Bond et al v. Welpak Corporation et al
ORDER granting in part and denying in part 137 Motion for Attorney Fees. For the reasons set forth in the attached Memorandum and Order, plaintiffs are awarded fees in the amount of $29,925. Ordered by Magistrate Judge Steven M. Gold on 9/26/2017. (Gold, Steven)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NAKIA BOND, JULIO RODRIGUEZ,
WILLIAM TORRES, CHRISTOPHER JASZCZAK,
and JASON SINGH on behalf of themselves and others :
WELPAK CORPORATION, THOMAS RYAN,
officially and individually, and CHRISTOPHER FOX, :
officially and individually,
GOLD, STEVEN M., U.S. Magistrate Judge:
15-CV-2403 (JBW) (SMG)
This fee application arises from a collective action brought under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”)
against defendants Welpak Corporation (“Welpak”), a moving and storage company based in
Maspeth, New York; Thomas Ryan, its owner and chief executive officer; and Christopher Fox,
a supervisory employee (collectively, “defendants”). Am. Compl. ¶¶ 1, 11-13, 17, Docket Entry
77. Plaintiffs Nakia Bond, Julio Rodriguez, William Torres, Christopher Jaszczak, and Jason
Singh, all of whom were employed as art handlers and drivers for Welpak, asserted claims
against defendants for failing to pay appropriate overtime compensation, failing to pay wages on
a timely basis, and failing to provide wage notices. 1 Id. ¶¶ 16, 41-47, 48-53, 55-60, 62-65.
These claims were initially brought by plaintiffs Bond, Rodriguez, and Torres. See Compl., Docket Entry 1.
Jaszczak and Singh joined the case later as opt-in plaintiffs once a collective action was certified under Section
216(b) of the FLSA, 29 U.S.C. § 216. See Docket Entry 85; see also Docket Entries 95 and 98. A third opt-in
plaintiff, Gordon Ison, also joined the action, but his claims were dismissed with the consent of the parties when he
failed to appear for trial. See Docket Entries 133 and 134.
On May 26, 2015, defendants moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), arguing that plaintiffs failed to plead sufficient facts concerning the weeks
and hours for which they were allegedly not properly compensated. See Docket Entries 11-13.
Defendants also argued that plaintiffs had not alleged sufficient facts to establish an employment
relationship with the individual defendants. Id. On June 25, 2015, Senior United States District
Judge Jack B. Weinstein denied defendants’ motion and referred the matter to me to supervise
discovery. Docket Entry 29. On August 10, 2015, defendants moved, again unsuccessfully, for
summary judgment based upon the FLSA’s motor carrier exemption, 29 U.S.C. § 213(b)(1). See
Docket Entries 37-41, and 59. Plaintiff Bond thereafter moved to dismiss, on jurisdictional
grounds, defendants’ counterclaim for conversion against him, which was also denied. See
Docket Entries 80-82, and 92.
Plaintiffs’ claims were tried to a jury beginning on April 3, 2017, and the jury delivered a
split verdict on April 6, 2017. Docket Entries 132-33, and 135-36. On April 4, 2017, upon
consent of the parties, Judge Weinstein dismissed all claims brought by opt-in plaintiff Gordon
Ison, as well as all claims asserted by any plaintiff against defendant Fox. See Docket Entry 134.
Finding that defendants had substantially complied with NYLL’s recordkeeping requirements,
Judge Weinstein also dismissed plaintiffs’ wage notice claims. Trial Transcript (“Trial Tr.”) at
181, Declaration of Adam C. Weiss (“Weiss Decl.”), dated May 5, 2017, Ex. C, Docket Entry
149-3. Nor did Judge Weinstein instruct the jury on plaintiff’s frequency of pay claim; thus, the
sole claims given to the jury were plaintiffs’ claim for overtime pay brought pursuant to the
FLSA. See Jury Charge at 5-6, Weiss Decl., Ex. D, Docket Entry 149-4.
The jury found that plaintiffs Jaszczak, Rodriguez, and Singh were not exempt from
overtime pay and awarded them $928, $3,561, and $1,831, respectively, in damages. Trial Tr.
411-12. By contrast, the jury found that plaintiffs Bond and Torres were exempt and accordingly
awarded them no damages. Id. at 413. On April 17, 2017, defendants moved for judgment as a
law (“JMOL”). See Docket Entries 140-42. Judge Weinstein denied defendants’ motion on June
8, 2017. See Docket Entry 154.
Plaintiffs now move to recover attorneys’ fees pursuant to Section 216(b) of the FLSA.
See Docket Entry 137. With the parties’ consent, Judge Weinstein has referred plaintiffs’ motion
to me for decision. See Tr. of June 8, 2017 (“June 8 Tr.”), at 15-16, Docket Entry 153; Order
dated July 7, 2017, Docket Entry 156.
In support of plaintiffs’ motion, their counsel, David C. Wims, has submitted a
memorandum of law, his own declaration, and his contemporaneously-prepared time records
reflecting his work on the case. Docket Entries 138-39. In his declaration, Wims details his
litigation experience and career background, explaining that he has been admitted to practice in
New York for thirteen years and that he has concentrated his practice in the area of employment
law, including wage and hour litigation. Declaration of David C. Wims (“Wims Decl.”) ¶¶ 1819, dated April 17, 2017, Docket Entry 139. Wims seeks an award of $56,480 based on an
hourly rate of $400. Id. ¶ 17.
Plaintiffs also seek costs in the amount of $2,625. Id. On June 8, 2017, however, after
hearing argument on defendants’ JMOL motion, Judge Weinstein awarded plaintiffs $1,600 in
costs. June 8 Tr. at 14.
Defendants filed a memorandum of law, an affidavit, and exhibits in opposition to
plaintiffs’ motion for attorneys’ fees. Docket Entries 149-50. 2 Defendants oppose plaintiffs’
motion for a number of reasons. First, they argue, plaintiffs demanded far more in settlement
prior to trial than they were awarded by the jury, demonstrating that plaintiffs overvalued their
case. Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for Attorneys’ Fees
(“Defs.’ Mem.”) at 1-2, Docket Entry 150. Next, defendants claim that in light of plaintiffs’
settlement demands, the dismissal of plaintiffs’ frequency of pay and wage notice claims, and the
dismissal of all claims against defendant Fox, the total jury award of $6,320 was so minimal that
plaintiffs do not qualify as prevailing parties entitled to attorneys’ fees. Id. at 2, 5-6.
Defendants also contend that Wims seeks compensation for an unreasonable number of
hours and at an excessive hourly rate. Id. at 7-15. For example, defendants object to Wims’
seeking an hourly rate of $400 even for administrative tasks, such as creating exhibit books, and
object as well to any award based on time Wims spent prosecuting unsuccessful claims. Id. at
11-12, 15. Defendants also argue that Wims’ invoices are vague and thus do not permit
meaningful review by the Court. Id. at 13-15. Defendants contend that Wims’ experience, his
limited success at trial, and prevailing rates in the Eastern District of New York suggest a
maximum hourly rate of $250. Id. at 7-10. Moreover, defendants assert, because plaintiffs’
success at trial was limited to a finding of liability against only two of the defendants, and
because the amount sought in fees is disproportionate to the damages actually recovered at trial,
the fee award should be reduced accordingly. Id. at 4-7, 17.
Although defendants’ counsel has styled his submission as made on behalf of all defendants, plaintiffs prevailed at
trial only against defendants Welpak and Ryan, and these are therefore the only defendants jointly and severally
liable for attorneys’ fees.
After a careful review of Wims’ billing records and the other materials submitted by the
parties, plaintiffs’ motion for attorneys’ fees is hereby granted in part and denied in part and, for
the reasons stated below, plaintiffs are awarded $29,925 in fees.
I. Legal Standards
A plaintiff who prevails in an action brought pursuant to the FLSA must be awarded
reasonable attorneys’ fees and costs. Kahlil v. Original Old Homestead Rest., Inc., 657 F. Supp.
2d 470, 473 (S.D.N.Y. 2009). Unlike its civil rights counterpart, Section 216(b) of the FLSA
provides that an award of attorneys’ fees for prevailing parties is compulsory. Compare 29
U.S.C. § 216(b) (“The court in [an FLSA] action shall, in addition to any judgment awarded to
the . . . plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the
action.”) (emphasis added), with 42 U.S.C. § 1988(b) (“In any action or proceeding to enforce a
provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . [or] title VI of the
Civil Rights Act of 1964 . . . the court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of the costs.”) (emphasis added). The
Supreme Court has explained that a prevailing plaintiff is “one who has succeeded on any
significant claim affording it some of the relief sought.” Tex. State Teachers Ass’n v. Garland
Ind. Sch. Dist., 489 U.S. 782, 791 (1989). In other words, “the plaintiff must be able to point to a
resolution of the dispute which changes the legal relationship between itself and the defendant.”
Id. at 792. “Where such a change has occurred, the degree of the plaintiff’s overall success goes
to the reasonableness of the award[,] . . . not to the availability of a fee award vel non.” Id. at
Here, a jury having found in their favor, plaintiffs Jaszczak, Rodriguez, and Singh are
prevailing parties entitled to recover their attorneys’ fees. While defendants argue that the jury
award was exceedingly small as compared to settlement demands made earlier in the case, it is
undisputed that the jury found for three of the plaintiffs as against two of the three defendants
and awarded damages to all three totaling $6,320. Thus, plaintiffs received at least some relief
against some defendants and are entitled to an award of reasonable of attorneys’ fees under
FLSA. See Struthers v. City of New York, 2013 WL 5407221, at *2 (E.D.N.Y. Sept. 25, 2013)
(holding that a jury award of $686 in damages rendered the plaintiff a “prevailing party”); see
also Farrar v. Hobby, 506 U.S. 103, 113 (1992) (“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.”); Rinaldi v.
Laird, 2017 WL 2616921, at *1 (D. Conn. June 16, 2017) (“Plaintiff is not required to prevail
against every defendant to earn the status of ‘prevailing party.’”).
I now turn to the reasonableness of the requested fees. See LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 758 (2d Cir. 1998) (“A plaintiff who has prevailed in the litigation has
established only his eligibility for, not his entitlement to, an award of fees.”) (citation and
internal quotation marks omitted).
“Presumptively Reasonable Fee”
The reasonableness of an attorney’s requested fees is a matter within the district court’s
discretion. Id. Although both parties refer to the “lodestar” method of determining reasonable
attorneys’ fees, the Second Circuit has abandoned this terminology in favor of calculating a
“presumptively reasonable fee.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County
of Albany, 522 F.3d 182, 190 (2d Cir. 2008). Courts awarding attorneys’ fees are instructed to
calculate a “presumptively reasonable fee” by taking the product of the hours reasonably
expended and a reasonable hourly rate that reflects “what a reasonable, paying client would be
willing to pay.” Id. at 183-84. In addition, courts should take into account case-specific
variables such as
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3)
the level of skill required to perform the legal service properly; (4) the preclusion
of employment by the attorney due to acceptance of the case; (5) the attorney’s
customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time
limitations imposed by the client or the circumstances; (8) the amount involved in
the case 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) awards in similar cases.
Id. at 186 n.3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974)). Thus, for example, if some of the plaintiff’s claims are dismissed or otherwise do not
succeed, the fee may be reduced to take this circumstance into account. Stanczyk v. City of New
York, 990 F. Supp. 2d 242, 247 (E.D.N.Y. 2013). Ultimately, “[t]he party seeking
reimbursement of attorney’s fees bears the burden of proving the reasonableness and the
necessity of the hours spent and rates charged.” Fermin v. Las Delicias Peruanas Rest., Inc., 93
F. Supp. 3d 19, 51 (E.D.N.Y. 2015) (citation omitted).
A reasonable hourly rate is generally calculated by reference to the prevailing hourly
rates in the district where the court sits for attorneys of “comparable skill, experience, and
reputation.” Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998); Morales v. B&M Gen.
Renovation Inc., 2016 WL 1266624, at *10 (E.D.N.Y. Mar. 9, 2016) (citation omitted), report
and recommendation adopted by, 2016 WL 1258482 (E.D.N.Y. Mar. 29, 2016). In addition,
courts must use their “experience with the case, as well as their experience with the practice of
law, to assess the reasonableness of the hours spent and rates charged in a given case.” Fox
Indus., Inc. v. Gurovich, 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) (citation omitted).
Hours that are “excessive, redundant, or otherwise unnecessary” should be excluded. Cho v.
Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 209 (E.D.N.Y. 2007) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 434 (1983)).
To that end, well-established Second Circuit doctrine requires that a fee application be
supported by contemporaneous time records that “specify, for each attorney, the date, the hours
expended, and the nature of the work done.” N.Y. State Ass’n for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). “Failure to do so results in denial of the motion for
fees.” Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 53 (2d Cir. 1992); see also Scott
v. City of New York, 626 F.3d 130, 133-34 (2d Cir. 2010) (“Carey establishes a strict rule from
which attorneys may deviate only in the rarest of cases. . . . such as where the records were
consumed by fire or rendered irretrievable by a computer malfunction before counsel had an
opportunity to prepare his application.”).
A. Reasonable Hourly Rate
As noted, courts in the Second Circuit follow the forum rule, which dictates that “courts
should generally use the hourly rates employed in the district in which the reviewing court sits in
calculating the presumptively reasonable fee.” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170,
174 (2d Cir. 2009) (citations and internal quotation marks omitted). In the Eastern District of
New York, courts in recent years have approved hourly rates from $300 to $450 for partners in
law firms, $200 to $325 for senior associates, and $100 to $200 for junior associates. Sass v.
MTA Bus Co., 6 F. Supp. 3d 238, 261 (E.D.N.Y. 2014) (collecting cases); In re Nassau Cty. Strip
Search Cases, 12 F. Supp. 3d 485, 498 (E.D.N.Y. 2014); Hargroves v. City of New York, 2014
WL 1271039, at *4 (E.D.N.Y. Mar. 26, 2014); Gray v. Toyota Motor Sales, U.S.A., Inc., 2013
WL 3766530, at *5 (E.D.N.Y. July 16, 2013). Courts in this district have awarded rates of
between $70 and $100 per hour for work done by paralegals. Roberts v. United Parcel Serv.,
Inc., 2016 WL 1425766, at *2 (E.D.N.Y. Mar. 16, 2016), report and recommendation adopted
by, 2016 WL 1441318 (E.D.N.Y. Apr. 8, 2016).
In support of his request for an hourly rate of $400, Mr. Wims, a solo practitioner, states
that he has been practicing law for thirteen years, and that his experience includes extensive
FLSA overtime litigation in state and federal courts. Wims Decl. ¶¶ 18-19. Wims asserts that,
since he began practicing law in New York in 2004, he has litigated “at least one hundred wage
and hour class and single plaintiff cases.” Id. ¶ 19; Plaintiffs’ Memorandum of Law in Support
of Motion for Attorneys’ Fees (“Pls.’ Mem.”) at 7, Docket Entry 138.
Although courts have approved rates as high as $450 per hour, “[t]he highest rates in this
district are reserved for expert trial attorneys with extensive experience before the federal bar,
who specialize in the practice of civil rights law and are recognized by their peers as leaders and
experts in their field.” Hugee v. Kimso Apartments, LLC, 852 F. Supp. 2d 281, 300 (E.D.N.Y.
2012). For instance, in Sass, an employment discrimination case, the court allowed an hourly
rate of $425 for a solo practitioner who had been practicing for thirty-three years and had
litigated approximately 500 employment discrimination cases. Sass, 6 F. Supp. 3d at 263; see
also Favors v. Cuomo, 39 F. Supp. 3d 276, 307 (E.D.N.Y. 2014) (approving an hourly rate of
$450 for an attorney who had been practicing civil rights law since 1978 and served as the
executive director of the Center for Law and Social Justice at Medgar Evers College). In
contrast, a court found an hourly rate of $350 to be appropriate for a well-respected civil rights
attorney with thirteen years of experience who had “litigated a large number of civil rights cases
and is a first-rate trial lawyer.” Struthers, 2013 WL 5407221, at *8.
Wims has considerable experience litigating FLSA wage and hour cases. Nevertheless,
he has not achieved the stature to merit the highest rates awarded in this district. Indeed,
attorneys with even more litigation experience are often denied such rates. See Quiroz v. Luigi’s
Dolceria, Inc., 2016 WL 6311868, at *3-4 (E.D.N.Y. Oct. 28, 2016) (reducing requested hourly
rate of $450 to $350 for partner with a decade of experience in employment litigation); Gonzales
v. Jane Roe, Inc., 2015 WL 4662490, at *6 (E.D.N.Y. July 15, 2015) (recommending, in an
FLSA case, a reduced hourly rate of $225 for an attorney with ten years of litigation experience),
report and recommendation adopted by, 2015 WL 4681151 (E.D.N.Y. Aug. 6, 2015); Gortat v.
Capala Bros., 2014 WL 3818614, at *7-8 (E.D.N.Y. Aug. 4, 2014) (awarding fees after a
successful FLSA jury trial at a rate of $350 per hour to attorney with over seventeen years of
experience in wage and hour litigation); Cuevas v. Ruby Enters. of N.Y., Inc., 2013 WL 3057715,
at *2 (E.D.N.Y. June 17, 2013) (reducing requested hourly rate to $350 for attorneys with sixteen
and eighteen years of employment law experience after a five-day jury trial). Furthermore, while
the issues in this case were more complex than those typically arising in an FLSA case, they
were not so complicated that attorneys’ fees should be increased on that basis; to the contrary,
this case was relatively straightforward when compared to most civil rights litigation. Taking
into account Wims’ level of experience and other relevant case-specific variables, $350 per hour
is a reasonable rate for Wims’ time. 3
The authorities cited by plaintiffs in support of their requested hourly rate, Pls.’ Mem. at 6, are readily
distinguishable. For example, in Adorno v. Port Auth. of N.Y. and N.J., 685 F. Supp. 2d 507, 513 (S.D.N.Y. 2010),
the court approved an hourly rate of $550 hourly in a “complex and difficult” case to an attorney with more than
thirty-five years of litigation experience who had submitted affidavits from six respected practitioners attesting that
the hourly rate was reasonable for an attorney of his experience and stature. Similarly, in Rozell v. Ross-Holst, 576
F. Supp. 2d 527, 545-46 (S.D.N.Y. 2008), the court found $600 per hour to be a reasonable rate for senior attorneys
from an “outstanding” firm with decades of civil rights litigation experience. Finally, in Heng Chan v. Sung Yue
Tung Corp., 2007 WL 1373118, at *3 (S.D.N.Y. May 8, 2007), the court awarded $450 per hour to a law firm
partner with sixteen years of litigation experience, noting that attorneys from large firms with substantial overhead
may merit “a relatively high hourly rate that reflects the institutional resources that made it possible for these
attorneys to take on the case.”
B. Number of Hours Reasonably Expended
Wims seeks to be awarded fees for a total of 141.2 hours. Wims Decl. ¶ 17. As noted, an
attorney requesting a fee award bears the burden of supporting his or her application by
submitting “accurate, detailed and contemporaneous time records.” Garcia v. City of New York,
2013 WL 5574507, at *6 (E.D.N.Y. Oct. 9, 2013) (citing Carey, 711 F.2d at 1147-48). To
determine whether the number of requested hours is reasonable, the Court “must examine the
hours expended by counsel and the value of the work product of the particular expenditures to
the client’s case.” Id. at *6 (citation omitted). A court may reduce the award requested, and may
do so by an appropriate across-the-board percentage, if the time records submitted for review are
inadequate. Id. As explained above, courts may exclude any “excessive, redundant or otherwise
unnecessary hours, as well as hours dedicated to severable unsuccessful claims.” Id. (quoting
Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)).
Mr. Wims has complied with Carey by submitting contemporaneous time records for his
work on the case. See Pls.’ Mem. at 7-8; see also Wims Time Sheets, Wims. Decl., Ex. 2,
Docket Entry 139-2. Defendants object, though, to the number of hours for which Wims seeks
reimbursement. Defs.’ Mem. at 10. Specifically, defendants object to the amount of time billed
for working on unsuccessful claims, arguing that Wims’ time sheets fail to distinguish time spent
prosecuting successful claims from time devoted to unsuccessful ones. Id. at 12. Defendants
point to plaintiffs’ unsuccessful motion to dismiss defendants’ counterclaims and to time Wims
spent unsuccessfully prosecuting claims of three plaintiffs, one of whose claims were dismissed
when he failed to appear for trial and the other two of whom proceeded to trial but did not
prevail. Id. at 11-12. Defendants also argue that a fee reduction is warranted because the
amount sought in attorneys’ fees is “grossly disproportionate” to the damages awarded at trial
and in light of rejected settlement offers made by defendants for more than was ultimately
recovered at trial. Id. at 6-7, 16-17. Finally, defendants claim that Wims’ time sheets are vague
and contain “block billing,” making it difficult to discern how much time was spent on
appropriate attorney tasks as opposed to administrative ones, and how much time was spent on
duplicative and unnecessary work. Id. at 13.
Defendants are correct that hours spent on unsuccessful claims may be excluded to the
extent they are severable from those spent on successful ones. As the Supreme Court has
[S]uch unrelated claims are unlikely to arise with great frequency. Many civil
rights cases will present only a single claim. In other cases the plaintiff’s claims
for relief will involve a common core of facts or will be based on related legal
theories. Much 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.
Such a lawsuit cannot be viewed as a series of discrete claims.
Hensley, 461 U.S. at 435. Nonetheless, courts “focus on the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id.
Here, the only claims presented to the jury were plaintiffs’ claims for overtime compensation;
plaintiffs’ other causes of action were dismissed at trial. Plaintiffs’ wage notice and frequency of
pay claims, however, are not readily severable from their overtime claims because each involved
a common core of facts. Moreover, the contentious areas of this litigation centered not on
plaintiffs’ frequency of pay and wage notice claims, but rather on plaintiffs’ overtime claims and,
in particular, the applicability of the FLSA’s motor carrier exemption. I therefore decline to
reduce Wims’ hours based on time spent working on unsuccessful claims. Nor should Wims’
hours be reduced on account of some plaintiffs recovering at trial and others not. See Jimenez v.
KLB Foods, Inc., 2015 WL 3947273, at *3 (S.D.N.Y. June 29, 2015) (awarding compensation
for hours worked on behalf of plaintiff whose claims were dismissed at the beginning of trial
because his claims “were largely similar to those of the other [p]laintiffs,” and thus were “not
I do, however, find that reductions are appropriate for time spent on plaintiffs’
unsuccessful motion to dismiss defendants’ counterclaims and in preparing for and attending
plaintiff Ison’s deposition, in light of his subsequent dismissal from the case. In addition, an
across-the-board reduction is warranted because the recovery achieved by the prevailing
plaintiffs was so limited compared to the relief sought in the complaint. As the Supreme Court
has made clear, in determining an appropriate amount of attorneys’ fees to award, “the most
critical factor is the degree of success obtained.” Hensley, 461 U.S. at 436. “‘A district court’s
assessment of the degree of success achieved in a case is not limited to inquiring whether a
plaintiff prevailed on individual claims,’ and ‘both the quantity and quality of relief obtained, as
compared to what the plaintiff sought to achieve[,] are key factors in determining the degree of
success achieved.’” Sanchez v. I&A Rest. Corp., 2017 WL 2537814, at *6 (S.D.N.Y. May 22,
2017) (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008)).
In their amended complaint, plaintiffs alleged that they were not paid overtime
compensation despite working for approximately sixty to seventy hours per week over several
years, and that defendants further failed to pay them on time or provide them with wage notices
as required by law. Am. Compl. ¶¶ 18-28. More specifically, plaintiffs alleged that they were
not paid any overtime at all for working up to forty-five hours per week, and were paid only
straight time for hours worked in excess of forty-five per week. Am. Compl. ¶ 22. Yet, at trial,
two of plaintiffs’ three claims were dismissed and, on the sole surviving claim, two of the
plaintiffs were found to not be covered by the FLSA’s overtime protections, while the other three
were awarded damages totaling only $6,320, an amount far more modest than plaintiffs had
originally sought. In light of plaintiffs’ quite limited success at trial, I find that an across-theboard reduction of 25% of the hours for which plaintiffs seek reimbursement is appropriate. See
Sanchez, 2017 WL 2537814, at *6 (imposing 15% reduction to account for plaintiff’s lack of
success in FLSA action where plaintiff’s FLSA claims were dismissed following a bench trial
and plaintiff was awarded damages in the amount of $11,359.38 on his NYLL claims).
Defendants argue that a further reduction is warranted because the attorneys’ fees sought
are disproportionate to the damages awarded by the jury and in light of settlement offers rejected
by plaintiffs for more than was ultimately obtained at trial. I do not agree. It is well-settled that
attorneys’ fees should not be reduced as a consequence of rejecting a settlement offer absent a
showing of bad faith. Siracuse v. Program for the Dev. of Human Potential, 2012 WL 1624291,
at *22 (E.D.N.Y. Apr. 30, 2012); Heng Chan, 2007 WL 1373118, at *7 (citation omitted). As
the Second Circuit has cautioned, “[a] district court should not rely on informal negotiations and
hindsight to determine whether further litigation was warranted and, accordingly, whether
attorney’s fees should be awarded.” Ortiz v. Regan, 980 F.2d 138, 140 (2d Cir. 1992).
“Otherwise, plaintiffs with meritorious claims may be improperly dissuaded from pressing
forward with their litigation.” Id. at 140-41. Plaintiffs’ decision to reject a pre-trial settlement
offer thus does not warrant a reduction in the attorneys’ fees awarded.
Nor is it proper to reduce plaintiffs’ attorneys’ fees merely because the requested fee
award is larger than the amount of damages obtained at trial. As an initial matter, the fact that
plaintiffs’ salaries, and thus their awards for unpaid overtime, were relatively small, is not a
proper basis for reducing plaintiffs’ attorneys’ fees award. See Baird v. Boies, Schiller &
Flexner LLP, 219 F. Supp. 2d 510, 520 n.7 (S.D.N.Y. 2002). Moreover, it is well-established
that a statutory fee award need not be proportional to the amount of damages recovered. See City
of Riverside v. Rivera, 477 U.S. 561, 564-65, 574 (1986) (affirming attorneys’ fee award under
42 U.S.C. § 1988 that was approximately seven times greater than the amount of damages the
plaintiffs were awarded); see also Gonzalez v. Scalinatella, Inc., 112 F. Supp. 3d 5, 10 (S.D.N.Y.
2015) (observing that “the clear thrust of case law in this Circuit rejects the need for an FLSA
attorney’s award of fees to be proportional to the success achieved for the client[,]” and
collecting cases). Indeed, as courts have noted, “the fee provisions contained in the FLSA . . .
were designed in part to secure legal representation for plaintiffs whose wage and hour
grievances were too small, in terms of expected recovery, to create a financial incentive for
qualified counsel to take such cases under conventional fee arrangements.” Estrella v. P.R.
Painting Corp., 596 F. Supp. 2d 723, 727 (E.D.N.Y. 2009); see also Allende v. Unitech Design,
Inc., 783 F. Supp. 2d 509, 511 (S.D.N.Y. 2011) (“In FLSA cases, like other discrimination or
civil rights cases, the attorneys’ fee need not be proportional to the damages plaintiffs recover,
because the award of attorneys’ fees in such cases encourages the vindication of Congressionally
identified policies and rights.”).
Defendants also challenge the specificity of the billing invoices plaintiffs have submitted
to the Court. In particular, they point to three entries on Wims’ time sheets that they claim “are
too general and lack any sense of detail.” Defs.’ Mem. at 14. One entry, for example, titled
“Review docket sheet” appears three times, accounting for a total of .75 hours. Another entry,
which accounts for .25 hours on July 2, 2015, is described as “Draft, serve and file letter to
court.” See id. According to the docket sheet, the letter plaintiffs’ counsel filed with the Court
on July 2, 2015, is a two-paragraph letter requesting that an initial conference be scheduled. See
Docket Entry 20. The final entry defendants point to is for April 6, 2016, and it is described as
“Travel to and attend court conf[,]” accounting for 1 hour. According to the docket sheet,
however, the conference held on April 6, 2016, was a telephonic conference that lasted only six
minutes. See Docket Entry 99. Defendants also argue that plaintiffs are not entitled to fees at an
attorney’s hourly rate for time spent on administrative tasks. Defs.’ Mem. at 15. One entry on
Wims’ time sheets that may include substantial administrative rather than legal work is for 6
hours spent on January 24, 2017, on “trial prep – prepare trial notebook, review with witnesses.”
See Wims Time Sheets at 1.
Defendants are correct that Wims’ time sheets reveal occasional block billing, which
makes it “difficult if not impossible for a court to determine the reasonableness of the time spent
on each of the individual services or tasks provided.” Linde v. Arab Bank, PLC, 293 F.R.D. 138,
142 (E.D.N.Y. 2013) (citation omitted). Where billing records include a large number of blockbilled entries, an across-the-board reduction of hours is appropriate. Id. at 142-43. Defendants
are also correct that time spent for work that could have been performed by paraprofessional
staff is not compensable at an attorney’s hourly rate. See DeMarco v. Ben Krupinski Gen.
Contractor, Inc., 2014 WL 3696020, at *9 (E.D.N.Y. July 22, 2014) (“Courts may . . . deduct
time spent on clerical tasks, such as faxing documents, preparing duplicates, serving papers on
defendants, and filing documents.”) (citation and internal quotation marks omitted); Short v.
Manhattan Apartments, Inc., 286 F.R.D. 248, 255 (S.D.N.Y. 2012) (“A court may reduce
requested fees if the attorneys’ . . . requests reflect work that could or should have been
completed by a paralegal or secretary.”). Wims’ time sheets also contain several entries that
purport to bill for administrative tasks such as serving and filing papers on defendants and with
the Court. Rather than proceed on an item-by-item analysis concerning individual items billed, I
apply an additional 10% across-the-board reduction to the hours for which plaintiffs seek
reimbursement as a practical means of trimming the fee application. In re Agent Orange Prod.
Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987) (citation and internal quotation marks omitted); see
also Francois v. Mazer, 523 F. App’x 28, 29 (2d Cir. 2013) (affirming a 40% across-the-board
reduction as “well within” the district court’s discretion in awarding attorneys’ fees to account
for “items that are excessive, redundant, or otherwise unnecessary”) (citation omitted); Green v.
City of New York, 403 F. App’x 626, 630 (2d Cir. 2010) (affirming across-the-board reduction of
15% due to pervasive block billing in time entries submitted by counsel); Bodon v. Domino’s
Pizza, LLC, 2015 WL 3889577, at *10-11 (E.D.N.Y. June 4, 2015) (recommending, in a wage
and hour case, a 10% across-the-board reduction in fees sought to account for block billing and
hours billed at attorney rates for administrative tasks), report and recommendation adopted by,
2015 WL 3902405 (E.D.N.Y. June 24, 2015). I find, in addition, that the 1 hour billed for
attending the telephonic conference on April 6, 2016, should be reduced to .1 hours to accurately
reflect the time plaintiffs’ counsel spent before the Court.
To summarize: plaintiffs seek an award of fees based on an hourly rate of $400 and 141.2
hours of Wims’ time. For the reasons set forth above, Wims’ requested hourly rate is reduced to
$350. Wims spent 3 hours on plaintiffs’ unsuccessful motion to dismiss defendants’
counterclaims, as well as 6 hours preparing for and attending opt-in plaintiff Ison’s deposition.
Wims Time Sheet at 1. Accordingly, Wims’ billable time is reduced by 9 hours to account for
plaintiffs’ severable, unsuccessful efforts in this litigation. Wims’ billable time is further
reduced by .9 hours to reflect the time actually spent before the Court during the conference held
on April 6, 2016. Finally, for the reasons discussed above, an across-the-board reduction of 35%
is applied to the amount of time for which plaintiffs’ counsel seeks compensation. Accordingly,
I find that plaintiffs are entitled to attorneys’ fees based on an hourly rate of $350 and 85.5 hours
of billable work, for a total of $29,925. 4
In light of the foregoing, plaintiffs’ motion for attorneys’ fees is granted in part and
denied in part, and, for the reasons set forth above, plaintiffs are awarded fees in the amount of
$29,925. As noted above, Senior United States District Judge Weinstein has already determined
that plaintiffs should, in addition, be awarded $1,600 in costs.
STEVEN M. GOLD
United States Magistrate Judge
Brooklyn, New York
September 26, 2017
U:\#ZAK 2016-2017\Bond et al v. Welpak Corp. et al. (15cv2403) (JBW)\Motion for Attorneys' Fees Final.docx
As noted in the text, Wims’ time sheets reflect 141.2 billable hours. 141.2 hours, reduced by 9.9 hours and then by
35%, results in 85.5 approved hours. At an hourly rate of $350, 85.5 hours results in a fee award of $29,925.
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