Flores et al v. J&B Club House Tavern, Inc. et al
Filing
41
MEMORANDUM DECISION AND ORDER: Plaintiffs' motion for damages is granted in the amount of $6,832 for L. Pastore and $120,909.38 for R. Patore. Additionally, Plaintiffs' motion for attorneys' fees and costs is granted in the amount of $67,731.44. The Clerk of the Court is directed to enter judgment against Defendant J & B Club House Tavern, Inc. accordingly. SO ORDERED. (Signed by Magistrate Judge George A. Yanthis on 10/15/2012) (lnl)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
ELECON DLY
MARINO FLORES, LAURA PASTORE and
ROBERT C. PASTORE
DOcs
DATE piLED:
Plaintiff,
MEMORANDUM DECISION
AND ORDER
-against-
10-Civ-4332 (GAY)
J & B CLUB HOUSE TAVERN, INC., and
JOSEPH SCORDATO
Defendant(s).
A
Plaintiffs Laura Pastore (“L. Pastore”) and Robert C. Pastore (“R. Pastore”) filed
this action against Defendant J & B Clubhouse Tavern, Inc. (“J & B”), alleging violations
of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
Law (“NYLL”),
§
190 et seq.,
§ 650,
§ 201
et seq. and New York Labor
et seq. and its ensuing regulations, 12 New York
Codes, Rules, and Regulations (“NYCRR”), tit. 12,
§
142-2.2, 142-2.4. By partial
stipulation and Order of Dismissal, Marino Flores was terminated as a plaintiff on
February 15, 2011. (See Dkt. #17.) The claims against Defendant Joseph Scordato
were stayed when he filed for bankruptcy protection on January 31, 2012. The
Complaint alleges that the Defendant violated the FLSA and NYLL minimum wage and
overtime compensation provisions as well as the NYLL spread of hours provisions.
Additionally, Plaintiff R. Pastore alleges breach of contract and unjust enrichment
claims.
By Memorandum Decision and Order dated August 24, 2012, the Court granted
Plaintiffs’ motion for summary judgment on the issue of liability under the FLSA and
NYLL. The Court ordered the Plaintiffs to provide the Court with the documentation of
damages by September 24, 2012.
Presently before the Court is Plaintiffs’ motion for damages, attorney’s fees, and
costs pursuant to 42 U.S.C. 1988 and Federal Rules of Civil Procedure (‘FRCP”) 54(d).
For the reasons that follow, Plaintiffs’ motion is granted in the amount specified below.
I.
CALCULATION OF DAMAGES
A. Laura Pastore
Plaintiff L. Pastore seeks the amount of $6,832 in damages as payment for work
done in October 1, 2008 through December 2008. This amount is inclusive of liquidated
damages. In her declaration in support of Plaintiffs’ motion for summary judgment, she
set forth that her weekly salary was $280. Additionally, she has submitted a copy of a
check for the amount of $280 made payable to her by the Defendant Joseph Scordato
dated May 27, 2009 as corroboration that her weekly pay of $280 was reflected in her
calculation of damages. Defendants do not oppose the requested damages.
Accordingly, the Court concludes that L. Pastore should be awarded damages in the
amount of $6,832.
B. Robert Pastore
Plaintiff R. Pastore seeks the amount of $120,909.36 in damages as
compensation for unpaid minimum wage and overtime under FLSA and NYLL. As such,
he bears the burden of proving that he performed the work for which he claims
Defendant did not compensate him. See Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687 (1946) (An employee seeking to recover unpaid minimum wages or
2
overtime under FLSA ordinarily “has the burden of proving that he performed work for
which he was not properly compensated.”). Here, the employer has failed to maintain
records of the employee’s wages, hours, and other terms and conditions of employment
as required by FLSA. As such, Plaintiff may meet his burden by proving that “he has in
fact performed work for which he was improperly compensated and [by] produc[ing]
sufficient evidence to show the amount and extent of that work as a matter of just and
reasonable inference.” Tlacoapa v. Carreqal, 386 F.Supp.2d 362, 367 (S.D.N.Y. 2005)
(quoting Anderson, 328 U.S. at 687).
R. Pastore sets forth in his Declaration and in the Statement of undisputed Facts
Pursuant to Local Civ. Rule 56.1, that he is owed the amount of $120,909.36. He
alleges that this amount includes unpaid minimum wages, overtime, and differences in
pay between the $900/week rate for which he was employed and the $620/week for
which he was paid. Additionally, R. Pastore provided the Court with the time period he
worked for the Defendant and how much he was compensated. Finally, he submitted
copies of various checks made payable to him by Defendant Joseph Scordato as
corroboration for his calculations of damages. The Court concludes that R. Pastore has
established that he performed the work and that he was not compensated for the work
he performed. Additionally, based on the evidence provided, the Court notes that
Defendant compensated R. Pastore at a rate below the minimum wage for those times
that Defendant compensated R. Pastore. Thus, he has carried his burden. Moreover,
Defendants have not opposed the requested damages. Thus, in light of these factors,
the Court concludes that R. Pastore should be awarded damages in the amount of
$120,909.36.
3
II. CALCULATION OF ATTORNEY’S FEES
In calculating attorney’s fees, the court multiplies a reasonable hourly rate by the
reasonable number of hours expended on the case to produce the “presumptively
reasonable fee.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of
Albany, 522 F. 3d 182, 189-90 (2d Cir. 2008). In setting the reasonable hourly rate, “a
court must determine what a reasonable paying client would be willing to pay for the
legal services, in other words, the appropriate market rate for counsel over the course of
the number of hours appropriately worked.” Torres v. City of New York, No. 07 Civ.
3473, 2008 WL 419306, at *1 (S.D.N.Y. Feb. 14, 2008). The “presumptively reasonable
fee” is then calculated via the traditional “lodestar method”: the reasonable hourly rate is
multiplied by the reasonable number of hours expended. See Arbor Hill, 493 F.3d at
111-12. In order to calculate the reasonable hours expended, the prevailing party’s fee
application must be supported by contemporaneous time records, affidavits and other
materials. See Chambliss v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053,
1058 (2d Cir. 1989). Upon calculation of the “presumptively reasonable fee” amount, the
Court should “make any appropriate adjustments to arrive at the final fee award.”
Adorno v. Port Auth. of New York and New Jersey, 685 F. Supp.2d 507, 511 (S.D.N.Y.
2010). Moreover, the Second Circuit has cautioned that “attorney’s fees are to be
awarded with an eye to moderation, seeking to avoid either the reality or the
appearance of awarding windfall fees.” New York State Ass’n for Retarded Children,
Inc. v. Carey, 711 F.2d 1136, 1139, 1148 (2d Cir. 1983) (internal citations and
quotations omitted).
4
A. REASONABLE HOURLY RATE
Determination of the reasonable hourly rate “contemplates a case-specific inquiry
into the prevailing market rates for counsel of similar experience and skill to the fee
applicant’s counsel [,which] may.
.
include judicial notice of the rates awarded in prior
cases and the court’s own familiarity with the rates prevailing in the district.”
Farbotko v. Clinton County of New York, 433 F.3d 204, 209 (2d Cir. 2005) (citations
omitted). The Second Circuit has stated that, in determining what rate a paying client
would be willing to pay, the district court should consider the following factors
enumerated in the case of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974):
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the level of skill required to perform the legal service
properly; (4) the preclusion of employment by the attorney due to
acceptance of the case; (5) the attorney’s customary hourly rate; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed by
the client or the circumstances; (8) the amount involved in the case and
the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the nature and length
of the professional relationship with the client; and (12) awards in similar
cases.
See Arbor Hill, 522 F.3d at 186 n. 3 (citing Johnson, 488 F.2d at 717-19). In addition to
the Johnson factors, the district court should also consider:
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 (taking account of the resources being
marshaled on the other side but not endorsing scorched earth tactics), the
timing demands of the case, whether an attorney might have an interest
(independent of that of his client) in achieving the ends of the litigation or
might initiate the representation himself, whether an attorney might have
initially acted pro bono (such that a client might be aware that the attorney
5
expected low or non-existent remuneration), and other returns (such as
reputation, etc.) that an attorney might expect from the representation.
See k. at 184. At bottom, the party seeking a fee award “has the burden of showing by
satisfactory evidence—in addition to the attorney’s own affidavits—that the requested
hourly rates are the prevailing market rates.” Farbotko, 433 F.3d at 209 (citations and
internal quotation marks omitted).
Here, attorneys George Diamantopoulos (“Mr. Diamantopoulos”), Lucas
Middlebrook (“Mr. Middlebrook”), Nicholas Granath (“Mr. Granath”), Sue Edwards (“Ms.
Edwards”), Lee Seham (“Mr. Seham”), Stanley Silverstone (“Mr. Silverstone”), and
Paralegals Peter Fabiankovic (“Mr. Fabiankovic”) and Krista Van Sant (“Ms. Van Sant”)
worked on the Plaintiffs’ matter. Each attorney seeks compensation at the rate of $300
per hour. Additionally, the Plaintiffs seek compensation for Mr. Fabiankovic at the rate of
$150 per hour and for Ms. Van Sant at the rate of $100 per hour.
In the affirmation in support of fee request, the attorneys listed their years of
admission to the bar as follows: Mr. Diamantopoulos (1991), Mr. Middlebrook (2006),
Mr. Granath (1989), Ms. Edwards (2005), Mr. Seham (1988), and Mr. Silverstone
(1991). The attorneys also provided the Court, as Plaintiffs’ Memorandum Exhibit C, a
list of representative matters handled by the firm. However, none of these attorneys has
met his or her burden of establishing the reasonableness of the requested hourly rates.
Other than the information previously noted, none of the attorneys provided information
as to their experience, reputation, and ability. While the Court has in its possession the
list of cases handled by the firm, the Court has no way of telling which of the attorneys
6
handled what case. As such, the list of cases offered to the Court is of little to no value
to the Court in deciding the reasonableness of the requested hourly rate.
Having considered all of the factors in Johnson and Arbor Hill, the Court notes
that the instant case is not unusually complex, that it did not demand too great of
resources and that there were no unusual timing demands on the case. The Court
further takes into account the fact that Mr. Diamantopoulos was clearly the lead counsel
and that the attorneys conferred among each other too often, for which they billed the
Plaintiffs. See, e.g., PIs.’ Mem., Ex. D (Jan. 10 2010 billing
—
Mr. Middlebrook
with Lee Sahem regarding settlement terms (.1); Jan. 11, 2010
—
—
confer
Mr. Middlebrook
—
“confer with Lee Sahem regarding teleconference with R. Pastore” (.1); Jan. 27, 2010
Mr. Middlebrook
—
-
“confer with Lee Sahem regarding teleconference with R. Pastore”
(.1); Jan 29, 2010— Mr. Middlebrook
—
“confer with Lee Sahem regarding settlement
terms” (.1); Feb. 4, 2010— Mr. Middlebrook
settlement discussions” (.1); Mar. 8, 2010
(.5); Mar. 9, 2010— Mr. Granath
complaint” (.6); Mar. 10, 2010
—
—
—
“confer with Lee Sahem regarding
Mr. Granath
—
—
“confer with Aty Middlebrook”
“confer with Aty. Middlebrook in support of drafting
Mr. Granath
—
“confer with Aty. Middlebrook in support
of drafting complaint” (.5); Mar. 18, 2010— Mr. Granath
—
“confer with Aty. Middlebrook
for revising draft complaint” (.9); Mar. 24, 2010— Mr. Granath
Middlebrook on revision to the complaint” (.2); Mar. 29, 2010
—
—
“confer with Aty.
Mr. Granath
—
“confer
with Aty. Middlebrook for revising draft complaint” (.5). The list goes on.). Given Mr.
Diamantopoulos’s clear position as the lead attorney, and Mr. Middlebrook and Mr.
Sahem’s familiarity with the case, evident from the constant conference with both
7
attorneys for work done on the case by the other attorneys, the Court sees no
justifications for the hourly rates for the other attorneys in the case.
1
The Court is cognizant of the facts that, in this district, hourly rates for civil rights
and employment law litigators with approximately ten years of experience in small firms
have ranged from $250
-
$350 per hour. See Garcia v. Giorqio’s Brick Oven & Wine
Bar, 2012 WL 3339220, at *7 (S.D.N.Y. Aug. 15, 2012) (awarding $350 per hour to an
attorney with ten years of experience, who was the “sole” timekeeper for whom Plaintiffs
sought to recover fees)(emphasis added); Wonc v. Hunda Glass Corp., 2010 WL
3452417, at *3 (S.D.N.Y. Sept. 1, 2010) (awarding $350 per hour to two employment
attorneys with twelve years of legal experience); De Los Santos v. Just Wood Furniture,
Inc 2010 WL 445886, at *3 (S.D.N.Y. Feb. 2, 2010) (showing the reasonable rate for
an employment attorney as $250—$350 per hour); Torres v. City of N.Y., 2008 WL
419306, at *1 (S.D.N.Y. Feb. 14, 2008) ($350 per hour is reasonable for an attorney
with ten years’ experience); Tlacoapa, 386 F.Supp.2d at 369 -370 (awarding $250 per
hour to an attorney with twenty years of experience, $200 per hour to an attorney with
nine years of experience, and $150 per hour to an attorney with three years.); Marisol A.
ex rel. Forbes v. Giuliani, 111 F.Supp.2d 381, 386 (S.D.N.Y. 2000) (a rate of $300 per
hour for an attorney with 10—15 years’ experience was reasonable.).
Moreover, in considering the appropriate hourly rate, the Court has relied on its
own knowledge of the rates charged by practitioners. See McDonald ex rel. Prendergast
1
Attorney Edwards seems to have worked mostly on document reviews for the 6.8 hours billed at $300
per hour. See, e.g., PIs.’ Mem., Ex. D (Sept. 17 2010 billing Edwards- Begin reviewing documents (3);
Sept. 20, 2010 billing Edwards-continue reviewing documents (3.5)). Similarly, Attorney Silverstone
seems to have only conferred with Mr. Middlebrook, prepared fax for R. Pastore regarding intent to file
small claims action, and filed a small claims complaint in Harrison Town Court against R. Pastore. ich
8
—
—
v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96-97 (2d Cir.
2006). Accordingly, after considering all the factors, the fact that there were six
attorneys involved in this case, and the lack of information provided in this fee
application, the Court concludes that the attorneys should be compensated at the
following rates: Mr. Diamantopoulos ($250 per hour), Mr. Middlebrook ($250 per hour),
Mr. Granath ($250 per hour), Ms. Edwards ($250 per hour), Mr. Seham ($250 per hour),
and Mr. Silverstone ($250 per hour).
I.
PARALEGAL RATES
Plaintiffs seek paralegal compensation for Mr. Fabiankovic at the rate of $150 per
hour and for Ms. Van Sant at the rate of $100 per hour. To determine the rate at which
the paralegal hours are valued, the Court has to look at the prevailing market rates in
the relevant community. See McKay v. Barnhart, 327 F.Supp.2d 263, 271 (S.D.N.Y.
2004). Courts in this district have awarded rates for paralegal time ranging from $50 to
$150 per hour. See Spalluto v. Trump Int’l Hotel & Tower, No. 04 Civ. 7497, 2008 WL
4525372, at *14 (S.D.N.Y. Oct. 2, 2008) (citing cases). Plaintiffs’ counsels fail to provide
any background information for the paralegals they included in their submissions.
Where the counsels fail to provide such information, courts have reduced proposed
rates for paralegals. See, e.g., Tlacoapa v. Carregal, 386 F.Supp.2d 362, 370 (S.D.N.Y.
2005) (reducing requested rate of $125 per hour to $75 per hour where plaintiff failed to
submit information about paralegal’s experience). Therefore, the Court concludes that
the paralegals should be compensated as follows: Mr. Fabiankovic at the rate of $100
per hour and for Ms. Van Sant at the rate of $50 per hour.
9
B. NUMBER OF HOURS REASONABLY EXPENDED
To determine the number of reasonable hours expended, contemporaneous time
records, affidavits, and other materials must support the prevailing party’s fee
application. Chamblis v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058
(2d Cir. 1989); New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d
1136, 1147-48 (2d Cir. 1983). The number of hours should be reduced for excessive,
redundant, or otherwise unnecessary hours. Quarantino v. Tiffany & Co., 166 F.3d 422,
425 (2d Cir. 1999). “In so doing, the district court does not play the role of an
uninformed arbiter but may look to its own familiarity with the case and its experience
generally as well as to the evidentiary submissions and arguments of the parties.”
Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (internal quotation marks and citation
omitted). “The critical inquiry is ‘whether, at the time the work was performed, a
reasonable attorney would have engaged in similar time expenditures.” Cesario v. BNI
Constr., Inc., 07 Civ. 8545, 2008 WL 5210209 at *7 (S.D.N.Y. Dec. 15, 2008) (citing
Grantv. Martinez, 973 F.2d 96,99 (2d Cir. 1992).
In reviewing the time record, the Court has identified unnecessary hours that will
be discounted from the total number of hours claimed. For example, as the Court
previously noted, the attorneys billed the client each time they conferred with each
other. Said conferences were excessive. See PIs.’ Mem., Ex. D (Jan. 10 2010 billing
Mr. Middlebrook—confer with Lee Sahem regarding settlement terms (.1); Jan. 11,
2010— Mr. Middlebrook
—
“confer with Lee Sahem regarding teleconference with R.
Pastore” (.1); Jan. 27, 2010
-
Mr. Middlebrook
10
—
“confer with Lee Sahem regarding
—
teleconference with R. Pastore” (.1); Jan 29, 2010— Mr. Middlebrook
—
“confer with Lee
Sahem regarding settlement terms” (.1): Feb. 4, 2010— Mr. Middlebrook
—
“confer with
Lee Sahem regarding settlement discussions” (.1); Mar. 8, 2010— Mr. Granath
with Aty Middlebrook” (.5); Mar. 9, 2010
—
Mr. Granath
—
—
“confer
“confer with Aty. Middlebrook
in support of drafting complaint” (.6); Mar. 10, 2010— Mr. Granath
Middlebrook in support of drafting complaint” (.5); Mar. 18, 2010
—
—
“confer with Aty.
Mr. Granath
with Aty. Middlebrook for revising draft complaint” (.9); Mar. 24, 2010
—
—
“confer
Mr. Granath
—
“confer with Aty. Middlebrook on revision to the complaint” (.2); Mar. 29, 2010— Mr.
Granath
—
“confer with Aty. Middlebrook for revising draft complaint” (.5)). These are
examples some of the excessive conferencing occurring between the attorneys.
Additionally, the Court concludes that the firm excessively billed for unanswered
calls made to the client’s home and cell, for listening to voicemails that the clients left for
the firm, for reviewing voicemails the attorneys left for each other, and for leaving
voicemails for the client and opposing counsel. Moreover, the Court notes the excessive
billing done for composing and responding to emails. For example, on May 27, 2011,
Mr. Diamantopoulos billed 2.5 hours for reviewing emails from Mr. Fabiankovic
regarding Plaintiffs’ initial responses.
Additionally, the Court notes that Mr. Diamantopoulos also billed for vague
activities and for activities that could have been accomplished by non-attorneys.
Examples of such activities are conferring with the firm’s staff regarding reserving the
conference room for depositions and actually reserving said conference room (July 7,
2011 (0.1)); entering into his personal calendar information regarding the depositions
(July 7, 2011(0.2)); entering information into his calendars and reserving conference
11
room for meeting with client (July 22, 2011(0.2)); consolidating two letters to client into
one letter (August 26, 2011(0.3)); conferring with Haydee who left voicemail for Marino
Flores (November 17, 2010 (.1)); reviewing fax from the Court, entering it into his
calendar, conferring with Haydee to scan and email the notice to him, preparing email to
Mr. Torczyner regarding it, and then reviewing Mr. Torczyner response to his email
(November 24, 2010 (each activity billed as .1 hours for a total of .5) and again on May
20, 2011).
In sum, the attorneys’ acts of billing for numerous conferences or conversations
held with each other or other members of the firm’s staff; and for numerous emails,
voicemails, scans, or faxes composed or reviewed about the clients’ case were
excessive and warrant a reduction of the hours claimed. “[l]n dealing with such
surplusage, the court has discretion simply to deduct a reasonable percentage of the
number of hours claimed ‘as a practical means of trimming fat from a fee application.”
Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir.1998) (citing New York State
Ass’n for Retarded Children, 711 F.2d at 1146); see also DeVito v. Hempstead China
Shop, Inc., 831 F.Supp. 1037, 1045 (E.D.N.Y.1993) (reducing attorneys’ fee request by
40% due to duplication of work, vague descriptions of some of the work performed and
the necessity of the work); Ass’n of Holocaust Victims for Restitution of Artwork and
Masterpieces v. Bank Austria Creditanstalt AG, 2005 WL 3099592, at *7 (Nov. 17,
2005) (reducing fee request by 25% to account for block billing, vagueness, and
excess).
Thus, based on all of the foregoing factors, the Court will reduce the attorneys’
requests for fees as follows: George Diamantopoulos by 40 percent, Lucas K.
12
Middlebrook by 25 percent, and Nicholas P. Granath by 25 percent and calculates
compensation using the hourly rates noted supra. Thus:
George Diamantopoulos
219.8 hours x $250
=
$54,950
Lucas K. Middlebrook
17.625 hours x $250
=
$4,406.25
Nicholas P. Granath
16.35 hours x $250
=
$4,087.50
Sue Edwards
6.8 hours x $250
=
$1,700
LeeSahem
4,5hoursx$250
=$1,125
Stanley Silverstone
2.6 hours x $250
=
$1,625
Peter Fabiankovic
12.7 hours x $100
=
$1,270
Krista Van Sant
.2hoursx$50
$10
Total
$69,713.75
Less firm’s portion of Flores settlement proceeds
-$4,000
Total attorneys’ fees
$65,173.75
Additionally, the Court has reviewed plaintiffs’ request for costs, in the amount of
$2,557.69, and finds them to be reasonable. Plaintiffs are entitled to an award of
attorneys’ fees and costs of $67,731.44.
Ill. CONCLUSION
Plaintiffs’ motion for damages is granted in the amount of $6,832 for L. Pastore
and $120,909.38 for R. Patore. Additionally, Plaintiffs’ motion for attorneys’ fees and
costs is granted in the amount of $67,731.44.
13
The Clerk of the Court is directed to enter judgment against Defendant J & B
Club House Tavern, Inc. accordingly.
Dated: October’, 2012
White Plains, New York
SO ORDERED:
/7
/I
GEORGE A. YANTHIS,
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