Gomez v. Midwood Lumber and Millwork, Inc. et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached order, the court adopts Judge Orenstein's Report and Recommendation and approves the settlement agreement. The court will "so order" the executed stipulation of dismissal that the parties have filed with the approval motion. Ordered by Judge Kiyo A. Matsumoto on 6/17/2018. (Flores, Diego)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
DAVID GOMEZ,
ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiff,
-againstMIDWOOD LUMBER AND MILLWORK, INC. and
PINE SASH, DOOR & LUMBER CO., INC.,

17-CV-3064(KAM)(JO)

Defendants.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
On May 22, 2017, plaintiff David Gomez (“plaintiff”)
commenced this action by filing a complaint (“Compl.” or the
“complaint,” ECF No. 1) against defendants Midwood Lumber and
Millwork, Inc. and Pine Sash, Door & Lumber Co., Inc.
(collectively, “defendants”), pursuant to the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., the New York
Labor Law, and title 12 of the New York Codes, Rules and
Regulations.

(Compl. ¶ 1.)

On September 14, 2017, the parties

submitted a letter motion (“Mot.” or the “approval motion,” ECF
No. 17) seeking approval of the parties’ settlement agreement
(“Settlement Agreement”) resolving this action.

(See Mot. at 1;

see also Settlement Agreement, ECF No. 17-1.)
Presently before the court is a report and
recommendation (“R&R” or the “Report and Recommendation,”)
issued on September 20, 2017 by the Honorable James Orenstein,
United States Magistrate Judge, recommending that the court

approve the Settlement Agreement. 1

For the reasons set forth

herein, the court adopts and supplements Judge Orenstein’s
Report and Recommendation and approves the Settlement Agreement.
Background
In the complaint, plaintiff alleges, inter alia, that
defendants, both of which are “engaged in the building material
and supply distribution business” (Compl. ¶¶ 8-9), employed him
as a truck driver “from approximately July 2016 through February
2017.”

(Id. ¶ 7.)

Plaintiff further alleges that from May 2011

onward, defendants “engaged in a policy and practice of
requiring [plaintiff] and putative class members to regularly
work in excess of forty (40) hours per week, without providing
overtime compensation” as required under applicable law. 2

(Id. ¶

2.)
According to the complaint, plaintiff “typically
worked a total of approximately 54.5 hours per week.”
25.)

(Id. ¶

Plaintiff’s “regular rate of pay was approximately $20.00

per hour,” although plaintiff alleges that defendants structured
his payments “in an effort to avoid paying . . . overtime at
time and one half of [plaintiff’s] regular rate of pay and to

1

The Report and Recommendation was issued as a docket order, and was not
assigned a docket number by the ECF system.
2
The complaint states that plaintiff seeks recovery for plaintiff and
“all similarly situated persons.” (Compl. ¶ 1.) Plaintiff, however, never
sought certification of the complaint as a collective action pursuant to 29
U.S.C. § 216(b) or Federal Rule of Civil Procedure 23.

2

avoid certain withholdings.”

(Id. ¶ 26.)

Specifically,

plaintiff asserts that defendants paid him “approximately $9.00
per hour for the first forty (40) hours he worked in a week by
check, with the remaining balance of $11.00 per hour in cash,
and $20.00 per hour for all hours worked over forty (40) in
cash.”

(Id.)

Plaintiff alleges that he “never received

overtime pay at time and one-half of his regular rate of pay.”
(Id.)
Defendants answered plaintiff’s complaint on June 5,
2017 (see generally Answer, ECF No. 8), and the parties
subsequently engaged in settlement negotiations.
Requesting Adjournment of Deadlines, ECF No. 14.)

(See Letter
On August 15,

2017, the parties informed the court that they had reached a
settlement in principle.

(See Letter Regarding Settlement, ECF

No. 16.)
On September 14, 2017, plaintiff filed the approval
motion, which attached the Settlement Agreement as an exhibit.
In support of the approval motion, on September 15, 2017,
plaintiff filed a letter supplementing the approval motion
(“Supp.” or the “supplement,” ECF No. 19), which attached as an
exhibit an invoice setting forth contemporaneous time and
billing records from the law firm that represented plaintiff.
(“Inv.” or the “invoice,” ECF No. 19-1.)
3

The approval motion

asserts that plaintiff’s “possible recovery is, at the very
most, approximately $14,826.43 for alleged overtime violations
and violations of the notice requirements of [the New York Labor
Law].”

(Mot. at 2.)

The approval motion does not set forth the

basis for this assertion.
The Settlement Agreement provides, in relevant part,
that the parties will settle the action for a total sum of
$19,000, of which $6,270 is payable to plaintiff’s counsel.
(Settlement Agreement § 1.)
plaintiff.

(Id.)

The remaining $12,730 is payable to

Both the approval motion and the supplement

indicate that the amount payable to plaintiff’s counsel
represents attorneys’ fees and expenses.
1.)

(Mot. at 1; Supp. at

Although neither the approval motion nor the supplement set

forth a dollar amount specifically attributable to fees and a
separate dollar amount attributable to expenses, the invoice
indicates that plaintiff’s counsel incurred expenses of $541.60,
consisting of a $400 filing fee, a $140 fee for service of
process, and $1.60 in PACER fees.

(Inv. at 2-3.)

In addition to its monetary provisions, the Settlement
Agreement includes a non-disparagement clause that prohibits
plaintiff from making “comments that will disparage [defendants]
or any of [their] past or present employees,” which “may include
comments concerning the working conditions at the [defendants]
4

or any other communications which might otherwise impair the
reputation of [defendants].”

(Settlement Agreement § 7.)

The

Settlement Agreement also states that “[n]othing contained
herein is intended to limit [plaintiff’s] communication rights
under the FLSA.”

(Id.)

The Settlement Agreement’s release

provision applies only to “wage and hour claims . . . based upon
any conduct occurring up to and including the date of
[p]laintiff’s execution of th[e] [Settlement] Agreement,” and
expressly carves out “any claims arising out of alleged acts
occurring after the effective date of th[e] [Settlement]
Agreement.”

(Settlement Agreement § 3.)

On June 12, 2017, Judge Orenstein issued the Report
and Recommendation in which he “conclude[d] that [the Settlement
Agreement] is fair and reasonable,” and recommended “that the
court grant the motion and approve the settlement.”

(R&R.)

The

Report and Recommendation directed that any objections be made
no later than October 4, 2017.

(Id.)

No objections were filed.

Legal Standard
I.

Review of R&R
A district judge may designate a magistrate judge to

hear and determine issues arising before trial.
636.

28 U.S.C. §

In reviewing a magistrate judge’s report and

recommendation, the district court “may accept, reject, or
5

modify, in whole or in part, the findings or recommendations
made by the magistrate judge.”

28 U.S.C. § 636(b)(1)(C).

Where

no objection to a report and recommendation has been filed, the
district court “need only satisfy itself that that there is no
clear error on the face of the record.”

Urena v. New York, 160

F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v.
Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)).
II.

Cheeks Review
Federal Rule of Civil Procedure (“Rule”) 41, in

relevant part, that:
Subject to Rules 23(e), 23.1(c), 23.2, and 66 and
any applicable federal statute, the plaintiff may
dismiss an action without a court order by
filing:
(i) a notice of dismissal before the opposing
party serves either an answer or a motion for
summary judgment; or
(ii) a stipulation of dismissal signed by all
parties who have appeared.
Fed. R. Civ. P. 41(a)(1)(A) (emphasis added).
The FLSA is an “applicable federal statute” within the
meaning of Rule 41.

Cheeks v. Freeport Pancake House, Inc., 796

F.3d 199, 206 (2d Cir. 2015).

Accordingly, “Rule

41(a)(1)(A)(ii) stipulated dismissals settling FLSA claims with
prejudice require the approval of the district court or the DOL
to take effect.”

Id.

The parties must satisfy the court that

their agreement is “fair and reasonable,” Wolinsky v. Scholastic
6

Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012), and where, as
here, a proposed settlement includes the payment of attorneys’
fees, the court must consider the reasonableness of the fee
award.

Id. at 336 (citing 29 U.S.C. § 216(b) and collecting

cases); see also Lliguichuzhca v. Cinema 60, LLC, 948 F. Supp.
2d 362, 366 (S.D.N.Y. 2013).
In determining whether to approve a proposed FLSA
settlement, relevant factors include “(1) the plaintiff’s range
of possible recovery; (2) the extent to which the settlement
will enable the parties to avoid anticipated burdens and
expenses in establishing their respective claims and defenses;
(3) the seriousness of the litigation risks faced by the
parties; (4) whether the settlement agreement is the product of
arm’s-length bargaining between experienced counsel; and (5) the
possibility of fraud or collusion.”

Wolinsky 900 F. Supp. 2d at

335 (citations and internal quotation marks omitted).
Factors weighing against approval include “(1) the
presence of other employees situated similarly to the claimant;
(2) a likelihood that the claimant’s circumstance will recur;
(3) a history of FLSA non-compliance by the same employer or
others in the same industry or geographic region; and (4) the
desirability of a mature record and a pointed determination of
the governing factual or legal issue to further the development
7

of the law either in general or in an industry or in a
workplace.”
omitted).

Id. at 336 (citation and internal quotation marks
Courts have also expressed concern when presented

with onerous confidentiality provisions and overly broad
releases in FLSA settlement agreements.

See Lopez v. Nights of

Cabiria, LLC, 96 F. Supp. 3d 170, 177-81 (S.D.N.Y. 2015)
(discussing courts’ treatment of such provisions and finding
confidentiality provisions and releases at issue impermissible).
Discussion
In reviewing the Report and Recommendation and the
record in this case, the court considers that no party has
objected to any of Judge Orenstein’s recommendations.
I.

Fee Analysis
In reviewing the record, the court has undertaken a

detailed analysis of the attorneys’ fees requested in the
approval motion.

The court has also reviewed the invoice, and

the supplement, which sets forth the relevant experience and
qualifications of the attorneys (but not the paralegals)
appearing in the invoice.

(See Supp. at 1.)

As noted above and set forth in the Settlement
Agreement and approval motion, plaintiff’s counsel seeks an
award of $6,720 in fees and expenses.
Settlement Agreement § 1.)

(Mot. at 1; Supp. at 1;

Also as noted above, based on the
8

invoice, it appears that $541.60 of this amount is attributable
to expenses, and the remainder is attributable to fees.
A.

Reasonableness of Fees Generally
In determining the reasonableness of a requested fee

award, “there is a strong presumption that the ‘lodestar’ amount
– that is, the number of attorney hours reasonably expended
times a reasonable hourly rate – represents a reasonable fee,”
though “the court may adjust the fee upward or downward based on
other considerations.”
(collecting cases).

Wolinsky, 900 F. Supp. 2d at 337-38

Courts determine the reasonableness of an

hourly rate on a number of factors, including:
(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.
Bogosian v. All Am. Concessions, No. 06-CV-1633(RRM)(RML), 2012
WL 1821406, at *2 (E.D.N.Y. May 18, 2012) (quoting Arbor Hill
Concerned Citizens Neighborhood Ass’n v. Cty. of Albany & Albany
Cty. Bd. of Elections, 522 F.3d 182, 186 n.3 (2d Cir. 2008)).
9

Additionally, in an individual FLSA action (as opposed
to a collective or class action) in which the parties settle the
fee through negotiation, the “range of reasonableness” for
attorneys’ fees is greater than in a collective or class action,
though courts must nevertheless carefully scrutinize the
settlement, including to ensure that counsel’s pecuniary
interest “did not adversely affect the extent of relief counsel
procured for the client[].”

Wolinsky, 900 F. Supp. 2d at 336

(quoting Misiewicz v. D’Onofrio Gen. Contractors Corp., No. 08CV-4377(KAM)(CLP), 2010 WL 2545439, at *5 (E.D.N.Y. May 17,
2010) and Cisek v. Nat’l Surface Cleaning, Inc., 954 F.Supp.
110, 110-11 (S.D.N.Y. 1997)).
“In recent cases in this district, the court has found
hourly rates ranging from $200 to $450 for partners, $100 to
$300 for associates and $70 to $100 for paralegal assistants to
be reasonable.”

Cohetero v. Stone & Tile, Inc., No. 16-CV-

4420(KAM)(SMG), 2018 WL 565717, at *4 (E.D.N.Y. Jan. 25, 2018)
(citations omitted); accord Hall v. Prosource Techs., LLC, No.
14-CV-2502(SIL), 2016 WL 1555128, at *12-13 (E.D.N.Y. Apr. 11,
2016) (identifying a range of hourly rates prevailing in this
district); see also Ramos v. Nikodemo Operating Corp. No. 16-CV1052(KAM)(JO), slip op. at 21 (E.D.N.Y. Aug. 7, 2017) (ECF No.
42) (“Although the hourly billing rates ranging from $125 per
10

hour for paralegals to $450 per hour for senior partners are
somewhat on the high end of fee awards in this district, both
are within the range awarded in wage and hour cases in this
district.” (citing Hall, 2016 WL 1555128 at *12-13)); Lopic v.
Mookyodong Yoojung Nakjie, Inc., No. 16-CV-4179 (KAM) (CLP),
slip op. at 32-33 (E.D.N.Y. Sept. 30, 2017) (ECF No. 13)
(surveying cases and noting that hourly rates approved in cases
in this district “have ranged from for $300 to $400 for
partners, $200 to $300 for senior associates and $100 to $150
for junior associates.” (citations omitted)).
B.

Reasonableness of Plaintiff’s Counsel’s Hourly Rate
The court notes that counsel’s efforts in this instant

action solely on behalf of the plaintiff do not appear to have
involved any novel or difficult legal questions, nor does this
action’s prosecution appear to require an unusually high level
of skill.

(See Compl. ¶¶ 29-60 (setting forth causes of

action).) There is no indication that this action has precluded
counsel from taking on other employment or that the nature of
the action or the client imposed significant constraints on
counsel.

The invoice indicates that the attorney-client

relationship began in April of 2017, counsel’s representation of
plaintiff effectively ended in September of 2017, and in the
interim involved communication on an as-needed basis and did not
11

involve ongoing legal advice.

(See generally Invoice.)

Thus,

applying the factors articulated in Bogosian, 2012 WL 1821406 at
*2, and Arbor Hill, 522 F.3d at 186 n.3, the court concludes
that the “reasonable hourly rate in this action should generally
be within, and not at the top end of, the range of fees awarded
in this district.”

Cohetero, 2018 WL 565717, at *4.

The timekeepers in the instant action, together with
their position and requested hourly rate, are (i) Lloyd
Ambinder, Esq., partner, $450; (ii) Michele Moreno, Esq., Esq.,
$225; (iii) Ines Cruz, paralegal, $100; (iv) Marta Nadgorska,
paralegal, $100, (v) Christina Isnardi, paralegal, $100; and
(vi) Michael Gavrilov, paralegal, $100.

(Supp. at 1; Inv. at

3.)
Mr. Ambinder has over twenty years’ experience
litigating wage and hour class actions, including certain
unspecified “high profile class actions.”

(Supp. at 1.)

His

requested hourly rate of $450 is “at the top range typically
awarded to partners in this district,” Hall, 2016 WL 1555128, at
*12 (citations omitted).

Although the result here is favorable,

the court sees no basis to conclude that the instant individual
settlement approaches the magnitude or complexity of the high
profile class actions in which Mr. Ambinder has served as
counsel.

The court therefore finds that an hourly rate of $450
12

would be unreasonably high for Mr. Ambinder.

The court will

instead apply an hourly rate of $375 for his time, which, as
discussed above, is on the higher end of hourly rates awarded to
partners in this district but is more clearly within the range
typically awarded.
Ms. Moreno is a 2015 law school graduate and has
worked at her present firm since November of that year.
at 1.)

(Supp.

Her requested hourly rate of $225 is excessive for

someone with less than three years’ experience as an attorney,
as she is a midlevel associate and the fee range for senior
associates, who have more experience, is $200 to $300, as
discussed above.

The court will apply an hourly rate of $200

for Ms. Moreno, which is the midpoint of the range of fees
typically awarded for associates in this district.

Neither the

approval motion nor the supplement provide information regarding
the experience or qualifications of Ms. Cruz, Ms. Nadgorska, Ms.
Isnardi, or Mr. Gavrilov.

As noted above, their requested

hourly rate of $100 is on the high end of fees typically awarded
for paralegals in this district, but nothing in the record
suggests that a fee award in the high end is appropriate in this
action.

The court will therefore apply an hourly rate of $85

for these timekeepers.

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C.

Reasonableness of Hours Billed
“For purposes of determining a reasonable fee, the

number of hours billed must also be reasonable, and courts
should not award fees for ‘hours that were excessive, redundant,
or otherwise unnecessary to the litigation.’”

Cohetero, 2018 WL

565717, at *6 (quoting Hall, 2016 WL 1555128, at *13); accord
Cho v. Koan Med Servs. P.C., 524 F. Supp. 2d 202, 209 (E.D.N.Y.
2007).

Where hours billed are excessive, courts may “set[]

forth item-by-item findings concerning . . . individual billing
items,” Hall, 2016 WL 1555128, at *13 (quoting Lunday v. Cty. of
Albany, 42 F.3d 131, 134 (2d Cir. 1994)), or may opt to “reduce
an award by a specific percentage for duplicative, vague, or
excessive billing entries.”

Id. (citing In re Agent Orange

Prods. Liab. Litig., 818 F.2d 226, 237 (2d. Cir. 1987)).
Here, the invoice indicates that plaintiff’s counsel
spent 4.3 hours drafting the complaint 3 and 6.8 hours drafting
Rule 26 initial disclosures.

(See Inv. at 1.)

As noted above,

the instant action does not involve any novel or difficult legal
questions.

Accordingly, the court concludes that these hours

3

This calculation does not take into account an entry indicating that a
paralegal billed a block of 1.2 hours for “[r]eview[ing] [the] Complaint and
ma[king] minor edits,” as well as several unrelated tasks, including “legal
research to . . . confirm DOS Service Addresses for . . . Defendants,”
drafting a summons and civil cover sheet, and “e-filing” documents. (Inv. at
2.)

14

are excessive, and will reduce the hours attributable to
drafting the complaint and Rule 26 disclosures by five percent.
Applying this reduction results in a deduction of
0.555 hours, and because all of the hours at issue were billed
at the rate of $200 per hour, the corresponding reduction to the
lodestar amount is $111.
The court is satisfied that remaining hours billed are
reasonable, and will not apply any reduction to those hours.
D.

Reasonableness of Fee Request
Applying

the

aforementioned

hourly

rates,

the

court

arrives at a lodestar amount of $6,838.50, determined as follows:
TIMEKEEPER

RATE

HOURS

TOTAL

AMBINDER

$375

3.4

$1,275.00

MORENO

$200

26.8

$5,360.00

CRUZ

$85

0.2

$17.00

NADGORSKA

$85

1.1

$93.50

ISNARDI

$85

2.0

$170.00

GAVRILOV

$85

0.4

$34.00

Subtotal

$6,949.50

Excess Hours
Reduction

($111)

TOTAL

$6,838.50

The $6,270 amount requested here is below the lodestar
amount of $6,838.50, and accordingly, the court concludes that
plaintiff’s counsel’s fee request is reasonable.

15

II.

Expenses
In FLSA actions, “[c]ourts typically allow counsel to

recover their reasonable out-of-pocket expenses.”

Flores v.

Mamma Lombardi’s of Holbrook, Inc., 104 F. Supp. 3d 290, 316
(E.D.N.Y. 2015) (quoting Viafara v. Mciz Corp., No. 12-CV-7452
(RLE), 2014 WL 1777438 at *15 (S.D.N.Y. May 1, 2014)).

Here,

plaintiff’s counsel has provided documentary support for claimed
expenses in the form of an itemized list of expenses incurred
and the date on which each expense was incurred.
concludes that this support is sufficient.

The court

See id. at 316

(referring to ECF No. 155-4 in that action, an itemized list of
expenses incurred by counsel in that action, in approving
expense reimbursement in an FLSA action).

Further, the

requested expense reimbursement is reasonable.
III. Remaining Considerations
The court is in agreement with the remainder of Judge
Orenstein’s analysis.

Plaintiff’s ultimate recovery of $12,730

will be approximately eighty-six percent of $14,826.43, which
represents the maximum recovery plaintiff’s counsel estimates
plaintiff could achieve through this action.

(Mot. at 2.)

This

recovery is not unreasonable in light of the risks of
litigation.

Additionally, the Settlement Agreement appears to

have been reached at arm’s-length, and its releases are limited
16

to wage and hour claims arising before the parties executed the
Settlement Agreement.

Finally, although the non-disparagement

clause applies only to limit plaintiff’s speech, it expressly
carves out plaintiff’s “communication rights under the FLSA”
(Settlement Agreement § 7), which the court interprets to
include plaintiff’s ability to make truthful statements about
his experience litigating this case.

See Lopez, 96 F. Supp. 3d

at 180 n.65 (“[A non-disparagement clause] must include a carveout for truthful statements about plaintiffs’ experience
litigating their case.

Otherwise, such a provision contravenes

the remedial purposes of the [FLSA] and, in this context, is not
‘fair and reasonable.’”).
Conclusion
For the reasons set forth above, the court adopts
Judge Orenstein’s Report and Recommendation and approves the
settlement agreement.

The court will “so order” the executed

stipulation of dismissal that the parties have filed with the
approval motion.
SO ORDERED.
Dated:

June 17, 2018
Brooklyn, New York
___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

17