United States District Court, S.D. New York
PRISCO NAJERA, ISRAEL FUENTES, CRISTOBAL BRAVO, LEVI GALLARDO, LUGO ROMANO, PABLO NAJERA, ELEUTERIO ALONZO, JOSE LUIS ORTEGA, WILFREDO RAMIREZ, ANASATCIO ANTOLIN, LUIS ANTONIO CANIZAL, FAUSTO RAMALES, FERNANDO ARRELLANOS, LUIS NAJERA, ADALBERTO NAVARRO FLORES, AURELIANO TAPIA, ISRAEL JUAREZ LUNA, RODOLFO RUIZ BRIONES, MANUEL MONTIEL LOPEZ, FERNANDO RODRIGUEZ, CLAUDIO ARIAS, and IVAN BENITEZ, Plaintiffs,
144 NINTH GOTHAM PIZZA, INC., d/b/a GOTHAM PIZZA, 852 EIGHTH GOTHAM PIZZA INC., d/b/a GOTHAM PIZZA, 1443 YORK GOTHAM PIZZA INC., d/b/a GOTHAM PIZZA, 1667 FIRST GOTHAM PIZZA, INC., d/b/a GOTHAM PIZZA, MICHAEL SHAMAILOV, and LANA SHAMAILOV, Defendants.
plaintiffs: Joshua S. Androphy Michael Faillace &
OPINION & ORDER
COTE, UNITED STATES DISTRICT JUDGE
December 16, 2016, plaintiffs in these four consolidated
cases moved to recover attorneys' fees and costs pursuant
to the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq., and the New York
Labor Law (“NYLL”). The defendants failed to file
an opposition. For the following reasons, the
plaintiffs' motion is granted in part.
relevant facts and procedural history of this litigation are
set out in the Court's November 22, 2016 Opinion,
Bravo v. Shamailov, No. 12 Civ. 3133(DLC), 2016 WL
6879261 (S.D.N.Y. Nov. 22, 2016), which is hereby
incorporated by reference and familiarity of which is
assumed. Under the FLSA, courts award reasonable
attorney's fees and costs to prevailing plaintiffs as a
matter of right. 29 U.S.C. § 216(b)(“The court .
. . 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.”). In order to be considered a prevailing
plaintiff for purposes of federal fee-shifting statutes such
as the FLSA, a plaintiff must achieve “some material
alteration of the legal relationship of the parties, ”
and “that change must also be judicially
sanctioned.” A.R. ex rel. R.V. v. New York City
Dept. of Educ., 407 F.3d 65, 67 (2d Cir. 2005)(citation
omitted); see Buckhannon Bd. & Care Home, Inc. v.
W.Va. Dept. of Health & Human Res., 532 U.S. 598,
examining a prevailing plaintiff's request for
attorney's fees, courts begin by calculating the
presumptively reasonable -- or “lodestar” -- fee
by multiplying the attorney's “reasonable hourly
rate by the number of reasonably expended hours.”
Bergerson v. New York State Office of Mental Health,
Cent. New York Psychiatric Ctr., 652 F.3d 277, 289 (2d
Cir. 2011); see Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 551-52 (2010). A reasonable hourly rate is
“what a reasonable, paying client would be willing to
pay, given that such a party wishes to spend the minimum
necessary to litigate the case effectively.”
Bergerson, 652 F.3d at 289-90 (citation omitted). To
determine an attorney's reasonable hourly rate, courts
engage in “a case-specific inquiry into the prevailing
market rates for counsel of similar experience and skill to
the fee applicant's counsel, ” which may include
taking “judicial notice of the rates awarded in prior
cases, ” and relying on “the court's own
familiarity with the rates prevailing in the district.”
Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d
Cir. 2005). Top dollar rates typically “are only
warranted in unusually difficult and complex cases.”
K.L. v. Warwick Valley Cent. Sch. Dist., No. 12 Civ.
6313(DLC), 2013 WL 4766339, at *7 (S.D.N.Y. Sept. 5, 2013).
determine the number of reasonably expended hours, courts
typically examine an attorney's billing records,
excluding “excessive, redundant or otherwise
unnecessary hours, as well as hours dedicated to severable
unsuccessful claims.” Quaratino v. Tiffany &
Co., 166 F.3d 422, 425 (2d Cir. 1999). Courts have
“ample discretion” in assessing the “amount
of work that was necessary to achieve the results in a
particular case.” Ortiz v. Regan, 980 F.2d
138, 141 (2d Cir. 1992); see Hensley v. Eckerhardt,
461 U.S. 424, 437 (1983). While the lodestar figure is
presumptively reasonable, courts may adjust fee awards
upwards or downwards based on a variety of factors including
“the results obtained, ” “the risk of the
litigation, ” and “the performance of the
attorneys.” Knigge ex rel. Corvese v. Corvese,
No. 01 Civ. 5743(DLC), 2001 WL 883644, at *2 (S.D.N.Y. Aug.
6, 2001)(citation omitted); see Savoie v. Merchants
Bank, 166 F.3d 456, 460 (2d Cir. 1999).
Reasonable Hourly Rates
plaintiffs prevailed in this litigation, receiving final
judgment on December 2, 2016. They propose hourly rates
between $200-$450 for the work of five attorneys and $100 for
paralegal work. While the plaintiffs' proposed rates fall
on the higher end of the spectrum of FLSA cases in this
district, they are reasonable given the complexity of this
litigation and the results obtained.
seek to recover $450 per hour for the services of Michael
Faillace. Courts in this district have held $450 as the
maximum hourly rate for a senior attorney in FLSA type cases.
Gonzalez v. Scalinatella, Inc., 112 F.Supp.3d 5, 27
(S.D.N.Y. 2015)(collecting cases). Given the complexity of
this litigation and the favorable results obtained, the
plaintiffs' proposal of $450 is reasonable. This
litigation was not straightforward. It involved four separate
lawsuits that were later consolidated, twenty-two plaintiffs,
and two jury trials over more than four years. The plaintiffs
ultimately prevailed on multiple claims, resulting in
judgments totaling over $1.5 million. Mr. Faillace has
considerable experience litigating federal employment
actions. Accordingly, the plaintiffs are entitled to recover
fees for his services at the rate of $450 per hour.
plaintiffs' proposed $400 hourly rate for Mr.
Androphy's services is also reasonable given Mr.
Androphy's exceptional performance in this litigation.
Mr. Androphy served as lead counsel in both trials before the
Court and has served as lead trial counsel in twelve FLSA
trials since joining Michael Faillace & Associates in
2012. The remaining requested rates -- $375 for Shawn Clark,
$375 for Jesse Barton, $200 for Joanna Sanchez, and $100 for
paralegal work -- similarly fall on the higher end of the
spectrum in this district, but are reasonable given the
complexity of this litigation and the favorable results
Reasonably Expended Hours
examined Mr. Androphy's Declaration and supporting
exhibits, the plaintiffs' request for compensation of
496.9 hours of billed time is reasonable, except with respect
to the number of hours attributed to Mr. Faillace. Given that
Mr. Androphy performed the “vast majority” of the
work in this litigation and served as lead trial counsel --
facts the plaintiffs themselves call to the Court's
attention in their motion -- a reduction of Mr.