United States District Court, D. Maryland
REPORT AND RECOMMENDATION
CHARLES B. DAY UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff Santos Gabriel Matias
Guerra's Motion for Attorneys' Fees
(“Plaintiff's Motion”), ECF No. 95. Pursuant
to 28 U.S.C. § 636, and Local Rule 301, the Honorable
Theodore D. Chuang referred this matter to the undersigned
for the making of a Report and Recommendation concerning the
award of attorneys' fees and costs. To date, no
opposition has been filed. The Court has reviewed
Plaintiff's Motion, the accompanying memorandum, and the
applicable law. No. hearing is deemed necessary. Loc. R.
105.6 (D. Md.). For the reasons stated herein, I recommend an
award of attorneys' fees to Plaintiff in the amount of
$138, 037.78 and costs in the amount of $9, 162.73.
Factual and Procedural Background
Plaintiff prevailed in the underlying proceeding after a
three-day bench trial. Order of J. (Jan. 25, 2019), ECF No.
94. Plaintiff was employed by Defendant between 2011 and
2015. Trial J. Mem. Op. 2, 7 (Jan. 25, 2019), ECF No. 93.
Defendant owns Twicegood Drapery Experts
(“Twicegood”), a company that “contracts
with drapery and window blinds manufacturers to install their
products at commercial properties across the mid-Atlantic
region.” Id. Plaintiff worked for Defendant
installing drapery. Id. Defendant claimed that
Plaintiff was an independent contractor. Id. at 7.
Although Plaintiff signed a contract with Defendant stating
that Plaintiff was an independent contractor, Plaintiff
understood little English and the contract was never
explained to him. Id. at 6-7. Defendant paid
Plaintiff hourly for his work, assigned jobs to Plaintiff,
provided additional instruction and guidance based on a
particular job, set deadlines for the work to be completed,
and checked in on Plaintiff when he was at a worksite.
Id. at 2-3. Defendant also required Plaintiff send
him a job report after he completed each job. Id. at
3-4. Plaintiff's uniform, identification badge, and
equipment were all provided by Defendant and/or bore
Twicegood's logo on them. Id. at 4.
Additionally, Defendant paid Plaintiff by direct deposit
twice a month into his bank account at hourly rates of
between $12.00 and $16.50. Id. at 5-6. Plaintiff
never received paystubs for his payment. Id. at 6.
Plaintiff also regularly worked more than 40 hours a week but
was never paid overtime. Id.
commenced this proceeding in Circuit Court for Montgomery
County, Maryland, on December 10, 2015. See Notice
of Removal, ECF No. 1. On March 3, 2016, Defendant removed
the action to this Court pursuant to 28 U.S.C. §§
1441, et seq. Id. Among the claims Plaintiff raised
were failure to pay overtime wages under the Fair Labor
Standards Act (“FLSA”) and the Maryland Wage and Hour Law
(“MWHL”). Pl.'s Compl. ¶¶ 18-31, ECF
No. 2. Plaintiff also claimed unpaid wages under the Maryland
Wage Payment and Collection Law
(“MWPCL”). Id. at ¶¶ 32-37. On
March 18, 2016, Plaintiff filed an Amended Complaint and
added claims under the Maryland Workplace Fraud Act
(“MWFA”). Plaintiff claimed Defendant misclassified
him as an independent contractor and unlawfully issued him an
Internal Revenue Service (“IRS”) Form 1099
(“1099”) rather than an IRS Form W-2
(“W-2”), in violation 26 U.S.C. § 7434.
Pl.'s Am. Compl. ¶¶ 38-50, ECF No. 11.
April 28, 2016, Defendant filed a Motion to Dismiss for
Failure to State a Claim or, in the Alternative, for Summary
Judgment. ECF No. 19. A hearing was held on November 9, 2016.
ECF No. 27. The next day, Judge Chuang issued an order
denying Defendant's motion. ECF No. 28. In the fall of
2017, after discovery was completed, the parties filed
cross-motions for summary judgment. ECF Nos. 60, 64. On
August 8, 2018, Judge Chuang issued an order granting in part
and denying in part Defendant's Motion for Summary
Judgment and denying in full Plaintiff's Motion for
Summary Judgment. ECF No. 69. In his opinion, Judge Chuang
granted Defendant's Motion for Summary Judgment on
Plaintiff's claim under a theory based on 26 U.S.C.
§ 7434. Mem. Op. Regarding Parties Cross-Mots. for Summ.
J. (“Summ. J. Mem. Op.”) 17-18, ECF No. 68. The
case was then set for trial to commence on December 10, 2018.
ECF No. 71.
trial, Plaintiff advanced claims for: (1) unpaid overtime
under the FLSA; (2) unpaid overtime under the MWHL; (3)
unpaid wages under the MWPCL; and (4) associated damages
under MWFA. Trial J. Mem. Op. 9. After three days of
testimony, Plaintiff prevailed on all four claims. Order of
J., ECF No. 94. Judge Chuang found that Plaintiff was an
employee of Defendant and not an independent contractor.
Id. at 24, 25. Ultimately, Judge Chuang awarded
Plaintiff actual overtime compensation that he was due for
the weeks he worked over 40 hours, damages for all deductions
Defendant took for worker's compensation insurance and
tools and equipment, and mandatory double damages under the
FLSA or MWHL. Trial J. Mem. Op. 31- 35. The amounts awarded
were limited to the period between December 10, 2012 and
September 14, 2015. Id. at 39-40. The parties were
then ordered to jointly submit to the Court a calculation of
damages based on the Court's detailed instructions.
March 4, 2019, the parties filed a joint calculation of
damages totaling $44, 302.50. Joint Calculation of Pl.'s
Damages (“Joint Calculation”), ECF No. 108. The
Court then entered judgment in favor of Plaintiff for that
amount. ECF No. 109.
now seeks attorney's fees in the amount of $149, 839.00
and costs in the amount of $9, 162.73. Mem. in Supp. of
Pl.'s Mot. for Att'ys' Fees (“Pl.'s
Mem.”) 4, 10, ECF No. 111. Defendant has filed no
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, 207-08
(2006). “To properly calculate an attorney's fees
award, courts undertake a three-step process: (1) determine a
lodestar figure; (2) subtract fees for hours spent on
unsuccessful claims unrelated to successful ones; and (3)
evaluate the degree of success of the plaintiffs.”
Randolph v. PowerComm Constr., Inc., No. 18-1728,
2019 WL 3072555, at *4 (4th Cir. July 11, 2019) (per curium).
In order to recover for attorney's fees, counsel must
submit appropriate materials supporting his or her claim.
This typically includes time 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 *1 (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 Rules and
Guidelines for Determining Attorneys' Fees in Certain
Cases (the “Guidelines”). Loc. R., App. B (D. Md.
Dec. 1, 2018). The Guidelines address the format for filing
the fee request, the details that should be included in time
records, and the requirement for the submission of quarterly
statements. Id. at App. B.1. They also provide
direction regarding what is compensable and non-compensable
time. Id. at App. B.2. For the convenience of
counsel, these Guidelines also list a range of hourly rates
that this Court finds to be presumptively reasonable. See
Id. at App. B.3; see also 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 Hous. 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 Sakala v.
Milunga, Civ. A. No. PWG-16-0790, 2018 WL 5724010, at *4
(D. Md. Oct. 31, 2018); see also, 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 nom.
Harrison-Belk v. Barnes, 319 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”).
the FLSA, a prevailing plaintiff is entitled to reasonable
attorney's fees and costs. 29 U.S.C. § 216(b)
(“The court in such action shall, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a
reasonable attorney's fee to be paid by the defendant,
and costs of the action.”). The MWHL also contains a
mandatory fee-shifting clause. 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.”). In
contrast, the MWPCL and MWFA contain fee-shifting clauses
that permit, but do not require a court to award reasonable
attorneys' fees and costs to a prevailing plaintiff. Md.
Code Ann., Lab. & Empl. § 3-507(b)(1) (“[T]he
court may award the employee an amount not exceeding 3 times
the wage, and reasonable counsel fees and other
costs.”); Md. Code Ann., Lab. & Empl. §
3-911(c)(3) (“[T]he court may award each individual . .
. reasonable counsel fees and other costs of the
action.”). Accordingly, a threshold question for this
Court is whether Plaintiff is a “prevailing
party.” Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). A plaintiff is a “prevailing party”
for the purpose of attorney's fees if the plaintiff
succeeds “on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing
suit.” Id. Here, Plaintiff prevailed on all of
his remaining four claims after a three-day bench trial
before Judge Chuang. Order of J., ECF No. 94. As a result,
Plaintiff recovered $44, 302.50 in damages. ECF No. 109.
Therefore, Plaintiff is a “prevailing party”
entitled to attorney's fees under the aforementioned
statutes. See Hensley, 461 U.S. at 433.
Plaintiff may be entitled to attorney's fees, the
reasonableness of the award is left to the sound judgment of
the Court. As previously discussed, the Fourth Circuit has
identified a three-step process to use when assessing fee
shifting cases. Defendant has not submitted an opposition to
Plaintiff's Motion. While ordinarily this would mean
there is little left for the Court to do other than review
Plaintiff's Motion for reasonableness, the fact that
Defendant is currently representing himself pro se
compels the Court to give Plaintiff's Motion a more
thorough review. See Harrison-Belk, 2008 WL 2952442,
“lodestar figure is the “number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Hensley, 461 U.S. at
433; Grissom v. Mills Corp., 549 F.3d 313, 320 (4th
Cir. 2008). When determining what is reasonable, 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, 461 U.S. 424).
Reasonable Hourly Rate 
seeks compensation for attorney's fees according to the
Years of Experience
J. Barrett Kelly
Jason D. Friedman
Anthony G. Bizien
K. Amster Declaration (“Amster Declaration”)
¶¶ 1, 3-8 (Mar. 15, 2019), Pl.'s Mem., ECF No.
111-1, Ex. 1; Declaration of Mariusz Kurzyna (“Kurzyna
Declaration”) ¶¶ 2, 12 (Mar. 15, 2019),
Pl.'s Mem., ECF No. 111-2, Ex. 2. In support of his
request, Plaintiff submitted the Amster and Kurzyna
Declarations, which set forth the education, skill,
experience, and billing rates for the lawyers and paralegals
who provided legal services to Plaintiff. Id.
K. Amster is a named partner at Zipin, Amster and Greeberg,
LLC (“Zipin Firm”), and was the
attorney-in-charge of Plaintiff's case from the outset of
the representation through the decision on the parties'
cross-motions for summary judgment. Amster Decl. ¶¶
1-2, 15. Mr. Amster has approximately 10 years of legal
experience. Id. at ¶ 1. Plaintiff seeks
reimbursement for Mr. Amster's time at a rate of $350.00
per hour. Id. This is at the high end of the range
of the Guidelines for someone with Mr. Amster's years of
experience. See Loc. R., App. B.3(c) (stating the
range of rates for attorneys with between 9 and 15 years of
experience is between $225.00 and $350.00 per hour). However,
given Mr. Amster's role as the attorney-in-charge of this
matter, the Court finds this amount to be reasonable.
Kurzyna is a senior counsel with Zipin Firm and has been the
attorney-in-charge of Plaintiff's case from the decision
on the parties' cross-motions for summary judgment to
present. Kurzyna Decl. ¶¶ 7, 13. The bulk of Mr.
Kurzyna's practice has been focused on wage and hour
cases and that he has at least fourteen years of experience.
See Id. at ¶¶ 2, 10. Mr. Kurzyna states
that he has litigated over thirty wage and hour cases.
Id. at ¶¶ 10-11. Plaintiff seeks
reimbursement for Mr. Kurzyna's time at a rate of $350.00
per hour. Id. at ¶ 12. As this is within the
range of the Guidelines for someone with Mr. Kurzyna's
years of experience, and in light of Mr. Kurzyna's role
in the case and years of experience, the Court finds this
rate to be reasonable. Loc. R., App. B.3(c).
Barrett Kelly is an associate at Zipin Firm whose date of
admission to the bar was not provided in the filings. Amster
Decl. ¶ 3. However, the Court notes that Mr. Kelly
graduated from law school in 2012 and therefore appears to
have between 4 and 6 years of experience. Id. The
Court also notes that the requested rate of $275.00 per hour
falls within the Guideline's range for someone with
between 5 and 8 years of experience. Loc. R., App. B.3(b)
(stating the range of rates for attorneys with between 5 and
8 years of experience is between $165.00 and $300.00 per
hour). It also overlaps with the Guideline's range for
attorneys with less than 5 years of experience. Id.
at App. ...