Opinion
18-CV-11905 (AT) (BCM)
06-28-2023
DONG YUAN, et al., Plaintiffs, v. & HAIR LOUNGE INC., et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. ANALISA TORRES
BARBARA MOSES, United States Magistrate Judge
Before the Court for report and recommendation (see Dkt. 195) is the unopposed motion of plaintiff Dong Yuan for an award of attorneys' fees and costs following a favorable jury verdict on his claims for unpaid wages and related relief under the Fair Labor Standards Act (FSLA) and the New York Labor Law (NYLL). (Dkt. 191.) For the reasons that follow, I recommend that the motion be granted; that Hui Chen and Associates, PLLC (Chen Law), which represented plaintiff Yuan at the outset of this action, be awarded $7,200 in fees, and $400 in costs; and that Troy Law, PLLC (Troy Law), which tried the case, be awarded $21,925 in fees, for a total award of $29,525.
I. BACKGROUND
Plaintiff Yuan worked as a salon assistant and hair designer at two hair salons in Manhattan, known as "& Hair Salon" and "& Hair Salon II," on various dates from 2016 through 2018. See Am. Compl. (Dkt. 31) ¶ 7. His co-plaintiff, Xuanhao Xu, claimed to have been employed at the same salons in 2018. Id. ¶ 8. In this action, filed on December 18, 2018, plaintiffs sued the owners and operators of the salons,seeking unpaid minimum and overtime wages, spread of hours pay, liquidated damages, statutory penalties, attorneys' fees, and costs. Id. ¶¶ 1-4, 55-103.
The defendants are two corporations and two individuals: & Hair Lounge Inc.; & Hair Lounge II Inc.; Min Fei Chen, a/k/a Wendy Chen; and Chen Lung Lu, a/k/a Edison Lu. See Am. Compl. ¶¶ 9-18.
On April 5, 2019, plaintiffs moved for conditional certification of an FLSA collective. (Dkt. 32.) On November 7, 2019, I granted the motion in part, limiting the potential collective to hair designers and assistants at & Hair Lounge and & Hair Lounge II since December 21, 2015. (Dkt. 70.) On December 20, 2019, I approved a notice and consent form to be sent to potential opt-in plaintiffs. (Dkt. 79.) Thereafter, disputes arose concerning the adequacy of defendants' mailing list for those potential opt-in plaintiffs. On December 30, 2019, I directed defendants to update the list (Dkt. 82), and on January 14, 2020, I directed that the notice and consent form be posted in the salons, disseminated by mail and email, and published - at defendants' expense - in the World Journal. (Dkt. 86.) However, no additional plaintiffs ever opted in to the FLSA collective.
On July 25, 2020, defendants moved for summary judgment against plaintiff Yuan (Dkt. 110), arguing that he was a "freelancer" or independent contractor rather than their employee. On April 1, 2021, the Hon. Analisa Torres, United States District Judge, denied the motion. (Dkt. 120.) The case proceeded to a jury trial before Judge Torres on November 21, 22, and 28, 2022. (Dkts. 179-184). Three witnesses testified at the trial: plaintiff Xu, see Trial Tr. (Dkts. 179, 181, 183) at 28:14-60:10; plaintiff Yuan, see id. at 60:13-100:22, 112:16-164:4; and defendant Chen. See id. at 167:10-237:25. Defendant Lu did not appear for trial. See id. at 2:16-24.
In the weeks leading up to the November 21, 2022 trial date, Judge Torres repeatedly ordered both individual defendants to appear for trial, on pain of contempt. (See Dkts. 155, 169, 170.) Nonetheless, on November 21, 2022, defendants' counsel reported that Lu had traveled to Xiamen, China, "last Thursday." Trial Tr. at 2:22-24. Contempt proceedings are ongoing before the district judge. (See Dkts. 197, 199, 200, 201, 202.) Separately, plaintiffs have moved for sanctions against defendants for violating Judge Torres's orders requiring them to meet with plaintiffs to discuss settlement. (Dkts. 172, 174.)
On November 28, 2022, the jury rendered a verdict in favor of plaintiff Yuan against all four defendants but found that plaintiff Xu was not an employee of any defendants. See Trial Tr. at 298:6-308:17. On December 28, 2022, Judge Torres entered judgment in favor of plaintiff Yuan in the amount of $66,755.44. (Dkt. 187.)
Plaintiffs were initially represented by attorneys Hui Chen and Natella Vinnikov of Chen Law. On November 28, 2019 (after the collective certification motion was granted), attorneys John Troy, Aaron Schweitzer, Leanghour Lim, and Shan Zhu of Troy Law filed notices of appearance. (Dkts. 75-77.) Thereafter, attorney Schweitzer served as lead counsel (and sole trial counsel) for plaintiffs. According to the declaration of Troy Law's principal, John Troy, attorney Chen continued to represent plaintiffs throughout the litigation, "to the present day." Troy Decl. (Dkt. 192) ¶ 7. However, Chen Law's time records include no billing entries after November 24, 2019. See id. Ex. 1 (Dkt. 192-1) at ECF p. 9.
Plaintiff Yuan filed his fee motion on January 11, 2023, supported by the Troy declaration and a memorandum of law. (Dkt. 193.) He requests a total of $49,487.00 in fees to be paid to Troy Law, for 162.74 hours of attorney and paraprofessional work, plus $2,877.04 in costs, and $35,662.50 in fees to be paid to Chen Law, for 79.25 hours of attorney work, plus $3,075 in costs, for a total award of $85,149.50. Troy Decl. ¶¶ 76-77.
Defendants did not respond to the fee motion.
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). "In calculating attorney's fees, the district court must first determine the 'lodestar, [which is] the product of a reasonable hourly rate and the reasonable number of hours required by the case.'" 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)). After this calculation is performed, "a district court may, in extraordinary circumstances, adjust the presumptively reasonable fee," that is, 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) (quoting Millea, 658 F.3d at 167). "[T]he 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. Hourly Rates
A reasonable hourly rate is the "rate a paying client would be willing to pay," bearing in mind 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. OfAlbany, 522 F.3d 182, 190 (2d Cir. 2008). 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 these, "'the most critical factor' in a district court's determination of what constitutes reasonable attorney's fees in a given case 'is the degree of success obtained' by the plaintiff." Barfield v. 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 are accorded "wide latitude" in determining "the propriety of attorneys' fees and costs requests." Gortat v. Capala Bros., Inc., 621 Fed.Appx. 19, 23 (2d Cir. 2015) (citation omitted); accord Barfield, 537 F.3d at 151 ("We afford a district court considerable discretion in determining what constitutes reasonable attorney's fees in a given case.").
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)). 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, courts "need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection." 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, "in 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 5455 (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." Decastro v. City of New York, 2017 WL 4386372, at *7 (S.D.N.Y. Sept. 30, 2017) (quoting Norwood v. Salvatore, 2016 WL 1060299, at *6 (N.D.N.Y. Mar. 15, 2016)). The reduction need not be pro rata. See, e.g., Cruz v. Space NY 50th St LLC, 2019 WL 4061492, at *6 (S.D.N.Y. Aug. 28, 2019) (applying a 10% reduction where two of the four plaintiffs voluntarily dismissed their FLSA claims before trial); Williams v. Epic Security Corp., 368 F.Supp.3d 651, 661-62 (S.D.N.Y. 2019) (applying reductions of 66-70% where "only 45% of the overall Plaintiffs and opt-in Plaintiffs who appeared in this case prevailed," but where "some work done on behalf of the non-prevailing Plaintiffs was required for the prevailing Plaintiffs to win, including deposing Defendants' witnesses"); Makinen v. City of New York, 2019 WL 970945, at *3 (S.D.N.Y. Feb. 28, 2019) (applying a 30% reduction where two of the three plaintiffs prevailed at trial but lost on appeal); Adorno v. Port Auth. Of New York & New Jersey, 685 F.Supp.2d 507, 518 (S.D.N.Y. 2010) (Chin, J.) (applying a 60% reduction where only 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).
B. Reasonableness of Hourly Rates Sought
Plaintiff Yuan seeks fees for work performed by eight Troy Law attorneys and paraprofessionals: managing attorney John Troy (at $650 per hour); managing associate Aaron Schweitzer (at $400 per hour); associates Leanghour Lim, Eric Chen, and Tiffany Troy (all at $250 per hour), and managing clerk Preethi Kilaru (at $200 per hour). Troy Decl. at ECF p. 32 (chart). Additionally, plaintiff seeks fees at the reduced rate of $150 per hour for "paralegal" work performed by John Troy and for work performed by Tiffany Troy before her admission to the bar. Id. ¶ 76.
After consideration of all of the Johnson factors, I conclude that these rates are unreasonably high. "A treatise worth of case law has emerged about the rates and hours that Troy Law has requested." Garcia v. Francis Gen. Construction Inc., 2022 WL 2698434, at *7 (S.D.N.Y. July 12, 2022). In Garcia, and in virtually every other case considering fee applications prepared by Troy Law, "courts have balked" at the firm's requested rates. Id. (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); see also Lu Wan v. YWL USA Inc., 2021 WL 1905036, at *6 (S.D.N.Y. May 12, 2021) (observing that "courts that have thoroughly scrutinized Troy Law's requests for fees have awarded lower rates," and awarding fees at the rate of $325 per hour for John Troy, $175 per hour for Schweitzer, $125 per hour for Lim, and $75 per hour for Kilaru and Tiffany Troy); Wang v. XBB, Inc., 2023 WL 2614143, at *5, *8 (E.D.N.Y. Mar. 23, 2023) (noting that "Troy Law has been reprimanded numerous times for its billing practices," and awarding fees at the rate of $400 per hour for John Troy, $200 per hour for Schweitzer, $75 for Kilaru, and $0 for Tiffany Troy, because "interpreting services are distinct from legal services and are not awarded as a component of attorney's fees") (quoting Szczepanek v. Dabek, 2011 WL 846193, at *8 (E.D.N.Y. Mar. 7, 2011)).
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, 2023 WL 2614143, at *5 ("Junior associates generally command $100 to $150.") (cleaned up).
1. 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 of Troy Law. Troy Decl. ¶¶ 16, 18, 23-25. 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 12 in arbitration. Id. ¶¶ 19-22.
Notwithstanding his lengthy case list, John Troy points to no case in which he was paid $650 per hour by a client or awarded $650 per hour by a court. Instead, he attests that a New York state court once issued an oral order awarding him $600 per hour, Troy Decl. ¶ 29, and notes that he was granted $550 per hour in three recent cases in this District. Id. ¶ 29. In two of those cases, the defendants defaulted and the fee application was unopposed. See Xu v. Kealoha Sushi Inc., 2021 U.S. Dist. LEXIS 161396, *15 (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). Moreover, in Kealoha Sushi, the magistrate judge's recommendation was never adopted by the district judge.In the third case, the district judge awarded John Troy $550 for half of his hours and $300 for the other half, during which he performed "associate - and even paralegal-level work." Weng v. Kung Fu Little Steamed Buns Ramen, Inc., 2021 WL 2043399, at *2 (S.D.N.Y. May 21, 2021).
While the recommendation was pending, the plaintiff accepted an offer of judgment pursuant to Fed.R.Civ.P. 68 that was inclusive of attorneys' fees in an undisclosed amount. See Judgment (Dkt. 102), Xu v. Kealoha Sushi Inc., No. 19-CV-11885-PAE-SBA (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., Sanango v. Ruby Nails Tarrytown, 2023 WL 2707329, at *6 (S.D.N.Y. Mar. 30, 2023) (setting John Troy's rate at $300 per hour, due in part to Troy Law's failure to comply with the court's individual practices and failure to timely prosecute the case); Wang, 2023 WL 2614143, at *4 (rejecting John Troy's bid for $650 per hour and awarding $400 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 to John Troy due to the "consistently poor quality of his work") (citation omitted); Gao, 2023 WL 2118203, at *12 (rejecting the $600 per hour rate requested for John Troy and recommending $375); Garcia, 2022 WL 2698434, at *7 (awarding $300 per hour for John Troy's time 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"); Lu Wan, 2021 WL 1905036, at *6 (awarding John Troy $325 per hour).
Plaintiff offers no reason why John Troy should be awarded an above-market rate in this case, much less a higher rate than he has ever been granted in any other case. John Troy did not try the case, nor did he otherwise take a leading role in its prosecution. His time records reflect a total of approximately 12 hours spent working on this action, half of which, by his own admission, were spent performing paralegal tasks (for which he proposes to charge $150 per hour). Troy Decl. Ex. 1 at ECF pp 1-7. I therefore recommend that his rate be fixed at $400 per hour for his legal work, and $75 per hour for his paralegal work.
See Part II (B)(5), below, for a discussion of appropriate rates for paralegal work.
2. Aaron Schweitzer
Attorney Schweitzer graduated from Fordham University School of Law in 2016, was admitted to the New Jersey bar in 2017 and the New York bar the following year, and serves as the "managing associate" at Troy Law. Troy Decl. ¶¶ 31-33. In late 2022, when he tried this case, Schweitzer had approximately five years of legal experience and had litigated over 99 wage-and-hour actions in various federal courts. Id. ¶ 36. Troy asserts that Schweitzer charges $400 per hour (the same rate he seeks here) in "non-contingent matters," id. ¶ 39, but no further information or corroborating documentation is provided for these "non-contingent matters."
The only case in which Schweitzer was awarded $400 per hour is a New York state proceeding in which the award was made in an oral order. Troy Decl. ¶ 45. Otherwise, the Troy declaration relies on federal cases in which Schweitzer was awarded an hourly rate of $350, id., including Kealoha Sushi, in which, as discussed above, the district judge never approved that rate. See also Weng, 2021 WL 2043399, at *2 ($350 per hour, after trial); Wild Ginger, 2020 WL 6324090, at *8 ($350 per hour, post-default); Zhang, 2019 WL 6318341, at *4 ($350 per hour, post-default).
In other recent cases, Schweitzer has been awarded significantly 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. 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) (awarding $350 per hour to a senior associate with "over twenty years of experience in civil litigation and employment law," who acted as lead trial counsel, and $300 per hour to a senior associate with "nine years of experience in litigation and employment law").
Notwithstanding his relatively short career as a lawyer, attorney Schweitzer has been the subject of numerous orders imposing or threatening to impose sanctions for litigation misconduct. See, e.g., Chen v. Thai Greenleaf Rest. Corp., 2023 WL 2731712, at *5-6 (E.D.N.Y. Mar. 31, 2023); Ke v. J R Sushi 2 Inc., 2022 WL 912231, at *10 (S.D.N.Y. Mar. 28, 2022) Lin v. Quality Woods, Inc., 2021 WL 2343179, at *8 (E.D.N.Y. June 4, 2021); Ke v. J R Sushi 2 Inc., 2021 WL 965037, at *3 (S.D.N.Y. Mar. 15, 2021); Guangqing Lin v. Teng Fei Rest. Grp. Inc., 2020 WL 264407, at *3 (S.D.N.Y. Jan. 17, 2020); Jianshe Guo v. A Canaan Sushi Inc., 2019 WL 1507900, at *4 (S.D.N.Y. Apr. 5, 2019).
Troy Law's billing records show that Schweitzer began working on this case in May 2020, when he had approximately three years of experience in wage and hour litigation. Troy Decl. Ex. 1, at ECF p. 4. Thereafter, Schweitzer prepared plaintiffs' papers in opposition to defendants' summary judgment motion, worked on plaintiffs' pretrial filings, and, as noted above, tried the case in November 2022. It does not appear that Schweitzer, or any other lawyer from his firm, conducted any discovery. See id. at ECF pp. 1-7. Given Schweitzer's relative inexperience, his reputational issues, and the uncomplicated nature of the 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 in this action.
3. Eric Yige Chen
Eric Yige Chen was admitted to practice in New York on December 31, 2020. Troy Decl. ¶ 49. All of his work on this matter took place within his first year of practice (in the summer of 2021), and most of it involved drafting litigation documents for review by more senior attorneys. See id. Ex. 1, at ECF p. 5. In Zang v. Daxi Sichuan, Inc., 2023 WL 2305934, at *4 (E.D.N.Y. Mar. 1, 2023), Eric Chen was awarded $100 per hour for work performed at roughly the same time as the work he performed in this case. Given Eric Chen's junior status, I recommend a rate of $150 per hour for his work.
4. Leanghour Lim
Leanghour Lim graduated from SUNY Buffalo Law School in 2018, was admitted to practice in New York on March 18, 2019, and has been awarded hourly rates of $250 in two cases, Kealoha Sushi and Wild Ginger. Troy Decl. ¶¶ 50, 54. In other cases, however, courts in this Circuit have awarded lower hourly rates. See Shanghai Cafe Deluxe, 2023 WL 2401376, at *16 ($125); Zhang, 2022 WL 2668263, at *17 ($100); Lu Wan, 2021 WL 1905036, at *6 ($125). Moreover, her work on the case at bar took place largely within her first year of practice and involved relatively simple tasks, including - on several occasions - inputting names and dates into Troy Law's "database." See Troy Decl. Ex. 1, at ECF p. 2. Consequently, I recommend that her hourly rate also be set at $150.
5. 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., Troy Decl. Ex. 1, at ECF p. 6 (seeking $200 per hour for scanning a document, traveling to court to deliver documents, and scheduling interpreters for trial). Kilaru was awarded her requested rate in two cases, see Weng, 2021 WL 204339, at *2; Wild Ginger, 2020 WL 6324090, at *8, but is typically awarded fees of less than $100 per hour. See, e.g, Hong, 2023 WL 3092722, at *5 ($75 per hour); Sanango, 2023 WL 2707329, at *6 ($70 per hour); Wang, 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 Ms. Kilaru appears to have performed - at best - paralegal work on this case, an hourly rate of $75 is appropriate.
6. Tiffany Troy
Tiffany Troy graduated from Fordham School of Law, was admitted to the New York state bar on June 24, 2021, and is a NYS Unified Court System Mandarin Chinese interpreter. Troy Decl. ¶¶ 60-61, 69. All of her legal work in this action was performed within 18 months of her admission to the bar. See Troy Decl. Ex. 1, at ECF pp. 6-7. Prior to her admission, she performed clerical work, translated documents, and interpreted for clients. Id. at ECF pp. 2-5.
Insofar as can be determined from the public record, Tiffany Troy has never been awarded $250 per hour for her services as an attorney. Nor is there any reason why her hourly rate should be higher than the rate fixed for the other junior associates who worked on the same matter. Consequently, I recommend that Tiffany Troy's hourly rate for legal work be set at $150. See Shanghai Cafe Deluxe, 2023 WL 2401376, at *17; Garcia, 2022 WL 2698434, at *7. Her hourly rate for pre-admission work and translation/interpretation services should be set at $75 per hour. See Hong, 2023 WL 3092722, at *6; Lu Wan, 2021 WL 1905036, at *6.
7. Hui Chen and Natella Vinnikov
Plaintiff also seeks fees for the work performed by Hui Chen and Natella Vinnikov of Chen Law, each at the hourly rate of $450. Troy Decl. at ECF p. 32. According to John Troy, Hui Chen graduated from Cardozo School of Law on an unspecified date, served as an "assistant clerk" for a federal judge, and then formed Chen Law. Id. ¶ 74. The firm now has four attorneys, id., but does not appear to have any particular expertise in wage and hour litigation. The Troy declaration does not list any other FLSA cases handled by attorney Chen, much less any cases in which he has been awarded fees, and does not provide any information at all - not even basic pedigree information - about Natella Vinnikov.
According to the firm's website, Chen Law specializes in "Security laws, including the SPAC (Special Purpose Acquisition Company) and OTC (Over-the-Counter) markets. The firm is also highly knowledgeable in immigration law, specifically EB-5 and family-based petitions, as well as labor law litigations. In addition, Hui Chen & Associates, PLLC has extensive expertise in civil litigation, encompassing business disputes, labor and employment matters, real estate cases, security and corporate issues, transactional affairs, and various other commercial concerns." Hui Chen & Associations, PLLC, Professionals, http://chencounsel.com/a-homepage-section/ (last visited June 28, 2023).
As noted above, Chen Law's billing entries for this case end on November 24, 2019. Troy Decl. Ex. 1, at ECF p. 9. Before that, according to those entries, attorney Chen prepared and filed plaintiffs' pleadings, as well as their collective certification motion, conducted a mediation session, defended the depositions of both plaintiffs, and took the deposition of one of the individual defendants, Edison Lu. Id. It is not entirely clear what other work the Chen Law attorneys performed. Twenty-four of the 53 separate entries that appear in Chen Law's time records describe the service performed simply as "review." Id. Another entry, for two hours of work by attorney Vinnikov, is completely blank. Id.
Chen Law had some difficulty with both of these tasks. It took the firm several attempts, over three days, to file plaintiff Yuan's original Complaint and obtain a summons. (Dkts. 1, 2, 7, 8, 9.) Counsel faced similar challenges when filing the Amended Complaint. (Dkts. 28, 30, 31.) Further, although the Court granted plaintiffs' collective certification motion, in part, the proposed form of notice and consent submitted by Chen Law (Dkt. 72-1) required substantial editing by the Court before it could be approved. (Dkt. 79.)
"[T]he fee applicant has the burden of showing by 'satisfactory evidence - in addition to the attorney's own affidavits' - that the requested hourly rates are the prevailing market rates." Farbotko v. Clinton Cnty. of New York, 433 F.3d 204, 209 (2d Cir. 2005) (quoting Blum, 465 U.S. at 896 n. 11). Here, as to Chen Law, plaintiff has not come close to meeting that burden. Consequently, I recommend that the hourly rate for attorneys Chen and Vinnikov be set at $150 -the same as the junior associates at Troy Law.
C. Reasonableness of Hours Expended
Chen Law requests compensation for 79.25 hours of work, between December 2018 and November 2019, while Troy Law requests compensation for 162.74 hours of work, between November 2019 and January 2023. Troy Decl. ¶¶ 76-77. Reductions are required for both firms.
1. Chen Law
Chen Law's billing records are remarkably uninformative, and thus "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. As noted above, 24 entries (all by attorney Chen) describe the work performed simply as "review." Troy Decl. Ex. 1, at ECF p. 9. "While shorthand in time entries is permissible," attorney Chen's cryptic entries are "outside the bounds of permissible entries for which a reasonable client would be willing to pay[.]" Lee, 2022 WL 3645118, at *12 (citation omitted); see also Alonso v. New Day Top Trading, Inc., 2020 WL 9815184, at *25 (S.D.N.Y. June 29, 2020) ("Where attorney time records are inadequate to allow for judicial review, it is appropriate for the court to reduce the hours stated."). No fees should be awarded for the six hours described only as "review," nor for the one hour descried as "filing error." Troy Decl. Ex. 1, at ECF p. 9.
Moreover, some of Chen's work - for example, conducting the Xu deposition - cannot be reimbursed because that work was performed for the benefit of a plaintiff who did not prevail on any of his claims. As in Adorno, however, I do not recommend reducing Chen's well-documented hours by a full 50%, because "some of the additional time would have been required even if this had only been a [one]-plaintiff case." 685 F.Supp.2d at 518. Instead, after deduction of the six hours spent on "review," the one hour spent on "filing error," and the six hours spent on the Xu deposition, I recommend that the remaining 64 hours of time billed by attorney Chen be reduced by 25 percent, compensable at the rate of $150 per hour.
Attorney Vinnikov made only two time entries in this action. On June 7, 2019, she billed one-quarter of an hour to her notice of appearance, and on November 21, 2019, she billed two hours to nothing, apparently - there is no description whatsoever associated with this entry. Troy Decl. Ex. 1, at ECF p. 9. I therefore recommend that no fees be awarded for Vinnikov's work. This reduction, coupled with reduced hourly rates as discussed above, results in a recommended fee award of $7,200 to Chen Law, as set forth below:
Individual
Requested Rate
Reasonable Rate
Allowed Hours
Reduction
Reasonable Hours
Adjusted Total
Hui Chen
$450
$150
64
25%
48
$7,200
2. Troy Law
Troy Law's billing records are more specific than Chen Law's. However, they require trimming for other reasons. For instance, Troy Law's records reveal multiple instances of attorneys billing attorney rates for paralegal and/or clerical work, such as entering information into databases, scheduling and entering dates into calendars, preparing exhibit binders, and preparing courtesy copies. See Troy Decl. Ex. 1, at ECF pp. 1-5. Over half a dozen billing entries (some by attorneys, some by managing clerk Kilaru) simply state "download" and "review," and identify a document by docket number. In some cases, the documents downloaded and reviewed were Troy Law's own filings. Id. at ECF pp. 1-4. Moreover, Tiffany Troy billed 5.5 hours for trial preparation at her full (requested) attorney rate of $250 per hour on November 20, 2022, although Schweitzer (who tried the case) billed the same 5.5 hours, and Tiffany Troy's entry indicated that she was acting as translator. Id. at ECF p. 7. Assuming that Schweitzer does not speak Chinese (the language in which both plaintiffs testified), it was "reasonable to pay for a translator or paralegal . . . to communicate with the client effectively," but "[a]bsent any other justification for [her] presence . . . full reimbursement for [her] services is unwarranted." Lee, 2022 WL 3645118, at *7 (collecting cases). Finally, since only one of Troy Law's two clients prevailed at trial, the Troy Law hours should also be reduced to "reflect a reasonable amount of time spent on the prevailing party's case." Decastro, 2017 WL 4386372, at *7.
In order to account for the overbilling summarized above and the failure of plaintiff Xu's case, I recommend an overall reduction of Troy Law's compensable hours by 25 percent. This reduction, coupled with reduced hourly rates as discussed above, results in a fee award of $21,925 to Troy Law, as set forth below:
Individual
Requested Rate
Reasonable Rate
Recorded Hours
Reduction
Reasonable Hours
Adjusted Fees
John Troy
$650
$400
5.89
25%
4.42
$1,767
(Reduced Rate)
$150
$75
6.2
25%
4.65
$349
Aaron Schweitzer
$400
$250
66.24
25%
49.68
$12,420
Eric Yige Chen
$250
$150
13.24
25%
9.93
$1,490
Leanghour Lim
$250
$150
18.34
25%
13.76
$2,063
Preethi Kilaru
$200
$75
17.52
25%
13.14
$986
Tiffany Troy
$250
$150
15.37
25%
11.53
$1,729
(Reduced Rate)
$150
$75
19.94
25%
14.96
$1,122
TOTAL
162.74
25%
122.06
$21,925
D. 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, Chen Law seeks $3,075 in costs, while Troy Law seeks $3,877.04. Troy Decl. ¶¶ 79, 80. The types of expenses listed by the firms - for service of process, deposition costs, interpreters, postage, printing, and trial transcripts - are unremarkable. See Troy Decl. Ex. 1, at ECF pp. 8, 9. However, neither firm has submitted any invoices, receipts, or other "extrinsic proof" to document the expenditures. Id. Moreover, Troy Law is well aware of the need for such evidence, having been denied expenses in the past on this ground. See, e.g., Shanghai Cafe Deluxe, 2023 WL 2401376, at *17 (declining to award costs to Troy Law, except for the filing fee, due to its failure to "provide[] any documentation to substantiate these costs"); Lin v. Joe Japanese Buffet Rest. Inc., 2022 WL 2718584, at *9 (E.D.N.Y. June 7, 2022) (same), report and recommendation adopted, 2022 WL 2716487 (E.D.N.Y. July 13, 2022); Lu Wan, 2021 WL 1905036, at *9 (awarding costs, even though Troy Law "failed to include any documentation of costs in [its] initial application," because the firm "cured this problem in [its] reply"). Consequently, I recommend that no expense reimbursement award be made in this action except for the $400 filing fee, which was paid by Chen Law and 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 Yuan's fee application be granted: that Hui Chen and Associates, PLLC, be awarded $7,200 in fees, and $400 in costs; and that Troy Law, PLLC be awarded $21,925 in fees, for a total award of $29,525.
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. Analisa Torres at 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Torres. 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).