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McFadden v. L&J Waste Recycling, LLC

United States District Court, D. Maryland

September 20, 2017

ALPHONSO MCFADDEN, Plaintiff,
v.
L&J WASTE RECYCLING, LLC, et al. Defendants.

          MEMORANDUM

          Ellen Lipton Hollander, United States District Judge.

         This Memorandum resolves the motion for attorney's fees and costs (ECF 35) filed by plaintiff Alphonso McFadden. It is supported by a memorandum of law (ECF 36-1) (collectively, “Motion”) and several exhibits.

         The Motion follows the entry of default judgment on July 14, 2017, in favor of McFadden and against defendants L&J Waste Recycling, LLC (“L&J”); Lenzie M. Johnson, III (“Johnson III”); and Lenzie M. Johnson, Jr. (“Johnson Jr.”). See ECF 34. The judgment is rooted in plaitniff's uncontested claims that defendants violated of the Fair Labor Standards Act (“FLSA”), as amended, 29 U.S.C. §§ 201, et seq.; the Maryland Wage and Hour Law (“MWHL”), as amended, Md. Code (2016 Repl. Vol.), § 3-401 et seq. of the Labor and Employment Article (“L.E.”); and the Maryland Wage Payment and Collection Law (“MWPCL”), as amended, L.E. § 3-501 et seq. ECF 1. In particular, plaintiff complained that he was not paid time and a half for hours worked in excess of 40 hours a week during the period of his employment, from October 28, 2014 to January 14, 2016. Id. ¶¶ 21-23; ECF 32-2 (McFadden Affidavit), ¶ 4.

         Defendants have not responded to the Motion, and the time to do so has expired. No hearing is necessary to resolve the Motion. See Local Rule 105.6.

         I. Factual Background[1]

         Plaintiff filed suit on August 2, 2016. ECF 1. Through counsel, Johnson III and L&J moved to dismiss, or in the alternative, for summary judgment. ECF 5. Similarly, through counsel, Johnson Jr. also moved to dismiss, or in the alternative, for summary judgment. ECF 7. By Memorandum (ECF 19) and Order (ECF 20) of January 10, 2017, I denied both motions. In my Order, I directed defendants to answer the Complaint on or before January 31, 2017. ECF 20. However, on January 27, 2017, counsel for defendants moved to withdraw from the case. ECF 21. Because the motion reflected compliance with Local Rules 101.2(a) and 101.2(b), I granted the motion to withdraw by Order of the same date. ECF 22.

         Defendants were notified of the implications of counsel's withdrawal. ECF 24; ECF 25; see also Local Rule 101.1(a); 101.2(b). And, L&J, a limited liability company, was granted until March 13, 2017, to obtain counsel. ECF 25. Further, I directed all defendants to answer the Complaint by that date. Id. at 2.

         By March 27, 2017, no lawyer had entered an appearance for L&J, nor had defendants answered the Complaint. Therefore, on that date, I directed plaintiff to file a motion for clerk's entry of default as to each defendant, pursuant to Fed.R.Civ.P. 55(a), or show cause why such action was not appropriate. ECF 26. Plaintiff filed a Motion for Entry of Default as to all defendants on April 10, 2017. ECF 27. And, on April 20, 2017, the Clerk entered an order of default as to all defendants. ECF 29.

         Thereafter, plaintiff filed a motion for default judgment (ECF 32), supported by several exhibits. ECF 32-1 through ECF 32-6. No opposition was filed. As set forth in my Memorandum Opinion (ECF 33) and Order (ECF 34) of July 14, 2017, I granted the motion for default judgment as to liability and awarded statutory damages of $9, 450.00. However, I deferred entry of an order awarding attorney's fees and costs, pending the submission of a proper motion for such fees.[2] The Motion followed. ECF 35. It is supported, inter alia, by a Declaration from plaintiff's attorney, George Swegman, Esquire (ECF 35-4) and a billing statement. ECF 35-2.

         Swegman avers that he graduated from law school in 1975 and was admitted to the Pennsylvania bar that same year. Id. ¶ 4. He was admitted to the Maryland Bar in 2009. Based on counsel's experience, he seeks compensation at a rate of $400 per hour. ECF 35-4, ¶ 4; ECF 35-1 at 9. The time for paralegals and the law clerk was billed at the rate of $150 per hour. ECF 35-1 at 9; ECF 35-2. The rates comport with the fee schedule in Appendix B to the Local Rules, titled “Rules and Guidelines For Determining Attorneys' Fees In Certain Cases.” Further, plaintiff's counsel avers that he reviewed and audited the billing statements for this case. Id. ¶ 9; see also ECF 35-2. Notably, he represents that he has “removed from the billing statement” all “time for any unnecessary work . . . .” ECF 35-4, ¶ 9. In his view, this amounted to 8.65 hours of time, valued at $3, 459.34.

         In support of the Motion, plaintiff has also submitted the Declaration of Richard Neuworth, Esquire, an experienced practitioner in the field of employment law. ECF 35-5. He avers that the rates requested by plaintiff “are very reasonable and are within the market rates for employment litigation in the Baltimore metropolitan area.” Id. ¶ 9. Notably, Neuworth offers no opinion on the necessity or quality of the legal services rendered in this case. However, he avers that plaintiff's attorney is regarded as an “effective advocate[]” with a reputation as a “highly skilled” lawyer. Id. ¶ 7.

         In sum, plaintiff seeks an award for 95.55 hours of work, inclusive of work by counsel, paralegals, and a law clerk. Id. That corresponds to a fee request in the amount of $23, 663.66. In addition, plaintiff seeks an award of costs in the sum of $700.

         II. Discussion

         Pursuant to 29 U.S.C. § 216(b), the court shall “allow a reasonable attorney's fee” as well as “costs of the action.” See also L.E. § 3-427(d). In an FLSA action, the “[p]ayment of costs to a prevailing plaintiff is mandatory. . . .” Lopez v. Lawns ‘R' Us, DKC-07-2979, 2008 WL 2227353, at *7 (D. Md. May 23, 2008); see also Burnley v. Short, 730 F.2d 136, 141 ...


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