Feuer et al v. Cornerstone Hotels Corp. et al
Filing
121
MEMORANDUM AND ORDER granting 106 Motion for Attorney Fees RE: 101 Bill of Costs and 102 Declaration: For the reasons set forth herein, the Court in the exercise of its discretion, awards Borrelli & Associates $29,176.50 in attorneys' ; fees for which defendants are jointly and severally liable, and an additional $1,737.00 in attorneys' fees for which Cornerstone alone is liable. In addition, the Court awards Borrelli & Associates $2,763.00 in costs, which amount in cludes both taxable and non-taxable costs, for which defendants are jointly and severally liable. Finally, the Clerk of Court shall mail a copy of this order to defendants. So Ordered by Circuit Judge VJ-Joseph F Bianco on 10/20/2021. (Cubano, Jazmin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FILED
CLERK
11:53 am, Oct 20, 2021
SETH FEUER AND SUSANN FEUER,
U.S. DISTRICT COURT
Plaintiffs, EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
VERSUS
N• 14-CV-5388 (JFB) (SIL)
CORNERSTONE HOTELS CORP. AND NAEEM BUTT,
Defendants.
MEMORANDUM AND ORDER
October 20, 2021
JOSEPH F. BIANCO, Circuit Judge (sitting by
designation):
Plaintiffs Seth Feuer and Susann Feuer
("plaintiffs") brought this action against
Cornerstone Hotels Corp., doing business as,
at various times, Sun N Sand Hotel, Sea
Haven Resort, Ocean Breeze Motel, and
Longview Motel ("Cornerstone"), and
Naeem Butt ("Butt," and collectively with
Cornerstone, "defendants"), asserting claims
under the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201 et seq., and the
New York Labor Law ("NYLL"), N.Y. Lab.
Law §§ 190 et seq. and 650 et seq.
Specifically,
plaintiffs
alleged
that
defendants violated the following provisions:
(1) the minimum wage and overtime
provisions of the FLSA, 29 U.S.C. §§ 206(a),
207(a); (2) the minimum wage and overtime
provisions of the NYLL, N.Y. Lab. Law
§§ 160, 652(1); (3) the "spread of hours"
provisions under the NYLL, N.Y. Comp.
Codes R. & Regs tit. 12, § 142-2.4; (4) N.Y.
Lab. Law§ 195(3), which requires employers
to furnish employees with wage statements
containing certain information each payday;
and (5) N.Y. Lab. Law § 195(1), which
requires employers to furnish employees with
a wage notice containing certain information
at the time of hiring and on an annual basis.
(ECF No. 1.) Plaintiffs sought slightly less
than $80,000 in damages. (ECF No. 87 at 1718.)
On January 24, 2020, after a two-day
bench trial on September 5 and 6, 2018, this
Court issued its findings of fact and
conclusions of law. Feuer v. Cornerstone
Hotels Corp., No. 14-CV-5388 (JFB) (SIL),
2020 WL 401787, at *1 (E.D.N.Y. Jan. 24,
2020). In summary, the Court concluded that
plaintiffs were entitled to the following relief:
(1) $92 in unpaid wages for violations of the
minimum wage provisions of the FLSA and
NYLL relating to Seth Feuer; (2) $92 in
liquidated damages relating to Seth Feuer;
(3) $2,700 in statutory damages relating to
Seth Feuer in connection with his eighteen
weeks of employment for violation of the
wage statements and notice provisions under
the motion for default judgment, an
additional $1,737.00 for which Cornerstone
alone is liable. The Court further concludes
that plaintiffs should be awarded the full
$1,344.91 in reimbursable costs and that the
requested $1,418.09 in taxable costs is
properly taxable.
the NYLL; (4) $2,400 in statutory damages
relating to Susann Feuer in connection with
her sixteen weeks of employment for
violation of the wage statements and notice
provisions under the NYLL; (5) prejudgment interest; and (6) post-judgment
interest. Id at *1-2 (E.D.N.Y. Jan. 24, 2020).
I.
Presently before the Court is a motion for
fees and costs filed by plaintiffs' counsel,
Borrelli & Associates, (ECF. No. 106), as
well as their request for taxation of costs
(ECF Nos. 101-02). Accompanying their
motion for fees and costs is a memorandum
of law ("Pls.' Mem.") and an affidavit from
Danielle E. Mietus ("Mietus Aff. ") with
attached exhibits. (ECF Nos. 107-08.) In
particular,
plaintiffs'
counsel
seeks
$50,772.50 in fees for certain tasks and
$1,344.91 in reimbursable costs. Mr. Butt
submitted his objection to the motion on
September 28, 2020, principally arguing that
the fee request was excessive in light of
plaintiffs' limited success. (ECF No. 113.)
Plaintiffs filed a reply on October 15, 2020,
responding that their fee award need not be
proportional to the amount of their recovery
under governing Second Circuit case law and
reiterating that their requested fee award is
reasonable. (ECF No. 114.) In their reply,
plaintiffs also requested an additional $750 in
fees for time spent preparing that letter brief,
which brings the total requested fee amount
to $51,522.50. (Id at 3 n.3.)
BACKGROUND
A. Factual Background
The Court set forth the factual and
procedural background of this case in its
January 24, 2020 Memorandum and Order,
see Feuer, 2020 WL 401787, at *2-8, and that
background is incorporated by reference
herein.
II. DISCUSSION
Plaintiffs' counsel does not request fees
for all of their time spent on this case; rather,
as noted above, they request $51,522.50 in
fees for certain tasks and $1,344.91 in
reimbursable costs. (Mietus Aff. 11 46, 82;
ECF No. 114 at 3 n.3.) In particular,
plaintiffs seek $48,627.50 for compensation
for the following tasks from both defendants
jointly and severally: (1) $3,625 for drafting
the complaint; (2) $3,512.50 for engaging in
discovery and attending nine court
conferences; (3) $33,410 for briefing the
motion for partial summary judgment and
responding to Butt's cross-motions to amend
and to dismiss; (4) $1,750 for conducting the
first day of the two-day bench trial;
(5) $5,580 for the initial fee application; and
(6) $750 for their fee application reply.
(Mietus Aff. 1138, 44, 47; Pis.' Mem. at 2-3;
ECF No. 114 at 3 n.3.) Plaintiffs also seek
$2,895.00 solely against Cornerstone for the
motion for default judgment (ECF Nos. 10305; Pls.' Mem. at 3.) As to costs, plaintiffs
request $1,344.91 for their reimbursable
expenses, which include reimbursable
mileage costs, Westlaw research costs, and
mailing, printing, and postage costs, (Mietus
Aff. 1 82 & Ex. C), in addition to taxable
With respect to their request for taxation
of costs, which was filed along with a Bill of
Costs and certain supporting documentation,
plaintiffs request that the Clerk of Court tax
their costs in the amount of$1,418.09. (ECF
Nos. 101-02.)
As explained below, the Court concludes,
in its discretion, that the fees requested by
plaintiffs' counsel are excessive and should
be reduced to $29,176.50 for which
defendants are jointly and severally liable,
and, for work performed in connection with
2
factor in determining the proper amount of an
award of attorney's fees." Hensley, 461 U.S.
at 440. "Where a plaintiff has obtained
excellent results, his attorney should recover
a fully compensatory fee . . . [even if] the
plaintiff failed to prevail on every contention
raised in the lawsuit." Id. at 435. "If, on the
other hand, a plaintiff has achieved only
partial or limited success, the product of
hours reasonably expended on the litigation
as a whole times a reasonable hourly rate may
be an excessive amount. This will be true
even where the plaintiffs claims were
interrelated, nonfrivolous, and raised in good
faith." Id at 436; see also Barfield v. NYC.
Health & Hasps. Corp., 537 F.3d 132, 152
(2d Cir. 2008) ("[W]e are mindful of the
Supreme Court's observation that the most
critical factor in a district court's
determination of what constitutes reasonable
attorney's fees in a given case is the degree
of success obtained by the plaintiff." (internal
quotation marks omitted)).
costs in a Bill of Costs submitted on February
24, 2020 in the amount of $1,418.09, (ECF
Nos. 101-02).
A. Attorneys' Fees
It is well settled that " [u]nder the FLSA
and the NYLL, a prevailing plaintiff is
entitled to reasonable attorneys' fees and
costs." Fisher v. SD Prof. Inc., 948 F.3d 593,
600 (2d Cir. 2020); see also 29 U.S.C.
§ 216(b);
N.Y.
Lab.
Law
§§ 198(l)(a), 663(1).
To
calculate
reasonable attorneys' fees, the Court uses the
"lodestar figure," which is determined by
multiplying the number of hours reasonably
expended on a case by a reasonable hourly
rate. See Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); Millea v. Metro-North R.R. Co.,
658 F.3d 154, 166 (2d Cir. 2011); Luciano v.
Olsten Corp., 109 F.3d 111, 115 (2d Cir.
1997). "Both [the Second Circuit] and the
Supreme Court have held that the lodestar ...
creates a 'presumptively reasonable fee."'
Millea, 658 F.3d at 166 (quoting Arbor Hill
Concerned Citizens Neighborhood Assoc. v.
County ofAlbany, 522 F.3d 182, 183 (2d Cir.
2008)). "[T]he lodestar figure includes most,
if not all, of the relevant factors constituting
a 'reasonable' attorney's fee." Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 553
(2010) (quoting Pennsylvania v. Del. Valley
Citizens' Council for Clean Air, 478 U.S.
546, 565-66 (1986)). Thus, the Supreme
Court has recognized that "the lodestar
method produces an award that roughly
approximates the fee that the prevailing
attorney would have received ifhe or she had
been representing a paying client who was
billed by the hour in a comparable case." Id.
at 551. "The burden is on the party seeking
attorney's fees to submit sufficient evidence
to support the hours worked and the rates
claimed." Hugee v. Kimso Apartments, LLC,
852 F. Supp. 2d 281,298 (E.D.N.Y. 2012).
1. Reasonable Hourly Rate
A "reasonable hourly rate" is '"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."' Bergerson v. NY State Off of
Mental Health, Cent. NY Psychiatric Ctr.,
652 F.3d 277, 289 (2d Cir. 2011) (quoting
Simmons v. NYC. Transit Auth., 575 F.3d
170, 174 (2d Cir. 2009)). This Court follows
the Second Circuit's "forum rule," which
"generally requires use of 'the hourly rates
employed in the district in which the
reviewing court sits in calculating the
presumptively reasonable fee."' Id at 290
(quoting Simmons, 575 F.3d at 174). In
Arbor Hill, the Second Circuit also instructed
district courts to consider the factors set forth
in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974), abrogated
on other grounds by Blanchard v. Bergeron,
The Supreme Court has held that "the
extent of a plaintiffs success is a crucial
3
Ultimately, however, "in light of the
numerous factors that courts in this circuit
consider to determine a reasonable hourly
rate, 'the range of "reasonable" attorney fee
rates in this district varies depending on the
type of case, the nature of the litigation, the
size of the firm, and the expertise of its
attorneys."' Houston, 234 F. Supp. 3d at 402
(quoting Siracuse v. Program for the Dev. of
Human Potential, No. 07-CV-2205 (CLP),
2012 WL 1624291, at *30 (E.D.N.Y. Apr.
30, 2012)).
489 U.S. 87 (1989). See 522 FJdat 190. The
twelve Johnson factors are:
( 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.
2. Hours Reasonably Expended
"The party seeking attorney's fees also
bears the burden of establishing that the
number of hours for which compensation is
sought is reasonable." Custodio v. Am. Chain
Link& Constr., Inc., No. 06-CV-7148 (GBD)
(HBP), 2014 WL 116147, at *9 (S.D.N.Y.
Jan. 13, 2014) (citing Cruz v. Local Union
No. 3 of Int'[ Brotherhood of Elec. Workers,
34 FJd 1148, 1160 (2d Cir. 1994)).
"Applications for fee awards should
generally
be
documented
by
contemporaneously created time records that
specify, for each attorney, the date, the hours
expended, and the nature of the work done."
Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173
(2d Cir. 1998). "Hours that are 'excessive,
redundant, or otherwise unnecessary,' are to
be excluded, and in dealing with such
surplusage, 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."' Id.
(first quoting Hensley, 461 U.S. at 434; then
quoting N Y. Ass 'n for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.
1983)); see also Lunday v. City ofAlbany, 42
FJd 131, 134 (2d Cir. 1994) ("We do not
require that the court set forth item-by-item
findings concerning what may be countless
objections to individual billing items.'';,
Finally, when the Court makes this
determination, it "does not play the role of an
Id. at 186 n.3 (quoting Johnson, 488 F.2d at
717-19).
"The burden rests with the
prevailing party 'to justify the reasonableness
of the requested rate."' Hugee, 852 F. Supp.
2d at 298 (quoting Blum v. Stenson, 465 U.S.
886, 895 n.11 (1984)).
Courts in this district have concluded that
$200 to $450 per hour is a reasonable hourly
rate for partners, $200 to $325 per hour is
reasonable for senior associates, and $100 to
$200 per hour is reasonable for more junior
associates. See Joe Hand Promotions, Inc. v.
Benitez, No. 18-CV-06476 (ARR) (PK),
2020 WL 5519200, at *7 (E.D.N.Y. Aug. 27,
2020), report and recommendation adopted,
2020 WL 5517240 (E.D.N.Y. Sept. 14,
2020); Houston v. Cotter, 234 F. Supp. 3d
392, 402 (E.D.N.Y. 2017) (citing Sass v.
MTA Bus Co., 6 F. Supp. 3d 238, 261
(E.D.N.Y. 2014)); Ganci v. US. Limousine
Serv. Ltd., No. 10-CV-3027 (JFB) (AKT),
2015 WL 1529772, at *5 (E.D.N.Y. Apr. 2,
2015) (collecting cases).
4
Dong
PhuongV.
Nocuven
H. Joseph
Cronen
Peter J.
Andrews
Michael J.
Palitz
Total:
uninformed arbiter but may look to its own
familiarity with the case and its experience
generally as well as to the evidentiary
submissions and arguments of the parties."
Gierlinger v. Gleason, 160 F.3d 858, 876 (2d
Cir. 1998)(quoting DiFilippo v. Morizio, 759
F.2d 231, 235-36 (2d Cir. 1985)).
3. Application
Senior $250 131.6
Associat<
$32,900.00
Senior $250 5.7
Associatt
Senior $250 10.7
Associat,
Senior $250 5.2
Associak
207.3
$1,425.00
$2,675.00
$1,300.00
$51,522.50
a. Reasonable Hourly Rates
(Mietus Aff.
Plaintiffs seek an hourly rate for their
attorneys as follows: (1) $400 per hour for
managing partner Michael J. Borrelli;
(2) $350 per hour for partner Alexander T.
Coleman and $325 for the time he billed
before he became a partner; (3) $200 per hour
for associate Danielle E. Mietus; and
(4) $250 per hour for other associates. (Pis.'
Mem. at 7.) Borrelli & Associates has
submitted records and an affidavit attesting to
their legal experience and work on this
matter. (See Mietus Aff. ,r,r 52-80 & Ex. B.)
As a threshold matter, the Court
concludes that the time records provided by
Borrelli & Associates generally meet the
requirements for an award of attorneys' fees.
(Mietus Aff., Ex. A.) As noted above, "[t]he
burden is on the party seeking attorney's fees
to submit sufficient evidence to support the
hours worked and the rates claimed." Hugee,
852 F. Supp. 2d at 298 (citing Hensley, 461
U.S. at 433). Thus, fee applications must be
supported by contemporaneous records that
"specify, for each attorney, the date, the hours
expended, and the nature of the work done."
Carey, 711 F.2d at 1148; accord Fisher, 948
F.3d at 600, Although some of the time
entries that plaintiffs' counsel submitted are
generalized, such as "File Review," the Court
concludes that plaintiffs met their burden
here.
In light of the prevailing hourly rates in
this district, and all the other factors set forth
in Arbor Hill, the Court concludes that these
requested rates are reasonable.
b. Reasonable Hours
The rates and hours requested are as
follows:
With respect to the hours expended,
counsel explains that they spent 694.6 hours
on this matter, but only seek fees for 207.3
hours for certain tasks. (Mietus Aff. ,r 46 &
Ex. A; ECF No. 114 at 3 n.3.) Specifically,
based on counsel's time records, they seek
the following compensation, broken down by
task:
Total
Name Position Rate Hours
$40.00
Michael J. Partner $400 .1
Bo1rnlli
Alexander 0 artner
$350 13,8
$4,830.00
T.
Coleman
Alexander Senior $325 2.5
Counsel
T.
Coleman
Danielle Associate $200 37.7
E. Mietus
,r 46; ECF No. 114 at 3 n.3.) 1
$812.50
$7,540.00
reply for the instant motion. (See ECF No, 114
at 3 n.3.)
1
This chat1 reflects the additional 3 hours that
plaintiffs requested for time spent preparing the
5
Task
Hours
complaint]-were excessive in light of the
level of difficulty and complexity of this
case" and reducing that portion of the fee by
60%).
Fee
Complaint
14.2
$3,625.00
Discovery Matters
Summary Judgment
Motion
Trial
13.6
$3,512.50
130
$33,410.00
7
$1,750.00
26
$5,580.00
13.5
$2,895.00
3
$750.00
207.3
$51,522.50
Initial Fees Motion
Default Judgment
Motion
Fees Motion Reply
Total
In addition, the Court concludes that 130
?ours spent on the motion for summary
Judgment and related briefing, for a total
charge of $33,410, is excessive. Although
plaintiffs also had to respond to Butt's pro se
motions to _amend and dismiss at that stage,
none of the issues presented were particularly
challenging.
See, e.g., Big R Food
Warehouses v. Local 338 RWDSU, 896 F.
Supp. 292, 299 (E.D.N.Y. 1995) (reducing
number of hours from 31.5 to 26.5 hours for
a 14-page summary judgment motion that did
not involve "complex or novel" issues); see
also DiFilippo, 759 F.2d at 235 (stating that,
although "the fact that a case is
straightforward is not grounds to reduce a
lodestar award ... , the nature of the case does
raise the issue of the propriety of the
proposed lodestar amount"). This is in
contrast to cases such as Pas/re v. Weber,
where the district court found that "128.75
hours spent between November 9, 1987 and
April 18, 1988 preparing for and responding
to defendants' summary judgment motion"
was "fully warranted," given that the
defe~dants' papers "comprised a 64-page
opemng memorandum of law, affidavits
totalling [sic] 42 pages, a 22-page Local Civil
Rule 3(g) statement (with an additional 482
pages of exhibits), and an 18-page reply
brief." 800 F. Supp. 1120, 1126 (S.D.N.Y.
1991). In this case, the motion for partial
summary judgment, and Butt's prose crossmotions, simply did not warrant 130 hours of
attorney work.
(Mietus Aff. Ex. A; ECF No. 114 at 3 n.3.)
Even with this voluntarily reduced
lodestar figure, the Court finds the number of
hours expended by Borrelli & Associates to
be unreasonable because the hours requested
are excessive given the nature of this
particular case. See Millea, 658 F.3d at 167
("[W]hile a district court may not adjust the
lodestar based on [the novelty and
complexity of a case], it may use [those
factors] to determine the reasonable number
of hours the case requires."). In its review of
their billing records for the tasks for which
compensation is sought, the Court finds
various instances of excessive billing, even as
to the lower revised hours submitted by
plaintiffs' counsel, that warrant reduction.
See Kirsch, 148 F.3d at 173 ("[T]he 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[.]" (internal quotation marks
omitted)).
For example, the Court finds that 14.2
hours spent on a relatively straightforward
13-page wage-and-hour complaint for a total
of $3,625 is excessive. See, e.g., Clarke v.
Hudson Valley Fed Credit Union, No. 14CV-5291 (KBF), 2016 WL 884667, at *8
(S.D.N.Y. Mar. 8, 2016) (finding that "12.9
hours worked at a rate of $400 per hour, for a
total charge of $5,160 [for drafting the
Moreover, as to the fee application itself,
courts in this Circuit have recognized a
prevailing party's right to recover fees for
time spent on the motion for attorneys' fees
itself. See, e.g.,Finkv. CityofNew York, 154
F. Supp. 2d 403, 412 (E.D.N.Y. 2001).
6
judgment. See, e.g., Big R Food Warehouses,
896 F. Supp. at 298. However, plaintiffs'
submissions related to their request for a
certificate of default and motion for default
judgment did little more than rehash the
background and procedural history of this
case, much of which could have been gleaned
from plaintiffs' own prior filings. (See ECF
Nos. 97-98, 103-04.) Simply put, these
submissions do not warrant 13.5 hours of
legal services.
Plaintiffs argue that their request for
compensation for the initial fee application is
reasonable because it constitutes 26 hours, or
12.7% of the total billable hours in this matter
(amounting to a total charge of $5,580), and
provide case law in which courts have
permitted fees for such applications that were
8-24% of the total time for which fees were
requested. (Pis.' Mem. at 16.) Courts in this
Circuit, however, have also found that a
reasonable number of hours to award for a
motion for attorneys' fees is between 5 and
15 hours. See Murray ex rel. Murray v. Mills,
354 F. Supp. 2d 231, 241 (E.D.N.Y. 2005);
see also Standish v. Fed. Express Corp. Long
Term Disability Plan, No. 15-CV-6226
(MAT), 2017 WL 874689, at *3 (W.D.N.Y.
Mar. 6, 2017) (finding 4.4 hours reasonable);
Savino v. Computer Credit, Inc., 71 F. Supp.
2d 173, 178-79 (E.D.N.Y. 1999) (reducing
the number of compensable hours from the
claimed amount of 40 to a total of 5 for the
plaintiffs second fee request); see also Big R
Food Warehouses, 896 F. Supp. at 299
(deducting 7.5 hours and recommending an
award of "12 hours for the preparation of
attorney's fees [motion]" where "the issue
involved was not complex, nor did it require
extensive or exhaustive research" and "the
attorneys recited the facts which have already
been cited in previous court documents,
reiterated
the
attorneys'
personal
background, and most importantly, did not
state why the time spent was reasonable").
Under the circumstances of this particular
case, the Court finds that the amount
requested in connection with the preparation
of the instant fee application is unreasonably
high.
The Court's decision to reduce the
requested fee award is further buttressed by
the degree of success obtained by plaintiffs.
As the Supreme Court has emphasized, the
degree of success is a critical factor in the fee
analysis. Hensley, 461 U.S. at 436. Here,
plaintiffs originally sought: (1) for Seth
Feuer, $33,143.03 in unpaid minimum wage
and overtime compensation, $1,040 in unpaid
spread-of-hours compensation, $34,183.03 in
liquidated damages, and $2,700 in statutory
damages under NYLL § 195; and (2) for
Susann Feuer, $2,596.88 in unpaid minimum
wages, $2,596.88 in liquidated damages, and
$2,700 in statutory damages under NYLL
§ 195. (ECF No. 87 at 17-18.) However, the
Court ultimately awarded a total of$5,224.68
for both plaintiffs. (ECF No. 95.)
The Court finds that the limited degree of
success here warrants a reduction. Plaintiffs
were not successful on a number of claims; in
particular, the Court determined that
"plaintiffs have not demonstrated that Susann
Feuer is owed any unpaid minimum wages,
and they failed to prove that either plaintiff is
entitled to spread-of-hours pay or overtime
compensation."
See Feuer, 2020 WL
401787, at * 12. The Court reached this
conclusion in part because it credited Butt's
testimony over plaintiffs' testimony and
because plaintiffs failed to provide
documentation to substantiate their claims.
Id. at *6-7. As a result, plaintiffs' degree of
success in this case was rather limited.
The Court also finds that 13.5 hours spent
pursuing a default judgment against
Cornerstone, amounting to a total of $2,895
in requested fees, is excessive. To be sure,
the Court recognizes that prevailing plaintiffs
are entitled to fees for work performed in
connection with motions for default
7
weeks worked were extremely minor and
would have required little, if any, time in
discovery or at trial to resolve. 3 As to the
other successful portion of the claims, even if
a trial were necessary for plaintiffs to
establish the failure to pay $92 in wages for
Seth Feuer's first week of work, plaintiffs
proved that fact through a series of
contemporaneous emails that (combined with
the relevant testimony on that discrete issue)
would have taken little time to present at a
bench trial. In short, the Court concludes that
it would have taken materially fewer attorney
hours (even as compared to the alreadylowered amount sought by plaintiffs'
counsel) to only prove the defendants' failure
to pay Seth Feuer $92 in wages for his first
week of work, and the violation of the wage
statements and notice provisions under the
NYLL as to Seth Feuer and Susann Feuer.
Plaintiffs' counsel argues that their work
on these discrete tasks, such as the complaint
and the summary judgment motion, "would
[not] have been meaningfully different if
Plaintiffs were only engaging in these tasks
to pursue their successful claims, because all
claims as it pertains to these tasks involved a
common core of facts." (Pis.' Mem. at 13.)
The Court disagrees. The nature of the
attorneys'
work would have
been
qualitatively different if the only claims
being litigated were the portions of plaintiffs'
claims that were ultimately successfulnamely: (I) the failure to pay Seth Feuer $92
in wages for his first week of work; and
(2) the violation of the wage statements and
notice provisions under the NYLL as to Seth
Feuer and Susann Feuer. For example, the
discovery on those discrete issues would
have been much narrower than the substantial
discovery related to the broader, unsuccessful
portions of the claim (that related to, inter
alia, disputes over overtime issues during the
entire summer). More importantly, it was
uncontroverted on summary judgment that
defendants had violated the wage statements
and notice provisions under the NYLL. 2
Thus, no trial at all would have been
necessary to establish liability for that claim.
In terms of the calculation of the statutory
damages for those claims, the disputes
between the parties regarding the number of
This case, therefore, differs from the
situation in Pereyra v. Fancy 57 Cleaners,
Inc., where the plaintiffs only unsuccessful
claim was his federal minimum wage claim,
and where he prevailed on his remaining state
and federal overtime claims and his state
minimum wage and spread of hours claims.
No. 11 CIV. 1522 (RJS), 2014 WL
12575718, at *8 (S.D.N.Y. Feb. 28, 2014).
Because the single unsuccessful claim "did
not add significant costs or efforts beyond
what would have been expended on the other
of NYLL 195(1) and (3)." (ECF No. 56 at 10)
(citations omitted).
2
In fact, in their memorandum of law in support
of their motion for partial summary judgment,
plaintiffs explained: "Here, it is undisputed that
Defendants failed to properly provide Plaintiffs
with wage notices at hire in violation of NYLL
195(1) or with wage statements on each payday
in violation ofNYLL 195(3). Indeed, Defendant
Butt admitted that Defendants never provided
Plaintiffs with a wage notice at the time of their
hire. Defendant Butt further admitted that
Defendants never provided Plaintiffs with a wage
statement on each payday and instead paid them
in cash. Therefore, Plaintiffs are clearly entitled
to statutory damages for Defendants' violations
3
As discussed in the Court's January 24th
Memorandum and Order: (1) Seth Feuer testified
that he worked from May 3, 2014 through
September 8, 2014, while Butt testified that he
began working on May 6, 2014 and that his last
day was on September 2, 2014; and (2) Susann
Feuer testified that she worked from May 2, 2014
through September 6, 2014, while Butt testified
that she started "participating" in Seth Feuer's
work on May 15, 2014 and continued to do so
until September 2, 2014. See Feuer, 2020 WL
401787, at *4, 6-7.
8
application"' (quoting Kirsch, 148 F.3d at
173)).
claims," the district court did not reduce. the
attorneys' fee. Id In this case, although the
unsuccessful spread-of-hours and overtime
claims were based on the same set of records
as the minimum wage claim, the latter claim
was only partially successful for Seth Feuer
(as to this first week of work), and the
unsuccessful spread-of-hours and overtime
claims were wholly distinct from the other,
successful NYLL statutory violations. For
Susann Feuer in particular, her only
successful claims involved the NYLL
statutory violations, which had nothing to do
with the number of hours she did or did not
work. In such situations, even where the time
entries do not delineate work on the
successful claims as compared to the
unsuccessful claims, a court can in its
discretion utilize an across-the-board cut.
See, e.g., Todaro v. Siegel Fenchel & Peddy,
P.C, 697 F. Supp. 2d 395, 401 (E.D.N.Y.
2010) (applying a 30% fee reduction even
though the unsuccessful claim had a
significant amount of "overlap" because of
"how much time [p]laintiffs counsel would
have saved by not litigating [plaintiffs]
unsuccessful claim"). 4
This level of reduction is consistent with
discretionary decisions by other courts under
similar circumstances and, in fact, some
courts have imposed higher across-the-board
reductions in more egregious circumstances.
See, e.g., Raja v. Burns, No. 19-CV-1328
(AMD) (RER), 2021 WL 1394638, at *8
(E.D.N.Y. Feb. 2, 2021) (recommending
imposition of "a 40% across the board cut of
all hours expended on the litigation" because,
among other things, plaintiff achieved
limited success on his claims), report and
recommendation adopted, 2021 WL 1099931
(E.D.N.Y. Mar. 23, 2021); DeVito v.
Hempstead China Shop, Inc., 831 F. Supp.
1037, 1045 (E.D.N.Y. 1993) (reducing
attorneys' requested fee award by 40% due to
duplication of work and "the insufficient
descriptions of some of the work done and the
necessity for such work"); see also Romeo &
Juliette Laser Hair Removal, Inc. v. Assara L
LLC, No. 08 CIV. 442 (TPG) (FM), 2013 WL
3322249, at *6, 8 (S.D.N.Y. July 2, 2013)
(reducing fee request by 75% due to
"numerous inefficiencies and instances of
excessive billing" and the "relative simplicity
of the matters in dispute"), ajf'd, 679 F.
App'x 33 (2d Cir. 2017); Shim v. Millennium
Grp., No. 08-CV-4022 (FB) (VVP), 2010
WL 2772493, at *6 (E.D.N.Y. June 21, 2010)
(reducing fees by two-thirds due to excessive
billing), report and recommendation
adopted, 2010 WL 2772342 (E.D.N.Y. July
12, 2010); Falleson v. Paul T. Freund Corp.,
736 F. Supp. 2d 673, 676 (W.D.N.Y. 2010)
(reducing hours by 60% because "the number
of hours expended was excessive,
Based on the excessive hours and limited
degree of success, the Court concludes that a
40% across-the-board reduction to the fees
sought by Borrelli & Associates is warranted.
See, e.g., Monette v. County of Nassau, No.
11-CV-539 (JFB) (AKT), 2016 WL
4145798, at *6 (E.D.N.Y. Aug. 4, 2016)
(explaining that "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
court abused its discretion when it ignored the
lodestar and calculated the attorneys' fees as a
proportion of the damages awarded"), and
emphasizes that such a disproportion was not
considered by the Court when deciding this
motion.
4
The Comt recognizes that "the simple
disprop01tion between a plaintiffs recovery and
the fee applied for is not a proper basis for a
reduction in an otherwise reasonable fee," Kahlil
v. Original Old Homestead Rest., Inc., 657 F.
Supp. 2d 470, 478 (S.D.N.Y. 2009); see also
Millea, 658 F.3d at 169 (holding that "the district
9
matters and court conferences, summary
judgment and related briefing, the bench trial,
and the instant fees motion. Additionally,
plaintiffs are awarded $1,737.00 in fees
attributable to work performed in connection
with the motion for default judgment, for
which only Cornerstone is liable.
particularly in light of the fact that this matter
never reached the point of collective action
certification and because the results achieved
are dramatically
disproportionate to
the fees requested"); Days Inn Worldwide,
Inc. v. Amar Hotels, Inc., No. 05-CIV-10100
(KMW) (KNF), 2008 WL 2485407, at *10
(S.D.N.Y. June 18, 2008) (reducing fee
award by 75% because the defendant had
defaulted).
B. Costs
As noted above, plaintiffs seek $1,344.91
in reimbursable costs. (Mietus Aff. 'If 82 &
Ex. C.) Plaintiffs have also separately
submitted a request for taxable costs in the
amount of$1,418.09 in a Bill of Costs. (ECF
Nos. 101-02).
In reducing counsel's request, the Court
does not suggest that counsel was ineffective
in any respect; to the contrary, the Court
recognizes the hard, competent work
performed by plaintiffs' attorneys throughout
the case, as reflected in the billing entries.
The Court further appreciates that counsel
significantly lowered the requested fee
amount (as compared to the total hours
expended) prior to submitting the motion and
believes that counsel should be commended
for that voluntary action.
However,
notwithstanding counsel's expenditures of
time and the voluntary reduction of the fees
being sought, the Court, having presided over
the case and the trial, concludes that this 40%
additional reduction is necessary in order for
the amount to constitute a reasonable fee
under the particular circumstances of this
case.
"Pursuant to 28 U.S.C. § 1920 and Local
Rule 54.1, taxable costs, such as filing and
subpoena fees as well as monies expended for
transcripts, printing, copying, and witnesses
are shifted to the losing party." Cho v. Koam
Med. Servs. P.C., 524 F. Supp. 2d 202, 21112 (E.D.N.Y. 2007). Moreover, "[n]ontaxable costs also are shifted to the losing
party in a case like this where a statute[,]
[such as the FLSA and NYLL,5] provides for
the shifting of attorneys' fees[.]" Id. at 212.
Thus, in such circumstances, "a court will
generally award 'those reasonable out-ofpocket expenses incurred by attorneys and
ordinarily charged to their clients."'
Pennacchio v. Powers, No. 05-CV-985
(RRM) (RML), 2011 WL 2945825, at *2
(E.D.N.Y. July 21, 2011) (quoting LeBlancSternberg v. Fletcher, 143 F.3d 748, 763 (2d
Cir. 1998)).
"Such reimbursable costs
'include filing fees, process servers, postage,
travel, and photocopying,' as well as legal
research costs." Trs. of the Pavers & Rd.
Builders Dist. Council Welfare v. MC.
Landscape Grp., Inc., No. 12-CV-00834
(CBA) (VMS), 2016 WL 6998640, at *8
(E.D.N.Y. Aug. 25, 2016) (quoting Capone
v. Patchogue-Medford Union Free Sch. Dist.,
Accordingly, with the 40% reduction, the
Court calculates the lodestar to be
$30,913.50. The Court sees no reason to
depart further from this lodestar figure in this
case. See, e.g., Perdue, 559 U.S. at 553
(explaining that lodestar figure includes
"most, if not all," relevant factors in setting
reasonable attorney's fees).
Plaintiffs are therefore awarded-and
defendants are jointly and severally liable
for-$29,176.50 in fees attributable to work
related to drafting the complaint, discovery
5
See 29 U.S.C. § 216(b); N.Y. Lab. Law
§§ 198(1)(a), 663(1).
10
explain, however, that they do not have
corresponding receipts for "postage, certain
travel expense for inter alia, court
conferences, printing and copying, [or]
Westlaw legal research." (Mietus Aff. 1 85.)
As with the taxable costs, after reviewing the
record, the Court finds the request for
reimbursable costs to be allowable,
reasonable, and sufficiently documented, and
therefore will award plaintiffs $1,344.91 in
reimbursable, non-taxable costs as requested.
No. 04-CV-2947 (JS) (MLO), 2011 WL
743573, at *5 (E.D.N.Y. Feb. 23, 2011)),
report and recommendation adopted, 2016
WL 7017336 (E.D.N.Y. Nov. 30, 2016). The
moving party "bears the burden of adequately
documenting and itemizing the costs
requested." First Keystone Consultants, Inc.
v. Schlesinger Elec. Contractors, Inc., No.
10-CV-696 (KAM) (SMG), 2013 WL
950573, at *10 (E.D.N.Y. Mar. 12, 2013)
(internal quotation marks omitted).
In
particular, "[p]laintiffs must submit receipts,
invoices, or other evidence to support the
costs requested." McFarlane v. Harry's
Nurses Registry, 17-CV-6350 (PKC) (PK),
2021 WL 2646327, at *5 (E.D.N.Y. June 28,
2021) (internal quotation marks omitted).
Together, the awarded taxable and nontaxable costs amount to $2,763.00.
Ill. CONCLUSION
For the reasons set forth herein, the Court,
in the exercise of its discretion, awards
Borrelli & Associates $29,176.50 in
attorneys' fees for which defendants are
jointly and severally liable, and an additional
$1,737.00 in attorneys' fees for which
Cornerstone alone is liable. In addition, the
Court awards Borrelli & Associates
$2,763.00 in costs, which amount includes
both taxable and non-taxable costs, for which
defendants are jointly and severally liable.
Finally, the Clerk of Court shall mail a copy
of this order to defendants.
Here, plaintiffs submitted a Bill of Costs,
requesting that the Clerk of Court tax their
costs in the amount of $1,418.09, consisting
of $413. 70 in fees to the Clerk of Court,
$150.00 in fees associated with service of the
summons and complaint, $731.50 in fees for
printed or electronically recorded transcripts
necessarily obtained for use in this case,
$100.39 for witness fees, and $22.50 for
docket fees. (See ECF Nos. 101-02.) In
support of the Bill of Costs, plaintiffs
submitted an internal statement of costs, as
well as certain receipts and invoices, to
substantiate their request. (See ECF Nos.
102-1, 102-2.) Upon reviewing the record,
the Court finds these costs to be reasonable
and therefore concludes that the requested
$1,418.09 is properly taxable.
/\
sqo
/s/Joseph F. Bianco
ates Circuit Judge
(Si ing by Designation)
As to the requested non-taxable--or
reimbursable-<:osts,
plaintiffs
request
$1,344.91, which includes $454.75 in
mileage costs, $457.40 in legal research
costs, and $432.76 in mailing, printing, and
postage costs. (Mietus Aff. 1 82; Pis.' Mem.
at 18.) To substantiate these costs, plaintiffs
submitted, along with their affidavit, a billing
statement as well as certain receipts and
invoices. (Mietus Aff. Exs. C & D.) They
Dated: October 20, 2021
Central Islip, NY
***
Plaintiffs are represented by Alexander T.
Coleman, Borrelli & Associates, P.L.L.C.,
910 Franklin Avenue, Suite 200, Garden
City, NY 11530.
11
Defendant Naeem Butt proceeds prose,
52 Longview Road, Southampton, NY
11968. Defendant Cornerstone Hotels Corp.
is umepresented.
12
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