Rosario v. Mis Hijos Deli Corp. et al

Filing 174

MEMORANDUM ORDER granting 167 Motion for Attorney Fees: For the foregoing reasons, the Court awards plaintiff Rosario the sum of $154,536.76 for attorneys' fees and costs, for which defendants are jointly and severally liable. The Clerk of the Court is directed to close the entry bearing the docket number 167 and close the case. (Signed by Judge Jed S. Rakoff on 5/22/2020) (jwh)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x
MANUEL DE JESUS ROSARIO,
:
:
Plaintiff,
:
:
-v:
:
MIS HIJOS DELI CORP., PALMA GROCERY
:
CORP., 251 E. 123RD ST. REALTY, LLC, :
JOSE PALMA, LEONIDA COLLADO, and
:
JUNIOR PALMA,
:
:
Defendants.
:
------------------------------------- x
JED S. RAKOFF, U.S.D.J.

15-cv-6049 (JSR)
MEMORANDUM ORDER

Familiarity with the background to this case is here
assumed. As relevant here, on February 14, 2020, the jury
reached a verdict finding defendants Mis Hijos Deli Corp., Palma
Grocery Corp., 251 E. 123rd St. Realty, LLC, Jose Palma, Leonida
Collado, and Junior Palma liable for failing to pay plaintiff
Manuel de Jesus Rosario the required minimum wage and overtime
pay and failing to provide him with the required wage notices
and statements, in violation of the Fair Labor Standards Act
(“FLSA”) and the New York State Labor Laws (“NYLL”). See ECF No.
157. Accordingly, on March 2, 2020, the Court entered a judgment
against defendants in the amount of $89,670.35. See ECF No. 162.
Now before the Court is plaintiff’s motion, pursuant to 29
U.S.C. § 216(b) and NYLL §§ 198(1-a), 663(1), for attorneys’
fees and costs incurred during this litigation, in the amount of
$154,536.76. See ECF No. 167; see also Memorandum of Law in

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Support of Plaintiff’s Application for Attorneys’ Fees and
Costs, ECF No. 170 (“Pl. Mem.”); Reply Memorandum of Law in
Support of Plaintiff’s Application for Attorneys’ Fees and
Costs, ECF No. 172 (“Pl. Reply”). Defendants oppose, arguing
that the amount sought should be reduced by at least 70%. See
Defendants’ Memorandum of Law in Opposition to Plaintiff’s
Motion for Attorneys’ Fees and Costs, ECF No. 171 (“Defs.
Opp.”), at 7, 9. For the reasons set forth below, the Court
grants plaintiff’s motion in full and awards plaintiff
attorneys’ fees and costs in the amount of $154,536.76.
Analysis
In assessing the amount of attorneys’ fees to award, the
presumptively reasonable fees are reached by multiplying the
reasonable number of hours worked by the biller’s reasonable
hourly rates, resulting in the so-called “lodestar.” See Arbor
Hill Concerned Citizens Neighborhood Ass’n v. County of Albany,
522 F.3d 182, 183 (2d Cir. 2008). However, there remain other
considerations that may lead a district court to adjust the fee
upward or downward. See Hensley v. Eckerhart, 103 S. Ct. 1933,
1940 (1983). Furthermore, district courts have “considerable
discretion in determining what constitutes a reasonable award of
attorneys’ fees.” Filo Promotions, Inc. v. Bathtub Gins, Inc.,

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311 F. Supp. 3d 645, 650 (S.D.N.Y. 2018)1; see also Arbor Hill,
522 F.3d at 186.
Plaintiff is additionally entitled to recover out-of-pocket
costs incurred by attorneys and ordinarily charged to clients.
See LeBlanc Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.
1998).
I.

Whether the hourly rates for attorneys’ fees are reasonable
In setting an hourly rate used to calculate the lodestar,

the Court looks into “what a reasonable paying client would be
willing to pay.” Arbor Hill, 522 F.3d at 184. The lodestar
method also looks to “the prevailing market rates in the
relevant community.” Perdue v. Kenny A., 559 U.S. 542, 551
(2010).
Plaintiff asserts that Steven Ross, a partner at Ross &
Asmar LLC and principal attorney on the case, is entitled to a
rate of $400 per hour. See Pl. Mem. 6. Plaintiff also argues
that Eric Dawson, an eighth-year associate at Ross & Asmar LLC,
is entitled to a rate of $300 per hour. See id. at 6-7.
Likewise, he argues that each of two law clerks is entitled to a
rate of $150 per hour. See ECF No. 168, ¶ 12.

Unless otherwise indicated, in quoting cases all internal
quotation marks, alterations, emphases, footnotes, and citations
are omitted.
1

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The Court is in agreement with plaintiff. The federal
district courts in New York have approved hourly rates “for
experienced law firm partners in the range of $500 to $800 per
hour,” “for law firm associates in the range of $200 to $450 per
hour,” and “for law firm paralegals in amounts of approximately
$200 per hour.” Genger v. Genger, No. 14-cv-5683 (KBF), 2015 WL
1011718, *2 (S.D.N.Y. Mar. 9, 2015). Also, in Winkelvoss Cap.
Fund LLC v. Shrem, the Court found that hourly rates of $580 for
a partner, $445 for a senior associate, and $265 for an
associate were “clearly within” the bounds of what other courts
approve. 360 F. Supp. 3d 251, 257 (S.D.N.Y. 2019). Plaintiff’s
proposed rates are well within, or below, these ranges.
II.

Whether the number of hours that attorneys billed is
reasonable
Attorney Ross declares that he spent 205.86 total hours in

litigating this matter, and 5.1 hours in preparing this fee
application. See ECF No. 168. Attorney Dawson declares that he
spent 193.22 total hours in litigating this matter, and 10.25
hours in preparing this application.2 See ECF No. 169. Also, the

More specifically, attorneys Ross and Dawson spent,
respectively: 16.07 and 21.88 hours on participating in initial
proceedings, settlement conferences, and exchange of discovery
prior to conducting depositions; 31.1 and 12.86 hours on
depositions; 48.97 and 48.89 hours on opposing three summary
judgment motions; 16.3 and 2.28 hours on mediation and
2

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two clerks spent 2 and 7 hours, respectively, on this matter.
See ECF No. 168, ¶ 12.
In response, defendants ask that the hours billed by
plaintiff’s attorneys be dramatically reduced for a number of
reasons, none of which are persuasive.
First, although defendants may be right that the claims and
issues raised in this action were relatively straightforward,
see Defs. Opp. 6, the Court finds that the number of hours
billed was justified, given, among other things, defendants'
litigious nature, difficulties plaintiff faced in proving that
each of the individual and corporate defendants was an employer
under the meaning of the FLSA, and defendants’ failure to
produce relevant documents and maintain accurate tax and payroll
records. See Pl. Mem. 1; Pl. Reply 1-2.
Second, the Court disagrees with defendants’
characterization that the billing entries at issue are replete
with vague references to “reviewing” and “revising” and do not
sufficiently demonstrate the actual work performed. See Defs.
Opp. 6. The entries are sufficiently detailed to provide notice
requesting withdrawal of defendants’ appeal of the summary
judgment order and defendants’ motion to set aside summary
judgment; 20.5 and 32.06 hours on trial preparation; 72.92 and
70.81 hours on trial; and 0 and 4.44 hours on the post-trial
motion for attachment. See Pl. Mem. 3-5. Each of these numbers
is reasonable.
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and information as to what work was done, and plaintiff’s
counsel consistently specified what exactly was being reviewed
or revised, whether it be a deposition transcript, defendants’
motion, plaintiff’s brief, and the like. See ECF No. 168-1.
Third, contrary to defendants’ assertion, see Defs. Opp. 7,
billing for administrative tasks – e.g., filing initiating
documents, service affidavits, supplemental brief, notices of
appearance, joint pre-trial consent, and the like on ECF – is
justified.3
Finally, defendants argue that the award should be reduced
on the ground that attorneys Ross and Dawson billed for various
tasks that could have been handled by one attorney, including
mediations, in-person conferences, and telephonic conferences,
not to mention the trial, which, in defendants’ view, was
handled almost exclusively by Ross. See Defs. Opp. 7. To the
contrary, the Court finds that both attorneys' participation was
generally necessary in the course of this litigation. As
plaintiff points out, this action involved not insubstantial
amount of financial records and deposition transcripts. See Pl.
Reply 4-5. Also, the Court observed during trial that the

Moreover, billing entries related to these administrative
tasks add up to no more than a few hours in total. See ECF No.
168-1.
3

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associate attorney Dawson played an instrumental role (even
though attorney Ross took the primary role in speaking) by,
inter alia, frequently passing notes and discussing issues with
attorney Ross that arose during trial and providing a
simultaneous review of defendants’ deposition transcripts during
cross-examination. Therefore, no reduction is warranted on this
basis.
III.

Whether the costs in the amount of $10,133.48 are
reasonable
Plaintiff seeks an award of costs, in the amount of

$10,133.48, incurred in connection with court filings, service
of process, deposition fees, Spanish language interpreters for
depositions and trial witnesses, trial preparation fees, Westlaw
fees, transportation to trial, and costs to obtain certain
documents not produced by defendants. See Pl. Mem. 7.
Defendants’ only objection here is with respect to the cost
of using Westlaw in the amount of $1,119.46. See Defs. Opp. 8.
The Court finds this objection lacks merit, and also finds that
the amount of overall costs sought is reasonable. See, e.g.,
Jin M. Cao v. Wu Lian Ye Lexington Restaurant, Inc., No. 08-cv3725 (DC), 2010 WL 4159391, at *8-9 (S.D.N.Y. 2010); Guallpa v.
NY Pro Signs Inc., No. 11-cv-3133 (LGS) (FM), 2014 WL 2200393,
at *12 (S.D.N.Y. 2014), report and recommendation adopted sub

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nom. Guallpa v. NY Pro Signs Inc., No. 11-cv-3133 (LGS) (FM),
2014 WL 4105948 (S.D.N.Y. Aug. 18, 2014).
IV.

Whether plaintiff’s rejection of defendants’ settlement
offer on February 5, 2019 should reduce the award under
Fed. R. Civ. P. 68
Under normal circumstances, a prevailing plaintiff is

entitled to recover costs, including reasonable attorneys’ fees.
Fed. R. Civ. P. 68,4 however, states:
[A] party defending against a claim may serve on an
opposing party an offer to allow judgment on specified
terms, with the costs then accrued. . . . If the judgment
that the offeree finally obtains is not more favorable
than the unaccepted offer, the offeree must pay the costs
incurred after the offer was made.
Fed. R. Civ. P. 68(a), (d); see also Stanczyk v. City of New
York, 752 F.3d 273, 280 (2d Cir. 2014).
Defendants assert that, on February 5, 2019, they made an
offer of judgment purportedly pursuant to Fed. R. Civ. P. 68 in
the amount of $108,000, but that plaintiff declined the offer.
See Defs. Opp. 8. At trial, the jury awarded plaintiff a total
of $89,670.35. Therefore, defendants argue that the fees and
costs incurred after February 5, 2019 should not be awarded,

Fed. R. Civ. P. 68 is “a cost-shifting rule designed to
encourage settlements without the burdens of additional
litigation.” Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224,
229 (2d Cir. 2006).
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because the offer of judgment rejected by plaintiff one year ago
was almost $20,000 more than the jury’s award. See id. at 8-9.
The Court, however, finds that no reduction is warranted
based on Fed. R. Civ. P. 68, because defendants’ offer was not
more favorable than the judgment granted by the jury. The offer
made on February 5, 2019 was inclusive of attorneys’ fees and
costs incurred up to that point. See also Steiner v. Lewmar,
Inc., 816 F.3d 26, 36 (2d Cir. 2016) (“[A] valid Rule 68 offer
always includes costs, whether or not specified, because Rule 68
authorizes such an offer only with costs then accrued.”); Mango
v. Democracy Now! Prods., Inc., No. 18-cv-10588 (DLC), 2019 WL
3325842, at *3 (S.D.N.Y. July 24, 2019) (“A Rule 68 offer
includes any monetary relief to which a party may be entitled at
the point the offer is made, including attorney’s fees if a
prevailing party may recover them.”). Given that a significant
portion of the aforementioned attorneys’ fees and costs had
already been incurred by February 5, 2019, which was past the
summary judgment stage, the judgment that plaintiff won at
trial, which is not inclusive of attorneys’ fees and costs, is
superior to the settlement offer made on February 5, 2019.5

In addition, defendants, on February 5, 2019, offered to
pay $108,000 over three years, which is not the same as a lump
payment of $108,000 upfront. Moreover, defendants’ offer was
5

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Conclusion
For the foregoing reasons, the Court awards plaintiff
Rosario the sum of $154,536.76 for attorneys’ fees and costs,
for which defendants are jointly and severally liable.6
The Clerk of the Court is directed to close the entry
bearing the docket number 167 and close the case.
SO ORDERED.
Dated:

New York, NY

_______________________

May 22, 2020

JED S. RAKOFF, U.S.D.J.

unsecured, whereas the judgment plaintiff won at trial was
subsequently secured by an attachment on real property. See ECF
No. 163, 166.
This award is in addition to the judgment that the Court,
following the jury verdict, entered on March 2, 2020 for
plaintiff in the amount of $89,670.35, for which defendants are
jointly and severally liable up to their respective liability as
set forth therein. See ECF No. 162.
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