Rios et al v. Louya Corp. et al
Filing
78
MEMORANDUM OPINION AND ORDER. Plaintiffs are entitled to $54,929.75 in attorneys fees and $8,794.42 in costs. The Clerk of Court is directed to enter judgment for the plaintiffs, against defendants Service Corp., JBB Bar and Grill Inc., and Mr. Ouari, jointly and severally, in the amount of $63,724.17; and to terminate the motion pending at Docket Number 72. re: 72 MOTION for Attorney Fees filed by Carlos Suarez, Rene Almazo, Ramon Hernandez, Gildardo Ojeda-Juarez, Juan Gomez Rios, Pedro Tlacomulco, Eliezer Francis. (Signed by Judge Gregory H. Woods on 10/8/2015) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JUAN GOMEZ RIOS, et al.,
:
:
Plaintiffs, :
:
-v :
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LOUYA CORP., et al.,
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Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 10/8/2015
1:14-cv-6800-GHW
MEMORANDUM OPINION
AND ORDER
GREGORY H. WOODS, United States District Judge:
I.
BACKGROUND
Plaintiffs filed this case on August 22, 2014, alleging claims for unpaid wages and retaliation
under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). After a
five-day bench trial, the Court found that defendants Service Corp., JBB Bar and Grill Inc., and
Hamimi “Jacques” Ouari violated the FLSA and NYLL and awarded unpaid wages and liquidated
damages; the Court found that plaintiffs did not meet the burden of proof for illegally retained tips
under NYLL, so no damages were awarded for that claim. See Dkt. No. 70. Because this action has
been automatically stayed against defendant Louya Corp. as a result of its filing a petition for
Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of New York on July
9, 2015, see Dkt. No. 68, the decision and judgment only applied to the three non-bankrupt
defendants. References to “defendants” in this order refer only to the three non-bankrupt
defendants.
The Clerk of Court computed interest and entered judgment for plaintiffs against Mr. Ouari
personally in the amount of $980,788.45; and entered judgment for plaintiff Juan Gomez Rios,
against Service Corp. and Mr. Ouari, jointly and severally, in the amount of $18,206.92. See Dkt. No.
71.
On July 24, 2015, plaintiffs’ counsel moved for an award of $77,048.75 in attorney’s fees and
$8,794.42 in costs, pursuant to the fee-shifting provisions of the FLSA, 29 U.S.C. § 216(b), and the
NYLL, N.Y. Lab. Law § 663(1). See Dkt. No. 72. Defendants’ opposition papers were due by
August 7, 2015. Defendants did not file a response by that date, and on August 12, 2015 the Court
directed defendants to respond to plaintiffs’ motion by August 17, 2105. See Dkt. No. 75. As of the
date of this Order, defendants have not filed a response to plaintiffs’ motion. For the reasons stated
below, the Court awards plaintiffs $54,929.75 in attorney’s fees and $8,794.42 in costs.
II.
DISCUSSION
A. Attorney’s Fees Under the FLSA and NYLL
Both the FLSA and the NYLL are fee-shifting statutes entitling reasonable attorney’s fees
and costs. Gurung v. Malhotra, 851 F. Supp. 2d 583, 595 (S.D.N.Y. 2012). Under the FLSA, “[a]ny
employer who violates the [FLSA] 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 “[t]he court in such action 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.” 29
U.S.C. § 216(b). Under the NYLL, any employee paid less than the statutory minimum wage “shall
recover in a civil action the amount of any such underpayments, together with costs [and] all
reasonable attorney’s fees.” N.Y. Lab. Law § 663(1); see also N.Y. Lab. Law § 198(1-a) (“[i]n any
action instituted in the courts upon a wage claim by an employee . . . in which the employee prevails,
the court shall allow such employee to recover the full amount of any underpayment [and] all
reasonable attorney’s fees . . . .”). Because the Court found that defendants violated the FLSA and
NYLL, plaintiffs are entitled to reasonable attorney’s fees and costs in addition to the judgment
already entered in their favor.
The Court has discretion in determining the appropriate amount of the fee award. See
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The Supreme Court has explained that “[t]his is
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appropriate in view of the district court’s superior understanding of the litigation and the desirability
of avoiding frequent appellate review of what essentially are factual matters.” Id.; see also McDonald ex
rel Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006)
(“Given the district court’s inherent institutional advantages in this area, our review of a district
court’s fee award is highly deferential.”)
The Second Circuit’s approach to determining an appropriate attorney’s fee award requires
the Court to calculate a “presumptively reasonable fee,” which is the product of: (1) a reasonable
hourly rate for the attorney’s work; and (2) a reasonable number of hours of work required by the
case. See Millea v. Metro-N. R. Co., 658 F.3d 154, 166–67 (2d Cir. 2011) (citing Arbor Hill Concerned
Citizens Neighborhood Ass’n. v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)). The party seeking
fees bears “the burden of ‘establishing entitlement to an award and documenting the appropriate
hours expended and hourly rates.’” Savoie v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999)
(quoting Cruz v. Local Union Number 3, 34 F.3d 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). Plaintiffs’ counsel submitted
documentation of their work, including time records for each attorney and an explanation of the
hourly rates sought for each attorney. See Mem. of Law in Supp. of Pls.’ Mot. Attorneys’ Fees and
Costs (“Plaintiffs’ Memo”), Dkt. No. 74; Rodriguez Declaration, Dkt. No. 73 (including exhibits).
B. Reasonable Hourly Rates
A reasonable hourly rate is one which a “paying client would be willing to pay,” bearing in
mind that “a reasonable, paying client wishes to spend the minimum necessary to litigate the case
effectively.” Arbor Hill, 522 F.3d at 190. To find a reasonable hourly rate, the Court must
determine whether the rates requested by plaintiffs’ counsel are “in line with those rates prevailing in
the community for similar services by lawyers of reasonably comparable skill, experience, and
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reputation.” Reiter v. MTA New York City Transit Authority, 457 F.3d 224, 232 (2d Cir. 2006) (quoting
Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)). In order to make this determination, courts look to:
“(1) rates awarded in prior cases; (2) courts’ own knowledge of hourly rates charged in the district;
and (3) evidence submitted by the parties.” Jemine v. Dennis, 901 F. Supp. 2d 365, 392 (E.D.N.Y.
2012) (citing Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir. 2005)).
Plaintiffs request a rate of $375 for Eric Gitig, who graduated from Cardozo School of Law
in 2009. Mr. Gitig’s career has focused in employment and labor law, and he served as lead counsel
in this case until April 2015. While in law school, Mr. Gitig participated in internships with the New
York City Mayor’s Office of Labor Relations and the United States Department of Labor. Mr. Gitig
was promoted to Senior Associate in 2014, and has since left Fitapelli & Schaffer, LLP. See
Plaintiffs’ Memo at 4; Rodriguez Decl. at 10.
Plaintiffs request a rate of $300 per hour for Arsenio Rodriguez, an associate who graduated
from George Washington University Law School in 2009 and practiced as an Assistant District
Attorney working on criminal matters for nearly four years. Mr. Rodriguez spent an unspecified
amount of time providing litigation support at another firm before joining Fitapelli & Schaffer, LLP
in 2014. Mr. Rodriguez served as lead counsel in this case beginning in April 2015, taking over for
Mr. Gitig. See Plaintiffs’ Memo at 4; Rodriguez Decl. at 9.
Plaintiffs request a rate of $250 per hour for Nicholas Melito, an associate who graduated
from New York Law School in 2013. Mr. Melito’s career has focused in employment and labor law,
and he worked as an extern and law clerk at Fitapelli & Schaffer, LLP prior to graduating law school.
Plaintiffs request a rate of $125 for Maria Luna, a paralegal who graduated from New York
University in 2010 and acts as the main liaison with Spanish-speaking clients. See Plaintiffs’ Memo at
4; Rodriguez Decl. at 10–11.
Courts in this district have generally determined that the range of appropriate fees for
experienced civil rights and employment law litigators is between $250 and $450. Galeana v.
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Lemongrass on Broadway Corp., No. 10 CIV. 7270 GBD MHD, 2014 WL 1364493, at *13 (S.D.N.Y.
Apr. 4, 2014). Generally, courts in this district award rates between $350 and $450 per hour for
partners with significant employment litigation experience. See, e.g., Tackie v. Keff Enterprises LLC,
No. 14-cv-2074 (JPO), 2014 WL 4626229, at *7 (S.D.N.Y. Sept. 16, 2014) ($400 per hour for
partner with eleven years of experience in wage and hour litigation was “consistent with prevailing
rate for partners litigating wage and hour cases in” SDNY and EDNY); Kahlil v. Original Old
Homestead Rest., Inc., 657 F. Supp. 2d 470, 478 (S.D.N.Y. 2009) ($400 per hour for partner with
twenty-five years of experience who specializes in wage and employment law); Castellanos v. Mid
Bronx Cmty. Hous. Mgmt. Corp., No. 13-cv-3061 (JGK), 2014 WL 2624759, at *7 (S.D.N.Y. June 10,
2014) ($350 per hour for experienced partner and collecting cases awarding $300–400 rates for
partners); Liang Huo v. Go Sushi Go 9th Ave., No. 13 CIV. 6573 KBF, 2014 WL 1413532, at *7–8
(S.D.N.Y. Apr. 10, 2014) ($350 per hour for attorney with almost ten years of experience primarily
in employment law).
Courts in this district have awarded rates between $285 and $300 per hour for attorneys with
at least eight years of experience. See, e.g., Yuquilema v. Manhattan’s Hero Corp., No. 13 Civ.
461(WHP)(JLC), 2014 WL 4207106, at *14 (S.D.N.Y. Aug. 20, 2014) ($300 per hour for ten years of
experience), report & rec. adopted, 2014 WL 5039428 (S.D.N.Y. Sept. 30, 2014); Torres v. Gristede’s
Operating Corp., 2012 WL 3878144, at *4 (S.D.N.Y. Aug. 6, 2012) aff’d, 519 Fed. App’x 1 (2d Cir.
2013) ($300 per hour for eight years of experience); Clover v. Shiva Realty of Mulberry, No. 10-cv-1702
(RPP), 2011 WL 1832581, at *5 (S.D.N.Y. May 13, 2011) ($300 per hour for 9 years of experience);
Black v. Nunwood, Inc., No. 1:13-CV-7207-GHW, 2015 WL 1958917, at *5 (S.D.N.Y. Apr. 30, 2015)
($285 per hour for nine years of experience).
Courts in this district have awarded rates between $200 and $275 per hour for attorneys with
at least four years of experience. See, e.g., Collado v. Donnycarney Rest. L.L.C., No. 14 CIV. 3899 GBD
HBP, 2015 WL 4737917, at *11 (S.D.N.Y. Aug. 10, 2015) ($275 per hour to “Senior Counsel” with
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five years of experience who “directly supervises all . . . associates’ work); Galeana, 2014 WL
1364493, at *14 ($250 per hour to attorney who practiced law “since 1998” and focused practice on
FLSA claims “since 2006”); Maldonado v. La Nueva Rampa, Inc., No. 10 CIV. 8195 LLS JLC, 2012 WL
1669341, at *13 (S.D.N.Y. May 14, 2012) ($200 per hour to fourth year associates).
The Court finds that the hourly rates requested by plaintiffs’ counsel are excessive. Mr.
Gitig’s requested fee is equivalent to that of a partner with significant employment litigation, but his
experience is not comparable. In February 2012, a court in this district reduced Mr. Gitig’s fee to
$175 per hour, but noted that this decision relied on the fact that part of the work Mr. Gitig
performed in that case was as a law clerk, rather than an attorney. Anthony v. Franklin First Fin., Ltd.,
844 F. Supp. 2d 504, 508 (S.D.N.Y. 2012). Given his increased experience since that time, the Court
approves a rate of $225 per hour for Mr. Gitig.
The rates requested for Mr. Rodriguez are similarly excessive. Although he graduated the
same year as Mr. Gitig and also served as lead counsel after Mr. Gitig’s departure, Mr. Rodriguez has
relatively little experience in employment or wage and hour law—prior to April 2015, his experience
was exclusively in criminal law and litigation support. Mr. Rodriguez’s lack of experience in the area
of employment law was mitigated by his effective performance at trial. As a result, the Court
approves a rate of $225 per hour for Mr. Rodriguez.
Courts typically award rates in the range of $125–$215 to associates with three years of
experience or less. See, e.g., Chen v. TYT E. Corp., No. 10-cv-5288 (PAC) (DF), 2013 WL 1903735, at
*3 (S.D.N.Y. May 8, 2013) ($215 per hour for less than 2 years of experience and $125 per hour for
summer associates); Black, 2015 WL 1958917, at *5 ($200 per hour for associate with three years of
experience and $150 for one year of experience); Palacios v. Z & G Distributors, Inc., No. 11-cv-2538
(FM), 2013 WL 4007590, at *6 (S.D.N.Y. Aug. 6, 2013) ($200 per hour for three years of
experience); Apolinario v. Luis Angie Deli Grocery Inc., No. 1:14-CV-2328-GHW, 2015 WL 4522984, at
*3 (S.D.N.Y. July 27, 2015) ($175 per hour for 2013 graduate); Anthony, 844 F. Supp. 2d at 508 ($175
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per hour for three years of experience); Gurung, 851 F. Supp. 2d at 597 ($150 per hour for law clerks
at large firm); Jemine, 901 F. Supp. 2d at 393 ($150 per hour for junior associate with less than 1 year
of experience). Given these rates for “similar services by lawyers of reasonably comparable skill,
experience, and reputation,” Reiter, 457 F.3d at 232, the Court approves a rate of $175 per hour for
Mr. Melito.
Courts in this district typically award rates in the range of $75–$100 to paralegals, but the
rate varies depending on experience. See, e.g., Gurung, 851 F. Supp. 2d at 597 ($100 per hour);
Castellanos, 2014 WL 2624759, at *7 ($95 per hour); Alvarez v. 215 N. Ave. Corp., No. 13-CV-7049
NSR PED, 2015 WL 3855285, at *7 (S.D.N.Y. June 19, 2015) ($75 per hour to bilingual paralegals);
Black, 2015 WL 1958917, at *6 ($75 per hour where no information provided on experience). In
March 2015, Ms. Luna was awarded a rate of $85 per hour by a court in the Eastern District of New
York. Lopez v. Yossi’s Heimishe Bakery Inc., No. 13-CV-5050 FB CLP, 2015 WL 1469619, at *13
(E.D.N.Y. Mar. 30, 2015). Given these prior rates, the Court approves a rate of $85 per hour for
Ms. Luna.
C. Time Reasonably Expended
To determine a reasonable number of hours of work for a particular case, courts first look
for documentation in the form of “contemporaneous time records ‘specifying, for each attorney, the
date, the hours expended, and the nature of the work done.” Greathouse v. JHS Sec., Inc., No. 11-cv7845 (PAE) (GWG), 2012 WL 3871523, at *9 (S.D.N.Y. Sept. 7, 2012) report and recommendation
adopted as modified, No. 11-cv-7845 (PAE) (GWG), 2012 WL 5185591 (S.D.N.Y. Oct. 19, 2012)
(alterations omitted) (quoting N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148
(2d Cir. 1983)). Courts may also consider their “own familiarity with the case and . . . experience
generally. Because attorneys’ fees are dependent on the unique facts of each case, the resolution of
the issue is committed to the discretion of the district court.” Guallpa v. N.Y. Pro Signs Inc., No. 11cv-3133 (LGS) (FM), 2014 WL 2200393, at *10–11 (S.D.N.Y. May 27, 2014) report and recommendation
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adopted sub nom., 2014 WL 4105948 (S.D.N.Y. Aug. 18, 2014) (alterations omitted). “Finally, billing
judgment must be factored into the equation.” Id.
The Court finds the time records submitted by plaintiffs’ counsel is sufficiently detailed and
reasonable. Accordingly, the Court awards plaintiffs $54,929.75 in attorney’s fees, calculated by
multiplying the reasonable hourly rate for each attorney by the number of hours she or he worked,
according to the billing sheet included as Exhibit B to Mr. Rodriguez’s affidavit. See Dkt. No. 73-2.
D. Costs
Plaintiffs, as the prevailing party in this case, are entitled to recover costs in addition to
reasonable attorney’s fees. See 29 U.S.C. § 216(b); N.Y. Lab. Law §§ 198(1-a), 663. “Costs are
defined as ‘those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to
their clients.’” Apolinario, 2015 WL 4522984, at *4 (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748,
763 (2d Cir. 1998)).
Plaintiffs request reimbursement for court filing and daily transcript fees, as well expenses
incurred for postage, process servers, deposition, and hiring a Spanish interpreter for trial. These
costs are all reasonable and courts have allowed them in similar cases. See, e.g., Apolinario, 2015 WL
4522984, at *4 (awarding filing and transcript fees, and postage, process servers, and interpreter
expense); Marquez v. Erenler, Inc., No. 12-cv-8580 (GHW), 2014 WL 5847441, at *4 (S.D.N.Y. Nov.
10, 2014) (awarding filing and transcript fees, and process server, deposition, and interpreter
expenses); Kadden v. VisuaLex, LLC, No. 11-cv-4892 (SAS), 2012 WL 6097656, at *3 (S.D.N.Y. Dec.
6, 2012) (awarding filing fee and deposition, process server, and transcript expenses); Morris v.
Affinity Health Plan, Inc., 859 F. Supp. 2d 611, 624 (S.D.N.Y. 2012) (awarding expenses including
filing fees and postage); Allende v. Unitech Design, Inc., 783 F. Supp. 2d 509, 515 (S.D.N.Y. 2011)
(awarding expenses for interpreters at settlement conference and depositions); Jin M. Cao v. Wu Liang
Ye Lexington Rest., Inc., No. 08-cv-3725 (DC), 2010 WL 4159391, at *8–9 (S.D.N.Y. Sept. 30, 2010)
(awarding filing fee and expenses for transcription services and interpreter).
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III.
CONCLUSION
Plaintiffs are entitled to $54,929.75 in attorney’s fees and $8,794.42 in costs. The Clerk of
Court is directed to enter judgment for the plaintiffs, against defendants Service Corp., JBB Bar and
Grill Inc., and Mr. Ouari, jointly and severally, in the amount of $63,724.17; and to terminate the
motion pending at Docket Number 72.
SO ORDERED.
Dated: October 8, 2015
New York, New York
_____________________________________
GREGORY H. WOODS
United States District Judge
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