MICHAEL J. LINGLE, and SARAH E. CRESSMAN, of Counsel THOMAS & SOLOMON LLP Rochester, New York, Attorneys for Plaintiffs.
MARK ANDREW MOLLOY, of Counsel NIXON PEABODY, LLP Buffalo, New York, and AMY L. VENTRY, of Counsel Jericho, New York, and TODD R. SHINAMAN, and JOSEPH A. CARDELLO, of Counsel Rochester, New York. Attorneys for Defendants.
DECISION and ORDER
LESLIE G. FOSCHIO, District Judge.
This case was referred to the undersigned by Honorable William M. Skretny on January 6, 2010 for all non-dispositive pretrial matters, pursuant to 28 U.S.C. § 636(b)(1)(A). The matter is presently before the court on Defendants' application filed October 11, 2012 (Doc. No. 368), for costs and attorney's fees and costs awarded pursuant to this court's Decision and Order filed July 19, 2012 (Doc. No. 328).
BACKGROUND and FACTS
Plaintiffs, hourly employees of Defendants, commenced this action on May 22, 2008, alleging violations of the Fair Labor Standards Act ("FLSA"), and New York Labor Law ("NYLL") based on Defendants' failure to pay regular hourly or overtime rates for all hours Defendants permitted or required hourly employees to work. Because the alleged uncompensated work results from policies and practices adopted and applied by Defendants to all facilities where Defendants' hourly employees work, Plaintiffs assert both a representative collective action on behalf of all similarly situated employees subject to the FLSA's protection, and a class action pursuant to Fed.R.Civ.P. 23 ("Rule 23"), to enforce the rights of Defendants' hourly employees under the NYLL wage and hours provisions for unpaid work at the employees' regular pay rate or, as applicable, overtime rates.
At the commencement of discovery in the instant action, the parties agreed to conduct discovery of only a sample group of Plaintiffs, rather than seeking discovery from all members of the potential class, agreeing that discovery would be conducted as to all four named Plaintiffs ("named Plaintiffs"), and a sample group of randomly selected Plaintiffs who chose to opt-in to the litigation ("opt-in Plaintiffs") ("sample group"). When less than half of the randomly selected opt-in Plaintiffs responded to Defendants' discovery requests, additional opt-in Plaintiffs were randomly selected to "repopulate" the sample group, but sufficient responses still were not received. A statement made by one of Plaintiff's attorneys regarding additional attempts to provide sufficient discovery responses from the opt-in Plaintiffs raised concerns that Plaintiffs may have improperly manipulated the sampling group by withholding discovery responses from those opt-in Plaintiffs whose responses were not favorable to Plaintiffs' claims. Seeking to resolve the issue, Defendants, on January 23, 2012, moved for an order compelling discovery responses from all opt-in Plaintiffs who had been served with Defendants' discovery requests (Doc. No. 293) ("motion to compel"). On February 13, 2012, Plaintiffs cross-moved for a protective order (Doc. No. 297) ("motion for protective order"), arguing there was no basis for dismissing the non-responding opt-in Plaintiffs from this action.
In a Decision and Order filed July 19, 2012 (Doc. No. 328) ("July 19, 2012 D&O"), the undersigned granted Defendants' motion to compel, ordering Plaintiffs to provide discovery responses from all randomly-selected opt-in Plaintiffs served with discovery requests, and granting Defendants' request for costs, including attorney's fees, incurred in connection with the motion to compel, and denied Plaintiffs' motion for a protective order, July 19, 2012 D&O at 24-25. On August 16, 2012, Plaintiffs moved for reconsideration (Doc. No. 338) ("motion for reconsideration"), arguing the court committed factual error by miscalculating the number of discovery responses received from opt-in Plaintiffs. In a Decision and Order filed October 9, 2012 (Doc. No. 363) ("October 9, 2012 D&O"), the undersigned denied Plaintiffs' motion for reconsideration on the basis that even if the court, based on Plaintiffs' vague explanation as to which opt-in Plaintiffs had provided discovery responses, had incorrectly calculated the number of such responses received, Plaintiffs were, nevertheless, required to provide discovery responses from all 110 opt-in Plaintiffs served, or face dismissal of the non-responding opt-in Plaintiffs from the action.
On October 11, 2012, Defendants filed the Affidavit of Mark A. Molloy, Esq. in Support of Costs and Fees (Doc. No. 368) ("Fee Application"), seeking to recover $22, 140 in legal fees for Defendants' motion to compel. The Fee Application is supported by a schedule of billing entries, attached as Exhibit A (Doc. No. 368-1) ("Billing Schedule"), specifying the time each attorney spent preparing the motion to compel, and each attorney's hourly rate. On October 19, 2012, Plaintiffs filed Plaintiffs' Response in Opposition to Defendants' Request for Attorneys' Fees (Doc. No. 378) ("Plaintiff's Response"). On October 29, 2012, Defendants filed their Response in Support of Costs and Fees (Doc. No. 382) ("Defendants' Reply"), in which Defendants not only argue in further support of the Fee Application, but also request a further award of costs and fees incurred connection with Plaintiff's motion for reconsideration of the July 12, 2012 D&O, as well as in preparing and defending the Fee Application. Attached as Exhibit A to Defendants' Reply is a Billing Schedule (Doc. No. 382-1) ("Supplemental Billing Schedule"), specifying the hours spent by each attorney, and each attorney's hourly rate, with regard to Plaintiffs' reconsideration motion and the Fee Application. On November 8, 2012, Plaintiffs filed Plaintiffs' Reply in Opposition to Defendants' Request for Attorneys' Fees (Doc. No. 393) ("Plaintiffs' Sur-Reply"). Oral argument was deemed unnecessary.
Based on the following, Defendants' Fee Application is GRANTED in part and DENIED in part; Plaintiffs are ORDERED to pay $ 17, 899.65 in attorney's fees incurred in connection with the motion to compel.
1. Fees Incurred in Connection with Motion to Compel
Defendants were awarded as a sanction pursuant to Fed.R.Civ.P. 37(a)(5)(A), the costs, including attorney's fees, incurred in connection with preparing and defending the motion to compel. July 19, 2012 D&O at 22-24. Defendants initially provided an affidavit detailing the costs, including attorney's fees incurred in connection with the motion to compel, seeking a total of $22, 140 for legal work performed by four attorneys from the law firm of Nixon Peabody, LLP ("Nixon Peabody") including Mark A. Molloy ("Molloy"), Todd R. Shinaman ("Shinaman"), Stephen J. Jones ("Jones"), and Joseph A. Carello ("Carello"). Fee Application §§ 1-2, 10-13, 16. Molloy, Shinaman, and Jones are all Nixon Peabody partners, whereas Carello is an associate. Id. §§ 1, 10-12. The following schedule sets forth ...