Perez v. Merrick Deli & Grocery, Inc. et al
Filing
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ORDER granting 54 Motion for Attorney Fees Ordered by Judge I. Leo Glasser on 4/4/2019. (Perlman, Alexa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EDGAR PEREZ,
Plaintiff,
MEMORANDUM AND ORDER
13-CV-05166
- against MERRICK DELI & GROCERY, INC. and
HUSSAIN S. MUSED,
Defendants.
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GLASSER, Senior United States District Judge:
BACKGROUND
Plaintiff Edgar Perez (“Plaintiff”) brought this action against Defendants Merrick Deli &
Grocery (“Merrick”) and Hussain S. Mused (collectively, “Defendants”), alleging that they
violated the Fair Labor Standards Act (“FLSA), the New York Labor Law (“NYLL”), and the New
York Codes, Rules and Regulations (“NYCRR”). (ECF No. 1). On July 8, 2015, the Court granted
Plaintiff’s motion for partial summary judgment as to one claim—that Defendants failed to provide
wage statements in violation of NYLL § 195(3). (ECF No. 33). On March 24, 2016, the Court
held a bench trial and granted judgment to Defendants on all remaining claims. (ECF No. 52).
Pending before the Court is Plaintiff’s motion for attorneys’ fees and costs related to the sole claim
on which he prevailed. (ECF No. 54). Defendants’ opposed the motion and requested fees of their
own and sanctions for bringing a “frivolous proceeding.” (ECF No. 55). For the reasons explained
below, Plaintiff’s motion is GRANTED and Defendants’ motion is DENIED.
LEGAL STANDARD
The NYLL is a fee-shifting statute that entitles prevailing plaintiffs to reasonable attorneys’
fees. 29 U.S.C. § 216(b); NYLL § 198(1-a). The “lodestar—the product of a reasonable hourly
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rate and the reasonable number of hours required by the case—creates a presumptively reasonable
fee.” Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011). While the “lodestar” is not
always conclusive, failing to calculate it as a starting point is legal error. Id. However, once
calculated, “[a] district court may adjust the lodestar when it does not adequately take into account
a factor that may properly be considered in determining a reasonable fee.” Id. at 167. Those
adjustments are appropriate only in “rare circumstances” because the “lodestar figure already
includes most, if not all, of the relevant factors constituting a reasonable attorney’s fee.” Id. The
burden is on the party seeking attorney’s fees to submit sufficient evidence to support the hours
worked and the rates claimed. Pilitz v. Inc. Vill. of Freeport, No. 07-CV-4078 (ETB), 2011 WL
5825138, at *4 (E.D.N.Y. Nov. 17, 2011).
Further, courts have continuously recognized the right to reimbursement of costs such as
photocopying, postage, transportation, transcript fees, and filing fees. Quantum Corp. Funding,
Ltd. v. Westwood Design/Build Inc., No. 08 CIV. 0539 (LAK), 2010 WL 5185072, at *11
(S.D.N.Y. Nov. 19, 2010), report and recommendation adopted, No. 08 CIV. 0539 (LAK), 2010
WL 5222120 (S.D.N.Y. Dec. 21, 2010).
DISCUSSION
I.
Attorneys’ Fees and Costs
Plaintiff requests $8,494.40 in attorneys’ fees and $1,160.49 in costs. Regarding attorneys’
fees, he contends that from the commencement of this action on September 17, 2013 to the trial
date, March 24, 2016, he incurred $23,572 in attorneys’ fees and requests a “percentage . . . that
corresponds to the amount of claims that he won.” (ECF No. 54-5 at 21). He argues that because
he prevailed on one claim out of five, he is entitled to an award equal to one fifth of the total hours
worked, which amounts to $4,714.40, plus the fees in connection with this motion, $3,780. (Id. at
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12). Together, Plaintiff’s request amounts to $8,494.40 for 35.38 hours worked. In support of this
request, he submitted billing records from his counsel, Borelli & Associates, with detailed entries
documenting the work performed and the hourly rates that were charged. (ECF No. 54-2). This
Court and the neighboring Southern District of New York have routinely approved these billing
rates for Borelli & Associates. (See DE 54-5 at 16) (collecting cases).
Defendants oppose Plaintiff’s request because the lack of wage statements was an
“uncontested issue” that did not require significant work from Plaintiff’s counsel.1 (ECF No. 55
at 2-3). Defendants ignore the NYLL, which provides that “[i]f any employee is not provided a
[wage] statement . . . he or she shall recover in a civil action damages . . . together with costs and
reasonable attorney’s fees.”). NYLL §195(1-d); see also Millea, 658 F.3d at 168 (“FMLA claims
are often small-ticket items, and small damages awards should be expected without raising the
inference that the victory was technical or de minimis. If an expense of time is required to obtain
an award that is not available by voluntary compliance or offer of settlement, the expense advances
the purposes of the statute.”). However, having reviewed the Complaint, it is clear that seven, not
five, causes of action were pled. Accordingly, Plaintiff is entitled to one seventh of the total
attorneys’ fees related to the one claim on which he prevailed, which amounts to $3,367.43, plus
$3,780 in connection with this motion and $1,160.49 in costs, for a total award of $8,307.92.
II.
Post-Judgment Interest
Plaintiff also requests post-judgment interest on his $5,000 damages award, which remains
unpaid. While Defendants’ inquiry regarding how Plaintiff wants to receive the $5,000 remains
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Defendant claimed for the first time at the status conference held on April 1, 2019, that its
concession regarding wage statements was made prior to the commencement of this litigation, but
the record is devoid of that fact.
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unanswered,2 that is not an excuse for nonpayment of the award. Accordingly, the Court will
award post-judgment interest on the unpaid $5,000 in damages to accrue on the date judgment was
entered, December 18, 2016. 28 U.S.C. § 1961 (“Interest shall be allowed on any money judgment
in a civil case recovered in a district court.”).
Finally, if the award of attorneys’ fees and costs “remain[s] unpaid upon the expiration of
ninety days following issuance of judgment, or ninety days after expiration of the time to appeal
and no appeal is then pending, whichever is later, the total amount of judgment shall automatically
increase by fifteen percent.” NYLL § 198(4).
CONCLUSION
Accordingly, for the reasons set forth above, (1) Plaintiff’s motion for attorneys’ fees and
costs is granted in the amount of $8,307.92, which is separate and apart from the $5,000 in damages
previously awarded to Plaintiff; (2) Plaintiff’s request for post-judgement interest on the $5,000
damages award is granted and will accrue from the date judgment was entered on December 18,
2016; and (3) Defendants’ motion for attorneys’ fees and sanctions is denied given (i) the absence
of any argument in support for such an extraordinary request and (ii) Defendants’ admission of
liability as to wage statements. Plaintiff is ordered to provide Defendant with information
necessary to tender payment of the $5,000 damages award and $8,307.92 in attorneys’ fees and
costs—including to whom payment should be addressed—within seven days.
SO ORDERED.
Dated:
Brooklyn, New York
April 4, 2019
/s
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I. Leo Glasser
2
U.S.D.J.
On October 13, 2016, Defendant’s counsel emailed Plaintiff’s counsel, writing “Please advise
how you want $5000.00 check made. Ie. Check representing the sum awarded by Judge Glasser.”
(ECF No. 55-7). Plaintiff’s counsel did not respond. (ECF No. 55 at 4).
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