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GARDNER v. CATERING BY HENRY SMITH

May 25, 2002

KEVIN GARDNER AND PIERRE VOGELSANG, PLAINTIFFS,
V.
CATERING BY HENRY SMITH, INC. AND HENRY H. SMITH, DEFENDANTS.



The opinion of the court was delivered by: Arthur D. Spatt, District Judge:

MEMORANDUM OF DECISION AND ORDER

The plaintiffs Kevin Gardner ("Gardner") and Pierre Vogelsang ("Vogelsang") (collectively, the "plaintiffs") allege that the defendants Catering by Henry Smith, Incorporated ("Catering by Henry Smith") and Henry H. Smith ("Smith") (collectively, the "defendants") failed to pay them overtime wages and unused vacation time in violation of the Fair Labor Standards Act of 1938 ("FLSA") and the New York Labor Law. Pursuant to Rule 68 of the Federal Rules of Civil Procedure, the plaintiffs accepted a written offer of judgment from the defendants. Presently before the Court is a motion by the plaintiffs to recover attorneys' fees and costs pursuant to Rule 54 of the Federal Rules of Civil Procedure.

I. BACKGROUND

On February 14, 2001, the plaintiffs filed the complaint in this action. The complaint alleges that Smith and his company, Catering by Henry Smith, did not pay sufficient overtime wages to Gardner, who was employed as a delivery van driver for about four years and Vogelsang, who was employed as a cook for about eleven years. In addition, the complaint alleges that the defendants did not pay Gardner for certain vacation time that he did not take.

The plaintiffs now move to recover attorneys' fees and costs pursuant to Rule 54. In particular, the plaintiffs seek to recover $34,071.25 for attorneys' fees (41.75 hours at $250 per hour for partner's work and 127.75 hours at $185 per hour for associate's work) and $200 for costs.

II. DISCUSSION

A. As to the Attorneys' Fees

Rule 54 provides in pertinent part that "[c]laims for attorneys' fees and related non-taxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial." Fed.R.Civ.P. 54(d)(2)(A). In this case, the substantive law is the FLSA, the New York Codes, Rules and Regulations for the Department of Labor and the New York Labor Law.

Count one of the complaint alleges a violation under 29 U.S.C. § 207(a)(1) of the FLSA. Section 207(a)(1) provides in pertinent part that:

[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1). None of the elements under Section 207(a)(1) require a plaintiff to prove attorneys' fees as an element of damages.

Count two of the complaint alleges a violation of Title 12, § 142-2.2 of the New York Codes, Rules and Regulations. Section 142-2.2 provides in pertinent part that "[a]n employer shall pay an employee for overtime at a wage rate of 1 ½ times the employee's regular rate in the manner and methods provided in and subject to the . . . [FLSA]." N.Y. Comp. Codes R. & Regs. tit. 121 § 142-2.2 (2002). None of the elements under Section 142-2.2 require a plaintiff to prove attorneys' fees as an element of damages.

Count three of the complaint alleges a violation of the New York Labor Law ยง 191. Section 191 ...


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