Ramirez et al v. H.J.S. Car Wash Inc. et al
Filing
50
ORDER granting 48 Motion for Attorney Fees, Costs, and Prejudgment Interest. Clerk to enter judgment accordingly. Ordered by Magistrate Judge Viktor V. Pohorelsky on 6/19/2013. (Pohorelsky, Viktor)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MIREK RAMIREZ, et al.,
Plaintiffs,
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ORDER AWARDING
ATTORNEYS’ FEES, COSTS
AND PREJUDGMENT INTEREST
H.J.S. CAR WASH INC., et al.,
CV-11-2664 (VVP)
Defendants.
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Following the entry of judgment in their favor, the plaintiffs timely filed the instant
motion seeking their attorneys’ fees, costs and prejudgment interest. The defendant Chou,
against whom judgment has been entered, has filed no opposition to their motion.
I.
ATTORNEYS’ FEES AND COSTS
The plaintiffs obtained judgment in their favor on their claims under both the Fair
Labor Standards Act of 1938 (the “FLSA”), 29 U.S.C. §§ 201-219, and under the New York
Labor Law. Both laws require an award of attorneys’ fees and costs to prevailing plaintiffs.
See 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1).
Where a party is entitled to fees, the district court determines the “presumptively
reasonable fee” by the “lodestar” method, which begins (and often ends) with a calculation
of the “number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Millea v. Metro-North
Railroad Co., 658 F.3d 154, 166 (2d Cir. 2011) (“Both this Court and the Supreme Court have
held that the lodestar—the product of a reasonable hourly rate and the reasonable number
of hours required by the case—creates a ‘presumptively reasonable fee.’”) (quoting Arbor Hill
Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008) and
citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S. Ct. 1662, 1673 (2010)); McDaniel v.
County of Schenectady, 595 F.3d 411, 420 (2d Cir. 2010). The Supreme Court held that “the
lodestar method produces an award that roughly approximates the fee that the prevailing
attorney would have received if he or she had been representing a paying client who was
billed by the hour in a comparable case.” Kenny A., 130 S. Ct. at 1672 (emphasis in original).
Relying on its prior decision in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478
U.S. 546 (1986), the Court stated that “the lodestar figure includes most, if not all, of the
relevant factors constituting a ‘reasonable’ attorney’s fee.” Kenny A., 130 S. Ct. at 1673
(quoting Delaware Valley, 478 U.S. at 566).
In Arbor Hill, the Second Circuit provided guidance concerning the determination of
the reasonable hourly rate used to calculate a “presumptively reasonable fee.” Specifically,
the lower courts were instructed to consider a multitude of case-specific factors1 in order to
establish a reasonable hourly rate that a “reasonable, paying client would be willing to pay.”
Arbor Hill, 522 F.3d at 184, 190-91. District courts were to “bear in mind all of the casespecific variables that [the Second Circuit] and other courts have identified as relevant to the
1
These factors include, but are not limited to, the “complexity and difficulty of the case, the
available expertise and capacity of the client’s other counsel (if any), the resources required to
prosecute the case effectively[,] the timing demands of the case, [and] whether an attorney might
have an interest in achieving the ends of the litigation or might initiate the representation himself,”
Arbor Hill, 522 F.2d at 184, 187-90 – as well as the twelve factors the Fifth Circuit employed in
Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Johnson factors include (1) the
time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill required
to properly perform the relevant services; (4) the preclusion of other employment attendant to
counsel’s acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7)
the time limitations imposed by the client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability”
of the case; (11) the nature and length of the professional relationship with the client; and (12) fee
awards in similar cases. Johnson, 488 F.2d at 717-19.
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reasonableness of attorneys’ fees in setting a reasonable hourly rate.” Arbor Hill, 522 F.3d at
190. (emphasis in original). This determination is undertaken consistent with the principle
that a “reasonable paying client wishes to spend the minimum necessary to litigate the case
effectively.” Id. at 190. The reasonableness of hourly rates are guided by the market rate
“[p]revailing in the community for similar services by lawyers of reasonably comparable skill,
experience, and reputation,” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984), and the relevant
community is generally the “district in which the court sits,” Polk v. New York State Dep’t of
Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983).
To enable courts to make their analysis of the reasonableness of the attorneys’ fees
requested by a prevailing party, this Circuit requires contemporaneous billing records for
each attorney, documenting the date, the hours expended, and the nature of the work. See
Scott v. City of New York, 643 F.3d 56, 57 (2d Cir. 2011); New York State Ass’n for Retarded
Children, Inc. v. Carey, 711 F.2d 1136, 1147-48, 1154 (2d Cir. 1983). The court may exclude
hours that it finds excessive, duplicative, or unnecessary. Duke v. County of Nassau, No. 97CV-1495, 2003 WL 23315463, at *1 (E.D.N.Y. Apr. 14, 2003) (citing Hensley, 461 U.S. at
434; Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997)).
The plaintiffs have submitted affidavits by two attorneys – Michael Faillace and
Jonathon Warner – and the billing records of their respective firms to substantiate the fees
incurred. The billing records are sparse in their description of the tasks undertaken, but they
provide sufficient detail for the court to assess the reasonableness of the time spent on the
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tasks described. Having reviewed the records, I find no reason to exclude any of the hours
listed by the attorneys on the grounds that they were excessive, duplicative or unnecessary.2
The hourly rates at which the attorneys seek to be compensated, however, are
substantially in excess of those ordinarily awarded to counsel in these types of cases in this
district. This case posed no unusual legal or factual issues. Indeed the trial lasted less than a
day. Accordingly, in line with prevailing rates in this district for wage and hour cases, I find
that the appropriate hourly rate for the partners who worked on this matter – Messrs.
Faillace, Warner and Scheuerman – is $300 per hour, while the appropriate hourly rate for
the associates – Ms. Rivero and Mr. Knauth – is $225 per hour. Compare, e.g., Gunawan v.
Sake Sushi Rest., 897 F. Supp. 2d 76, 94-95 (E.D.N.Y. 2012) (citing cases).
In view of the above considerations, the plaintiffs are entitled to a fee award of
$39,750.3
The plaintiffs seek a total of $1,990 in costs which are supported by appropriate
records. The costs include the filing fee, fees for service of process on the defendants, fees
for a court reporter and for interpreters. All of the costs are reasonable and appropriate for
reimbursement.
2
Ordinarily, when five attorneys contribute to the handling of a simple case such as this, the
court finds a good deal of unnecessary duplication of effort. The records here, however, disclose
little such duplication because the tasks performed by Rivero, Knauth and Sheuerman were, for the
most part, discreet from those performed by trial counsel, and time spent in attorney conferences
with one another was relatively minimal.
3
The award is calculated as follows: Faillace - 78.45 hours @ $300 = $23,535; Warner - 26.3
hours @ $300 = $7,890; Scheuerman - 11 hours @ $300 = $2,970; Rivero - 16.5 hours @ $225 =
$3,712.50; Knauth - 7.3 hours @ $225 = $1,642.50.
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II.
PREJUDGMENT INTEREST
Finally, the plaintiffs seek an award of prejudgment interest. They are entitled to an
award of prejudgment interest on the portion of their damages obtained under the New York
Labor Law, but not under the FLSA since the award of liquidated damages under the latter
statute serves to compensate for the plaintiffs’ delay in receiving their wages. See, e.g., Drozd
v. Vlaval Const., Inc., No. 09 CV 5122, 2012 WL 4815639, at *2 (E.D.N.Y. Oct. 10, 2012)
(citing Gunawan, 897 F. Supp. 2d at 92-93). Thus, the plaintiffs are entitled to prejudgment
interest on their awards for unpaid minimum and overtime wages earned during the period
from July 1, 2008 to June 2, 2009, and for unpaid “spread-of-hours” wages earned from July
1, 2008 to the date of the filing of this action. The statutory annual interest rate under New
York law is nine percent, N.Y. C.P.L.R. § 5004, and where damages are incurred a various
times, as they are here,4 the court has the discretion to select a single reasonable intermediate
date as the accrual date for purposes of calculating the interest, N.Y. C.P.L.R. § 5001(b). See,
e.g., Gunawam, 897 F. Supp. 2d at 93 (citing Koylum, Inc. v. Peksen Realty Corp., 357 F. Supp. 2d
593, 596-97 (E.D.N.Y.), aff'd in part, vacated in part on other grounds sub nom. Koylum, Inc. v. 1677
Ridge Rd. Realty Corp., 160 F. App'x 91 (2d Cir. 2005)).
A reasonable intermediate accrual date with respect to unpaid minimum and overtime
wages under New York Labor Law is the midpoint between July 1, 2008 and June 2, 2009,
which is January 1, 2009.5 As to unpaid “spread-of-hours” wages, the accrual point for each
4
The damages for unpaid wages were not all incurred on July 1, 2008 as suggested by the
plaintiffs, but rather each week throughout the plaintiffs’ employment when they were paid less than
the wages they were entitled to receive for the week.
5
Only the plaintiffs Mirek Ramirez and Sergio Cordero are entitled to prejudgment interest
for unpaid minimum and overtime wages, because the plaintiff Hilarino Mejia was not employed
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plaintiff is different because the unpaid wages spanned different periods of time. For Mirek
Ramirez, the unpaid “spread-of-hours” wages spanned the period from July 1, 2008 until he
left employment on April 18, 2011; the intermediate accrual date for him would thus be
midway between those dates, which is approximately December 1, 2009. For Sergio
Cordero, the unpaid “spread-of-hours” wages spanned the period from July 1, 2008 until he
left employment in February 2010; the intermediate accrual date for him is May 1, 2009.
Finally for Hilarino Mejia, the unpaid “spread-of-hours” wages spanned the period from
January 1, 2010 until he left on April 18, 2011, and the intermediate accrual date for him is
September 1, 2010.
Applying the above considerations, the prejudgment interest through April 24, 2013
on the damages awards for each of the plaintiffs is as follows:
Interest on
Minimum and
Overtime Wages6
Mirek Ramirez
Sergio Cordero
Hilarino Mejia
Interest on
Spread of
Hour Wages7
$1,599.93
$1,331.12
$575.18
$4,592.15
$6,498.72
$0
TOTAL
$6,192.08
$7,829.84
$575.18
during the period from July 1, 2008 to June 2, 2009 and thus received no damages for unpaid
minimum and overtime wages under the New York Labor Law.
6
The interest calculation with respect to unpaid minimum and overtime wages, during the
applicable period, is based on totals of $15,404.25 for Ramirez and $21,799.78 for Cordero.
7
The interest calculation on unpaid spread of hours wages is based on totals of $5,232.75 for
Ramirez, $3,712.80 for Cordero, and $2,392.50 for Mejia.
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CONCLUSION
For the foregoing reasons the plaintiffs are awarded, collectively, attorneys’ fees and
costs in the total amount of $41,740. In addition, each plaintiff is individually awarded
prejudgment interest in the following amounts:
Mirek Ramirez
Sergio Cordero
Hilarino Mejia
$6,192.09
$7,829.84
$575.18
The clerk is directed to enter judgment against the defendant Julie Chou accordingly.
SO ORDERED:
Viktor V. Pohorelsky
VIKTOR V. POHORELSKY
United States Magistrate Judge
Dated:
Brooklyn, New York
June 19, 2013
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