Cuevas v. Punjabi Kabab House et al
Filing
92
MEMORANDUM & ORDER granting in part and denying in part 84 Motion for Attorney Fees. For the foregoing reasons, Plaintiff's motion is GRANTED IN PART and DENIED IN PART. The Clerk of the Court is directed to enter judgment in the amount of & #036;38,111.05 in compensatory damages, $9,715.50 in liquidated damages under the FLSA, $9,527.76 in liquidated damages under the NYLL, $93,391.50 in attorneys' fees, and $9,309.29 in costs. The Clerk of the Court is further directed to mark this case as CLOSED. So Ordered by Judge Joanna Seybert on 6/17/2013. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
CARMEN CUEVAS,
Plaintiff,
MEMORANDUM & ORDER
10-CV-5257(JS)(WDW)
-againstRUBY ENTERPRISES OF NEW YORK INC.
d/b/a PUNJABI KABOB HOUSE, SURINDER
KAUR, MANIDER KAUR, RAJVEER KAUR, and
BALWINDER SINGH,
Defendants.
----------------------------------------X
APPEARANCES
For Plaintiff:
Giustino (“Justin”) Cilenti, Esq.
Peter Hans Cooper, Esq.
708 Third Avenue
New York, NY 10017
For Defendants:
Eliot F. Bloom, Esq.
114 Old Country Road, Suite 308
Mineola, NY 11501
Lance D. Simon, Esq.
The Law Offices of Anthony A. Capetola
2 Hillside Avenue, Building C
Williston Park, NY 11596
SEYBERT, District Judge:
Currently pending before the Court is Plaintiff Carmen
Cuevas’s
(“Plaintiff”)
motion
for
attorneys’
fees.
For
the
following reasons, Plaintiff’s motion is GRANTED IN PART and
DENIED IN PART.
BACKGROUND
Plaintiff commenced this action on November 15, 2010
against Defendants Punjabi Kabob House, Balwinder Singh, Ruby
Enterprises of New York Inc. d/b/a Punjabi Kabob House, Surinder
Kaur, Manider Kaur, and Rajveer Kaur (collectively “Defendants”)
asserting claims for unpaid minimum wages, overtime pay, and
“spread of hours” premium pursuant to the Fair Labor Standards
Act (“FLSA”), as amended 29 U.S.C. §§ 201, et seq., and New York
Labor Law (“NYLL”) §§ 190, et seq.
Discovery took place over
the course of approximately a year and a half until Magistrate
Judge William D. Wall declared the case trial ready on July 18,
2012.
A five-day jury trial ultimately took place, and on
January
30,
Plaintiff.
minimum
2013,
The
wages,
the
jury
jury
returned
awarded
overtime
a
Plaintiff
compensation,
verdict
in
$38,111.05
and
“spread
favor
of
in
unpaid
of
hours”
premium against Defendants Ruby Enterprises of New York Inc. and
Balwinder Singh.
(See Verdict Sheet, Docket Entry 82, Ct. Ex.
6.)
ordered
The
Court
Plaintiff
to
file
his
motion
attorneys’ fees within thirty days of the jury’s verdict.
for
(See
1/30/13 Minute Entry, Docket Entry 80.)
Plaintiff
2013.
timely
filed
his
motion
on
(See Notice of Motion, Docket Entry 84.)
February
28,
Over one month
later, Defendants requested a briefing schedule on the motion.
(4/2/13 Ltr., Docket Entry 87.)
an
Order
to
Show
Cause,
Generously, this Court issued
providing
Defendants
with
the
opportunity to explain their lengthy delay in seeking to oppose
2
the motion.
this
(OTSC, Docket Entry 89.)
Court,
as
the
Order
to
Rather than appear before
Show
Cause
required,
defense
counsel, Eliot F. Bloom, Esq., filed a letter stating that he
was out of town, that he was scheduled to begin trial, and that
Defendant Balwinder Singh had been out of the country.
Ltr.,
Docket
insufficient
Entry
and,
as
90.)
a
Mr.
result,
Bloom’s
the
response
Court
motion for attorneys’ fees unopposed.
deemed
was
(4/8/13
wholly
Plaintiff’s
(4/10/13 Order, Docket
Entry 91.)
DISCUSSION
Currently,
Plaintiff
seeks
an
award
attorneys’ fees and $9,309.29 in costs.
of
$118,850
in
Plaintiff has also
requested that liquidated damages be included in the judgment.
Initially, the Court notes that Plaintiff is entitled
to reasonable attorneys’ fees and costs.
See Jemine v. Dennis,
901 F. Supp. 2d 365, 2012 WL 4482769, at *22 (E.D.N.Y. Sept. 28,
2012) (“Both the FLSA and New York’s Labor Law allow for an
award
of
‘reasonable’
attorneys’
fees.”
§ 216(b) and N.Y. Lab. Law § 663(1))).
the amount to be awarded.
(citing
29
U.S.C.
Thus, the sole issue is
The Court will first set forth the
general framework for deciding attorneys’ fees motions before
addressing Plaintiff’s motion more specifically.
3
I.
Legal Framework
“Attorney’s fees must be reasonable in terms of the
circumstances of the particular case . . . .”
Am.
World
Airways,
169
F.3d
99,
102
(2d
Alderman v. Pan
Cir.
1999).
In
determining what fees are “reasonable,” the Court should “first
calculate the ‘lodestar--the product of a reasonably hourly rate
and the reasonable number of hours required by the case,’ which
the Second Circuit calls the ‘presumptively reasonable fee.’”
Short
v.
Manhattan
Apartments,
Inc.,
286
F.R.D.
248,
255
(S.D.N.Y. 2012) (quoting Millea v. Metro-N. R.R. Co., 658 F.3d
154,
166
(2d
Cir.
2011)).
The
Court
may
then
“adjust
the
lodestar when it ‘does not adequately take into account a factor
that
may
fee.’”
properly
be
considered
in
determining
a
reasonable
Millea, 658 F.3d at 167 (quoting Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 130 S. Ct. 1662, 1673, 176 L. Ed. 2d
494 (2010)).
This calculation “boils down to what a reasonable,
paying client would be willing to pay, given that such a party
wishes
to
spend
the
minimum
necessary
to
litigate
the
case
effectively.”
Simmons v. N.Y.C. Transit Auth., 575 F.3d 170,
174
2009)
(2d
omitted).
Cir.
(internal
quotation
marks
and
citation
“Because attorney’s fees are dependent on the unique
facts of each case, the resolution of this issue is committed to
the discretion of the district court.”
F.2d 1146, 1153 (2d Cir. 1992).
4
Clarke v. Frank, 960
II.
Reasonable Hourly Rate
In determining the reasonable hourly rate, the Court
must
look
similar
to
those
services
by
rates
“prevailing
lawyers
experience, and reputation.”
of
in
reasonably
the
community
comparable
for
skill,
Luciano v. Olsten Corp., 109 F.3d
111, 115 (2d Cir. 1997) (quoting Blum v. Stenson, 465 U.S. 886,
896 n.11, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984) (internal
quotation marks omitted)).
The relevant “community” for the
purposes of this analysis is “the district in which the court
sits.”
Polk v. N.Y. State Dep’t of Corr. Servs., 722 F.2d 23,
25 (2d Cir. 1983).
Here, Plaintiff is seeking $400 per hour for services
performed by Justin Cilenti, Esq., $400 per hour for services
performed
by
Peter
H.
Cooper,
Esq.,
services performed by Maria Zuniga.
and
$100
per
hour
for
The Court finds that these
rates require some adjustment.
Courts
in
the
Eastern
District
of
New
York
have
determined reasonable hourly rates to be “approximately $300-450
per hour for partners, $200-300 per hour for senior associates,
and $100-200 per hour for junior associates.”
Hugee v. Kimso
Apartments, L.L.C., 852 F. Supp. 2d 281, 298-99 (E.D.N.Y. 2012)
(internal quotation marks and citation omitted); accord Cadles
of Grassy Meadows II, L.L.C. v. St. Clair, No. 10-CV-1672, 2012
WL 6617448, at *2 (E.D.N.Y. Dec. 18, 2012) (collecting cases).
5
Thus, the rates charged by Mr. Cilenti and Mr. Cooper, while in
the appropriate range, are on the somewhat higher end of the
spectrum.
Mr. Cilenti is an experienced attorney and has been
practicing for sixteen years.
(Cilenti Decl. ¶ 13.)
Similarly,
Mr. Cooper has eighteen years experience in the field.
Decl. at 4 n.1.)
(Cilenti
However, “[w]hile Mr. Cilenti has considerable
experience as a litigator, his background is not as extensive as
those ‘highly experienced and impeccably credentialed’ partners
who ‘have been awarded rates on the higher end of the attorneys’
fee spectrum.’”
Rosas v. Subsational, No. 11-CV-2811, 2012 WL
4891595, at *10 (E.D.N.Y. Sept. 11, 2012), adopted by 2012 WL
4866678 (quoting Ueno v. Napolitano, No. 04-CV-1873, 2007 WL
1395517, at *9 (E.D.N.Y. May 11, 2007)).
Furthermore, “the
nature of representation and type of work involved in a case are
critical
rate.”
ingredients
in
determining
the
‘reasonable’
hourly
Arbor Hill v. Concerned Citizens Neighborhood Assoc. v.
Cnty. of Albany, 522 F.3d 182, 184 n.2 (2d Cir. 2008).
Though
the case proceeded through trial, the issues were relatively
straightforward
and
the
case
was
not
particularly
complex.
Accordingly, the Court finds that a rate of $350 an hour for Mr.
Cilenti and Mr. Cooper’s services to be reasonable.
See Rosas,
2012 WL 4891595, at *10 (setting $350 an hour as a reasonable
rate for Mr. Cilenti’s work); Garcia v. Giorgio’s Brick Oven &
6
Wine Bar, No. 11-CV-4689, 2012 WL 3339220, at *7 (S.D.N.Y. Aug.
15, 2012) (same), adopted by 2012 WL 3893537 (S.D.N.Y. 2012).
In
addition,
courts
in
this
Circuit
have
generally
found $75 an hour to be reasonable with respect to paralegal
work.
See Castellanos v. Deli Casagrande Corp., No. 11-CV-0245,
2013 WL 1207058, at *10 (E.D.N.Y. Mar. 7, 2013) (awarding $75 an
hour for paralegal fees), adopted by 2013 WL 1209311 (E.D.N.Y.
2013); Gunawan v. Sake Sushi Restaurant, 897 F. Supp. 2d 76, 95
(E.D.N.Y. 2012) (same); Vazquez v. Ranieri Cheese Corp., No. 07CV-0464, 2011 WL 554695, at *2 (E.D.N.Y. Feb. 7, 2011) (noting
the usual range of $70 to $80 an hour for “legal assistants” in
this district).
As such, the Court will award fees for Ms.
Zuniga’s work at the rate of $75 an hour.
III.
Reasonable Number of Hours
In calculating the number of “reasonable hours,” the
Court must look to its own familiarity with the case and its
experiences generally as well as to any evidentiary submissions
and arguments made by the parties.
1153.
See Clarke, 960 F.2d at
The main issue is “whether, at the time the work was
performed, a reasonable attorney would have engaged in similar
time expenditures.”
1992).
Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.
Thus, a court should “exclude hours that were excessive,
redundant, or otherwise unnecessary to the litigation.”
7
Cho v.
Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 209 (E.D.N.Y. 2007)
(internal quotation marks and citation omitted).
Here, Plaintiff seeks fees for a total of 285 hours
spent by Mr. Cilenti, 3.1 hours spent by Mr. Cooper, and 36.1
hours spent by Ms. Zuniga.
(See Cilenti Decl. ¶ 12.)
First,
0.9 of those hours, billed by Ms. Zuniga, are attributable to
conversations with witnesses that were never called to testify.
This time is not the “type a reasonable client would be willing
to pay for.”
Jemine, 2012 WL 4482769, at *24 (finding that
client would not be willing to pay for time spent meeting with
and calculating damages for plaintiffs whose claims were not
included in the motion for damages).
Accordingly, the Court
subtracts 0.9 hours from Ms. Zuniga’s total number of hours.
Second,
because
the
amount
of
paralegal
time
was
relatively minimal and “because no . . . junior associate worked
on the case, some of the hours recorded for partner-level work
are inflated.”
Garcia, 2012 WL 3339220, at *7.
In particular,
the Court notes the rather large number of tasks performed by
Mr. Cilenti that would have been more appropriately assigned to
a paralegal, such as general correspondence and scheduling with
process
(See,
servers,
e.g.,
translators,
Cilenti
Decl.
and
Ex.
A,
defense
entries
11/15/10, 3/25/11, 3/29/11, 4/18/11.)
as
basic
research
and
discovery
8
counsel’s
by
Mr.
office.
Cilenti
on
Similarly, services such
responses
could
have
been
provided by a more junior attorney.
(See, e.g., Cilenti Decl.
Ex. A, entries by Mr. Cilenti on 10/29/10, 3/29/11, 8/2/11.)
Thus,
warranted.
a
reduction
in
the
number
of
hours
here
is
“In doing so, ‘the court has discretion simply to
deduct a reasonable percentage of the number of hours claimed as
a
practical
means
of
trimming
fat
from
a
fee
application.”
Jemine, 2012 WL 4482769, at *24 (quoting Kirsch v. Fleet Street
Ltd., 148 F.3d 149, 173 (2d Cir. 1998)).
Accordingly, the Court
finds a ten percent reduction in the number of partner hours
spent in this case to be appropriate.
See Garcia, 2012 WL
3339220, at *7 (reducing Cilenti’s hours by 10%).
As a result, the Court awards attorneys’ fees in the
amount of $93,391.50.1
IV.
Costs
Plaintiff also seeks $9,309.29 in costs, primarily for
expenses such as translators, copies, transcripts, and expenses
related
to
trying
the
case.
(Cilenti
Decl.
Ex.
A
at
24.)
Successful plaintiffs in FLSA and NYLL cases are entitled to
recover “identifiable, out-of-pocket disbursements.”
1
Jermine,
The Court reached this figure by first reducing the total
number of partner hours by ten percent (288.1 hours - 28.81
hours) and then multiplying the result (259.29 hours) by
$350/hour for a total of $90,751.50. Next, the Court subtracted
from Ms. Zuniga’s hours the time spent regarding witnesses who
did not testify (36.1 hours - 0.9 hours) and then multiplying
the result by $75/hour for a total of $2,640.00. This led to a
total figure of $93,391.50.
9
2012
WL
Having
4482769,
examined
at
*25
(internal
Plaintiff’s
quotation
delineation
of
marks
costs,
omitted).
the
Court
finds them to be substantiated, and thus holds that Plaintiff is
entitled to $9,309.29 in costs.
See Jin v. Pac. Buffet House,
Inc., No. 06-CV-0579, 2010 WL 2653334, at *5 (E.D.N.Y. June 25,
2010) (awarding costs that were substantiated and reasonable in
FLSA case).
V.
Liquidated Damages
Finally,
Plaintiff
reiterates
his
liquidated damages be included in the judgment.
request
that
“Both federal
and state law provide for an additional award of liquidated
damages to a plaintiff who establishes that her employer has
failed to pay required wages.”
91.
Although
there
has
Gunawan, 897 F. Supp. 2d at 90-
been
some
debate
as
to
whether
a
successful plaintiff may recover liquidated damages under both
statutes, the general consensus in this Circuit is that the
statutory provisions operate in different ways, and therefore a
plaintiff may recover under both.
Id. at 91.
The FLSA provides that “[a]ny employer who violates
the provisions of section 206 or section 207 of this title shall
be liable to the employee or employees affected in the amount of
their
unpaid
minimum
wages,
or
their
unpaid
overtime
compensation, as the case may be, and in an additional equal
amount as liquidated damages.”
29 U.S.C. § 216(b).
10
Because the
violation
in
this
case
was
willful,
the
liquidated
damages
provision applies to the three years prior to commencement of
this action.
See Santillan v. Henao, 822 F. Supp. 2d 284, 297
(E.D.N.Y. 2011).
Here, the jury did not find a failure to pay
minimum wage during those years.
Thus,
the
liquidated
overtime
relevant
damages
pay
$2,900.00,
in
figures
are
the
$3,469.30,
Sheet, Ct. Ex. 6.)
those
years
and
(Verdict Sheet, Ct. Ex. 6.)
for
purposes
the
jury
2010,
awarded
2009,
$3,346.20
of
and
calculating
for
unpaid
2008--namely
respectively.
(Verdict
As such, the Court awards liquidated damages
under the FLSA in the amount of $9,715.50.2
Under
NYLL,
Plaintiff
“of
NYLL.”
Garcia, 2012 WL 3339220, at *4.
recover
underpayments
twenty-five
for
may
percent
may
any
the
percent
recover
willful
of
twenty-five
violations
of
the
Accordingly, Plaintiff
the
total
award
of
$38,111.05, or $9,527.76 in liquidated damages under the NYLL.
2
Plaintiff’s proposed judgment, Docket Entry 85, Ex. C, does not
specifically explain how Plaintiff reached a figure of $15,888
for liquidated damages under the FLSA. However, it appears that
Plaintiff included in his calculation not only the amounts
awarded for overtime pay during the relevant years, but also
amounts awarded for a “spread of hours premium.” Such amounts,
though, are not applicable to the FLSA. See Garcia, 2012 WL
3339220, at *5 (“Unlike the FLSA, the NYLL incorporates the
‘spread of hours’ premium for purposes of awarding liquidating
damages.”).
11
CONCLUSION
For
the
foregoing
reasons,
Plaintiff’s
motion
is
GRANTED IN PART and DENIED IN PART.
The Clerk of the Court is directed to enter judgment
in the amount of $38,111.05 in compensatory damages, $9,715.50
in liquidated damages under the FLSA, $9,527.76 in liquidated
damages
under
the
$9,309.29 in costs.
NYLL,
$93,391.50
in
attorneys’
fees,
The Clerk of the Court is further directed
to mark this case as CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
and
June 17, 2013
Central Islip, NY
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?