. the court is
to consider all twelvc I~lctors. hut need not rohotically list each factor or comment on those
lactors that do not apply." [)odekll. L. L. C.

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Amral [){/\'is. NO.7: 1O-CV-17 .D. 20 I0 WL

3239117. at *2 (E.D.N.C. Aug. 16.2(10).
III.

DISCUSSION
A. Reasonahle

Rate

In detennining whether counsel's hourly rates are reasonahle. the court must consider
whether ..the requested rates are in line with those prevailing in the community for similar
services hy lawyers of reasonahly comparable skill. experience. and reputation:' Blum
Stenson. 465 U.S. 886. 890 n.ll (1984), "[D]etennination

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of the hourly rate will generally he the

critical inquiry in setting the reasonable fcc. and the hurden rests with the fee applicant to
estahlish the reasonahleness ofa requested rate:' 1'~v1er\'. Eml/. 902 F.2d 273, 277 (4th Cir.
1990)( citation omitted). As part of its inquiry. the court may rely on "affidavits trom other
attorneys attesting to the reasonahleness of the hourly rates:' and also the court's "knowledge of
the market:' Beyond ,~),s InL'. \'. World A \'C. USA. LLC. No, I'.IM-08-921. 2011 WL 3419565 at
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*3 (D. Md. Aug. 11.20 II). In this District. the Court's "market knowledge" is set lorth in
Appendix B of the U.S. District Court of Maryland Local Rules. which provides Guidelines
Regarding Hourly Rates hased upon length of professional experience. as follows:
(a) Lawyers admitted to the bar lor less than live (5) years: $150225.

(h) Lawyers admitted
$165-300.
(c) Lawyers admitted
$225-350.
(d) Lawyers admitted
years: $275-425.
(e) Lawyers admitted
$300-475.

to the bar lor live (5) to eight (8) years:
to the hal' lor nine (9) to lourteen (14) years:
to the hal' for filieen (15) to nineteen (19)
to the hal' lor twenty (20) years or more:

(I) Paralegals and law clerks: $95-150.
Loe. R. App. 13(3)(D. Md. 2016). Plaintiff asks the Court to award allorney's fees at the
following hourly rates: Michael Amster: $295.00 (barred since 2009): Jason Friedman: $225.00
(barred since 2012): and paralegals: $135.00. ECF Nos 31 & 31-3 ~~ 1_2.2 Plaintiff submits
declarations Irom Mr. Amster. lead counsel. and Daniel A. Katz. a local Maryland allorney. to
support the reasonableness of the requested rates. ECF Nos. 31-3 & 31-4. Defendant argues that
the rates I(lr Amster and Friedman. which are both at the high end of the local guidelines for
lawyers with similar experience. should be reduced. ECF No. 32 at 7:1
As the above-requested rates are within local guidelines and have recently been approved
by other judges within this district lor similar work. the Court finds that they are reasonable. See
e.g. Sequeira

Caslillo

\'. D & I' 1'1'O/'ISen's .. //1C" No. CV DKC 14-1992.2015 WI. 6437257, at

*1 (D. Md. Oct. 21. 20 15)(approving rate 01'$295 I(lr Amster in a FLSA case): McFeeley

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Jackso/1 .'II. E/1/IJ/'I. He. No. CV DKC 12-1019.2016 WL 4269042, at *2 (D, Md, Aug. 15.
2016)(approving rate 01'$295 I()r Amster. $225 for Freidman and $135 for paralegals in a FLSA
case).
B. Reasonable Hours
As required by Appendix 13of the Local Rules. counsel for PlaintifTsubmitted their fcc
application accompanied by time records organized by litigation phase. requesting compensation
f(lr 58.6 holll's of work. ECF Nos. 31-3 & 33. Defendant has raised general objections to the

! Pin cites to documents
filed 011 the Court"s electronic filing system (CM/ECF) refer to the page numbers generated
b\' that svstem,
.t Dcfcnd~nt also argues that the COLIrt should not rely 011 the declaration
of Mr. Katz because Mr. Katz states that the
requested mtcs were reasonable in part. because the case was "successfully navigated through discovery:' which did
not in fact occur. ECF No. 32: see a/so ECF No. 31-4 fI 8. The Court acknowledges this discrepancy but docs not
believe that it makes the otherwise comprehensive declaration unreliable. The Court also notes that it would have
reached the same conclusion regarding the reasonableness ofcounsel"s r~lleswithout Mr. Katz's declaration.

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amount of compensable hours sought by PlaintifL along with objections to specific time entries.
The Court will otTer a summation of the arguments raised and its own determination herein.
Defendant first argues that Plaintiff should be eompletcly barred fi'om recovering
attorneys' fees due to "Plaintiffs

unethical conduct in claiming attorney's fees 01'$2.500.00.

which he admittedly had not incurred:' in his initial demand letter. ECF No. 32 at 3. "Bad lilith
may be 'evidenced by an intentional advancement of a baseless contention .., made for ulterior
purposes.' but 'mere negligence or error does not constitute bad faith,''' Dahl

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Aerospace

Employees' ReI. 1'10/1 (1(lhe Aerospace Corp .. NO.1: 15CV611 (JCC/IDD). 2015 WL 7777989. at

* 3 (E. D. Va.

Dec. I. 2015)( internal citations omitted)( discussing bad faith in determining

whether to award discretionary attorney's fee under ERISA). The Court finds that Plaintiff-s
statement regarding attorney's lees in his initial demand letter is insufficient grounds to bar
Plaintifrs recovery. Although perhaps not clearly stated in the initial demand letter. the Court
construes the request for $2.500 in attorneys' fees either as a reasonable estimate of fees that
would be incurred to bring the case to resolution or an opening proffer from which to negotiate.
and docs not find that it rises to the levcl of bad faith.
Ncxt. Dctendant argucs that Plaintiff expendcd an unreasonably high number of hours
working on a case that did not involve any court appearances. discovery or depositions. ECI' No.
32 at 5. In particular. Defendant notes that PlaintilTspent 13.5 hours dratiing a Motion f()r
Default Judgment and 7.3 hours drafiing the instant lee petition. ECF No. 32 at 5. Plaintiff
counters by arguing that they have presented accurate records of the time spent on this matter to
the Court. which involved filing a Complaint. two Motions for Alternative Service. a Motion for
Entry of Default. a Motion for Delimit Judgment. a Joint Motion for Approval of Settlement and
a Fee Petition. ECF No. 31-1. They further argue that Defendant's "sloppy and aggressive

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defense of PlaintilTs claims" necessitated any extra work. ECF No. 33 at 7. Contentious
litigation. as here. will surely result in a lengthier. costlier. resolution of the case. The Court
observes that much of the work Plainti ITbilled lilr appears to have been dedicated to obtaining
service on the DelCndants.~ and then working towards settlement of the case. Therelilre. the
Court docs not find Plaintitrs

requested hours to be unreasonable. Ilowever. the Court notes that

there is an entry lilr Roy Lyford-Pike. billing at a rate of $205.00. lor .2 hours spent preparing a
quarterly report. The Court has received no inlimnation regarding the role or background of this
timekeeper: thus. his hours will be removed. Subtracting that entry. the Court finds that
PlaintifTs remaining request lor 58.4 hours of compensable work is reasonable.

C. Calculation of Lodcstar
As the Court has determined that PlainlilTs proposed rates and hour arc reasonable. the
lodestar is equal to Plaintiffs request 01'$15.657.50. minus the unexplained charges lor Mr.
Lyford-Pike. Therelilre. the record justifies a final lodestar 01'$15.616.00.;
D. Adjustmcnts to Lodcstar:

JO/III.\'1J11

Factors and Plaintifrs Lcvcl of Successf>

Plaintiff also argues that the Johnson 1[Ictorssupport their requested award of attorneys'
Ices and costs. emphasizing in particular counsel's skill and experience and the tact that Plaintiff
obtained a significant recovery in the amount 01'$3.000.00. equivalent to 150% of Plain tilTs
unpaid overtime wages. ECF No. 31 at II. Defendant argues that the Johnson lactors warrant a
downward departure. emphasizing the routine nature of the case. the lower customary Icc lor like
work. and the discrepancy between the amount in controversy and the results obtained.

I Plaintiffs
efforts 10 serve Shin are detailed in their Motion for Altclllative Service. which was granted by the
Courl. Sec ECr Nos. 10& I I.
, The lodestar is calculated as I{lilows: 515.657.50 - (.2 * 5205.00) = 5 15.616.00
h The Supreme
COlirt has "recently shed doubt on the reliabil ity" of utilizing the twelve ./o/msol1 factors. arguing that

such an approach

Illay

lead to subjective application and disparate results.

S'(!(! Ane/rade \'. Ac!I'o(ek, Inc.,

852 F. Supp.

2d 637. 645-646 (D. Md. 2(12) (citing I'erd"e l'. "e/1/(1" A. ex I'd Wil1l1. 59 U.S. 542. 551 (2010)). Accordingly.
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the Court will only address the factors that arc relevant and raised by the parties.

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Speeilieally. Defendant argues that Plaintiffs fee award should be signilicantly decreascd
because the requested Ices over $15.000.00 are over live times as largc as Plaintiffs $3.000.00
damagc award. ECF No. 32 at II. "However. 'a substantial disproportionality between a fec
award and a vcrdict. standing alonc. may not justify a rcduction in attomcy's Ices .... .Jooes \'.
SO/llhpeak IlIIeraClil'e Corp. o(Del(f\l'are.

777 F.3d 658. 676 (4th Cir. 2015)(quoting McNee \'.

Boc::ar. 738 F.3d 81. 94 (4th Cir. 2013)). In fact. such a discrepancy is common in FLSA cases.
"where vulnerable plaintiffs may be vindicating impol1ant rights that entitle thcm to relativcly
modest compcnsation:'

Reyes \'. Clime. No. PWG-14-1908. 2015 WL 3644639. at *4 (D. Md.

June 8. 20 15)(approving $15.516.00 in attorney's Ices where Plaintiff recovered approximately
$8.000.00). Thus. the Court docs not tind that this factor warrants a downward dcparture.
Furthermorc. thc Court linds that other such considerations regarding Plaintiffs hours and rate
were "subsumcd within the initial calculation of hours reasonably expended at a reasonable
hourly rate I. i.e .. the lodestarI." Raodle \'. If '" I' Capilal. loc .. 513 F. App'x 282. 283-84 (4th
Cir. 2013)(quoting Heosley \'. EckerlJarl. 461 U.S. 424.434 n. 9). Therel'i:l\'c.the Court does not
lind the application of any other of the .Jolmsoo factors hcre warrant a departure from the
lodestar amount.
Finally. Plainti!rs Icvel of success warrants an award of the full lodestar amount. "The
Fourth Circuit has described the analysis of the levcl of sue cess as the third step ofa fce
calculation. noting that courts 'should award somc pereentage of the rcmaining amount.
depending on the dcgree of succcss enjoyed by the plaintiII'"

McFeele.\' \'. .Jacksoo .'II. £111m'I.

I.LC. No. CV DKC 12-1019. 2016 WL 4269042. at *3 (D. Md. Aug. 15. 20 16)(quoting McAfee.
738 F.3d at 88). "What the eourt must ask is whether .thc plaintiffachieve[d]

a level of success

that makes the hours reasonably expended a satisfactory basis li)r making a Ice award .... Doe \'.

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Kieft!. 656 F. App'x 643. 657 (4th Cir. 2016)(quoting /lemley. 461 U.S. at 434)). Hcre. Plaintiff
succccdcd on her single claim. recciving the equivalent of 150% of her unpaid overtime wages.
ECF No. 31 at II. Thus. the Court tinds that Plaintitrs

rccovery justifies the tec award.

E. Costs
PlaintilTalso rcqucsts rcimhurscmcnt for the following costs: $400 filing fcc: $230.00
Tracer Invoice tor Proccss ofServicc on Michael Pak: $55.00 Traccr Invoice Aftidavit of
Evasion on Michael Pak: $55.00 Tracer Invoice Service of Process Inv. 103569: and $55.00
Tracer Invoicc Scrvice of Proccss Inv. 103570. ECF No. 31-2. Delendant argues that all but the
liling tee should he disallowcd. as two ofthc Tracer invoices refer spccifically to Michacl Pak.
another detendant. and thc othcr two invoiccs do not rclerence a specitie defendant. Plaintiff did
not addrcss this argument in their Reply. nor did they take the opportunity to specify which costs
applied to which defendants.
As thc Fourth Circuit reccntly said in a related discussion regarding thc division of
attorney tees bctwccnmultiplc

delendants.

Itlhe proposition that district courts havc discretion ovcr the propcr allocation ofa
fcc award among multiple detendants is widely recognized. Options availahle to a
court may inelude: dividing the award cqually among the defendants:
apportioning the award according to the delendants' relativc culpability: awarding
lecs in thc samc proportions as [the 1 jury assessed actual damages: or holding a
single detendant liable lor fees relatcd to a elaim for which that dcfendant was
solely or largely rcsponsiblc. A court is frce to comhinc two or more of these
mcthods. or it may select anothcr mcthod entirely .
.Iones \'. SOll/hpeak fnleracli\"e

Corp. o/De!{/\rare.

777 FJd 658. 677 (4th Cir. 2015)(intcrnal

quotations and citations omitted). This logic casily transters to the qucstion of how to divide
costs among multiplc detendants. Hcrc. whcre the statute at issue would likely provide joint and
scvcralliahilitv . li)r thc Dclendants.7 it makcs scnse to award I'laintitTthe rclativelv limitcd costs
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In addition to Shin. the instant Defendant who judgment was entered against. the remaining Defendants here are

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incurred in pursuing all three Defendants. As Ihe requested cosls are otherwise reasonable. the
Courl will granllolal cosls 01'$795.00.
IV.

CONCLUSION
For Ihe fi.lI"egoingreasons. Plainlitrs

Motion for Altomey's Fees. ECF No. 31. is granled

in part. Applying the ali.)remenlioned reductions. Plainliffs are awarded $16.411.00 in altorney's
fees and COSIS.s
Addilionally. Ihe Court noles thai the Plainliffpreviously

staled ils intent 10

dismiss the remaining detendanls upon Ihe salislaction of the judgment awarded against
Defendant Shin. ECF No. 31 at I. As thai judgment has been satisfied. ECF No. 34. Ihe
remaining claims arc dismissed. A separale Order shall issue.

Dale: December?Z

ffi;k'-

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George J. Hazel
United States Dislrict Judge

Green Wireless. LLC. and Miehaell'ak. Shin's co-manager. ECF No. I. "[AJII joint employers are responsible. both
individually and jointly. for compliance with all of the applicable provisions of the [FLSA]. including the overtime
provisions." Scl1"/I= \'. Cal'ill////ll'/
Sec .. //lc .• 466 F3d 29R. 305 (4th Cir. 2006)(quoting 29 C.F.R.
791.2(a)).
'515.616.00 (total aHorney's fees awarded) + 5795.00 (total costs awarded) ~ 516.411.00.

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