# Feuer v. Cornerstone Hotels Corp.

> District Court, E.D. New York · October 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10307057

## Case

- **Court:** District Court, E.D. New York
- **Decided:** October 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10307057. Public record. Not legal advice.