DeBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this Fair Labor Standards Act ("FLSA") case is a motion for attorneys' fees and costs filed by Plaintiffs. (ECF No. 330). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiffs' motion will be granted in part and denied in part.
Additional background can be found in prior memorandum opinions. (See, e.g., ECF No. 328). This collective action was brought under the FLSA for an alleged failure to pay overtime wages. After nearly five years of litigation, the parties agreed to settle their claims on August 17, 2015. The settlement agreement, which the undersigned approved on September 3, 2015 (ECF Nos. 328; 329), provides that Defendants will pay each individual Plaintiff a specified amount that ranges from $54.36 to $4,197.78, depending on the number of weeks worked during the three-year statute of limitations period. In all, Defendants agreed to pay Plaintiffs approximately $36,000. In approving the settlement agreement, the court found that a bona fide dispute remained as to Defendants' liability for overtime payments under the FLSA, and that the settlement was a fair and reasonable compromise. (ECF No. 328, at 6-8).
The settlement agreement did not include an attorneys' fee and cost calculation, instead providing that Defendants will pay attorneys' fees and costs incurred by Plaintiffs, in an amount to be determined by the court following Plaintiffs' submission of a request for fees and costs. (See ECF No. 327-1 ¶ 9). On September 18, Plaintiffs filed such request. (ECF No. 330). Defendants responded (ECF No. 331), and Plaintiffs replied (ECF No. 332).
"The proper calculation of an attorney's fee award involves a three-step process. First, the court must `determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate.'" McAfee v. Boczar, 738 F.3d 81, 88 (4
"[T]he burden rests with the fee applicant to establish the reasonableness of a requested rate." Robinson, 560 F.3d at 244 (quoting Plyler v. Evatt, 902 F.2d 273, 277 (4
Plaintiffs request the following rates for attorneys who worked on this case:
(ECF No. 330, at 15-16).
Other than the affidavit of local counsel Daniel A. Katz, (ECF No. 330-4), Plaintiffs do not provide affidavits or other evidence of the prevailing reasonable rates in Maryland for work similar to the work Plaintiffs' counsel performed on this case. Defendants contend that the court should reduce the requested hourly rates, which are at the higher ends of the applicable guidelines ranges, in light of the lack of evidence of prevailing rates within this district. (ECF No. 331, at 22-23). Specifically, Defendants argue that the rate should be lowered by a formula based on the exact number of years an attorney has been practicing within the guidelines range. (Id. at 20-21).
Defendants' request that the court adopt a formulaic approach to determining a reasonable rate within the guidelines range is unsupported by precedent and generally lowers the rates by too much. Plaintiffs have not, however, adequately supported their requested rates with sufficient evidence. They have not produced any specific evidence regarding the prevailing market rate for similar work within this district, instead providing copies of affidavits from attorneys in Chicago that were originally submitted in a case in Illinois. Plaintiffs were explicitly reminded of this requirement in an earlier opinion (ECF No. 328, at 9-10), but they failed to provide any independent, local evidence justifying the requested rates.
Accordingly, Plaintiffs' counsel's hourly rates will be as follows:
Plaintiffs provide itemized time records that list the date of the work, who did the work, the time spent, and a brief description of the work. (ECF Nos. 330-5; 330-6). Plaintiffs helpfully divide the litigation into phases in accordance with the Local Rules. Specifically, Plaintiffs' counsel assert they worked a total of 2,252.38 hours: 56.55 hours on case development and pleadings; 984.99 hours on discovery and depositions; 612.71 hours on five motions; 297.85 hours on trial preparation; 12.80 hours with regard to Defendants' bankruptcy; 123.18 hours on settlement; and 164.30 hours on the pending fee petition. Plaintiffs assert that they exercised appropriate "billing judgment" by reducing certain categories of entries by one third. (See ECF No. 330, at 7-8). Specifically, Plaintiffs reduced entries relating to meetings and correspondence between lawyers and certain court conferences and hearings. Furthermore, Plaintiffs argue that the hours worked are reasonable because Defendants "needlessly prolonged litigation with an unreasonably tenacious defense." (ECF No. 332, at 4-5).
Defendants take issue with many aspects of Plaintiffs' request, and the court will address each argument in turn. First, Defendants argue that many of the entries are impermissibly vague, suggesting 196.1 hours be struck for vagueness. (See ECF Nos. 331, at 24-26; 331-9). A "court may reduce the number of hours awarded if the documentation is vague or incomplete." CoStar Group, Inc. v. LoopNet, Inc., 106 F.Supp.2d 780, 788 (D.Md. 2000). "`[C]ounsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures.'" Id. at 789 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 n.12 (1983)). Defendants assert that numerous entries are too vague, including entries that state "e-mails to and from co-counsel" or simply "with co-counsel." Plaintiffs admit that some entries are less detailed than others, but argue that the meaning of all entries is "certainly ascertainable based on the context and in reference to the particular category and/or phase of the litigation Plaintiffs described in their fee petition." (ECF No. 332, at 9). The undersigned is able to determine the meaning of the less-detailed entries to a sufficient degree of specificity through the context provided by the surrounding entries and the stage of litigation. Plaintiffs' contemporaneous time records "will suffice for purposes of this motion because they provide an adequate basis for determining whether the hours claimed were reasonably expended." See CoStar, 106 F.Supp.2d at 789.
Defendants next argue that the court should not award fees for 629.26 hours of "clerical, administrative, and other non-legal work." (ECF Nos. 331, at 26-27; 331-10). Plaintiffs counter only that "[c]lerical and administrative work performed by legal staff was necessary to advance this litigation and is compensable; otherwise it would not be categorized as such in Appendix B of the Local Rules." (ECF No. 332, at 9). Defendants are correct that "fees for administrative work are generally not recoverable." Pfieffer v. Schmidt Baking Co., Inc., No. CCB-11-3307, 2014 WL 1291814, at *4 (D.Md. Mar. 28, 2014) (citing Kabore v. Anchor Staffing, Inc., No. L-10-3204, 2012 WL 5077636, at *4 (D.Md. Oct. 17, 2012)). Such purely clerical and administrative tasks "should [be] deducted as a matter of billing discretion." Manna v. Johnny's Pizza, Inc., No. CCB-13-721, 2014 WL 794357, at *4 (D.Md. Feb. 25, 2014). After a careful review of Plaintiffs' request, the court will strike 266.76 hours as being purely clerical or administrative nature.
Finally, Defendants argue that Plaintiffs' request includes "excessive, redundant, or otherwise unnecessary hours spent performing legal tasks," including 150.25 hours of overstaffing on specific tasks and 302.85 hours Defendants contend are unnecessarily charged by Mr. Cotigula and Mr. Zouras, who are senior partners. (ECF Nos. 331, at 27-33; 331-11; 331-13). In addition, Defendants request that the court reduce the hours compensated for time spent on the pending motion for fees by eighty percent. (ECF Nos. 331, at 30-31; 331-12). In short, Defendants' primary argument is that Plaintiffs inappropriately seek compensation for work performed by multiple attorneys performing similar tasks. This argument invokes both the Local Rules and the general principle of billing judgment. The Local Rules provide that, absent "a showing of a valid reason for sending two attorneys" to a deposition or hearing, "[o]nly one lawyer for each party shall be compensated for attending depositions . . . [and] hearings." Local Rules, App'x B. Moreover, "[g]enerally, only one lawyer is to be compensated for client, third party and intra-office conferences. . . . Compensation may be paid for the attendance of more than one lawyer where justified for specific purposes such as periodic conferences of defined duration held for the purpose of work organization, strategy, and delegation of tasks in cases where such conferences are reasonably necessary for the proper management of the litigation." Id. Finally, under the Local Rules, an attorney can generally recover fees for up to two hours of travel time at his or her full billing rate; travel time beyond two hours may be charged at a one-half rate.
To exercise "billing judgment"
Barnes, 168 F.3d at 428; see also Hensley, 461 U.S. at 434 ("The district court also should exclude from this initial fee calculation hours that were not `reasonably expended.'").
Plaintiffs attempt preemptively to address Defendants' concerns by including a one-third reduction of some entries in an exercise of "billing judgment." Plaintiffs also contend that the work of multiple attorneys was necessary due to the complexity and length of the case and Defendants' tenacious defense. (ECF No. 332, at 7-9). As is often the case in disputes over attorneys' fees, the reality lies somewhere in the middle. Plaintiffs are correct that multiple attorneys are justified for work on some tasks and in conjunction with some meetings regarding work organization and strategy. Defendants are also correct that Plaintiffs' billing records contain several examples of overstaffing, including many instances where multiple attorneys bill for significant time reviewing court orders, corresponding with each other, and individually reading the same correspondence from the other side.
Although Plaintiffs are commended for attempting to exercise billing judgment by proactively applying a one-third reduction to some entries, their efforts fall well short of the proper billing judgment anticipated by the Local Rules and case law. Moreover, Plaintiffs made no attempt to limit their billing for travel in accordance with the Local Rules, and their request for 164.63 hours for time spent on the fee petition is excessive, particularly when counsel kept contemporaneous records. The use of eleven attorneys, many of whom are senior attorneys, also supports a smaller lodestar number, particularly because Plaintiffs made no attempt at billing judgment outside of the limited one-third reductions. Due to the prevalence of duplicative and excessive hours spent on routine legal tasks and correspondence, a reduction of one third is appropriate. 1,320.5 hours is a reasonable number of hours for this case. Accordingly, at the reasonable billing rates put forth in the preceding section, the initial lodestar figure is $391,499.33.
Defendants argue for two adjustments to the lodestar: to account for the "unsuccessful claims" of dismissed Plaintiffs and because of Plaintiffs' overall lack of success. (ECF No. 331, at 33-40). With regard to unsuccessful claims, Defendants note that 28 of the 54 Plaintiffs who at some point joined this collective action were dismissed point prior to the settlement agreement. Defendants also argue that the final settlement amount of $36,000 indicates a lack of overall success in light of the $300,644.94 Plaintiffs asserted they were owed in damages in a settlement letter on August 4, 2015. (ECF No. 331-4). Plaintiffs counter that they "were significantly successful throughout the course of the litigation" and "prevailed at every stage of certification and decertification, advanced and complied with Defendants' discovery requests that were out of proportion to the damages sought, and ultimately recovered 45 minutes of unpaid wages per week." (ECF No. 332, at 2, 11).
Defendants have identified 17.55 hours of work performed solely on behalf of dismissed Plaintiffs. Striking these hours is appropriate because the dismissed Plaintiffs achieved no benefit from the settlement agreement and their claims were, for one reason or another, unsuccessful. Work readily discernible as being performed solely on behalf of a dismissed Plaintiff will be stricken. Defendants have not, however, adequately supported their contention that work performed on behalf of all Plaintiffs should be reduced by a percentage reflecting a portion of the work performed on behalf of the dismissed Plaintiffs. After this reduction, the lodestar amount is $387,586.00.
Plaintiffs' fee must also be reduced in light of the limited relative success represented by the amount of the settlement agreement and the absence of any declaratory or injunctive relief. The Fourth Circuit has described this as the third step of a fee calculation, noting that courts "should award some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff." McAfee, 738 F.3d at 88 (citation and internal quotation marks omitted). Other times, such a calculation is referred to as an additional focus on the eighth Johnson factor, which directs a court to look at "the amount in controversy and the results obtained." See Jackson v. Estelle's Place, LLC, 391 F.App'x 239, 243 (4
Andrade v. Aerotek, Inc., 852 F.Supp.2d 637, 644 (D. Md. 2012); see also Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 328 n.20 (4
The district court should "reduce the award if `the relief, however significant, is limited in comparison to the scope of the litigation as a whole.'" McAfee, 738 F.3d at 92 (quoting Hensley, 461 U.S. at 439-40). Fee awards should be adequate to attract competent counsel, but should not produce a windfall to attorneys. Id. (citing City of Riverside, 477 U.S. at 580). The appropriate comparison is "the amount of damages sought to the amount awarded." Id. (citing Mercer v. Duke Univ., 401 F.3d 199, 204 (4
On the other hand, Defendants tenaciously litigated this case, and settlement did not occur until the eve of trial. See Imgarten v. Bellboy Corp., 383 F.Supp.2d 825, 840 (D.Md. 2005) ("Those who elect a militant defense are responsible for the time and effort they extract from their opponents. A party cannot litigate tenaciously and then complain about the time spent by the opposing party in response."). A reduction is appropriate due to Plaintiffs' lack of relative success, but not to the extent Defendants propose. Accordingly, Plaintiffs' requested fee will be further reduced by one third, and they will be awarded $258,390.67.
Plaintiffs seek to recover $26,112.07 in litigation costs. In support of their request, Plaintiffs provide an itemized spreadsheet detailing each cost (ECF No. 330-7), and affidavits attesting to the accuracy and reasonableness of the costs (ECF Nos. 330-1 ¶ 17; 330-3 ¶ 17; 330-4 ¶ 11). Defendants primarily argue that the request must be denied because Plaintiffs failed to attach vouchers or bills supporting the costs. (ECF No. 331, at 40-41). Local Rule 109.1(b) directs a party that is requesting costs to support its request "by affidavit and . . . a memorandum setting forth the grounds and authorities supporting the request. Any vouchers or bills supporting the cost being requested shall be attached as exhibits."
Defendants' reliance on EMI April Music, Inc. v. Garland Enters., LLC, No. DKC-11-3352, 2012 WL 2342994, at *3 (D.Md. June 19, 2012), to suggest that all of Plaintiffs' costs should be denied is not persuasive. The plaintiffs in EMI submitted "only dollar amounts incurred each month over the course of the litigation." Id. The plaintiffs provided no description of the costs other than that the amounts related to necessary work to be done in this case.
Andrade, 852 F.Supp.2d at 644. Defendants challenge two categories of costs sought by Plaintiffs: $1,761.40 for expert witnesses and professionals, and $4,425.00 in discovery-related costs. (ECF No. 331, at 41 n. 11). Plaintiffs' other requested costs appear reasonable, necessary, and are detailed with sufficient specificity. As to expert fees, Defendants argue that the Fourth Circuit has held that such fees are "outside the rubric of `attorney's fees.'" (ECF No. 331, at 41 n.11 (quoting Wheeler v. Durham City Bd. of Ed., 585 F.2d 618, 624 (4
For the foregoing reasons, Plaintiffs' motion for attorneys' fees and costs will be granted in part and denied in part. Plaintiffs will be awarded $258,390.67 in attorneys' fees and $21,687.07 in costs. A separate order will follow.