Opinion
10 Civ. 7933 (SAS).
June 29, 2011
Chinyere Y. Okoronkwo, Esq., Law Firm of Chinyere Okoronkwo, Esq, New York, NY, Attorney for Plaintiff.
Marian Anne Waldmann, Esq., Morrison Foerster LLP, New York, NY, Timothy F. Ryan, Esq., Morrison Foerster LLP, Los Angeles, CA, Kenneth A. Margolis, Esq., Kauff McGuire Margolis LLP, New York, NY, Attorneys for Defendants.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff brought suit alleging that defendants repeatedly failed to compensate him for overtime in violation of the Fair Labor Standards Act ("FLSA"). Plaintiff now seeks an award of attorney's fees and costs, as mandated by statute, related to the prosecution of his case. In particular, plaintiff seeks a total award of $40,350, consisting of $40,000 in fees and $350 in costs. For the following reasons, plaintiffs application is granted, but not in the amount requested.
See 29 U.S.C. § 201 et seq.
Section 216(b) of the FLSA provides, that upon a finding of liability under sections 206 or 207, "[t]he court . . . 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 the costs of the action." 29 U.S.C. § 216(b).
Plaintiff seeks an award for one hundred hours of counsel time at the rate of $400 per hour.
This represents the filing fee.
II. STANDARD
It is a well-established rule that "any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records . . . specify[ing], for each attorney, the date, the hours expended, and the nature of the work done." There is no rule requiring proportionality between the amount of fees requested and the damages recovered. Moreover, district courts are afforded considerable discretion in determining the amount of attorney's fees in any given case.
New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)).
See Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005) ("Reasoning that a rule calling for proportionality between the fee and the monetary amount involved in the litigation would effectively prevent plaintiffs from obtaining counsel in cases where deprivation of a constitutional right caused injury of low monetary value, we have repeatedly rejected the notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation.").
See Barfield v. New York City Health and Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008).
The Second Circuit has abandoned the lodestar approach, as originally conceived, in favor of a "presumptively reasonable fee" approach. "The presumptively reasonable fee boils down to `what a reasonable, paying client would be willing to pay,' given that such a party wishes `to spend the minimum necessary to litigate the case effectively.'" "In determining what fee is reasonable, the court takes account of claimed hours that it views as `excessive, redundant, or otherwise unnecessary.'" "In so doing, `the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties.'" "In lieu of making minute adjustments to individual timekeeping entries, a court may make across-the-board percentage cuts in the number of hours claimed, `as a practical means of trimming fat from a fee application.'"
Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009).
Id. (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110, 118 (2d Cir. 2007), amended and superseded by 522 F.3d 182 (2d Cir. 2008)).
Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)).
Id. (quoting DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir. 1985)).
Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048, 2007 WL 1373118, at *5 (S.D.N.Y. May 8, 2007) (quoting In re Agent Orange Prod. Liability Litig., 818 F.2d 226, 237 (2d Cir. 1987)). Accord Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) ("[I]n dealing with . . . surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed `as a practical means of trimming fat from a fee application[.]'") (quoting New York State Ass'n for Retarded Children, 711 F.2d at 1146).
III. DISCUSSION
A. Counsel's Hourly Rate
Defendants do not challenge counsel's billing rate of $400 per hour. Because that rate falls within the range of rates charged by experienced labor attorneys practicing within the Southern District of New York, this Court finds it to be reasonable as a matter of law.
See Reply Memorandum of Law in Support of Application for Attorney Fee ("Reply") at 6.
See, e.g., Arnone v. CA, Inc., No. 08 Civ. 4458, 2009 WL 585841, at *3 (S.D.N.Y. Mar. 6, 2009) (finding rate of $425 per hour to be typical for labor lawyers who have extensive experience with the Employment Retirement Income Security Act ("ERISA")); Sheehan v. Metropolitan Life, 450 F. Supp. 2d 321, 328 (S.D.N.Y. 2006) (approving $425 per hour for an ERISA attorney who was "experienced and effective").
B. Counsel's Time Charges
Although this case reached a final settlement on February 4, 2011, plaintiff's counsel, Chinyere Okoronkwo, was well aware of her adversary's desire to settle the case much earlier than that. At the initial conference held on December 23, 2010, defendants' attorney stated, on the record: "However, this matter has to be settled." Presumably in anticipation of settlement, Okoronkwo began preparing her fee application on January 8, 2011, having spent three hours. Despite knowing that this case would likely settle, Okoronkwo spent substantial amounts of time prematurely, on tasks that were not yet due. For example, the Scheduling Order states that requests for admission were to be due by April 21, 2011. Yet, on January 1, 2011, Okoronkwo spent 7.3 hours preparing requests to admit. That same day, Okoronkwo spent 0.8 hours reviewing model jury instructions for a FLSA claim.
Transcript of 12/23/10 Conference ("Tr.") at 2. See also id. at 4 (stating that litigation "is the last thing that should happen").
See Attorney Fees, Ex. A to the 3/30/11 Declaration of Chinyere Okoronkwo, at 7. Okoronkwo spent approximately fourteen additional hours preparing and revising her fee application.
See id.
See id.
In addition to working on matters prematurely, Okoronkwo also charged time for activities that appear to be out of place temporally. For example, after the case settled on February 4, 2011, Okoronkwo charged 0.2 hours for "Consider negotiation strategy" on February 11, 2011, and 1.0 hours for "Consider legal authority" on February 23, 2011. Furthermore, some of the time charges incurred by Okoronkwo were the result of inefficient practice. For example, on October 18, 2010, Okoronkwo charged 1.5 hours for travel to and from the Court. If Okoronkwo hand-delivered the Complaint to the Cashier's Office, this was unnecessary given the Court's Electronic Case Filing system where by documents can be filed electronically. In fact, it appears that Okoronkwo sent the Complaint electronically as she charged 0.1 hours to "email pleading to Clerk of Court." In any event, a messenger could have performed this task physically for substantially less than the $600 charged by Okoronkwo.
Id. at 10.
Id.
See id. at 2.
Id.
There also appear to be mechanical errors in Okoronkwo's time records. On December 7, 2010, Okoronkwo charged 2.3 hours and 0.8 hours, respectively. The entry for that day includes 1.5 hours for travel to and from Court and 0.8 hours for a Court appearance from 2:15 p.m. to 3:00 p.m. Thus, the total entry should have been 2.3 hours (1.5 hours for travel plus 0.8 hours for Court appearance). Yet, the 0.8 hours was double counted in the subtotal for December — page one, first as part of the 2.3 hours and then separately as 0.8 hours. Another example of mechanical error is the entry for December 20, 2010. The total amount charged is 1.8 hours which includes 0.6 hours for "Follow up re discovery requests" for which there was apparently "(No Charge)."
See id. at 4-5 (Subtotal for December — page one is 9.5 hours which is comprised of the following time charges: 2.2 + 0.6 + 1.7 + 2.3 + 0.8 + 1.7 + 0.1 + 0.1).
Id. at 6. This component also seems to be out of place temporally as the Scheduling Order was not docketed until December 23, 2010, the date of the initial conference.
Finally, there is the huge discrepancy between Okoronkwo's estimate of her time charges at the initial conference held on December 23, 2010, and the time charges she actually incurred by that date. When I asked her if she had figured out her attorney's fees to date, Okoronkwo responded: "I would say it is maybe 6,000 but I don't know, your Honor." However, in actuality, Okoronkwo had incurred approximately 64.8 hours in time, representing $25,920 in fees, as of December 22, 2010. Okoronkwo spent 21.5 hours in recalculating plaintiff's damages alone on or before December 14, 2010. Although Okoronkwo is not bound by her conservative verbal estimate at the initial conference, it does raise suspicions regarding the propriety of her fee request on paper.
Tr. at 9-10. Six thousand dollars in fees translates to fifteen hours using Okoronkwo's hourly rate of $400 per hour.
See Reply at 3.
In sum, given the simplicity of this case and the likelihood of settlement, coupled with the inefficiencies and errors in Okoronkwo's time charges, this Court will discount the requested one hundred hours by forty percent (40%). Accordingly, plaintiff is hereby awarded $24,000 in fees and $350 in costs.
IV. CONCLUSION
For the foregoing reasons, plaintiff is awarded attorney's fees and costs in the amount of $24,350. The Clerk of the Court is directed to close the Application for Plaintiffs Attorney Fees and Costs (Document # 15) and this case.
SO ORDERED: