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Saman v. LBDP, Inc.

United States District Court, Fourth Circuit

December 6, 2013

LBDP, INC., et al.


DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for review in this wage and hour law case is a motion for attorneys' fees and costs filed by Plaintiff Rosa Saman. (ECF No. 34). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiff's motion will be granted in part and denied in part.

I. Background

Plaintiff brought claims under the Fair Labor Standards Act ("FLSA"), the Maryland Wage and Hour Law ("MWHL"), the Maryland Wage Payment and Collection Act ("MWPCL"), and for wrongful termination against Defendants LBDP, Inc. d/b/a La Baguette De Paris, Unyoung Lee, and Edward Sokvary, seeking to recover unpaid wages and bonuses. The original complaint alleged that, from August 23, 2009 through February 25, 2012, Plaintiff worked as an hourly employee at LBDP. Ms. Lee and Mr. Sokvary were owners and operators of LBDP who "created, maintained and administered" the company's employment policies; had "the power to hire and fire employees"; controlled scheduling; and "handle[d] payroll responsibilities." (ECF No. 1 ¶ 3). Plaintiff alleged that, throughout her employment, she "typically work[ed] between 55-65 hours per week and sometimes was required to work in excess of 100 hours per week, " but "Defendants refused to pay [her] at the rate of one-and-one half (1½) times her regular rate of pay for hours worked per week in excess of forty (40)." ( Id. ¶¶ 12, 15).

Defendants filed a partial motion to dismiss, arguing that the complaint failed to state a claim under the MWPCL and that the court lacked supplemental jurisdiction over Plaintiff's state law wrongful termination claim. (ECF No. 9). Plaintiff voluntarily dismissed her MWPCL claim (ECF No. 12), but opposed Defendants' motion to the extent it sought dismissal of her wrongful termination claim (ECF No. 13). In a Memorandum Opinion and Order filed on November 7, 2012, the court dismissed Plaintiff's wrongful termination claim for lack of subject matter jurisdiction. (ECF Nos. 16 & 17).

On November 21, 2012, Defendants filed their answer to the complaint. (ECF No. 18). Concurrently with their answer, Defendants sought an order staying all discovery and referring the case to a United States Magistrate Judge for early mediation. (ECF No. 19). After Plaintiff indicated that she did not oppose mediation (ECF No. 22), the case was referred to Magistrate Judge Charles Day on December 10, 2012 (ECF No. 23). On February 4, 2013, Plaintiff's unopposed motion for leave to file an amended complaint that corrected a misnomer was granted. (ECF Nos. 25 & 26).

On April 9, 2013, the parties participated in a settlement conference before Judge Day. On or about May 3, 2013, the parties executed a settlement agreement that resolved both this lawsuit and a second lawsuit filed by Plaintiff against Defendants in the Circuit Court for Montgomery County, Maryland, which asserted a claim for abusive discharge. (ECF No. 28-3).[1] The settlement agreement provided that Defendants will pay Plaintiff $28, 000 to settle her FLSA and MWHL claims. The settlement agreement also requires Defendants to pay Plaintiff for attorneys' fees and costs incurred in prosecuting her FLSA claims, in an amount to be determined by this court following Plaintiff's submission of a motion requesting such fees and costs. ( Id. ¶ 2d). In a Memorandum Opinion and Order, the court approved the settlement agreement, providing Plaintiff fourteen (14) days to file a motion for attorneys' fees and costs. (ECF Nos. 32 & 33). Plaintiff filed such a motion on June 24, 2013, requesting $34, 098 in attorneys' fees and $477.68 in costs. (ECF No. 34). On July 11, 2013, Defendants filed an opposition, objecting only to the attorneys' fees (ECF No. 35), and Plaintiff replied on July 26, 2013 (ECF No. 36). Plaintiff sought additional fees incurred in preparing the reply, to which Defendants moved for leave to file a surreply to challenge this request. The court granted this request (ECF No. 39), and the Defendants filed their surreply on November 1, 2013 (ECF No. 40).

II. Analysis

In any action under the FLSA, "[t]he court... shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b).[2] The payment of attorneys' fees and costs to employees who prevail on FLSA claims is mandatory. "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 MWHL also allows for the recovery of attorneys' fees and costs. See Md. Code Ann., Lab. & Empl. § 3-427 ("If a court determines that an employee is entitled to recovery in an action under this section, the court may allow against the employer reasonable counsel fees and other costs.").

"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This approach is commonly known as the "lodestar" method. Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008).[3] In deciding what constitutes a "reasonable" number of hours and a "reasonable" rate, numerous factors may prove pertinent, including:

(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.

Robinson v. Equifax Info. Servs., 560 F.3d 235, 243-44 (4th Cir. 2009) ( quoting Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978)).[4] "[T]he burden rests with the fee applicant to establish the reasonableness of a requested rate." Id. at 244 ( quoting Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)). "In addition to the attorney's own affidavits, the fee applicant must produce satisfactory specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award, " including, for example, "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." Id. at 244, 245 (internal quotation marks omitted).

Plaintiff's attorneys are: Mr. Scott Mirsky, a partner at the law firm of Bromberg Rosenthal in Rockville, Maryland; Ms. Sherry Zangueneh, an associate of the same firm; and Ms. Kimberly Jones, a paralegal of the same firm. They represent that they spent 122.8 hours on this case and request the following hourly rates: $300 for Mr. Mirsky, $150 for Ms. Zangueneh, and $90 for Ms. Jones. (ECF No. 34-1, at 3). The 122.8 hours was divided among the three in the following manner: 106.6 for Mr. Mirsky, 13.7 hours for Ms. Zangueneh, and 0.7 hours for Ms. Jones. (ECF No. 34-5).[5] Defendants dispute both the hourly rates and the hours expended. These issues will be considered in turn.

A. Hourly Rate

Plaintiff submits an affidavit by Mr. Mirsky in support of the requested rate. Mr. Mirsky avers that he is a partner with the firm with extensive experience in employment disputes, who has been practicing law for over fifteen years. Ms. Zangueneh is an associate with the firm who has practiced law for seven years and has assisted Mr. Mirsky in many previous employment law cases. In support of their requested hourly rates, Plaintiff's attorneys submit that Mirsky, Zangueneh, and Jones's proposed rates in this case are identical to the rates Bromberg Rosenthal charge to all of its clients who retain the firm on an hourly basis and within the court's guidelines regarding hourly rates. (ECF Nos. 34-1, at 3; 34-3 ¶¶ 5-6); Local Rules, Appendix B.[6]

Defendants argue that Mr. Mirsky's $300/hour billing rate is unreasonable, and instead request an hourly rate of $275/hour.[7] They argue that the reason why an experienced attorney is justified in receiving a high rate is because his very experience will result in economies of time due to the lack of need for extensive background legal research. (ECF No. 35, at 14 ( citing Buffington v. Balt. Cnty., Maryland, 913 F.2d 113, 130 (4th Cir. 1990)). According to the Defendants, such efficiencies were not present here, as evidenced by Plaintiff's attorneys claiming 122.8 hours on what Defendants characterize as a "straightforward" FLSA case. Additionally, ...

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