Najera et al v. 1443 York Gotham Pizza Inc. et al

Filing 282

OPINION & ORDER....The plaintiffs' December 16, 2016 motion for attorneys' fees and costs is granted in part, as described herein. (Signed by Judge Denise L. Cote on 2/24/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------PRISCO NAJERA, ISRAEL FUENTES,
CRISTOBAL BRAVO, LEVI GALLARDO, LUGO
ROMANO, PABLO NAJERA, ELEUTERIO
ALONZO, JOSE LUIS ORTEGA, WILFREDO
RAMIREZ, ANASATCIO ANTOLIN, LUIS
ANTONIO CANIZAL, FAUSTO RAMALES,
FERNANDO ARRELLANOS, LUIS NAJERA,
ADALBERTO NAVARRO FLORES, AURELIANO
TAPIA, ISRAEL JUAREZ LUNA, RODOLFO
RUIZ BRIONES, MANUEL MONTIEL LOPEZ,
FERNANDO RODRIGUEZ, CLAUDIO ARIAS, and
IVAN BENITEZ,

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Plaintiffs,
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-v:
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144 NINTH GOTHAM PIZZA, INC., (d/b/a
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GOTHAM PIZZA), 852 EIGHTH GOTHAM PIZZA :
INC., (d/b/a GOTHAM PIZZA), 1443 YORK :
GOTHAM PIZZA INC., (d/b/a GOTHAM
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PIZZA), 1667 FIRST GOTHAM PIZZA, INC., :
(d/b/a GOTHAM PIZZA), MICHAEL
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SHAMAILOV, and LANA SHAMAILOV,
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Defendants.
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APPEARANCES

12cv3133 (DLC)
14cv4563 (DLC)
15cv4069 (DLC)
15cv10062(DLC)
OPINION & ORDER

For plaintiffs:
Joshua S. Androphy
Michael Faillace & Associates, P.C.
60 East 42nd Street, Suite 2540
New York, NY 10165
DENISE COTE, DISTRICT JUDGE:
On December 16, 2016, plaintiffs in these four consolidated
cases moved to recover attorneys’ fees and costs pursuant to the

Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and
the New York Labor Law (“NYLL”).
an opposition.1

The defendants failed to file

For the following reasons, the plaintiffs’

motion is granted in part.
DISCUSSION
The relevant facts and procedural history of this
litigation are set out in the Court’s November 22, 2016 Opinion,
Bravo v. Shamailov, No. 12 Civ. 3133(DLC), 2016 WL 6879261
(S.D.N.Y. Nov. 22, 2016), which is hereby incorporated by
reference and familiarity of which is assumed.

Under the FLSA,

courts award reasonable attorney’s fees and costs to prevailing
plaintiffs as a matter of right.2

29 U.S.C. § 216(b)(“The court

. . . shall, in addition to any judgment awarded to the
plaintiff or plaintiffs, allow a reasonable attorney’s fee to be
paid by the defendant, and costs of the action.”).

In order to

be considered a prevailing plaintiff for purposes of federal
fee-shifting statutes such as the FLSA, a plaintiff must achieve
“some material alteration of the legal relationship of the

The defendants have filed notices of appeal to the United
States Court of Appeals for the Second Circuit.
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The NYLL likewise requires courts to award attorney’s fees and
costs to prevailing employees. N.Y. Lab. Law § 198 (1-a)(“In
any action instituted in the courts upon a wage claim by an
employee or the commissioner in which the employee prevails, the
court shall allow such employee to recover the full amount of
any underpayment, all reasonable attorney’s fees . . . .”).
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parties,” and “that change must also be judicially sanctioned.”
A.R. ex rel. R.V. v. New York City Dept. of Educ., 407 F.3d 65,
67 (2d Cir. 2005)(citation omitted); see Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598,
603-04 (2001).
When examining a prevailing plaintiff’s request for
attorney’s fees, courts begin by calculating the presumptively
reasonable -- or “lodestar” -- fee by multiplying the attorney’s
“reasonable hourly rate by the number of reasonably expended
hours.”

Bergerson v. New York State Office of Mental Health,

Cent. New York Psychiatric Ctr., 652 F.3d 277, 289 (2d Cir.
2011); see Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551-52
(2010).

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, 652 F.3d at 289–90 (citation omitted).

To determine an attorney’s reasonable hourly rate, courts engage
in “a case-specific inquiry into the prevailing market rates for
counsel of similar experience and skill to the fee applicant's
counsel,” which may include taking “judicial notice of the rates
awarded in prior cases,” and relying on “the court’s own
familiarity with the rates prevailing in the district.”
Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir. 2005).
Top dollar rates typically “are only warranted in unusually
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difficult and complex cases.”

K.L. v. Warwick Valley Cent. Sch.

Dist., No. 12 Civ. 6313(DLC), 2013 WL 4766339, at *7 (S.D.N.Y.
Sept. 5, 2013).
To determine the number of reasonably expended hours,
courts typically examine an attorney’s billing records,
excluding “excessive, redundant or otherwise unnecessary hours,
as well as hours dedicated to severable unsuccessful claims.”
Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999).
Courts have “ample discretion” in assessing the “amount of work
that was necessary to achieve the results in a particular case.”
Ortiz v. Regan, 980 F.2d 138, 141 (2d Cir. 1992); see Hensley v.
Eckerhardt, 461 U.S. 424, 437 (1983).

While the lodestar figure

is presumptively reasonable, courts may adjust fee awards
upwards or downwards based on a variety of factors including
“the results obtained,” “the risk of the litigation,” and “the
performance of the attorneys.”

Knigge ex rel. Corvese v.

Corvese, No. 01 Civ. 5743(DLC), 2001 WL 883644, at *2 (S.D.N.Y.
Aug. 6, 2001)(citation omitted); see Savoie v. Merchants Bank,
166 F.3d 456, 460 (2d Cir. 1999).
I. Reasonable Hourly Rates
The plaintiffs prevailed in this litigation, receiving
final judgment on December 2, 2016.

They propose hourly rates

between $200-$450 for the work of five attorneys and $100 for
paralegal work.

While the plaintiffs’ proposed rates fall on
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the higher end of the spectrum of FLSA cases in this district,
they are reasonable given the complexity of this litigation and
the results obtained.
Plaintiffs seek to recover $450 per hour for the services
of Michael Faillace.

Courts in this district have held $450 as

the maximum hourly rate for a senior attorney in FLSA type
cases.

Gonzalez v. Scalinatella, Inc., 112 F. Supp. 3d 5, 27

(S.D.N.Y. 2015)(collecting cases).

Given the complexity of this

litigation and the favorable results obtained, the plaintiffs’
proposal of $450 is reasonable.
straightforward.

This litigation was not

It involved four separate lawsuits that were

later consolidated, twenty-two plaintiffs, and two jury trials
over more than four years.

The plaintiffs ultimately prevailed

on multiple claims, resulting in judgments totaling over $1.5
million.

Mr. Faillace has considerable experience litigating

federal employment actions.

Accordingly, the plaintiffs are

entitled to recover fees for his services at the rate of $450
per hour.
The plaintiffs’ proposed $400 hourly rate for Mr.
Androphy’s services is also reasonable given Mr. Androphy’s
exceptional performance in this litigation.

Mr. Androphy served

as lead counsel in both trials before the Court and has served
as lead trial counsel in twelve FLSA trials since joining
Michael Faillace & Associates in 2012.
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The remaining requested

rates -- $375 for Shawn Clark, $375 for Jesse Barton, $200 for
Joanna Sanchez, and $100 for paralegal work -- similarly fall on
the higher end of the spectrum in this district, but are
reasonable given the complexity of this litigation and the
favorable results obtained.
II. Reasonably Expended Hours
Having examined Mr. Androphy’s Declaration and supporting
exhibits, the plaintiffs’ request for compensation of 496.9
hours of billed time is reasonable, except with respect to the
number of hours attributed to Mr. Faillace.

Given that Mr.

Androphy performed the “vast majority” of the work in this
litigation and served as lead trial counsel -- facts the
plaintiffs themselves call to the Court’s attention in their
motion -– a reduction of Mr. Faillace’s hours is appropriate.
Accordingly, the number of reasonably expended hours
attributable to Mr. Faillace is reduced to 10.
III. Costs
The plaintiffs also request costs in the amount of
$12,027.68 -- a figure reflecting administrative costs such as
filing and transcript fees and support staff costs including
interpreter fees, among other things.

Having examined the

relevant disbursement records and invoices, the requested costs
are reasonable.

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CONCLUSION
The plaintiffs’ December 16, 2016 motion for attorneys’
fees and costs is granted in part, as described herein.
Dated:

New York, New York
February 24, 2017
__________________________________
DENISE COTE
United States District Judge

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