The opinion of the court was delivered by: Arthur D. Spatt, District Judge:
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.
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.
In March of 2001, the defendants sent Gardner a check for $3,165 and
Vogelsang a check for $954.25 as payment for the overtime wages. Gardner
cashed his check on March 19, 2001 and Vogelsang
cashed his check on
April 2, 2001. In May of 2001, the defendants moved to dismiss the
complaint based upon the payments made to Gardner and Vogelsang. On
December 17, 2001, the defendants served the plaintiffs with an offer of
judgment in the amount of $3,200 pursuant to Rule 68. The plaintiffs
accepted the offer in its entirety on December 27, 2001 and filed the
acceptance of judgment with the Court. The Clerk of the Court then
entered the judgment on January 8, 2002.
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.
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
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 § 191. Section 191 ...