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Sakala v. Miltmga

United States District Court, D. Maryland

October 31, 2018

Faith Sakala
v.
Bernadette Tembo Miltmga, et al.

          REPORT AND RECOMMENDATION

          Charles B. Day United States Magistrate Judge.

         Pending before the Court is the Motion of Plaintiff Faith Sakala Requesting Attorneys' Fees and Expenses (ECF No. 106) ('-Plaintiffs Motion'7) and the accompanying memorandum in support thereof ("Plaintiffs Memorandum'') (ECF No. 110). Pursuant to 28 U.S.C. § 636, and Local Rule 301, the Honorable Paul W. Grimm referred this matter to the undersigned for the making of a Report and Recommendation concerning the award of attorneys' fees and costs. The Court has reviewed Plaintiffs Motion, as well as Defendants' opposition thereto. No. hearing is deemed necessary. Local Rule 105.6 (D. Md.). For the reasons stated herein, I recommend an award of attorneys' fees to Plaintiff in the amount of $73, 443.34 and costs in the amount of $10, 482.33.

         I. Factual and Procedural Background

         Plaintiff prevailed in a two-day bench trial. Prelim. Order of J., ECF No. 104. Plaintiff is a Zambian national and was employed by Defendants to provide childcare services and other domestic tasks at their home. Pl."s 2nd Am. Compl. ¶¶ 5, 13, ECF No. 10. Defendants are a married couple who were living in Maryland at the time of the events in question. Id. at ¶¶ 6-7.

         Defendant Bemadette Tembo Milunga was an employee of the World Bank. Id. at¶ 6. Plaintiff and Defendant Bernadette Tembo Milunga signed a contract detailing the terms of Plaintiffs employment, including the work schedule, the tasks expected to be performed, the rate of compensation, and the number of sick and vacation days to which Plaintiff was entitled. Id. at ¶¶ 19-20(i). After working for and residing with Defendants for approximately ten (10) months, Plaintiff left Defendants'employment and home. Id. at¶¶2l, 25. Plaintiff eventually filed a complaint with the World Bank alleging Defendants failed to pay her in violation of the World Bank's policies and the contract. Id. at ¶ 29. After an investigation, the World Bank ordered Defendant Bernadette Tembo Milunga pay Plaintiff $14, 140.85 in owed wages. Id. at ¶¶ 30-33.

         Plaintiff commenced this proceeding on March 17, 2016. Pl.'s Compl., ECF No. 1. Among the eight (8) claims she raised were involuntary servitude, slavery and trafficking under the Alien Tort Statute, violations of the Fair Labor Standards Act ("FLSA"), the Maryland Wage and Hour Law ("MWHL"), the Maryland Wage Payment and Collection Law ("MWPCL"), intentional infliction of emotional distress, fraud and unjust enrichment. Pl.'s Compl. ¶¶ 47-80.

         Shortly after the complaint was filed. Plaintiffs attorney withdrew representation due to the fact the Court of Appeals of Maryland indefinitely suspended him from the practice of law. Pl.'s Mot. To Strike Appointment Of Counsel, ECF No. 4. Plaintiff asked the Court for pro bono counsel so she could continue her suit. Mot. To Strike Appearance of Counsel, ECF No. 4. At the Court's request, attorneys with the law firm Saul Ewing Arnstein & Lehr LLP ("the Saul Firm") agreed to provide legal services to Plaintiff pro bono. Order Appointing Counsel, ECF No. 7. Under their representation, Plaintiff filed a Second Amended Complaint that included ten (10) counts spanning from claims under the Trafficking Victims Protection Reauthorization Act ("TVPRA") to breach of contract, to wage and hour claims under federal and state laws. Pl.'s 2nd Am. Compl. ¶¶ 42-110. Just prior to trial, Plaintiff withdrew the TVPRA claims. Stip. of Dismissal of Counts 1-V of Pl.'s 2nd Am. Compl., ECF No. 97.

         At the beginning of the instant proceedings, Defendants were also represented by counsel. However, after filing their Answer to Plaintiffs Second Amended Complaint, Defendants' counsel withdrew representation. Order Granting Joint Mot. To Withdraw as Att'y, ECF No. 47. The Court appointed pro bono standby counsel for the limited purpose of explaining pre-trial requirements to Defendants and answering their questions during the trial. Order Appointing Pro Bono Counsel, ECF No. 80. Defendants conducted the remainder of the litigation pro se, which included discovery, a motion for summary judgment, and a two-day trial.

         Ultimately, Plaintiff prevailed on claims raised under the FLSA, the MWHL, the MWPCL, and for breach of contract. Prelim. Order of J., ECF No. 104. The Court found in favor of Defendant Kaingu Milunga on the claim of unjust enrichment. Id. The Court awarded Plaintiff $29, 970.03 under her MWPCL claim as duplicate damages could not be awarded under all four prevailing claims. Id. at 2. This amount accounted for the payment of $14, 140.85 that Defendants already tendered in response to the findings of the World Bank investigation. Tr. 30:17-31:2, 40:4-6, ECF No. 105. The Court also affirmed that Plaintiff was entitled to seek attorneys' fees. Prelim. Order of J., ECF No. 104.

         Plaintiff now seeks attorney's fees in the amount of $122, 547.50 and costs in the amount of $ 17, 306.00. Pl.'s Mem. 5. In their response to Plaintiffs Motion, Defendants focused on the elements of Plaintiff s underlying claims. Defs.' Resp., ECF No. 109. They also included a recitation of the Court's "Rules and Guidelines for Determining Attorneys' Fees in Certain Cases" and a survey of various decisions discussing American courts' historical averseness to shifting fees. Defs.' Resp. 2-22 (citing App. B, Local Rules [D. Md. 2016] [the "Guidelines"]). Defendants also directed the Court's attention to the fact that Plaintiffs counsel "focused on the Human Trafficking claims" from the outset of this case. Id. at 1. Defendants noted that Plaintiff only withdrew these claims and focused on the wage and hour claims "after the pre-trial conference where [Judge Grimm] emphasized that both parties focus on the hours of work." Id. In support thereof, Defendants cited the quarterly statements Plaintiff submitted to Defendants in compliance with the Guidelines. Defendants provided neither a counter-offer for how much Plaintiff should receive in fees nor did they include copies of these quarterly statements with their response.

         II. Legal Standard

         Courts in the United States follow the "American Rule" when it comes to the award of attorney's fees. In essence, a prevailing party must pay its own attorney's fees unless there is a fee shifting statute or a contractual obligation. See Myers v. Kayhoe, 391 Md. 188 (2006). When a request for attorney's fees is based on a fee shifting statute, the Court will generally follow a "lodestar" approach: the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424');">461 U.S. 424, 433 (1983); Grissom v. Mills Corp., 549 F.3d 313. 320 (4th Cir. 2008). In that regard, federal courts in the Fourth Circuit have followed the precedent from the Fifth Circuit set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Johnson decision requires the Court to consider twelve factors in determining appropriate relief:

(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.

Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978) (superceded by statute with respect to the Truth In Lending Act). After calculating the lodestar amount, the Court must then subtract for labors spent on unsuccessful claims that are unrelated to the successful ones. Randolph v. Powercomm Constr., Inc., 715 Fed.Appx. 227, 230 (4th Cir. 2017). Finally, the Court is to take into account the degree of success obtained and award some percentage of the remaining amount based on that assessment. Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002) (citing Hensley v. Eckerhart, 461 U.S. 424');">461 U.S. 424 [1983]).

         In order to recover for attorney's fees, counsel must submit appropriate materials supporting his or her claim. This typically includes billing records and affidavits regarding the services provided. Since reasonableness is the touchstone for the award of fees, the party seeking the award of fees "must provide 'detailed records' that specify 'the services performed, by whom they were performed, the time expended thereon, and the hourly rate charged.'" Bel Air Plaza Ltd. P'ship v. Ross Dress for Less, Inc., Civ. No. CCB-14-2533, 2016 WL 3440191, at * (D. Md. Jun. 23, 2016) (citing Rauch v. McCall, 134 Md.App. 624, 639 [2000][citation omitted]). When a claim for attorney's fees is filed in the federal court in Maryland, there is an extra layer of complexity arising from the Court's adoption of its Guidelines. The Guidelines address the format for filing the fee request, the recording of time and the submission of quarterly statements. They also provide direction regarding what is compensable and non- compensable time. For the convenience of counsel, these Guidelines list a presumptive range of reasonable hourly rates. Gonzales v. Caron, Civ. A. No. CBD-10-2188, 2001 WL 3886979, at *2 (D. Md. Sept. 2, 2011) ("[G]enerally this Court presumes that a rate is reasonable if it falls within these ranges.").

         Once a fee request is submitted, it becomes the responsibility of the party challenging the request to articulate the areas where an award would be inappropriate. ';[T]he Court will not review any challenged entry in the bill unless the challenging party has identified it specifically and given an adequate explanation for the basis of the challenge." Thompson v. U.S. Dept. of Horn, and Urban Dev., No. Civ. A. MJG-95-309, 2002 WL 31777631, at *10 (D. Md. Nov. 21, 2002). However, in circumstances where there is a pro se defendant the Court may afford some leniency to their arguments challenging a motion for fees. See, e.g., Harrison-Belk v. Rockhaven Cmty. Care Home, C/A No. 3:07-54-CMC, 2008 WL 2952442, at *2 (D.S.C. July 29, 2008), as amended (July 31, 2008), aff'd sub nam. Harrison-Belk v. Barnes, 3 19 Fed.Appx. 277 (4th Cir. 2009) (reviewing an attorney's fees motion under the twelve-factor test even when a pro se defendant's opposition simply stated plaintiff failed to meet the requirements but "provide[d] no discussion or elaboration as to why he believe[d] this is so").

         III. Analysis

         Under the FLSA, a prevailing plaintiff is entitled to reasonable attorney's fees. 29 U.S.C. § 216(b). The MWHL and MWPCL also contain fee-shifting clauses. Md. Code Ann., Lab. & Empl. § 3-427(d)(1)(iii) ("If a court determines that an employee is entitled to recovery in an action under this section, the court shall award to the employee . . . reasonable counsel fees and other costs."); Md. Code Ann., Lab. & Empl. § 3-507(b)(I) C'[T]he court may award the employee an amount not exceeding 3 times the wage, and reasonable counsel fees and other costs.").

         The Fourth Circuit has identified a three step process for assessing fee shifting cases. First, the Court should identify the number of hours reasonably expended and multiply it by a reasonable hourly rate. 'To ascertain what is reasonable in terms of hours expended and the rate charged, the [C]ourt is bound to apply the factors set forth in Johnson v. Georgia Highway Express Inc. Randolph, 715 Fed.Appx. at 230. Next, fees or hours must be subtracted for labors spent on unsuccessful claims that are unrelated to the successful ones. City of Aiken, 278 F.3d at 337. Finally, the Court is to award some percentage of the remaining amount based on the degree of the success obtained. Id.

         A. Lodestar Amount

         i. Reasonable Hourly Rate

         The following section explicitly discusses two of the Johnson factors: factor 5 - "the customary fee for like work;" and, factor 9 - "the experience, reputation and ability of the attorney[s]." Barber, 577 F.2d at 226 n.28.

         Plaintiff has complied with the Guidelines' requirements for formatting her motion for fees. In support of her motion, Plaintiff submitted a memorandum detailing her attorneys' efforts spent prosecuting this case. This included hourly breakdowns of activities for each area of litigation and a declaration by Harriet E. Cooperman, Esq., detailing some of the unique difficulties the attorneys faced while representing Plaintiff. Declaration of Harriet E. Cooperman ("Cooperman Declaration"), ECF No. 110-1. Plaintiffs counsel represents that the quarterly statements of Plaintiff s fees, time spent, and total value of time were provided to Defendants. Cooperman Decl. ¶ 42. Plaintiff now seeks compensation for attorney's fees according to the following rates and hours:

Name

Rate

Hours

Fees

Harriet Cooperman

$475.00

63.5

$30, 162.50

Jordan Rosenfeld

$225.00

253.8

$57, 105.00

Douglas Sampson

$150.00

170.7

$25, 605.00

Morgan Perna

$150.00

61.4

$9, 210.00

Kimberly Crampton

$150.00

3.1

$465.00

Total

1552.5

$122, 547.50

         Ms. Cooperman's declaration sets forth the education, skill, experience and billing rates for the lawyers and paralegal who provided legal services to Plaintiff. Ms. Cooperman is a partner at the Saul Firm with approximately 39 years of experience. Cooperman Decl. ¶¶ 4, 7. She was responsible for the litigation strategy, supervised Plaintiffs litigation team, and attended the pretrial conference. Cooperman Decl. ¶ 14. In her declaration, Ms. Cooperman attests to her credentials as a labor and employment lawyer; these include serving as Chair for various firms' Labor and Employment Groups, serving as the Vice Chair of the Maryland State Higher Education Labor Relations Board, and her significant experience litigating before federal and state courts as well as administrative agencies. Cooperman Decl. ¶¶ 3-8. Ms. Cooperman states she normally charges S660 per hour, but Plaintiff requests an award at a rate of $475.00 per hour. Pl.'s Mem. 10.

         In addition to Ms. Cooperman, the Saul Firm assigned three associates to Plaintiffs case who provided the bulk of the necessary legal services. Cooperman Decl. ¶ 15. The lead trial attorney, Jordan Rosenfeld, has practiced for six (6) years and previously conducted trials in Maryland state courts. Cooperman Decl. ¶ 10. While Mr. Rosenfeld normally bills at $315.00 per hour, Plaintiff seeks reimbursement at a rate of $225.00 per hour. Pl.'s Mem. 10. The two remaining associates, Douglas Sampson and Morgan Perna, each have approximately three (3) years of experience and normally bill at $295.00 and $275.00 per hour respectively. Id. Kimberly Crampton, a paralegal with over twenty years of experience, also assisted in Plaintiffs legal representation. Id. at 4. ...


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