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Coello v. Ginou, Inc.

United States District Court, D. Maryland

March 29, 2017

ELDA COELLO Plaintiff,



         On June 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.

         A 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.

         Pending 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.

         Standard of Review

         “The 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. 1978)).

         “Next, 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)).


         Plaintiff 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.

         In her Reply Plaintiff does not challenge any of these figures.

         The court would not characterize Plaintiff's case as a success. She was partially successful . The award of attorneys' fees will reflect Plaintiff's partial success.

         A. Lodestar Calculation

         1. Hourly Rate

         The 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 omitted).

         Plaintiff seeks the following hourly rates for counsel and paralegals/law clerks:

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, Esquire).

         Defendants 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 7-8.

         In her 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.

         The 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. ¶ 10).

         Mr. 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.

         Mr. 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.

         After 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.

         Mr. 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).

         Unlike Mr. Katz there is a very limited[1] 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

         2. Reasonable Hours Worked

         Plaintiff 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 ...

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