Ducharme v. Madewell Concrete LLC et al

Filing 40

ORDER that Defendants are directed to pay Plaintiff an amount of $7,818.48 in FLSA damages. It is further ORDERED that Defendants are directed to pay Plaintiff an amount of $12,000.00 in attorney's fees and $935.02 in costs. Signed by Honorable Henry M Herlong, Jr on 6/25/21. (kmca) Modified on 6/25/2021: to add space (kmca).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Robert Ducharme,
Plaintiff,
vs.
Madewell Concrete, LLC and Kevin
Johnston,
Defendants.

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C.A. No. 6:20-1620-HMH
OPINION & ORDER

This matter is before the court to determine the amount of damages, attorney’s fees, and
costs Plaintiff Robert Ducharme (“Plaintiff”) is entitled to as the prevailing party on Plaintiff’s
Fair Labor Standards Act (“FLSA”) claim. In addition, Defendants seek to recover certain costs
pursuant to Rule 54(d) of the Federal Rules of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 24, 2020, Plaintiff filed the instant case against Defendants Madewell
Concrete, LLC (“Madewell”) and Kevin Johnston (“Johnston”) (collectively “Defendants”),
alleging claims for violations of (1) the Stored Communications Act (“SCA”), 18 U.S.C. §
2701, et seq., (2) the South Carolina Homeland Security Act (“SCHSA”), S.C. Code Ann. § 1730-10, et seq., and (3) the FLSA, 29 U.S.C. § 201, et seq. (Compl., generally, ECF No. 1.)
Plaintiff filed a motion for partial summary judgment on April 23, 2021. (Pl. Mot. Part. Summ.
J., ECF No. 22.) On the same day, Defendants filed a motion for summary judgment. (Defs.
Mot. Summ. J., ECF No. 23.) In an order dated May 26, 2021, the court granted Plaintiff’s
motion for partial summary judgment on the FLSA claim. (Order, ECF No. 30.) The court

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denied Defendants’ motion for summary judgment as to the FLSA claim and granted
Defendants’ motion as to the claims for violations of the SCA and SCHSA. (Id., ECF No. 30.)
II. DISCUSSION OF THE LAW
The FLSA provides that “[a]ny employer who violates the provisions of section 206 or
section 207 of this title shall be liable to the employee or employees affected in the amount of
their unpaid minimum wages, or their unpaid overtime compensation, . . . and in an additional
equal amount as liquidated damages.” 29 U.S.C. § 216(b). Further, “[t]he district court may, in
its discretion, decline to award liquidated damages where ‘the employer shows to the
satisfaction of the court that the act or omission giving rise to such action was in good faith and
that he had reasonable grounds for believing that his act or omission was not a violation of the
[FLSA].’” Sellers v. Keller Unlimited LLC, 388 F. Supp. 3d 646, 652 (D.S.C. 2019) (quoting
29 U.S.C. § 260). “The employer bears the burden of proof in establishing this defense.” Perez
v. Mountaire Farms, Inc., 650 F.3d 350, 375 (4th Cir. 2011) (citation omitted).
In addition to any judgment awarded to the plaintiff, the FLSA provides that the court
shall “allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 29
U.S.C. § 216(b). “The amount of the attorney’s fees, however, is within the sound discretion of
the trial court.” Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984). The calculation of an
attorney’s fee award is a three-step process. McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013).
“First, the court must ‘determine the lodestar figure by multiplying the number of reasonable
hours expended times a reasonable rate.’” Id. (quoting Robinson v. Equifax Info. Servs., LLC,
560 F.3d 235, 243 (4th Cir. 2009)). Reasonable hours and reasonable rates are determined by
applying “the factors set forth in Johnson v. Georgia Highway Express Inc., 488 F.2d 714,

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717-19 (5th Cir. 1974).” Id. (citing Robinson, 560 F.3d at 243-44.) Second, “the court must
‘subtract fees for hours spent on unsuccessful claims unrelated to successful ones.’” Id.
(quoting Robinson, 560 F.3d at 244). The final step is to “award ‘some percentage of the
remaining amount, depending on the degree of success enjoyed by the plaintiff.’” Id. (quoting
Robinson, 560 F.3d at 244).
A. Unpaid Overtime Compensation
Plaintiff was compensated on a commission basis from April 2019 until October 21,
2019. (Order 4, ECF No. 30); (Defs. Mem. Damages, generally, ECF No. 34); (Pl. Mem.
Damages, generally, ECF No. 35.) From October 21, 2019, until his resignation on December
5, 2019, Plaintiff was compensated on a salary basis. (Order 3-4, ECF No. 30); (Defs. Mem.
Damages, generally, ECF No. 34); (Pl. Mem. Damages, generally, ECF No. 35.) The parties
agree that Plaintiff is entitled to unpaid overtime compensation for 10 hours of overtime per
week. (Defs. Mem. Damages, 2-3, ECF No. 34); (Pl. Mem. Damages, 2, ECF No. 35.) The
parties also agree as to the amount of compensation Plaintiff received in each pay period. (Defs.
Mem. Damages, generally, ECF No. 34); (Pl. Mem. Damages Ex. 1 (Overtime Calculation 2),
ECF No. 35-1.) However, the parties dispute the amount of unpaid overtime compensation due.
Upon review, the court finds that neither party correctly calculated the amount of unpaid
overtime due during the commission period. Based on the regulations governing deferred
commission payments, the hourly rate is calculated by dividing the commission allocated to
each workweek by the total number of hours worked in each week. See 29 C.F.R. §§ 778.119778.120. The amount of additional overtime due is then computed by multiplying one-half of
the hourly rate by the number of overtime hours worked in a given week. See id. Based on this

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formula, the court finds Plaintiff is owed $3,135.20 in unpaid overtime for the time period in
which he was paid on a commission basis.
Next, the court finds that Defendants correctly calculated the amount of overtime owed
for the time in which Plaintiff was paid a salary. Under Desmond v. PNGI Charles Town
Gaming, L.L.C., 630 F.3d 351, 354 (4th Cir. 2011), and the relevant regulations, Plaintiff is
entitled to overtime pay of one-half of his regular rate, and the regular rate is based on total
number of hours worked. See Desmond, 630 F.3d at 354; 29 C.F.R. §§ 778.108, 778.109,
778.113. The court finds Plaintiff is owed $774.20 in unpaid overtime for the time in which he
was paid a salary.
Based on the foregoing, the court finds Plaintiff is entitled to a total of $3,909.24 in
unpaid overtime pay.
B. Liquidated Damages
“The FLSA provides for mandatory liquidated damages in an amount equal to the
unpaid overtime compensation.” Perez, 650 F.3d at 375 (citing 29 U.S.C. § 216(b)). However,
the court may refuse to award liquidated damages if “the employer shows to the satisfaction of
the court that the act or omission giving rise to such action was in good faith and that he had
reasonable grounds for believing that his act or omission was not a violation of the [FLSA].” 29
U.S.C. § 260. Defendants do not attempt to make such a showing. (Defs. Mem. Damages,
generally, ECF No. 34.) In fact, Defendants included liquidated damages in their brief
calculating Plaintiff’s damages. (See id., ECF No. 34.) Plaintiff is awarded $3,909.24 in
liquidated damages.

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C. Prejudgment Interest
In addition, Plaintiff seeks prejudgment interest on the unpaid overtime amount. (Pl.
Mem. Damages, 4-5, ECF No. 35.) “[P]rejudgment interest on an FLSA overtime claim is
compensatory[.]” Calderon v. GEICO Gen. Ins. Co., 809 F.3d 111, 133 (4th Cir. 2015).
“Normally, ‘[p]rejudgment interest is necessary, in the absence of liquidated damages, to make
the [plaintiff] whole.’” Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1401 (4th Cir.
1990) (quoting Cline v. Roadway Express, 689 F.2d 481, 489 (4th Cir. 1982)). “However, the
decision whether to award interest is within the trial court’s discretion.” Id. (citing Cline, 689
F.2d at 489). Based on a thorough review of the record and considering Plaintiff’s award of
liquidated damages, the court declines to award prejudgment interest.
D. Attorney’s Fees and Costs
1. Step One: The Lodestar Amount
In order to determine the reasonable number of hours and the reasonable rate in
calculating the lodestar, the court must consider twelve non-exclusive factors:
(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 customary fee; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed by the client or
the circumstances; (8) the amount involved 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.
Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) (citing Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)).

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(a) Reasonable Hours
“To establish the number of hours reasonably expended, the attorney ‘should submit
evidence supporting the hours worked.’” Crossmann Cmtys. of N.C., Inc. v. Harleysville Mut.
Ins. Co., Civil Action No. 4:09-1379-RBH, 2014 WL 2169075, at *2 (D.S.C. May 23, 2014)
(unpublished) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The attorney should
“exclude ‘hours that are excessive, redundant, or otherwise unnecessary’ in order to reflect the
number of hours that would properly be billed to the client.” Id. (quoting Hensley, 461 U.S. at
434). “[T]he court should not simply accept as reasonable the number of hours reported by
counsel.” Espinoza v. Hillwood Square Mut. Ass’n, 532 F. Supp. 440, 446 (E.D. Va.1982)
(citation omitted).
Plaintiff seeks an award of attorney’s fees for 63 hours worked by his attorney. (Pl.
Mem. Damages Ex. 2 (Summerlin Affidavit 3, 5-6, ECF No. 35-2.) Plaintiff’s counsel indicates
that he worked a total of 79 hours on this case.1 (Id. Ex. 2 (Summerlin Affidavit 6), ECF No.
35-2.) However, Plaintiff has reduced by one-half the number of hours expended on depositions
and a mediation because the parties utilized the depositions and mediation jointly in a related
state court case. (Id. Ex. 2 (Summerlin Affidavit 3, 6), ECF No. 35-2.) As an initial matter, the
court finds Plaintiff’s voluntary one-half reduction for the mediation and deposition hours is
reasonable.

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Plaintiff’s counsel’s time entries state a total of 78:30 hours, however, the total
proposed hours submitted are actually 79. (See Pl. Mem. Damages Ex. 2 (Summerlin Affidavit
5-6), ECF No. 35-2.)
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The court has considered the time and labor required, the novelty and difficulty of the
questions, the time limitations imposed by the client or the circumstances, and the amount
involved and the results obtained in determining the reasonableness of the hours claimed.
Accordingly, the court finds 63 hours was a reasonable number of hours for Plaintiff’s counsel
to expend on the instant case.
(b) Reasonable Rates
“The hourly rates included in a request for attorney’s fees must also be reasonable.”
Crossmann, 2014 WL 2169075 at *2 (citing Hensley, 461 U.S. at 433). Reasonable rates are
determined “by compensating attorneys at the prevailing market rates in the relevant
community.” Rum Creek, 31 F.3d at 175 (internal quotation marks omitted). “The relevant
market for determining the prevailing rate is ordinarily the community in which the court where
the action is prosecuted sits.” Id. (internal citations omitted). Evidence “deemed competent to
show prevailing market rates includes ‘affidavits of other local lawyers who are familiar both
with the skills of the fee applicants and more generally with the type of work in the relevant
community.’” McAfee v. Boczar, 738 F.3d 81, 91 (4th Cir. 2013) (quoting Robinson v. Equifax
Info. Servs., LLC, 560 F.3d 235, 245 (4th Cir. 2009)).
Plaintiff’s counsel contends $300 per hour is a reasonable rate for his time in the instant
case. (Pl. Mem. Damages 8, ECF No. 35.) Plaintiff’s counsel has provided affidavits from
three local employment attorneys in support. (See id. Ex. 3 (Murphy Affidavit), Ex. 4 (Porter
Affidavit), Ex. 5 (Dunlaevy Affidavit), ECF Nos. 35-3, 35-4, 35-5.) Defendants do not dispute
the requested rate. After considering the level of skill required to perform the legal service

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properly, the preclusion of employment by the attorney due to acceptance of the case, the
customary fee, whether the fee is fixed or contingent, the experience, reputation, and ability of
the attorneys, the undesirability of the case, the nature and length of the professional
relationship with the client, and awards in similar cases, the court finds that $300 per hour is
reasonable in this case.
2. Steps Two and Three: Unsuccessful Claims and Lodestar Percentage
In addition, the court must “‘subtract fees for hours spent on unsuccessful claims
unrelated to successful ones.’” Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008)
(quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)). Defendants argue for a
reduction for hours spent on Plaintiff’s unsuccessful, unrelated causes of action for violations of
the SCA and SCHSA. (Defs. Mem. Damages, generally, ECF No. 34.) Specifically,
Defendants argue that the certain hours, such as those spent working on discovery, preparing for
and participating in mediation and depositions, and work related to Defendants’ motion for
summary judgment involved work on both the FLSA claim and the SCA and SCHSA claims.
(Defs. Reply, generally, ECF No. 37.) Defendants argue such hours must be reduced
accordingly. (Id., generally, ECF No. 37.) The court agrees and finds that the SCA and
SCHSA claims are “distinct in all respects” from Plaintiff’s FLSA claim. See Hensley v.
Eckerhart, 461 U.S. 424, 440 (1983) (“Where the plaintiff has failed to prevail on a claim that is
distinct in all respects from his successful claims, the hours spent on the unsuccessful claim
should be excluded in considering the amount of a reasonable fee.”).

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Upon review, court finds that the time expended by Plaintiff’s counsel on Defendants’
motion to dismiss should be excluded. Defendants filed a motion to dismiss only Plaintiff’s
SCHSA claim. (See Defs. Mot. Dismiss, ECF No. 9.) Hours spent by Plaintiff’s counsel
related to the motion to dismiss (3:50 hours) are therefore unrelated to Plaintiff’s FLSA claim.
Accordingly, Plaintiff’s counsel’s hours are reduced by 3:50 hours to 59:10 hours. Next, of the
remaining 59:10 hours, that court finds that 38:20 hours involved joint work on both the FLSA
claim and the SCA and SCHSA claims. Thus, the court reduces 38:20 hours by one-half to
19:10 hours.
Finally, the court must “award ‘some percentage of the remaining amount, depending
on the degree of success enjoyed by the plaintiff.’” McAfee, 738 F.3d at 88 (quoting Robinson,
560 F.3d at 244). The court declines to make any further adjustment on this basis. Therefore,
based on total of 40 attorney hours at rate of $300 per hour, Plaintiff is awarded attorney’s fees
in the amount of $12,000.00.
E. Costs
Plaintiff seeks an award of costs in the amount of $1,870.04. (Pl. Mem. Damages Ex. 2
(Summerlin Affidavit 3-4, ECF No. 35-2.) This amount includes a voluntary one-half reduction
for the costs of the depositions and mediation that were shared with the related state court case.
(Id. Ex. 2 (Summerlin Affidavit 3-4, ECF No. 35-2.) Defendants agree that Plaintiff is entitled
to costs under the FLSA. (Defs. Reply, generally, ECF No. 37.) However, Defendants argue
that Plaintiff’s proposed costs include costs for the SCA and SCHSA claims and argue that
Plaintiff is not entitled to costs for these unsuccessful, unrelated claims. (Id., generally, ECF

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No. 37.) Additionally, Defendants argue that they are the “prevailing party” on the SCA and
SCHSA claims and seek to recover $897.40 in costs related to those claims pursuant to Rule
54(d)(1) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 54(d)(1) (“Unless a
federal statute, these rules, or a court order provides otherwise, costs . . . should be allowed to
the prevailing party.”). (Mem. Supp. Defs. Bill of Costs, generally, ECF No. 33-1.)
The Supreme Court has “held that for a party to be considered a ‘prevailing party,’ there
must be a ‘material alteration of the legal relationship of the parties,’ and there must be ‘judicial
imprimatur on the change.’” Grissom, 549 F.3d at 318 (internal citations omitted) (quoting
Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Hum. Res., 532 U.S.
598, 604-05 (2001)). Judgment was entered in favor of both parties in this case. Plaintiff is a
prevailing party because judgment was entered in favor of Plaintiff on the FLSA claim and
Defendants are ordered to pay $7,818.48 in damages. Such judgment materially alters the
relationship between parties by imposing upon Defendants a legally enforceable obligation to
pay Plaintiff $7,818.48. See Grissom, 549 F.3d at 318-19. Further, “there is judicial
imprimatur on the change in that the district court has the inherent power to compel
[Defendants] to satisfy such judgment.” Id. at 319 (citation omitted).
“Although the Fourth Circuit has not determined whether there can be more than one
prevailing party in a suit, numerous district courts in this circuit have determined there can only
be one prevailing party.” Raynor v. G4S Secure Sols. (USA), Inc., No. 317CV00160FDWDSC,
2020 WL 3578313, at *3 (W.D.N.C. July 1, 2020) (unpublished) (citing Kraemer v. Mass. Mut.
Life Ins. Co., No. 2:15-CV-04571, 2018 WL 732901, at *2 (D.S.C. Feb. 6, 2018) (“[T]his
district, as well as other districts within the Fourth Circuit, have followed the lead of the Federal
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Circuit in finding that there may only be one prevailing party.”); Ethox Chem., LLC v.
Coca-Cola Co., No. 6:12-1682-KFM, 2016 WL 7053351, at *2 (D.S.C. Feb. 29, 2016)
(unpublished); Intellectual Ventures I LLC v. Capital One Fin. Corp, No. 1:13cv0740, 2015 WL
7283108, at *2 (E.D. Va. Nov. 17, 2015) (unpublished) (“There can be, however, only one
‘prevailing party,’ even in cases involving mixed judgments.”)). The court declines to find
there are two prevailing parties in the instant case and declines to award costs to Defendants.
The court agrees with Defendants that Plaintiff’s proposed costs include costs associated
with both the FLSA claim as well as the SCA and SCHSA claims. The court finds Plaintiff’s
costs are recoverable but will reduce them by one-half to account for the SCA and SCHSA
claims. The court awards Plaintiff costs in the amount of $935.02.
It is therefore
ORDERED that Defendants are directed to pay Plaintiff an amount of $7,818.48 in
FLSA damages. It is further
ORDERED that Defendants are directed to pay Plaintiff an amount of $12,000.00 in
attorney’s fees and $935.02 in costs.
IT IS SO ORDERED.
Henry M. Herlong, Jr
Senior United States District Judge
Greenville, South Carolina
June 25, 2021

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