Opinion
19-CV-7654 (VEC) (BCM)
11-30-2023
CHANG YAN CHEN, et al., Plaintiffs, v. LILIS 200 WEST 57TH CORP., et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. VALERIE E. CAPRONI
BARBARA MOSES, United States Magistrate Judge.
Before the Court for report and recommendation (see Dkt. 152) is plaintiff Chang Yan Chen's motion (Dkt. 146) for an award of attorneys' fees and costs following the entry of judgment in his favor pursuant to Fed.R.Civ.P. 68 on his claims for unpaid wages and related relief under the Fair Labor Standards Act (FSLA) and the New York Labor Law (NYLL). For the reasons that follow, I recommend that the motion be granted and that Troy Law, PLLC (Troy Law), which represented plaintiff Chen throughout this action, be awarded $49,791.76 in fees and $400 in costs, for a total award of $50,191.76.
I. BACKGROUND
Chen worked as a restaurant deliveryman for defendants Lili's 200 West 57th Corp. d/b/a Lili's 57 Asian Cuisine & Sushi Bar (Lili's 57) and 792 Restaurant Food Corp. d/b/a Lilli and Loo (Lilli and Loo). SAC (Dkt. 52) ¶ 7. On August 15, 2019, he commenced this action, initially bringing claims under the FLSA and NYLL against Lili's 57 and individual defendants Alan Phillips, Jonah Phillips, Thean Choo Chong, "Migi Doe," and "Ephan Doe." See Compl. (Dkt. 1) ¶¶ 8-24. On September 25, 2019, Plaintiff filed his first amended complaint, adding defendants Baumgart's Next Door, Inc. d/b/a Baumgart's Cafe (Baumgart's Cafe) and Siew Moy Low, and adding wage claims under the New Jersey Wage and Hour Law. See FAC (Dkt. 10) ¶¶ 8-28. Finally, on September 2, 2020, Plaintiff filed his second amended complaint, adding defendants Lilli and Loo and Stew M. Low, and alleging that Lili's 57, Lilli and Loo, and Baumgart's Cafe were his joint employers and formed a single enterprise as that term is used in the FLSA, 29 U.S.C. § 203(r). See SAC ¶¶ 8-32.
Suing on behalf of himself and others similarly situated, Chen alleged that defendants failed to pay him the applicable minimum wage for all of his hours worked and failed to pay him time-and-a-half for his overtime hours, as required by both the FLSA and the NYLL. See SAC ¶¶ 49-52, 223, 243-71. He further alleged, under state law, that defendants failed to provide a time-of-hire pay notice or a weekly pay statement, failed to pay "spread of hours" compensation for shifts lasting longer than ten hours, and failed to reimburse him for costs incurred to purchase and maintain his delivery bicycles. Id. ¶¶ 226-32, 272-98.
This case was automatically referred to mediation. (Dkt. 9.) Mediation conferences took place between January 23 and May 29, 2020, but were unsuccessful. (Dkt. 45.)
A. Motion to Dismiss
On September 16, 2020, defendants moved to dismiss all claims against Baumgart's Cafe, which was located in New Jersey, and all claims under New Jersey law. (Dkt. 56.) On December 30, 2020, the Hon. Valerie E. Caproni, United States District Judge, granted the motion in full, because plaintiff "failed to allege facts from which the Court can plausibly infer that Baumgart's Cafe operated as a joint employer or as a single integrated enterprise with the other corporate Defendants," and plaintiff "acknowledges that he never worked at Baumgart's Cafe" and never worked in New Jersey. 12/30/20 Op. (Dkt. 67) at 14. Judge Caproni observed that plaintiff's allegations against Baumgart's Cafe were "little more than naked, conclusory assertions," and denied his request to further amend his complaint as futile. Id.
B. Collective Certification
On September 2, 2020, plaintiff moved for conditional certification of an FLSA collective consisting of all non-exempt workers who were employed by any of the defendants during the three-year period prior to the filing of this action. (Dkt. 53.) On January 14, 2021, Judge Caproni granted the motion in part, limiting the collective to deliverymen who worked at Lili's 57 during that three-year period, or at Lilli and Loo after May 13, 2019. 1/14/21 Op. (Dkt. 69) at 4-11. The Court authorized plaintiff's counsel to send notice of the collective action to all potential collective members, but denied his request that the notice be posted in each of the two affected business premises, reasoning that such a requirement would "burden" defendants' businesses while adding "little marginal value" over sending notice directly to eligible employees. Id. at 13.
May 13, 2019 was the date on which a Chapter 11 bankruptcy plan was confirmed as to Lilli and Loo, discharging any wage claims arising prior to the confirmation. See 1/14/21 Op. at 11 n.7.
On May 7, 2021, Troy Law filed a Notice of Consent signed by Pei Qin Li, stating that he wished to join the lawsuit "in order to seek redress for violations of the Fair Labor Standards Act, pursuant to 29 U.S.C. § 216(b)." See Notice of Consent (Dkt. 72) at 1. There were no other opt-in plaintiffs.
C. Motion to Compel and First Order to Show Cause
In a letter-motion dated July 2, 2021, plaintiffs sought an order compelling defendants to produce a complete "employee mailing list of FLSA collective members," to post a notice of the collective action in each of defendants' business premises (which, according to plaintiff, the Court had previously ordered), and to pay for plaintiffs' counsel to publish the notice in various newspapers. (Dkt. 79.) On July 12, 2021, Judge Caproni denied the motion, in large part because it was duplicative of requests that plaintiffs had previously made and that the Court had previously denied. 7/12/21 Order (Dkt. 81) at 1-2. The Court further directed plaintiffs' counsel to "show cause why this Court should not impose sanctions for falsely asserting in his letter that the Court ordered Defendants to 'post' notice of this action when the Court explicitly rejected Plaintiff's request that Defendants be ordered to post notice at their restaurants." Id. at 2-3.
Although the July 2, 2021 letter-motion containing the false assertion was electronically signed by John Troy, Esq., the managing attorney of Troy Law, Aaron Schweitzer, Esq., the firm's managing associate, responded to the 7/21/21 Order on July 19, 2021, explaining that Troy Law "confused the notice-dissemination methods in this case" with those in another case that the firm was litigating, and apologized for the "erroneous statement." Pl. 7/19/21 Ltr. (Dkt. 82) at 1. In a memo endorsement issued that same day, Judge Caproni declined to sanction Troy Law, but advised counsel "to be more careful in filing documents with the Court" and warned that "[s]imilar issues in the future will result in sanctions." 7/19/21 Order (Dkt. 83) at 1.
D. Bankruptcy Stay
On October 8, 2021, defendants Lili's 57, Lilli and Loo, and Siew Moy Low informed the Court that they had each filed for bankruptcy, automatically staying this case as against them. (Dkt. 91.) On December 2, 2021, the Court granted the non-debtor defendants' motion to extend the automatic stay to all parties. (Dkt. 102.)
On March 2, 2022, defendants reported that the bankruptcy proceedings of the corporate defendants were dismissed and that the automatic stay had been lifted in the bankruptcy proceeding of Ms. Low. (Dkt. 103.) The Court then lifted the stay in this action and directed the parties to complete fact discovery by April 29, 2022. (Dkt. 104.)
E. Discovery Extensions and Related Motions
On April 21, 2022, defendants moved to extend the fact discovery deadline, explaining that when they sought to take plaintiffs' depositions, their counsel "advised that they are on trial in another matter." (Dkt. 105.) The Court extended the fact discovery deadline to June 13, 2022. (Dkt. 106.) On June 10, 2022, the parties requested another extension, reporting that defendants still had not deposed Chen or Li, and that plaintiffs still needed to take "all parties' depositions." (Dkt 108.) Plaintiffs explained that the delay was due to "scheduling conflicts on the plaintiff and their counsel." (Id.) The Court again extended the deadline, until June 30, 2022, and ordered the parties to file a joint status update by June 13, 2022, providing the dates and locations of each remaining deposition. (Dkt. 109.)
On June 14, 2022, the parties informed the Court that plaintiff planned to depose three defendants, and defendants planned to depose Chen and Li, between June 20 and June 30, 2022. (Dkt. 111). However, on June 30, 2022, plaintiffs asked to extend the fact discovery deadline yet again, "because plaintiffs have post deposition discovery demands that they have for defendants, that they were only able to serve recently due to their depositions being last week." (Dkt. 114.) On July 1, 2022, Judge Caproni denied the motion, reasoning that plaintiffs "chose not to even notice depositions until the end of the discovery period" and thus "must live with the consequences." 7/1/22 Order (Dkt. 116) at 1. On July 7, 2022, plaintiffs filed a reconsideration motion (Dkt. 118), which the Court denied that same day. Judge Caproni noted that plaintiffs' counsel had only themselves to blame for their predicament, because they "rescheduled a deposition at the eleventhhour," and then "failed to respond to Defendants' attorney's request to set a new date or to confirm an additional deposition," and "did not serve any deposition notices or proposed dates for the deposition of any Defendants until the Court ordered them to do so on June 10, 2022, three days before the original discovery deadline, which the Court extended." 7/7/22 Order (Dkt. 119) at 2.
The parties conducted a second round of mediation in August 2022, after the close of discovery, but were once again unable to settle the case. (See Dkt. 127.)
F. Summary Judgment and Second Order to Show Cause
On September 9, 2022, defendants filed a partial summary judgment motion. (Dkt. 130.) On October 7, 2022, in connection with plaintiffs' opposition to that motion, attorney Troy filed a declaration to which he attached an undated, alternative version of Li's Notice of Consent (the Purported Notice of Consent) (Dkt. 135-6), this time stating that Li was consenting to pursue both state and federal claims.
On March 7, 2023, Judge Caproni granted defendants' motion. 3/7/23 Op. (Dkt. 139) at 1. The Court dismissed opt-in plaintiff Li's FLSA claims as time-barred, because plaintiffs "failed to establish a triable question of fact whether Defendants willfully violated the FLSA or whether Li worked for Defendants after December 6, 2017." Id. at 5. Additionally, the Court dismissed all of plaintiff Chen's claims based on NYLL recordkeeping and wage notification violations, for lack of standing, and dismissed all of his claims against defendants Alan Phillips, Jonah Phillips, and Chong because he failed to establish a triable issue of fact as to whether those individuals were his "employer." Id. at 9-14. Trial was set for May 8, 2023, on Chen's remaining claims against Lili's 57, Lilli and Loo, and Siew Moy Low. Id. at 17.
The statute of limitations for FLSA claims is two years unless the violation is willful, in which case it is three years. See Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 319 (2d Cir. 2021) (citing 29 U.S.C. § 255(a)). Although the statute of limitations under the NYLL is six years, see NYLL § 663(3), Judge Caproni noted that Li never asserted any NYLL claims in this case, since he "was not added as a named plaintiff . . . and his consent to join was limited to his FLSA claims." 3/7/23 Op. at 8 n.9. Consequently, the Court explained, although Li could have timely NYLL claims, "they are not part of this lawsuit and must be pursued through a separate state court lawsuit." Id. The Court then ordered attorney Troy to show cause why he should not be sanctioned for filing the undated Purported Notice of Consent, which "is not the document Plaintiff's counsel filed on May 7, 2021." Id. at 8 n.9; 17.
In a letter dated October 7, 2021, defendants explained that "Ephan Doe" was "a reference to Theaun Choo Chong," and "Migi Doe" and "Stew M. Low" were "references to Siew Moy Low." (Dkt. 90) at 1 n.1. Defendants made the same or similar representations a number of times thereafter. (See Dkts. 91, 96, 105). Plaintiffs never contested these representations. Neither, however, did they dismiss their claims against the fictitiously named defendants or amend the caption of this action.
John Troy responded to the March 7 Order to Show Cause on March 17, 2023, attesting that opt-in plaintiff Li signed the Purported Notice of Consent during an intake appointment on May 13, 2021 - after Troy Law had already received his original Notice of Consent by mail and filed it. Troy OSC Decl. (Dkt. 142) ¶¶ 8-9.
On March 17, 2023, the Court concluded that although the question was "a close one," plaintiff's counsel would not be sanctioned for filing the Purported Notice of Consent, because it was "not clear that Mr. Troy intended to mislead the Court when he failed to describe accurately the exhibits attached to his declaration." 3/27/23 Order (Dkt. 143) at 2. However, the Court continued, "there comes a point when sloppiness is not an adequate excuse for filings that are, in fact, misleading. Mr. Troy is on notice that the Court is unlikely to be so forgiving in the future." Id. at 3.
G. Rule 68 Judgment
On April 7, 2023, plaintiff Chen accepted an Offer of Judgment made pursuant to Fed.R.Civ.P. 68 by the remaining defendants (Dkt. 144), and on April 10, 2023, the Court entered judgment in the amount of $50,000, exclusive of attorneys' fees and costs, running jointly and severally against Lili's 57, Lilli and Loo, and Siew Moy Low. See Judgment (Dkt. 146) at 1. As part of the judgment, the parties agreed that plaintiff Chen is a "'prevailing part[y]' under the New York Labor Law and Fair Labor Standards Act," and that "[p]laintiff may apply for any and all reasonable fees, costs, and expenses incurred until and inclusive of the date the Fee Application is decided." Id.
H. Fee Application
Plaintiff filed his fee application on May 1, 2023, supported by a declaration of John Troy (Troy Fee Decl.) (Dkt. 148) and a memorandum of law (Pl. Mem.) (Dkt. 149). Plaintiff seeks a total of $115,217.00 in fees, for 269.95 hours of attorney and paraprofessional work, plus $4,405.20 in costs. Troy Fee Decl. ¶¶ 64-66. Defendants responded to the motion on May 15, 2023, arguing that the requested award should be reduced because of Troy Law's limited success, poor performance, insufficient expense records, suspect hours, excessive rates, and inadequately documented costs. Def. Opp. Mem. (Dkt. 150) at 5-8. Plaintiff filed a reply memorandum (Pl. Reply Mem.) (Dkt. 151) on May 30, 2023.
II. DISCUSSION
A. Legal Standards
Plaintiffs who prevail on claims under the FLSA and the NYLL are entitled to recover their reasonable attorneys' fees and costs. See 29 U.S.C. § 216(b); N.Y. Lab. Law §§ 198(1-a), 663(1). When calculating attorneys' fees, district courts use the lodestar method: multiplying a reasonable hourly rate by the reasonable number of hours required by the case. See Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014) (quoting Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)). A district court may, "in extraordinary circumstances," adjust the lodestar, but only "when it does not adequately take into account a factor that may properly be considered in determining a reasonable fee." Lilly v. City of New York, 934 F.3d 222, 230 (2d Cir. 2019) (citation omitted). The fee applicant "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
1. Reasonable Hourly Rate
A reasonable hourly rate is the "rate a paying client would be willing to pay," taking into account that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. Of Albany, 522 F.3d 182, 190 (2d Cir. 2008). Accordingly, the rate awarded must be "in line with . . . prevailing [rates] in the community for similar services by lawyers of reasonably comparable skill, expertise and reputation." McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 (2d Cir. 2006) (alterations in original) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).
In determining a reasonable hourly rate, the Second Circuit instructs courts to consider the factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974):
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationships with the client; and (12) [fee] awards in similar cases.Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson, 488 F.2d at 717-19). Of the twelve Johnson factors, the most critical is the degree of success obtained by the plaintiff. See Barfieldv. New York City Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008) (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)). However, district courts have "considerable discretion in determining what constitutes reasonable attorney's fees in a given case." Id. at 151.
2. Compensable Hours
"In determining the number of hours reasonably expended for purposes of calculating the lodestar, the district court should exclude excessive, redundant, or otherwise unnecessary hours." Chen v. Shanghai Cafe Deluxe, Inc., 2023 WL 2401376, at *16 (S.D.N.Y. Mar. 8, 2023) (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)). This does not mean, however, that the court should disallow fees for every motion that a prevailing party did not win. See Rozell v. Ross-Holst, 576 F.Supp.2d 527, 538 (S.D.N.Y. 2008). To determine whether a party may recover fees for a motion, courts consider "not whether the motion was unsuccessful, but whether it was frivolous." Etna Prods. Co. v. Q Mktg. Grp., Ltd., 2005 WL 2254465, at *8 (S.D.N.Y. June 6, 2005) (citing Seigal v. Merrick, 619 F.2d 160, 164-65 (2d Cir. 1980)).
The court may also reduce hours "where the attorney's proffered time records are vague or otherwise inadequate to enable the court to determine the reasonableness of the work performed or the time expended." Wen v. Hair Party 24 Hours Inc., 2021 WL 3375615, at *14 (S.D.N.Y. May 17, 2021) (citing Hensley, 461 U.S. at 433), report and recommendation adopted, 2021 WL 2767152 (S.D.N.Y. July 2, 2021). However, because "[t]he essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection," courts "need not, and indeed should not, become green-eyeshade accountants." Hines v. City of Albany, 613 Fed.Appx. 52, 54 (2d Cir. 2015) (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)) (quotation mark omitted). Thus, when "dealing with items that are 'excessive, redundant, or otherwise unnecessary, . . . the [district] court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.'" Id. at 54-55 (quoting Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998)); accord Green v. City of New York, 403 Fed.Appx. 626, 630 (2d Cir. 2010).
Only prevailing plaintiffs are entitled to recover their fees. "Thus, where 'an attorney represents multiple parties and not all prevail,' the court 'should exercise discretion to reduce the fee to reflect a reasonable amount of time spent on the prevailing party's case.'" Yuan v. & Hair Lounge Inc., 2023 WL 4534872, at *4 (S.D.N.Y. June 28, 2023) (quoting Decastro v. City of New York, 2017 WL 4386372, at *7 (S.D.N.Y. Sept. 30, 2017)), report and recommendation adopted, 2023 WL 4535085 (S.D.N.Y. July 13, 2023). Such a reduction need not be pro rata. See, e.g., Yuan, 2023 WL 4534872, at *9 (applying 25% reduction to fee award where only one of two plaintiffs prevailed at trial); Williams v. Epic Security Corp., 368 F.Supp.3d 651, 661-62 (S.D.N.Y. 2019) (reducing fee award by roughly 70% where "only 45% of the overall Plaintiffs and opt-in Plaintiffs who appeared in this case prevailed," taking into account that "some work done on behalf of the non-prevailing Plaintiffs was required for the prevailing Plaintiffs to win"); Adorno v. Port Auth. Of New York & New Jersey, 685 F.Supp.2d 507, 518 (S.D.N.Y. 2010) (Chin, J.) (applying 60% reduction to fee award where two out of seven plaintiffs prevailed, because "some of the additional time would have been required even if this had only been a two-plaintiff case"), reconsidered in part on other grounds, 2010 WL 727480 (S.D.N.Y. Mar. 2, 2010).
"Reductions are also in order where a prevailing plaintiff 'has failed to prevail on a claim that is distinct in all respects from his successful claims.'" De La Cruz Rosas v. Just Salad 60 Third LLC, 2023 WL 5423982, at *6 (S.D.N.Y. Aug. 4, 2023) (quoting Pardovani v. Crown Building Maint. Co., 2023 WL 3597615, at *2 (S.D.N.Y. May 23, 2023)), report and recommendation adopted sub nom. Rosas v. Just Salad 600 Third LLC, 2023 WL 5390985 (S.D.N.Y. Aug. 22, 2023). In such a case, "the hours spent on the unsuccessful claims should be excluded in considering the amount of a reasonable fee." Pardovani, 2023 WL 3597615, at *2.
B. Application
1. Reasonableness of Hourly Rates Sought
Plaintiff Chen seeks fees for work performed by four Troy Law attorneys and paraprofessionals: managing attorney John Troy (at $600 per hour); managing associate Aaron Schweitzer (at $400 per hour); associate Tiffany Troy (at $250 per hour); and managing clerk Preethi Kilaru (at $200 per hour). Troy Fee Decl. ¶ 64.
After consideration of all of the Johnson factors, I conclude that these rates are unreasonably high. "Much has been written in this district about the inflated rates charged by John Troy and others at his firm." Shi v. TL & CG Inc., 2023 WL 5827598, at *5 (S.D.N.Y. Sept. 8, 2023). In Shi, and in dozens of other cases considering fee applications prepared by Troy Law, courts have balked at the firm's requested rates. See id. (awarding fees at $300 per hour for John Troy, $150 per hour for Schweitzer and for Tiffany Troy, and $70 per hour for Kilaru); see also, e.g., Chen v. Glow Asian Foods, Inc., 2023 WL 6292576, at *3 (E.D.N.Y. Sept. 27, 2023) ($325 per hour for John Troy, $150 per hour for Schweitzer and Tiffany Troy, and $75 per hour for Kilaru); Yuan, 2023 WL 4534872, at *4 (S.D.N.Y. June 28, 2023) ($400 per hour for John Troy's legal work, $75 per hour for his "paralegal work," $250 per hour for Schweitzer, $150 per hour for Tiffany Troy's legal work, $75 per hour for her pre-admission and translator work, and $75 per hour for Kilaru); Wang v. XBB, Inc., 2023 WL 2614143, at *5, *8 (E.D.N.Y. Mar. 23, 2023) ($400 per hour for John Troy, $200 per hour for Schweitzer, $75 for Kilaru).
Generally speaking, "[c]ourts in this District have determined that a fee ranging from $250 to $450 is appropriate for experienced litigators in wage-and-hour cases." Shanghai Cafe Deluxe, 2023 WL 2401376, at *15 (citation and internal quotation marks omitted); see also Gao v. Umi Sushi, 2023 WL 2118203, at *12 (S.D.N.Y. Jan. 31, 2023) ("[A] reasonable rate for senior attorneys handling wage-and-hour cases, in this market, typically ranges from $300 and $400 per hour.") (quoting Lu Wan, 2021 WL 1905036, at *5). "For partners or heads of small law firms practicing in this area, the Court has usually approved hourly rates in the $300 to $450 range." De La Cruz v. Trejo Liquors, Inc., 2019 WL 9573763, at *18 (S.D.N.Y. Sept. 10, 2019) (citation omitted), report and recommendation adopted, 2020 WL 4432298 (S.D.N.Y. July 30, 2020). For junior associates, $100 to $200 per hour is the norm in this Circuit. Hong v. Mito Asian Fusion, Inc., 2023 WL 3092722, at *4 (E.D.N.Y. Apr. 26, 2023) (collecting cases); see also Wang v. XBB, 2023 WL 2614143, at *5 ("Junior associates generally command $100 to $150.") (cleaned up).
The case at bar presented no difficult or novel questions. Moreover, Troy Law was unsuccessful in certifying a collective extending beyond deliverymen at two restaurants, was unsuccessful in attracting viable opt-in plaintiffs, was dilatory in scheduling and completing depositions - leading to additional motion practice, in which the firm was unsuccessful - and twice engaged in conduct causing Judge Caproni to threaten sanctions and (although no concrete sanctions were imposed) reprimand the firm for its lack of care and its "sloppiness." 7/19/21 Order at 1; 3/27/23 Order at 2. Ultimately, Troy Law obtained what appears to be a fairly modest judgment on behalf of one of its two clients, against three of the seven defendants it named (not counting the three duplicative or fictitious defendants). These factors, among others, weigh against awarding fees at the rates sought by Troy Law.
That sloppiness extends to Troy Law's written work product, which is frequently riddled with grammatical, spelling, and proof-reading errors. For example, in his fee declaration, when recounting the procedural history of this case, John Troy writes:
On April 10, 2023, Honorable Judge Valerie Caproni order for the entry of judgement in the amount of Fifty Thousand Dollars and No Cents ($50,000.00) jointly and severally against Defendants Lili's 200 West 57th Corp d/b/a Lili's 57 Asian Cuisine; 972 Restaurant Food Corp. d/b/a Lilli and Loo; and Siew Moy Low, exclusive attorney's fee and cost now accrued, plus post judgement interest pursuant to 28 U.S.C. 1961.
costs,Troy Fee Decl. ¶ 6.
Although the "most critical" of the twelve Johnson factors is the "degree of success" obtained by the plaintiff, Barfield, 537 F.3d at 152, plaintiff's fee application does not address it. Nowhere, for example, does Troy Law compare the $50,000 judgment that it obtained to the damages that Chen would have been awarded if he succeeded on all of his claims. I therefore accept defendants' assertion that Troy Law had "limited success" in this action. Def. Opp. Mem. at 2, 5.
a. John Troy
John Troy received an LLM degree from Dickinson School of Law in 1985, was admitted to the New York bar in 1989, and is the "principal" and "managing attorney" of Troy Law. Troy Fee Decl. ¶ 15. According to his declaration, Troy is the attorney of record in at least 206 wage and hour cases in the Southern District of New York, 176 in the Eastern District of New York, 40 in other federal courts, and 135 in New York State courts. Id. ¶¶ 19-22.
Notwithstanding his lengthy case list, John Troy points to no case in which he was paid $600 per hour by a client, and cites only two oral rulings, in state court proceedings, awarding him $600 per hour or more. Troy Fee Decl. ¶ 29. Troy lists four federal cases in which the court awarded or recommended a rate of $550 per hour for his work, see id., but in two of those cases the defendants defaulted and the fee applications were unopposed. See Xu v. Kealoha Sushi Inc., 2021 U.S. Dist. LEXIS 161396, *14 (S.D.N.Y. Aug. 24, 2021); Hu v. 226 Wild Ginger Inc., 2020 WL 6324090, at *8 (S.D.N.Y. Oct. 7, 2020), report and recommendation adopted, 2020 WL 6324088 (S.D.N.Y. Oct. 27, 2020). In two other cases, John Troy was awarded $550 per hour for some of his hours but a lower rate for others. See Weng v. Kung Fu Little Steamed Buns Ramen, Inc., 2021 WL 2043399, at *2 (S.D.N.Y. May 21, 2021) (awarding $550 per hour for half of John Troy's hours but only $300 per hour for the other half, because during those hours he performed only "associate - and even paralegal-level work"); Mem. and Order (Dkt. 140) at 8, 13, Junjiang Ji v. Jling, Inc., No. 15-CV-04194 (E.D.N.Y. Mar. 2, 2023) (awarding John Troy $550 per hour for most of his hours but only $250 per hour for the remainder). In this case, as in Weng and Junjiang Ji, John Troy seeks fees for time spent performing tasks more appropriately delegated to junior attorneys or paraprofessionals, such as scanning and uploading proofs of service to ECF, see Troy Fee Decl. Ex. 1 (Time Records) at 2, and drafting, reviewing, finalizing, and serving plaintiffs' initial disclosures, interrogatories, document requests, and deposition notices, as well as their responses to defendants' written discovery requests. See id. at 7-8.
Moreover, in Kealoha Sushi, the magistrate judge's recommendation was never adopted by the district judge. While the recommendation was pending, the plaintiff accepted a Rule 68 offer of judgment that was inclusive of attorneys' fees in an undisclosed amount. See Judgment (Dkt. 102), Xu v. Kealoha Sushi Inc., No. 19-CV-11885 (S.D.N.Y. Dec. 15, 2021).
In other recent cases, John Troy has been awarded fees in the range of $300 to $400 per hour. See, e.g., Shi, 2023 WL 5827598, at *5 (rejecting bid for $650 per hour because it "far exceeds the norm in this district" and awarding $400); Yuan, 2023 WL 4534872, at *5 (awarding $400 per hour where Troy did not try the case or otherwise take a leading role in its prosecution); Sanango v. Ruby Nails Tarrytown, 2023 WL 2707329, at *6 (S.D.N.Y. Mar. 30, 2023) (awarding $300 per hour, taking into account Troy's failure to comply with the court's individual practices and failure to timely prosecute the case); Wang v. XBB, 2023 WL 2614143, at *4 (awarding $400 per hour because "neither Troy's reputation generally, nor his firm's performance in this particular case, warrants [the] high hourly rates" requested); Shanghai Cafe Deluxe, 2023 WL 2401376, at *15-16 (awarding $300 per hour due in part to the "consistently poor quality of his work") (citation omitted); Glow Asian Foods, Inc., 2023 WL 6292576, at *3 (awarding $325 per hour in light of the "simplicity" of the case, resolved in a single-day bench trial); Garcia, 2022 WL 2698434, at *7 (awarding $300 per hour where "Troy Law repeatedly submitted memoranda and affidavits with discrepancies and errors" and John Troy's timesheets included "tasks that a paralegal or junior attorney could perform").
Plaintiff offers no reason why John Troy should be awarded an above-market rate in this case. Considering the factors set forth above, including the simplicity of the case, the modesty of the result, and the sloppiness of John Troy's legal work, which twice prompted the district judge to threaten sanctions, I recommend that his rate be fixed at $350 per hour.
b. Aaron Schweitzer
Attorney Schweitzer graduated from Fordham University School of Law in 2016, was admitted to the New Jersey bar in November 2017 and the New York bar the following year, and serves as the "managing associate" at Troy Law. Troy Fee Decl. ¶¶ 31-33. Schweitzer worked on this case between June 2019 and August 2022. See Time Records at 1-12. Thus, at all relevant times he had less than five years of experience.
Troy attests that Schweitzer charges $400 per hour in "non-contingent matters," Troy Fee Decl. ¶ 38, but provides no further information or corroborating documentation. Schweitzer has on occasion been awarded $400 per hour, see id. ¶ 44, but only where he functioned as lead trial counsel, see Wang v. Yong Lee Inc., 2022 WL 17756593, at *2 (S.D.N.Y. Dec. 19, 2022) ("In light of Schweitzer's work in this matter, including the fact that he litigated the jury trial without the aid of any co-counsel, the Court concludes that his requested $400 hourly rate is reasonable."); Mem. and Order at 8-9, Junjiang Ji v. Jling (noting that Schweitzer "served as lead trial counsel for the continuation of the bench trial in this action after [John] Troy was sanctioned" and had "success" in that role), or where defendants defaulted, leaving the fee application unopposed. See Default Judgment (Dkt. 239), Wen Zhang v. Four Seasons, No. 18-CV-08259 (S.D.N.Y. Feb. 8, 2023).
During the initial session of the bench trial in Junjiang Ji v. Jling, conducted by John Troy, plaintiff Ji "testified remotely from mainland China, in violation of Chinese law and prior rulings of [the] Court." Mem. and Order at 2, Junjiang Ji v. Jling. Upon learning of Ji's location, the court suspended cross-examination and later granted defendants' motion to strike Ji's trial testimony and preclude him from testifying remotely at any future trial. Id. Additionally, the court assessed $34,519.16 in sanctions against plaintiffs' counsel, who "arrived at trial unprepared, violated this Court's order requiring them to make Ji available for testimony without violating Chinese law, and deceived the Court into believing Ji was lawfully testifying from outside of China." Id. at 2-3. When the trial resumed, some months later, Schweitzer appeared as plaintiffs' trial counsel, and "submitted Ji's deposition testimony in lieu of live testimony, given that Ji could not lawfully reenter the United States to testify." Id. at 3. Schweitzer then obtained a judgment of $137,512.42 for plaintiff Ji and $11,187.43 for plaintiff Decheng Li, id. at 3, which the court considered a "success." Id. at 8, 9.
Troy states that Schweitzer was awarded $400 per hour in Wen Zhang by "oral ruling." Troy Fee Decl. ¶ 44. There was no such oral ruling. Rather, the court entered the form of judgment presented to it by plaintiffs - which included $75,058.00 in fees - without any discussion or analysis of the underlying hourly rates, much less any finding that those rates were reasonable. Compare Proposed Default Judgment (Dkt. 238) at 2 with Default Judgment (Dkt. 239) at 2, Wen Zhang v. Four Seasons.
In other recent cases, Schweitzer has been awarded lower rates. See, e.g., Hong, 2023 WL 3092722, at *5 ($200 per hour, after settlement); Sanango, 2023 WL 2707329, at *6 ($150 per hour, after default); Shanghai Cafe Deluxe, 2023 WL 2401376, at *16 ($150 per hour, after default); Gao, 2023 WL 2118203, at *13 ($250 per hour, after default, "in light of his less than five years of experience as a lawyer"); Garcia, 2022 WL 2698434, at *7 ($150 per hour, after default); Lu Wan, 2021 WL 1905036, at *6 ($175 per hour, after plaintiffs accepted a Rule 68 offer of judgment).
Plaintiff offers no justification for the exceptionally high hourly rate sought for Schweitzer in this case - a rate "usually awarded only to partner-level attorneys with considerably more experience and better professional profiles." Yuan, 2023 WL 4534872, at *6. See, e.g., Gao, 2023 WL 2118203, at *12 ($300 to $400 per hour for "experienced wage-and-hour attorneys"); Lee v. Mani & Pedi Inc., 2022 WL 3645118, at *4-*5 (S.D.N.Y. Aug. 24, 2022) ($350 per hour for lead trial counsel with over twenty years of experience and $300 per hour for senior associate with nine years of experience). This case did not go to trial. Schweitzer's work included legal research, reviewing documents, revising filings, communicating with chambers, attending conferences, and similar associate-level work. See Time Records at 1-12. Considering the factors set forth above, including Schweitzer's relative inexperience and the nature of his work in this case, I recommend that his rate be set at $250 for all of the time that he reasonably expended on behalf of the prevailing plaintiff.
For a summary of Schweitzer's sanctions history, see Yuan, 2023 WL 4534872, at *6 n.5.
c. Tiffany Troy
Tiffany Troy graduated from Fordham School of Law, was admitted to the New York bar on June 24, 2021, and is a NYS Unified Court System Mandarin Chinese interpreter. Troy Fee Decl. ¶¶ 60-61, 69. She worked on this case from January 2020 (well before she became a licensed attorney) to April 2023 (at which point she had less than two years of experience as an attorney). See Time Records at 1, 12. Moreover, although past cases have pointedly distinguished Tiffany Troy's work as a licensed attorney from her pre-admission work as a legal assistant or translator, see Yuan, 2023 WL 4534872, at *7 ($150 per hour for legal work, $75 per hour for pre-admission work); Wang v. XBB, 2023 WL 2614143, at *8 ($0 per hour for Tiffany Troy's work as a translator, because "interpreting services are distinct from legal services and are not awarded as a component of attorney's fees"), in this case, plaintiff brazenly asks that she be awarded fees at the rate of $250 per hour for all of her work, both pre- and post-admission. Troy Fee Decl. ¶ 59; see also, e.g., Time Records at 6 (billing 2.5 hours of Tiffany Troy's time on January 17, 2021, at $250 per hour, to translate a proposed notice from English to Chinese).
Troy attests to two "oral rulings" in which Tiffany Troy was awarded $250 per hour for her services as an attorney. Troy Fee Decl. ¶ 58. However, as noted above, there was no such "oral ruling" in Wen Zhang v. Four Seasons. See n.8, supra. In many recent federal cases, Tiffany Troy's rate has been set at $150 per hour for her work as a licensed attorney. See, e.g., Shi v. TL & CG Inc., 2023 WL 5827598, at *6; Chen v. Glow Asian Foods, Inc., 2023 WL 6292576, at *3 (E.D.N.Y. Sept. 27, 2023); Yuan, 2023 WL 4534872, at *7; Shanghai Cafe Deluxe, 2023 WL 2401376, at *17. For her pre-admission work, Tiffany Troy has frequently been awarded $75 per hour, similar to the firm's paralegals. See, e.g., Hong, 2023 WL 3092722, at *8; Yuan, 2023 WL 4534872, at *7; Lu Wan, 2021 WL 1905036, at *6. I see no compelling reason to depart from that range here. Consequently, I recommend that Tiffany Troy's hourly rate for pre-admission work be set at $75 per hour, and that her rate for post-admission legal work be set at $150.
d. Preethi Kilaru
Preethi Kilaru, Troy Law's "managing clerk," performed a range of clerical and paraprofessional services in this case, for which plaintiff seeks fees at the uniform rate of $200 per hour. See, e.g., Time Records at 6 (seeking $200 per hour for scanning a document, traveling to court to deliver documents, and scheduling interpreters for trial). In federal court, Kilaru was awarded her requested rate in three cases, see Kealoha Sushi, 2021 U.S. Dist. LEXIS 161396, at *15; Weng, 2021 WL 204339, at *2; Wild Ginger, 2020 WL 6324090, at *8, but is more typically awarded fees of $100 per hour or less. See, e.g., Hong, 2023 WL 3092722, at *5 ($75 per hour); Sanango, 2023 WL 2707329, at *6 ($70 per hour); Wang v. XBB, 2023 WL 2614143, at *6 ($75 per hour); Shanghai Cafe Deluxe, 2023 WL 2401376, at *17 ($70 per hour); Gao, 2023 WL 2118203, at *13 ($100 per hour); Garcia, 2022 WL 2698434, at *8 ($70 per hour); Zhang, 2022 WL 2668263, at *17 ($70 per hour). Because Kilaru appears to have performed - at best -paralegal work on this case, an hourly rate of $75 is appropriate.
2. Reasonableness of Hours Expended
Troy Law requests compensation for 269.95 hours of work between June 2019 and May 2023. Troy Fee Decl. ¶ 64 (summary table); Time Records at 1-12. To its credit, the firm does not seek compensation for another 22.79 hours, representing travel time, tasks specific to former plaintiff Li, and time spent responding to the Orders to Show Cause issued by Judge Caproni. See Troy Fee Decl. ¶ 64; Time Records at 6-9, 11-12. For the following reasons, however, I recommend further reductions to the hours eligible for a fee award.
First, only one of the two plaintiffs in this action prevailed. Opt-in plaintiff Li's claims were dismissed on summary judgment, shortly before plaintiff Chen accepted defendants' Rule 68 offer. Although the firm has excised hours that are readily identifiable as pertaining only to Li, it has not accounted for the time spent on Li's claims when performing more general litigation tasks, such as preparing for and conducting defendants' depositions, preparing for and conducting the second round of mediation (on behalf of both plaintiffs), and responding to defendants' summary judgment motion (much of which was devoted to Li's claims). See Time Records at 10-12. Thus, Troy Law's hours should be further reduced, to "reflect a reasonable amount of time spent on the prevailing party's case." Decastro, 2017 WL 4386372, at *7. As in Yuan, however, I do not recommend a full pro rata (50%) reduction, because Li did not opt in until after the SAC was filed and the initial motion to dismiss was resolved, and because "some of the additional time would have been required even if this had only been a [one]-plaintiff case." Yuan, 2023 WL 4534872, at *9 (quoting Adorno, 685 F.Supp.2d at 518) (alteration in the original).
For example, no fees are sought for the time spent filing Li's original Notice of Consent, conducting an intake interview with him, and drafting his initial damages calculation. See Time Records at 6-7.
Second, while plaintiff Chen is a prevailing plaintiff with respect to the claims that survived defendants' summary judgment motion, his NYLL wage notification claims (for which he sought statutory damages) were dismissed on summary judgment. See 3/7/23 Op. at 14-17. Because these claims were "distinct in all respects from his successful claims," and their dismissal very likely lowered the Rule 68 offer that defendants were willing to make, a further reduction of the fee award is in order to account for Chen's failed claims. De La Cruz Rosas, 2023 WL 5423982, at *6; see also Hensley, 461 U.S. at 434-35 (if the claims on which a plaintiff prevailed were "based on different facts and legal theories" than the failed claims, "no fee may be awarded for services on the unsuccessful claim[s]"); Williams, 368 F.Supp.3d at 660 (reducing counsel's compensable hours to reflect both "the number of prevailing Plaintiffs" and "the fact that even the prevailing Plaintiffs were not successful on all their claims").
Third, although Troy Law's time records in this case do not contain the type of "eyebrowraising entries" and "egregious overbilling" that contributed to the 70% across-the board reduction applied in De La Cruz Rosas, 2023 WL 5423982, at *12, they contain several duplicative or otherwise questionable entries. They also reflect that the firm's principal, John Troy - who was simultaneously serving as counsel of record in hundreds of cases - personally put in 119.57 of the 269.95 hours of work for which the firm now seeks compensation, including (for example) drafting and filing the original, first amended, and second amended complaints; drafting plaintiff's papers in opposition to the motion to dismiss, in support of the collective certification motion, and in opposition to the motion for summary judgment; and drafting, reviewing, finalizing, and serving discovery requests and responses. See Time Records at 1-2, 5, 7, 12. While I am not prepared to conclude that the firm intentionally "billed work performed by other individuals as having been performed by John Troy, in an attempt claim higher attorneys' fees," Def. Opp. Mem. at 7, I agree with the court in Singh v. Meadow Hill Mobile Inc. that John Troy, "[a]s the most experienced attorney with the highest billable rate, . . . should not have been the one to perform the majority of the work in this . . . relatively straightforward FLSA-NYLL case." 2021 WL 3862665, at *17 (S.D.N.Y. Aug. 29, 2021); see also Agudelo v. E & D LLC, 2013 WL 1401887, at *2 (S.D.N.Y. Apr. 4, 2013) ("[S]taffing the case in such a manner warrants an across-the board adjustment in the number of hours billed.").
For example, on October 2, 2019, both John Troy and Preethi Kulari billed time (1.4 hours for Troy; 1.5 hours for Kulari) to perform the same administrative task: reviewing and scanning proofs of service on the same defendants. See Time Records at 2. As another example, on October 3, 2021, Tiffany Troy billed 0.75 hours to "Schedule Stenographer" for a deposition and then, four days later, billed 0.5 hours to "Email Stenographer" concerning "possible cancelation." Id. at 8. And on May 1, 2023, John Troy billed 2.5 hours to "Compile Attorney Fee Invoice." Id. at 12. The time that an attorney spends preparing invoices for his services would not be billable to a paying client, and consequently is not compensable in a fee-shifting case. See L.M. v. New York City Dep't of Educ., 2023 WL 2872707, at *10 (S.D.N.Y. Feb. 14, 2023) ("Preparing and reviewing litigation documents is an appropriate task for which a lawyer should expect client payment; preparing and reviewing bills is not."), report and recommendation adopted, 2023 WL 2495917 (S.D.N.Y. Mar. 14, 2023).
I note as well that Troy Law's response to this point is less than reassuring: "When plaintiffs filed their papers it was in John Troy's name that appeared on the paper so for plaintiff not to have John Troy not bill for the action would be a little problematic." Pl. Reply Mem. at 4-5 (grammatical errors in original).
On balance, after considering all of the factors discussed above, I recommend reducing the firm's otherwise-compensable hours by twenty-five percent. This reduction, coupled with the reduced hourly rates recommended in Part II.B.1, results in a fee award of $49,791.76 to Troy Law, as set forth below:
| Individual | Requested Rate | Reasonable Rate | Recorded Hours | Reduction | Reasonable Hours | Adjusted Fees |
| John Troy | $600 | $350 | 119.57 | 25% | 89.68 | $31,387.13 |
| Aaron Schweitzer | $400 | $250 | 49.3 | 25% | 36.98 | $9,243.75 |
| Tiffany Troy | $250 | $150 | 61.78 | 25% | 46.34 | $6,950.25 |
| T.T. (pre-admission) | $250 | $75 | 8.2 | 25% | 6.15 | $461.25 |
| Preethi Kilaru | $200 | $75 | 31.1 | 25% | 23.33 | $1,749.38 |
| TOTAL | 269.95 | 202.46 | $49,791.76 |
3. Costs
Under both the FLSA and NYLL, a prevailing plaintiff may recover his reasonable costs. 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). "An award of costs 'normally include[s] those reasonable out-of-pocket expenses incurred by the attorney,'" but "[t]he fee applicant must submit adequate documentation supporting the requested . . . costs." Fisher v. S.D. Protection, Inc., 948 F.3d 593, 600 (2d Cir. 2020) (quoting Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)). "Court fees reflected on the Court's docket are sufficiently substantiated, as are costs for which a claimant provides extrinsic proof, such as invoices or receipts." Guo v. Tommy's Sushi, Inc., 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016).
Here, Troy Law seeks $4,405.20 in costs. Troy Fee Decl. ¶¶ 65-66. The types of expenses listed by the firms - for service of process, deposition costs, postage, and printing - are unremarkable. See Time Records at 13. However, the firm has not submitted any invoices, receipts, or other "extrinsic proof" to document the expenditures. Guo, 2016 WL 452319, at *3. Moreover, "Troy Law is well aware of the need for such evidence, having been denied expenses in the past on this ground." Yuan, 2023 WL 4534872, at *10 (collecting cases). Consequently, I recommend that no expense reimbursement award be made in this action except for the $400 filing fee, which does not require an invoice because it is paid to the Court and reflected on the docket.
III. CONCLUSION
For the reasons set forth above, I respectfully recommend that plaintiff Chen's fee application be GRANTED and that Troy Law, PLLC be awarded $49,791.76 in fees and $400 in costs, for a total award of $50,191.76.
I further recommend that plaintiff's claims against the "Doe" defendants and "Stew M. Low" be DISMISSED, and that the case be closed.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Valerie E. Caproni at 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Caproni. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).