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Matias Guerra v. Teixeira

United States District Court, D. Maryland

August 20, 2019

SANTOS GABRIEL MATIAS GUERRA, Plaintiff,
v.
MARCO TEIXEIRA, Defendant. Name Role Years of Experience Rate Name Role Years of Experience Rate Name Hours Rate Total Name Hours Rate Total

          REPORT AND RECOMMENDATION

          CHARLES B. DAY UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         I. 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.

         Plaintiff 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”)[1] and the Maryland Wage and Hour Law (“MWHL”).[2] Pl.'s Compl. ¶¶ 18-31, ECF No. 2. Plaintiff also claimed unpaid wages under the Maryland Wage Payment and Collection Law (“MWPCL”).[3] Id. at ¶¶ 32-37. On March 18, 2016, Plaintiff filed an Amended Complaint and added claims under the Maryland Workplace Fraud Act (“MWFA”).[4] 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.

         On 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.

         At 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. Id.

         On 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.

         Plaintiff 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 opposition.[5]

         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, 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 ranges.”).[6]

         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 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”).

         III. Analysis

         Under 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.

         While 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, at *2.

         A. Lodestar Amount

         The “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).

         i. Reasonable Hourly Rate [7]

         Plaintiff seeks compensation for attorney's fees according to the following rates:

Name
Role
Years of Experience
Rate

Michael Amster

Attorney (Lead)

~10

$350.00

Mariusz Kurzyna

Attorney (Lead)

~14

$350.00

J. Barrett Kelly

Attorney

4-6

$275.00

Jason D. Friedman

Attorney

< 5

$275.00

Roy Lyford-Pike

Attorney

< 5

$225.00

Anthony G. Bizien

Attorney

< 5

$225.00

Milton Segarra

Attorney

~3

$205.00

Ariel Anzora

Paralegal

Unspecified

$135.00

Michelle Patino

Paralegal

Unspecified

$135.00

Keron Cruz

Paralegal

Unspecified

$135.00

Vanessa Zelaya

Paralegal

Unspecified

$135.00

Crystal Avalos

Paralegal

Unspecified

$135.00

         Michael 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.

         Michael 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.

         Mariusz 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).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;J. Barrett Kelly is an associate at Zipin Firm whose date of admission to the bar was not provided in the filings. Amster Decl. &para; 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&#39;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&#39;s range for attorneys with less than 5 years of experience. Id. at App. ...


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