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Manna v. Johnny's Pizza, Inc.

United States District Court, D. Maryland

February 25, 2014



CATHERINE C. BLAKE, District Judge.

Plaintiffs Carla Manna, Bryan McMillan, and Richard J. Lawrence brought this suit against Johnny's Pizza, Inc. and John Hofman (collectively, "the defendants") for violations of tip credit provisions of the Fair Labor Standards Act of 1938 ("FLSA") and the Maryland Wage and Hour Law. The plaintiffs filed their complaint on March 7, 2013. On April 11, 2013, the defendants made offers of judgment to each of the three plaintiffs; counsel on both sides agree that the offers constituted full relief. The plaintiffs accepted the offers of judgment on April 26, 2013, and on April 29, 2013, the court approved the parties' settlement. The settlement totaled $24, 262.70, of which Manna received $8, 633.78, McMillan received $9, 153.72, and Lawrence received $6, 475.20.

Now pending before the court is the plaintiffs' motion for attorneys' fees and costs pursuant to the FLSA.[1] The plaintiffs seek an award of $20, 343.15 in attorneys' fees and $1, 419.10 in costs.[2] 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 $10, 964.00 and costs in the amount of $341.74 will be awarded.


Successful plaintiffs in FLSA actions are entitled to reasonable attorney's fees and costs. 29 U.S.C. ยง 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 does not agree with the defendants that plaintiffs' counsel are barred from seeking any fees or costs. According to the defendants, the plaintiffs' fee petition must be rejected in its entirety because the motion filed on May 3, 2013, did not "state the amount sought or provide a fair estimate of it." See Fed.R.Civ.P. 54(d)(2)(B). Although the defendants are correct that the plaintiffs' motion did not state the fees and costs sought, their June 6, 2013, supporting memorandum certainly did. Plaintiffs' counsel also shared with the defendants an initial estimate of fees and costs in an April 30, 2013, email, and they attached their raw billing statements to a May 1, 2013, email. ( See Apr. 30, 2013, Email from Woodfield, ECF No. 23-2; see also May 1, 2013, Email from Woodfield, ECF No. 23-3, at 2.)[3] They initially requested $23, 556.25 in fees and $823.99 in costs, and estimated that they would incur an additional $1, 500 to $2, 500 for preparing the fee petition and bill of costs. (Apr. 30, 2013, Email from Woodfield.) The defendants argue that those amounts constituted a "bad faith and excessive demand, " (Defs.' Opp., ECF No. 23, at 8), but plaintiffs' counsel offered to speak with them about the proposed fees and costs in an attempt to resolve this matter without the court's assistance. ( See Apr. 30, 2013, Email from Woodfield.) Moreover, although plaintiffs' counsel ended up requesting fewer fees in their supporting memorandum, the court cannot conclude that their exercise of billing discretion reflects bad faith. Finally, the defendants were not prejudiced by the fact that the estimate was included in an email rather than the May 3, 2013, motion; they received the estimate well within fourteen days after entry of judgment on April 29, 2013. Plaintiffs' counsel, therefore, substantially complied with the requirements of Rule 54(d)(2)(B) by providing a "fair estimate" of their fees and costs.

The court will move on to consider the plaintiffs' fee petition on the merits. The defendants challenge the reasonableness of plaintiffs' counsel's proposed hourly rates, as well as the number of hours claimed. They also challenge plaintiffs' counsel's requested costs.

A. Hourly Rates

The court considers plaintiffs' counsel's proposed hourly rates of (1) $400.00 for attorney R. Scott Oswald, (2) $400.00 for attorney Nicholas Woodfield, and (3) $190.00 for associate attorney Dallas Hammer. They also request reimbursement for law clerk and legal assistant time at $115.00 per hour.[4] The defendants urge the court to apply hourly rates of $350.00 for Woodfield, $325.00 for Oswald, $150.00 for Hammer, and $100.00 for law clerks; they ask the court not to award any fees for legal assistants.

In one of Oswald and Woodfield's previous FLSA cases, the court awarded both of them a $400.00 hourly rate, and compensated associate attorney time at a rate of $190.00 per hour and legal assistant time at a rate of $115.00 per hour. See Young v. Viable Commc'ns, Inc., No. PJM-09-2250, 2011 WL 5825429, at *1 (D. Md. Nov. 14, 2011).[5] Hourly rates, however, were not contested in that case. Id .; see also Landaeta v. Da Vinci's Florist, LLC, No. WGC-10-3247, 2011 WL 5118420, at *1 (D. Md. Oct. 24, 2011) (applying uncontested hourly rates of $400.00 for Oswald and Woodfield and $115.00 for legal assistants and law clerks). In Kabore v. Anchor Staffing, Inc., a more recent FLSA case where rates were contested, the court awarded Oswald an hourly rate of $300.00 and Woodfield an hourly rate of $400.00. No. L-10-3204, 2012 WL 5077636, at *9-10 (D. Md. Oct. 17, 2012). The court in Kabore also compensated associate attorney time at a rate of $190.00 per hour and legal assistant time at a rate of $115.00 per hour. Id.

Here, the court accepts the proposed hourly rates for Woodfield and law clerks and legal assistants. Those hourly rates represent the upper end of accepted rates, and are consistent with rates previously awarded by the court. See Local R., App. B: Rules and Guidelines for Determining Attorneys' Fees in Certain Cases. The court does, however, find a reduction in Oswald's fee to $350.00 is warranted. This revised fee reflects Oswald's substantial experience, while still acknowledging that he has fewer years of experience than Woodfield. The court also will reduce Hammer's fee to $150.00 per hour. The court agrees with the defendants that, because plaintiffs' counsel fail to provide any information as to his credentials, they do not satisfy their burden of showing he is entitled to the upper end of accepted rates. See CoStar Group, Inc. v. LoopNet, Inc., 106 F.Supp.2d ...

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