United States District Court, D. Maryland
REPORT AND RECOMMENDATION
Charles B. Day United States Magistrate Judge.
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.
Factual and Procedural Background
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.
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.
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.
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.
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
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.
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.
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
(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 ).
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
[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
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
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.").
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.
Reasonable Hourly Rate
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.
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:
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.
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. ...