United States District Court, D. Maryland
WILLIAM CONNELLY, UNITED STATES MAGISTRATE JUDGE
21, 2016 Plaintiff Elda Coello (“Plaintiff”)
brought this action against Defendants Ginou, Inc., doing
business as Mosaic Cuisine and Café, and Thierry
Jugnet (hereinafter “Defendants”) alleging unpaid
wages and other damages in violation of the Fair Labor
Standards Act (“FLSA”) and related state
(Maryland) and local (Montgomery County) laws. See
ECF No. 1. On July 27, 2016 the parties filed an Initial
Joint Status Report requesting a temporary “stay [of]
all deadlines, pending the referral of this matter to a
Magistrate Judge for early mediation and the submission of a
post-mediation Joint Status Report by the Parties.” ECF
No. 8 at 1-2. That same day Judge Chuang issued an Order
staying all deadlines in the Scheduling Order. See
ECF No. 9. Additionally, on July 27, 2016, Judge Chuang
referred the case to the undersigned for settlement.
See ECF No. 10.
settlement conference was held approximately three months
later on October 25, 2016. A settlement was reached resolving
all of Plaintiff's claims except the issue of
attorneys' fees. The next day this case was referred to
the undersigned for all further proceedings. See ECF
No. 13. Fifteen days later the parties filed a Joint Motion
for Approval of FLSA Settlement Agreement. See ECF
No. 15. This Agreement specifically excluded Plaintiff's
request for attorneys' fees and costs but permitted
Plaintiff to file a motion. Five days later the undersigned
granted the joint motion to approve settlement agreement.
See ECF No. 16.
before the court and ready for resolution is Plaintiff's
Motion for Attorneys' Fees and Costs (ECF No. 17-2).
Defendants filed an Opposition (ECF No. 19-2) and Plaintiff
filed a Reply (ECF No. 25-2). No hearing is deemed necessary,
see Local Rule 105.6 (D. Md. 2016). For the reasons
stated below, Plaintiff's motion will be granted in part
and denied in part.
proper calculation of an attorney's fee award involves a
three step process. First, the court must ‘determine
the lodestar figure by multiplying the number of reasonable
hours expended times a reasonable rate.” McAfee v.
Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (quoting
Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
243 (4th Cir. 2009)). In assessing reasonableness, the United
States Court of Appeals for the Fourth Circuit has instructed
district courts to consider what are known as the
Johnson factors, which are: (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. Id. at 88 n.5 (citing Barber v.
Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir.
the court must ‘subtract fees for hours spent on
unsuccessful claims related to successful ones.' Finally,
the court should 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). The Fourth Circuit has
noted that a district court's determination of
attorneys' fees should stand unless the district court
abused its discretion by reaching a decision that is
“'clearly wrong' or committing an ‘error
of law.'” Id. at 88 (quoting Brodziak
v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998)).
seeks $66, 460.00 in attorneys' fees and $609.10 as
costs, for a total award of $67, 069.10. See ECF No.
17-2 at 18. Defendants assert, in light of this short-lived,
straightforward case which was not aggressively contested,
and further, in light of the excessive and unnecessary time
generated on this case, as well as the fact that Plaintiff
achieved limited success, a more appropriate award would be
$14, 365.00 in attorneys' fees and $514.10 as costs, for
a total award of $14, 879.10. See ECF No. 19-2 at
22. In her reply Plaintiff asserts the attorneys' fees
and the costs sought are reasonable and should be awarded
and, requests additional fees for preparing her reply,
increasing the award of attorneys' fees to $70, 797.50,
which increases the requested total award to $71, 406.60.
See ECF No. 25-2 at 7.
Reply Plaintiff does not challenge any of these figures.
court would not characterize Plaintiff's case as a
success. She was partially successful . The award of
attorneys' fees will reflect Plaintiff's partial
court begins its analysis with the Lodestar
calculation. “[T]he burden rests with the fee applicant
to establish the reasonableness of a requested rate.”
Robinson, 560 F.3d 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 seek 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 (emphases added) (internal quotation marks
seeks the following hourly rates for counsel and
Daniel A. Katz (21 years admitted to the bar): $475.00
Lucy B. Bansal (2 years admitted to the bar): $225.00
Matthew Mihalich (4 years admitted to the bar): $225.00
Chauna A. Pervis (3rd year law student): $150.00
Cricelia Calderon (paralegal): $150.00
Wendi Rosales (paralegal): $150.00
See ECF No. 17-5 at 6 (Katz Decl. ¶ 6).
Plaintiff supports her requested hourly rates via
declarations from experienced local counsel who are primarily
familiar with the reputation and skills of Mr. Katz.
See ECF No. 17-6 (Declaration of Andrew D. Freeman,
Esquire), ECF No.17-7 (Declaration of Leizer Z. Goldsmith,
Esquire), ECF No. 17-8 (Declaration of Philip B. Zipin,
challenge the rates as unreasonable. First, each timekeeper
charged the highest rate permitted under the Local Rules
irrespective of experience level. Second, Plaintiff failed to
disclose the experience level of the two paralegals. Third,
counsel for Defendants has represented both plaintiffs and
defendants in FLSA matters. With his 18 years of experience,
he charges $325.00 per hour, a rate he believes is consistent
with the marketplace in Montgomery County. Fourth, Defendants
ask the court to approve no more than the hourly rate awarded
in Butler v. Directsat USA, LLC, Civ. A. No. DKC
10-2747, 2016 U.S. Dist. LEXIS 35632 (D. Md. Mar. 18, 2016),
where Mr. Katz and others from his law firm represented
Plaintiffs in a FLSA matter. See ECF No. 19-2 at
Reply Plaintiff rejects Defendants' assertions and notes
her requested hourly rates “are supported by
declarations from experienced employment law attorneys
regarding the prevailing market rate for similar work done
within the district.” ECF No. 25-2 at 6. Further,
Plaintiff asserts Butler is distinguishable because
the majority of the work done in that case “occurred
before the Court's upward revision of Appendix B rates,
at a time when Mr. Katz's Appendix B rate was
$275-$400.” Id. at 7.
court has reviewed the declarations of Andrew D. Freeman,
Leizer Z. Goldsmith, and Philip B. Zipin. Mr. Freeman, a
partner with the law firm of Brown, Goldstein & Levy
since 1994, has been admitted to the bar for thirty (30)
years. Mr. Freeman is “familiar with the hourly rates
that other Maryland law firms charge for litigation in the
Baltimore region.” ECF No. 17-6 at 3 (Freeman Dec.
¶ 6). According to Mr. Freeman, Mr. Katz's law firm
(Gary M. Gilbert & Associates, P.C.) is considered
“among the foremost employment law firms in the
region.” Id. at 4 (Freeman Decl. ¶ 7)(.
Mr. Freeman attests “that Mr. Katz enjoys a national
reputation as a skilled employment law advocate. He is widely
known as one of the most experienced wage and hour litigators
in the Washington-Baltimore metropolitan area.”
Id. Considering Mr. Katz's 20 plus years of
extensive litigation experience, if he worked for Brown,
Goldstein & Levy, Mr. Freeman opines the law firm would
charge an hourly rate of at least $500 to $525 for Mr.
Katz's services. Id. at 5 (Freeman Decl. ¶
Goldsmith, the principal of Goldsmith Law Firm, LLC, has been
admitted to the bar for twenty-eight (28) years. Mr.
Goldsmith charges an hourly fee similar to the fees outlined
in the Laffey Matrix, established by the United States
District Court for the District of Columbia. See ECF
No. 17-7 at 3 (Goldsmith Decl. ¶ 10). According to Mr.
Goldsmith Mr. Katz's law firm is regarded as one of the
outstanding plaintiffs' employment firms in the area.
Id. (Goldsmith Decl. ¶ 12). “Throughout
the Washington, D.C.-Baltimore, Maryland area, Mr. Katz is
well known as one of the few private practitioners willing to
consistently represent low wage immigrant workers who present
claims for unpaid wages.” Id. at 4 (Goldsmith
Decl. ¶ 15). Mr. Goldsmith reviewed the Condensed Fee
Summary generated by Mr. Katz's law firm for
Plaintiff's case. Mr. Goldsmith opined the amount of fees
is reasonable considering the nature of this case.
Zipin, a partner with Zipin, Amster & Greenberg, LLC in
Silver Spring, Maryland, has been admitted to the bar for
thirty-four (34) years. “Because I practice regularly
before the U.S. District Court of Maryland and mostly
practice under fee shifting statutes involving the
non-payment of wages, misclassification, or failure to pay
minimum wage, I keep my rates constrained within the limits
specified in Appendix B to the Local Rules for the District
of Maryland, which governs hourly rates for fee shifting
cases throughout the state, not just in metropolitan
Washington, DC.” ECF No. 17-8 at 2 (Zipin Decl. ¶
2). Mr. Zipin's hourly rate is $475.00. Mr. Zipin opines
the law firm of Gary M. Gilbert & Associates is among the
foremost employment law firms in the region. Id. at
3 (Zipin Decl. ¶ 4). Mr. Katz is nationally recognized
as a skilled employment law advocate. Id. (Zipin
Decl. ¶ 5). He is one of the few Spanish speaking
attorneys to handle wage and hour cases on behalf of low wage
workers. Id. at 4 (Zipin Decl. ¶ 6). Having
reviewed the law firm's billing record generated for this
case, Mr. Zipin opines the fee is reasonable in light of the
nature of the case, the juncture when the case settled, and
Defendants contesting that Plaintiff was owed any wages.
considering these declarations the court finds Mr.
Zipin's declaration most relevant regarding the hourly
rate Mr. Katz seeks. Mr. Freeman's declaration reflects
his knowledge about the hourly rate in the Baltimore
region. On the other hand, Mr. Goldsmith's declaration
shows the basis for his hourly rate is linked to the Laffey
Matrix, established by the United States Attorney for the
District of Columbia, and utilized by the United States
District Court for the District of Columbia in fee
shifting litigation. Mr. Zipin, however, keeps his rate
constrained within the limits specified in Appendix B to the
Local Rules for the United States District Court for the
District of Maryland, the relevant community for this motion
for attorneys' fees.
Zipin, admitted to the bar for thirty-four (34) years, would
petition the court for fees at the highest rate, $475.00 per
hour. Mr. Katz, who has been admitted to the bar for
twenty-one (21) years, thirteen years fewer than Mr. Zipin,
petitions for the identical hourly rate. The guideline in
Appendix B provides a range of $300-$475 for lawyers admitted
to the bar for twenty (20) years or more. The court does not
automatically assign a lower rate to attorneys admitted to
the bar for 20 years or assign a higher rate to attorneys
admitted to the bar for thirty-five (35) years. The court
also considers an attorney's experience, reputation, and
ability. Based on the declarations of Messrs. Freeman,
Goldsmith, and Zipin, Mr. Katz is highly regarded, both
regionally and nationally, as an employment law advocate. He
is a Senior Counsel/Partner at his law firm. His firm has
represented both plaintiffs and defendants in employment law
matters. Considering Mr. Katz's experience, ability,
reputation, and years admitted to the bar, the court finds
the hourly rate of $425.00 to be reasonable. See
Manna v. Johnny's Pizza, Inc., Civ. No. CCB-13-721,
2014 U.S. Dist. LEXIS 24085, at *8 (D. Md. Feb. 25, 2014).
Mr. Katz there is a very limited to no information about the
remaining attorneys and staff assigned to Plaintiff's
case. Because the burden is on Plaintiff to establish the
reasonableness of the requested fees and Plaintiff has failed
to support the requested rates with sufficient information,
the court adjusts the hourly rates as follows:
Lucy B. Bansal, Esq: $195.00
Matthew Mihalich, Esq. $215.00
Chauna A. Pervis $100.00
Cricelia Calderon $100.00
Wendi Rosales $100.00
Reasonable Hours Worked
contends the hours generated by her legal team were
reasonable. Nonetheless, in the exercise of billing judgment,
Mr. Katz, Plaintiff's lead counsel, has voluntarily
reduced the requested fee by 16.9% of the actual time spent
on this litigation, which equates to 15.6% deduction of the
fees incurred in litigating this action. See ECF
17-2 at 6. Despite Plaintiff's voluntary deduction
Defendants urge the court to determine the reasonableness of
the hours claimed. “[T]he parties agreed to engage in
very limited written discovery in hopes of keeping the
litigation costs to a minimum. Yet, the number of hours that
[the Law Offices of Gary M. Gilbert & Associates P.C.
(“GMGA”)] has amassed during this very
short-lived case is ...