Liu v. Little Saigon Cuisine Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ZHENDONG LIU,

Individually and on behalf of all other

employees similarly situated,

Plaintiff, MEMORANDUM AND ORDER

-against- 18-CV-2181 (RPK)

LITTLE SAIGON CUISINE INC.,

d/b/a Little Saigon Cuisine; and

CHRISTY ZHANG,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

Plaintiff Zhendong Liu moves for a judgment of attorney’s fees and costs. I grant the

motion in part and award $15,781.25 in attorney’s fees and $2,214.34 in costs.

BACKGROUND

Plaintiff Zhendong Liu brought this suit alleging violations of the Fair Labor Standards Act

(“FLSA”) and the New York Labor Law (“NYLL”) by his former employer, Little Saigon Cuisine

Inc., and its owner, Christy Zhang. See Compl. (Dkt. #1). By and large, plaintiff’s claims failed.

During a one-day bench trial on August 10, 2020, I entered judgment for defendants on plaintiff’s

three FLSA claims: failure to reimburse for expenses relating to “tools of the trade,” see Bench

Trial Tr. 68:4–10; failure to pay the minimum wage, see id. at 68:11–69:10; and failure to pay

overtime, see ibid.

After trial, I entered judgment for defendants on three of plaintiff’s NYLL claims and for

plaintiff on two others. Defendants prevailed on plaintiff’s NYLL claims for unpaid minimum

wages; unpaid overtime; and unpaid spread-of-hours compensation. See Bench Tr. Op. 19, 23–25

(Dkt. #62). Plaintiff prevailed on his recordkeeping claims: that defendants failed to provide

plaintiff, “at the time of hiring,” with the written wage notice required by NYLL § 195(1)(a), see

id. at 25–27, and that defendants failed to provide plaintiff with regular wage statements, in

violation of NYLL § 195(3), see id. at 28–29. I awarded plaintiff statutory damages of $7,500 for

these two violations—$2,500 under § 195(1)(a) and $5,000 under § 195(3). See id. at 31.

Plaintiff then filed a motion for attorney’s fees and costs under the NYLL. See Pl.’s Mem.

in Supp. of Mot. for Atty.’s Fees & Costs (Dkt. #64) (“Pl.’s Mot.”). The application seeks

$50,615.00 in attorney’s fees for 170.7 hours of work by Hang & Associates PLLC, see Invoice

1–7 (Dkt. #65-1), along with $2,214.34 in costs, see id. at 7.

DISCUSSION

For the reasons explained below, Zhendong Liu is entitled to $15,781.25 in attorney’s fees

and $2,214.34 in costs.

I. Attorney’s Fees

New York law provides for an award of “costs and reasonable attorney’s fees” to plaintiff.

N.Y. Lab. Law § 198(1-b), (1-d). Defendants are correct that plaintiff’s recovery was modest. See

Defs.’ Opp’n to Pl.’s Mot. 3 (Dkt. #68) (“Defs.’ Opp’n”) (contending that plaintiff should not

recover fees because he prevailed on only “miscellaneous claims” yielding “totally ‘nominal’”

damages). But the NYLL expressly provides for awards of attorney’s fees and costs on

recordkeeping claims despite the modest statutory caps on damages for such claims. See N.Y.

Lab. Law § 198(1-b), (1-d). Accordingly, the modest amount of damages recovered does not

justify refraining from making an award of fees. See Sanchez v. Oceanside First Class Roofing,

Inc., 818 F. App’x 106, 107 (2d Cir. 2020).

The parties agree that the starting point for an attorney’s fees calculation under the NYLL,

as under the FLSA, is the lodestar method. See Pl.’s Mot. 4; Defs.’ Opp’n 3; Sanchez v. First

Class Home Improvement, LLC, No. 16-CV-2064 (DRH) (ARL), 2019 WL 4593484, at *2–4

(E.D.N.Y. Sept. 23, 2019), aff’d in part, rev’d in part, 818 F. App’x 106; see also Matakov v. Kel-

Tech Const., Inc., 924 N.Y.S.2d 344, 346 (App. Div. 2011). The “lodestar,” which “creates a

presumptively reasonable fee,” is defined as “the product of a reasonable hourly rate and the

reasonable number of hours required by the case.” Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166

(2d Cir. 2011) (internal quotation marks and citation omitted). Factors that may inform whether a

fee is reasonable include “[t]he time and labor required” in litigating a case,” “[t]he novelty and

difficulty of the questions” involved, “[t]he skill requisite to perform the legal service properly,”

“[t]he customary fee for similar work in the community,” “[t]he experience, reputation, and ability

of the attorneys,” “[t]he . . . results obtained,” and “[a]wards in similar cases.” Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974), abrogated on other grounds by

Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Lilly v. City of New York, 934 F.3d 222, 233 (2d

Cir. 2019) (explaining that the Johnson factors “remain important tools for helping district courts

calculate the lodestar”). “The party seeking fees bears the burden of demonstrating that its

requested hours and hourly rates are reasonable,” Samaniego v. HKS Builders & Consultants Inc.,

No. 19-CV-10283 (KPF), 2021 WL 638956, at *3 (S.D.N.Y. Feb. 17, 2021), and “must submit

adequate documentation supporting the requested attorneys’ fees and costs,” Fisher v. SD

Protection Inc., 948 F.3d 593, 600 (2d Cir. 2020).

A. Reasonable Hourly Rates

Attorney Shan Zhu’s reasonable hourly rate is $175, Jian Hang’s is $250, Lian Zhu’s

is $100, Keli Liu’s is $200, and Rui Ma’s is $200.

“The reasonable hourly rate is the rate a paying client would be willing to pay . . . bear[ing]

in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case

effectively.” Lilly, 934 F.3d at 231 (quoting Arbor Hill Concern Citizens Neighborhood Ass’n v.

Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008)). Generally, courts “use the hourly rates

employed in the district in which the reviewing court sits,” Restivo v. Hessemann, 846 F.3d 547,

590 (2d Cir. 2017) (citation omitted), “for similar services by lawyers of reasonably comparable

skill, experience, and reputation,” Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998). But

district courts have “considerable discretion[] to bear in mind all of the case-specific variables . . .

relevant to . . . a reasonable hourly rate,” including the attorney’s experience and the complexity

of the litigation. Lilly, 934 F.3d at 232 (quoting Arbor Hill, 522 F.3d at 190). In this district,

“approved hourly rates for attorneys normally range from $200 to $450 for partners in law firms,

$200 to $325 for senior associates, $100 to $200 for junior associates, and $70 to $100 for

paralegals.” Chocolatl v. Rendezvous Cafe, Inc., No. 18-CV-3372 (CBA) (VMS), 2019 WL

5694104, at *14 (E.D.N.Y. Aug. 16, 2019) (internal quotation marks and citation omitted), report

and recommendation adopted, 2020 WL 1270891 (E.D.N.Y. Mar. 17, 2020).

Shan Zhu is entitled to $175 per hour for his work as lead trial counsel in his case. Shan

Zhu was a junior associate who had just two years of litigation experience at the time of trial. And

his presentation of his client’s case—in which plaintiff was the sole witness—reflected a level of

preparation too limited to support the $300 hourly fee plaintiff requests. Also relevant to Shan

Zhu’s rate, plaintiff’s testimony at trial indicated serious deficiencies in the firm’s pretrial

preparations. As plaintiff admitted at trial, the complaint contained numerous material

misrepresentations. Among them: (1) that plaintiff worked as a “food delivery worker” for

defendants, see Compl. ¶ 7; Bench Trial Tr. 42:4–8 (“A: That is an inaccurate statement.”); (2) that

plaintiff had to purchase a car “with his own money” and “make repairs and maintenance to [that]

vehicle in order to perform deliveries,” see Compl. ¶ 90; Bench Trial Tr. 34:13–14 (“Q: So then

you do not use a vehicle to make deliveries?” “A: I did not.”); (3) that plaintiff “incurred a total of

approximately $1,100 in [unreimbursed] tickets during the course of making deliveries for the

Defendants,” see Compl. ¶ 90; Bench Trial Tr. 35:13–16 (“A: I have not had any ticket[s].”); and

(4) that plaintiff “spent around $108 on average per week on gasoline for making food deliveries,”

see Compl. ¶ 90; Bench Trial Tr. 35:20–23 (“A: That’s not accurate.”). Each of these

representations went to the heart of plaintiff’s claims for unpaid wages and overtime. Overall,

I join another court in this district in concluding that where, as here, “the pre-trial management of

this case by [Hang & Associates] was uneven at best, leading to a trial that was marked by

inadequate preparation and organization,” reasonable hourly rates fall on the lower end of the

normal range, Lin v. La Vie En Schezuan Rest. Corp., No. 15-CV-9507 (DF), 2020 WL 1819941,

at *4 (S.D.N.Y. Apr. 9, 2020)—in the case of Shan Zhu, $150 per hour. See Cajero Torres v.

Sushi Sushi Holdings Inc., No. 19-CV-2532 (PAE) (RWL), 2022 WL 2788655, at *7 (S.D.N.Y.

Jul. 15, 2022) (same conclusion in prior case involving same lawyer).

A reasonable rate for firm principal Jian Hang is $250 per hour—at the low end of the

range courts in this district typically award law firm partners. While the $350 per hour that

Mr. Hang seeks falls within the “$200 to $450” courts in this district normally approve for law

firm partners, Chocolatl, 2019 WL 5694104, at *14, that rate is not justified given the poor

performance of plaintiff’s attorneys in this case. As “the principal of [Hang & Associates],”

Mr. Hang “is responsible for the work of” his entire litigation team. La Vie En Schezuan, 2020

WL 1819941, at *4. Accordingly, although Mr. Hang did not participate in the trial itself, “it is

fair to consider both how this case was managed from its inception and how the trial itself was

conducted in determining a reasonable hourly rate for his work.” Ibid. What is more, Mr. Hang

billed 3.7 hours (in six-minute increments) for tasks labeled merely “review court filing,” “review

court order,” and “[r]eviewed ECF bounce,” Invoice 1–6—vague entries that “[n]o reasonable

client would pay $350 an hour for.” Cajero Torres, 2022 WL 2788655, at *7. Given his firm’s

overall performance and the information available to me about the nature of Mr. Hang’s work on

this case, $250 per hour is reasonable.

A reasonable rate for Lian Zhu is $100 per hour—the bottom of the typical range for junior

associates. Lian Zhu drafted the complaint in this case as an attorney with around a year of

experience in wage-and-hour litigation. Invoice 1; Decl. of Shan Zhu 3 (Dkt. #65) (“Zhu Decl.”).

While plaintiff has requested that Lian Zhu’s work be valued at $250 per hour, $100 per hour is

more appropriate given Lian Zhu’s lack of experience and in view of the factual errors contained

in the complaint. (It is worth noting, too, that another 1.1 hours of Mr. Hang’s work on this case

were spent “review[ing] and revis[ing]” the complaint that Lian Zhu drafted and “confirming [the]

factual information” contained therein with his client, Invoice 1—further justification for his

reduced hourly rate in this case.)

A reasonable rate for senior associate Keli Liu in this case is $200 per hour. Ms. Liu joined

Hang & Associates in 2015 and has significant experience in wage-and-hour litigation. Zhu

Decl. 2. Ms. Liu drafted several papers and motions in this case before turning the case over to

Shan Zhu in advance of trial. Invoice 3. One court in this district awarded Ms. Liu $250 per hour.

See Luk v. ABNS NY Inc, No. 18-CV-5170 (AMD), 2021 WL 829417, at *6 (E.D.N.Y. Feb. 9,

2021). Given the firm’s overall performance in this case, however, an hourly rate of $200 is more

reasonable here.

A reasonable rate for attorney Rui Ma in this case is $200. Mr. Ma handled most of the

discovery in this case for plaintiff. Mr. Ma has litigated wage-and-hours cases since 2016, see Zhu

Decl. 3, and at least one court in this district has awarded him a $250 hourly rate in the past. See

Cao v. Miyama, Inc., 15-CV-266 (JS) (ARL), 2020 WL 4808624, at *3 (E.D.N.Y. Aug. 18, 2020);

but see Liu v. Millenium Motors Sports, LLC, No. 17-CV-6438 (RPK) (RER), 2021 WL 4268136,

at *11 (E.D.N.Y. May 24, 2021) (approving a $100 hourly rate for Mr. Ma where the firm failed

to provide any biographical information for him), report and recommendation adopted, 2021 WL

3463193 (E.D.N.Y. Aug. 6, 2021). As with attorney Liu, however, I conclude that a rate of $200

per hour is more reasonable given the firm’s overall performance in this case.

B. Reasonably Expended Hours

Hang & Associates reasonably expended 170.7 hours on litigation in this case.

“In determining the number of hours reasonably expended for purposes of calculating the

lodestar, the district court should exclude excessive, redundant or otherwise unnecessary hours,”

Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999), as well as time entries that “are

vague or otherwise inadequate to enable the court to determine the reasonableness of the work

performed,” Wen v. Hair Party 24 Hours Inc., No. 15-CV-10186 (ER) (DF), 2021 WL 3375615,

at *14 (S.D.N.Y. May 17, 2021) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)), report

and recommendation adopted, 2021 WL 2767152 (S.D.N.Y. July 2, 2021). To calculate

reasonable hours expended in litigating a case, “[a] district court may . . . use a percentage

deduction as a practical means of trimming fat from a fee application.” McDonald ex rel.

Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006)

(internal quotation marks and citation omitted). But a court must have a good explanation for such

a haircut. See, e.g., Raja v. Burns, 43 F.4th 80, 91 (2d Cir. 2022).

Defendants assert that “[h]ours were not reasonably expended” by plaintiff’s lawyers, but

their argument in support of this claim, in its entirety, comprises a single block quote from Hensley.

Defs.’ Opp’n 4–5 (quoting Hensley, 461 U.S. 424, 434). The amount of time billed here—170.7

hours over the course of three years—is not grossly out of proportion with other cases of similar

duration and complexity. See, e.g., Luk, 2021 WL 829417, at *7 (finding that it was reasonable

for a firm to spent 165.4 hours litigating its client’s FLSA and NYLL claims over just two years).

Nor is there evidence of the sort of “systematic overbilling” that has warranted percentage

decreases in the past. Sun v. Sushi Fussion Express, Inc., No. 16-CV-4840 (RPK) (LB), 2022 WL

2193441, at *4 (E.D.N.Y. Jun. 17, 2022) (reducing billable hours by 40% where, for example, the

named partner “billed three-and-a-half hours to file the complaint, a task that should have taken

support staff a fraction of that time,” and another attorney “billed almost ten hours” on a single

day “for ‘inputting names into database’ and ‘verifying addresses’”) (brackets omitted).

A percentage haircut is especially unnecessary here, since most of the questionable line items in

the invoice are attributable to Mr. Hang, and I have already “taken these matters into account in

recommending reduced hourly rates.” Luk, 2021 WL 829417, at *7 n.10; see pp. 5–6, supra.

All in all, I find that Hang & Associates reasonably billed 170.7 hours litigating this case.

C. Adjustment for Limited Success

While these 170.7 hours worked at the reasonable hourly rates for each Hang & Associates

attorney, see p. 3, supra, would yield a “lodestar” of $31.562.50, a 50% reduction is appropriate

based on plaintiff’s lack of success in this litigation.

Where a “plaintiff has achieved only partial or limited success,” a reduction in the lodestar

may be appropriate in two sets of circumstances. Hensley, 461 U.S. at 436. First, where

“unsuccessful claims were based on different facts and different legal theories and thus ‘bore no

relation to the grant of relief,’ the prevailing party generally is not entitled to compensation for

work on the unsuccessful claims.” Raja, 43 F.4th at 88 (quoting Fox v. Vice, 563 U.S. 826, 834

(2011)). Second, even if “the plaintiff’s claims involve a common core of facts . . . and are

therefore not severable,” a reduction may be appropriate if “an award based on the total hours

expended on the litigation . . . result[s] in an excessive amount.” Ibid. (quoting Green v. Torres,

361 F.3d 96, 98 (2d Cir. 2004), and citing Hensley, 461 U.S. at 436). A district court should not

reduce a fee “simply because the plaintiff failed to prevail on every contention raised in the

lawsuit,” but instead should seek to award a reasonable fee based on “the significance of the overall

relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Ibid.

(quoting Hensley, 461 U.S. at 435). “[T]he most critical factor is the degree of success obtained,”

ibid. (quoting Hensley, 461 U.S. at 436), in terms of “[b]oth ‘the quantity and quality of relief

obtained,’ as compared to what the plaintiff sought to achieve as evidenced in [the] complaint,”

Holick v. Cellular Sales of New York, LLC, 48 F.4th 101, 106 (2d Cir. 2022) (quoting Barfield v.

N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008)).

The Second Circuit’s decision in Sanchez is instructive. Plaintiffs brought claims for

unpaid overtime under the FLSA and NYLL in addition to wage-notice and wage-statement claims

under NYLL § 195(1)(a) and 195(3). See Sanchez, 818 F. App’x at 107. After a bench trial, the

district court found for defendant on the plaintiffs’ overtime claims “in large part because [it] found

their testimony regarding their work schedule not credible.” Ibid. But because the defendant

“admitted it failed to provide [p]laintiffs with the required wage notices,” the district court awarded

plaintiffs $7,500 in statutory damages. Ibid. The district court calculated the lodestar amount as

$62,985 and found plaintiff’s claims to be “inextricably intertwined, such that fees could be

awarded for all of the attorneys’ work.” Ibid. It then applied a 35% reduction “as a penalty for

[p]laintiff’s lack of credible testimony” to result in a final award of over $40,000 in fees. Ibid.

The Second Circuit reduced the award further. It concluded that “the district court should

not have awarded fees related to Plaintiffs’ claim for overtime wages, especially given that the

district court found those claims ‘concocted.’” Ibid. It also questioned the district court’s

conclusion that the wage-notice and overtime claims were intertwined, reasoning that “there [was]

little common ground between the claims,” since “the overtime claims required proof as to what

hours [p]laintiffs worked, while the notice claims required only a showing that notice was not

given (which [defendant] admitted it failed to do).” Id. at 108. The court added that “the award

of fees for failed claims based on false testimony is inappropriate.” Ibid. So the Second Circuit

reduced the lodestar amount “by half to reflect Plaintiffs’ lack of success” and then applied the

35% false-testimony reduction to yield a fee award of just over $20,000. Ibid.; compare Holick,

48 F.4th at 107–08 (declining to follow Sanchez where there were “[n]o such credibility issues”

and “the successful and unsuccessful claims . . . all required a parsing of the contracts between

Plaintiffs and [defendants], an examination of how commissions were earned, and the formula that

determined Plaintiffs’ pay”).

Three similarities between this case and Sanchez counsel in favor of a 50% lack-of-success

reduction. First, as in Sanchez, plaintiff here succeeded only on his statutory notice claims, with

his substantive claims for unpaid overtime, minimum wages, and spread-of-hours compensation

(as well as all his FLSA claims) failing. Second, also as in Sanchez, defendants here essentially

admitted to violating NYLL § 195(1)(a) and 195(3). See Bench Trial Tr. 108:21–23 (Defense

counsel: “You’ll have no argument from me that the defendant did provide any document that she

was required to provide. She testified that she did not.”); Bench Tr. Op. 19 (“[D]efendants concede

that they failed to provide plaintiff with the[ required] wage notices.”). As a result, the bulk of the

parties’ efforts at trial were directed toward plaintiffs’ substantive wage claims, with little

discussion of the notices required by Section 195(1)(a) and 195(3). And finally, like the district

court in Sanchez, I found plaintiff’s testimony in this case to be “largely not credible.” Bench Tr.

Op. 6. As detailed above, see pp. 4–5, supra, “plaintiff’s complaint contain[ed] allegations that

plaintiff acknowledged at trial were not true,” and his trial testimony was riddled with “inconsistent

statements throughout.” Bench Tr. Op. 7. Accordingly, in view of the “quantity and quality of

relief obtained, as compared to what the plaintiff sought to achieve as evidenced in h[is]

complaint,” Holick, 48 F.4th at 106 (internal quotation marks omitted), a 50% reduction in the

lodestar amount yields a reasonable fee award in this case.

D. Final Calculation

As explained above, I find that Shan Zhu’s reasonable hourly rate for work on this case

is $175, Jian Hang’s is $250, Lian Zhu’s is $100, Keli Liu’s is $200, and Rui Ma’s is $200. I then

apply a fifty-percent across-the-board reduction to the hours expended in this action. Those

calculations yield the following fees:

Name Reasonable Hours Hours Reasonable Fees

Hourly Rate (Actual) (50% reduction)

Shan Zhu $175.00 99.90 49.95 $8,741.25

Jian Hang $250.00 19.80 9.90 $2,475.00

Lian Zhu $100.00 10.70 5.35 $535.00

Keli Liu $200.00 19.30 9.65 $1,930.00

Rui Ma $200.00 21.00 10.50 $2,100.00

Total: 170.70 85.35 $15,781.25

Accordingly, the reasonable fee in this case is $15,781.25.

II. Costs

Costs “normally include[] those reasonable out-of-pocket expenses incurred by the

attorney and which are normally charged fee-paying clients.” Fisher, 948 F.3d at 600 (quoting

Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)). Plaintiff

seeks $2,214.34 in filing, service, translation, deposition, and transcript costs related to this action,

see Zhu Decl. ¶ 10; Invoice 7. All of these expenses “are fair and reasonable and reflect common

expenses in wage-and-hour cases in this district.” Li v. HLY Chinese Cuisine Inc., No. 18-CV-

5077 (MMH), 2022 WL 1597302, at *8 (E.D.N.Y. Mar. 31, 2022). Beyond a cursory statement

that they oppose plaintiff’s fees-and-costs motion “in all respects,” see Defs.’ Opp’n at 5,

defendants make no argument that these costs are unreasonable. Accordingly, I find that $2,214.34

is a reasonable amount of costs to award plaintiff in this action.

CONCLUSION

Plaintiff’s motion is granted in part. I award plaintiff $15,781.25 in attorney’s fees and

$2,214.34 in costs in conjunction with the judgment entered on May 2, 2022.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: February 6, 2023

Brooklyn, New York