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Boutros v. JTC Painting and Decorating Corp.

United States District Court, S.D. New York

August 8, 2014

KAMAL BOUTROS, SAMUEL ZUNIGA, Plaintiffs,
v.
JTC PAINTING AND DECORATING CORP., JOHN CARUSO, Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

In this lawsuit under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and New York Labor Law ("NYLL"), two painters, Kamal Boutros and Samuel Zuniga, alleged that their longtime employer, JTC Painting and Decorating Corporation ("JTC"), and its owner John Caruso, failed to pay them overtime pay to which they were allegedly statutorily and contractually entitled. Zuniga also alleged that JTC retaliated against him after he filed this lawsuit, in violation of the FLSA. The parties have reached a settlement agreement except as to the amount of plaintiffs' attorney fees to be paid by defendants. Plaintiffs seek $87, 931.25 in fees. Defendants argue that this amount should be reduced by more than 80 percent. For the reasons that follow, the Court grants plaintiffs' fee application, with the exception of certain discrete aspects discussed herein.

I. Background

Defendants object to the amount of plaintiffs' fee request on two grounds: that (1) plaintiffs' hourly rates are unreasonably high, and (2) the hours expended by plaintiffs' attorneys in this action were unreasonably high, in large part because, according to defendants, plaintiffs should have settled this action much earlier. To address these arguments, the Court must review the allegations and procedural history of this case in some detail.

A. Factual Allegations

Boutros and Zuniga are painters who worked for JTC, a painting contractor. Dkt. 52 ("Third Amended Complaint" or "TAC") ¶¶ 10-12. Caruso is an owner and/or officer of JTC who controls its employment practices, including paying Boutros and Zuniga their salaries. Id. ¶¶ 13, 16. Boutros and Zuniga allege that JTC failed to pay them and their colleagues overtime pay, both as required by (1) the collective bargaining agreement ("CBA") to which JTC is a party, under which, for every hour a painter works in excess of 35 hours a week, JTC will pay him one and a half times his regular hourly rate ("CBA overtime"); and (2) the FLSA, under which overtime is required to be paid by covered employers for an employee's work in excess of 40 hours per week ("FLSA overtime"). Id. ¶¶ 22, 24-25. Instead, for overtime hours, they were paid at their normal hourly rate, id., either in cash or by means of a non-payroll check, id. ¶ 30. Boutros and Zuniga's wage rates during their employment were between $33.50 and $39.50 per hour. Id. ¶ 23.

Boutros alleges that JTC failed to pay him at least 308 hours of FLSA overtime and 963 hours of CBA overtime, dating back to 2009. Id. ¶¶ 26-27. Zuniga alleges that JTC failed to pay him at least 423 hours of FLSA overtime and 856 hours of CBA overtime, also dating back to 2009. Id. ¶¶ 28-29. Both men also allege that JTC owes them for CBA overtime they performed before 2009, but they do not have records for that work, and have not quantified the overtime hours prior to 2009 for which they have not been paid. Id. ¶¶ 27, 29. JTC allegedly similarly denied overtime to its more than 100 other painters. Id. ¶¶ 32-34.

B. The Initial Complaint, JTC's Alleged Retaliation, and the Amended Complaints.

On October 10, 2012, plaintiffs filed their initial Complaint, bringing claims under the FLSA and a putative class action under NYLL. Dkt. 1. On November 5, 2012, defendants answered. Dkt. 4.

Plaintiffs allege that, after they filed the Complaint, JTC "told Zuniga that he was being terminated from his job, and sent him home." TAC ¶ 74. Zuniga's attorneys intervened, and JTC brought Zuniga back to work, but assigned him to a new supervisor, who offered that JTC would pay him a significant sum of money and find employment for a relative if he withdrew from the lawsuit. Id. ¶¶ 75-76. Zuniga told the supervisor that any offers should be made to his attorneys. Id. ¶ 77. In response, JTC ceased offering Zuniga work on long-term projects; JTC now allegedly offers him only brief, undesirable assignments, even though more junior painters continue to receive long-term work. Id. ¶¶ 77-79.

On February 25, 2013, the parties stipulated that plaintiffs could amend the Complaint to add retaliation claims by Zuniga. Dkt. 12. On March 1, 2013, plaintiffs did so, filing their First Amended Complaint. Dkt. 15.

On March 15, 2013, plaintiffs filed a motion for conditional collective action certification and court-approved notice. Dkt. 18-22. On April 11, 2013, defendants filed an opposition. Dkt. 24-27. On April 17, 2013, plaintiffs filed a reply. Dkt. 28.

On May 31, 2013, while that motion was pending, defendants sent plaintiffs Rule 68 Offers of Judgment, offering Boutros $8, 100 and Zuniga $6, 400 to resolve all liability, exclusive of attorneys' fees and costs. See Dkt. 72 ("Moriarty Decl.") Ex. C. Plaintiffs rejected these offers. Id. ¶ 16.

On June 19, 2013, the Court, sua sponte, dismissed plaintiffs' FLSA overtime claims and denied their motions for conditional collective action certification and court-approved notice. Dkt. 31. The Court acted on the basis of the decision in Lundy v. Catholic Health Systems of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013), handed down the same day that the FAC was filed, which held that plaintiffs bringing a FLSA overtime claim must allege not merely that they typically worked unpaid overtime, but must specify at least one week in which they worked overtime hours but were not paid overtime. The Court's dismissal was without prejudice to plaintiffs' right to amend.

On July 12, 2013, plaintiffs filed a Second Amended Complaint ("SAC"). Dkt. 33. For both Boutros and Zuniga, the SAC identified numerous weeks, beginning in October 2009, in which Boutros and Zuniga had worked specific ...


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