Crowhurst v. Szczucki et al

Filing 329

MEMORANDUM OPINION AND ORDER for 301 Motion for Attorney Fees filed by Jennifer Crowhurst, 323 Report and Recommendations, 324 Motion for Report and Recommendations filed by Jennifer Crowhurst. The Court has considered all of the argument s raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. The Court adopts Magistrate Judge's Report & Recommendation in its entirety. Accordingly, the objections to the Magistrate Judge&# 039;s findings are overruled. The plaintiff's motion for attorney's fees and costs (Docket NO. 301) is granted in the amount of $5,403.60. The Clerk is directed to close Docket Nos. 301 and 324. (Signed by Judge John G. Koeltl on 1/11/2020) (rro) Modified on 1/13/2020 (rro).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
JENNIFER CROWHURST,
Plaintiff,
- against DR. DENISE SZCZUCKI, ET AL.

16-cv-0182 (JGK)
MEMORANDUM OPINION AND
ORDER

Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The Court has received the Report and Recommendation by
Magistrate Judge Gabriel Gorenstein, dated November 19, 2019,
which recommends that this Court award (1) $4,400 in attorney’s
fees and (2) $1,003.60 in costs to Jennifer Crowhurst against
the Fannie Rebecca Stein Special Needs Trust (the “Stein Trust”)
for the pursuit of her now-resolved wage theft claims under the
Fair Labor Standards Act (“FLSA”) and the New York Labor Law
(“NYLL”). The plaintiff has filed timely objections to the
Report and Recommendation.
The Court reviews de novo each of the elements of the
Report and Recommendation as to which an objection has been
filed. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). The
district court may adopt those portions of the Report and
Recommendation “to which no ‘specific written objection’ is
made, as long as the factual and legal bases supporting the
findings and conclusions set forth in those sections are not

clearly erroneous or contrary to law.” Eisenberg v. New England
Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008)
(citations omitted). The Court has carefully considered the
thorough Report and Recommendation and the plaintiff’s
objections. The Court concludes that the objections have no
merit and the Report and Recommendation, on de novo review, are
amply supported. The Court therefore adopts the Report and
Recommendation.
I.
The plaintiff filed multiple claims against the defendants,
including claims for medical malpractice, negligence, and wage
theft. The motion for attorney’s fees is related only to the
plaintiff’s wage theft claims against the defendant, the Stein
Trust, which was severed from the other claims and for which a
final judgment was entered pursuant to Federal Rule of Civil
Procedure 54(b) on June 5, 2019. Dkt. No. 294. The final
judgment was for $19,160 plus interest, for a total amount of
$22,527.92. Id. Magistrate Judge Gorenstein recommended that the
plaintiff be awarded $4,400 of the $93,275 attorney’s fees
requested, which amounts to about 5 percent of the amount
requested. The plaintiff objects to Magistrate Judge
Gorenstein’s reasons for reducing the number of hours billed and
the hourly rates for the plaintiff’s attorneys.

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In Lilly v. City of New York, the Court of Appeals for the
Second Circuit recently confirmed its long-standing instruction
to district courts to “calculate a presumptively reasonable fee
by determining the appropriate billable hours expended and
setting a reasonable hourly rate, taking account all casespecific variables.” 934 F.3d 222, 229-30 (2d Cir. 2019) (citing
Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of
Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d
Cir. 2008)). In determining a reasonable hourly rate, courts
should consider factors such as
the complexity and difficulty of the case, the
available expertise and capacity of the
client's other counsel (if any), the resources
required to prosecute the case effectively
. . . , the timing demands of the case, whether
an attorney might have an interest . . . in
achieving the ends of the litigation or might
initiate the representation himself, whether
an attorney might have initially acted pro
bono . . . , and other returns (such as
reputation, etc.) that an attorney might
expect from the representation.
Arbor Hill, 522 F.3d at 184. The Court of Appeals for the Second
Circuit specifically re-affirmed the propriety of using the
novelty or complexity of a case as a factor in determining an
attorney’s reasonable hourly rate. Lilly, 934 F.3d at 231-32.
A.
The plaintiff first objects to Magistrate Judge
Gorenstein’s finding that the number of compensable hours should
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be drastically reduced from the billable hours the plaintiff
sought. The plaintiff attached a Fee Chart to her motion for
attorney’s fees that listed hours billed for three lawyers. Dkt.
No. 301-1. After a thorough review, Magistrate Judge Gorenstein
correctly disregarded this Fee Chart because (1) there was a
lack of detail in the Fee Chart; (2) the attorneys used block
billing for long time periods that ranged incredibly up to three
years; (3) entries on the Fee Chart did not align with
occurrences in the record (for example, billing for travel to
appear at an oral argument when no such argument occurred); and
(4) time spent on services unrelated to the wage claims, which
are the only claims for which attorney’s fees are being sought
at this time. Each of these findings was plainly correct. In
addition, Magistrate Judge Gorenstein accurately noted that the
vast majority of litigation efforts, including interrogatories,
requests for production of documents, discovery disputes, and
depositions, were expended on unrelated tort claims. The
plaintiff ignores these findings and argues, without merit, only
that the Fee Chart is sufficiently detailed to support the
award.
Furthermore, as early as March, 2019, the Stein Trust
offered to settle the wage claims for $22,500 plus legal fees.
However, the plaintiff and her attorneys refused to settle and
sought damages for emotional distress and punitive damages,
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which were never sought in any complaint and which this Court
found were not recoverable. The Court agrees with Magistrate
Judge Gorenstein’s finding that no reasonable attorney would
have continued to pursue trial on the wage claims after March,
2019, given that the Stein Trust was prepared to settle for
$22,500 plus legal fees, the plaintiff had sought only $16,400
in her complaint for these claims, and the judgment against the
Stein Trust for only $22,527.92 was entered on June 3, 2019. In
other words, from March, 2019 to June, 2019, the plaintiff
pursued claims that the Stein Trust agreed to settle for
substantially the same amount it had offered in settlement in
March, 2019. Not satisfied, the plaintiff even sought to recover
another $10,000 in fees after judgment was entered in early
June, 2019.
The plaintiff’s counsel did spend some time on the wage
claims by including them in her complaint and amended
complaints, as well as attending a settlement conference that
included the wage claims. Thus, Magistrate Judge Gorenstein’s
use of 20 hours, as the number of hours reasonably expended, to
calculate the lodestar was wholly reasonable.
B.
The plaintiff also objects to Magistrate Judge Gorenstein’s
finding that the hourly rates sought by the plaintiff’s
attorneys should be reduced. The Magistrate Judge properly
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considered the Arbor Hill factors and correctly found that the
wage theft claims were not unusually complex, did not demand
great resources, had no particular timing demands, and that the
attorneys lacked experience pursuing those claims.
The plaintiff objects to Magistrate Judge Gorenstein’s
finding that the lawyers lacked significant experience pursuing
wage claims. The plaintiff does not explain any experience Mr.
Sidney has in pursuing wage claims and touts his experience as
an entrepreneur and legal commentator. Although the plaintiff
provides some cases reflecting Mr. Cassell’s experience in wage
and hour cases, the plaintiff notably ignores the Magistrate
Judge’s observation that the plaintiff never provided the fees
that each attorney has obtained in the legal marketplace in the
past in pursuing wage claims, and still has not provided any
history of such fees.
The plaintiff also objects to Magistrate Judge Gorenstein’s
finding that the plaintiff’s attorneys’ quality of work was poor
and points to the fact that the plaintiff obtained 100% recovery
on her wage theft claims. However, this recovery occurred when
the Court granted the Stein Trust’s motion to enter a judgment
against itself. Dkt. Nos. 281, 291. Furthermore, the amount of
the judgment was substantially the same as the initial offer of
settlement. The ultimate success of the claims reflects little

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or nothing about the quality of the attorneys’ work in this
case.
The plaintiff does not dispute Magistrate Gorenstein’s
characterization of the attorneys’ work on the emotional
distress and punitive damages claims as “poor”; rather, the
plaintiff states, in a conclusory fashion, that such an example
of poor work cannot be used to reduce both the number of hours
and the hourly rate. However, there was ample other evidence of
the poor work by the plaintiff’s lawyers on the wage claims,
such as a lack of responsiveness that led to unreasonable delay
in obtaining a judgment for the plaintiff on the wage claims. In
a letter filed with the Court on May 23, 2019, the lawyers for
the Stein Trust explained that at least two settlement offers,
which had been made to the plaintiff’s attorneys, “were
essentially met with silence” and the Stein Trust never received
a counteroffer; furthermore, after multiple offers to pay the
entire amount of judgment sought, the Stein Trust was at a loss
of what more it could do. Dkt. No. 281. In addition, even setting
aside the fact that the Fee Chart contained hours billed after a
judgment on the wage theft claims was entered, the remaining
reasons why the Magistrate Judge found the Fee Chart was an
unreliable measure of hours billed are sufficient for ignoring
the Fee Chart in its entirety and for finding that a reasonable
number of hours expended was 20 hours. Thus, the attorneys’ poor
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performance on the emotional distress and punitive damages
claims need only be taken into account in setting a reasonable
hourly rate.
Courts in this district have awarded experienced wage-andhour attorneys rates between $300 and $400 per hour. See
Mondragon v. Keff, No. 15CV2529, 2019 WL 2551536, at *12
(S.D.N.Y. May 31, 2019), report and recommendation adopted, No.
15CV2529, 2019 WL 2544666 (S.D.N.Y. June 20, 2019) (collecting
cases). The lower end of these rate ranges, coupled with the
lack of demonstrated experience in employment law, labor law, or
wage litigation by the attorneys, the lack of timing demands,
limited complexity of the case, and general poor performance,
justifies the Magistrate Judge’s stated hourly rates of $225 for
the two lead attorneys and $175 for an attorney who spent
minimal hours on the claims. Therefore, the Court finds that
Magistrate Judge Gorenstein’s lodestar calculation is correct
and agrees that the attorney’s fees to be awarded, based on the
hours and rates of each attorney, is $4,400.
II.
The plaintiff did not object to Magistrate Judge
Gorenstein’s recommended costs of $1,003.60. The plaintiff
provided no detail for “parking/gas/tolls,” Westlaw and various
travel costs. Thus, Magistrate Judge Gorenstein’s recommendation

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of $1,003.60 in costs was objectively reasonable and not
facially erroneous.
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. The Court adopts Magistrate
Judge’s Report & Recommendation in its entirety. Accordingly,
the objections to the Magistrate Judge’s findings are overruled.
The plaintiff’s motion for attorney’s fees and costs (Docket NO.
301) is granted in the amount of $5,403.60. The Clerk is
directed to close Docket Nos. 301 and 324.

SO ORDERED.
Dated:

New York, New York
January 11, 2020

____/s/ John G. Koeltl_______
John G. Koeltl
United States District Judge

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