Awuah v. Coverall North America, Inc.,

Filing 361

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER: The Court rules that Awuah and DaSilva are prevailing parties entitled to recover attorneys' fees and and costs under Massachusetts General Laws chapter 149, section 150. Coverall shall compensate Awuah and DaSilva in the amount of $34,119.00 for reasonable attorneys' fees and $3,362.12 for the costs of the arbitration hearing.(Paine, Matthew)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
PIUS AWUAH, DENISSE PINEDA,
JAI PREM, RICHARD BARRIENTOS,
ANTHONY GRAFFEO, MANUEL DASILVA
ALDIVAR BRANDAO, BENECIRA
CAVALCANTE, and GERALDO CORREIA
Plaintiffs,
v.
COVERALL NORTH AMERICA, INC.
Defendant.

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CIVIL ACTION
07-10287-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.

June 15, 2011

I. INTRODUCTION
At a waypoint in this long and circuitous litigation, this
motion for attorneys’ fees comes before this Court.
The plaintiffs, franchisees of Coverall North America, Inc.
(“Coverall”), brought suit against Coverall under the
Massachusetts Independent Contractor Statute, Mass. Gen. L. ch.
149, § 148B, alleging that Coverall improperly classified them as
independent contractors.

The action was initially brought as a

putative class action, but the Court denied class certification
without prejudice to possible later certification.
Feb. 11, 2010, ECF No. 227.

See Order,

Proceeding with the case before it,

this Court held that under the Independent Contractor Statute,

the named franchisees had been misclassified as independent
contractors and were, as matter of law, employees of Coverall.
See Awuah v. Coverall N. Am., Inc., 707 F. Supp. 2d 80, 85 (D.
Mass. 2010).

The Court then tried the claims of plaintiffs

Aldivar Brandao, Benecira Cavalcante, and Geraldo Correia as an
exemplar case; Jai Prem settled his case with Coverall.
Pius Awuah (“Awuah”), Denisse Pineda (“Pineda”), Richard
Barrientos, and Manuel DaSilva (“DaSilva”) proceeded to
arbitration before me.
to Awuah and DaSilva.

Acting as arbitrator, I awarded damages
See Award, ECF No. 350.

Awuah and DaSilva

now move for attorney’s fees for the summary judgment briefing on
the classification issue, the challenge to the validity of the
arbitration clause, and for the work done during the actual
arbitration hearing.

See Pls.’ Mot. Att’ys’ Fees and Costs 3,

ECF No. 352 (“Pls.’ Mot.”).
II. ANALYSIS
A.

The Arbitration Proceeding

I am in a unique position here, having served as both
arbitrator and judge, and this warrants a brief explanation.
The franchise contracts of four of the named plaintiffs
contain an arbitration clause, and the question whether these
plaintiffs could be compelled against their will to arbitrate
their claims has involved an undue amount of time and an
instructive but not conclusive side trip to the First Circuit.
2

See Awuah v. Coverall N. Am., Inc., 554 F.3d 7 (1st Cir. 2009).
In an attempt to get to the merits and avoid further delay, I
offered to serve as arbitrator to address the four claims subject
to the arbitration clause so as to take advantage of my
familiarity with the case.
arrangement.

The parties accepted this

See Clerk’s Notes, Sept. 23, 2010.

The Court

explained (rather obliquely) that it was limiting the arbitration
hearing to issues under the contract and the issue of employee
misclassification while leaving other issues for judicial
resolution.
I issued my arbitration award on December 15, 2010: Richard
Barrientos failed to prove his claim and was denied any recovery.
Award ¶ 1.

Denisse Pineda proved she had been misclassified

under New Jersey law, but she suffered no damages.

Id. ¶ 2.

Awuah was awarded $1,586.55 in damages, and DaSilva was awarded
$5,750.94.1

Id. ¶ 3.

At one point during the arbitration hearing, acting as
arbitrator, I made the somewhat offhand remark that “neither
party is entitled to attorneys’ fees.”
80:22-23, Nov. 10, 2010, ECF No. 356-2.

Hearing Tr. vol. 8,
Coverall argues that

this statement is a final ruling regarding what was due to Awuah

1

All damages incurred after the Supreme Judicial Court’s
December 12, 2006 ruling in Coverall N. Am., Inc. v. Comm’r of
the Div. Of Unemployment Asst., 447 Mass. 852 (2006), were
trebled. Award ¶ 3.
3

and DaSilva.

See Coverall’s Opp’n Pls.’ Mot. Att’ys’ Fees 2-3,

ECF No. 356 (“Coverall Opp’n”).

In essence, it argues that

because “arbitrators are not required to make formal ‘findings of
fact’ to accompany the awards they issue,” Raytheon Co. v.
Automated Bus. Sys., Inc., 882 F.2d 6, 8 (1st Cir. 1989), the
total amount of damages assessed by the arbitrator was the final
amount that could be recovered by the plaintiffs and foreclosed
the potential for any future recovery.

Thus, Coverall argues

that for attorneys’ fees to be granted, the arbitrator’s award
must be vacated.

See Coverall Opp’n 5.

Coverall misinterprets the arbitration record.

As Coverall

acknowledges, the arbitrator does not need to explain the factual
basis for his ruling.

See Raytheon, 882 F.2d at 8 (“Indeed,

‘[a]rbitrators have no obligation . . . to give their reasons for
an award at all.’” (quoting United Steelworkers of Am. v.
Enterprise Wheel & Car Corp., 363 U.S. 593, 598 (1960))).

Here,

given my unique position as both arbitrator and judge, I know
exactly what I was doing and have no hesitancy in explaining
myself.

Barrientos lost in arbitration.

If Coverall wants

attorneys’ fees with respect to Barrientos’s portion of the case,
its claim depends on the arbitration clause, and he will no doubt
make all the arguments in opposition to that claim that Coverall
is making here.

Pineda prevailed on liability but lost by

failing to prove any damages.

As arbitrator, I carefully denied

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attorneys’ fees to either party.

Awuah and DaSilva prevailed.

As arbitrator, I was silent on attorneys’ fees; the arbitration
award likewise made no mention of attorneys’ fees as to them.
See Award.
Such silence was not a ruling against attorneys’ fees for
Awuah and DaSilva.

This Court, acting as a court, outlined the

arbitration procedures, and placed limits on what the hearing
would address, specifically limiting the issues to employment
misclassification and contract.

All other issues - including

that of statutory entitlement to attorneys’ fees now raised by
Awuah and DaSilva - were reserved for judicial proceedings.

On

January 31, 2011, this Court specifically welcomed such a motion
for attorneys’ fees.

Clerk’s Notes, Jan. 31, 2011.

B. Attorney’s Fees
The decision whether to award attorneys’ fees is a two-step
process.

This Court must first determine if fees are warranted,

and, if they are, the Court must determine the amount of fees
appropriate.
1.

Entitlement to Attorneys’ Fees

Awuah and DaSilva move for attorney’s fees under
Massachusetts General Laws chapter 149, section 150.

This

statute provides in pertinent part: “An employee . . . who
prevails in [an action for a violation of Massachusetts General
Laws chapter 149, section 148B,] shall be awarded . . . the costs
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of the litigation and reasonable attorneys’ fees.”
Laws c. 149, § 150 (emphasis added).

Mass. Gen.

This statute makes

mandatory the award of fees to a prevailing plaintiff.

See

Killeen v. Westban Hotel Venture, LP, 69 Mass. App. Ct. 784, 790
(2007).
As arbitrator, I awarded Pius Awuah $1,586.55 and Manuel
DaSilva $5,750.94.

Award ¶ 3.

“A judgment for damages in any

amount, whether compensatory or nominal, modifies the defendant's
behavior for the plaintiff's benefit by forcing the defendant to
pay an amount of money he otherwise would not pay.”
Hobby, 506 U.S. 103, 113 (1992).

Farrar v.

Thus, both Awuah and DaSilva

are prevailing parties entitled to attorneys’ fees.

See

Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health &
Human Res., 532 U.S. 598, 604 (2001) (stating that a prevailing
party is one that “achieve[d] a material alteration of the legal
relationship” between the parties).
2.

Calculation of Attorneys’ Fees

The lodestar approach is the proper method to calculate
attorneys’ fees.

Marrotta v. Suffolk Cnty., 726 F. Supp. 2d 1, 4

(D. Mass. 2010).

To calculate the appropriate fee amount, this

Court must determine “the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate.”

Gay

Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st
Cir. 2001) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433

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(1983)) (internal quotation marks omitted).

The party seeking an

award of attorneys’ fees bears the burden of establishing and
documenting the hours expended and the hourly rates charged.
Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 340 (1st Cir.
2008).
Here, Attorneys Shannon Liss-Riordan, Hillary Schwab, Harry
Litchen, and their associates move for attorneys’ fees in the
amount of $127,760.50.

Pls.’ Mot. 2.

Specifically, they seek

compensation for all time spent working on the motion for summary
judgment regarding employment classification, 25% of the time
worked on the motion for summary judgment regarding damages, 50%
of the time worked on the plaintiffs’ challenge to the
arbitration clause, and 75% of the time worked on Awuah and
DaSilva’s claims during the arbitration hearing.

Id. at 3.

The arbitration hearing at which Awuah and DaSilva prevailed
was something of a sideshow to this much larger litigation.
Although the arbitration award was a final judgment with respect
to the four affected plaintiffs, other plaintiffs’ claims are
still outstanding.2

The validity of the arbitration clause has

not been finally resolved, so the attorneys’ fees sought with
respect to the challenge to the arbitration clause are premature.

2

The case is currently administratively closed while this
Court awaits answers to questions it certified to the Supreme
Judicial Court of Massachusetts. See Order of Certification, ECF
No. 347.
7

See Order, Jan. 31, 2011 (denying as moot pending other
proceedings a renewed motion challenging the arbitration clause).
Similarly, this Court’s rulings on the motion for summary
judgment on section 148B misclassification and the motion for
summary judgment as to damages did not constitute a final
judgment, so an award for attorneys’ fees with regard to those
issues is presently inappropriate.

See Conservation Law Found.,

Inc. v. Patrick, No. 06-11295, 2011 WL 758844, *3 (D. Mass. Mar.
4, 2011) (“An award of attorneys’ fees during the pendency of
litigation is the ‘exception rather than the rule.’” (quoting
Greenfield Mills, Inc. v. Carter, 569 F. Supp. 2d 737, 744 (N.D.
Ind. 2008))).

Thus, this Court awards only fees for the time

Awuah and DaSilva’s attorneys spent working on the arbitration
proceedings.
a.

Reasonable Hours Expended

As stated, plaintiffs bear the burden of proving reasonable
attorneys’ fees.

With this burden comes an obligation to provide

an accurate representation of the hours worked.

See Grendel’s

Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984).

A

contemporaneous record of the hours worked is the best way for
this Court to make an accurate calculation of the hours expended
on the matter.

See id.

Here, Attorney Liss-Riordan has not kept contemporaneous
records of the hours worked on this case.

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See Pls.’ Mot. 4 n.5

(“Plaintiffs note that their lead counsel, Shannon Liss-Riordan,
has not kept consistent billing records in the last several
years.”).

Normally, “the absence of detailed contemporaneous

time records, except in extraordinary circumstances, will call
for a substantial reduction in any award or, in egregious cases,
disallowance.”

Conservation Law Found., Inc., 2011 WL 758844, at

*6 (quoting Grendel’s Den, 749 F.2d at 952) (internal quotation
marks omitted).

This standard is not to be applied blindly,

however; in situations where fairness dictates another course,
this Court may follow it.

See Grendel’s Den, 749 F.2d at 952.

This Court has a unique vantage point from which it has
observed this case and possesses “intimate knowledge of the
nuances of the underlying case.”

Rossello-Gonzalez v.

Acevedo-Vila, 483 F.3d 1, 6 (1st Cir. 2007) (quoting Gay Officers
Action League, 247 F.3d at 292) (internal quotation marks
omitted).

Because this Court has seen the work done by Attorney

Liss-Riordan, it does not substantially reduce the award to which
she is entitled.
Instead, this Court awards fees for actual time spent
arguing the arbitration proceeding plus thirty-three percent for
preparation.3

In calculating the amount of time Attorney Liss-

3

In a routine case, limiting preparation time to one-third
of trial time would seem unduly restrictive. Here, it is not.
The arbitration proceedings involved four claimants similarly
situated in virtually all respects to the three plaintiffs whose
case have already been fully tried before a jury. Thus, much
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Riordan spent at the arbitration hearing, the Court need not
scrutinize the post hoc calculation of hours she has
reconstructed.

See Pls.’ Mot., Ex. 1, ECF No. 352-3.

Instead,

the Court looks to the contemporaneous time log of Attorney
Hillary Schwab, which reflects the actual time the two attorneys
spent in the courtroom during the arbitration proceedings.
id.

See

At all times during the arbitration proceeding both Attorney

Liss-Riordan and Attorney Schwab were present in the courtroom.
Accordingly, Attorney Schwab’s time log can be used in place of a
contemporaneous record of the time Attorney Liss-Riordan worked
during the arbitration proceedings.
Examining the time log submitted, Attorney Schwab recorded
six entries that included attending the arbitration hearing;
these entries encompass a total of 38.9 hours.

Id. at 4-5.

Some

of these billing entries, however, were block-billed with other
tasks such as organizing exhibits.
27, 2010 entry).

See, e.g., id. at 5 (October

It is the practice of this Court to reduce

block-billed entries by twenty percent.

See Conservation Law

Found., 2011 WL 758844, at *7; see also Torres-Rivera, 524 F.3d
at 339-40.

Applying this reduction to the block-billed entries,4

less preparation was required for the arbitration hearing than
would normally be the case.
4

The Court applies this reduction to the hours claimed in
the following entries: October 6, 2010, October 7, 2010, October
21, 2010, October 27, 2010, and November 10, 2010.
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the number of recoverable hours is reduced by 5.96 hours.
Accordingly, the total time that Attorney Schwab may properly be
compensated for is 32.94 hours.

Throughout the arbitration

hearing, Attorneys Liss-Riordan and Schwab were present together,
so they are each entitled to compensation for 32.94 hours for the
time spent appearing at the arbitration.

This Court, in its

discretion, adds an additional 33%, or 10.87 hours, to compensate
for preparation for the arbitration hearing.

Thus, each attorney

will be compensated for a total of 43.81 recoverable hours.
Additionally, Attorney Brant Casavant has submitted a time
log recording 52.3 hours worked preparing for and attending the
arbitration.

See Pls.’ Mot., Ex. 1, at 4-5.

Many of Attorney

Casavant’s entries, however, are redundant of the work done by
Attorney Schwab and also include time spent attending the
arbitration, in which he took no active part and for which the
Court will not compensate him.

This Court therefore will award

fees for 33% of the hours Attorney Casavant has recorded, for a
total of 17.26 compensable hours.

This reduction takes account

of the duplicative work, the non-compensable work, and the
Court’s normal reduction for block-billing.
b.

Reasonable Hourly Rate

This Court determines a reasonable hourly rate based on the
“prevailing rates in the community (taking into account the
qualifications, experience, and specialized competence of the

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attorneys involved).”
295.

Gay Officers Action League, 247 F.3d at

In unrelated, but similar, litigation, this Court has

already addressed the reasonable hourly rates for these
attorneys.

See DiFiore v. American Airlines, Inc., No. 07-10070,

2010 WL 623635 (D. Mass., Feb. 10, 2010), rev’d on other grounds,
2011 WL 1902148 (1st Cir. 2011).

In DiFiore, the Court

determined that Attorney Liss-Riordan was entitled to $400 per
hour; Attorney Schwab to $300 per hour, and associates to an
average of $200 per hour.

Id. at *5.

Nothing in the record submitted by Awuah and DaSilva gives
this Court reason to depart from its previous calculations.

Of

especial note, both Attorneys Liss-Riordan and Schwab continue to
have special expertise in employment law.

Cf. id. at *5.

Accordingly, this Court follows its previous reasoning and awards
Attorney Liss-Riordan $400 per hour, Attorney Schwab $300 hour,
and Attorney Casavant $200 per hour.
Applying these hourly rates to the above-determined
reasonable hours expended, the Court concludes that Attorney
Liss-Riordan ought be compensated $17,524.00, Attorney Schwab
$13,143.00, and Attorney Casavant $3,452.00, for a total award of
$34,119.00 in attorneys’ fees.
B.

Costs

Awuah and DaSilva claim a total of $3,362.12 in costs:
$575.10 for copies of the official transcript of the arbitration

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proceeding and $2,787.02 for the organization of exhibits by Ikon
Office Solutions.

See Pls.’ Mot., Ex. 2, ECF No. 352-4.

Awuah

and DaSilva have provided the Court with adequate documentation
to recover such costs.

See id.

Thus, this Court awards Awuah

$3,362.12 for the costs of the arbitration proceeding.
III. CONCLUSION
The Court rules that Awuah and DaSilva are prevailing
parties entitled to recover attorneys’ fees and costs under
Massachusetts General Laws chapter 149, section 150.

Coverall

shall compensate Awuah and DaSilva in the amount of $34,119.00
for reasonable attorneys’ fees and $3,362.12 for the costs of the
arbitration hearing.5
SO ORDERED.

/s/ William G. Young
William G. Young
District Judge

5

It is appropriate to make this award at this juncture
because the arbitration proceeding was a discrete portion of this
case. No final judgment shall enter until the conclusion of the
entire case.
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