Cruz v. Space NY 50th St. LLC

• Decision Date: 28 August 2019
• Docket Number: 17-CV-4936 (JLC)
• Parties: MOISES CRUZ, et al., Plaintiffs, v. SPACE NY 50TH ST LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

MOISES CRUZ, et al., Plaintiffs, v. SPACE NY 50^TH ST LLC, et al., Defendants.

17-CV-4936 (JLC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 28, 2019

OPINION AND ORDER

JAMES L. COTT, United States Magistrate Judge.

Four plaintiffs filed this action asserting claims under the Fair Labor Standards Act and New York Labor Law. Following a settlement conference, plaintiff Saul Soto resolved his claims for $25,000. Following a bench trial, the Court found that plaintiff Victor Tapia was entitled to damages in the amount of $1,657.91. The other two plaintiffs, Moises Cruz and Juan DeJesus, voluntarily dismissed their claims before trial. Currently before the Court is plaintiffs' motion for attorney's fees and costs. For the following reasons, the Court awards $44,198.38 in fees and $2,440 in costs.

I. BACKGROUND

On June 29, 2017, plaintiffs Saul Soto, Victor Tapia, Moises Cruz, and Juan DeJesus commenced this action seeking to recover monetary damages, including unpaid minimum wages, unpaid overtime wages, unpaid spread-of-hours wages, liquidated damages, damages for statutory violations, interest, and attorney's fees and costs, for defendants' purported violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). Dkt. No. 1, ¶¶ 39-41.

On October 1, 2017, plaintiffs filed a request to enter default against defendants for failure to answer the complaint. Dkt. No. 23. On October 2, 2017, defendants' counsel filed notices of appearance. Dkt. Nos. 24-28.¹ On November 14, 2017, the parties participated in a mediation session, which was ultimately unsuccessful. Dkt. No. 37. After plaintiffs filed an amended complaint on April 18, 2018 (Dkt. No. 49) and defendants answered on July 31, 2018 (Dkt. No. 75), Judge Daniels referred the case to me for general pre-trial supervision on August 1, 2018 (Dkt. No. 76).

At a settlement conference held on October 2, 2018, which of the four plaintiffs only Soto attended, the parties agreed to resolve Soto's claims for $25,000. Dkt. No. 100.² On October 4, 2018, the parties consented to my jurisdiction for all purposes pursuant to 28 U.S.C. § 636(c). Dkt. No. 85. I approved the settlement agreement between Soto and defendants on December 6, 2018. Dkt. No. 101.

On December 4, 2018, the parties appeared before me for a hearing to address the remaining plaintiffs' claims.³ At the hearing, Tapia testified that he wished to proceed with his claims. Dkt. No. 109 at 21-22.

I subsequently presided over a bench trial regarding Tapia's claims on May 22, 2019. At the conclusion of the trial, I found that defendants had violated the FLSA and NYLL by failing to pay Tapia minimum wage and spread-of-hours wages, and also violated NYLL's wage notice and wage statement requirements. Dkt. No. 132 at 16. I concluded that Tapia was owed a total of $1,657.91. Id. Accounting for money that defendants had already paid Tapia, I determined that Tapia was entitled to $637.91 in damages. Id.

On June 28, 2019, plaintiffs filed their motion seeking $86,707.50 in attorney's fees and $3,086.46 in costs (Dkt. No. 137), along with a declaration from counsel (Declaration of Kerry E. Connolly ("Connolly Dec."), Dkt. No. 138) and a memorandum of law (Memorandum of Law ("Pl. Mem."), Dkt. No. 139). On July 29, 2019, defendants filed their opposition. Memorandum of Law ("Def. Opp."), Dkt. No. 147. On August 5, 2019, plaintiffs filed their reply (Reply Memorandum of Law ("Pl. Reply"), Dkt. No. 150), along with a reply affidavit (Reply Affidavit ("Connolly Reply Aff."), Dkt. No. 151).⁴

II. DISCUSSION

A. Legal Standards

1. Attorney's Fees

Both the FLSA and NYLL allow prevailing plaintiffs to receive reasonable attorney's fees and costs. 29 U.S.C. § 216(b); NYLL § 198(l-a). Courts determine a reasonable fee by multiplying "the number of hours reasonably expended on the litigation" by "a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011); Arbor Hill Concerned Citizens Neighborhood Ass'n. v. Cty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008).

A plaintiff must "document the application [for fees and costs] with contemporaneous time records . . . specify[ing], for each attorney, the date, the hours expended, and the nature of the work done." N. Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); see also Scott v. City of New York, 626 F.3d 130, 132 (2d Cir. 2010). Ultimately, a court's discretion to set afee award is broad. See Hensley, 461 U.S. at 437; Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014).

2. Costs

An employee who prevails in a wage-and-hour action is entitled to recover costs. NYLL § 663(1). Costs are defined as "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." Leblanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998). "As with attorneys' fees, [a] requesting party must substantiate the request for costs." Guo v. Tommy's Sushi, Inc., No. 14-CV-3964 (PAE), 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016); see also, e.g., Euceda v. Preesha Operating Corp., No. 14-CV-3143 (ADS) (SIL), 2017 WL 3084490, at *4 (E.D.N.Y. June 30, 2017) ("In the absence of adequate substantiation, a party is not entitled to recover costs. . . . Plaintiff has failed to provide any substantiation, such as invoices or receipts, documenting the costs he now seeks to recover."), adopted by, 2017 WL 3084408 (E.D.N.Y. July 18, 2017).

B. Analysis

1. Attorney's Fees

a. Reasonable Hourly Rate

The reasonable hourly rate is the amount "a reasonable, paying client would be willing to pay," which varies by practice area and location. See Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 190. The reasonable rate is generally determined using "the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, andreputation." Restivo v. Hessemann, 846 F.3d 547, 590 (2d Cir. 2017) (quoting Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)) (internal quotations omitted). To make this determination, a court may "rely on its own knowledge of local, comparable rates." Schalaudek v. Chateau 20th St. LLC, No. 16-CV-11 (WHP) (JLC), 2017 WL 729544, at *12 (S.D.N.Y. Feb. 24, 2017), adopted by, 2017 WL 1288859 (S.D.N.Y. Apr. 6, 2017) (citing Yuquilema v. Manhattan's Hero Corp., No. 13-CV-461 (WHP) (JLC), 2014 WL 4207106, at *3-4 (S.D.N.Y. Aug. 26, 2014)).

"Courts in this District have consistently found that 'the reasonable hourly billing rate for partners in wage-and-hour cases is between $300 and $400 per hour.'" New York City Dist. Council of Carpenters v. JM Kelc Marine Contractors, No. 19-CV-0529 (LGS), 2019 WL 3423274, at *3 (S.D.N.Y. July 30, 2019) (citing McGreevy v. Life Alert Emergency Response, Inc., 258 F. Supp. 3d 380, 389 (S.D.N.Y. 2017) (collecting cases)); see also Shanfa Li v. Chinatown Take-Out Inc., No. 16-CV-7787 (JCM), 2019 WL 3715086, at *6 (S.D.N.Y. Aug. 7, 2019) (citing Hernandez v. JRPAC Inc., No. 14-CV-4176 (PAE), 2017 WL 66325, at *2-3 (S.D.N.Y. Jan. 6, 2017)); Gervacio v. ARJ Laundry Servs. Inc., No. 17-CV-9632 (AJN), 2019 WL 330631, at *2 (S.D.N.Y. Jan. 25, 2019) (reasonable hourly rate for managing partner is $400 and senior attorney with 10 years of experience is $300) (citing Rosendo v. Everbrighten Inc., No. 13-CV-7256 (JGK) (FM), 2015 WL 1600057, at *1 (S.D.N.Y. Apr. 7, 2015), adopted by, 2015 WL 4557147 (S.D.N.Y. July 28, 2015)).

Plaintiffs request an hourly rate of $450 for work performed by their counsel, Kerry E. Connolly. Pl. Mem. at 2. Ms. Connolly has practiced law for almost 30years (Connolly Dec. ¶ 2), and her hourly rate for non-contingency fee cases has been $450 since 2013 (id. ¶ 44).

However, an hourly rate of $350 for Ms. Connolly's work is appropriate in this case, which is within the range that is awarded in this District for partners in FLSA cases. The Court makes this determination in part because, despite its long procedural history, this was a relatively straightforward wage-and-hour case. See Lilly v. City of New York, No. 17-2823-CV, 2019 WL 3806446, at *5 (2d Cir. Aug. 14, 2019) (appropriate for district courts "to consider the complexity of a matter because a reasonable paying client would consider the complexity of his or her case"); see also Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 186 n.3 (factors in determining reasonable hourly rate include "novelty and difficulty of the questions") (citing Johnson v. GA. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)).

Furthermore, while Ms. Connolly is an experienced attorney, it appears that she has litigated wage-and-hour cases only in the past decade. See Connolly Dec., ¶ 5 (earliest cited case from 2009).⁵ Indeed, as defendants note, Ms. Connolly billed for research on basic wage-and-hour issues, which an experienced wage-and-hour attorney would not need to conduct. Def. Opp. at 12; see, e.g., Connolly Dec., Ex. A ("Time Records"), Dkt. No. 138-1 (8/15/2017, billed for "research liquidated damagesallowed under both the NYLL and FLSA," as well as "research whether Judge Daniels awards stacked damages" (which is not awarded regardless of the judge)).⁶

Moreover, Ms. Connolly committed basic errors during trial, which revealed a lack of expertise about wage-and-hour law. See Columbus McKinnon Corp. v. Travelers Indem. Co., 367 F. Supp. 3d 123, 158 (S.D.N.Y. 2018) ("In a lodestar analysis, . . . the 'quality of [an attorney's] performance' should be considered in determining the reasonable hourly rate."). For example, Ms. Connolly requested spread-of-hours damages for Tapia, notwithstanding that her own submissions did not support spread-of-hours pay. Compare Dkt. No. 157 (requesting spread-of-hours damages for 10 hour shifts), with Ventura v. Herreros, No. 18-CV-6478 (BMC), 2019 WL 343244, at *1 (E.D.N.Y. Jan. 28, 2019) ("A pla...