Bisono et al v. TDL Restoration Inc. et al
Filing
132
OPINION AND ORDER: For the foregoing reasons, Plaintiffs' motion for attorneys' fees and costs is granted in part and denied in part. The Court awards Plaintiffs $208,159.50 in attorneys' fees and $8,676.41 in costs. SO ORDERED. (Signed by Magistrate Judge Judith C. McCarthy on 9/27/2019) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOSE BISONO, JOAQUIN VICENTE, and
EDGAR MENDEZ,
Plaintiff,
OPINION AND ORDER
-against17 Civ. 9431 (JCM)
TDL RESTORATION, INC.,
DRITON QUNI and GJON QUNI,
Defendants.
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Plaintiffs Jose Bisono, Joaquin Vicente and Edgar Mendez (collectively, “Plaintiffs”)
commenced this action against Defendants TDL Restoration, Inc., TDL Management Corp.,
Driton Quni, and Gjon Quni seeking damages pursuant to the Fair Labor Standards Act
(hereinafter, “FLSA”) and New York Labor Law (hereinafter, “NYLL”). (Docket No. 1). This
action proceeded to trial, after which the jury found Defendants TDL Restoration, Inc., Driton
Quni, and Gjon Quni (collectively, “Defendants”) 1 liable to Plaintiffs for unpaid wages,
liquidated damages and statutory damages under the FLSA and NYLL. (Docket No. 115).
Presently before the Court is Plaintiffs’ motion for attorneys’ fees and costs. (Docket No. 118).
Defendants opposed Plaintiffs’ motion, (Docket No. 126), and Plaintiffs replied, (Docket No.
127). For the reasons set forth below, Plaintiffs’ motion for attorneys’ fees and costs is granted
in part and denied in part. The Court awards $208,159.50 in attorneys’ fees and $8,676.41 in
costs.
1
Defendant TDL Management Corp. was dismissed from this case during trial pursuant to Fed. R. Civ. P. 50.
(Minute Entry dated May 3, 2019).
1
I. BACKGROUND
On December 1, 2017, Plaintiffs commenced this action seeking to recover unpaid
wages, liquidated damages, statutory damages, attorneys’ fees, and interest under the FLSA and
NYLL. (Docket No. 1). During discovery, the parties participated in a mediation and a
settlement conference, both of which failed to reach a settlement. (Minute Entry dated Aug. 3,
2018); (Minute Entry dated Oct. 25, 2018). Following the completion of discovery, Defendant
Gjon Quni moved for summary judgment, arguing that he was not an “employer” within the
meaning of the FLSA or NYLL. (Docket No. 66). The other defendants did not file a motion for
summary judgment. Plaintiffs opposed the motion. (Docket No. 76). On March 22, 2019, the
Court denied Defendant Gjon Quni’s motion for summary judgment. (Minute Entry dated Mar.
22, 2019). A jury trial was held from April 30, 2019 to May 7, 2019. On May 3, 2019, the
Court granted Defendant TDL Management Corp.’s unopposed motion for a directed verdict
pursuant to Fed. R. Civ. P. 50. (Minute Entry dated May 3, 2019). On May 7, 2019, the jury
found the remaining Defendants liable to Plaintiffs under both the NYLL and FLSA. (Docket
No. 115). On May 14, 2019, the parties submitted a joint calculation of proposed damages.
(Docket No. 116). On June 6, 2019, the Court entered judgment against Defendants TDL
Restoration, Inc., Driton Quni, and Gjon Quni, jointly and severally, in favor of Plaintiffs in the
following amounts: $92,723.46 to Jose Bisono, $83,357.22 to Edgar Mendez, and $197,651.09 to
Joaquin Vicente. (Docket No. 121).
II. DISCUSSION
Plaintiffs seek reasonable attorneys’ fees, which they are entitled to recover under the
FLSA and NYLL as the prevailing party. See 29 U.S.C. § 216(b); NYLL § 198. “District courts
have broad discretion when awarding a fee, but must clearly explain the reasons supporting an
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award.” Ortega v. JR Primos 2 Rest. Corp., No. 15 Civ. 9183 (JCF), 2017 WL 2634172, at *6
(S.D.N.Y. June 16, 2017). “Courts ordinarily award a lodestar fee, which is the product of the
prevailing market rate for lawyers in the district and the number of hours a reasonable attorney
would spend to litigate the case effectively.” Id. In assessing the reasonableness of attorneys’
fees, the Court must: “(1) determine the reasonable hourly rate; (2) determine the number of
hours reasonably expended; (3) multiply the reasonable hourly rate by the number of hours
reasonably expended to determine the presumptively reasonable fee; and (4) make an appropriate
adjustment to arrive at the final fee award.” Creighton v. Dominican Coll., No. 09-CV-3983
(TZ), 2011 WL 4914724, at *6 (S.D.N.Y. Aug. 16, 2011). However, “[t]here is no precise rule
or formula for determining a proper attorney’s fees award; rather, the district court should
exercise its equitable discretion in light of all relevant factors.” Beastie Boys v. Monster Energy
Co., 112 F. Supp. 3d 31, 48 (S.D.N.Y. 2015) (internal quotation marks and citation omitted).
A. Reasonable Hourly Rate
Plaintiffs seek fees for seven individuals. (McCreanor Aff. 2 at 8–14). Robert McCreanor
is the legal director of the Worker Justice Center of New York (“WJCNY”), and a 2002 graduate
of Harvard Law School. (Id. at 8). For the past ten years, Mr. McCreanor has worked in nonprofit, public interest legal practice settings with a concentration in employment and housing
litigation. (Id. at 8–9). Mr. McCreanor requests a rate of $350 per hour. (Id. at 14). Maureen
Hussain is a staff attorney at WJCNY, a 2011 graduate of Harvard Law School, and a former
judicial law clerk to the Honorable Debra Freeman in the Southern District of New York. (Id. at
11–12). Ms. Hussain represents low-income individuals and groups in employment, housing and
immigration matters. (Id.). Ms. Hussain requests a rate of $225 per hour. (Id. at 14). John
2
Refers to the Affidavit of Robert McCreanor submitted in support of Plaintiffs’ motion for attorneys’ fees and
costs. (Docket No. 119).
3
Marsella is a staff attorney at WJCNY and a 2013 graduate of American University Law School.
(Id. at 12–13). Since 2013, Mr. Marsella has represented individuals in civil rights and
employment law matters. (Id. at 12). Mr. Marsella requests a rate of $225 per hour. (Id. at 14).
Ken Wolkin and Nathalia Rosado-Oliveras are paralegals at WJCNY, who request an hourly rate
of $125 per hour. (Id. at 13–14). Amanda Batista and Diana Saguilan are administrative support
staff at WJCNY, who request a rate of $50 per hour. (Id. at 14).
Defendants do not contest Plaintiffs’ requested hourly rates, and the Court finds
Plaintiffs’ rates to be entirely reasonable. Experienced litigators like Mr. McCreanor are
commonly awarded between $300 and $400 per hour in FLSA cases within the Southern District
of New York. See Castellanos v. Mid Bronx Cmty. Hous. Mgmt. Corp., No. 13 Civ. 3061 (JGK),
2014 WL 2624759, at *7 (S.D.N.Y. June 10, 2014) (collecting cases). Moreover, “FLSA
litigators who have more than three years of experience have been awarded rates in excess of
$225 per hour.” Run Guo Zhang v. Lin Kumo Japanese Restaurant Inc., No. 13 Civ. 6667(PAE),
2015 WL 5122530, at *3 (S.D.N.Y. Aug. 31, 2015). Finally, Plaintiffs’ hourly rates for the
paralegals and legal assistants are reasonable. See Denoyer v. PMI Sec. Prot. Inc., No. 15 Civ.
4834(KMK)(JCM), 2018 WL 1738217, at *6 (S.D.N.Y. Jan. 23, 2018), report and
recommendation adopted, 2018 WL 1737154 (S.D.N.Y. Apr. 9, 2018) (awarding experienced
paralegals $125 per hour in a FLSA wage-and-hour case). Accordingly, the Court adopts
Plaintiffs’ requested hourly rates.
B. Reasonable Hours Expended
“The party seeking attorneys’ fees bears the burden of demonstrating that the claimed . . .
number of hours [is] reasonable,” and the “amount of time expended must be adequately
supported by contemporaneous time records that specify relevant dates, time spent, and work
done.” Creighton, 2011 WL 4914724, at *6 (internal quotation marks and citations omitted).
4
“Adjustments must be made to the number of hours expended based on case-specific factors,
including deductions for ‘excessive, redundant, or otherwise unnecessary hours.’” Id. (quoting
Quaratino 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).
Here, Plaintiffs’ attorneys submitted contemporaneous time records, (Docket Nos. 119-2–
119-8), and seek payment for 956.12 hours worked, 3 (Docket No. 119-1). The Court is mindful
that the lengthy procedural history of this case required both parties to dedicate a significant
amount of time litigating this matter. The parties participated in a mediation and settlement
conference, conducted extensive discovery, engaged in both dispositive and pre-trial motion
practice, tried a week-long jury trial, and submitted post-trial briefing. In addition, the Court
also accepts Plaintiffs’ attorneys’ representations that they have excluded certain tasks from their
requested lodestar amount. 4 However, upon review, the amount of hours worked in this matter
warrants reduction for several reasons.
First, the time records contain excessive hours for certain tasks. See Husain v. Springer,
579 Fed. Appx. 3, 7 (2d Cir. 2014) (noting that courts can impose fee reductions for excessive
billing) (summary order). For example, Mr. McCreanor billed over 16 consecutive hours in a
single day for “catalogue and review of defendants’ disclosures in relation to summary judgment
3
Plaintiffs originally sought payment for 971.28 hours worked. (Docket No. 119-1). After Defendants identified a
computing error in the April 22, 2019 entry in Mr. McCreanor’s invoice, (Docket No. 126 at 15), Plaintiffs modified
that entry and voluntarily reduced Mr. McCreanor’s total hours worked, (Docket No. 128 at 2).
4
For example, Plaintiffs represent that they have excluded Mr. Marsella’s time entries for taking trial notes and
performing miscellaneous legal research during trial from the lodestar amount. (Docket No. 119-1).
5
motion, references to Gjon Quni.” (Docket No. 119-2 at 3). Within that time, Mr. McCreanor
appears to have billed an additional hour for the same task. (Id.). Mr. McCreanor also billed
approximately 24 hours updating Plaintiffs’ damages calculations in anticipation of the
mediation held on March 13, 2018. (Id. at 1). Ms. Hussain also billed multiple hours revising
Plaintiffs’ damages calculations prior to mediation. (Docket No. 119-3 at 1). The Court also
finds that 29 hours preparing the instant fee application is excessive based on the lack of
complexity associated with the motion. See Access 4 All, Inc. v. 135 W. Sunrise Realty Corp.,
No. CV 06-5487 (AKT), 2008 WL 4453221, at *12 (E.D.N.Y. Sept. 30, 2008) (reducing the
amount of hours spent preparing the attorneys’ fees application from 19.4 hours to 9.7 hours).
Second, counsel billed their full rate for administrative and non-legal tasks such as
courtroom “technology set up,” delivering courtesy copies, collating trial exhibits, and scanning
documents. (Docket Nos. 119-2 at 4–5, 19-3 at 4–5); see Balu v. City of New York, No. 12 Civ.
1071 (KPF), 2016 WL 884666, at *5 (S.D.N.Y. Mar. 8, 2016) (“Courts can also reduce hours
where attorneys are performing clerical or administrative work.”). Moreover, some of the
entries, such as “preparing for court appearance,” “calculating damages,” and “researching jury
instructions,” (Docket No. 119-3 at 5, 7), are overly vague and prevent the Court from
determining whether the work constituted a reasonable expenditure of time. (See also Docket
No. 119-3 at 4) (“emailing defense counsel about new lawsuit, settlement position, etc.”)
(emphasis added); Harley v. Nesby, No. 08-CV-5791(KBF)(HBP), 2012 WL 1537881, at *12 n.
14 (S.D.N.Y. May 2, 2012) (reducing hours by fifteen percent and finding that time entries such
as “Research re: privilege/compel production issues,” “Research re: discovery compliance,” and
“Research regarding possible discovery sanctions” were overly generalized); Custodio v. Am.
Chain Link & Const., Inc., No. 08 Civ. 7148 (GBD)(HBP), 2014 WL 116147, at *15 (S.D.N.Y.
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Jan. 13, 2014) (holding that plaintiff’s time entries, such as “[r]esearch law” or “[r]eview
records,” were deficient on vagueness grounds).
Third, the time records contain multiple block entries that fail to distinguish the amount
of time worked on individual tasks. (See, e.g., Docket No. 119-2 at 1); (Docket No. 119-3 at 9);
(Docket No. 119-5 at 1). “While ‘block billing is not prohibited in this Circuit’ . . . [it] renders it
difficult to determine whether, and/or the extent to which, the work done by [the] attorneys is
duplicative or unnecessary.” Sea Spray Holdings, Ltd. v. Pali Fin. Grp., Inc., 277 F. Supp. 2d
323, 325–26 (S.D.N.Y. 2003) (quoting Rodriguez v. McLoughlin, 84 F. Supp. 2d 417, 427
(S.D.N.Y. 1999)). Moreover, the block entries group both legal and administrative tasks into a
single entry and bill at a single hourly rate. For example, one entry states “review of defendants’
production, locate ‘meal break’ compensation provision in employee handbook, scan and send to
Maureen, legal research.” (Docket No. 119-2 at 1). The “legal research” aspect of the entry is
properly billed at the attorney’s full rate. However, the “scanning” component of the entry
should be compensated at a lower rate, or not compensated at all. See Barfield v. New York City
Health & Hosps. Corp., 537 F.3d 132, 139 (2d Cir. 2008) (“4 hours spent on administrative tasks
should not be compensated all”); E.S. v. Katonah-Lewisboro Sch. Dist., 796 F. Supp. 2d 421,
431–32 (S.D.N.Y. 2011) aff’d 487 F. App’x 619 (2d Cir. 2012) (reducing fee request because
administrative tasks “are capable of being performed by non-attorney staff who would have
charged a substantially lower fee.”).
“In lieu of making minute adjustments to individual timekeeping entries, a court may
make across-the-board percentage cuts in the number of hours claimed, ‘as a practical means of
trimming fat from a fee application.’” Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048
(GEL), 2007 WL 1373118, at *5 (S.D.N.Y. May 8, 2007) (quoting In re Agent Orange Prod.
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Liability Litig., 818 F.2d 226, 237 (2d Cir. 1987)). Accordingly, the Court reduces all time
charged by Mr. McCreanor, Ms. Hussain, Mr. Marsella, and Mr. Wolkin by fifteen percent for
the reasons discussed above. The Court does not reduce the time billed by Ms. Batista, Ms.
Saguilan, and Ms. Rosado-Oilveras. After incorporating the reductions of hourly rates and hours
worked, Plaintiffs are entitled to a lodestar amount of $208,159.50 in attorneys’ fees, as set forth
in the following table:
Timekeeper
Rate
Hours
Fee
Robert McCreanor
$350/hour
304.94
$106,729.00
Maureen Hussain
$225/hour
315.75
$71,043.75
John Marsella
$225/hour
71.68
$16,128.00
Ken Wolkin
$125/hour
85.30
$10,662.50
Nathalia Rosado
Oliveras
Amanda Batista
$125/hour
20.47
$2,558.75
$50/hour
16.00
$800.00
Diana Saguilan
$50/hour
4.75
$237.50
TOTAL
$208,159.50
C. Costs
Plaintiffs request costs in the amount of $8,676.41 for court filing fees, transcript
requests, process server fees, and delivery charges. (Docket No. 119-9). Plaintiffs “[are] entitled
to ‘those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their
clients.’” Polit v. Glob. Foods Int’l Corp., No. 14-CV-07360 (SN), 2017 WL 1373907, at *9
(S.D.N.Y. Apr. 13, 2017) (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.
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1998)). Upon review, the costs sought by Plaintiffs are reasonable. Therefore, Plaintiffs are
entitled to $8,676.41, the full amount of costs incurred in the instant matter.
III. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for attorneys’ fees and costs is granted in
part and denied in part. The Court awards Plaintiffs $208,159.50 in attorneys’ fees and
$8,676.41 in costs.
Dated:
September 27, 2019
White Plains, New York
SO ORDERED:
_________________________
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DITH C.
JUDITH C McCARTHY
United States Magistrate Judge
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