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Tyo v. Lakeshore Hockey Arena, Inc.

United States District Court, W.D. New York

June 5, 2014


Matthew J. Fusco, Esq., Chamberlain D'Amanda Oppenheimer & Greenfield LLP, Rochester, NY, for Plaintiff.

James P. Vacca, Esq., Rochester, NY, for Defendants.


MICHAEL A. TELESCA, District Judge.


This case is before the Court on Plaintiff's application for attorney fees, April 22, 2013, ECF No 33, and supplemental motion, also for attorney fees, May 1, 2013, ECF No. 35. Defendants have filed an affidavit in opposition and Plaintiff has replied. For the reasons stated below, Plaintiff's applications are granted.


The Court presumes the parties are familiar with the factual background and will recite only what is necessary for its decision on the pending motions. On April 11, 2013, the Court entered a Decision and Order granting partial summary judgment to Plaintiff in the amount of $6, 045.83 for Defendants' violation of the Fair Labor Standards Act ("FLSA"). In its Decision, the Court stated it would allow a reasonable attorney's fee pursuant to 29 U.S.C. § 216(b). In his first application, Plaintiff seeks a total attorney's fee of $16, 695, as well as costs totaling $605. In his supplemental motion, Plaintiff seeks additional costs of $400 resulting from the Federal Court Mediation Program.

Defendants oppose the amounts sought by Plaintiff, stating that "such sums are not reasonable based upon the facts of this case." Vacca Decl. ¶ 4, May 17, 2013, ECF No. 37.[1] Further, Defendants question whether Plaintiff's counsel's hourly fee is $300 or $250 and suggest that the Court obtain a copy of any retainer agreement or engagement letter that exists between Plaintiff's counsel and Plaintiff. Id. ¶ 6. Additionally, Defendants contend that counsel's claim of having spent 95.4 hours on this case is belied by the papers, which show only 68.2 hours to date. Id. ¶ 7.

In response, Plaintiff's counsel contends that,

In this case, plaintiff Tyo is seeking two forms of relief: unpaid overtime, vacation time, and liquidated damages, and damages for his retaliatory termination. So far, he has succeeded completely on his claim for unpaid overtime, liquidated damages and vacation time. The retaliation claim is going to trial. He has prevailed on every aspect of this case that has come before the Court for decision.

Lapoff Reply Decl. ¶ 16, May 28, 2013, ECF No. 38.


The FLSA mandates the payment of an attorney's fee, as well as costs of the action. 29 U.S.C. § 216(b) ("The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action."). The Court's discretion extends "only to the amount allowed." Hagelthorn v. Kennecott Corp, 710 F.2d 76, 86 (2d Cir. 1983).

With regard to calculating attorney fees, the Supreme Court addressed the issue in the context of a civil rights case and stated that,

[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.

Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). Later, the Supreme Court clarified in Texas State Teacher Ass'n v. Garland Independent School Dist., 489 U.S. 782 (1989), the law as it applies in a case where a plaintiff has achieved limited success, writing:

The Court [in Hensley ] then went on to establish certain principles to guide the discretion of the lower courts in setting fee awards in cases where plaintiffs have not achieved complete success. Where the plaintiff's claims are based on different facts and legal theories, and the plaintiff has prevailed on only some of those claims, we indicated that "[t]he congressional intent to limit [fee] awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." Hensley, supra, 461 U.S., at 435, 103 S.Ct., at 1940. In the more typical situation, where the plaintiff's claims arise out of a common core of facts, and involve related legal theories, the inquiry is more complex. In such a case, we indicated that "the most critical factor is the degree of success obtained." 461 U.S., at 436 , 103 S.Ct., at 1941. We noted that in complex civil rights litigation, "the plaintiff often may succeed in identifying some unlawful practices or conditions, " but that "the range of possible success is vast, " and the achievement of prevailing party status alone "may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved." Ibid. We indicated that the district courts should exercise their equitable discretion in such cases to arrive at a reasonable fee award, either by attempting to identify specific hours that should be eliminated or by simply reducing the award to account for the limited success of the plaintiff. Id., at 437, 103 S.Ct., at 1941.

Texas State Teachers Ass'n, 489 U.S. at 789-90.

Notwithstanding the Supreme Court's use of the lodestar method in Hensley, the Second Circuit, in Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182 (2d Cir. 2008), observed that the Supreme Court had left intact the twelve factors considered by the Fifth Circuit in its decision, Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974). The Second Circuit outlined the confusion engendered in the fee-setting jurisprudence, concluding that, "[t]he net result of the fee-setting jurisprudence here and in the Supreme Court is that the district courts must engage in an equitable inquiry of varying methodology while making a pretense of mathematical precision." Arbor Hill, 522 F.3d at 189.[2] Subsequent to Arbor Hill, the Supreme Court decided Perdue v. Kenny A., 559 U.S. 542, 551 (2010), in which it held that the loadstar method was the preferred one for adjudicating attorney fees. In Trustees of the Empire State Carpenters Welfare v. M.R. Drywall Servs., No. CV-11-1842 (JS) (WDW), 2012 U.S. Dist. LEXIS 123937, 9-10 (E.D.N.Y. Aug. 6, 2012), the district court observed that "[i]t would appear that although use of the Johnson method' is now proscribed, reference to the Johnson factors' is still useful in calculating a presumptively reasonable fee in this Circuit."


Reviewing Plaintiff's counsel's submissions, the Court acknowledges that Ms. Lapoff has been practicing in this area of wage and hour litigation for 15 years and her partner, Mr. Fusco, for 25 years in labor and employment law. The Court concludes that her hourly rate of $250 is reasonable for lawyers of their experience in this community. See Anderson v. Rochester-Genesee Reg'l Transp. Auth., 388 F.Supp.2d 159 (W.D.N.Y. 2005) (hourly rates from $175 to $250 reasonable). Since the rate claimed is clearly set out in Ms. Lapoff's declaration, Lapoff ...

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