Feuer v. Cornerstone Hotels Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

N® 14-CV-5388 (JEB) (SIL) FILED

CLERK

11:53 am, Oct 20, 2021

SETH FEUER AND SUSANN FEUER,

U.S. DISTRICT COURT

Plaintiffs, . EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

VERSUS

CORNERSTONE HOTELS CORP. AND NAEEM BUTT,

Defendants.

MEMORANDUM AND ORDER

October 20, 2621

JOSEPH F, BIANCO, Circuit Judge (sitting by to furnish employees with wage statements

designation): containing certain information each payday;

and (5) N.Y. Lab. Law § 1951), which

Plaintiffs Seth Feuer and Susann Feuer requires employers to furnish employees with

(“plaintiffs”) brought this action against a wage notice containing certain information

Cornerstone Hotels Corp., doing business as, at the time of hiring and on an annual basis.

at various times, Sun N Sand Hotel, Sea (ECF No. 1.) Plaintiffs sought slightly less

Haven Resort, Ocean Breeze Motel, and than $80,000 in damages. (ECF No. 87 at 17-

Longview Motel (“Cornerstone”), and 18.)

Naeem Butt (“Butt,” and collectively with

Cornerstone, “defendants”), asserting claims On January 24, 2020, after a two-day

under the Fair Labor Standards Act bench trial on September 5 and 6, 2018, this

(“FLSA”), 29 U.S.C. § 201 et seg., and the Court issued its findings of fact and

New York Labor Law (“NYLL”), N.Y. Lab. conclusions of law, Feuer v. Cornerstone

Law §§ 190 efseg. and 650 ef seg. Hotels Corp., No. 14-CV-5388 (JFB) (SIL),

Specifically, plaintiffs alleged _ that 2020 WL 401787, at *1 (E.D.N.Y. Jan. 24,

defendants violated the following provisions: 2020). In summary, the Court concluded that

(1) the minimum wage and overtime plaintiffs were entitled to the following relief:

provisions of the FLSA, 29 U.S.C. §§ 206(a), (1) $92 in unpaid wages for violations of the

207(a); (2) the minimum wage and overtime minimum wage provisions of the FLSA and

provisions of the NYLL, N.Y. Lab. Law NYLL relating to Seth Feuer, (2) $92 in

§§ 160, 652(1); (3) the “spread of hours” liquidated damages relating to Seth Feuer;

provisions under the NYLL, N.Y. Comp. (3) $2,700 in statutory damages relating to

Codes R. & Regs tit. 12, § 142-2.4; (4) N.Y. Seth Feuer in connection with his eighteen

Lab. Law § 195(3), which requires employers weeks of employment for violation of the

wage statements and notice provisions under

the NYLL; (4) $2,400 in statutory damages the motion for default judgment, an

relating to Susann Feuer in connection with additional $1,737.00 for which Cornerstone

her sixteen weeks of employment for alone is liable. The Court further concludes

violation of the wage statements and notice that plaintiffs should be awarded the full

provisions under the NYLL; (5) pre- $1,344.91 in reimbursable costs and that the

judgment interest; and (6) post-judgment requested $1,418.09 in taxable costs is

interest. /d. at *1-2 (E.D.N.Y. Jan. 24, 2020). properly taxable.

Presently before the Court is a motion for I. BACKGROUND

fees and costs filed by plaintiffs’ counsel,

Borrelli & Associates, (ECF. No. 106), as A. Factual Background

well as their request for taxation of costs The Court set forth the factual and

(ECF Nos. 101-02). Accompanying their procedural background of this case in its

motion for fees and costs is a memorandum January 24, 2020 Memorandum and Order,

of law (“Pls.’ Mem.”) and an affidavit from see Feuer, 2020 WL 401787, at *2-8, and that

Danielle E. Mietus (“Mietus Aff”) with background is incorporated by reference

attached exhibits. (ECF Nos. 107-08.) In herein.

particular, plaintiffs’ counsel seeks

$50,772.50 in fees for certain tasks and Il. DISCUSSION

$1,344.91 in reimbursable costs. Mr. Butt Plaintiffs’ counsel does not request fees

submitted his objection to the motion on for all of their time spent on this case; rather,

September 28, 2020, principally arguing that as noted above, they request $51,522.50 in

the fee request was excessive in light of fees for certain tasks and $1,344.91 in

plaintiffs’ limited success. (ECF No. 113.) reimbursable costs. (Mietus Aff. qq 46, 82;

Plaintiffs filed a reply on October 15, 2020, ECF No. 114 at 3 n3.)\ In particular,

responding that their fee award need not be plaintiffs seek $48,627.50 for compensation

proportional to the amount of their recovery for the following tasks from both defendants

under governing Second Circuit case law and jointly and severally: (1) $3,625 for drafting

reiterating that their requested fee award is the complaint; (2) $3,512.50 for engaging in

reasonable. (ECF No. 114.) In their reply, discovery and attending nine court

plaintiffs also requested an additional $750 in conferences; (3) $33,410 for bricfing the

fees for time spent preparing that letter brief, motion for ‘partial summary judgment and

which brings the total requested fee amount responding to Butt’s cross-motions to amend

to $51,522.50. (dd. at 30.3.) and to dismiss; (4) $1,750 for conducting the

With respect to their request for taxation first day of the two-day bench trial;

of costs, which was filed along with a Bill of (5) $5,580 for the initial fee application; and

Costs and certain supporting documentation, (6) $750 for their fee application reply.

plaintiffs request that the Clerk of Court tax (Mictus Aff. (38, 44, 47; Pls.” Mem. at 2-3;

their costs in the amount of $1,418.09. (ECF ECF No. 114 at 3 n.3.) Plaintiffs also seek

- $2,895.00 solely against Cornerstone for the

Nos. 101-02.) ,

motion for defauit judgment (ECF Nos. 103-

As explained below, the Court concludes, 05; Pls.’ Mem. at 3.) As to costs, plaintiffs

in its discretion, that the fees requested by request $1,344.91 for their reimbursable

plaintiffs’ counsel are excessive and should expenses, which include reimbursable

be reduced to $29,176.50 for which tnileage costs, Westlaw research costs, and

defendants are jointly and severally liable, mailing, printing, and postage costs, (Mietus

and, for work performed in connection with Aff, | 82 & Ex. C), in addition to taxable

costs in a Bill of Costs submitted on February factor in determining the proper amount of an

24, 2020 in the amount of $1,418.09, (ECF award of attorney’s fees.” Hensley, 461 U.S.

Nos. 101-02). at 440. “Where a plaintiff has obtained

A. Attorneys’ Fees excellent results, his attorney should recover

a fully compensatory fee . . . [even if] the

It is well settled that “[u]nder the FLSA plaintiff failed to prevail on every contention

and the NYLL, a prevailing plaintiff is raised in the lawsuit.” Jd. at 435. “Tf, on the

entitled to reasonable attorneys’ fees and other hand, a plaintiff has achieved only

costs.” Fisher v. SD Prot. Inc., 948 F.3d 593, partial or limited success, the product of

600 (2d Cir. 2020); see also 29 U.S.C. hours reasonably expended on the litigation

§ 216(b); NY. Lab. Law as a whole times a reasonable hourly rate may

§§ 198(1)(a), 663(1). To calculate be an excessive amount, This will be true

reasonable attorneys’ fees, the Court uses the even where the plaintiff's claims were

“lodestar figure,” which is determined by interrelated, nonfrivolous, and raised in good

multiplying the number of hours reasonably faith.” Id. at 436; see also Barfield v. N.Y.C.

expended on a case by a reasonable hourly Health & Hosps. Corp., 537 F.3d 132, 152

rate. See Hensley v. Eckerhart, 461 U.S. 424, (2d Cir. 2008) (“[W]e are mindful of the

433 (1983); Millea v. Metro-North R.R. Co., Supreme Court’s observation that the most

658 F.3d 154, 166 (2d Cir. 2011); Luciano v. critical factor in a district court’s

Olsten Corp., 109 F.3d 111, 115 (2d Cir. determination of what constitutes reasonable

1997). “Both [the Second Circuit] and the attorney’s fees in a given case is the degree

Supreme Court have held that the lodestar .. . of success obtained by the plaintiff.” (internal

creates a ‘presumptively reasonable fee.’” quotation marks omitted)).

Millea, 658 F.3d at 166 (quoting Arbor Hill 1. Reasonable Hourly Rate

Concerned Citizens Neighborhood Assoc. v.

County of Albany, 522 F.3d 182, 183 (2d Cir. A “reasonable hourly rate” is “‘what a

2008)). “[Tyhe lodestar figure includes most, reasonable, paying client would be willing to

if not all, of the relevant factors constituting pay,’ given that such a party wishes ‘to spend

a ‘reasonable’ attorney’s fee.” Perdue v. the minimum necessary to litigate the case

Kenny A. ex rel. Winn, 559 U.S. 542, 553 effectively.’” Bergerson v. N_Y. State Off of

(2010) (quoting Pennsylvania v. Del. Valley Mental Health, Cent. N.Y. Psychiatric Ctr.,

Citizens’ Council for Clean Air, 478 U.S. 652 F.3d 277, 289 (2d Cir. 2011) (quoting

546, 565-66 (1986)). Thus, the Supreme Simmons v. N.Y.C. Transit Auth., 575 F.3d

Court has recognized that “the lodestar 170, 174 (2d Cir, 2009)). This Court follows

method produces an award that roughly the Second Circuit’s “forum rule,” which

approximates the fee that the prevailing “generally requires use of ‘the hourly rates

attorney would have received if he or she had employed in the district in which the

been representing a paying client who was reviewing court sits in calculating the

billed by the hour in a comparable case.” Id. presumptively reasonable fee.’” Jd at 290

at 551. “The burden is on the party seeking (quoting Simmons, 575 F.3d at 174). In

attorney’s fees to submit sufficient evidence Arbor Hill, the Second Circuit also instructed

to support the hours worked and the rates district courts to consider the factors set forth

claimed.” Hugee v. Kimso Apartments, LLC, in Johnson v. Georgia Highway Express,

852 F. Supp. 2d 281, 298 (E.D.N.Y. 2012). Inc., 488 F.2d 714 (5th Cir. 1974), abrogated

on other grounds by Blanchard v. Bergeron,

The Supreme Court has held that “the

extent of a plaintiff's success is a crucial

489 U.S. 87 (1989). See 522 F.3d at 190. The Ultimately, however, “in light of the

twelve Johnson factors are: numerous factors that courts in this circuit

1) the ti d lab ‘red: consider to determine a reasonable hourly

” © mt an 4 ditties ls of the rate, ‘the range of “reasonable” attorney fee

(2)t © nove “h at y hal rates in this district varies depending on the

questions; (3) the level o st type of case, the nature of the litigation, the

required to perform the legal SSIVICE size of the firm, and the expertise of its

properly: © ne preclusion of attorneys.’” Houston, 234 F. Supp. 3d at 402

employment ihe attorney 5 ue 2 (quoting Siracuse v. Program for the Dev. of

acceptance of the case; ( ) the Human Potential, No. 07-CV-2205 (CLP),

attomey’s customary hourly rate; 2012 WL 1624291, at *30 (B.D.N.Y. Apr.

(6) whether the fee is fixed or 30, 2012)) °

contingent; (7) the time limitations

imposed by the client or the 2. Hours Reasonably Expended

cecum; @) temo “The pay seking tomy’ fs als

obtained, (9) the experience bears the burden of establishing that the

reputation and ability ye the number of hours for which compensation is

attorneys; (10) the “undesirability” of sought is reasonable.” Custodio v. Am. Chain

. Link & Constr., Inc., No. 06-CV-7148 (GBD)

the case; (11) the nature and length of (HBP), 2014 WL 116147, at *9 (SD.N.Y

the professional relationship with the Jan. 1 2014) (citin Cruz Local Union

client; and (12) awards in similar

cases. No. 3 of Int'l Brotherhood of Elec. Workers,

34 F.3d 1148, 1160 (@d Cir. 1994)).

fd. at 186 n.3 (quoting Johnson, 488 F.2d at “Applications for fee awards should

717-19). “The burden rests with the generally be documented by

prevailing party “to justify the reasonableness contemporaneously created time records that

of the requested rate.’” Hugee, 852 F. Supp. specify, for each attorney, the date, the hours

2d at 298 (quoting Blum v. Stenson, 465 US. expended, and the nature of the work done.”

886, 895 n.11 (1984)). Kirsch y. Fleet St, Ltd., 148 F.3d 149, 173

2d Cir. . “A hat ‘ ive,

Courts in this district have concluded that or 8). onwine Ann e noes ary Sore 0

$200 to $450 per hour is a reasonable hourly be exclud ed, and in dealing with such

rate for partners, $200 to $ 325 per hour is surplusage, the court has discretion simply to

reasonable for senior associates, and $100 to deduct a reasonable percentage of the number

$200 per hour is reasonable for more junior of hours claimed ‘as a practical means of

associates. See Joe Hand Promotions, Inc. v. +s + ewes 239

. , trimming fat from a fee application.’” Jd.

soon ae 9 soo er a ws > oe (first quoting Hensley, 461 U.S. at 434; then

2020 WL 99 »at “7 (ED. 2 AUB. O15 quoting N.Y. Ass’n for Retarded Children,

2020), report and recommendation adopted, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.

2020 WL 5517240 (E.D.N.Y. Sept. 14, 1983)); see also Lunday v. City of Albany, 42

2020); Houston v. Cotter, 234 F. Supp. 3d F.3d 131, 134 (2d Cir. 1994) (“We do not

vn 7) come sass 61 require that the court set forth item-by-item

N v. 3 O1d F. te 5 3 >” findings concerning what may be countless

(E.D.N.Y. )); Gane v. U.S. Limousine objections to individual billing items.”).

Serv, Lid., No. 10-CV-3027 (FB) (AKT), Finally, when the Court makes □□□□

2015 WL 1529772, at *5 (E.D.N.Y. Apr. 2, determination, it “does not play the role of an

2015) (collecting cases).

uninformed arbiter but may look to its own Dong Senior [$250 1131.6 $32,900.00

familiarity with the case and its experience Phuong V. |Associate

generally as well as to the evidentiary Nguyen

submissions and arguments of the parties.” H. Joseph Benior | 250 f.7 1425.00

Gierlinger v, Gleason, 160 F.3d 858, 876 (2d Cronen {Associate

Cir, 1998) (quoting DiFilippo v. Morizio, 759 eter J. Benior | se for Ba.7s00

F.2d 231, 235-36 (2d Cir. 1985)). nS ee

Michael J. Renior | 250 5.2 $1,300.00

3. Application Palitz Associate

Tok |_| p73 651,522.50

a, Reasonable Hourly Rates

: .

Plaintiffs seek an hourly rate for their (Mietus Aff. | 46; ECF No. 114 at 3 1.3.)

attorneys as follows: (1) $400 per hour for

managing partner Michael J. Borrelli; As a threshold matter, the Court

(2) $350 per hour for partner Alexander T. concludes that the time records provided by

Coleman and $325 for the time he billed Borrelli & Associates generally meet the

before he became a partner; (3) $200 per hour requirements for an award of attorneys □□□□□

for associate Danielle E. Mietus; and (Mietus Aff., Ex. A.) As noted above, “[t]he

oo ° burden is on the party seeking attorney’s fees

(4) $250 per hour for other associates. (Pls. : : .

Mem. at 7.) Borrelli & Associates has to submit sufficient evidence to support the

submitted records and an affidavit attesting to nes rked ane ne 98 tine He ee

their legal experience and work on this SUPP. NB AEMSEEY»

matter, (See Mietus Aff. 52-80 & Ex. B.) U.S. at 433). Thus, fee applications must be

, , — supported by contemporaneous records that

In light of the prevailing hourly rates in “specify, for each attorney, the date, the hours

this district, and all the other factors set forth expended, and the nature of the work done.”

in Arbor Hill, the Court concludes that these Carey, 711 F.2d at 1148; accord Fisher, 948

requested rates are reasonable. F.3d at 600. Although some of the time

entries that plaintiffs’ counsel submitted are

b. Reasonable Hours generalized, such as “File Review,” the Court

The rates and hours requested are as concludes that plaintiffs met their burden

follows: here.

Name | Rate [Hours | Total With respect to the hours expended,

ne Position ae ours aa counsel explains that they spent 694.6 hours

Michael). Partner 400 71 40.00 | on this matter, but only seek fees for 207.3

hours for certain tasks. (Mietus Aff. | 46 &

. {Dp 4 . .

Alexander Partner $350 13.8 4,890.00 Ex. A; ECF No. 114 at 3 n.3.) Specifically,

Coleman based on counsel’s time records, they seek

‘Alexander Senior ($325 6.5 [$812.50 the following compensation, broken down by

T. Counsel task:

Coleman

Danielle Associate 37.7 $7,540.00

E. Mietus

| This chart reflects the additional 3 hours that reply for the instant motion. (See ECF No. 114

plaintiffs requested for time spent preparing the at 3.3.)

complaint]—were excessive in light of the

level of difficulty and complexity of this

” ducing th: rti

$3,512.50 50%) and reducing that portion of the fee by

Scr [mean

Motion 130 | $33,410.00 In addition, the Court concludes that 130

$1,750.00 hours spent on the motion for summary

judgment and related briefing, for a total

Default Judgment charge of $33,410, is excessive. Although

Motion 13.5 | $2,895.00 plaintiffs also had to respond to Butt’s pro se

$750.00 motions to amend and dismiss at that stage,

none of the issues presented were particularly

ofa $51,522.50 challenging. See, eg, Big R Food

. Warehouses v. Local 338 RWDSU, 896 F.

(Mietus Aff. Ex. A; ECF No. 114 at 3 n.3.) Supp. 292, 299 (E.D.N.Y. 1995) (reducing

Even with this voluntarily reduced number of hours from 31.5 to 26.5 hours for

lodestar figure, the Court finds the number of a □□□ tools cr novel” isauesy t “ue

hours expended by Borrelli & Associates to vrsys

be unreasonable because the hours requested also DiFilippo, 759 ¥.2d at 235 (stating that,

are excessive given the nature of this although the . fact that a case is

particular case. See Millea, 658 F.3d at 167 straightforward is not grounds to reduce a

(“[Wyhile a district court may not adjust the lodestar award ..., the nature of the case does

lodestar based on [the novelty and raise the issue of the propriety of the

complexity of a case], it may use [those proposed lodestar amount”). This is in

factors] to determine the reasonable number he □□ he. distric t such tf ae t ae □□

of hours the case requires.”). In its review of ore te t te ON seb 9 1 987 d

their billing records for the tasks for which OUFS speny Between INOveMIoer 7 an

compensation is sought, the Court finds April 18, 1988 preparing for and responding

various instances of excessive billing, even as to “efencants Summary, Judgment he me

to the lower revised hours submitted by ek dant y warrante ’ Seed. °

plaintiffs’ counsel, that warrant reduction. crendants eee eee Is a cfidevite

See Kirsch, 148 F.3d at 173 (“{T]he court has opening memorandum OF abiaavi's

discretion simply to deduct a reasonable totalling [sic] 42 pages, a 22-page Local Civil

percentage of the number of hours claimed as Rule 3(g) statement (with an additional 482

a practical means of trimming fat from a fee bree” Or a me 1 se SD wey

application[.]” (internal quotation marks ner SUPP. oo (S.D. □

omitted)). 1991). In this case, the motion for partial

summary judgment, and Butt’s pre se cross-

For example, the Court finds that 14.2 motions, simply did not warrant 130 hours of

hours spent on a relatively straightforward attorney work.

- -and- lai Le

$3 Be waze-and Nour See am ‘ora fotal Moreover, as to the fee application itself,

Hu dson Valley Fed Cre dit Oa No. 1 4. courts in this Circuit have recognized a

CV-529] (KBF) 01 6 WL 88 4667 at «9 prevailing party’s right to recover fees for

(S.D.N.Y. Mar 8 2016) (finding that “19.9 time spent on the motion for attorneys’ fees

hours worked at a rate of $400 per hour, for a see See, a ; jake io oN we ont 0 i 4

total charge of $5,160 ffor drafting the - Supp. » 412 (ED.N.Y. 2001).

Plaintiffs argue that their request for judgment. See, e.g., Big R Food Warehouses,

compensation for the initial fee application is 896 F. Supp. at 298. However, plaintiffs’

reasonable because it constitutes 26 hours, or submissions related to their request for a

12.7% of the total billable hours in this matter certificate of default and motion for default

(amounting to a total charge of $5,580), and judgment did little more than rehash the

provide case law in which courts have background and procedural history of this

permitted fees for such applications that were case, much of which could have been gleaned

8-24% of the total time for which fees were from plaintiffs’ own prior filings. (See ECF

requested. (Pls.’ Mem. at 16.) Courts in this Nos. 97-98, 103-04.) Simply put, these

Circuit, however, have also found that a submissions do not warrant 13.5 hours of

reasonable number of hours to award for a legal services.

motion for attorneys’ fees is between 5 and , vo

hours. See Murray ex rel. Murray v. Mills, The Court's decision to reduce the

354 F, Supp. 2d 231, 241 (E.D.N.Y. 2005); requested fee award is further buttressed by

see also Standish v. Fed. Express Corp. Long the degree of success obtained by plaintiffs.

Term Disability Plan, No. 15-CV-6226 As the Supreme Court has emphasized, the

(MAT), 2017 WL 874689, at *3 (W.D.N.Y. degree of success is a critical factor in the fee

Mar. 6, 2017) (finding 4.4 hours reasonable); analysis. Hensley » 461 U.S. at 436, Here,

Savino v. Computer Credit, Inc., 71 F. Supp. plaintifis originally sought: (1) for Seth

2d 173, 178-79 (E.D.N.Y. 1999) (reducing Feuer, $33,143.03 in unpaid minimum wage

the number of compensable hours from the and overtime comp ensation, $1,040 in unpaid

claimed amount of 40 to a total of 5 for the spread-of hours compensation, $34,183.03 in

plaintiffs second fee request); see also Big R liquidated damages, and $2,700 in statutory

Food Warehouses, 896 F. Supp. at 299 damages under NYLL 19; and @) for

(deducting 7.5 hours and recommending an Susann Feuer, $2,596.88 in unpaid minimum

award of “12 hours for the preparation of Wages, $2,596.88 in liquidated damages, and

attorney’s fees [motion]” where “the issue $2,700 in statutory damages under NYLL

involved was not complex, nor did it require § 195. (ECF No, 87 at 17-18.) However, the

extensive or exhaustive research” and “the Court ultimately awarded a total of $5,224.68

attorneys recited the facts which have already for both plaintiffs. (ECF No. 95.)

been cited in previous court documents, The Court finds that the limited degree of

reiterated the attorneys’ _ personal success here warrants a reduction. Plaintiffs

background, and most importantly, did not were not successful on a number of claims; in

state why the time spent was reasonable”). particular, the Court determined □□□□

Under the circumstances of this particular “plaintiffs have not demonstrated that Susann

case, the Court finds that the amount Feuer is owed any unpaid minimum wages,

requested in connection with the preparation and they failed to prove that either plaintiff is

of the instant fee application is unreasonably entitled to spread-of-hours pay or overtime

high. compensation.” See Feuer, 2020 WL

The Court also finds that 13.5 hours spent 401787, at "12. ‘the Cou mt reached this

pursuing a default judgment against conclusion in part because it credited Butt’s

Cornerstone, amounting to a total of $2,895 testimony Over _Blaintifis testimony and

in requested fees, is excessive. To be sure, because plaintitis failed to _P rovide

the Court recognizes that prevailing plaintiffs documentation to substantiate their claims.

are entitled to fees for work performed in id. at 6-7. As a result, plaintiffs’ degree of

connection with motions for default success in this case was rather limited.

Plaintiffs’ counsel argues that their work weeks worked were extremely minor and

on these discrete tasks, such as the complaint would have required little, if any, time in

and the summary judgment motion, “would discovery or at trial to resolve.’ As to the

[not] have been meaningfully different if other successful portion of the claims, even if

Plaintiffs were only engaging in these tasks a trial were necessary for plaintiffs to

to pursue their successful claims, because all establish the failure to pay $92 in wages for

claims as it pertains to these tasks involved a Seth Feuer’s first week of work, plaintiffs

common core of facts.” (Pls.” Mem. at 13.) proved that fact through a series of

The Court disagrees. The nature of the contemporaneous emails that (combined with

attorneys’ work would have been the relevant testimony on that discrete issue)

qualitatively different if the only claims would have taken little time to present at a

being litigated were the portions of plaintiffs’ bench trial. In short, the Court concludes that

claims that were ultimately successful— it would have taken materially fewer attorney

namely: (1) the failure to pay Seth Feuer $92 hours (even as compared to the already-

in wages for his first week of work; and lowered amount sought by _ plaintiffs’

(2) the violation of the wage statements and counsel) to only prove the defendants’ failure

notice provisions under the NYLL as to Seth to pay Seth Feuer $92 in wages for his first

Feuer and Susann Feuer. For example, the week of work, and the violation of the wage

discovery on those discrete issues would statements and notice provisions under the

have been much narrower than the substantial NYLL as to Seth Feuer and Susann Feuer.

discovery related to the broader, unsuccessful . .

portions of the claim (that related to, inter . This case, therefore, differs from the

alia, disputes over overtime issues during the situation in Perey ma Y. Fancy 37 Cleaners,

entire summer). More importantly, it was Inc. where the plaintiff's only unsuccessful

uncontroverted on summary judgment that claim was his federal manimturn Wage claim,

defendants had violated the wage statements and where he p revailed on his remaining state

and notice provisions under the NYLL.? and federal Te claims and nis state

. minimum wage and spread of hours claims.

Thus, no trial at all would have been No. 11 CIV. 1522 (RIS), 2014 WL

necessary to establish liability for that claim. 1257571 #8 (SDNY. Feb. 28. 2014

In terms of the calculation of the statutory S718, at . (S.D.N.Y. Feb.

damages for those claims, the disputes Because the □ ingle unsuccessful claim “did

between the parties regarding the number of not add significant costs or efforts beyond

what would have been expended on the other

In fact, in their memorandum of law in support of NYLL 195(1) and (3).” (ECF No, 56 at 10)

of their motion for partial summary judgment, (citations omitted).

laintiffs explained: “Here, it is undisputed that . .

Defendants failed to properly provide Plaintiff * As discussed in the Court’s January 24th

with wage notices at hire in violation of NYLL Memorandum and Order: (1) Seth Feuer testified

195(1) or with wage statements on each payday that he worked from May 3; 2014 through

in violation of NYLL 195(3). Indeed, Defendant September 8, 2014, while Butt testified that he

Butt admitted that Defendants never provided began working on May 6, 2014 and that his last

Plaintiffs with a wage notice at the time of their day was on September 2, 2014; and (2) Susann

hire. Defendant Butt further admitted that Feuer testified that she worked from May 2, 2014

Defendants never provided Plaintiffs with a wage through September 6, 2014, while Butt testified

statement on each payday and instead paid them that she started “participating mM Seth Feuer's

in cash. Therefore, Plaintiffs are clearly entitled wou Sep vey Ort □□ ee OW

to statutory damages for Defendants’ violations 401787, at *4, 6-7.

claims,” the district court did not reduce, the application’” (quoting Kirsch, 148 F.3d at

attorneys’ fee. /d In this case, although the 173)).

unsuccessful spread-of-hours and overtime . Lo, . .

claims were based on the same set of records . This level of reduction is consistent with

as the minimum wage claim, the latter claim discretionary decisions by other courts under

was only partially successful for Seth Feuer similar circumstances and, in fact, some

(as to this first week of work), and the courts have imposed sreoioue cheumstances,

reductions in more eg circumstances.

successtul apreat or hours and overtime See, e.g., Raja v. Burns, No. 19-CV-1328

claims were wholly distinct from the other,

successful NYLL statutory violations. For (AMD) (RER), 2021 WL 1394638, at 8

Susann Feuer in particular, her only (E.D.N.Y ‘ Feb. 2, 2021) (recommending

successful claims involved the NYLL imposition of “a 40% ACTOSS the board cut of

statutory violations, which had nothing to do all hours expended on the litigation” because,

with the number of hours she did or did not among other things, plaintiff achieved

work. In such situations, even where the time limited success on his claims), report and

entries do not delineate work on the recommendation adopted, 2021 WL 1099931

successful claims as compared to the (E.D.N.Y. Mat. 23, 2021); DeVito v.

unsuccessful claims, a court can in its Hempstead China Shop, Inc., 831 F. Sup P.

discretion utilize an across-the-board cut. 1037, 1045 (B.D.N.Y, 1993) (reducing

See, e.g., Todaro v. Siegel Fenchel & Peddy, attorneys requested tee award by 4 0% due to

P.C, 697 F. Supp. 2d 395, 401 (ED.N.Y. duplication of work and “the insufficient

2010) (applying a 30% fee reduction even descriptions of some of the work done and the

though the unsuccessful claim had a Oey for such vor ); cals ° Komeo □

significant amount of “overlap” because of ullelle Laser Hair Removal, INC. V. ASSAF

“how much time [p]laintiff’s counsel would LLC, No. 08 clV. 442 (TPG) (FM), 2013 WL

have saved by not litigating [plaintiff's] 3322249, at *6, 8 (S.D.N.Y. July 2, 2013)

unsuccessful claim”).4 (reducing fee request by 19% due to

“numerous inefficiencies and instances of

Based on the excessive hours and limited excessive billing” and the “relative simplicity

degree of success, the Court concludes that a of the matters in dispute”), aff'd, 679 F.

40% across-the-board reduction to the fees App’x 33 (2d Cir. 2017); Shim v. Millennium

sought by Borrelli & Associates is warranted. Grp., No. 08-CV-4022 (FB) (VVP), 2010

See, ¢.g., Monette v. County of Nassau, No. WL 2772493, at *6 (E.D.N.Y. June 21, 2010)

11-CV-539 (JFB) (AKT), 2016 WL (reducing fees by two-thirds due to excessive

4145798, at *6 (E.D.N.Y. Aug. 4, 2016) billing), report and recommendation

(explaining that “the court has discretion adopted, 2010 WL 2772342 (E.D.NLY. July

simply to deduct a reasonable percentage of 12, 2010); Falleson v. Paul T. Freund Corp.,

the number of hours claimed ‘as a practical 736 F. Supp. 2d 673, 676 (W.D.N.Y. 2010)

means of trimming fat from a fee (reducing hours by 60% because “the number

of hours expended was excessive,

* The Court recognizes that “the simple court abused its discretion when it ignored the

disproportion between a plaintiff's recovery and lodestar and calculated the attorneys’ fees as a

the fee applied for is not a proper basis for a proportion of the damages awarded”), and

reduction in an otherwise reasonable fee,” Kahlil emphasizes that such a disproportion was not

v. Original Old Homestead Rest, Inc., 657 F. considered by the Court when deciding this

Supp. 2d 470, 478 (S.D.N.Y. 2009); see also motion.

Millea, 658 F.3d at 169 (holding that “the district

particularly in light of the fact that this matter matters and court conferences, summary

never reached the point of collective action judgment and related briefing, the bench trial,

certification and because the results achieved and the instant fees motion. Additionally,

are dramatically disproportionate to plaintiffs are awarded $1,737.00 in fees

the fees requested”); Days Inn Worldwide, attributable to work performed in connection

Inc. y. Amar Hotels, Inc., No. 05-CTV-10100 with the motion for default judgment, for

(KMW) (KNF), 2008 WL 2485407, at *10 which only Cornerstone is liable.

(S.D.N.Y. June 18, 2008) (reducing fee

award by 75% because the defendant had B. Costs

defaulted). As noted above, plaintiffs seek $1,344.91

In reducing counsel’s request, the Court in reimbursable costs. (Mietus Aff. | 82 &

does not suggest that counsel was ineffective Ex. C.) Plaintiffs have also separately

in any respect; to the contrary, the Court submitted a request for taxable costs in the

recognizes the hard, competent work amount of $1,418.09 in a Bill of Costs. (ECF

performed by plaintiffs’ attorneys throughout Nos. 101-02).

the case, as reflected in the billing entries. “Pursuant to 28 U.S.C. § 1920 and Local

The Court further appreciates that counsel Rule 54.1, taxable costs, such as filing and

significantly jiowered the requested fee subpoena fees as well as monies expended for

amount (as compared to the total hours transcripts, printing, copying, and witnesses

expended) prior to submitting the motion and are shifted to the losing party.” Cho v. Koam

believes that counsel should be commended Med. Servs. P.C., 524 F, Supp. 2d 202, □□□□

for that voluntary action. However, 12 (E.D.N.Y. 2007). Moreover, “[nJon-

notwithstanding counsel’s expenditures of taxable costs also are shifted to the losing

time and the voluntary reduction of the fees party in a case like this where a statute[,]

being sought, the Court, having presided over [such as the FLSA and NYLL,”] provides for

the case and the trial, concludes that this 40% the shifting of attorneys’ fees[.]” Jd. at 212.

additional reduction is necessary in order for Thus, in such circumstances, “a court will

the amount to constitute a reasonable fee generally award ‘those reasonable out-of-

under the particular circumstances of this pocket expenses incurred by attorneys and

case. ordinarily charged to their clients.’”

. : 0 . Pennacchio v. Powers, No. 05-CV-985

Accordingly, with the 40% reduction, the (RRM) (RML), 2011 WL 2945825, at #2

ourt calculates the lodestar to be .

$30,913.50. The Court sees no reason to (E.D.N.Y. July 21, 2011) (quoting LeBlanc-

depart further from this lodestar figure in this Sternberg ¥. Fletcher, 143 F.3d 748, 763 (2d

case. See, e.g., Perdue, 559 US. at 553 Cir. 1998), Such reimbursable costs

(explaining that lodestar figure includes include filing fees, process servers, postage,

“most, if not all,” relevant factors in setting travel, and photocopying, as well as legal

reasonable attorney’s fees). research costs. Trs. of the Pavers & Rd.

Builders Dist. Council Welfare v. MC.

Plaintiffs are therefore awarded—and Landscape Grp., Inc., No. 12-CV-00834

defendants are jointly and severally liable (CBA) (VMS), 2016 WL 6998640, at *8

for—$29,176.50 in fees attributable to work (E.D.N.Y. Aug. 25, 2016) (quoting Capone

related to drafting the complaint, discovery v. Patchogue-Medford Union Free Sch. Dist.,

5 See 29 U.S.C. §216(b); N.Y. Lab. Law

$§ 198(1)(a), 663(1).

10

No. 04-CV-2947 (JS) (MLO), 2011 WL explain, however, that they do not have

743573, at *5 (E.D.N.Y. Feb. 23, 2011)), corresponding receipts for “postage, certain

report and recommendation adopted, 2016 travel expense for inter alia, court

WL 7017336 (E.D.N.Y. Nov. 30, 2016). The conferences, printing and copying, [or]

moving party “bears the burden of adequately Westlaw legal research.” (Mietus Aff. 7 85.)

documenting and itemizing the costs As with the taxable costs, after reviewing the

requested.” First Keystone Consultants, Inc. record, the Court finds the request for

v. Schlesinger Elec. Contractors, Inc., No. reimbursable costs to be allowable,

10-CV-696 (KAM) (SMG), 2013 WL reasonable, and sufficiently documented, and

950573, at *10 (E.D.N.Y. Mar. 12, 2013) therefore will award plaintiffs $1,344.91 in

(internal quotation marks omitted). In reimbursabie, non-taxable costs as requested.

particular, “[p]laintiffs must submit receipts,

invoices, ot other evidence to support ‘the Together, the awarded taxable and non-

costs requested.” McFarlane v. Harry’s taxable costs amount to $2,763.00.

Nurses Registry, 17-CV-6350 (PKC) (PK), Ill. CONCLUSION

2021 WL 2646327, at *5 (E.D.N.Y. June 28,

2021) (internal quotation marks omitted). For the reasons set forth herein, the Court,

in the exercise of its discretion, awards

Here, plaintiffs submitted a Bill of Costs, Borrelli & Associates $29,176.50 in

requesting that the Clerk of Court tax their attorneys’ fees for which defendants are

costs in the amount of $1,418.09, consisting jointly and severally liable, and an additional

of $413.70 in fees to the Clerk of Court, $1,737.00 in attorneys’ fees for which

$150.00 in fees associated with service of the Cornerstone alone is liable. In addition, the

summons and complaint, $731.50 in fees for Court awards Borrelli & Associates

printed or electronically recorded transcripts $2,763.00 in costs, which amount includes

necessarily obtained for use in this case, both taxable and non-taxable costs, for which

$100.39 for witness fees, and $22.50 for defendants are jointly and severally liable.

docket fees. (See ECF Nos. 101-02.) In Finally, the Clerk of Court shall mail a copy

support of the Bill of Costs, plaintiffs of this order to defendants.

submitted an internal statement of costs, as

well as certain receipts and invoices, to sol ORDER.

substantiate their request. (See ECF Nos. /s/Joseph F. Bianco

102-1, 102-2.) Upon reviewing the record,

the Court finds these costs to be reasonable JOSH BLAIR mm

and therefore concludes that the requested Un Ss Circuit Judge

$1,418.09 is properly taxable. (Sitting by Designation)

As to the requested non-taxable—or Dated: October 20, 2021

reimbursable—costs, plaintiffs request Central Islip, NY

$1,344.91, which includes $454.75 in ,

mileage costs, $457.40 in legal research +e

vote co se “iets tab Pls lem, Plaintiffs are represented by Alexander T.

at 18.) To substantiate these costs, plaintiffs Coleman, B orrelli & Associates, P.L.L.C.,

submitted, along with their affidavit, a billing 910 Franklin Avenue, Suite 200, Garden

statement as well as certain receipts and City, N¥ 11530.

invoices. (Mietus Aff. Exs. C & D.) They

il

Defendant Naeem Butt proceeds pro se,

52 Longview Road, Southampton, NY

11968. Defendant Cornerstone Hotels Corp.

is unrepresented.

12