Mogilevsky v. Bally Total Fitness Corp., No. CIV.A. 01-11240-WGY.

Citation311 F.Supp.2d 212
Decision Date31 March 2004
Docket NumberNo. CIV.A. 01-11240-WGY.,No. CIV.A. 01-11749-WGY.
PartiesBoris MOGILEVSKY, Plaintiff, v. BALLY TOTAL FITNESS CORPORATION Defendant.
CourtU.S. District Court — District of Massachusetts

Harvey S. Shapiro, Law Office Of Harvey S. Shapiro, Boston, MA, for Boris Mogilevsky, Plaintiff.

Brian E. Whiteley, Scibelli & Whiteley, LLP, Boston, MA, for Bally Total Fitness Corp., Defendant.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

In these two cases, the plaintiff, Boris Mogilevsky ("Mogilevsky"), sued the defendant, Bally Total Fitness Corporation ("Bally"), for damages arising from Bally's conduct in relation to his employment. In the first suit (the "FLSA Action"), Mogilevsky asserted claims related to the nonpayment of wages under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219, the comparable state statute, Mass. Gen. Laws ch. 151, §§ 1-22, and Mass Gen. Laws ch. 149, § 184.2d Am. Compl. ¶ 1 [Doc. No. 21 in Civ. Action No. 01-11240]. In the second suit (the "Discrimination Action"), Mogilevsky asserted claims under the federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634, the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, and the comparable state statute, Mass. Gen. Laws ch. 151B, alleging discrimination on account of age and perceived disability, and for reprisal. 1st Am. Compl. ¶ 1 [Doc. No. 30 in Civ. Action No. 01-11749] ("Discrimination Compl."). In addition, he asserted a violation of the federal Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654. Id.

Having prevailed in part in the FLSA Action, and having secured an Agreement for Judgment in the Discrimination Action, Mogilevsky now seeks attorney's fees and costs. [Doc. No. 59 in Civ. Action No. 01-11240, Doc. No. 59 in Civ. Action No. 01-11749]. As these actions involve the same parties, attorneys, and related facts and circumstances, they are appropriately treated together.

I. PROCEDURAL HISTORY
A. The FLSA Action

Mogilevsky originally filed this case in the Massachusetts Superior Court sitting in and for the County of Suffolk on April 7, 2001 and amended his complaint on June 19, 2001. Notice of Removal [Doc. No. 1] at 1. Bally removed the action to this Court on July 18, 2001, id., and filed its answer on August 15, 2001, [Doc. No. 5].

Mogilevsky served discovery requests on Bally at the end of October and Bally responded in December 2001. Def.'s Opp'n ("Def.'s FLSA Opp'n") [Doc. No. 69] at 2. During discovery, the parties attempted mediation before Magistrate Judge Cohen in January 2002 without reaching a settlement. Order of 1/17/02. [Doc. No. 13]. On February 26, 2002, Mogilevsky, without objection, amended his complaint for the purpose of transferring certain of his claims to the related Discrimination Action. [Doc. No. 14]. The parties conducted depositions in March 2002 followed by Mogilevsky's second document request. Def.'s FLSA Opp'n at 2. On April 5, 2002, Mogilevsky filed a second amended complaint. [Doc. No. 21].

The parties again attempted mediation in July 2002, but were unsuccessful in reaching agreement. Report of 7/25/02 [Doc. No. 31]. A final pretrial conference was held on July 29, 2002, during which the parties filed a joint pretrial statement, which they subsequently amended on August 21, 2002 [Doc. No. 34].

On August 26, 2002, Bally made an Offer of Judgment under Fed.R.Civ.P. 68, submitting that judgment be taken against it in the amount of $5,000 plus costs and attorneys fees. [Doc. No. 58]. Mogilevsky did not accept the offer.

On September 13, 2002, the parties filed trial briefs and proposed findings of fact and conclusions of law. [Doc. Nos. 39-40]. The Court conducted a bench trial on September 17, 18, 26 and 27. At the conclusion of the trial, the Court ordered supplemental briefing in the nature of an accounting in light of the Court's tentative findings and rulings. The parties made further submissions during November and December 2002 [Doc. Nos. 45, 48-51] as well as in April 2003 [Doc. Nos. 54-55]. The Court rendered its opinion on May 13, 2003, Mogilevsky v. Bally Total Fitness Corp., 263 F.Supp.2d 164 (D.Mass.2003), and judgment entered in Mogilevsky's favor on May 15, 2003, in the amount of $4,567.21 [Doc. No. 57]. Mogilevsky filed a motion to alter or amend the judgment on May 27, 2003 [Doc. No. 61], which was denied, Order of 6/2/03.

B. The Discrimination Action

Mogilevsky first filed a complaint with the Massachusetts Commission Against Discrimination on December 21, 2000. Discrimination Compl. ¶ 36. The parties conducted discovery, including the taking of depositions, while the matter was pending at the agency level. Pl.'s Rev'd Mem. at 2 ("Pl.'s Discrimination Mem.") [Doc. No. 63]. Following the agency proceedings and issuance of an EEOC right to sue letter with respect to Mogilevsky's federal claims, the case commenced in this Court on October 11, 2001. Discrimination Compl.

Discovery continued, beginning in March 2002. Pl.'s Discrimination Mem. at 2. Mogilevsky deposed two Bally witnesses on October 29, 2002, and two more on November 13, 2002. Def.'s Opp'n ("Def.'s Discrimination Opp'n") [Doc. No. 64] at 2.

Bally filed a motion for summary judgment on December 9, 2002 [Doc. No. 17], which was opposed by Mogilevsky in a memorandum filed on December 23, 2003 [Doc. No. 21]. Bally filed a reply brief [Doc. No. 25] and this Court, after hearing, denied Bally's motion on January 15, 2003 [Doc. No. 31]. The matter was then set to be tried before a jury on April 22, 2003. See Doc. No. 33. On the first scheduled day of trial, the case was settled, and the parties filed an Agreement for Judgment in the amount of $70,000 plus costs and reasonable attorney's fees to be assessed by the Court. [Doc. No. 46].

II. DISCUSSION
A. Determining Attorney's Fees

In the FLSA Action, Mogilevsky is entitled to reasonable attorney's fees and costs under 29 U.S.C. § 216(b) and Mass. Gen. Laws ch. 149, § 150. In the Discrimination Action, Mogilevsky seeks his attorney's fees and costs under the Agreement for Judgment, and under 42 U.S.C. § 12117 (claims brought under the ADA, to which 42 U.S.C. § 2000e-5(k) applies), 29 U.S.C. § 626(b) (claims brought under the ADEA, to which 29 U.S.C. § 216(b) applies), 29 U.S.C. § 2617(a)(3) (claims brought under the FMLA), and under Mass. Gen. Laws ch. 151B, § 9 (claims brought under Mass. Gen. Laws. ch. 151B). Each of these statutes permits the plaintiff to recover reasonable attorney's fees and costs.

It is well established that the lodestar approach, "which computes attorney's fees by multiplying the number of hours reasonably spent on a case by a reasonable hourly rate," is the appropriate method of determining attorney's fees under the fee-shifting provisions applicable in these cases. Martino v. Massachusetts Bay Transp. Auth., 230 F.Supp.2d 195, 201 (D.Mass.2002) (citing, inter alia, Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), and Hensley v. Eckerhart, 461 U.S. 424, 433 & n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).

1. Reasonable Hourly Rate

In determining what hourly rate to apply to Mogilevsky's attorney in the lodestar calculation, this Court must find "the prevailing hourly rate in Boston for attorneys of comparable skill, experience, and reputation." Martino, 230 F.Supp.2d at 205. The burden is on Mogilevsky to provide this Court with affidavits and other forms of evidence that: "(1) establish his lawyer['s] skills and experience, and (2) inform the Court of the prevailing market rate in the community for attorneys with such qualifications." Id. (citing Blum, 465 U.S. at 895-96 n. 11, 104 S.Ct. 1541, and System Mgmt. v. Loiselle, 154 F.Supp.2d 195, 209 (D.Mass.2001)).

Mogilevsky submits affidavits from his attorney, Harvey Shapiro, Esq. ("Shapiro") in which Shapiro requests an hourly rate of $200 for his work on both of these cases. Shapiro Affs. [Doc. No. 65 in Civ. Action No. 01-11240, Doc. No. 53 in Civ. Action No. 01-11749] ¶ 8.1 Shapiro's affidavits demonstrate that he has had a long and impressive career as an attorney in the Boston area. After graduating from Harvard Law School in 1973, Shapiro began his career as a staff attorney with Greater Boston Legal Services, where he worked from 1974 to 1985. Id. at ¶¶ 1, 3. Subsequently, he was a partner in the law firm of Collier, Shapiro & McCutcheon, until he began his practice as a solo practitioner in November 2000. Id. ¶ 2.

Shapiro has practiced "at all levels of the state and federal courts," with "substantial work in the housing, real estate, consumer, and public benefits areas, frequently with emphasis on Chapter 93A [the Massachusetts Consumer Protection Act]." Id. ¶ 4. In addition, he has served on a number of legal education panels throughout his tenure as a member of the Massachusetts bar. Id. ¶ 5.

Mogilevsky also proffers the affidavits of Dahlia Rudavsky, Esq. ("Rudavsky"). Rudavsky Affs. [Doc. No. 66 in Civ. Action No. 01-11240, Doc. No. 54 in Civ. Action No. 01-11749]. Rudavsky, who is a partner in the law firm of Messing, Rudavsky & Weliky, P.C. and has been a member of the Massachusetts Bar since 1980, states that the market rate charged for her time and that of her partner is $345 per hour. Rudavsky Affs. ¶ 3. Rudavsky states that in McMillan v. Massachusetts Society for Prevention of Cruelty to Animals, 880 F.Supp. 900 (D.Mass.1995) (Stearns, J.), aff'd in part, vacated in part, and remanded, 140 F.3d 288 (1st Cir.1998), she was awarded fees at the rate of $285 and $295 per hour. Id. ¶ 4. She also asserts that she is familiar with prevailing market rates for Boston area law firms and with awards of attorneys' fees made to counsel for prevailing plaintiffs in employment discrimination cases, and submits that the $200 hourly rate requested by Attorney Shapiro is "quite modest" given his experience level, and that it "understates the fair market value of his...

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