Opinion
22 Civ. 101 (JLR) (GWG)
10-17-2023
GILBERTO TRINIDAD, et al., Plaintiffs, v. 62 REALTY, LLC, et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Gilberto Trinidad, Jeremy Fernandez, and Nicolas de Jesus Herrera Sanchez brought this case against defendants 62 Realty, LLC; 311 Realty, LCC; Jim Frantz; and Deanna Joy a/k/a Dina Grinshpun alleging violations of the New York Labor Law, N.Y. Lab. §§ 190 et seq., and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. See Complaint, filed Jan. 5, 2022 (Docket # 1) (“Compl.”). Having settled their substantive claims, plaintiffs now move for attorney's fees and costs. For the reasons that follow, plaintiffs should be awarded attorney's fees and costs in the amount of $66,849.28.
Notice of Motion, filed Apr. 25, 2023 (Docket # 108) (“Mot.”); Memorandum of Law in Support, filed Apr. 25, 2023 (Docket # 109) (“Mem.”); Declaration of Marc A. Rapaport, filed Apr. 25, 2023 (Docket # 110) (“Rapaport Decl.”); Memorandum of Law in Opposition, filed June 23, 2023 (Docket # 116) (“Opp.”); Declaration of Alan Smikun, filed June 23, 2023 (Docket # 117) (“Smikun Decl.”); Declaration of Deanna Joy, filed June 23, 2023 (Docket # 118) (“Joy Decl.”); Reply Memorandum of Law in Further Support, filed July 21, 2023 (Docket # 120) (“Reply”); Reply Declaration of Marc A. Rapaport, filed July 21, 2023 (Docket # 121) (“Rapaport Reply Decl.”).
I. BACKGROUND
This case alleges principally that defendants failed to pay plaintiffs overtime and did not provide wage statements and notices in violation of New York and federal law. See Compl. The parties engaged in discovery, including the taking of depositions between April and December 2022. See Mem. at 11; Order, dated Nov. 23, 2022 (Docket # 75) (setting Dec. 30, 2022 discovery deadline). The parties also engaged in motion practice, including a motion by plaintiff to dismiss defendants' counterclaims (which was later rendered moot based on the defendants' withdrawal of the counterclaims, see Memorandum Endorsed, dated Mar. 30, 2022 (Docket # 33)), and a motion for judgment on the pleadings by the defendants, see Notice of Motion, filed Nov. 16, 2022 (Docket # 65), to which plaintiff never filed a response because the case ultimately settled.
On December 5, 2022, the parties met for a settlement conference before the Court and agreed to a settlement in principle. See Docket Entry for Dec. 5, 2022. On March 8, 2023, the parties filed a proposed settlement agreement. See Settlement Agreement and Release, filed Mar. 8, 2023 (Docket # 99-1) (“Settlement Agreement”). Under this agreement, plaintiffs received a $120,000 payment, id. at 2, provided a release of all claims except those for attorney's fees and those relating to separate landlord-tenant and eviction proceedings, id. at 7-8, and agreed to dismiss a small claims proceeding in New York City Civil Court, id. at 10. Defendants agreed to file a notice of voluntary dismissal in an action against plaintiffs Trinidad and Hernandez filed in state court (the “Rockland County Action”), which the Settlement Agreement notes is a “material term . . . in the absence of which [plaintiffs] would not enter into this Agreement.” Id. at 10. On March 8, 2023, the Court approved the Settlement Agreement, and dismissed the case without prejudice to plaintiffs' application for attorney's fees. Order, dated Mar. 8, 2023 (Docket # 101).
On April 25, 2023, plaintiffs filed the instant motion for attorney's fees. See Mot.
II. DISCUSSION
Defendants suggest without offering argument that plaintiffs do not qualify as “prevailing parties” due to the “marginal degree of success” achieved in settling this case. Opp. at 8. However, “[p]laintiffs are the prevailing party for the purposes of the FLSA and NYLL ‘if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'” Kahlil v. Original Old Homestead Rest., Inc., 657 F.Supp.2d 470, 474 (S.D.N.Y. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Plaintiffs here received a $120,000 settlement from defendants and are plainly a prevailing party entitled to attorney's fees. See N.Y. Lab. § 663(4); 29 U.S.C. § 216(b).
As has been frequently stated, in determining a statutory fee award, “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); accord Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014). This calculation yields a “presumptively reasonable fee,” Arbor Hill, 522 F.3d at 183, and is commonly referred to as the “lodestar,” id.; see also Miroglio S.P.A. v. Conway Stores, Inc., 629 F.Supp.2d 307, 312 (S.D.N.Y. 2009). Plaintiffs request $88,877.00 in attorney's fees, along with $4,941.89 in costs. See Rapaport Decl. ¶ 6; Rapaport Reply Decl. ¶ 5.
A. Reasonable Hourly Rate
We first consider the hourly rate at which attorney's fees should be awarded. In determining whether an attorney's hourly rate is reasonable, “the burden is on the fee applicant to produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience[,] and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); accord Savoie v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999).
To determine an appropriate hourly rate, Arbor Hill directs that a court engage in the following process:
[T]he district court, in exercising its considerable discretion, [is] to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case.522 F.3d at 190 (emphasis in original).
The “Johnson factors” are those laid out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). These are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson, 488 F.2d at 717-19).
Arbor Hill specifically identified the following factors to be considered in determining what a reasonable, paying client would be willing to pay:
the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but
not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.Id. at 184.
Importantly, Arbor Hill held that a court must “step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” Id. (emphasis added). “In other words, a court awarding statutory attorney's fees is not called upon to determine merely whether the attorneys on this case properly command the rates they seek. Rather, it must determine the cheapest hourly rate an effective attorney would have charged.” Knox v. John Varvatos Enters. Inc., 520 F.Supp.3d 331, 340-41 (S.D.N.Y. 2021) (emphasis in original) (punctuation and citation omitted).
Plaintiffs request fees for work performed by four employees of Rapaport Law Firm (“RLF”): attorney Marc Rapaport, and three persons identified as “paralegal” or “legal assistant”: Marcela Cabezas-Rapaport, Karina Gulfo, and Joselin Orellana. See Rapaport Decl. ¶ 51. For Rapaport, plaintiffs seek a rate of $450 per hour. Mem. at 13. Defendants counter that Rapaport should be granted “no more” than $300 per hour. Opp. at 12. For Cabezas-Rapaport and Gulfo, plaintiffs seek rates of $115 per hour, and seek $95 per hour for Orellana. Mem. at 13-14. Defendants counter that a rate of $75 per hour is appropriate for all three individuals. Opp. at 12.
We first consider the experience of each professional. Rapaport has practiced law for over thirty years, roughly twenty-eight of which have been spent practicing employment law. Rapaport Decl. ¶¶ 54-56. He billed all of the attorney hours on this case. See id. ¶ 51. As to the support staff, Gulfo has an undergraduate degree, and has been a paralegal or legal assistant for roughly nine years, five of which have been in employment law. See id. ¶ 62. Cabezas-Rapaport has a bachelor's degree and has been “closely involved” in employment law matters for “more than a decade,” although it is unclear whether she has been a paralegal for the entirety of that period. See id. ¶ 67. Orellana has been a legal assistant for about three years, working in the area of employment law. Id. ¶ 72.
As to Rapaport, plaintiffs have provided evidence in the form of signed retainer agreements indicating that clients have paid Rapaport rates of between $450 and $500 per hour in the past. However, none of these agreements were for plaintiff-side wage-and-hour cases like the case at bar. See Mem. at 16 (retainer agreements for ADA defense, “commercial contract dispute,” and “defense of wage and hour claims”); see also Retainer Agreements, annexed as Ex. 10 to Rapaport Decl. (Docket # 110-10). In any event, these retainer agreements are of limited use as they reflect only Rappaport's rate and not the rate other attorneys charge. Case law reflects that “[i]n this district, courts generally award experienced wage-and-hour attorneys between $300 and $400 per hour,” Ramirez v. Marriott Int'l, 2023 WL 2447398, at *4 (S.D.N.Y. Mar. 10, 2023) (quoting Picorelli v. Watermark Contractors Inc., 2022 WL 2386761 at *5 (S.D.N.Y. July 1, 2022)); accord Pinzon v. 467 Star Deli, Inc., 2023 WL 5337617, at *14 (S.D.N.Y. July 31, 2023), adopted, 2023 WL 5334757 (S.D.N.Y. Aug. 18, 2023); Hollis v. All Am. Bar on First, Inc., 2023 WL 4350613, at *3 n.6 (S.D.N.Y. July 5, 2023), though we recognize that there are cases with higher rates, see, e.g., Reinoso v. Cipriani, 2019 WL 2324566, at *3 (S.D.N.Y. May 30, 2019) (“Courts in this District have determined that $250 to $450 per hour is the range of appropriate fees for attorneys with significant wage and hour litigation experience.”).
Rapaport has nearly three decades of experience in employment law, which might suggest a rate at the very highest end of practitioners. The issues in this case were not complex, however. Additionally, we agree with defendants, see Opp. at 24, that some reduction is warranted because Rappaport handled this case entirely on his own without any assistance from a junior attorney. While there is nothing improper about such a course of action, and it is almost universal in the case of a solo practitioner, the result here led to all attorney tasks being conducted by a senior attorney, including legal research tasks that could have been handled by a junior attorney. See, e.g., Ge Chun Wen v. Hair Party 24 Hours, Inc., 2021 WL 3375615, at *21 (S.D.N.Y. May 17, 2021) (reducing requested hourly rate where attorney performed work “that could have been handled by more junior lawyers”) (citations omitted). Accordingly, we find that Rappaport should be awarded an hourly rate not at the highest end but rather at $375 per hour. See Gao v. Umi Sushi, 2023 WL 2118203, at *12 (S.D.N.Y. Jan. 31, 2023) (awarding $375 per hour to attorney with thirty years' experience).
On a related point, we reject defendants' argument that Rappaport engaged in tasks that could have been done by a paralegal or secretary, see Opp. at 24, as it is unsupported by our review of his time records. The tasks identified by defendants are appropriate attorney tasks with the exception of an occasional reference to the filing of a document. But any reference to filing in the time records is in conjunction with the drafting of the same document. In light of the existence of the ECF system, the act of filing is not a complex task, as was true in the past of paper filings, and thus is not necessarily more efficiently performed by a paralegal.
As to the legal assistants/paralegals, “[h]ourly rates for paralegals of $100 to $150 per hour are typical for awards in this District.” Reyes v. Coppola's Tuscan Grill, LLC, 2023 WL 4303943, at *12 (S.D.N.Y. June 13, 2023) (quoting Inga v. Nesama Food Corp., 2021 WL 3624666, at *14 (July 30, 2021), adopted, 2021 WL 3617191 (S.D.N.Y. Aug. 16, 2021). None of the paralegals here are so experienced as to warrant a rate at the higher level. Accordingly, we find that a rate of $100 per hour is appropriate for Cabezas-Rapaport and Gulfo, and that the requested rate of $ 95 per hour is appropriate for Orellana. See Ramirez, 2023 WL 2447398, at *5 (awarding paralegals $100 per hour in FLSA/NYLL action); Gonzalez v. Fresh Start Painting Corp., 2022 WL 3701096, at *3 (S.D.N.Y. Aug. 26, 2022) (same).
B. Reasonable Number of Hours Expended
As to hours, it is well-established 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.” New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); accord Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). When reviewing such records, courts must make “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam). “The critical inquiry is ‘whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'” Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *12 (S.D.N.Y. Aug. 2, 2012) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). In addressing this question, courts should not, however, “engage in an ex post facto determination of whether attorney hours were necessary to the relief obtained.” Grant, 973 F.2d at 99. Also, the Supreme Court has cautioned that because “[t]he essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection,” “trial courts need not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (2011).
If a court finds that claimed hours are “excessive, redundant, or otherwise unnecessary,” it should exclude those hours from its calculation of the presumptively reasonable fee. Hensley, 461 U.S. at 434; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n.6 (2d Cir. 1999) (citations omitted); Farmer v. Hyde Your Eyes Optical, Inc., 2015 WL 2250592, at *15 (S.D.N.Y. May 13, 2015). However, as the Supreme Court noted in Hensley, “[t]here is no precise rule or formula for making these determinations.” 461 U.S. at 436. Thus, a district court is not required to “set forth item-by-item findings concerning what may be countless objections to individual billing items.” Lunday, 42 F.3d at 134. Because “it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application,” Carey, 711 F.2d at 1146, “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,'” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting Carey, 711 F.2d at 1146); accord Lewis v. Roosevelt Island Operating Corp., 2018 WL 4666070, at *7 (S.D.N.Y. Sept. 28, 2018).
Here, plaintiffs have submitted the following hours:
See Invoice/Statement of Services, annexed as Ex. 2 to Rapaport Decl. (Docket # 110-2) (“Billing Record”); Invoice/Statement of Services, annexed as Ex. 1 to Rapaport Reply Decl. (Docket # 121-1) (“Supp. Billing Record”). Rapaport avers that the billing records in this case were contemporaneously kept. Rapaport Decl. ¶ 6.
Time Keeper
Hours Claimed
Marc Rapaport
161.5
Joselin Orellana
11
Karina Gulfo
113.4
Marcela Cabezas-Rapaport
18.4
TOTAL
304.3
We will not address each of defendants' numerous objections to the hours proposed by plaintiffs, keeping in mind the Supreme Court's admonition that “trial courts need not, and indeed should not, become green-eyeshade accountants.” Fox, 563 U.S. at 838. Instead, we note the following:
The billing does contain instances of “block billing,” see, e.g., Billing Record at 1-3 (entries for Jan. 5, 2022; Mar. 1, 2022; Mar. 2, 2022; Mar. 30, 2022; Apr. 7, 2022; Apr. 22, 2022; May 10, 2022; May 12, 2022), and other entries are impermissibly vague, see, e.g., id. at 3-4 (June 15, 2022; July 2, 2022; and Aug. 10, 2022 entries for “[attention] to discovery”), all of which makes it impossible for the Court to assess whether these hours were reasonably billed, see, e.g., Gamero v. Koodo Sushi Corp., 328 F.Supp.3d 165, 175 (S.D.N.Y. 2018) (“[V]ague or ‘block-billed' time records may be insufficient to substantiate a party's claimed expenditure of time.”). These deficiencies warrant a reduction in hours awarded.
We reject, however, a number of arguments defendants make as to the billing records. To begin, we reject the argument that plaintiffs impermissibly seek to recover for “unsuccessful” motion practice. Opp. at 22. The motions that defendants identify as unsuccessful are a motion to dismiss (Docket # 28), a letter regarding the plaintiffs' position on the postponement of a settlement conference that concluded with a request to seek sanctions (Docket # 38), and a discovery motion (Docket #50). Of these, the first was mooted when defendants amended the counterclaims at issue out of their answer after the motion was filed, see Memorandum Endorsed, dated Mar. 30, 2022 (Docket # 33), and the third was granted in part, denied in part, see Order, dated Oct. 20, 2022 (Docket # 61). But to the extent plaintiffs were unsuccessful, the principle that allows for a reduction of hours based on lack of success applies to unsuccessful “claims,” not unsuccessful arguments. See Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). We are unaware of any principle that fees for unsuccessful motions should automatically be excised, see generally F.R. v. New York City Dept. of Educ., 2023 WL 4991118, at *9 (S.D.N.Y. Aug. 4, 2023) (rejecting reduction in fees for an “unsuccessful argument”), though certainly an unnecessary or frivolous filing will reflect on the reasonableness of a time expenditure. Here, we do not find that any of the motions were unreasonable.
Defendants argue that an “across-the-board” fee cut is warranted because the settlement per plaintiff is “grossly disproportionate” to the overall fees sought. Opp. at 12. There is no requirement, however, that an attorney's fee award be proportionate to the damages recovered. To the contrary, the Second Circuit has “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.” Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d Cir. 2005) (collecting cases); Cowan v. Prudential Ins. Co. of Am., 935 F.2d 522, 527-28 (2d Cir. 1991) (reducing attorney fee awards to be proportional to recovery is contrary to the purpose of awarding civil rights attorney's fees). As one case has noted, “[t]he purpose of the FLSA attorney fees provision is to insure effective access to the judicial process by providing attorney fees for prevailing plaintiffs with wage and hour grievances. Courts should not place an undue emphasis on the amount of the plaintiff's recovery because an award of attorney fees . . . encourages the vindication of congressionally identified policies and rights.” Grochowski v. Ajet Constr. Corp., 2002 WL 465272 at *2 (S.D.N.Y. Mar. 27, 2002) (internal punctuation and citation omitted) (alteration in original); accord Baird v. Boies, Schiller & Flexner LLP, 219 F.Supp.2d 510, 519-20 & n.7 (S.D.N.Y. 2002) (“[A] limited monetary recovery does not preclude a substantial attorneys' fee award, for there is no requirement of proportionality.”); Allende v. Unitech Design, Inc., 783 F.Supp.2d 509, 511 (S.D.N.Y. 2011) (“While the requested attorneys' fees exceed plaintiffs' own recovery in the case, that is of no matter. In FLSA cases, like other discrimination or civil rights cases, the attorneys' fees need not be proportional to the damages plaintiffs recover, because the award of attorneys' fees in such cases encourages the vindication of Congressionally identified policies and rights.”); see also Fisher v. S.D. Protection Inc., 948 F.3d 593, 603 (2d Cir. 2020) (“While in some cases the proportion of fees may be relevant in considering the reasonableness of an award (for example, the multi-million dollar securities class action involving a common fund, often cited by the district courts in evaluating fee requests), there is no explicit limit on attorneys' fees in FLSA actions and district courts should not, in effect and practice, implement such a limit.”) (citation omitted).
Defendants argue that the fee award should be reduced because plaintiffs achieved only a “marginal degree of success” by obtaining a $120,000 payment for three plaintiffs despite an initial settlement demand of “nearly a million dollars.” Opp. at 7-8. While degree of success is an appropriate basis on which to evaluate an attorney fee request, see Patterson v. Balsamico, 440 F.3d 104, 123 (2d Cir. 2006), the settlement resulted not only in a significant payment to plaintiffs but also in the defendants' agreement to dismiss state court countersuits against plaintiffs in which defendants sought at least $500,000 in damages. See Joint Letter, filed Mar. 8, 2023 (Docket # 99), at 7. Also, the parties' joint letter seeking approval of the settlement reflects that the settlement amount ultimately achieved was not so far afield from a realistic expectation of damages in the case. See Id. at 4-6. Thus, we do not view the settlement as warranting any reduction based on degree of success.
Additionally, we question whether a plaintiff's settlement demand is an appropriate baseline for measuring degree of success. If it were, plaintiffs would rarely be awarded attorney's fees since as part of the negotiation process plaintiffs as a strategic matter commonly makes a high demand in order to achieve what they view as a reasonable settlement. If anything, an offer from a defendant that is rejected by plaintiff as too low is a better baseline indicator of the results plaintiffs expected to achieve. See Lohman v. Duryea Borough, 574 F.3d 163, 168-69 (3d Cir. 2009) (because “during trial, [plaintiff] rejected a settlement offer of $75,000.00, an offer more than six times the amount awarded by the jury,” plaintiff's rejection is “probative of the amount he sought in damages”). Here, the only evidence defendants have placed in the record on this point shows that the highest offer plaintiffs rejected was $20,000, see Smikun Decl. ¶ 15 - a number far lower than the settlement they ultimately achieved.
Defendants argue that time relating “landlord-tenant” matters cannot be recovered. Opp. at 17. Several of the entries identified as relating to these matters apparently refer to plaintiffs' efforts to dismiss defendants' counterclaims in this case, which defendants ultimately withdrew. See id. We reject the argument that this time is unrecoverable, given that defendants' own conduct in bringing these “landlord-tenant” claims necessitated plaintiffs' efforts to have them dismissed. Of the remaining entries identified by defendants, a single entry appears to refer to the New York state court landlord-tenant suit, see Billing Record at 3 (entry for Apr. 22, 2022), and plaintiffs explain that the purpose of this time was to ensure that an anticipated settlement agreement in the landlord-tenant case would not impair plaintiff Trinidad's rights in this action, see Reply at 20. That expenditure of time is reasonable in that it served to ensure that Trinidad would be able to pursue his claims in the instant case.
Defendants also argue that the plaintiffs' actions during settlement negotiations should warrant a reduction in fees because plaintiffs' counsel unreasonably failed to settle the case, which would have avoided the expenditure of fees. See Opp. at 18-21. One answer to this argument is that defendants could have cut off attorney's fees at any time by making an offer of judgment under Fed.R.Civ.P. 68 for an appropriate amount. But that is not the only answer inasmuch as we accept that a party who unreasonably rejects a favorable settlement offer may be responsible for having engaged in “unnecessary” subsequent legal work even in the absence of a Rule 68 offer. See, e.g., Greenwich Film Productions, S.A. v. DRG Records, Inc., 1996 WL 502336, at *2 (S.D.N.Y. Sept. 5, 1996) (“Settlements are to be encouraged and a party to an action in which attorney's fees may be awarded should not be allowed to believe that it can reject a reasonable settlement offer and still recover the full amount of its attorney's fees if ultimately it recovers little more than the original offer”); accord Moriarty v. Svec, 233 F.3d 955, 967 (7th Cir. 2000) (“Substantial settlement offers should be considered by the district court as a factor in determining an award of reasonable attorney's fees, even where Rule 68 does not apply. Attorney's fees accumulated after a party rejects a substantial offer provide minimal benefit to the prevailing party, and thus a reasonable attorney's fee may be less than the lodestar calculation.”) (internal citations omitted); Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332, 1337 (4d Cir. 1996) (“[C]ourts may consider a plaintiff's refusal of a settlement offer as one of several proportionality factors guiding their exercise of discretion under [a fee shifting statute].”).
Here, however, we cannot make the finding that plaintiffs acted unreasonably. First, large portions of the defendants' description of settlement negotiations contain no citation to admissible evidentiary matter, see Opp. at 20, and thus cannot form the basis for a ruling on what occurred. In any event, this is not a case where the plaintiffs turned down a settlement offer that was at or greater than (or even near to) what was ultimately agreed to. As already noted, the record supports a finding that the defendants offered at most $20,000, see Smikun Decl. ¶ 15 - a number that presumably included attorney's fees - even though defendants ultimately settled at $120,000 exclusive of attorney's fees. Their pursuit of this case after that offer was plainly reasonable.
We similarly reject the various arguments, made without citation to the record, that plaintiffs acted unreasonably in litigating this case. Opp. at 13-15. Our own review of the record show that if anything it was defendants' own conduct that unnecessarily increased hours expended by plaintiffs' counsel. See, e.g., Rappaport Decl. ¶¶ 34-39.
Defendants argue that plaintiffs are not entitled to an award for hours billed after the December 2023 settlement conference because “th[e] Court stated at that conference [that this time] would not be recoverable.” Opp. at 23. Plaintiffs respond that at the conference, “the parties anticipated that their settlement agreement would limit [RLF's] fees application by excluding fees incurred in connection with this motion,” but argue that this aspect of the agreement does not survive the “extensively-negotiated settlement agreement,” which “contains no such limitation.” Reply at 18. Plaintiffs point to the final settlement agreement, which states that “[p]laintiffs' or [p]laintiffs' counsel's claims . . . for attorney's fees and costs . . . are not waived, compromised and/or released but, instead, will be adjudicated by the Court[.]” Reply at 18-19 (citing Settlement Agreement ¶ 3(b)(v)(A)).
Courts permit “fees on fees” in statutory attorney fee award cases because “motion costs should be granted whenever underlying costs are allowed.” Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999) (quotation omitted); see also Jiminez v. KLB Foods, Inc., 2015 WL 3947273 at *4 (S.D.N.Y. June 29, 2015) (“[c]ourts in this [D]istrict have permitted . . . ‘fees on fees'” for the preparation of FLSA attorney's fees motions). The relevant provision in the parties' agreement permits plaintiffs to seek attorney's fees incurred in this case without any limitation as to the time period when the hours were expended. See Settlement Agreement ¶ 3(b)(v)(A). The parties could certainly have included such a provision had they wished to do so. Because “fees on fees” are legally available, we find that any statement made by the Court as to such fees (of which the Court has no recollection) in its capacity as assisting settlement negotiations cannot override the parties' written agreement.
In light of the other issues identified, including some block billing and vague time entries, a 15% reduction in the hours billed is appropriate. Accordingly, plaintiffs should be awarded the following attorney's fees:
Time Keeper
Hours Claimed
Hours Awarded
Hourly Rate
Total
Marc Rapaport
161.5
137.275
$375.00
$51,478.13
Joselin Orellana
11
9.35
$95.00
$888.25
Karina Gulfo
113.4
96.39
$100.00
$9,639.00
Marcela Cabezas-Rapaport
18.4
15.64
$100.00
$1,564.00
TOTAL
304.3
258.655
n/a
$63,569.38
C. Costs
“The FLSA and NYLL . . . provide that a successful plaintiff may be entitled to costs, which ‘include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.'” Guaman v. J&C Top Fashion, Inc., 2016 WL 791230, at *11 (S.D.N.Y. Feb. 22, 2016) (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998)).
Plaintiffs seek the following costs:
Cost
Amount Requested
Printing
$1,085.75
Postage
$31.40
Travel
$23.40
Translation
$946.00
Court Reporting
$852.75
Service of Process
$775.00
Transcripts
$240.30
PACER Fees
$32.20
Filing Fee
$402.00
Technology Fees
$553.09
TOTAL
$4,941.89
Defendants oppose plaintiffs' request for printing, postage, cell phone data, translation, and production of transcripts. Opp. at 27. Having reviewed the unopposed costs, we find that these are reasonable and should be awarded. We address each opposed cost next.
As to printing, defendants oppose plaintiffs' costs because plaintiffs do not “address[] what was copied.” Opp. at 27. Copying is a standard recoverable cost. See, e.g., Yuajian Lin v. La Vie En Schezuan Rest. Corp., 2020 WL 1819941, at *2 (S.D.N.Y. Apr. 9, 2020) (“[C]osts[] may include photocopying, travel, telephone costs, and postage, as well as filing fees and reasonable process-server fees.”) (punctuation and citation omitted). However, plaintiffs seek reimbursement for 4,343 pages of printing in a case that did not reach summary judgment and offer no explanation for the high amount of costs sought. See Reply at 5-6. Considering this high request and plaintiffs' failure to justify the cost, we find that plaintiffs should be awarded costs for only half of the pages copied. Additionally, although plaintiffs bill copying costs at $0.25 per page, “[c]ourts in this District generally award no more than $0.10 per page in copying expenses.” E.W. v. New York City Dep't of Educ., 2023 WL 3138022, at *14 (S.D.N.Y. Apr. 28, 2023) (collecting cases), adopted in relevant part, 2023 WL 4883324 (S.D.N.Y. July 31, 2023). Accounting for these reductions, plaintiffs should be awarded $217.15 in copying or printing costs.
As to postage, we note that postage is “ordinarily recoverable” in costs for an FLSA or NYLL action. Ni v. Bat-Yam Food Servs. Inc., 2016 WL 369681, at *8 (S.D.N.Y. Jan. 27, 2016) (quoting Teamsters Loc. 814 Welfare Fund v. Dahill Moving & Storage Co., 545 F.Supp.2d 260, 269 (E.D.N.Y. 2008)). The authorities to which defendants cite for their assertion that postage is “not recoverable,” Opp. at 27, address taxable costs under 28 U.S.C. § 1920, not the “reasonable costs” allowable under the FLSA. “Case law reflects that the expenses recoverable under . . . fee-shifting statutes are not limited to the costs taxable by statute and rule such as 28 U.S.C. § 1920; Fed.R.Civ.P. 54(d)(1); and Local Civil Rule 54.1.” Reiter v. Metro. Transp. Auth. of State of N.Y., 2007 WL 2775144, at *21 (S.D.N.Y. Sept. 25, 2007) (collecting cases); accord Cho v. Koam Med. Servs. P.C., 524 F.Supp.2d 202, 211-12 (E.D.N.Y. 2007) (shifting “[n]on-taxable costs” to the losing party in FLSA case as long as these costs are “[i]dentifiable, out-of-pocket expenses, as opposed to ‘non-recoverable routine office overhead, which must normally be absorbed within the attorney's hourly rate”) (citations and internal punctuation omitted). Thus, we conclude that plaintiffs are entitled to postage in the amount requested.
As to the technology costs, plaintiffs explain that these charges were incurred as part of an effort to preserve electronically stored information, including “915 pages” of documents extracted from plaintiffs' cell phones, which plaintiffs aver were the “lynchpin” of their anticipated case at trial. Mem. at 9; see Reply at 7. Defendants cite the same precedent in opposing plaintiffs' “technology” costs as they did for opposing postage, see Opp. at 27, and make no other argument as to why these costs are not recoverable. As we have noted, defendants' precedent relates only to taxable costs, and is inapposite here. Given plaintiffs' duty to preserve and produce the electronically stored information, see Fed.R.Civ.P. 37(e), we find that these costs are the sort of “reasonable out-of-pocket expenses” that attorneys would “ordinarily charge[] to their clients,” see LeBlanc-Sternberg, 143 F.3d at 763. Thus, the technology costs should be awarded in the amount sought.
Defendants oppose the cost of transcripts, arguing that these were not “necessarily obtained for use in the case.” Opp. at 27. “The cost of deposition transcripts may be recovered if they are necessary to the litigation.” Nat'l Integrated Grp. Pension Plan v. Dunhill Food Equip. Corp., 2014 WL 887222 at *11 (E.D.N.Y. Jan. 6, 2014); accord Sai Qin Chen v. East Mkt. Rest., Inc., 2018 WL 3970894, at *5 (S.D.N.Y. Aug. 20, 2018). Although defendants specifically raised the lack of proof as to necessity, Opp. at 27, plaintiffs in reply made no argument on the question of whether the transcripts were “necessary to the litigation.” See Reply. Accordingly, plaintiffs should not be awarded the costs for obtaining transcripts.
Defendants argue that plaintiffs should not be allowed to recover costs incurred for translation because “the [p]laintiffs each spoke English.” Opp. at 27. This assertion is supported by the affidavit of defendant Joy, see id., which even if credited would lead to the conclusion only that Trinidad and Fernandez speak English, since Joy makes no reference to Herrera Sanchez. See Joy Decl. But even to the extent that some plaintiffs may have had a degree of proficiency in English for work purposes, translation services remain useful in guaranteeing that the plaintiffs fully understand the proceedings and can make an informed decision as to settlement. Indeed, plaintiffs make clear that “the interpretation costs were for all three Plaintiffs.” Reply at 6. Accordingly, plaintiffs should be awarded translation costs in full. See Allende, 783 F.Supp.2d at 515 (awarding costs for “interpreters at depositions and the settlement conference”); see also Silva v. Legend Upper West LLC, 590 F.Supp.3d 657, 667 (S.D.N.Y. 2022) (costs for “interpretation services” were “reasonable [and] reimbursable”).
Accounting for the reduction to printing costs and the denial of transcript costs, plaintiffs should be awarded the following costs in connection with RLF's work on this case:
Cost
Amount Requested
Amount Awarded
Printing
$1,085.75
$217.15
Postage
$31.40
$31.40
Travel
$23.40
$23.40
Translation
$946.00
$946.00
Court Reporting
$852.75
$852.75
Service of Process
$775.00
$775.00
Transcripts
$240.30
$0.00
PACER Fees
$32.20
$32.20
Filing Fee
$402.00
$402.00
Technology Fees
$553.09
$553.09
TOTAL
$4,941.89
$3,279.90
In combination with the recommended $63,569.38 in attorney's fees, plaintiffs should be awarded $66,849.28 in attorney's fees and costs.
Conclusion
For the foregoing reasons, plaintiffs' motion for attorney's fees and expenses (Docket # 108) should be granted in the amount of $66,849.28.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Rochon. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).