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Dorsey v. TGT Consulting, LLC

United States District Court, Fourth Circuit

February 4, 2014



Catherine C. Blake United States District Judge

Craig Dorsey, a former server at the Greene Turtle bar and restaurant at BWI Airport, brought this suit for minimum wage and overtime violations on behalf of himself and similarly situated individuals against The Greene Turtle Franchise Corporation, various related companies, and two executives of those companies. On March 15, 2013, the court approved the parties’ settlement of $240, 000, which is to be shared by 52 plaintiffs. Now pending before the court is the plaintiffs’ motion for attorneys’ fees and costs pursuant to the Fair Labor Standards Act of 1938 (“FLSA”) and, as applicable, the Maryland Wage and Hour Law, the D.C. Minimum Wage Act, Fed.R.Civ.P. 54(d)(2)(A), and Local R. 109.2.[1] The plaintiffs seek an award of $467, 020.00 in attorneys’ fees[2] and $7, 183.53 in costs, as well as an “enhancement” for attorney Howard B. Hoffman of $17, 052.96 and a supplemental payment of $18, 165.80[3] for the preparation of their reply brief. Also pending is the corporate defendants’ motion for leave to file a surreply.[4] The parties have fully briefed the issues, and no oral argument is necessary. See Local R. 105.6. For the reasons stated below, attorneys’ fees in the amount of $407, 270.00 and costs in the amount of $6, 101.68 will be awarded. A supplemental payment of $10, 410.00 will be awarded to plaintiffs’ counsel for the preparation of their reply. Hoffman will not receive a fee enhancement or prejudgment interest.


Successful plaintiffs in FLSA actions are entitled to reasonable attorney’s fees and costs. 29 U.S.C. § 216(b). Although the payment of attorney’s fees and costs to employees prevailing under the FLSA is mandatory, “[t]he amount of the attorney’s fees . . . is within the sound discretion of the trial court.” Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984). In deciding the amount of attorney’s fees to award, the court must calculate the lodestar, or “the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984). A reasonable fee is one that is “sufficient to induce a capable attorney to undertake the representation of a meritorious . . . case.” Perdue v. Kenny A., 559 U.S. 542, 552 (2010). According to the Supreme Court, “the lodestar method yields a fee that is presumptively sufficient to achieve this objective.” Id.

Historically, courts have assessed the reasonableness of fee petitions by considering the following “Johnson factors”:

(1) the time and labor required in the case, (2) the novelty and difficulty of the questions presented, (3) the skill required to perform the necessary legal services, (4) the preclusion of other employment by the lawyer due to acceptance of the case, (5) the customary fee for similar work, (6) the contingency of a fee, (7) the time pressures imposed in the case, (8) the award involved and the results obtained, (9) the experience, reputation, and ability of the lawyer, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship between the lawyer and the client, and (12) the fee awards made in similar cases.

In re Abrams & Abrams, P.A., 605 F.3d 238, 244 (4th Cir. 2010) (citation omitted). The Supreme Court in 2010 expressed some doubt as to the reliability of this approach, see Perdue, 559 U.S. at 550–51, but the Fourth Circuit has indicated that the Johnson factors may properly be used to “inform” and sometimes “adjust” the calculation of the lodestar number. See McAfee v. Boczar, 738 F.3d 81, 89 (4th Cir. 2013). Thus, the court considers the Johnson factors “in conjunction with the lodestar methodology” and, “to the extent that any of these factors already has been incorporated into the lodestar analysis, [it does] not consider that factor a second time.” E. Associated Coal Corp. v. Dir., Office of Workers’ Compensation Programs, 724 F.3d 561, 570 & n.5 (4th Cir. 2013).

As a preliminary matter, the court notes that the defendants do not challenge plaintiffs’ counsel’s proposed hourly rates. Counsel for the plaintiffs request the following hourly rates: (1) $300.00 for Hoffman; (2) $400.00 for attorney Bradford W. Warbasse; (3) $400.00 for attorney Stephen J. Springer; and (4) $325.00 for attorney James Edward Rubin. They also seek reimbursement at $115.00 per hour for law clerk Liz Shen’s time, reimbursement at $100.00 per hour for legal assistant Ryan Cohen’s time, and reimbursement at $100.00 per hour for paralegal Cheryl Dunaway’s time. The proposed hourly rates generally represent the upper end of the accepted rates for lawyers and law clerks with comparable experience. See Local R., App. B: Rules and Guidelines for Determining Attorneys’ Fees in Certain Cases. Moreover, the rates are consistent with hourly rates previously awarded by the court. See Nelson v. A & H Motors, Inc., No. JKS-12-2288, 2013 WL 388991, at *2 (D. Md. Jan. 30, 2013) (awarding Hoffman an hourly rate of $300.00); Durham v. Jones, No. WMN-10-2534, 2012 WL 3985224, at *9 (D. Md. Sept. 10, 2012) (same); Spencer v. Cent. Servs., LLC, No. CCB-10-3469, 2012 WL 142978, at *4 (D. Md. Jan. 13, 2012) (same); see also Chapman v. Ourisman Chevrolet Co., Inc., No. AW-08-2545, 2011 WL 2651867, at *14, *16 (D. Md. July 1, 2011) (awarding Hoffman and Warbasse their customary hourly rates of $300.00 and $400.00, respectively).[5] Thus, the court accepts the proposed hourly rates in this case as reasonable, and shall apply them in calculating the lodestar.[6]


The defendants put forth seven arguments as to why hours not reasonably expended must be deducted from the lodestar calculation. The court will respond to each in turn.


The defendants challenge the number of hours plaintiffs’ counsel dedicated to written discovery responses as well as the total number of hours dedicated to discovery. (See Defs.’ Opp’n, ECF No. 217, at 18.) According to the defendants, plaintiffs’ counsel claim approximately 280 billable hours on written discovery responses. Plaintiffs’ counsel dispute this characterization of their time, asserting that they claim “approximately 150 hours of attorney/legal assistant time . . . which was spent gathering information from Plaintiffs, answering individualized inquiries, and responding to the individualized discovery.” (Pls.’ Reply, ECF No. 219, at 7.)

The court need not decide how many hours plaintiffs’ counsel specifically dedicated to written discovery responses, because it finds a reduction of the total hours spent on discovery is warranted. Having awarded the upper end of accepted hourly rates, the court expects counsel and their legal assistant to have worked efficiently, in a manner that reflects their substantial experience. The written discovery responses were substantially similar for each plaintiff, and relatively few depositions were taken. The court will reduce plaintiffs’ counsel’s fees for “written discovery” and “depositions” by approximately 20%, so that Hoffman’s fee will be reduced by 27.4 hours (see Hoffman’s Time Sheet, ECF No. 215-5, at 28, 31), Warbasse’s by 30.4 hours (Warbasse’s Time Sheet, ECF No. 215-7, at 11–12), Springer’s by 1.5 hours (see Springer’s Time Sheet, ECF No. 216-1, at 5), Rubin’s by 0.6 hours (Rubin’s Time Sheet, ECF No. 215-13, at 1–3), and Cohen’s by 29.6 hours (Cohen’s Time Sheet, ECF No. 215-15, at 7).


The defendants argue that plaintiffs’ counsel may not obtain fees for discovery activities taking place during the thirty-day period beginning November 1, 2012. According to the defendants, the parties agreed to a thirty-day stay of discovery, but plaintiffs’ counsel assert that no such stay existed. Plaintiffs’ counsel are correct that the parties did not make a formal request for a stay, nor was a stay entered on the court’s docket. By contrast, on previous occasions, the parties noted their agreement to stay proceedings in status reports submitted to the court, (see Defs.’ Status Report, ECF No. 102; Defs.’ Status Report, ECF No. 104), or filed a joint request for a stay. (See Joint Request for Stay, ECF No. 205.)

Furthermore, upon reviewing the emails submitted by both sides, the court agrees with plaintiffs’ counsel that the parties did not informally agree to stay proceedings. Hoffman’s November 1, 2012, email put in writing his understanding of a previous conversation with defense counsel, requesting that they “let [him] know if [he has] left anything out of this framework, or confirm that [they] are all on the same page.” (Hoffman Nov. 1, 2012, Email, ECF No. 219-5, at 1.) In essence, his email was an offer to enter into a stay. The next day, Warbasse wrote to defense counsel, again requesting “written confirmation” that they agree to the terms contained in Hoffman’s November 1, 2012, email. (Warbasse Nov. 2, 2012, Email, ECF No. 219-6, at 1.) Defense lawyer Ronald W. Taylor indicated he would reject the terms outlined in Hoffman’s email, responding that “there are some points that are not correct and/or need to be discussed.” (Taylor Nov. 2, 2012, Email, ECF No. 219-7, at 1.) Finally, later that day, Taylor wrote to plaintiffs’ counsel outlining different terms from those contained in Hoffman’s email. (Taylor, Nov. 2, 2012, Email, ECF No. 219-9, at 1.) When Taylor proposed different terms, he effectively rejected the offer to enter into a stay and provided plaintiffs’ counsel with a new offer. Hoffman unequivocally rejected Taylor’s counteroffer in a November 7, 2012, email. (Hoffman Nov. 7, 2012, Email, ECF No. 219-10, at 1.) Accordingly, the court will not reduce plaintiffs’ counsel’s hours based on the alleged stay.

The defendants also ask the court to deny the request for attorneys’ fees and costs stemming from plaintiff Susan Clasen’s bankruptcy case, which was initiated during the alleged stay. Plaintiffs’ counsel seek compensation of $1, 097.65 for attorney Lori Simpson’s time as a cost, not an attorney’s fee. They also request fees for their own time spent pursuing Clasen’s bankruptcy case. Plantiffs’ counsel explain that they retained attorney Simpson to reopen Clasen’s bankruptcy case; they believed Simpson’s assistance was necessary to ensure the bankruptcy proceedings did not prevent Clasen’s participation in the FLSA lawsuit. According to the defendants, “Plaintiffs’ decision to incur additional expenses by pursuing a bankruptcy claim and contacting a bankruptcy lawyer should not fall on Defendants as this case arose under the FLSA.” (Defs.’ Opp’n at 9.) The court must agree with the defendants. Clasen’s bankruptcy case was a separate, personal issue for which she was responsible. Therefore, plaintiffs’ counsel may not recover the $1, 097.65 claimed for Simpson’s services.[7] The court also will reduce plaintiffs’ counsel’s hours for the time spent assisting with Clasen’s bankruptcy case and communicating with bankruptcy counsel. Hoffman’s fee will reduced by 4.4 hours (see Hoffman’s Time Sheet at 11–13, 15), and Springer’s fee will be reduced by 1.3 hours (see Springer’s Time Sheet at 3).


The defendants object to the number of hours dedicated to the plaintiffs’ motion for attorneys’ fees as unreasonable and excessive. The parties disagree as to the number of hours spent on the motion for attorneys’ fees; the defendants indicate that plaintiffs’ counsel spent 61 hours on the motion, while plaintiffs’ counsel insist they spent, at most, 41 hours. In particular, according to plaintiffs’ counsel, Hoffman worked on the motion for 34.2 hours, Warbasse for 4.7 hours, and Rubin for 2.1 hours.

Although plaintiffs’ counsel express confusion as to how the defendants arrive at 61 hours, it is clear to the court that they do so by relying on plaintiffs’ counsel’s own time sheets. (See Hoffman’s Time Sheet at 51–52; Warbasse’s Time Sheet at 17–18; Rubin’s Time Sheet at 3.) Their detailed time sheets claim the following hours for the preparation of the fee petition: 54.9 hours for Hoffman, 4.7 hours for Warbasse, and 2.1 hours for Rubin. Now that plaintiffs’ counsel claim only 34.2 hours for ...

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