Lima Lucero v. Parkinson Construction Company, Inc. ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELISEO LIMA LUCERO :
:
Plaintiff, : Civil Action No.: 18-0515 (RC)
:
v. : Re Document No.: 23
:
PARKINSON CONSTRUCTION :
COMPANY, INC., et al. :
:
Defendant. :
MEMORANDUM OPINION
GRANTING PLAINTIFF’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS
On December 11, 2018, this Court entered judgment in favor of Plaintiff Eliseo Lima
Lucero on his action to recover damages for overtime pay from Defendant Parkinson
Construction Company under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.;
the Maryland Wage and Hour Law, Md. Code, Lab. & Empl. Art., § 3-401 et seq.; and the
Maryland Wage Payment and Collection Law, Md. Code, Lab. & Empl. Art., § 3-501 et seq. See
Final J., ECF No. 22; Compl. at 1, ECF No. 1. Plaintiff filed this Motion for an Award of
Attorneys’ Fees and Costs on January 10, 2019. See Mot. for Atty’s’ Fees, ECF No. 23. On
January 25, 2019, this matter was referred to U.S. Magistrate Judge Robin M. Meriweather for
mediation. See Order Setting Mediation, ECF No. 26. However, mediation did not yield a
resolution on the outstanding issue. Plaintiff contends that he is entitled to receive reasonable
attorneys’ fees and costs under the FLSA. See Mot. for Atty’s’ Fees at 1. Defendant argues that
an award of attorneys’ fees and costs is unreasonable because Plaintiff “intensely litigated on
false pretenses.” Def.’s Response to Mot. for Att’ys’ Fees at 1, ECF No. 24.
1
I. LEGAL STANDARD
A. Attorneys’ Fees
Under the FLSA, a prevailing plaintiff is entitled to an award of reasonable attorneys’
fees. 29 U.S.C. § 216(b); see, e.g., Driscoll v. George Washington Univ., 55 F. Supp. 3d 106,
111 (D.D.C. 2014). A court is to determine a reasonable fee using the “lodestar” method,
whereby the number of hours reasonably expended is multiplied by a reasonable hourly rate. See
DL v. District of Columbia, No. 18-7004, 2019 WL 2180398, at *2 (D.C. Cir. May 21, 2019)
(citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). Therefore, in assessing whether an
attorneys’ fees award is reasonable, a court is to (1) determine what constitutes a reasonable
hourly rate, (2) assess whether the hours billed are reasonable, and (3) consider whether
adjustments or multipliers to the lodestar are warranted. See Martini v. Fed. Nat’l Mortg. Ass’n,
977 F. Supp. 482, 484 (D.D.C. 1997) (citing Covington v. District of Columbia, 57 F.3d 1101,
1107 (D.C. Cir. 1995)).
1. Reasonable Hourly Rate
The reasonableness of an attorney’s hourly rate should be considered in light of the
prevailing market rates in the relevant community for lawyers with comparable skills,
experience, and reputation. See Salazar ex rel. Salazar v. District of Columbia, 809 F.3d 58, 62
(D.C. Cir. 2015) (citing Covington, 57 F.3d at 1107). “[A]ttorneys’ fee matrices [are] one type
of evidence that ‘provide[ ] a useful starting point’ in calculating the prevailing market rate.”
Ventura v. L.A. Howard Constr. Co., 139 F. Supp. 3d 462, 463–64 (D.D.C. 2015) (citing Eley v.
District of Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015)). For example, the D.C. Circuit has
established that courts may look to the Laffey Matrix, a schedule of appropriate fees for an
attorney conducting litigation in Washington, D.C., that is based on years of experience.
2
Covington, 57 F.3d at 1105. 1 Rather than merely declaring that the use of a particular matrix is
appropriate in the instant case, a plaintiff should provide the court with evidence that the matrix
enumerates the prevailing rate for attorneys in “this community for this type of litigation by
attorneys with comparable experience.” L.A. Howard Constr. Co., 139 F. Supp. 3d at 464.
2. Reasonable Hours Billed
To assess reasonableness, a court must also consider whether the number of hours billed
for work by counsel are reasonable. The plaintiff bears the burden of establishing that the hours
billed and sought for reimbursement are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437
(1983); Reyes v. Kimuell, 270 F. Supp. 3d 30, 36 (D.D.C 2017) (citing Herrera v. Mitch O’Hara
LLC, 257 F. Supp. 3d 37, 46 (D.D.C. 2017)). The fee request “must be sufficiently detailed to
permit the District Court to make an independent determination whether or not the hours claimed
are justified.” Herrera, 257 F. Supp. 3d at 47 (quoting Nat’l Ass’n of Concerned Veterans v.
Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)).
In determining whether billed hours are reasonable, courts should exclude hours that
were not reasonably expended. Hensley, 461 U.S. at 434. Productivity is the key factor that
determines whether an attorney’s time was reasonably expended. See Ventura v. Bebo Foods,
Inc., 738 F. Supp. 2d 8, 33–34 (D.D.C. 2010) (citing Copeland, 641 F.2d at 892). To this end, a
1
The Laffey Matrix was established from the schedule of prevailing rates compiled in
Laffey v. Nw. Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part on
other grounds, Laffey v. Nw. Airlines, Inc., 746 F.2d 4 (D.C. Cir. 1984), overruled in part on
other grounds, Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988).
See Eley, 793 F.3d 97, 100. The original Laffey Matrix, which the U.S. Attorney’s Office
maintains and updates, adjusts rates for inflation generally using U.S. Bureau of Labor Statistics’
Consumer Price Index for All Urban Consumers. See Serrano v. Chicken-Out Inc., 209 F. Supp.
3d 179, 195 (D.D.C. 2016). A competing version, the LSI Laffey Matrix, adjusts rates for
inflation of the price of legal services in particular, based on the Legal Services Index of the
United States Bureau of Labor Statistics. Id. The LSI Laffey rates often “exceed those found in
the USAO Laffey Matrix.” Id.
3
court should exclude hours that are “duplicative, excessive, or otherwise unnecessary.” Bebo
Foods, 738 F. Supp. at 33–34 (citing Copeland, 641 F.2d at 892); see also Herrera, 257 F. Supp.
3d at 47; Serrano, 209 F. Supp. 3d at 198.
In addition, a court determining the reasonableness of hours billed may exclude time
expended on motions that ultimately fail. See Bebo Foods, 738 F. Supp. at 33–34 (citing
Copeland, 641 F.2d at 892). In Reyes, this Court found that “the hours billed by counsel were
reasonable because counsel expended a reasonable amount of time on each task, were successful
in all of their motions, and did not bill for duplicative work.” 270 F. Supp. 3d at 38. But success
is not the sole consideration. A party’s fee award should not necessarily be reduced simply
because that party was ultimately awarded less in damages than it initially requested, particularly
where there is “no indication [plaintiff’s] demands were unreasonable, frivolous, or otherwise
entirely disconnected from reality.” Radtke v. Caschetta, 822 F.3d 571, 576 (D.C. Cir. 2016).
3. Lodestar Adjustment
The lodestar calculation inherently encompasses most, if not all, of the factors
constituting a reasonable attorney’s fee. See Pennsylvania v. Del. Valley Citizens’ Council for
Clean Air, 478 U.S. 546, 566 (1986). Therefore, there is a strong presumption that a fee yielded
by the lodestar method is reasonable. See West v. Potter, 717 F.3d 1030, 1033 (D.C. Cir. 2013);
Keepseagle v. Perdue, 334 F. Supp. 3d 58, 64 (D.D.C. 2018) (citing Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 549 (2010)). The party requesting an adjustment to the lodestar amount
bears the burden of justifying the proposed deviation. Copeland, 641 F.2d at 892.
B. Award of Costs
In addition to a reasonable attorney’s fee, a successful plaintiff is entitled to recuperate
reasonable costs of the action under the FLSA. See 29 U.S.C. § 216. Reasonable litigation costs
4
that are compensable under the FLSA include costs such as court filing fees, the cost of serving
process of complaint, and the cost of postage. See Reyes, 270 F. Supp. 3d at 39; Serrano, 209 F.
Supp. 3d at 198; Bebo Foods, 738 F. Supp. 2d at 33–34.
II. ANALYSIS
A. Attorneys’ Fees
1. Reasonable Hourly Rate
Plaintiff proffers the USAO Laffey Matrix as evidence of attorneys’ reasonable hourly
rates for working on this case. Mot. for Atty’s’ Fees at 10. Plaintiff identifies several cases
supporting his contention that this matrix is an appropriate guide for determining reasonable
hourly rates here. Id. (citing Reyes, 270 F. Supp. 3d at 36; Al-Quraan v. 4115 8th St. NW, LLC,
123 F. Supp. 3d 1, 2 (D.D.C. 2015); L.A. Howard Constr. Co., 139 F. Supp. at 464; Driscoll, 55
F. Supp. 3d at 120). Defendant provides no contrary evidence or argument. This Court finds
that recent case law in this circuit supports the use of the USAO Laffey Matrix as a guide for
calculating reasonable attorneys’ fees awards in FLSA litigation in Washington, D.C.
At the time that they completed their work for this litigation, Plaintiff’s attorneys Justin
Zelikovitz and Jonathan P. Tucker had eight to ten years of experience each. See Mot. for
Atty’s’ Fees, Ex. B at ¶¶ 3–4; see also Mot. for Atty’s’ Fees at 10. Under the USAO Laffey
Matrix, the reasonable rate for each of their services was set at $417.00 per hour. See Civil
Division of the United States Attorney’s Office for the District of Columbia, USAO Attorney’s
Fees Matrix Laffey Matrix —2015-2019, U.S. Dep’t of Justice (last visited Jun. 12, 2019),
https://www.justice.gov/usao-dc/file/796471/download (“USAO Laffey Matrix 2015-2019”).
Plaintiffs also employed a student associate, Tre Holloway; a paralegal, Nicolas Wulff Gonzalez;
and an administrative assistant, Julie Gutierrez Gomez. See Mot. for Atty’s’ Fees at 10 (citing
5
Mot. for Atty’s’ Fees, Ex. B at ¶¶ 3–4). Using the USAO Laffey Matrix rate for paralegals and
law clerks at the time that work for this litigation was completed, the reasonable fee for each of
their services was set at $166.00 per hour. See USAO Laffey Matrix 2015-2019. Because
Plaintiff correctly identified and applied the USAO Laffey Matrix in calculating the appropriate
rates of counsel here, and Defendant has submitted no evidence or argument rebutting such rates,
this Court accepts Plaintiff’s proposed hourly rates as reasonable.
2. Reasonable Hours Billed
Plaintiff’s counsel submitted detailed billing records. See generally Mot. for Atty’s’
Fees, Ex. A. The Court’s examination of these records reveals no indication that counsel billed
for duplicative work. Furthermore, counsel appears to have expended a reasonable amount of
time on each task. A substantial number of the hours for which Plaintiff seeks reimbursement
from Defendant were spent conducting discovery and responding to discovery motions filed by
Defendant. See Mot. for Atty’s’ Fees, Ex. A at 1–2. More specifically, Plaintiff seeks
reimbursement for 35.2 attorney hours and 16.2 staff hours spent conducting written discovery.
Id.; Mot. for Atty’s’ Fees at 12. These hours are reasonable in light of the fact that Defendant
submitted thirty-eight Requests for Production of Documents and twenty-nine Interrogatories.
See Mot. for Atty’s’ Fees, Ex. A; Mot. for Atty’s’ Fees at 12. Furthermore, Plaintiff spent 26.6
attorney hours and 44.6 support staff hours responding to Defendant’s motion for discovery
sanctions and motion to compel discovery. See Mot. for Atty’s’ Fees, Ex. A; Mot. for Atty’s’
Fees at 13.
Defendant’s assertion that these billed hours are not reasonable is unavailing. Generally,
Defendant’s arguments to reduce the hours for which Plaintiff may recover reimbursement are
premised on the idea that Plaintiff intentionally “frame[d] the case for excessive billing.” Def.’s
6
Response to Mot. for Atty’s’ Fees at 5. Defendant contends that Plaintiff’s discovery requests
were deliberately burdensome and prolonged. See Def.’s Response to Mot. for Atty’s’ Fees at 6.
However, Defendant fails to support the accusation that Plaintiff’s counsel “create[d] discovery
disputes to enhance their possible fee award . . . .” Id. In fact, Defendant filed a motion for
discovery sanctions, which was ultimately denied. Minute Entry, October 9, 2018. 2
Defendant also accuses Plaintiff of deliberately filing an inaccurate complaint with an
exaggerated ad damnum clause, pointing to the difference between the amount of damages that
Plaintiff initially claimed in his Complaint ($30,480.00) and the amount of owed wages that he
estimated prior to settlement discussions ($6,535.00). See Def.’s Response to Mot. for Atty’s’
Fees at 3–4. The Court is not persuaded by Defendant’s contention because it fails to provide an
adequate basis for the accusation that Plaintiff intentionally inflated the initial claim. See id. at
3–5. In addition to the conclusory assertion that the deviation in Plaintiff’s estimates illustrates
that he deliberately lied to rack up attorneys’ fees, Defendant alternatively suggests that this
discrepancy was the result of “sloppy lawyering” by Plaintiff’s counsel. See id. at 5. But there
is no indication that Plaintiff’s demands were “unreasonable, frivolous, or otherwise entirely
disconnected from reality,” Radtke, 822 F.3d at 576, in a manner that would warrant a reduction
in hours. Accordingly, the Court is not persuaded by Defendant’s contention that the initial
claim renders Plaintiff’s billed hours excessive.
Similarly, Defendant blames Plaintiff for the parties’ inability to settle. See Def.’s
Response to Mot. for Atty’s’ Fees at 8–9. Defendant argues that it was unable to produce an
Offer of Judgment earlier “given the unnecessary discovery challenges” and Plaintiff’s “refusal
2
Defendant also filed a motion to compel discovery. Mot. to Compel, ECF No. 13.
However, both Defendant’s Motion to Compel and Plaintiff’s Cross Motion for Sanctions were
terminated upon Final Judgment. See Final J., ECF No. 22; see also Mot. for Atty’s’ Fees at 13.
7
to provide its fee agreement and legal bills.” See id. at 9. Defendant implies that Plaintiff
intentionally prolonged litigation to bill more in attorneys’ fees, but provides no foundation for
this accusation. See id. at 8–9. And Defendant offers no explicit argument for why the parties’
failure to settle itself renders Plaintiff’s billed hours unproductive or necessitates a reduction in
the hours for which Plaintiff is fairly compensated. See id. at 7–9; Bebo Foods, Inc., 738 F.
Supp. 2d at 34 (“The key factor to determining whether an attorney’s time was reasonably
expended on a case is productivity.”). Again, Defendant fails to provide any legal authority or
other argumentation in support of its claim that Plaintiff’s billed hours are unreasonable.
Defendant has failed to cite a single case in which claimed fees were reduced under similar
circumstances. The Court thus accepts Plaintiff’s billed hours as reasonable.
3. Lodestar Adjustment
Plaintiff requests $84,893.90 in attorneys’ fees, which is the amount calculated via the
lodestar method previously described. Pl.’s Supp. to Mot. for Award of Atty’s’ Fees, ECF No.
30. As the requesting party, Defendant bears the burden of justifying any reduction from this
lodestar amount. See Copeland, 641 F.2d at 892. In arguing for a deviation from the lodestar,
Defendant “urge[s]” the Court to consider the twelve “Johnson factors” used to adjust the
lodestar in the Fourth Circuit. Def.’s Response to Mot. for Atty’s’ Fees at 9–10. However,
Defendant fails to provide any precedential authority that would support this move. 3 Defendant
3
Defendant may have intended to provide authority, but the Court is unable to discern
which case Defendant is attempting to cite. The page cited at the “Id.” at the end of the first full
paragraph is out of the page range referenced by the previous citation. Def.’s Response to Mot.
for Atty’s’ Fees at 9–10. The previous citation also makes no reference to the Johnson factors.
See Keepseagle, 334 F. Supp. 3d 58. The missing citation further cites Barber v. Kimbrell via
parenthetical. 577 F.2d 216 (4th Cir. 1978). However, this case is neither an FLSA case nor
within the D.C. Circuit. Id. Accordingly, this Court concludes that Defendant failed to provide
authority to sustain its argument that the Court should rely on the Johnson factors.
8
also fails to explain why the Court should choose to adopt these factors. See Def.’s Response to
Mot. for Atty’s’ Fees at 9–10. Although Defendant references the factors generally, it is unclear
how these factors, if adopted, would necessitate a reduction of the fee award in this instant case.
See id. And again, Defendant fails to identify a single case in which a court reduced claimed
fees under similar circumstances based on the Johnson factors. Therefore, the Court rejects
Defendant’s contention that the fee amount produced by the lodestar method should be reduced.
B. Award of Costs
Plaintiff requests that the Court reimburse him for $1,193.92 in costs, including fees for
filing, process server, court reporting, and postage. Mot. for Atty’s’ Fees at 15. These costs are
of the type typically compensable under the FLSA. See Reyes, 270 F. Supp. 3d at 39; Serrano,
209 F. Supp. 3d at 198; Bebo Foods, 738 F. Supp. 2d at 33–34. Defendant has not challenged
any of these costs nor has it provided the Court with any cases or arguments indicating that an
award of these costs is inappropriate. The Court finds that these costs are reasonable and will
reimburse Plaintiff for the full amount of costs requested.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s motion for award of attorneys’ fees and costs is
GRANTED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: July 1, 2019 RUDOLPH CONTRERAS
United States District Judge
9