Holick et al v. Cellular Sales of New York, LLC et al

Filing 506

MEMORANDUM-DECISION & ORDER: that Plaintiffs' Motion for Attorney's fees (Dkt. No. 490) is granted in part and denied in part in that Plaintiffs are awarded a total of $576,870.30 in attorney's fees; that Plaintiffs' Motion f or Costs (Dkt. No. 486) is granted in part and denied in part in that Plaintiffs are awarded a total of $14,227.63 in costs; and that Plaintiffs' Motion for post-judgment interest is granted. Signed by Magistrate Judge Daniel J. Stewart on 3/15/2021. (see)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAN P. HOLICK, JR., et al.,
Plaintiffs,

1:12-CV-584
(DJS)

v.
CELLULAR SALES OF NEW YORK, LLC, and
CELLULAR SALES OF KNOXVILLE, INC.,
Defendants.
APPEARANCES:

OF COUNSEL:

GLEASON, DUNN,
WALSH, & O’SHEA
Attorneys for Plaintiffs
40 Beaver Street
Albany, New York 12207

RONALD G. DUNN, ESQ.
CHRISTOPHER M. SILVA, ESQ.

CHAMBERLAIN HRDLICKA
Attorneys for Defendants
1200 Smith Street, Suite 1400
Houston, Texas 77002

CHARLES L. CARBO, III, ESQ.
JULIE R. OFFERMAN, ESQ.

HINMAN STRAUB
Attorneys for Defendants
121 State Street
Albany, New York 12207

DAVID T. LUNTZ, ESQ.

DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
This case, brought pursuant to the Fair Labor Standards Act (“FLSA”) and New
York Labor Law (“NYLL”), came before the Court for a bench trial following an
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extensive pretrial history. After trial, the Court found that Plaintiffs, with the exception
of Justin Moffitt, were successful in establishing that they were employees pursuant to
the FLSA and NYLL, and that they were entitled to damages for unpaid overtime and
minimum wage. Plaintiffs now move for attorney’s fees and costs pursuant to Federal
Rule of Civil Procedure 54. Dkt. Nos. 486 & 490. Defendants oppose the Motion, Dkt.
No. 502, and Plaintiffs have submitted a Reply, Dkt. No. 505.
II. PROCEDURAL HISTORY
Plaintiffs Jan Holick, Steven Moffitt, Justin Moffitt, Gurwinder Singh, Jason
Mack, William Burrell, and Timothy Pratt filed a collective and class action complaint
against Cellular Sales of New York (“CSNY”) and Cellular Sales of Knoxville, Inc.
(“CSK”) (collectively “Cellular Sales”) asserting claims for alleged violations of FLSA
and NYLL minimum wage and overtime requirements.
In February of 2014, the Court so ordered the parties’ stipulation for conditional
certification of a collective action. See Holick et al. v. Cellular Sales of New York, LLC
et al., Case No. 1:13-CV-738, Dkt. No. 83. In October of 2015, the Court approved the
parties’ stipulation to expand the collective, and forty-seven opt-in plaintiffs joined in the
action. Dkt. Nos. 95 & 377-2. In October of 2018, Plaintiffs moved for class certification
pursuant to Rule 23 of the Federal Rules of Civil Procedure and Defendants moved to
decertify the Court’s conditional certification of the collective action. Dkt. Nos. 345 &
377. In April of 2019, the District Court denied Plaintiffs’ motion for class certification
and granted Defendants’ motion for decertification, finding Plaintiffs failed to
demonstrate that the issue of whether the putative class members were independent
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contractors or employees was capable of resolution through classwide proof. See Holick
v. Cellular Sales of New York, LLC, 2019 WL 1877176 (N.D.N.Y. Apr. 26, 2019). The
District Court thus dismissed the claims of the opt-in plaintiffs and ordered the action
proceed on behalf of the current Plaintiffs.
Plaintiffs also moved for partial summary judgment and Defendants moved for
summary judgment; the District Court denied Plaintiffs’ motion and granted Defendants’
motion in part, dismissing certain of Plaintiffs’ causes of action but finding that material
facts were in dispute as to whether Plaintiffs were employees or independent contractors
under the FLSA and NYLL. Dkt. No. 431. The parties then consented to the undersigned
for purposes of trial. Dkt. No. 436.
After trial, the Court found that the remaining Plaintiffs (“Named Plaintiffs”) were
employees of Defendants. The Court determined, based upon a stipulation of the parties
as to the amount of compensatory damages that each Plaintiff would be entitled to in the
event of a determination that each was an employee of Defendants, plus liquidated
damages and prejudgment interest on compensatory damages, that Plaintiffs were entitled
to damages in the following amounts: $3,224.49 for Plaintiff Holick; $126.85 for Plaintiff
Moffitt; $3,981.12 for Plaintiff Singh; $299.30 for Plaintiff Mack; $1,029.91 for Plaintiff
Burrell; and $2,459.54 for Plaintiff Pratt. Dkt. No. 483.
As the prevailing party, Plaintiffs are entitled to an award of reasonable attorney’s
fees pursuant to both the FLSA and NYLL. N.Y. Lab. Law §§ 198 & 663(1); 29 U.S.C.
§ 216(b). Plaintiffs seek attorney’s fees in the amount of $961,450.50. Dkt. No. 490-1,
Dunn Aff., ¶ 5. They also seek costs in the amount of $46,065.84. Id. at ¶ 116.
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III. ATTORNEY’S FEES
A. Standard
The Fair Standards Labor Act and the New York Labor Law provide that the Court
shall award reasonable attorney’s fees to the prevailing plaintiffs. 29 U.S.C. § 216; N.Y.
Lab. Law §§ 198 & 663(1). In reaching a reasonable attorney’s fee, the Court must
determine the reasonable hourly rates and reasonable hours expended on the litigation.
“[T]he fee applicant bears the burden of establishing entitlement to an award and
documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart,
461 U.S. 424, 437 (1983). “A reasonable rate is generally the ‘prevailing market rate[ ]
for counsel of similar experience and skill to the fee applicant’s counsel.’ In deciding
what constitutes a reasonable rate, a court may consider ‘rates awarded in prior cases and
the court’s own familiarity with the rates prevailing in the district.’” Williams v. Epic
Sec. Corp., 368 F. Supp. 3d 651, 655-67 (S.D.N.Y. 2019) (quoting Farbotko v. Clinton
Cty., 433 F.3d 204, 209 (2d Cir. 2005)) (internal citation omitted).
In calculating the reasonable number of hours, the court may consider a number of
factors, drawing on its own experience. Those factors may include
(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.

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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) (citation omitted). “[T]he most critical
factor . . . ‘is the degree of success obtained’ by the plaintiff.” Barfield v. New York City
Health and Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (quoting Farrar v. Hobby,
506 U.S. 103, 114 (1992)). “Where ‘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,’ even if plaintiff’s ‘claims were
interrelated, nonfrivolous, and raised in good faith.’” Williams v. Epic Sec. Corp., 368 F.
Supp. 3d at 656 (quoting Hensley v. Eckerhart, 461 U.S. at 436). “Attorneys’ fees may
be awarded for unsuccessful claims as well as successful ones, however, where they are
‘inextricably intertwined and involve a common core of facts or are based on related legal
theories.’” Id. (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)).
In calculating the reasonable number of hours expended “the court takes account
of claimed hours that it views as excessive, redundant, or otherwise unnecessary.”
Williams v. Epic Sec. Corp., 368 F. Supp. 3d at 656 (quoting Bliven v. Hunt, 579 F.3d
204, 213 (2d Cir. 2009)) (internal quotation marks omitted). “The relevant issue is
‘whether, at the time the work was performed, a reasonable attorney would have engaged
in similar time expenditures.’” Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 20809 (E.D.N.Y. 2007) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). “A
district court should exclude hours that were ‘excessive, redundant, or otherwise
unnecessary’ to the litigation due to, for example, ‘overstaff[ing].’” Id. at 209 (quoting
Hensley v. Eckerhart, 461 U.S. at 434). “Courts in this Circuit have recognized a district
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court’s authority to make across-the-board percentage cuts in hours, as opposed to an
item-by-item approach, to arrive at the reasonable hours expended. These across-theboard cuts are based in part on the degree of success achieved by plaintiffs.” Williams v.
Epic Sec. Corp., 368 F. Supp. 3d at 656-57.
However, “the Second Circuit has ‘repeatedly rejected the notion that a fee may
be reduced merely because the fee would be disproportionate to the financial interest at
stake in the litigation.’” Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d at 211 (quoting
Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005)); see also Fisher v. SD
Protection Inc., 948 F.3d 593 (2d Cir. 2020). Accordingly, the amount may not be
reduced “simply because a plaintiff recovered a low damage award.” Cho v. Koam Med.
Servs. P.C., 524 F. Supp. 2d at 211 (quoting Cowan v. Prudential Ins. Co. of Am., 935
F.2d at 526 (2d Cir. 1991)). As such, the Court cannot reduce the fee award simply
because it is disproportionate to the award recovered.
B. Application
1. Reasonable Rate
Plaintiffs’ counsel seek hourly rates of $175 or $200 for associate attorneys, $350
for partners, and $80 for paralegals. Dunn Aff. at p. 27. Defendants do not object to this
hourly rate. “Cases in this district have found reasonable rates to generally be $275-$350
for experienced partners, $165-$200 for junior associates, and $90 for paralegals.” Car
Freshner Corp. v. Scented Promotions, LLC, 2020 WL 5757475, at *8 (N.D.N.Y. Sept.
28, 2020); see also State Univ. of New York v. Triple O, LLC, 2020 WL 6196152, at *1
(N.D.N.Y. Oct. 22, 2020) (adopting hourly rates of $350 for an experienced partner, $203
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for an associate, and $90 for a paralegal). The Court finds that this rate is reasonable,
considering the experience of the attorneys as outlined in Plaintiffs’ submissions and
considering the locality.
2. Reasonableness of the Requested Fees
The Court has reviewed the parties’ submissions, including reviewing in detail
Plaintiffs’ billing records and Defendants’ annotated version of the same. Dkt. Nos. 490
& 502. Upon review of those records and the arguments of the parties, the Court
concludes that for the reasons set forth below, Plaintiffs’ request for fees should be
reduced by forty percent.
a. Degree of Success
Initially, the Court looks to the degree of success, “the most critical factor” in
determining reasonable attorney’s fees. Barfield v. New York City Health and Hosps.
Corp., 537 F.3d at 152 (quoting Farrar v. Hobby, 506 U.S. at 114). “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. Both the quantity and quality of relief obtained,
as compared to what the plaintiff sought to achieve as evidenced in her complaint, are
key factors in determining the degree of success achieved.” Id. at 152 (internal citations
and quotation marks omitted).
Courts reduce attorney’s fees in FLSA cases where the plaintiffs were unsuccessful
in pursuing a collective action or a class action. This is so because in such a case “the
reasonableness of the attorney’s fees incurred linked directly to the ability to maintain the
case as an FLSA collective action.” Id. at 153. This is particularly the case where
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plaintiffs sought a large recovery amount based upon such collective or class action, and
where plaintiffs’ counsel expended a significant amount of time pursuing the collective
or class action claims.
The Second Circuit made the propriety of this reduction clear in Barfield. Id. at
151.
Following Barfield, district courts within this Circuit have generally
reduced plaintiffs’ requested fees for successful class certification or
collective-action motions, sometimes making this reduction as an
adjustment to the lodestar, and other times simply reducing the number of
hours expended by counsel in preparing such motions. See, e.g., Gonzalez,
112 F.Supp.3d at 13 (accounting for unsuccessful class certification motion
by identifying line-items attributable to the motion and reducing hours
accordingly); White v. W. Beef Prop., Inc., No. 07cv2345 (RJD)(JMA)
(E.D.N.Y. Sept. 30, 2014) (reducing lodestar by 33 percent in light of
unsuccessful Rule 23 certification motion and dismissal of most opt-in
plaintiffs after decertification of collective action). Further, courts have
typically reduced the hours spent by counsel on unsuccessful motions to
certify a class under Rule 23, even where the plaintiffs successfully moved
for certification as a collective action. See, e.g, Gonzalez, 112 F.Supp.3d at
13.
Siegel v. Bloomberg L.P., 2016 WL 1211849, at *10 (S.D.N.Y. Mar. 22, 2016). In
addition, fees should be reduced to account for time spent on Plaintiffs’ claims that were
dismissed, unless they are “inextricably intertwined and involve a common core of facts
or are based on related legal theories. Williams v. Epic Sec. Corp., 68 F. Supp. 3d at 656
(quoting Quarantino v. Tiffany & Co., 166 F.3d at 425).
Here, the Court must reduce Plaintiffs’ fees due to the limited degree of success
obtained on their claims. Plaintiffs were ultimately not successful in their pursuit of class
and collective actions – when Plaintiffs moved for class certification and Defendants
moved to decertify the collective actions following discovery, the District Court denied
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Plaintiffs’ motion and granted Defendants’ motion to decertify. Dkt. Nos. 345, 377, &
430. Initially, as Defendants outline in their submissions, Plaintiffs sought a total of over
four million dollars in damages, and the Named Plaintiffs claimed $681,897.05 in
damages. After trial, the Court awarded a total of $11,121.21 for overtime and minimum
wage for the Named Plaintiffs except for Justin Moffitt, including liquidated damages and
pre-judgment interest.

The significance of the class certification and collective

certification is further evidenced by counsel’s own estimation that approximately 1,069
hours, or eighteen percent of their time, was devoted exclusively to this issue. Dunn Aff.
at ¶ 33; see Dkt. No. 490-2. “It is against this background of anticipated relief” that
Plaintiffs’ recovery “appears to reflect only a small degree of success.” Barfield v. New
York City Health and Hosps. Corp., 537 F.3d at 152. “[T]he reasonableness of the
attorney’s fees incurred linked directly to the ability to maintain the case as an FLSA
collective action.” See id. at 153. Plaintiffs clearly only achieved limited success when
considering the failure of the collective and class action.
The Court is not persuaded by Plaintiffs’ argument that their own voluntary
reduction in the fee application based on work attributable to the collective and class
action sufficiently addresses this limited success. First, Barfield rejected a similar
argument finding that while it had “the virtue of simple application,” it did not adequately
address the truly limited nature of the success given the importance of the collective action
from the outset of the litigation. Id. at 153. Second, as Defendants point out, it is not
clear that Plaintiffs’ voluntary reduction fully encompassed all requested fees related to
the broader collective and class action components of the case. For example, there are a
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significant number of entries not excluded by Plaintiffs that pertain to, inter alia, meetings
regarding the class action, correspondence with opt-in plaintiffs, and discovery related to
opt-in plaintiffs. See Dkt. No. 502-1, Carbo Aff., Ex. A-1 (highlighting in purple entries
regarding work performed on behalf of the former opt-in plaintiffs).
Defendants also assert that a reduction is necessary because the Named Plaintiffs
were not successful on certain claims that were dismissed on summary judgment,
specifically unlawful wage deduction claims, untimely commissions claims, and
compensable work claims. Dkt. No. 431. “Claims are intertwined when they are based
on a common core of facts, related legal theories, or require essentially the same proof.”
Sanchez v. Oceanside First Class Roofing, Inc., 818 Fed. Appx. 106, 108 (2d Cir. 2020)
(summary order) (quoting Kerin v. U.S. Postal Serv., 218 F.3d 185, 194 n.6 (2d Cir.
2000)). Here, Plaintiffs’ claims were all based upon the terms of the contracts between
Plaintiffs and Defendants, the circumstances under which commissions were earned, and
the formula by which Plaintiffs were paid. These claims would largely require similar
discovery and proof and would be difficult to sever in the billing records. These claims
are, generally, sufficiently intertwined with Plaintiffs’ claims that were ultimately
successful – their overtime claims and minimum wage claims – that a further reduction
is not needed to account for the dismissed claims. “Indeed, this is not a case where
Plaintiff brought wholly independent causes of action based upon unrelated statutes
requiring altogether independent elements of proof that could be logically severed.
Rather, the statutes involved and the factual predicates required for a prima facie case are
so intertwined that attempting to separate them would border on being a futility.”
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Cabrera v. Schafer, 2017 WL 9512409, at *9 (E.D.N.Y. Feb. 17, 2017), report and
recommendation adopted, 2017 WL 1162183 (E.D.N.Y. Mar. 27, 2017) (citing, inter
alia, Hensley v. Eckerhart, 461 U.S. at 433) (finding overtime, lack of pay stubs, and
spread of hours claims sufficiently interrelated); see also Bond v. Welpak Corp., 2017
WL 4325819, at *6 (E.D.N.Y. Sept. 26, 2017) (finding overtime compensation, wage
notice, and frequency of pay claims not readily severable because all involved a common
core of facts); Tran v. Tran, 166 F. Supp.2d 793, 803 (S.D.N.Y. 2001) (finding claims all
involved a common core of facts regarding employment, conditions of employment,
hours worked, and wages); cf. Sanchez v. Oceanside First Class Roofing, Inc., 818 Fed.
Appx. 106, 108 (2d Cir. 2020) (summary order) (finding overtime claims not intertwined
with wage notice claims simply because both claims required the plaintiffs to prove they
were employees, because the overtime claims required proof as to what hours plaintiffs
worked while the notice claims required only a showing that notice was not given).
However, the Court is persuaded that Plaintiffs’ unjust enrichment claim is not
intertwined with Plaintiffs’ other claims and that time billed for that claim can be severed
and the fees should be reduced accordingly. As Defendants assert in their opposition
papers, Plaintiffs asserted a cause of action for unjust enrichment based on allegations
that Defendants did not pay payroll taxes on Plaintiffs’ wages. Carbo Aff. at ¶¶ 62-63
(citing Dkt. No. 1 at pp. 28-29).

Plaintiffs voluntarily withdrew this claim after

Defendants moved for summary judgment on the claim, after spending over forty hours
researching the viability of the claim and discussing the motion. Id. (citing Dkt. Nos. 78,

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80, & Ex. A-1 at p. 33). As such, time spent on this cause of action was discretely
applicable to this claim.
b. Fees Related to Unemployment Claims
Defendants point out that time is included in Plaintiffs’ application that was billed
for issues not related to this case, in particular regarding unemployment claims.
Defendants note that Plaintiffs indicated an intention to remove these entries from their
billable time and did remove many of them, but some remain in their submission. That
time is not properly billable for this case.
c. Travel
Defendants also note that travel should be billed at half of an attorney’s billing rate
and that on many occasions in counsel’s submissions travel is billed at the full rate. See
Dotson v. City of Syracuse, 2011 WL 817499, at *27 (N.D.N.Y. Mar. 2, 2011), aff’d, 549
Fed. Appx. 6 (2d Cir. 2013) (“Consistent with Northern District precedent, the Court will
allow reimbursement for travel time but only at a one-half of counsel’s hourly rate.”);
Kadden v. VisuaLex, LLC, 2012 WL 6097656, at *2 (S.D.N.Y. Dec. 6, 2012). Upon
review, travel appears generally to be billed at fifty percent of the billable rate; however,
there are instances of block billing that include both travel time and other work, where
the entire figure is billed at the full hourly rate. See, e.g., Dkt. No. 490-2 at pp. 20, 35.
This is improper and warrants a reduction of the requested fee.
d. Unnecessary and Redundant Billing
There are also instances of unnecessary or redundant hours billed in the
submission. This includes items such as, as Defendants point out, over 180 hours
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preparing errata sheets for the named and opt-in plaintiffs that substantially changed the
deponents’ sworn testimony. Counsel devoted what appears to the Court to be an
unreasonable period of time, equal to one attorney working for four and a half weeks, on
errata sheets. See Carbo Aff. at ¶¶ 30-33. Defendants also note that Plaintiffs billed over
115 hours in July 2014 for document organization, and 101 hours on the present fee
submission. Dkt. No. 490-2 at pp. 26-27. Without justification from Plaintiffs as to why
this amount of time was necessary, this appears excessive.
e. Block Billing
In addition, counsel’s records contain frequent block billing, as well as vague
entries. See Dkt. No. 490-2, generally. These entries “make 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.’” Bond v. Welpak Corp., 2017 WL 4325819, at *8. “Here,
where the billing records date back over a decade and many of the entries are opaque as
to the substantive work being performed, it is not reasonable to scrutinize each individual
entry in order to make particularized deductions.” Reiseck v. Universal Commc’ns of
Miami, Inc., 2014 WL 5374684, at *8 (S.D.N.Y. Sept. 5, 2014); see also Bond v. Welpak
Corp., 2017 WL 4325819, at *8 (“Where billing records include a large number of blockbilled entries, an across-the-board reduction of hours is appropriate.”).
f. Conclusion as to the Reasonable Fee
For all of the above reasons, the Court finds it appropriate to reduce the attorney’s
fees sought by forty percent. It bears specifically noting that Plaintiffs’ fees are not being
reduced simply because they are disproportionate to their recovery, although the Court
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notes this fee request is out of line with even other cases that are disproportionate. See
Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d at 211 (collecting disproportionate cases);
Fisher v. SD Protection Inc., 948 F.3d at 604-605 (same). In sum, after accounting for
the degree of success of Plaintiffs’ claims, and other issues contained within the billing
records submitted, the Court finds Plaintiffs are entitled to fees in the amount of
$576,870.30.
IV. COSTS
Plaintiffs seek costs pursuant to Federal Rule of Civil Procedure 54(d)(1), 28
U.S.C. § 1920, 29 U.S.C. § 216, and New York Labor Law § 198. Those costs and
expenses total $46,065.84. Dkt. No. 490-11.
Plaintiffs are entitled to recover costs pursuant to the FLSA and the NYLL. 29
U.S.C. § 216(b); N.Y. Lab. Law § 663(1). “[C]osts normally include[] those reasonable
out-of-pocket expenses incurred by the attorney and which are normally charged feepaying clients.” Fisher v. SD Protection Inc., 948 F.3d at 600 (quoting Reichman v.
Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)). Those costs
must be “tied to identifiable, out-of-pocket disbursements.” Valdez v. H & S Rest.
Operations, Inc., 2016 WL 3079028, at *9 (E.D.N.Y. Mar. 29, 2016) (internal quotation
marks omitted) (citation omitted). Indeed, “[t]he fee applicant must submit adequate
documentation supporting the requested attorneys’ fees and costs.”

Fisher v. SD

Protection Inc., 948 F.3d at 604-05. Plaintiffs’ counsel has submitted their bill of costs
and a list of expenses and disbursements. Dkt. Nos. 490-10 & 490-11.

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Initially, Defendants contend that Plaintiffs have sought taxable costs that were not
included in their bill of costs and therefore cannot be awarded because they are untimely.
Plaintiffs submitted a bill of costs within 30 days of the date of judgment, Dkt. No. 486,
which contained a request for $2,052.84 in costs. In Plaintiffs’ application for attorney’s
fees, they request a total of $46,065.84 in costs, and specify that $19,663.42 of those are
taxable litigation costs. Dkt. No. 490-11; Dkt. No. 490-12 at p. 22. Defendants point out
that Plaintiffs did not file a bill of costs for the other $17,610.58 in taxable costs, and do
not provide receipts for any of these items. Dkt. No. 502, Defs.’ Mem. of Law, p. 28.
The Northern District’s Local Rules provide that
The party entitled to recover costs set forth in 28 U.S.C. § 1920 shall file,
within thirty (30) days after entry of judgment, a verified bill of costs on the
forms that the Clerk provides, together with an affidavit verifying that (1)
the items claimed in the Bill of Costs are correct; (2) the costs have been
necessarily incurred in the case; and (3) the services for which the fees have
been charged were actually and necessarily performed, and a Certificate of
Service. The party seeking costs shall accompany its request with receipts
indicating that the party actually incurred the costs that it seeks.
N.D.N.Y. L.R. 54.1(a). Plaintiffs did not comply with the requirement to submit such
costs within thirty days after entry of judgment, or to provide receipts. “Failure to file a
bill of costs within the time provided for in this Rule shall constitute a waiver of the
taxable costs.” Id. at 54.1(c). The Court does have discretion to award such costs
notwithstanding the Rule. Utica Mut. Ins. Co. v. Munich Reinsurance Am., Inc., 2020
WL 950283, at *3 (N.D.N.Y. Feb. 27, 2020) (“[T]his thirty-day time frame is not
jurisdictional, and courts have discretion to ignore the prevailing party’s failure to comply
with the Local Rules.”) (citation omitted) (cleaned up). However, Plaintiffs have not
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provided any explanation for the delay in submitting these costs. As such, the Court finds
that Plaintiffs’ request for taxable costs should only be granted as to those costs for which
they submitted a timely bill of costs. See Grant v. Lockett, 2019 WL 1872967, at *3-4
(N.D.N.Y. Apr. 26, 2019) (denying request for costs where plaintiffs failed to provide
good cause to justify the delay in the request); Gibson v. CSX Transportation, Inc., 2009
WL 10680308, at *1-2 (N.D.N.Y. June 9, 2009) (declining to exercise discretion to ignore
failure to comply); Castle v. Leach Co., 1998 WL 743716, at *1 (N.D.N.Y. Oct. 15, 1998).
Plaintiffs are therefore awarded $2,052.84 of the taxable costs requested. 1
Defendants also argue that Plaintiffs should not be awarded the non-taxable costs
requested because a portion may have been incurred in connection with the class action
and the collective action, and because their submissions contain insufficient
documentation or details. The Court finds a further reduction on these bases to be
appropriate.
First, Plaintiffs have submitted an itemized list of costs; however, Plaintiffs
provide no delineation aside from providing a date, category, and cost, and do not provide
any receipts. For example, there are over thirty items simply specified as “travel
expenses” without any further explanation. Gen. Motors Corp. v. Villa Marin Chevrolet,
Inc., 240 F. Supp. 2d 182, 189 (E.D.N.Y. 2002) (“[T]he failure to itemize the reasons for
the substantial travel expenditures must be held against the applicant.”). Each category

Even were the Court to exercise its discretion to award these taxable costs, Plaintiffs fail to provide any receipts or
explanation for these items. For example, Plaintiffs submit an itemization of $8,527.15 in transcript costs, but aside
from the receipt contained for $1,672.84 in their bill of costs, do not include any receipts for these transcripts. In
addition, they do not explain what these transcripts related to or why they were necessarily obtained for use in the
case. See Dkt. No. 490-11 at p. 13; Dun Aff. at ¶¶ 114-119.
1

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of Plaintiffs’ costs is similarly broken down without sufficient detail, explanation, or
receipts. Plaintiffs simply assert that the costs were reasonable and necessary; there is
absolutely no explanation as to why the substantial costs were incurred. It is the fee
applicant’s burden to demonstrate that the fees requested are reasonable, and without
additional details or documentation it is impossible for the Court to determine the
reasonableness of the costs. See Mendez v. Radec Corp., 907 F. Supp.2d 353, 359-60
(W.D.N.Y. 2012) (plaintiffs provided a list of costs specifying the date, amount, and short
description of the cost, but disallowing because “it is simply not possible for the court to
determine whether many of the costs are reasonable, as the Plaintiffs have not provided
information regarding why many of these costs were necessary or even chargeable to this
case.”); Francois v. Mazer, 2012 WL 3245439, at *2-3 (S.D.N.Y. Aug. 6, 2012) (finding
costs requested were unjustifiable with only “an attorney’s name, a date and a price”).
In addition, further reduction is warranted to account for costs attributable to the
collective action and the class action. See Dotson v. City of Syracuse, 2011 WL 817499,
at *33; Kim v. Dial Serv. Int’l, Inc., 1997 WL 458783, at *20 (S.D.N.Y. Aug. 11, 1997),
aff’d, 159 F.3d 1347 (2d Cir. 1998).

Because insufficient details were submitted

regarding the costs, there is no way to verify that the requested costs do not include costs
attributable to the class or collective action.
Due to the insufficient nature of the submissions, the Court finds a reduction of
fifty percent of the costs is warranted. Jimico Enters., Inc. v. Lehigh Gas Corp., 2011
WL 4594141, at *13 (N.D.N.Y. Sept. 30, 2011) (reducing request for costs by twenty
percent “instead of embarking on the tedious task of itemizing, and accepting or rejecting,
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Plaintiffs’ counsels’ costs” after finding that counsel was not entitled to recover some
costs); Rotella v. Bd. Of Educ. of City of New York, 2002 WL 59106, at *5 (E.D.N.Y. Jan.
17, 2002) (reducing plaintiffs’ costs by fifty percent where plaintiffs’ submissions were
vague and did not include sufficient documentation).
Plaintiffs seek a total amount of costs of $46,065.84. After subtracting the
untimely requested taxable costs, the costs are reduced to $28,455.26. After a further
reduction of fifty percent, Plaintiffs are entitled to an award of costs in the amount of
$14,227.63.
V. POST-JUDGMENT INTEREST
Plaintiffs also seek post-judgment interest. Dkt. No. 490. Plaintiffs are awarded
post-judgment interest, accruing from the date of judgment until the date on which
Plaintiffs are paid by Defendants. Interest shall accrue at the rate of .18%. See 28 U.S.C.
§ 1961(a); https://www.federalreserve.gov/releases/h15/data.htm.
VI. CONCLUSION
WHEREFORE, it is hereby
ORDERED, that Plaintiffs’ Motion for Attorney’s fees (Dkt. No. 490) is granted
in part and denied in part in that Plaintiffs are awarded a total of $576,870.30 in attorney’s
fees; and it is further
ORDERED, that Plaintiffs’ Motion for Costs (Dkt. No. 486) is granted in part and
denied in part in that Plaintiffs are awarded a total of $14,227.63 in costs; and it is further

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ORDERED, that Plaintiffs’ Motion for post-judgment interest is granted.
SO ORDERED.
Dated: March 15, 2021
Albany, New York

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