Pelgrift et al v. 355 W, 51st Tavern Inc. et al
Filing
98
MEMORANDUM OPINION & ORDER adopting Report and Recommendation for 82 Motion for Judgment, Motion for Attorney Fees filed by Valeriya Kolisnyk, Iryna Lutsenko, Patrizia Pelgrift, 92 Report and Recommendations. For the reasons that follow, the Court OVERRULES Defendants' objections, OVERRULES in part and GRANTS in part Plaintiffs' objections, and ADOPTS in part the R&R. For the foregoing reasons, the Court accepts in part Plaintiffs' objections with respect to damages for emotional distress, attorneys' fees, and costs. It rejects the balance of the parties' objections, and adopts the remainder of the R&R. Plaintiffs are therefore entitled to the following damages. Plaintiff Pelgrift is entitled to 036;20,000 in emotional distress damages and $10,000 in punitive damages. Plaintiffs Kolisnyk and Lutsenko are each entitled to $40,000 in emotional distress damages and $20,000 in punitive damages. Finally, Plaintiffs' attorneys are entitled to $13,608.75 in fees and $2,963 in costs. Because Plaintiffs indicated that they are not seeking prejudgment interest, see Dkt. No. 82 at 21-22, R&R at 2 n.l, none will be awarded. This resolves all pending matters, inclu ding Dkt. No. 82. The Clerk of Court is respectfully directed to enter judgment in accordance with this Opinion and to close this case. SO ORDERED. (Signed by Judge Alison J. Nathan on 9/30/2018) (anc) Transmission to Orders and Judgments Clerk for processing. Modified on 10/1/2018 (anc).
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Plaintiffs,
14-CV-8934 (AJN)
-vMEMORANDUM
OPINION & ORDER
355 W. 41st Tavern, Inc., et al.,
Defendants.
ALISON J. NATHAN, United States District Judge:
On September 28, 2017, the Court granted in part Plaintiffs' motion for the entry of
default judgment, entering judgment as to Defendants' liability on certain causes of action, but
referring the matter to the Honorable Nathaniel J. Fox for an inquest into damages. Dkt. No. 79.
On July 3, 2018, Judge Fox issued his Report and Recommendation ("R&R") to this Court.
Now before the Court are the parties' objections to the R&R. For the reasons that follow, the
Court OVERRULES Defendants' objections, OVERRULES in part and GRANTS in part
Plaintiffs' objections, and ADOPTS in part the R&R.
I.
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Background
The parties' familiarity with the factual and procedural history is assumed. For more
details, the Court refers the reader to its liability opinion and to Judge Fox's R&R.
In brief, Plaintiffs Patrizia Pelgrift, Valeriya Kolisnyk, and Iryna Lutsenko were
employed by Defendants in their bars, Tobacco Road and Dave's Tavern. They filed this lawsuit
under the Fair Labor Standards Act ("FLSA") and the New York State Labor Law ("NYLL") for
various labor violations, and under Title VII of the Civil Rights Act of 1964 and the New York
1
~
City Human Rights Law ("NYCHRL") for sexual harassment, gender discrimination, and
wrongful termination. On September 28, 2017, the Court found Defendants liable for:
(1) failure to pay minimum wages to Plaintiffs Pelgrift and Kolisnyk under the
FLSA and NYLL; (2) failure to pay overtime wages to Plaintiff Pelgrift under the
FLSA and NYLL; (3) breach of their contract with Plaintiff Pelgrift; (4) for
sexual harassment and gender discrimination of all Plaintiffs under Title VII
(corporate Defendants only); (5) for sexual harassment and gender discrimination
of all Plaintiffs under the NYCHRL; and (6) for defamation of Plaintiff Pelgrift.
Pelgrift v. 335 W 41st Tavern Inc., No. 14-CV-8934 (AJN), 2017 WL 4712482, at *15
(S.D.N.Y. Sept. 28, 2017) [hereafter, "Liability Op."]. However, the Court found that
Plaintiffs failed to carry their burden of establishing the damages amount with
"reasonable certainty," as required during default judgment proceedings. Id. After
noting some of the deficiencies in the Plaintiffs' submissions, the Court ultimately
concluded that "[s]upplemental evidence and a formal inquest" were needed, and referred
the matter to Magistrate Judge Fox for an inquest. Id.
Plaintiffs submitted additional materials on November 27, 2017, Defendants filed
their opposition on December 22, 2017, and Judge Fox issued his R&R to this Court on
July 3, 2018. See Dkt. Nos. 83, 86, 91, & 92. Both Plaintiffs and Defendants filed timely
objections to the R&R. See Dkt. Nos. 93-95.
II.
Summary of the R&R
After summarizing the evidence submitted by Plaintiffs through their counsel, Marjorie
Mesidor, the arguments made by the parties, and the relevant legal standards, Judge Fox begins
his analysis by considering whether the evidence Plaintiffs submitted is admissible under the
Federal Rules of Evidence. Judge Fox concludes that Ms. Mesidor's affidavit does not satisfy
"the identification and authentication requirements" of the Rules, failing to produce sufficient
evidence to find "that the exhibits attached to her declaration are what they purport to be." R&R,
2
Dkt. No. 92, at 19. Judge Fox continues on by highlighting the inconsistencies both within Ms.
Mesidor's affidavit and between it and the Plaintiffs' memorandum of law, including with
respect to the amount of damages Plaintiffs' request. Id. at 20. He also notes inconsistencies
within the memorandum oflaw. Id. at 20-23. And he points out apparent errors throughoutlike the fact that Plaintiff Pelgrift requests damages based on spread-of-hour wage violations
under the NYLL despite the fact that the Court found that the Defendants were not liable on that
claim. Compare Liability Op. at *9 with Dkt. No. 83 at 11-12.
Judge Fox then delves into further detail regarding each Plaintiffs claimed damages.
After exploring the inconsistencies in Ms. Pelgrift's representations, R&R at 26-29, Judge Fox
concludes that "Pelgrift failed to establish with reasonable certainty her unpaid minimum wages
and overtime compensation damages." Id. at 29. Similarly, after summarizing Pelgrift's
inconsistent statements about the bar's earnings, Judge Fox concluded that "Pelgrift failed to
establish damages for breach of contract with reasonable certainty." Id. at 29-30. Having "failed
to submit any evidence establishing damages as a result of her defamation cause of action," the
Court finds that Pelgrift failed on that claim as well. Id. at 30 (emphasis added). And finally,
with respect to Ms. Pelgrift's sexual harassment and gender discrimination claims, the R&R
finds that Pelgrift "provided no admissible evidence in support of her emotional distress and
mental health injuries" other than "conclusory assertions," but finds that these assertions still
"warrant an award of: (a) $10,000 in damages for emotional distress; and (b) $10,000 in punitive
damages, based on the defendants' reckless indifference and conscious disregard of Pelgrift's
rights." Id. at 30-32.
With respect to Ms. Kolisnyk, Judge Fox noted similar problems, concluding that her
affidavit is "ambiguous, inconsistent and vague." Id. at 34. Accordingly, he concluded that
3
Kolisnyk failed to establish her unpaid minimum damages under the FLSA or NYLL. Id. at 34-
35. Again, as with Ms. Pelgrift, Judge Fox deemed Kolisnyk's evidence of emotional distress
mere "generalized assertions," with no specifics concerning her sleep or self-esteem issues.
Nonetheless, based on her affidavit, and in light of the sexual harassment she experienced, which
included physical contact, Judge Fox recommends awarding Kolisnyk: "(a) $20,000 in damages,
for emotional distress; and (b) $20,000 in punitive damages." Id. at 36-37.
Finally, having drawn largely the same conclusions about the deficiencies in Ms.
Lutsenko's submissions, Judge Fox recommends the same award as he did for Kolisnyk: $20,000
in damages for emotional distress stemming from her experience of sexual harassment, which
included physical contact, and $20,000 in punitive damages. Id. at 38-39.
Turning to Plaintiffs' application for attorneys' fees and costs, Judge Fox concludes that
"the numerous examples of deficiencies and inconsistencies in the plaintiffs' submissions
identified above demonstrate that their counsel failed to exhibit the minimal level of skill
necessary to establish the plaintiffs' damages with reasonable certainty." Id. at 40. Accordingly,
Judge Fox determined that "the plaintiffs failed to establish that the requested hourly rates for the
legal services rendered to them are reasonable," and that, given the absence of contemporaneous
time records, "no basis exists to determine whether the unidentified number of hours is
reasonable." Id. at 40-41. With respect to costs, Judge Fox concluded that the lack of
explanation of Exhibit 3 0, which purports to be an itemization of costs, left him without basis to
determine whether the costs requested are reasonable. Id. at 41.
III.
Summary of Objections
Both parties filed objections. Defendants' objections are easy to summarize. In sum and
substance, Defendants' argue that the "garden variety" emotional distress claims only merit
4
between $5,000 and $10,000 per claim. See Dkt. No. 93 at 3-6. Additionally, Defendants argue
that no punitive damages should be awarded, disputing the finding that Defendants' knew they
were acting in violation of the law. Id. at 6.
Plaintiffs essentially object to the entirety of Judge Fox's R&R. Although initially
apologizing to the Court for "the mathematical mistake made in the request [for relief]" and for
the "inadvertent inclusion of the spread of hours calculations," Dkt. No. 94 at 1 n.1, the Plaintiffs
continue on to request that this Court accept their exhibits as submitted, id. at 5, and that the
Court exercise its discretion in reviewing their amended damage calculations under the FLSA
and NYLL. Id at 9-10. They further object to Judge Fox's determination that back and front
pay are not warranted, id. at 17-18 and that they failed to support their emotional distress and
punitive damages calculations, id. at 18-20. Finally, they object to Judge Fox's determination
that Plaintiffs' counsel is not entitled to attorneys' fees or costs, submitting a revised fees petition
attempting to address his concerns. Id. at 20- 23.
IV.
Standard of Review
When reviewing a magistrate judge's report and recommendation, "a district court 'may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge."' Gomez v. City of New York, No. 13-CV-1822 (VSB), 2016 WL 3093982, at
*2 (S.D.N.Y. May 31, 2016) (quoting 28 U.S.C. § 636(b)(l)). "Within 14 days after being served
with a copy of the recommended disposition, a party may serve and file specific written
objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2). The
federal rules give the opposing party the same amount of time to respond. Id. "The district
[court] must engage in de nova review of any part of the report and recommendation 'that has
5
been properly objected to.'" Wilson v. City of New York, No. 15-CV 7368 (AJN), 2017 WL
2693599, at *2 (S.D.N.Y. June 19, 2017) (quoting Fed. R. Civ. P. 72(b)(3)).
V.
Analysis
Because de nova review is appropriate, the Court begins by outlining the standards
governing this damages inquest. It then addresses Judge Fox's concerns regarding the evidence
submitted in support of Plaintiffs' damages request, and finally addresses Plaintiffs' objections
with respect to FLSA/the NYLL; Plaintiffs' objections to the R&R's denial of front and back
pay; both parties' objections to the R&R's determinations on emotional distress and punitive
damages; and Plaintiffs' objections to the R&R's determination on attorneys' fees and costs.
The Court grants in part Plaintiffs' objections as to Judge Fox's determinations on emotional
distress, attorneys' fees, and costs. It rejects the parties' remaining objections and adopts the
balance of the R&R's conclusions in full.
A.
Standards Applicable to a Damages Inquest
At an inquest, the court "accept[s] as true all of the factual allegations of the complaint,
except those relating to damages." Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.
1981). "The district court must instead conduct an inquiry in order to ascertain the amount of
damages with reasonable certainty." Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d
151, 55 (2d Cir. 1999). This inquiry requires (1) "determining the proper rule for calculating
damages on ... a claim" and (2) "assessing plaintiff's evidence supporting damages to be
determined under this rule." Id.
"While the plaintiff bears the burden of establishing the damages amount with
'reasonable certainty,' in a FLSA case, in the absence ofrebuttal by defendants, plaintiffs
recollection and estimates are presumed to be correct." Liability Op. at *14 (S.D.N.Y. Sept. 28,
6
2017) (citing Anderson, 328 U.S. at 687-88). "In the case of a default judgment, the defaulting
defendant deprives the plaintiff of the necessary employee records required by the FLSA, thus
hampering the plaintiff[']s ability to prove his damages." Xochimitl v. Pita Grill of Hell's
Kitchen, Inc., No. 14-CV-10234 (JGK)(JLC), 2016 WL 4704917, at *5 (S.D.N.Y. Sept. 8, 2016)
(internal quotation marks omitted), adopted sub nom. Xochimitl v. Pita Grill of Hell's Kitchen,
Inc, No. 14-CV-10234 (JGK), 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). Consequently,
courts allow that "a plaintiff may meet his [or her] burden of proof by relying on recollection
alone to establish that he [or she] performed work for which he [or she] was improperly
compensated." Id.
Although courts instruct that employees should not "speculate" in order to carry this
burden, they permit employees to rely on "present memory and recollection" through affidavits
that "set[] forth the number of hours worked and pay received." Id. at *5; see also Angamarca
v. Pita Grill 7 Inc., No. 11-CV-7777 (JGK) (JLC), 2012 WL 3578781, at *3 (S.D.N.Y. Aug. 2,
2012), adopted by Order, dated Dec. 14, 2012 (Dkt. No. 39). In the absence of a rebuttal by the
defendant, an employee's recollection and estimates of hours worked set forth in this manner
"are presumed to be correct." Kernes, 2016 WL 880199, at *6.
B.
Plaintiffs Have Not Established Damages for Their Wage-and-Hour and
Front and Back Pay Claims With Reasonable Certainty.
Judge Fox concluded that Plaintiffs' exhibits, except their own affidavits, flunked the
"identification and authentication requirements" of the Federal Rules of Evidence. The
magistrate judge noted that Plaintiffs' counsel failed to state that her declaration was based on
personal knowledge. She did little to identify the exhibits attached to her declaration, merely
providing cursory titles without explaining the contents of each exhibit submission, failing to
7
attest to her personal knowledge of the same, and neglecting to identify affiants or declarants
who purportedly authored various submissions. R&R at 23-26.
"To satisfy the requirement of authenticating ... an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims it is."
Fed. R. Evid. 901(a). Although "[t]he bar for authentication of evidence is not particularly
high," United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007), there must be "sufficient
proof ... so that a reasonable juror could find in favor of authenticity or identification. United
States v. Pluta, 176 F.3d 43, 49 (2d Cir. 1999). Further, "the type and quantum of evidence
required is related to the purpose for which the evidence is offered, and depends upon a contextspecific determination whether the proof advanced is sufficient to support a finding that the item
in question is what its proponent claims it to be." United States v. Vayner, 769 F.3d 125, 130 (2d
Cir. 2014) (internal citations omitted). A document may be authenticated based on its
"appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances." Lebe·wohl v. Heart Attack Grill LLC, 890 F. Supp. 2d 278,298
(S.D.N.Y. 2012).
Plaintiffs argue that the submission documents were sufficiently authenticated either
through their attorneys' entering them on the record or through examination of the exhibits
themselves. Dkt. No. 94 at 4 & n.5. They note that "personal knowledge is one, but not the
only, method of authentication" and that attorneys may enter documents into the record "when
there is good reason to believe that the authenticity of [such] documents is not in issue." Dkt.
No. 94 at 4 (quoting Trs. of Local 8A-28A Welfare Fundv. Am. Grp. Administrators, No. 14-CV1088 (RRM)(PK), 2017 WL 3700899, at *3, 8-9 (E.D.N.Y. Aug. 25, 2017)).
The Court examines the evidence supporting each type of claim in turn.
8
1.
There Is Insufficient Admissible Evidence to Support Plaintiffs'
Wage-and-Hour Claims with Reasonable Certainty.
As to their wage-and-hour claims, the only evidentiary bases Plaintiffs provide are
spreadsheets submitted as Pelgrift's Exhibits 2 and 3 and Kolisnyk's Exhibits 12 and 13. But
Plaintiffs do not explain the source of the information contained in those exhibits. Plaintiffs'
counsel simply states in her affidavit that the underlying exhibits are "a copy of ... Wage and
Hour Damage Calculations" and "Lost Wages and Front Wages Damages" without providing
any further information regarding the source of the amounts stated. Dkt. No. 84 at 3. Despite
the fact that the enduring question in this case has been Plaintiffs' failure to explain how many
hours each worked within the broad ranges listed in their affidavits, this submission does no
more to address that problem. Rather, an unidentified individual-presumably one of Plaintiffs'
counsel-appears to have selected hour and pay amounts within those ranges and conducted
calculations on that basis. But Plaintiffs' submissions do not identify who made those
determinations or whether they are agreed upon by Plaintiffs themselves. To the contrarydespite their effort to correct other parts of the record in their objections-Plaintiffs persist in
failing to submit affidavits resolving these ambiguities or attesting that the submitted calculations
are accurate.
Plaintiffs have not identified any reason-such as self-authentication-why the
authenticity of their submissions is not in issue in this case. To the contrary, in the present
context-in which the primary question at issue is Plaintiffs' present memory and recollection of
their wage and hour conditions-the failure to identify the source of claimed amounts in the
spreadsheets is fatal to their authenticity as accurate "wage and hour damage calculations." The
Court cannot find that they establish Plaintiffs' damages with "reasonable certainty."
9
Because the Court concludes Plaintiffs have not submitted admissible evidence
addressing the evidentiary deficiencies noted in its Liability Opinion, the Court finds that
Plaintiffs still have failed to establish damages with "reasonable certainty." It therefore declines
to award damages on Plaintiffs' FLSA and NYLL claims, adopts the R&R's determination on
this point, and overrules the submitted objections.
2.
There Is Insufficient Admissible Evidence to Support Plaintiffs' Front
and Back Pay Requests with Reasonable Certainty.
As to front and back pay, Judge Fox found that Plaintiffs' purported proof of mitigation
was insufficiently authenticated to support Plaintiffs' claims. Plaintiffs now argue that proof of
mitigation is immaterial in the case of a default judgment and therefore that their mitigation
evidence can be disregarded without warranting denial of front or back pay. Dkt. No. 94 at 17.
They request front and back pay amounts based upon their last weekly pay prior to the end of
their employment with Defendants.
The Court disagrees. Because Plaintiffs have not submitted admissible evidence
supporting their claimed last weekly pay, Plaintiffs have not established their claimed damages
amounts with reasonable certainty. Accordingly, the Court adopts Judge Fox's findings on this
issue.
C.
Plaintiffs Have Established Their Emotional and Punitive Damages Awards
with Reasonable Certainty.
The Court next turns to the parties' objections to Judge Fox's emotional and punitive
damages determinations. Judge Fox awarded Plaintiffs limited damages based on their claims of
emotional distress and based on Defendants' reckless indifference and conscious disregard of
their rights. He concluded that Plaintiffs' supporting materials were inadmissible for failure to
authenticate, and awarded damages based only on Plaintiffs' statements in their affidavits. He
awarded Plaintiff Pelgrift $10,000 in damages for emotional distress based on the conclusory
10
nature of her allegations of harm and the same amount in punitive damages. As to Plaintiffs
Kolisnyk and Lutsenko, Plaintiffs submitted additional evidence, including an event ticket
purportedly corroborating a harassment allegation, a document purporting to be an English
translation of a journal entry, a supporting declaration, and copies of psychiatric evaluations.
The magistrate judge contended that none of these materials were sufficiently authenticated and
deemed Plaintiffs' statements of emotional distress conclusory. However, he awarded both
Kolisnyk and Lutsenko $20,000 in damages for emotional distress and the same amount in
punitive damages in light of the nature of the sexual harassment they claimed, including physical
contact. As to all Plaintiffs, Judge Fox concluded that their claims constituted "garden-variety
emotional distress claims."
Defendants object to Judge Fox's findings on the grounds that other courts in this circuit
reviewing garden-variety damages claims have awarded damages amounts below those he
awarded. Plaintiffs object that theirs is not a garden-variety claim; that their evidence of
emotional distress is properly admissible. In support, they cite higher awards in cases they argue
are comparable to this one. Below, the Court outlines the applicable standard before explaining
why it agrees with Plaintiffs that a higher award is warranted in this case.
1.
Legal Standard for Emotional Distress Damages Awards.
"Emotional distress awards within the Second Circuit can generally be grouped into three
categories of claims: 'garden-variety,' 'significant' and 'egregious." Olsen v. Cty. ofNassau,
615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009) (internal quotation marks omitted). Garden-variety
claims involve evidence that is "generally limited to the testimony of the plaintiff, who describes
his or her injury in vague or conclusory terms, without relating either the severity or the
consequences of the injury." Khan v. Hip Centralized Lab. Servs., Inc., No. 03-CV-2411 (DGT),
11
2008 WL 4283348, at *11 (E.D.N.Y. Sept. 17, 2008) (quotation omitted). Courts in this circuit
have articulated varying damages ranges for garden-variety emotional distress claims. Compare
Rainone v. Potter, 388 F. Supp. 2d 120, 122-23 (E.D.N.Y. 2005) (specifying a range from
$5,000 to $35,000) with Olsen, 615 F. Supp. 2d at 46 n.4 (disputing the range approved in
Rainone on the grounds that "[m]ore recent cases find this range to be significantly higher," and
articulating the applicable range as stretching from $30,000 to $125,000); see also Gutierrez v.
Taxi Club Mgmt., Inc., 17-CV-532 (AMD)(VMS), 2018 WL 3432786, at *9 (E.D.N.Y. June 25,
2018) (articulating Rainone standard of $6,500 to $45,000 in 2018 inflation-adjusted dollars).
Significant claims, in contrast, involve "more substantial harm or more offensive conduct" and
are sometimes "supported by medical testimony or evidence, evidence of treatment by a
healthcare professional and/or medication, and testimony from other, corroborating witnesses."
Khan, 2008 WL 4283348, at * 11 (internal quotation marks omitted).
2.
Plaintiffs Are Entitled to Damages for Their Garden-Variety
Emotional Distress Claims.
As Judge Fox concluded, the bulk of Plaintiffs' submissions as to damages are
inadmissible for failure to authenticate. But the Court finds that the professional psychological
evaluations Dr. Stephen Reich conducted of each Plaintiff, see Dkt. Nos. 86-15, 86-55, 86-59,
are admissible and provide evidence that a higher award is appropriate. Although Plaintiffs
neglected to submit affidavits of their own attesting to their medical treatment or evaluation, and
although Plaintiffs' counsel did not attest to her personal knowledge of the evaluations, the
evaluations constitute sworn affidavits containing detailed descriptions of Plaintiffs' personal
background. Neither Judge Fox nor Defendants identified any reason to doubt its authenticity.
Despite taking Dr. Reich's findings into account, the Court is not inclined to disturb the
magistrate judge's finding that Plaintiffs' claims are "garden-variety" emotional distress claims.
12
Dr. Reich's findings clearly substantiate that each Plaintiff experienced some anxiety and
psychological distress stretching past the end of their employment with Defendants. This
additional information is sufficient to conclude that Plaintiffs should not receive damages at the
low end of the spectrum of garden-variety claims. But without further detail or corroboration
from Plaintiffs themselves, the Court finds that these claims remain too conclusory to be
classified as "significant." This case lacks the detailed plaintiffs' and corroborating testimony
generally found in "significant" emotional distress claims. See, e.g., Welch v. United Parcel
Serv., Inc., 871 F. Supp. 2d 164, 193 (E.D.N.Y. 2012).
Accordingly, the Court awards Plaintiff Pelgrift $20,000 in emotional distress damages
and Plaintiffs Kolisnyk and Lutsenko $40,000 each in emotional distress damages. The Court
does not disturb Judge Fox's punitive damages findings, which it deems adequately calibrated to
deter future unlawful conduct.
D.
A Modest Attorneys' Fees Award Is Appropriate.
Judge Fox recommended no award of attorneys' fees in this case on the grounds that
Plaintiffs failed to identify their purported fees submission as containing contemporaneous time
records or derived from contemporaneous time records, failed to identify the total number of
hours expended by each attorney, and failed to adequately justify their fees.
Plaintiffs object to this determination, contending that "time records provided by a
prevailing party need only provide sufficient detail to permit the court to accurately determine
the reasonableness of the attorneys' fees application." Dkt. No. 94 at 22 (citing Jimenez v. KLB
Foods, Inc., No. 12-CV-6796 (JPO), 2015 WL 3947273, at *5 (S.D.N.Y. June 29, 2015)).
Despite their failure to identify the number of hours worked by each attorney-"admittedly a
procedural misstep"-Plaintiffs nonetheless supply amended time records with the total number
of hours expended in the case by each attorney and ask that the Court "exercise its discretion in
13
reviewing" them. Id at 22. To support this request, they cite a district court case in which the
court permitted the plaintiffs to explain excessive billing amounts and correct for errors in their
billing statements. See Motorola, Inc. v. Abeckaser, No. 07-CV-3963 (CPS)(SMG), 2009 WL
2568526, at *2-3 (E.D.N.Y. Aug. 19, 2009).
The Court notes that the errors committed in Plaintiffs' submissions are significantly
more egregious than those in Motorola. Further, it is remarkable that Plaintiffs' only attempt to
correct the evidentiary record occurred with respect to their own fees-not the evidentiary
deficiencies described above with respect to Plaintiffs' damages. Nonetheless, because "courts
in this circuit have held that an award of [attorneys'] fees in wage and hour cases is mandatory
when a plaintiff prevails," Jimenez, 2015 WL 3947273, at *5, the Court makes the following
modest fees award.
The Court agrees with the magistrate judge that plaintiffs' counsel "failed to exhibit the
minimal level of skill necessary to establish the plaintiffs' damages with reasonable certainty"
and that "[t]he inattention to detail and laxiy with which the plaintiffs' submissions were
prepared are untenable." R&R at 40. Accordingly, no fees are awarded for attorney work on the
inquest. Further, the Court agrees that Plaintiffs have failed to identify aspects of this case that
were not straightforward, and finds that Plaintiffs have not carried their burden in establishing
that the requested lodestar is reasonable in light of these deficiencies. The Court therefore
imposes a 50 percent reduction on all fees incurred prior to the inquest. Accordingly, in full,
Plaintiffs' counsel are entitled to $13,608.75 in fees.
E.
Plaintiffs Are Entitled to Some Costs.
As a final matter, the magistrate judge rejected Plaintiffs' request for costs because he
concluded that Plaintiffs failed to authenticate or to adequately explain the individual items in
their costs request. Plaintiffs object that the categories requested are self-explanatory and are
14
those expenses typically awarded in litigation. See, e.g., Allende v. Unitech Design, Inc., 783 F.
Supp. 2d 509,515 (S.D.N.Y. 2011) (awarding deposition transcript costs).
Plaintiffs' objection misses the point of Judge Fox's determination. While reasonable
costs may be awarded to prevailing parties as a matter of course, the party seeking costs must
explain the nature of the costs in order for the Cami to find that they are reasonable. Because
Plaintiffs did not explain their submissions via attorney affidavit or a more detailed printout, the
Court can only rely on the face of the report to determine whether costs are reasonable.
Examining the report, the Court concludes that Plaintiffs' submissions demonstrate reasonable
costs only with respect to their court filing, process servers, and expert witness fees. Their
submission fails to explain to what the costs for "depositions," "filing fee w/ secretary of state,"
"postage and delivery," "transcriptions," "transcripts," and "advanced travel costs" correspond.
Accordingly, the Court finds that Plaintiffs' counsel are entitled to $2,963 in costs.
VI.
Conclusion
For the foregoing reasons, the Court accepts in part Plaintiffs' objections with respect to
damages for emotional distress, attorneys' fees, and costs. It rejects the balance of the parties'
objections, and adopts the remainder of the R&R. Plaintiffs are therefore entitled to the
following damages. Plaintiff Pelgrift is entitled to $20,000 in emotional distress damages and
$10,000 in punitive damages. Plaintiffs Kolisnyk and Lutsenko are each entitled to $40,000 in
emotional distress damages and $20,000 in punitive damages. Finally, Plaintiffs' attorneys are
entitled to $13,608.75 in fees and $2,963 in costs. Because Plaintiffs indicated that they are not
seeking prejudgment interest, see Dkt. No. 82 at 21-22, R&R at 2 n.l, none will be awarded.
This resolves all pending matters, including Dkt. No. 82. The Clerk of Court is
respectfully directed to enter judgment in accordance with this Opinion and to close this case.
15
SO ORDERED.
Dated: September _ _ _, 2018
New York, New York
United States District Judge
16
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