Mendoza et al v. CGY & J Corp. et al
MEMORANDUM OPINION AND ORDER: re: 43 MOTION for Attorney Fees, filed by Gerardo Mendoza. For the foregoing reasons, Plaintiff's motion for attorney's fees and costs is granted in the amount of $17,768.22. The Clerk of Court is respectfully directed to close item 47 on the docket and to terminate the case, and as further set forth in this order. (Signed by Judge Ronnie Abrams on 10/17/2017) (ap)
DATE FILED: 10/17/2017
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GERARDO MENDOZA, individually and on
behalf of others similarly situated,
No. 15-CV-9181 (RA)
MEMORANDUM OPINION AND ORDER
CGY& J CORP., doing business as KITARO
SUSHI, GUO YONG CHEN and TINA DOE,
RONNIE ABRAMS, United States District Judge:
On September 25, 2017, following a one-day bench trial in this action brought pursuant to
the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"), the Court
entered judgment in Plaintiffs favor for an amount of $58,481.10. Dkt. 51. Plaintiff now seeks
an additional $20,853.22 1 in attorney's fees and costs. Dkt. 44. On September 14, 2017, the Court
provided Defendants two weeks to submit opposition papers, if any. Dkt. 47. Defendants have
not opposed the motion.
"Both the FLSA and the NYLL are fee-shifting statutes that entitle plaintiffs to recover
reasonable attorney's fees and costs incurred in successfully prosecuting wage-and-hour actions."
Escobar B. Fresno Gourmet Deli Corp., No. 16-CV-6816 (PAE), 2016 WL 7048714, at *3
(S.D.N.Y. Dec. 2, 2016); see also 29 U.S.C. § 216(b) ("The court in [an FLSA] action shall ...
Plaintiff asserts in his memorandum of law that he is seeking $20,615.62 in fees and costs. There appears
to be a calculation error, however, in the time entries for Plaintiff's counsel. The billing records indicate that on
August 29, 2016, Joshua Androphy spent 0.6 hours reviewing the case status, but the amount charged is listed as $2.40
instead of $240.00, which would be the appropriate amount at Androphy's normal $400 hourly rate. See Androphy
Deel. Ex. A p. 1. Accordingly, the Court interprets Plaintiff's application as seeking $20,853 .22 instead of$20,6 l 5 .62.
allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."); N.Y. Lab.
Law § 198(1-a) ("In any action instituted in the courts upon a wage claim by an employee [under
the NYLL] in which the employee prevails, the court shall allow such employee to recover ... all
reasonable attorney's fees ...."). Plaintiff prevailed at trial and is thus eligible to recover both
reasonable attorney's fees and costs. See Hernandez v. JRPAC Inc., No. 14-CV-4176 (PAE), 2017
WL 66325, at *1 (S.D.N.Y. Jan. 6, 2017).
The starting point for determining the presumptively reasonable attorney's fees is the
"lodestar" amount, which is "the product of a reasonable hourly rate and the reasonable number of
hours required by the case." Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011).
"The reasonable hourly rate should be 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 v. NY State Office of Mental Health, 652 F.3d 277, 289 (2d Cir. 2011) (citation and
internal quotation marks omitted). The Court's analysis is guided by the market rate "prevailing
in the community for similar services by lawyers of reasonably comparable skill, experience and
reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). The relevant community for
purposes of this inquiry is the Southern District ofNew York. See Arbor Hill Concerned Citizens
Neighborhood Ass'n v. Cty. of Albany, 522 F.3d 182, 190-91 (2d Cir. 2008). After determining
the appropriate hourly rate, the Court must also examine whether the number of hours spent on the
case was reasonable, which typically involves examining an attorney's billing records while
"exclude[ing] 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).
Plaintiff seeks $19,260.00 in fees for the work of two attorneys from Michael Faillace &
Associates, P .C., Michael Faillace and Joshua Androphy, who claim to typically bill at hourly rates
of $450 and $400, respectively. Faillace is the managing partner of Faillace & Associates, P.C.,
and has been practicing law since 1983. Androphy Deel. if 4. From 1983 to 2000, he was in-house
employment counsel for IBM. Id He has also taught employment discrimination as an Adjunct
Professor at both Fordham University School of Law and Seton Hall University School of Law.
Id Androphy is a senior attorney at Faillace & Associates. Id at if 5. He graduated from Columbia
University School of Law in 2005. Id Before joining Faillace & Associates in 2012, he practiced
commercial and employment litigation for seven years at a different law firm. Id He has tried
seventeen wage-and-hour cases in federal court. Id
The hourly rates Plaintiff seeks are, at a minimum, on the high end of the acceptable range,
and several courts in this District, including this one, have declined to grant these same attorneys
the hourly rates they now seek in this matter. See Portillo v. New Ko-Sushi Japanese Rest., Inc.,
16-CV-2429 (JMF), 2017 WL 3995602, at *1 (S.D.N.Y. Sept. 8, 2017) (granting Faillace $400
per hour and Androphy $350); Hernandez, 2017 WL 66325, at *3 (same); Larrea v. FPC Coffees
Realty Co., No. 15-CV-1515 (RA), 2017 WL 1857246, at *6 (S.D.N.Y. May 5, 2017) (awarding
Androphy an hourly rate of$350); Najera v. 144 Ninth Gotham Pizza, Inc., 12-CV-3133 (DLC),
2017 WL 728703, at *2 (S.D.N.Y. Feb. 24, 2017) (granting Faillace and Androphy $450 and $400
per hour, respectively, but recognizing that such rates are on the high end of what is acceptable in
this District); cf Quiroz v. Luigi's Dolceria, Inc., 14-CV-871 (VVP), 2016 WL 6311868, at *4
(E.D.N.Y. Oct. 28, 2016) (granting Faillace $350 per hour and Androphy $250). Indeed, courts in
this District generally approve rates of $300-$400 per hour for partners in FLSA cases and $300
per hour for senior attorneys or associates with eight or more years' experience. See Hernandez,
2017 WL 66325, at *3. And, as opposed to some instances in which courts have awarded Faillace
and Androphy the hourly rates they seek here, this matter was not especially complex, as it
involved neither a multitude of plaintiffs nor multiple suits. See Najera, 2017 WL 728703, at *2
(awarding Faillace and Androphy $450 and $400 per hour, respectively, in part because the
"litigation was not straightforward" and "involved four separate lawsuits that were later
consolidated, twenty-two plaintiffs, and two jury trials over more than four years"). The Court is
persuaded that the fees requested are too high and therefore, consistent with other recent decisions
in this District, reduces the rates sought to $400 per hour for Faillace and $350 for Androphy.
As to the number of hours billed by counsel, Plaintiff has produced contemporaneous time
records documenting that Faillace and Androphy spent 4 7 hours litigating this case through trial.
See Androphy Deel. Ex. A pp. 1-3. Of that time, 9.2 hours are attributable to Faillace and 37.8 to
Androphy. Id. For the most part, the Court finds the number of hours to be both reasonable and
appropriate. 2 The one exception is with respect to the 4.3 hours Androphy spent on December 21
and 27of2016 meeting with and preparing his client for trial. Id. at 2. When Plaintiff was called
to testify at the one-day bench trial, he appeared unfamiliar with his own sworn affidavit and the
accuracy of its substance. See Tr. 5: 17-6: 17, Dkt. 38. As a result, the Court has elected to reduce,
in half, the time Androphy billed for preparing Plaintiff for trial, from 4.3 hours to 2.2. Crediting
Faillace with 9.2 hours at an hourly rate of $400 and Androphy with 35.7 hours at a rate of $350
yields a total fee award of $16, 175.00 rather than the $19,260.00 requested.
The time billed includes one hour Androphy spent "draft[ing] and fil[ing] [the] attorney fee motion."
Androphy Deel. Ex. A p. 1. In certain situations, courts have refused to award fees for the time spent preparing a fee
application. See Mautner v. Hirsch, 32 F.3d 37, 39 (2d Cir. 1994). But where, as here, any increase in the fee award
will be paid by the "wrong-doer," courts in this Circuit are willing to allow recovery of the attorney's fee for the time
spent preparing the application. See id Accordingly, the Court will not strike this one hour billed by Androphy.
"[A]ttorney's fees awards include those reasonable out-of-pocket expenses incurred by
attorneys and ordinarily charged to their clients." Rhodes v. Davis, No. 08-CV-9681 (GBD), 2015
WL 1413413, at *4 (S.D.N.Y. Mar. 23, 2015) (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d
748, 763 (2d Cir. 1998)). Such expenses must be properly substantiated. See CJ Prods. LLC v.
Your Store Online LLC, No. 11-CV-9513 (GBD) (AJP), 2012 WL 4714820, at *2 (S.D.N.Y. Oct.
3, 2012). Court fees reflected on the Court's docket and costs for which a claimant provides
extrinsic proof, such as an invoice or receipt, are considered sufficiently substantiated, as is a sworn
statement or declaration under penalty of perjury that certain amounts were expended on particular
items. See Abel v. Town Sports Int'l, LLC, No. 09-CV-10388 (DF), 2012 WL 6720919, at *34
(S.D.N.Y. Dec. 18, 2012).
Here, Plaintiff seeks reimbursement for costs totaling $1,593.22: $400 for the court filing
fee, $443.22 for the costs of obtaining transcripts, and $750.00 for the services of an interpreter.
All of these costs have been properly substantiated. The filing fee is reflected on the Court's
docket, Dkt. 1, Plaintiff has provided a receipt for the transcripts, Androphy Deel. Ex. B, and
Androphy has attested under penalty of perjury to the cost of the interpreter, Androphy Deel. ,-i 9.
Moreover, the Court discerns no basis for concluding that these costs were unreasonable.
Combined with the attorney's fees, therefore, the total amount awarded is $17,768.22.
For the foregoing reasons, Plaintiff's motion for attorney's fees and costs is granted in the
amount of $17, 768.22. The Clerk of Court is respectfully directed to close item 4 7 on the docket
and to terminate the case.
October 17, 2017
New York, New York
United States District Judge
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