Opinion
17 Civ. 802 (GBD) (GWG)
05-14-2024
SHI MING CHEN et al., Plaintiffs, v. HUNAN MANOR ENTERPRISE, INC. et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Shi Ming Chen, Lianhe Zhou, Wei Min Zhu, Baojun Tian, Xinlong Liu, Qifang Chen, and Pingjin Fan (collectively, “plaintiffs”) brought this case against defendants Hunan Manor Enterprise, Inc., Hunan Manor LLC, Hunan House Manor Inc., Hunan House Restaurant, Inc., Hunan House Restaurant NY LLC, Hunan House, Inc., A Taste of Mao, Inc., Jingchao Li, Zhida Li, and Zhenqi Xiao (collectively, “defendants”) alleging violations of the New York Labor Law, N.Y. Lab. §§ 190 et seq. (“NYLL”) and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”). See Complaint, filed Feb. 2, 2017 (Docket # 1) (“Compl.”); First Amended Complaint, filed Feb. 5, 2020 (Docket # 182). Following a bench trial in February and March 2023, the district court entered judgment in favor of plaintiffs. See Memorandum Decision and Order, filed Aug. 29, 2023 (Docket # 351); Memorandum Decision and Order, filed Dec. 5, 2023 (Docket # 387). Plaintiffs now move for attorney's fees and costs. For the reasons that follow, plaintiffs should be awarded attorney's fees and costs in the amount of $113,091.25.
See Notice of Motion for Attorneys' Fees and Costs, filed Dec. 19, 2023 (Docket # 389) (“Mot.”); Declaration in Support of Motion for Attorneys' Fees and Costs, filed Dec. 19, 2023 (Docket # 390) (“Troy Decl.”); Invoice, annexed as Ex. 1 to Troy Decl. (Docket # 390-1) (“Time Records”); Invoice, annexed as Ex. 2 to Troy Decl. (Docket # 390-2) (“Bankruptcy Time Records”); Memorandum of Law in Support, filed Dec. 19, 2023 (Docket # 391) (“Mem.”); Attorney Affirmation, filed Jan. 16, 2024 (Docket # 404) (“Li Aff.”); Memorandum of Law in Opposition, filed Jan. 16, 2024 (Docket # 405) (“Hunan Opp.”); Memorandum of Law in Opposition to Plaintiffs' Fee Motion By A Taste of Mao, Inc. and Zhenqi Xiao, filed Jan. 16, 2024 (Docket # 406) (“Taste of Mao Opp.”); Declaration in Support for Opposition to Fee Motion, filed Jan. 16, 2024 (Docket # 407) (“Curran Decl.”); Reply Memorandum of Law, filed Jan. 30, 2024 (Docket # 409) (“Reply to Hunan”); Reply Memorandum of Law, filed Jan. 30, 2024 (Docket # 410) (“Reply to Taste of Mao”).
I. BACKGROUND
Plaintiffs filed this action on February 2, 2017. See Compl. On February 15, 2018, the district court partially granted plaintiffs' motion for conditional approval of a collective action pursuant to section 216(b) of the FLSA. See Chen v. Hunan Manor Enter., Inc., 2018 WL 1166626 (S.D.N.Y. Feb. 15, 2018). In its decision, the district court restricted the collective to only those individuals employed as “cooks, delivery persons, and food packers,” reasoning that plaintiffs failed to present sufficient factual matter justifying their proposed collective of “all of those non-managerial employees of Defendants.” Id. at *4-5. In addition to approving the more restricted collective, the district court granted a motion for judgment on the pleadings brought by several defendants pursuant to Fed.R.Civ.P. 12(c). Id. at *9.
On June 21, 2018, plaintiff Pingjin Fan consented to become a party in the action, see Consent to Become Party Plaintiff, filed June 21, 2018 (Docket # 105), which brought the total number of plaintiffs to fifteen, see Chen v. Hunan Manor Enter., Inc., 2020 WL 3527920, at *1 (S.D.N.Y. June 30, 2020), adopted by 2020 WL 4932777 (S.D.N.Y. Aug. 24, 2020); Hunan Opp. at 6. On November 4, 2019, plaintiffs filed a motion to amend the complaint seeking to add or remove certain defendants and plaintiffs. See Notice of Motion for Leave to Amend Complaint, filed Nov. 4, 2019 (Docket # 148). While the Court partially granted plaintiffs' motion, it denied the request to add six new defendants. See Chen v. Hunan Manor Enter., Inc., 437 F.Supp.3d 361 (S.D.N.Y. 2020). Thereafter, the Court granted defendants' motion under Fed.R.Civ.P. 37 to dismiss the claims brought by six plaintiffs as a sanction because they had failed to appear for depositions. See Chen, 2020 WL 3527920, at *1.
On September 9, 2020, plaintiffs filed a motion to certify a class under Fed.R.Civ.P. 23. See Notice of Motion for Class Certification, filed Sept. 9, 2020 (Docket # 217). The Court denied this motion primarily because the Court found that plaintiffs' counsel, Troy Law, PLLC (“Troy Law”) and its attorneys, were not adequate class counsel. See Chen v. Hunan Manor Enter., Inc., 2021 WL 2282642, at *8 (S.D.N.Y. June 4, 2021), adopted by 2021 WL 3727093 (S.D.N.Y. Aug. 20, 2021). In its opinion, the Court provided a “sampling of cases where [John] Troy or Troy Law's conduct has been found wanting.” See Id. at *4-7. In addition to looking at conduct in other cases, the Court highlighted “serious dereliction of responsibility” in the instant case:
While not as abysmal as some of the conduct described in other cases, counsel's conduct in the instant case gives us no reason to believe that counsel can be trusted with the grave responsibility of representing a class. Counsel cancelled multiple depositions for plaintiffs at the last minute in this case, sometimes on the day of the scheduled depositions, see [Chen, 2020 WL 3527920, at *1-2], and finally had to inform defendants that three plaintiffs had left for China and that they had lost contact with another three, id. at [*3-4]. While it is certainly possible that plaintiffs failed to keep in contact with their attorneys, the lastminute cancellation of depositions more likely reflects counsel's failure to keep opposing counsel apprised of their clients' status.
Counsel has also continued its pattern of missing court deadlines. See [Docket # 181] at 1 n.1 (plaintiffs missed the deadline to file their reply brief for their motion to amend the complaint, did not request an extension until two weeks after the brief was due, and then filed their brief “[w]ithout waiting for a ruling on the extension”); Letter Motion for Extension of Time, filed May 11, 2018 (Docket # 86) (applying for extension of time to complete discovery two months after
discovery was scheduled to have closed and the same day the joint pretrial order was due). The Court has been forced to repeatedly deny motions because counsel repeatedly failed to comply with the Court's Individual Practices. (See Docket ## 104, 123, 125, 131, 177, 216).
One serious failing was noted in the Court's ruling on the plaintiffs' motion to amend. Counsel sought to add six new defendants to this case in its motion filed on November 4, 2019 (Docket # 148). The Court denied the request because of counsel's unexplained failure to pursue this remedy diligently.Id. at *7-8.
In a later opinion, the Court granted defendants' motion to strike plaintiffs' untimely request for a jury trial. Chen v. Hunan Manor Enter., Inc., 340 F.R.D. 85 (S.D.N.Y. 2022).
On September 26, 2022, a bench trial was scheduled to begin on February 13, 2023. See Order, Sept. 26, 2022 (Docket # 297). Approximately one week before the scheduled bench trial, plaintiffs made a motion to file documents under seal in connection with an ex parte filing seeking to have two of the plaintiffs testify by video. See Notice of Motion to File Documents Under Seal, filed Feb. 6, 2023 (Docket # 300). The district court denied plaintiffs' request to file their motion ex parte and under seal. See Order, filed Feb. 8, 2023 (Docket # 303). Several days later, on the day the trial was scheduled to start, plaintiffs' counsel filed a motion seeking to allow two of the plaintiffs' deposition transcripts to be used in lieu of live testimony, or, alternatively, to allow the plaintiffs testify remotely. See Notice of Motion for Leave to Submit Deposition Testimony or Alternatively to Testify Remotely By Video, filed Feb. 13, 2023 (Docket # 306). The district court denied the motion and admonished plaintiffs' counsel on the first day of the trial, stating:
Based on this record, given the untimeliness and the lack of any documentation or even a formal motion on notice to the other side, I'm going to deny the motion but I will deny it without prejudice if you want to spend tonight putting together a motion ....
But, no, I don't think that to walk in on the day of trial and say your clients are in China and one of them wants to go and do a remote testimony and the other one doesn't even have permission to leave the country at this point, wouldn't have it for weeks, that I should somehow say, OK, we will wait to see if they can work this out and whether they can conduct this trial. You should have known a lot sooner than this whether or not your clients were available for this trial when I gave a trial date to give you an opportunity to check to see whether or not that date is convenient for the parties and the witnesses and I was given the impression that it was right until last week.Transcript, filed Apr. 10, 2023 (Docket # 322), at 26:6-27:10; see also Order, filed Mar. 23, 2023 (Docket # 319). The district court later dismissed all claims brought by the two absent plaintiffs. See Chen v. Hunan Manor Enter., Inc., 2023 WL 5574854, at *11 (S.D.N.Y. Aug. 29, 2023), amended on reconsideration in part by 2023 WL 8434700 (S.D.N.Y. Dec. 5, 2023).
On August 29, 2023, following the bench trial, the district court issued its decision in favor of plaintiffs. See Chen v. Hunan Manor Enter., Inc., 2023 WL 5574854, at *11 (S.D.N.Y. Aug. 29, 2023). After plaintiffs and defendants filed motions for reconsideration, the district court granted plaintiffs' motion, partially granted the Hunan Manor defendants' motion, and denied the Taste of Mao defendants' motion. See Chen v. Hunan Manor Enter., Inc., 2023 WL 8434700 (S.D.N.Y. Dec. 5, 2023).
A Taste of Mao, Inc. and Zhenqi Xiao are the “Taste of Mao defendants.” All other defendants are the “Hunan Manor defendants.”
II. DISCUSSION
Plaintiffs have prevailed on their FLSA and NYLL claims and are therefore entitled to an award of reasonable attorney's fees. See N.Y. Lab. Law § 663(4); 29 U.S.C. § 216(b); Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020) (“Under the FLSA and the NYLL, a prevailing plaintiff is entitled to reasonable attorneys' fees and costs.”); Nikonov v. Flirt NY, Inc., 2022 WL 1443429, at *1 (S.D.N.Y. May 6, 2022) (“Plaintiffs are the prevailing party for the purposes of the FLSA and NYLL if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”) (citation and punctuation omitted). In determining a statutory fee award, “[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.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); accord Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014). This calculation yields a “presumptively reasonable fee,” Arbor Hill, 522 F.3d at 183, and is commonly referred to as the “lodestar,” id.; see also Miroglio S.P.A. v. Conway Stores, Inc., 629 F.Supp.2d 307, 312 (S.D.N.Y. 2009). Plaintiffs request $379,109.50 in attorney's fees, along with $9,827.70 in costs. See Troy Decl. ¶¶ 92-93. Of the requested attorney's fees, $77,226.50 were billed in connection with related bankruptcy cases. See id. ¶ 92.
A. Reasonable Hourly Rate
In determining whether an attorney's hourly rate is reasonable, “the burden is on the fee applicant to produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); accord Savoie v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999).
To fix an appropriate hourly rate, Arbor Hill directs that a court engage in the following process:
[T]he district court, in exercising its considerable discretion, [is] to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly
rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case.522 F.3d at 190 (emphasis in original).
The “Johnson factors” are those laid out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). These are:
(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 relationship with the client; and (12) awards in similar cases.Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson, 488 F.2d at 717-19).
Arbor Hill specifically identified the following factors to be considered in determining what a reasonable, paying client would be willing to pay:
the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.Id. at 184.
Importantly, Arbor Hill held that a court must “step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” Id. (emphasis added). “In other words, a court awarding statutory attorney's fees is not called upon to determine merely whether the attorneys on this case properly command the rates they seek. Rather, it must determine the cheapest hourly rate an effective attorney would have charged.” Knox v. John Varvatos Enters. Inc., 520 F.Supp.3d 331, 340-41 (S.D.N.Y. 2021) (emphasis in original) (punctuation and citation omitted).
Plaintiffs request the below hourly rates for work performed by eight employees of Troy Law: John Troy, Aaron Schweitzer, George Byun, Adam Dong, Tiffany Troy, Leanghour Lim, Preethi Kilaru, and Bella Ho.
Time Keeper
Title
Hourly Rate
John Troy
Managing Attorney
$650.00
Aaron Schweitzer
Managing Associate
$400.00
George Byun
Managing Associate
$375.00
Adam Dong
Associate
$300.00
Tiffany Troy
Associate/Interpreter
$250.00
Leanghour Lim
Associate
$250.00
Preethi Kilaru
Managing Clerk
$200.00
Bella Ho
Assistant
$150.00
See Troy Decl. ¶ 92. Defendants argue that these hourly rates should be significantly reduced. See Hunan Manor Opp. at 15-20; Taste of Mao Opp. at 5.
Case law reflects that “[i]n this district, courts generally award experienced wage-and-hour attorneys between $300 and $400 per hour,” Ramirez v. Marriott Int'l, 2023 WL 2447398, at *4 (S.D.N.Y. Mar. 10, 2023) (quoting Picorelli v. Watermark Contractors Inc., 2022 WL 2386761 at *5 (S.D.N.Y. July 1, 2022)); accord Pinzon v. 467 Star Deli, Inc., 2023 WL 5337617, at *14 (S.D.N.Y. July 31, 2023), adopted by 2023 WL 5334757 (S.D.N.Y. Aug. 18, 2023); Hollis v. All Am. Bar on First, Inc., 2023 WL 4350613, at *3 n.6 (S.D.N.Y. July 5, 2023), though we recognize that there are cases awarding a wider range of rates, see, e.g., Reinoso v. Cipriani, 2019 WL 2324566, at *3 (S.D.N.Y. May 30, 2019) (“Courts in this District have determined that $250 to $450 per hour is the range of appropriate fees for attorneys with significant wage and hour litigation experience.”).
As to the rates appropriate for Troy Law in this case, courts in the Southern and Eastern Districts have recognized that Troy Law's requested rates significantly exceed those rates normally commanded in wage-and-hour suits. See, e.g., Hong v. Mito Asian Fusion, Inc., 2023 WL 3092722, at *5 (E.D.N.Y. Apr. 26, 2023) (collecting cases). As one court in this District recently noted when John Troy sought an hourly rate of $600, “[a] treatise worth of case law has emerged about the rates and hours that Troy Law has requested. And courts have balked at the sort of rates requested in this case.” Garcia v. Francis Gen. Constr. Inc., 2022 WL 2698434, at *7 (S.D.N.Y. July 12, 2022) (awarding John Troy hourly rate of $300).
We also note that Troy Law's performance in this case, as discussed above, is not on par with other professionals with similar experience, and reflects far below average performance generally. See Chen, 2021 WL 2282642, at *8 (noting “serious dereliction of responsibility” by Troy Law in the instant case). Other courts have similarly highlighted this fact as a reason for awarding a lower range of rates to Troy Law attorneys and professionals. See, e.g., Garcia, 2022 WL 2698434, at *8 (reducing rates “particularly” in light of “counsel's performance in this case”); Zang v. Daxi Sichuan, Inc., 2023 WL 2305934, at *4 (E.D.N.Y. Mar. 1, 2023) (“In light of a lack of complexity and middling performance, there is no cause to award the highest hourly rate.”).
Turning to the experience of the attorneys, John Troy was admitted to the New York bar in 1989, Troy Decl. ¶ 16, and claims to have litigated “hundreds” of wage-and-hour cases, see Id. ¶¶ 19-22. We are aware of cases that have awarded John Troy $400 per hour. See De La Cruz Rosas v. Just Salad 60 Third LLC, 2023 WL 5423982, at *14 (S.D.N.Y. Aug. 4, 2023), adopted by 2023 WL 5390985 (S.D.N.Y. Aug. 22, 2023); Yuan v. & Hair Lounge Inc., 2023 WL 4534872, at *9 (S.D.N.Y. June 28, 2023), adopted by 2023 WL 4535085 (S.D.N.Y. July 13, 2023); Shi v. TL & CG Inc., 2023 WL 6962860, at *3 (S.D.N.Y. Oct. 3, 2023), adopted by 2023 WL 6960340 (S.D.N.Y. Oct. 20, 2023). We are also aware of cases in which he has been awarded far lower rates. See Chen v. Lilis 200 W. 57th Corp., 2023 WL 9955610, at *8 (S.D.N.Y. Nov. 30, 2023) ($350 per hour), adopted by 2024 WL 749619 (S.D.N.Y. Feb. 23, 2024); Garcia, 2022 WL 2698434, at *8 ($300 per hour); Chen v. Glow Asian Foods, Inc., 2023 WL 6292576, at *3 (E.D.N.Y. Sept. 27, 2023) ($325 per hour). In light of Troy Law's poor performance in this case, described above, and the poor quality of the briefing on the motions addressed by the undersigned, we find a rate of $300 to be fitting. See Garcia, 2022 WL 2698434, at *8 (collecting cases and awarding fees at the rate of $300 per hour for John Troy, $150 per hour for Schweitzer and for Tiffany Troy, and $70 per hour for Kilaru).
As to Aaron Schweitzer and George Byun, both attorneys are identified as “managing associates” and have been members of the bar for approximately six to nine years. See Troy Decl. ¶¶ 33, 49, 92. Plaintiffs list numerous cases Schweitzer and Byun have litigated. See Id. ¶¶ 41-44, 57-59. Additionally, Schweitzer was trial counsel during the bench trial conducted before the district court. See id. ¶ 38. However, the requested rates of $400 for Schweitzer and $375 for Byun are unreasonable. See Troy Decl. ¶ 92. Given the poor performance of this firm in this case, we find that far lower rates are more appropriate. Other courts have awarded rates well below $200. See, e.g., Chen v. Shanghai Cafe Deluxe, Inc., 2023 WL 2401376, at *16 (S.D.N.Y. Mar. 8, 2023) ($150 to Mr. Schweitzer and $160 to Mr. Byun); Rodpracha v. Pongsri Thai Rest. Corp., 2021 WL 6205861, at *4 (S.D.N.Y. Dec. 29, 2021) ($150 to Mr. Schweitzer and $125 to Mr. Byun); Yuajian Lin v. La Vie En Schezuan Rest. Corp., 2020 WL 1819941, at *7 (S.D.N.Y. Apr. 9, 2020) ($125 to Mr. Schweitzer and $160 to Mr. Byun); Haifeng Xie v. Sakura Kai I Inc., 2020 WL 4587473, at *2 (E.D.N.Y. Mar. 12, 2020) ($150 for Schweitzer and $150 for Byun), adopted by 2020 WL 2569406 (E.D.N.Y. May 20, 2020). Nonetheless, in light of their having gained experience since some of these cases were decided, we find a rate of $200 to be appropriate. See, e.g., Wang v. XBB, Inc., 2024 WL 184263, at *2 (E.D.N.Y. Jan. 17, 2024) ($200 awarded to Schweitzer).
As to Adam Dong, Tiffany Troy, and Leanghour Lim, who are identified as “associates,” each has several years of experience as practicing attorneys having been admitted in 2019 (for Dong and Lim) and 2021 (for Tiffany Troy). See Troy Decl. ¶¶ 61, 64, 71. Plaintiffs request an hourly rate of $300 for Dong and $250 for Tiffany Troy and Lim. See id. ¶ 92. In light of the rate awarded to the managing associates and the typical range awarded to more junior associates, we find $150 to be reasonable. See Yuan, 2023 WL 4534872, at *9 (awarding $150 for Tiffany Troy and Lim), adopted by 2023 WL 4535085 (S.D.N.Y. July 13, 2023).
Before turning to the non-legal professionals, defendants correctly point out that Schweitzer, Tiffany Troy, and Dong all charged their requested rate for work done prior to their bar admission. See Hunan Manor Opp. at 17-19, 22. For example, Schweitzer was not admitted to the New Jersey bar until November 14, 2017, and the New York bar until May 16, 2018, Troy Decl. ¶ 33, yet Schweitzer seeks a rate of $400 for work done prior to those dates, see, e.g., Time Records at 4 (entry for 4/28/17). Similarly, both Dong and Tiffany Troy were not admitted to the bar until October 16, 2019, and June 24, 2021, respectively, Troy Decl. ¶¶ 61, 71, but seek the same rate for work done both before and after their admission, see, e.g., Time Records at 13 (entries for 4/29/19 and 5/7/19). Plaintiffs argue that their application can use current, rather than “staggered rates,” since “[t]he Second Circuit has held that to adjust for delay, the rates used by the court in fee applications should be current rather than historic hourly rates.” Reply to Hunan at 5 (quoting Lochren v. Cnty. of Suffolk, 344 Fed.Appx. 706, 709 (2d Cir. 2009)) (alterations, quotation marks and punctuation omitted). This principle, however, cannot be applied to allow a law school graduate (or student) who is not an admitted attorney to bill at rates appropriate for an attorney. In fact, numerous courts have pointed out this discrepancy as it relates to Tiffany Troy. See, e.g., De La Cruz Rosas, 2023 WL 5423982, at *10 (awarding Tiffany Troy “$75 for the work she performed prior to admission and $150 for legal work completed after Ms. Troy was admitted to practice”) (citation and punctuation omitted); Hong, 2023 WL 3092722, at *6 (same). Thus, Schweitzer, Tiffany Troy, and Dong should receive $100 for work performed prior to their admission to the bar.
Finally, as to Preethi Kilaru and Bella Ho, identified as “managing clerk” and “assistant,” plaintiffs request rates of $200 and $150, respectively. Troy Decl. ¶ 92. Courts in this district award rates between $75 to $200 to paralegals and legal assistants, depending on the individual's experience. See KCG Holdings, Inc. v. Khandekar, 2020 WL 7053229, at *6 (S.D.N.Y. Dec. 2, 2020) ($75 is a “a standard paralegal rate in this district”), adopted by 2021 WL 623927 (S.D.N.Y. Feb. 17, 2021); JTH Tax LLC v. Sanchez, 2023 WL 6813449, at *6 (S.D.N.Y. Oct. 16, 2023) (approving a rate of $125 per hour), adopted by 2023 WL 8936352 (S.D.N.Y. Dec. 27, 2023); Glob. Ref. Grp., Inc. v. PMD Analysis Inc., 2023 WL 8895869, at *4 (S.D.N.Y. Dec. 8, 2023) (“[C]ourts have concluded that $200 per hour is the upper limit for experienced paralegals and $75 per hour is standard.”), adopted by 2023 WL 8893989 (S.D.N.Y. Dec. 26, 2023). As for Kilaru, she graduated from Karnataka State Law University CMR Law School in July 2016 and received her LLM from SMU School of Law in December 2017, and has worked at Troy since April 2018. Troy Decl. ¶ 84. Given Kilaru's legal training and several years of experience at Troy Law, the Court awards a rate of $100. See Wang v. XBB, Inc., 2023 WL 2614143, at *6 (E.D.N.Y. Mar. 23, 2023) (awarding Kilaru $75 but noting courts have awarded between $75 and $100 for similar types of work). As for Ho, she received an MBA from University of Illinois Chicago in August 2016, and has worked at Troy Law since March 2017. Troy Decl. ¶¶ 89-90. Given a lack of discussion on why such experience justifies departing from the “standard paralegal rate,” a rate of $75 appropriate.
To summarize, the awarded rates are as follows:
Time Keeper
Hourly Rate
John Troy
$300.00
Aaron Schweitzer
$200.00
Aaron Schweitzer - Prior to Admission
$100.00
George Byun
$200.00
Adam Dong
$150.00
Adam Dong - Prior to Admission
$100.00
Tiffany Troy
$150.00
Tiffany Troy - Prior to Admission
$100.00
Leanghour Lim
$150.00
Preethi Kilaru
$100.00
Bella Ho
$75.00
B. Reasonable Number of Hours Expended
As to hours, it is well-established that “any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records .... specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.” New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); accord Raja v. Burns, 43 F.4th 80, 87 (2d Cir. 2022). When reviewing such records, courts must make “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam). “The critical inquiry is ‘whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'” Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *12 (S.D.N.Y. Aug. 2, 2012) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). In addressing this question, courts should not, however, “engage in an ex post facto determination of whether attorney hours were necessary to the relief obtained.” Grant, 973 F.2d at 99. Also, the Supreme Court has cautioned that because “[t]he essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection,” “trial courts need not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563 U.S. 826, 838 (2011).
If a court finds that claimed hours are “excessive, redundant, or otherwise unnecessary,” it should exclude those hours from its calculation of the presumptively reasonable fee. Hensley, 461 U.S. at 434; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n.6 (2d Cir. 1999) (citations omitted); Farmer v. Hyde Your Eyes Optical, Inc., 2015 WL 2250592, at *15 (S.D.N.Y. May 13, 2015). However, as the Supreme Court noted in Hensley, “[t]here is no precise rule or formula for making these determinations.” 461 U.S. at 436. Thus, a district court is not required to “set forth item-by-item findings concerning what may be countless objections to individual billing items.” Lunday, 42 F.3d at 134. Because “it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application,” Carey, 711 F.2d at 1146, “the 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,'” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting Carey, 711 F.2d at 1146); accord Lewis v. Roosevelt Island Operating Corp., 2018 WL 4666070, at *7 (S.D.N.Y. Sept. 28, 2018).
Troy Law requests the following hours:
Time Keeper
Title/Category
Requested Hours
John Troy
Managing Attorney
328.28
John Troy
Other
2.5
Aaron Schweitzer
Managing Associate
257.3
Aaron Schweitzer
Other
17.01
George Byun
Managing Associate
82.02
Adam Dong
Associate
17.31
Tiffany Troy
Associate
54.89
Leanghour Lim
Associate
3.91
Preethi Kilaru
Managing Clerk
32.96
Bella Ho
Assistant
23.09
TOTAL
N/A
819.27
See Troy Decl. ¶ 92. Of the total 819.27 hours, 139.27 hours were expended in connection with the related bankruptcy cases. See Reply to Taste of Mao at 5. While defendants suggest these fees are not recoverable, see Hunan Opp. at 24; Taste of Mao Opp. at 16-17, the defendants do not contend that the work associated with these fees was unrelated or unnecessary to the pursuit of the wage-and-hour claims in this case. Thus, they are recoverable. See Cortes v. New Creators, Inc., 2016 WL 3455383, at *6 (S.D.N.Y. June 20, 2016) (“Courts in this District have held that counsel in FLSA actions may be reimbursed for reasonable fees and costs incurred in connection with related bankruptcy proceedings where such work is necessary for the resolution of claims in the FLSA lawsuit.”) (punctuation and citation omitted); accord Wang v. Yong Lee Inc., 2022 WL 17756593, at *2 (S.D.N.Y. Dec. 19, 2022).
The “Other” category for Troy and Schweitzer reflects time spent “traveling and performing administrative tasks.” Troy Decl. ¶ 47.
Defendants also suggest that Troy Law's records were not contemporaneously kept. See Hunan Opp. at 5, 22. Defendants point to several aspects of the billing in support: (1) Schweitzer filed his appearance in this case on April 17, 2020, yet he started billing in August 2019, id. at 17; (2) Troy has billed at lower rates in other cases, id. at 22; (3) Schweitzer was not admitted to the New York Bar until May 16, 2018, yet billed at $400/hour for work done prior to that date, id. at 22; and (4) several billing entries for the calculation of damages “curiously” show that they took the same amount of time regardless of the attorney performing the work, id. at 22. None of these observations are sufficient to cause us to make a finding that the records were not contemporaneously made in light of John Troy's sworn statement that the records are in fact contemporaneous. See Troy Decl. ¶¶ 10-12. We note that Schweitzer certainly could have performed work on the case without filing a notice of appearance, as is commonly the case for very junior associates and law school graduates not yet admitted to the bar. As to the amount of time billed for certain tasks, the matching time entries are perhaps suspicious but are not a sufficient reason to make a finding that the records were not kept contemporaneously.
As to the hours themselves, many courts have noted the inflation of hours in Troy Law's time records. In several instances, courts have significantly cut the number of hours awarded. See, e.g., De La Cruz Rosas, 2023 WL 5423982, at *14 (reducing the requested hours by 70%); Haifeng Xie v. Sakura Kai I Inc., 2020 WL 4587473, at *4 (E.D.N.Y. Mar. 12, 2020) (reducing the requested hours by 40% and reallocating the majority of Troy's hours to more junior associates); Wang, 2023 WL 2614143, at *7-8 (reducing requested hours by 40%). After reviewing Troy Law's records and considering some of the litigation activity in this case, we find that a significant reduction is warranted for several reasons.
First, the billing records have many entries showing John Troy, the managing attorney, performed work that was clerical in nature. These tasks include scanning documents, see, e.g., Time Records at 3, 16 (entries for 3/21/17, 3/27/17, 4/7/17, 2/18/20); creating binders, see, e.g., id. at 2 (entry for 1/26/17); and filing documents, see, e.g., id. (four hours billed by Troy for filing documents on 2/2/17). The time records reflect that other attorneys have similarly billed for this type of work. See, e.g., id. at 10 (Schweitzer creating courtesy copies on 6/11/18); id. at 11 (Schweitzer scheduling the mediation on 9/17/18 and 9/25/17). The prevalence of attorneys billing for clerical work has been noted by several other courts that have reviewed Troy Law's time records. See De La Cruz Rosas, 2023 WL 5423982, at *14; Yuan, 2023 WL 4534872, at *9; Wang, 2023 WL 2614143, at *8; Zang, 2023 WL 2305934, at *6; Hong, 2023 WL 3092722, at *7. Case law is clear that such time is not properly included in an attorney's fee award. See, e.g., Siegel v. Bloomberg L.P., 2016 WL 1211849, at *7 (S.D.N.Y. Mar. 22, 2016) (“[T]asks that are ‘purely clerical,' such as downloading, scanning, or copying documents and organizing files, . . . [are] generally not compensable, whether performed by an attorney or a paralegal.”); accord H.W. v. New York City Dep't of Educ., 2022 WL 541347, at *4 (S.D.N.Y. Feb. 23, 2022); Diaz v. AJE Mgmt. Corp., 2017 WL 746439, at *6 (S.D.N.Y. Jan. 10, 2017).
Second, the degree of success obtained by Troy Law in this action is limited. “The degree of success achieved by the plaintiff is ‘the most critical factor' in a district court's determination of what constitutes reasonable attorney's fees in a given case.” Najera v. Kurtishi, 2024 WL 180867, at *3 (S.D.N.Y. Jan. 17, 2024) (quoting Barfield v. New York City Health & Hosps. Corp., 537 F.3d 132, 152 (2d Cir. 2008)). Here, there were at one time fifteen plaintiffs in this case. However, less than half of the plaintiffs ultimately recovered, with a total of eight having their claims dismissed. Additionally, the motion for class certification was denied outright due to the unsuitability of Troy Law to act as class counsel. See Chen, 2021 WL 2282642, at *8; see also Callari v. Blackman Plumbing Supply, Inc., 2020 WL 2771008, at *15 (E.D.N.Y. May 4, 2020) (“[C]ourts in the Second Circuit have routinely reduced attorneys' fees . . . for unsuccessful class certification motions.”), adopted by 2020 WL 2769266 (E.D.N.Y. May 28, 2020). This limited success warrants an across-the-board reduction in hours. See De La Cruz Rosas, 2023 WL 5423982, at *12 (reducing fees because Troy Law in part “failed to obtain any recovery at all for half of its clients”); Yuan, 2023 WL 4534872, at *4 (“[W]here 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.”) (citation and internal punctuation omitted); Zang, 2023 WL 2305934, at *9-10. Finally, the plaintiffs unreasonably made a belated jury demand late in the case, thereby necessitating unnecessary motion practice. See Chen, 340 F.R.D. at 91 (“Because this Court cannot conclude that anything beyond mere inadvertence was to blame for the original complaint's omission of a jury demand, the Court does not exercise its discretion under Rule 39(b).”).
We disagree, however, with defendants' contention, see Hunan Opp. at 12-14, that the fact that plaintiffs were unsuccessful on certain motions by itself warrants a reduction of fees. See Knox., 520 F.Supp.3d at 345 (“[T]he mere fact that an attorney makes an unsuccessful motion does not justify a reduction in fees for that motion. Rather, the issue in a review of an attorney's fee application is whether the hours spent were “reasonable.” An attorney may act reasonably in pursuing or defending a motion even though the attorney does not win the motion.”).
Plaintiffs argue that the Court should not reduce fees based on the degree of success obtained since the work done on the successful and unsuccessful claims are “inextricably intertwined,” thereby making it difficult to “divide the hours expended on a claim-by-claim basis.” Reply to Hunan at 1-2 (quoting Holick v. Cellular Sales of New York, LLC, 48 F.4th 101, 106 (2d Cir. 2022) (citation omitted)). Holick stands for the proposition that a court “may” award fees “for unsuccessful claims as well as successful ones where they are inextricably intertwined and involve a common core of facts or are based on related legal theories.” Holick, 48 F.4th at 106 (alterations omitted) (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). Still the Court is obligated to consider “‘the quantity and quality of relief obtained,' as compared to what the plaintiff sought to achieve.” Barfield, 537 F.3d at 152 (quoting Carroll v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997)). Additionally, in this case Troy Law spent time unnecessarily pursuing certain plaintiffs' cases when Troy Law should have become aware of the disappearance of their clients. In the end, Troy Law's success in this litigation was limited when compared to the relief sought and the Court's discretion should be exercised to take this into account.
Finally, scattered entries reflect inflated time requests. Such entries include 30 minutes to an hour billed for setting up meeting lines, see, e.g., Time Records at 1, 3-4 (entries for 1/24/17, 1/25/17, 4/17/17, 4/18/17, 4/24/17), and “2.1 hours” to review defendant's answer, see, e.g., id. at 4 (entry for 4/24/17) - the exact amount of time John Troy has billed to review answers in other cases, see, e.g., Wang, 2023 WL 2614143, at *7 (“Similarly, the Court finds it troubling that Troy - who touts his vast experience in litigating wage-and-hour cases - billed 2.1 hours to review Defendants' pro forma Answer.”). Defendants point to other instances of “grossly unreasonable” hours for the work performed, such as 7.5 hours billed to file consent forms for the fifteen plaintiffs and 2.85 hours billed for initial disclosures. See Hunan Opp. at 21-22.
Defendants raise several issues that do not warrant a reduction of fees. Some of these issues are irrelevant to the reasonableness of hours expended (or any other issue relating to fees), such as the Taste of Mao defendants' allegation that Troy Law has not filed a biennial statement in accordance with New York requirements for Limited Liability Companies. See Taste of Mao Opp. at 3. The Taste of Mao defendants dedicate a major portion of their briefing to defects in the Collective Action Consent Forms. See id. at 1-3, 17-18. The argument essentially mirrors that of their pending motion to alter the judgment pursuant to Fed.R.Civ.P. 59(e). The Taste of Mao defendants argue that we should consider these potentially defective consent forms because they may deprive the Court of jurisdiction over the case in whole or in part. See Taste of Mao Opp. at 2-3. Additionally, the Taste of Mao defendants implicitly argue that such defective consent forms evidence poor lawyering. See id. The ultimate issue surrounding the validity of the consent forms is not before the Court on this application, however. In light of the lack of a ruling on this question, we presume that the verdict as delivered will stand.
As stated in footnote 3, the “Other” category refers to time “traveling and performing administrative tasks.” While travel is permissibly billed at 50% of the attorney's rate, see, e.g., John Wiley & Sons, Inc. v. Book Dog Books, LLC, 327 F.Supp.3d 606, 646 (S.D.N.Y. 2018), any “administrative” tasks should be billed at a paralegal rate at most. Because Schweitzer is getting a $200 hourly rate, half of this figure ($100) is an appropriate rate for both his travel and any paralegal activity. As for John Troy, he has but one entry in this category, see Time Records at 19 (entry of 2/12/23), and it involves a clerical task. Accordingly, the $100 rate is appropriate for John Troy as well.
Having considered all of the above, we find that a 40% reduction in fees is appropriate. Accordingly, Troy Law is entitled to the following fees:
Time Keeper
Title/Category
Hourly Rate
Hours
Attorney's Fees
John Troy
Managing Attorney
$300.00
196.97
$59,091.00
John Troy
Other5
$100.00
1.50
$150.00
Aaron Schweitzer
Managing Associate
$200.00
154.10
$30,820.00
Aaron Schweitzer
Other
$100.00
10.21
$1,021.00
Aaron Schweitzer
Prior to Bar License
$100.00
0.28
$28.00
George Byun
Managing Associate
$200.00
49.21
$9,842.00
Adam Dong
Associate
$150.00
0.00
$0.00
Adam Dong
Prior to Bar License
$100.00
10.39
$1,039.00
Tiffany Troy
Associate
$150.00
11.70
$1,755.00
Tiffany Troy
Prior to Bar License
$100.00
21.23
$2,123.00
Leanghour Lim
Associate
$150.00
2.35
$352.50
Preethi Kilaru
Managing Clerk
$100.00
19.78
$1,978.00
Bella Ho
Assistant
$75.00
13.85
$1,038.75
TOTAL
491.57
$109,238.25
C. Costs
“[A]ttorney's fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (citation omitted); accord Gamero v. Koodo Sushi Corp., 328 F.Supp.3d 165, 178 (S.D.N.Y. 2018). Troy Law seeks $9,827.70 in costs. See Troy Decl. ¶ 93; Time Records at 23-24; Bankruptcy Time Records at 7. Part of these costs include $214.75 in travel expenses. See Bankruptcy Time Records at 7.
The items and amounts sought are as follows:
Category
Total
Filing Fees
$400.00
Bankruptcy Filing Fees Service of Process Fees
$1,799.49
$1,267.00
Interpreter Fees
$3,270.00
Deposition Transcript Costs
$1,855.86
Postage Costs
$9.50
Travel Expenses
$214.75
Other Costs
$1,011.10
TOTAL
$9,827.70
Time Records at 23-24; Bankruptcy Time Records at 7.
“As with attorneys' fees, the requesting party must substantiate the request for costs. 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) (citations omitted). It is worth noting that Troy Law's submission fails to describe several of these costs and takes the approach of appending a series of invoices to its declaration that do not necessarily align with the 41 line items of costs requested. This practice makes it difficult to separate the costs that have evidentiary support from those that do not.
As to the interpreter services, Troy Law submits two invoices, reflecting that the interpreters charged $90 per hour or $300 per day at trial. See Interpreter's Invoice, annexed as Ex. 13 to Troy Decl. (Docket # 390-13); Interpreter's Invoice, annexed as Ex. 13 to Troy Decl. (Docket # 390-14). While only two invoices are provided, totaling $2,640.00, Troy Law claims that an additional $630.00 was expended on interpreter services. See Time Records at 23 (entry for “Interpreters Invoice Paid for Arthur Kwok on April 12, 2019”). Absent documentation, such expenses cannot be recovered. As for the interpreter services for which the Court was provided with invoices, “district courts have found similar costs for interpretation services in NYLL/FLSA cases to be reasonable.” Argudo v. RUGO, LLC, 2023 WL 6811664, at *6 (S.D.N.Y. Oct. 16, 2023) (S.D.N.Y. Oct. 16, 2023) (finding $115 to $150 per hour reasonable). Thus, Troy Law should be awarded $2,640.00 costs associated with interpreter services. See Sai Qin Chen v. E. Mkt. Rest., Inc., 2018 WL 3970894, at *5 (S.D.N.Y. Aug. 20, 2018) (awarding $6,530 in interpreter fees).
As to filing fees, the Court may take judicial notice of the fee reflected on the docket sheet. See Li v. Kai Xiang Dong, 2017 WL 892611, at *17 (S.D.N.Y. Mar. 7, 2017), adopted by 2017 WL 1194733 (S.D.N.Y. Mar. 31, 2017). In addition to the filing fee in this case, amounting to $400.00, Troy Law seems to request $1,267.00 in costs related to filing fees in the related bankruptcy cases. See Time Records at 23 (providing 4 line items for $181.00 each); Bankruptcy Time Records at 7 (providing 3 line items for $181.00 each). The seven entries for $181.00 were each incurred on May 31, 2018. See id. Troy Law attaches docket sheets from three bankruptcy cases showing that it paid a filing fee of $181.00 in each case on May 31, 2018. See Docket Sheet, annexed as Ex. 5 to Troy Decl. (Docket # 390-5), at 2; Docket Sheet, annexed as Ex. 7 to Troy Decl. (Docket # 390-7), at 2; Docket Sheet, annexed as Ex. 9 to Troy Decl. (Docket # 390-9), at 2. However, the Court is unable to ascertain the source of the additional four entries. Thus, Troy Law should be awarded $943.00 ($400.00 + $181.00 * 3) in filing fees.
Similarly, Troy Law requests $1,799.49 in service of process fees, but provides just a single invoice, reflecting $270.00 in costs. See Invoice, annexed as Ex. 11 to Troy Decl. (Docket # 390-11). Thus, Troy Law should be awarded only $270.00 in service of process fees. See Callari v. Blackman Plumbing Supply, Inc., 2020 WL 2771008, at *17 (E.D.N.Y. May 4, 2020) (not awarding service of process fees where plaintiffs failed to “provide the underlying documentation” supporting those expenses), adopted by 2020 WL 2769266 (E.D.N.Y. May 28, 2020).
The remaining costs have not been supported by any external proof. We thus reject the request for these items inasmuch as no extrinsic documentation is provided.
The request for “fee reimbursement for Plaintiff Zhu,” Time Records at 23, appears to be reimbursement of expenses and fees incurred by another law firm, Lee Litigation Group, PLLC. See Email, annexed as Ex. 12 to Troy Decl. (Docket # 390-12); Reply to Hunan at 7 (stating item relates to “fees reimbursed to Plaintiff Zhu's former counsel”). Troy Law and the Lee Litigation Group invoice provide no explanation of what expenses are being reimbursed. Because the Court cannot determine whether this item represents a “reasonable out-of-pocket expense[] incurred by attorneys and ordinarily charged to their clients,” LeBlanc-Sternberg, 143 F.3d at 763, Troy Law should not be awarded this amount.
Accordingly, Troy Law should be awarded $3,853.00 in costs.
Conclusion
For the foregoing reasons, the motion for attorney's fees and costs (Docket # 389) should be granted in the amount of $113,091.25 ($109,238.25 in fees plus $3,853.00 in costs).
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
SO ORDERED.