Opinion
Case No. 1:12-cv-922
05-05-2014
JESSIE WILSON, Plaintiff, v. D&N MASONRY, INC., et al., Defendants.
Judge Timothy S. Black
ORDER GRANTING PLAINTIFF'S
MOTION FOR ATTORNEY'S FEES (Doc. 76)
This civil action is currently before the Court on Plaintiff Jessie Wilson's Motion for Attorney's Fees against Defendants Nick DeBello and Cathy DeBello. (Doc. 76). Under S.D. Ohio Civ. R. 7.2(a)(2), "any memorandum in opposition shall be served and filed within twenty-one (21) days from the date of service set forth in the certificate of service attached to the Motion." No responsive memoranda have been timely filed.
I. BACKGROUND
Plaintiff initiated this wage-and-hour suit in December 2012. (Doc. 3). Plaintiff's claims were contested initially, prompting Plaintiff to seek recoupment from non-employer third parties, i.e., a general contractor and a surety. (Doc. 13; Docs. 3, 33, and 42). Defendants D&N Masonry, Inc., Don DeBello, Nick DeBello, and Cathy DeBello ultimately failed to answer Plaintiff's Amended Complaint (Doc. 33), permitting Plaintiff to obtain judgment against the DeBello Defendants, jointly and severally, in the amount of $20,134.78. Given the bankruptcy proceedings concerning Defendants D&N Masonry, Inc. and Don DeBello, Plaintiff brings this motion against Defendants Nick DeBello and Cathy DeBello only. (Doc. 76 at 1 n.1).
Plaintiff's counsel Ryan Hymore evidences he spent 80.6 hours prosecuting this case at a rate of $300.00 per hour, with the assistance of paralegal Dan Sponaugle for 14.5 hours at a rate of $125.00 per hour. (Doc. 76-1 at ¶ 11).
II. STANDARD OF REVIEW
Each of Plaintiff's claims for relief contains a mandatory statutory fee and cost shift. See 29 U.S.C. § 216(b) (FLSA Minimum Wage and Overtime); Ohio Rev. Code § 4115.10(A) (Ohio Prevailing Wage); Ohio Rev. Code § 4111.10(A) (Ohio Overtime); Ohio Const., Art. II, Sec. 34a (Ohio Minimum Wage); W. Va. Code § 21-5A-9(b) (West Virginia Prevailing Wage). The Supreme Court has held that "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424,433 (1983). "Attorney's fees must be set in amount that is 'reasonable,' 29 U.S.C. § 216(b), and in recent times the starting point has been a 'lodestar' calculation - the product of the number of hours reasonably spent on the case by an attorney times a reasonable hourly rate." Moore v. Freeman, 355 F.3d 558, 565 (6th Cir. 2004) (citing Adcock-Ladd v. Sec'y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000)). After determining the "lodestar" figure, "[t]hat amount may then be adjusted upwards or downwards, as the district court finds necessary under the circumstances of the particular case." Id.
In determining the reasonableness of fees, the Court remains cognizant of "[t]he purpose of the FLSA attorney fees provision" which "is 'to insure effective access to the judicial process by providing attorney fees for prevailing plaintiffs with wage and hour grievances.'" Dellarussiani v. Ed Donnelly Enterprises, Inc., No. 2:07-cv-253, 2010 WL 2545349, at *2 (S.D. Ohio June 16, 2010) (citing Fegley v. Higgins, 19 F.3d 1126, 1134 (6th Cir. 1994); United Slate, Tile & Composition Roofers, Damp and Waterproof Workers Ass'n Local 307 v. G & M Roofing and Sheet Metal Co., 732 F.2d 495, 501 (6th Cir. 1984)). Further, "[c]ourts should not place an undue emphasis on the amount of the plaintiff's recovery because an award of attorney fees [in a FLSA case] 'encourage[s] the vindication of congressionally identified policies and rights.'" Id. (citing Fegley, 19 F.3d at 1135; United State, 732 F.2d at 503).
III. ANALYSIS
Given the claims, the Court finds it was reasonable to expend 80.6 attorney hours and 14.5 paralegal hours prosecuting this matter. Plaintiff's counsel has previously been awarded $300.00 per hour by this Court in pursuing claims against these very same Defendants. Bleyenberg v. D & N Masonry, Inc., No. 2:12-cv-777, slip op. at 3 (S.D. Ohio Dec. 3,2013); see Doe v. Ohio, No. 2:01-cv-464, 2010 WL 2854106, at *4 (S.D. Ohio July 19, 2010) (noting court should consider "the hourly billing rates found by Ohio courts to be reasonable in similar cases for attorneys with similar experience"). Furthermore, the rates are commensurate with other Cincinnati practitioners with seven-plus years of experience in three-attorney firms practicing Employment Law (Labor). (Doc. 76-6 at 39-41). Accordingly, the Court finds that $300.00 is a reasonable hourly rate for work by counsel and $125.00 is a reasonable hourly rate for work by a paralegal.
Although the loadstar method would therefore result in a fee request of $25,992.50 ($24,180.00 for Hymore's hours worked and $1,812.50 for Sponaugle's hours worked), Plaintiff requests the Court to award him $24,000.00 for attorney's fees to date, a reduction of $1,992.50 through the exercise of billing judgment. (Doc. 76-1 at ¶ 13).
With respect to this motion for fees and costs, the Sixth Circuit permits counsel to request an additional 3% of the total fee award as compensation for prosecuting the motion. See, e.g., Auto Alliance Int'l, Inc. v. United States Customs Serv., 155 Fed. Appx. 226, 229 (6th Cir. 2005) (noting that the "general rule is that, in the absence of unusual circumstances, the 'fees for fees' recovery should not exceed three percent of the hours in the main case which is decided without a trial"). As such, Plaintiff requests $24,000.00 plus 3%, i.e., $24,720.00, less $7,019.73 recovered from non-employer third parties, which equals $17,700.27. (Doc. 76-1 at ¶ 13).
III. CONCLUSION
Accordingly, based on the foregoing, Plaintiff's Motion for Attorney's Fees (Doc. 76) is hereby GRANTED and judgment is entered in favor of Plaintiff and against Defendants Nick DeBello and Cathy DeBello, jointly and severally, in the amount of $17,700.27.
IT IS SO ORDERED.
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Timothy S. Black
United States District Judge