Munoz v. Telligent Masonry LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SANTIAGO RAMOS MUNOZ,
Plaintiff,
Civil Action No. 21-2789
v.
Judge Beryl A. Howell
TELLIGENT MASONRY LLC, et al.,
Defendants.
MEMORANDUM OPINION
This run-of-the-mill wage dispute between plaintiff Santiago Ramos Munoz and his
former employer, defendants Telligent Masonry LLC and its owner and director, Chris Papas,
has turned into nothing short of a windfall―not for plaintiff, but for plaintiff’s counsel. Plaintiff,
as the wronged employee, is walking away with a settlement of $4,379, while his counsel is
asking for more than 1100% of that amount in fees, namely, $50,893.11. See Pl.’s Second Supp.
Mot. for Attys’ Fees and Costs (“Pl.’s Second Supp.”) at 5, ECF No. 18. While the parties do
not dispute that the plaintiff is entitled to reasonable attorneys’ fees as a prevailing party in this
case, see Defs.’ Response to Pl.’s Mot. for Attys’ Fees and Costs (“Defs.’ Response”) at 1, ECF
No. 11, the fees requested by the plaintiff are patently unreasonable. The Court thus awards
$9,500 to cover plaintiff’s attorneys’ fees and costs, based on the time reasonably and
meaningfully spent to advance the plaintiff’s interests in this case. See Defs.’ Response at 16.
I. BACKGROUND
The factual background and procedural history relevant to the pending motion are
described below.
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A. Factual Background
Defendant Papas is the owner and director of defendant company Telligent Masonry
LLC, and was an employer of plaintiff, who performed masonry work for defendants between
mid-2015 to early-2020. Compl. ¶¶ 1, 3, ECF No. 1. Plaintiff’s work for defendants included
masonry work on “an apartment complex located next to the new D.C. United Stadium, an
apartment complex located near the corners of H and 6th Streets, N.E. Washington, D.C., and a
government building near the old D.C. United Stadium.” Id. at ¶ 8. Plaintiff asserts that he spent
more than 50% of his working time in the District of Columbia. Id. at ¶ 9.
During his employment, plaintiff alleges that defendants did not pay him for every hour
worked, and that defendants failed to pay him an overtime rate for overtime hours. Id. at ¶ 10.
Since plaintiff completed some of this work for defendants in the District of Columbia, his
employment was covered by the District of Columbia Minimum Wage Revision Act
(“DCMWRA”) and the District of Columbia Wage Payment and Collection Act (“DCWPCA”),
in addition to the federal Fair Labor Standards Act (“FLSA”). Id. at ¶ 2.
B. Procedural Background
Plaintiff filed the complaint in this matter in October 2021, asserting claims for unpaid
overtime wages under the DCWPCA, DCMWRA, and FLSA. Id. at ¶ 4. 1 Plaintiff asserted
entitlement to “unpaid overtime wages plus an equivalent amount equal to three times his unpaid
overtime wages as liquidated damages pursuant to D.C. Code §§ 32-1012 (b)(1), along with
attorney’s fees at the Legal Services Index Rate and/or the rates set forth in Salazar ex rel. v.
District of Columbia, 809 F.3d 58 (D.C. Cir. 2015), as required by D.C. Code § 32-1308 (b)(1).”
Compl. ¶ 12. Plaintiff also sought “unpaid overtime wages for the entire period of employment
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This Court has subject matter jurisdiction to resolve plaintiff’s federal claims under 28 U.S.C. § 1331 and
pendant jurisdiction over plaintiff’s District of Columbia claims under 28 U.S.C. § 1367.
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with Defendants, plus an equal amount in liquidated damages, plus attorney’s fees at the Legal
Services Index Rates” for his FLSA claim. Id. at ¶ 13. Plaintiff did not pay his attorneys’ fees as
they accrued, but rather the “case was undertaken on a contingency basis on the assumption that
[plaintiff’s counsel] would petition the Court for its fees and costs at current LSI Laffey Matrix
rates if Plaintiff prevailed.” Pl.’s Mot. Attys’ Fees & Costs (“Pl.’s Mot”), Ex. B, Decl. of Omar
Vincent Melehy (“Omar Melehy Decl.”) ¶ 26, ECF No. 10-3.
In the interests of judicial economy, and to the benefit of all parties involved, defendants
sought to resolve this dispute through settlement as quickly and efficiently as possible. See
Defs.’ Response, Ex. 1, Aff. of Brandon Mourges (“Mourges Aff.”) ¶¶ 5–6, ECF No. 11-2.
Defendants’ counsel first contacted plaintiff’s counsel to explore options to resolve the dispute
on November 5, 2021, approximately two weeks after the complaint was filed. Id. at ¶ 5. Given
this prompt and cooperative response, the parties agreed to extend the defendants’ deadline to
file an answer, to allow time for settlement discussions before that deadline. Id. at ¶ 6.
Defendants provided plaintiff with all requested payroll documents to investigate his
claim. Id. at ¶ 8. Using those payroll documents, defendants determined that while plaintiff
worked approximately 9,500 hours for defendants and was paid more than $200,000, his total
unpaid overtime wages was $1,046.50. Defs.’ Response at 3. Defendants then communicated a
settlement offer to plaintiff on November 11, 2021, offering $2,093.00, equal to his unpaid
wages multiplied by two to include liquidated damages under the FLSA. Mourges Aff. ¶ 10.
Without responding to defendants’ offer, plaintiff requested additional documents to review,
including pay stubs and pay checks, which defendants provided on November 18, 2021. Id. at ¶
11.
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Defendants followed up with plaintiff on December 6, 2021, after initially receiving no
response, and plaintiff rejected defendants’ settlement offer on December 7, 2021, twenty-seven
days after the offer was extended. Id. at ¶¶ 12–13. Plaintiff indicated that his calculation of the
unpaid wages was $1,282.25, rather than $1,046.50, and that the maximum liquidated damages
were $3,096.75, for a total of $4,379.00. Id; Pl.’s Mot., Ex. C., Decl. of Suvita Melehy (“Suvita
Melehy Decl.”) ¶ 8, ECF No. 10-4. Of this $4,379, plaintiff attributed $3,629, or approximately
83%, of the damages sought to work performed in the District of Columbia, and $750 to work
performed in Maryland. Pl.’s Reply Mem. Supp. Attys’ Fees and Costs (“Pl.’s Reply”), Ex. B,
Settlement Demand Letter at 2, ECF No. 13-2.
In addition to the $4,379 in unpaid wages and liquidated damages, plaintiff’s response
demanded $25,000, plus future attorneys’ fees and costs. Settlement Demand Letter at 2; see
also Mourges Aff. ¶ 13. 2 Surprised by the excessive fee request, the next day, defendants
requested a breakdown of hours spent by plaintiff’s counsel on the case. Mourges Aff. ¶ 14.
One week later, plaintiff’s counsel emailed to say that no detailed breakdown of time worked
could be provided, noting that providing the requested hours breakdown “would take
considerable time,” adding to the already hefty attorneys’ fee bill. Id. at ¶ 18. On December 17,
2021, plaintiff provided defendants with a summary of total hours billed, by timekeeper. Id. at
¶ 20. This showed only that Partner Omar Vincent Melehy billed 9.6 hours to the case, Partner
Suvita Melehy billed 7.8 hours to the case, Associate Andrew Balashov billed 7.5 hours to the
case, and paralegals cumulatively billed 25.3 hours to the case. Id. At this point, plaintiff also
indicated that his costs were between $750 to $1,200. Id.2
Plaintiff did not provide defendants with time records of plaintiff’s counsel at the time that he demanded
$25,000 in attorneys’ fees, but defendants note that, based on the time records that were later provided, plaintiff had
only incurred approximately $19,000 in fees at this point. Defs.’ Response at 4.
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Defendants filed their answer on December 17, 2021, before receiving the billing
summary from the plaintiff. See Answer, ECF No. 8; Defs.’ Response, Ex. 2, Aff. of Meighan
G. Burton (“Burton Aff.”) ¶ 3, ECF No. 11-3. On December 28, 2021, without receiving a more
detailed fee statement, defendants offered to settle for the full amount in unpaid wages and
liquidated damages claimed by plaintiff, $4,379, and $9,396 in attorneys’ fees, which defendants
estimated was the amount of reasonable fees incurred at this stage of the litigation. Id. at ¶ 4.
Plaintiff’s counsel quickly rejected the attorney fee amount, although counsel indicated that she
had not yet conferred with plaintiff about the settlement. Id. at ¶ 5.
The parties’ counsel spoke via telephone on December 30, 2021, and defendants’ counsel
again requested information about plaintiff’s counsels time spent on the case, in the hopes of
resolving the attorneys’ fees issue. Id. at ¶ 6. On January 10, 2022, the parties finalized a
settlement agreement as to plaintiff’s claims, after plaintiff’s counsel insisted that defendants’
counsel draft and submit a settlement agreement. Id. at ¶¶ 7–9. The settlement agreement was
executed on January 17, 2022. Pl.’s Reply, Ex. D, Supp. Decl. of Suvita Melehy (“Suvita
Melehy Second Decl.”) ¶ 3, ECF No. 13-4. The parties continued negotiating the fees. Burton
Aff. at ¶ 12. On January 28, 2022, plaintiff’s counsel extended a demand for $29,500 in
attorneys’ fees and costs, and finally provided a breakdown of the fees billed. Id. at ¶¶ 12–13.
The parties were still unable to agree, however, on a reasonable fee amount. Id. at ¶ 13.
Plaintiff filed a motion for attorneys’ fees on February 7, 2022, seeking $31,554.40 in
attorneys’ fees and $635.44 in costs. Pl.’s Mot. at 1. Plaintiff also requested that the Court
award “any additional attorneys’ fees and costs incurred by Plaintiff in connection with
preparing the reply memorandum.” Id. Defendants opposed, arguing that plaintiff’s request was
unreasonable, “particularly in this case, where the Defendants sought to avoid the unnecessary
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accumulation of exorbitant attorneys’ fees by seeking a quick and quite favorable resolution for
Plaintiff, but was delayed at every turn by Plaintiff’s counsel.” Defs.’ Response at 1.
Defendants requested that the fee award be reduced to $9,000 in fees and $500 in costs. Id. at
16. In reply, plaintiff increased the fee request to $37,935 in fees and $667.85 in costs to account
for the fees associated with preparing his reply. Pl.’s Reply at 2; see also Pl.’s First Supp. Mot.
Atty’s Fees and Costs (“Pl.’s First Supp.”), Ex. B, Supp. Decl. of Omar Vincent Melehy (“Omar
Melehy Second Decl.”) ¶ 1, ECF No. 14-2.
With the parties’ consent, this case was then referred to mediation to resolve the only
remaining dispute in this case concerning a reasonable fee reward. See Order Setting Mediation
and Establishing Mediation Procedures, ECF No. 16. In November 2022, the parties submitted a
joint status report indicating that their attempts at mediation were unsuccessful. Joint Status
Report (November 2, 2022), ECF No. 17. After a final supplement from the plaintiff and
response from the defendants, the plaintiff’s fee request now stands at $50,133.50 in attorneys’
fees and $759.61 in costs. Pl.’s Second Supp. at 5; see also Pl.’s Second Supp., Ex. C, Supp.
Decl. of Omar Vincent Melehey (“Omar Melehy Third Decl.”) ¶ 1, ECF No. 18-3.
II. LEGAL STANDARD
The FLSA provides that if a plaintiff prevails in an action to enforce his or her rights
under the statute, the Court should “allow a reasonable attorney’s fee to be paid by the defendant,
and costs of the action.” 29 U.S.C. § 216(b). The DCMWRA and DCWPCA also provide for an
award of fees to a successful plaintiff. See D.C. Code §§ 32–1012(c), 32–1308(b)(1).
Attorneys’ fees are not limited to time spent in, and preparing for, adversarial proceedings alone.
“Rather, an attorney can recover for work when there is ‘a clear showing that the time was
expended in pursuit of a successful resolution of the case in which fees are being claimed.’”
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Baylor v. Mitchell Rubenstein & Assocs., P.C., 735 F. App’x 733, 736 (D.C. Cir. 2018) (per
curiam) (quoting Nat’l Ass’n of Concerned Veterans v. Sec’y of Def. (“Concerned Veterans”),
675 F.2d 1319, 1335 (D.C. Cir. 1982) (per curiam)).
In applying a statutory fee-shifting provision allowing recovery of reasonable attorneys’
fees, the “guiding light” is “the lodestar method[, which] produces an award that roughly
approximates the fee that the prevailing attorney would have received if he or she had been
representing a paying client who was billed by the hour in a comparable case.” Perdue v. Kenny
A. ex rel. Winn, 559 U.S. 542, 550–51 (2010) (emphasis in original). This estimation is carried
out in three steps, where the Court will “(1) determine the number of hours reasonably expended
in litigation; (2) set the reasonable hourly rate; and (3) use multipliers as warranted.” Salazar ex
rel. Salazar v. District of Columbia, 809 F.3d 58, 61 (D.C. Cir. 2015) (citing Eley v. District of
Columbia, 793 F.3d 97, 100 (D.C. Cir. 2015)) (internal quotation marks omitted).
The determination of the reasonable hourly rate will involve consideration of “(1) ‘the
attorneys’ billing practices,’ (2) ‘the attorneys’ skills, experience, and reputation’ and (3) ‘the
prevailing market rates in the relevant community.’” Id. at 62 (quoting Covington v. District of
Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995)). The rates for claims under the DCMWRA and
DCWPCL are also codified by statute and must be based on “the matrix approved in Salazar v.
District of Columbia, 123 F. Supp. 2d 8 (D.D.C. 2000).” D.C. Code § 32-1308(b)(1).
Initially, the “fee applicant bears the burden of establishing entitlement to an award,
documenting the appropriate hours, and justifying the reasonableness of the rates.” Eley, 793
F.3d at 100 (quoting Covington, 57 F.3d at 1107). Fee requests should be supported by
documentation updated contemporaneously as the attorneys conduct their work. Heller v.
District of Columbia, 832 F. Supp. 2d 32, 50 (D.D.C. 2011) (quoting Concerned Veterans, 675
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F.2d at 1327 (“Attorneys who anticipate making a fee application must maintain
contemporaneous, complete and standardized time records which accurately reflect the work
done by each attorney.”). Once an applicant meets this burden, a presumption applies that the
product of the number of hours billed and the hourly rates, is “the reasonable fee.” Covington,
57 F.3d at 1109 (quoting Blum v. Stenson, 465 U.S. 886, 897 (1984)). At that point, the burden
shifts to the opposing party to “provide specific contrary evidence tending to show that a lower
rate would be appropriate,” id. at 1110 (quoting Concerned Veterans, 675 F.2d at 1326), or that a
multiplier should be applied.
Hours billed may be reduced accordingly if a plaintiff prevails on only one of a number
of claims. Mitchell Rubenstein Assocs., 735 F. App’x at 736 (citing Williams v. First Gov’t
Mortg. & Inv’rs Corp., 225 F.3d 738, 746 (D.C. Cir. 2000) (“Under settled law, [a litigant] may
recover fees only for work related to the claim on which he prevailed, and the fees awarded on
that claim must be reasonable in relation to the success achieved.”)). Additionally, “a court may
punish an intolerably excessive fee request by denying any award at all,” Baylor v. Mitchell
Rubenstein & Assocs., P.C. (“Baylor I”), 857 F.3d 939, 957 (D.C. Cir. 2017) (Henderson, J.,
concurring), and may “impose a lesser sanction, such as awarding a fee below what a
‘reasonable’ fee would have been in order to discourage fee petitioners from submitting an
excessive request,” Environmental Defense Fund, Inc. v Reilly, 1 F.3d 1254, 1258 (D.C. Cir.
1993). This is the case even when a statute provides for mandatory fee shifting. Baylor I, 857
F.3d at 958 (Henderson, J., concurring) (explaining that the “statutory text [of a mandatory fee-
shifting statute] does not preclude a court from deciding—consistent with its inherent authority
to protect the integrity of its proceedings—that a ‘reasonable’ fee in response to an exorbitant
request is a nominal amount approaching zero.” (internal citation omitted)). The determination
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of what constitutes a reasonable fee award is within the “broad discretion” of the district court,
and appellate courts “are ill-positioned to second guess the [district] court’s [fee] determination.”
Id. (quoting Morgan v. District of Columbia, 824 F.2d 1049, 1066 (D.C. Cir. 1987)).
III. DISCUSSION
The parties do not dispute that plaintiff is a prevailing party entitled to attorneys’ fees.
See Defs.’ Response at 1. The parties’ settlement agreement states that “[p]laintiff is a prevailing
party and entitled to attorneys’ fees pursuant to the FLSA, DCWPCL and the DCMWRA.”
Suvita Melehy Decl. ¶ 8. Defendants dispute plaintiff’s assertion that his requested fee is
“reasonable,” however, arguing that the fee is excessive in this case where defendants tried to
settle the case as expeditiously as possible and plaintiff’s recovery is less than one tenth of the
requested fees. See Defs.’ Response at 15–16. Defendants here are correct that the fee amount
requested by plaintiff is extraordinary, if not outrageous, in the context of this case. The
following discussion sets out the arguments from both parties as to the hours billed and
applicable rates, and then explains why a significant downward adjustment is necessary to set the
appropriate fee award in this case.
A. Billing Rate
The parties agree that the DCMWRA and DCWPCL mandate that the LSI Laffey v.
Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), rates apply to plaintiff’s claims to the
extent they were brought under those statutes. Defs.’ Response at 11; see also Jackson v.
Contemporary Family Servs., No. 18-cv-2349, 2019 U.S. Dist. LEXIS 188931, at *6 (D.D.C.
2019) (“With respect to the hourly rate, the DCWPCL mandates that the Court apply the Legal
Services Index Matrix.”); Stephens v. Farmers Restaurant Group, No. 17-cv-1087, 2019 WL
2550674, at *9 (D.D.C. June 20, 2019) (“Indeed, the DCMWA specifically mandates that an
award of attorney’s fees under that statute be based on the lodestar matrix for attorney fee rates
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approved in Salazar v. District of Columbia, 123 F. Supp. 2d 8 (D.D.C. 2000).”); Herrera v.
Mitch O’Hara LLC, 257 F. Supp. 3d 37, 46 (D.D.C. 2017) (“Because the Salazar court utilized
the attorneys’ fee matrix that has been updated to account for inflation using the Legal Services
Index of the Bureau of Labor Statistics (the ‘LSI Laffey matrix’), the statute’s plain language
requires use of the LSI Laffey matrix to determine the applicable rate.”); Serrano v. Chicken-
Out, Inc., 209 F. Supp. 3d 179, 197 (D.D.C. 2016) (“Yet here the undersigned need not face the
difficult question of the quantum and quality of evidence needed to justify LSI Laffey rates post-
Salazar . . . because D.C. law itself mandates the Court use LSI Laffey rates.”). Plaintiff presents
several reasons why the LSI Laffey rates should also apply to plaintiff’s claims under the FLSA.
Defendants, by contrast, argue that because some of plaintiff’s work was conducted in
Maryland, and therefore part of his claim is operable only under the FLSA and Maryland state
law, the LSI Laffey rates should not be applied to the entirety of the work performed. Defs.’
Response at 11. They urge that a lower rate should be adopted in line with the market rates in
Maryland, where plaintiff’s counsel’s practice is located, as opposed to the rates in D.C., where
this claim was brought. Id. at 11–13.
Defendants’ argument that the statutory mandate in the DCMWRA and DCWPCL should
not apply is without merit. As both parties have recognized throughout this litigation, the
majority of plaintiff’s uncompensated work was performed in the District of Columbia, with
83% of the damages in the settlement attributed to claims brought under D.C. statutes that
mandate application of the LSI Laffey rates. See Settlement Demand Letter at 2. As plaintiff
points out, segregating counsel’s time between that spent pursuing claims based on D.C. law and
that spent on claims under the FLSA and Maryland law would be a time-consuming but fruitless
effort. This is especially true in this case, where the only work plaintiff’s counsel conducted in
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pursuit of plaintiff’s claim was writing and filing a complaint, in D.C., calculating unpaid wages,
and communicating with defendants’ counsel about settlement. This work was all conducted in
joint pursuit of both the D.C. and Maryland unpaid wages.
Plaintiff analogizes his circumstances to those in Serrano v. Chicken-Out Inc., where
then-Judge Ketanji Brown Jackson did not segregate the total hours spent on the case into time
spent on D.C. and Maryland claims, but instead adopted the LSI Laffey rates for all of counsel’s
time spent jointly pursuing claims under the FLSA and D.C. and Maryland law. 209 F. Supp. 3d
at 197–98. Application of the LSI Laffey rates is also appropriate here. Due to the nature of the
settlement, the full amount of time spent by plaintiff’s counsel on this case may be reasonably
attributed to the claims under D.C. law, which require the use of the LSI Laffey rates.
B. Hours Billed
Defendants argue that the hours billed by plaintiff are unreasonable and not a fair
representation of the time spent by plaintiff’s counsel on this case. Defs.’ Response at 7–10.
Plaintiff counters by pointing to the fee statement attached to his motion for attorneys’ fees and
arguing that defendants have not met their burden to overcome the presumption that the hours
reported by plaintiff are reasonable. Pl.’s Reply at 8–12.
“Attorneys who anticipate making a fee application must maintain contemporaneous,
complete and standardized time records which accurately reflect the work done by each
attorney.” Concerned Veterans, 675 F.2d at 1327. Plaintiff’s counsel here claims that all
timekeepers kept contemporaneous records of their work on this case. Suvita Melehy Decl. ¶ 11.
They also claim that they “no-charged” $4,577.40 worth of time spent on this case. Id.
In formulating a fee request under a fee shifting statute, attorneys are also obligated to
reduce fees for work that is duplicative or unproductive. “In the private sector, ‘billing
judgment’ is an important component in fee setting. It is no less important here. Hours that are
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not properly billed to one’s client also are not properly billed to one’s adversary pursuant to
statutory authority.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (quoting Copeland v.
Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (emphasis in original)). Defendants
identify several entries that they claim are duplicative, where multiple timekeepers charged for
discussing the same work. Defs.’ Response at 9. Defendants also argue that it was improper for
plaintiff’s counsel to have partners bill time for work that paralegals could have done, and to bill
for “clerical” tasks. Id. at 9–10. As noted by the defendants, plaintiff’s counsel was previously
admonished for billing for such tasks. See Molina v. KP Stoneymill Inc., No. GLS-19-3123,
2021 WL 2805838 (D. Md. July 6, 2021). Defendants insist that plaintiff’s fees should be
decreased for each of these reasons.
Plaintiff concedes that some time entries initially included in his request are indeed not
compensable, but otherwise insists that this Court owes deference to plaintiff’s counsel on the
subjective determination that each of the hours billed was necessary to conduct the work on
behalf of plaintiff. See Pl.’s Reply at 8–12; Pl.’s Mot. at 11–12 (citing Concerned Veterans, 675
F.2d at 1338 (Tamm, J., concurring)). Plaintiff also interprets the DCMWRA to prohibit a court
from reducing the hours compensated in a fee award to less than the hours actually expended,
“except upon clear and convincing evidence that the reduction will serve the remedial purposes
of this law.” Pl.’s Mot. at 12 (citing D.C. Code § 32-1308(b)(2)).
If a plaintiff requesting attorneys’ fees makes a reasonable showing of the hours
expended in litigation, it is defendants’ obligation to identify specific time entries that should not
be compensated. Concerned Veterans, 675 F.2d at 1337–38 (Tamm, J., concurring); Bode &
Grenier, L.L.P. v. Knight, 31 F. Supp. 3d 111, 122 (D.D.C. 2014); Citizens for Responsibility &
Ethics in Wash. v. FEC, No. 11-cv-95, 2014 U.S. Dist. LEXIS 124091, at *42–43 (D.D.C. 2014).
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Here, defendants have described in detail why the overall request for attorneys’ fees is excessive,
but have not challenged each individual entry to prove precisely which hours should and should
not be compensated. Defendants point to some entries as duplicative as non-compensable
“clerical” work, but seem to use each of these entries illustratively, stating that the improper
entries “include, but may not be limited to” those identified and that the entries identified reflect
only “several instances” of error. Defs.’ Response at 9.
A determination that an individual time entry is “not reasonably necessary” to the
litigation “turns on so many subjective factors that it seldom should be the basis for reduction of
an attorney fee.” Jacquette v. Black Hawk Cnty., 710 F.2d 455, 460 (8th Cir. 1983). Courts
should not endeavor to nit-pick times entries of a party petitioning for fees. Concerned Veterans,
675 F.2d at 1338 (Tamm, J., concurring). Rather than evaluating each time entry in plaintiff’s
fee statement at this stage for whether it should be compensated, defendants’ objections to the
time spent by plaintiff’s counsel on this case will instead be taken into account in the
determination of whether an adjustment should be applied to the fees as calculated.
C. Application of Multipliers or Adjustments
In the third step of determining reasonable fees under a fee-shifting statute, the court
must “use multipliers as ‘warranted.’” Salazar, 809 F.3d at 61 (D.C. Cir. 2015). These
multipliers are used to ensure the reasonableness of a fee award, after the lodestar approach has
been applied. Martini v. Fed. Nat’l Mortgage Assoc., 977 F. Supp. 482, 484–85 (D.D.C. 1997).
The parties hotly contest whether adjustments are warranted here, but the defendants are correct
that a significant adjustment is necessary to reach a reasonable fee award in this case.
Plaintiff’s request for attorneys’ fees includes $23,781.20 claimed solely for the
preparation of the fee petition and fees accrued in litigating the fee award. See Pl.’s Second
Supp. at 5; Pl.’s Mot., Ex. A, Summary of Attorneys’ Fees at 1, ECF No. 10-2. “‘[F]ees on fees
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must be reasonable,” and courts “have an ‘obligation to scrutinize the hours spent preparing the
fee petitions to insure [sic] that the total is reasonable and that it does not represent a windfall for
the attorneys.’” Boehner v. McDermott, 541 F. Supp. 2d 310, 325 (D.D.C. 2008) (quoting Noxell
Corp. v. Firehouse No. 1 Bar-B-Que Rest., 771 F.2d 521, 528 (D.C. Cir. 1985)).
Here, plaintiff’s counsel has turned a simple, straightforward unpaid wages claim that
was resolved in weeks into a major fee generator, with the amount requested just for fees-on-fees
equal to almost twenty times that of the wages initially in dispute. Indeed, absent plaintiff’s
counsel’s excessive requests for attorneys’ fees in this otherwise simple case, with a completely
uncontested underlying claim, this suit would have been settled in December 2021, nearly two
years ago. Plaintiff’s counsel insists that defendants are to blame for this delay, due to their
purported unwillingness to negotiate fees, but this placement of blame is wholly unwarranted
when plaintiff’s counsel’s own unreasonable opening demand for attorneys’ fees is the obstacle
that necessitated litigation of this issue. Plaintiff’s counsel first demanded $25,000 in fees, at a
point when the only meaningful work they had completed to advance their client’s interests was
filing the complaint, calculating plaintiff’s unpaid wages, and communicating the settlement
demand with defense counsel, who had already made clear that defendants planned to settle
plaintiff’s claim as quickly as possible by paying the full amount to which plaintiff claimed
entitlement. Defs.’ Response at 4–5.
Awarding fees to plaintiff’s counsel anywhere close to their demand would put this Court
in the position of approving their conduct in drawing this litigation out more than an additional
year in pursuit of only their own pecuniary gain. Indeed, Judge Henderson on the D.C. Circuit
has noted that she would impose sanctions on counsel who request excessive fees, particularly
when counsel “spent more time working on fee matters than on tasks essential to [the client’s]
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claim.” Baylor I, 857 F.3d at 959 (Henderson, J., concurring). In that case, the “district court
said of the fee request that ‘the tail [is] wagging the dog,” and counsel had “lost sight of the real
party in interest.” Id. at 959–60 (alteration in original). Plaintiff’s counsel in this case has
certainly lost sight of the real party in interest, namely, plaintiff. The parties agreed in December
2021 that defendants would pay plaintiff $4,379, and yet he has waited two years since then for
resolution of this case, due in large part to the demands of his own counsel. Indeed, plaintiff’s
counsel rejected defendants’ second settlement offer—offering plaintiff the full amount of
overtime wages and liquidated damages he claimed—before even communicating that offer to
their client, solely because they were dissatisfied with defendants’ offer on fees. See Burton Aff.
¶¶ 4–5. The $23,781.20 in fees and $124.17 in costs accumulated solely in the pursuit of
advancing what was already an unreasonable request for attorneys’ fees will thus not be included
in the fee award, under this Court’s broad discretion.
Once the attorneys’ fees claimed for work on the instant fee motion are subtracted from
plaintiff’s fee request, $26,352.30 in requested fees remain. This amount is also unreasonable to
award for several reasons, described below, so a multiplier should apply. For the following
reasons, plaintiff will be awarded $9,000 in attorneys’ fees, corresponding to approximately one
third of the fees requested in this case, and $500 in costs.
First, as described in the declarations submitted with defendants’ Response in Opposition
to plaintiff’s motion and confirmed by plaintiff’s own summary of attorneys’ fees, this case was
essentially over as soon as it started, at least as to the underlying claim. Defendants’ counsel
reached out to plaintiff’s counsel only sixteen days after the complaint was filed, “to indicate a
willingness to resolve the matter[,] . . . waive service of process and further indicate[] that
Telligent was willing to provide whatever informal discovery was necessary in order to reach
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resolution and limit any applicable attorneys’ fees.” Mourges Aff. ¶ 5. Six days later, on
November 11, 2021, defense counsel tendered 53 pages of payroll records requested by plaintiff,
along with a settlement offer based on Telligent’s calculation of plaintiff’s unpaid overtime
wages. Id. at ¶ 8.
Defense counsel took mere days to calculate the unpaid wages owed to plaintiff and
formulate a settlement offer. Yet, once armed with the same payroll data, provided by
defendants through informal discovery, plaintiff’s counsel took weeks to continue investigating
plaintiff’s claim—in addition to whatever investigation they purportedly conducted before the
filing of the complaint, for which they are claiming $5,668.30 in fees—and recalculate the
unpaid wages on their own. See id. at ¶ 13. Defendants also argue that plaintiff’s counsel did
not quickly communicate the settlement offer “to Mr. Munoz as all attorneys are ethically
obligated to do.” Defs’ Response at 3; see also id. at 14 (“noticeably absent from [counsel’s]
time entries is any communication whatsoever between Mr. Munoz and Ms. Aguilar conveying
that offer”). Plaintiff’s counsel vehemently denies this allegation, stating that it is “patently false
with a capital ‘P’,” but plaintiff’s counsel’s own timesheet records indicate that they did not
communicate the offer to plaintiff for at least seven days after it was made (because plaintiff’s
counsel did not communicate with plaintiff at all for seven days after the settlement offer was
received). See Pl.’s Reply at 6. This series of events supports defendants’ claim that they
“sought to avoid the unnecessary accumulation of exorbitant attorneys’ fees by seeking a quick
and quite favorable resolution for Plaintiff, but [were] delayed at every turn by [p]laintiff’s
counsel.” Defs.’ Response at 1. These apparent delay tactics from plaintiff’s counsel are one
reason why a downward adjustment would be appropriate in fashioning plaintiff’s fee award.
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Plaintiff’s counsel delay and lack of transparency in providing detail about their time
entries also contribute to the need for a downward adjustment here. When plaintiff’s counsel
first requested $25,000, plus future attorneys’ fees, along with their original settlement demand,
they provided no records supporting that figure to explain how such a significant amount of fees
could have accrued in only the first few weeks of the case. See Settlement Demand Letter at 2.
The next day, defendants’ counsel reasonably requested a breakdown of the hours spent.
Mourges Aff. ¶ 14. Six days later, plaintiff’s counsel responded to say that they could not
provide a breakdown of the time worked and that “this would take considerable time.” Mourges
Aff. ¶ 18. After another round of settlement offers, plaintiff’s counsel again indicated “that it
would be difficult to provide a more detailed breakdown of time billed, and that if required to
provide those documents, it would increase the settlement demand.” Defs.’ Response at 6.
These statement to defendants during settlement negotiations conflict with plaintiff’s counsel’s
assurance to this Court that “[a]ll timekeepers keep track of time with time and billing software
. . . contemporaneously with the expenditure of time in accordance with the Firm’s policies.”
Suvita Melehy Decl. ¶ 11. Plaintiff’s counsel’s inability to produce timekeeping records
efficiently casts doubt on whether contemporaneous time records were actually kept in this case.
A fee statement was not provided to defendants until January 28, 2022, almost two
months after this statement was first requested, Burton Aff. ¶¶ 12–13, although plaintiff’s
counsel’s time entries indicate that this information was first downloaded much earlier, on
December 17, 2021, Summary of Attorneys’ Fees at 5 (showing a time entry dated December 17,
2021, when Suvita Melehy “Download[ed] information regarding time entries made by time
keeper as requested by Defendants for their consideration in effort to settle the case.”). Whether
the delay in providing information on counsel’s time entries was due to the lack of available data
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from contemporaneous entries or from purposeful delay to increase the fee demand, it again
contributes to the need for a downward adjustment to arrive at a reasonable fee award here.
As defendants point out, plaintiff’s fee request claims compensation for time spent on
non-compensable “clerical” tasks, such as adding deadlines to their calendar and backing up their
client’s phone data for potential discovery purposes. Defs.’ Response at 9–10; see also Two Men
& A Truck/Int’l, Inc. v. A. Mover, Inc., 128 F. Supp. 3d 919, 929–30 (E.D. Va. 2015) (finding
that clerical tasks include “collating and filing documents with the court, issuing summonses,
scanning and mailing documents, reviewing files for information, printing pleadings and
preparing sets of orders, document organization, creating notebooks or files and updating
attorneys’ calendars, assembling binders, emailing documents or logistical telephone calls with
the clerk’s office”) (citations omitted). This behavior is especially probative of the need for a
downward adjustment in this case because counsel is a “repeat offender.” Baylor I, 857 F.3d at
955 (Henderson, J., concurring). Plaintiff’s counsel has been personally admonished for
claiming time for such work in prior cases. Molina v. KO Stoneymill, Inc., No. GLS-19-3123,
2021 WL 2805838, at *6 (D. Md. July 6, 2021) (holding that plaintiff’s counsel’s time entries
“‘preparing the complaint package,’ and ‘calendaring deadlines,’ and ‘preparing documents for
mediation’ . . . are non-compensable forms of clerical work that have been stricken.”). Plaintiff’s
counsel’s inclusion of non-compensable clerical time entries in their fee request further confirms
a need for a downward adjustment of the fee award in this case, especially because plaintiff’s
counsel has been notified of the improper nature of these requests in previous cases.
Lastly, a comparison between the damages awarded to the plaintiff in the settlement
agreement and the attorneys’ fees requested by counsel supports the application of a modifier or
adjustment here. While a fee award should not be reduced solely because the fee total exceeds
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the amount of damages awarded, courts often consider the magnitude of a fee award in
comparison to the damages won in an underlying claim. See Williams, 225 F.3d at 746 (“Under
settled law, [a litigant] may recover fees only for work related to the claim on which he
prevailed, and the fees awarded on that claim must be reasonable in relation to the success
achieved.”); Eley v. Stadium Group, LLC, 236 F. Supp. 3d 59, 65 (D.D.C. 2017) (noting that “the
proposed fee award represents approximately 37% of the total recovery” and finding the
proposed fees reasonable); Sarceno v. Choi, 78 F. Supp. 3d 446, 449–52 (D.D.C. 2015)
(approving a settlement where the agree upon attorneys’ fee award was less than fifty percent of
the total settlement amount, but only thirty-six percent of the attorneys’ fees actually incurred by
the plaintiffs). Here, if plaintiff’s counsel were to be awarded the full amount of attorneys’ fees
requested, the fee award itself would comprise of more than 92% of the total recovery. As the
defendants have argued, the “overall facts and circumstances simply do not support a fee award
of that magnitude in this case.” Defs.’ Response at 15. Awarding 92% of the total recovery in
this case to plaintiff’s counsel would be patently unreasonable, when the same counsel has drawn
out this litigation for almost two additional years, to the potential detriment of their own client.
In Environmental Defense Fund, Inc. v. Reilly, the D.C. Circuit awarded plaintiff’s
attorneys approximately one third of the fees petitioned for, after denying all fees for “intolerably
excessive time entries” and making further downward adjustments. 1 F.3d at 1255. An award
here of $9,000 in attorneys’ fees—constituting approximately one third of the fees requested for
time spent litigating the underlying claim—would be similarly reasonable in this case.
There is also doubt as to whether each of plaintiff’s claimed costs was submitted in good
faith and should be compensated. For example, plaintiff’s counsel requests $10 in payment for
“face masks for in office meetings.” Pl.’s Mot., Ex. G, Record of Expenses at 1, ECF No. 10-8.
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Seeking reimbursement from defendants for an item that is part of plaintiff’s counsel’s personal
attire and office safety protocol is simply unacceptable. To ensure a reasonable award as to the
costs in this case and “discourage [plaintiff’s counsel] from submitting an excessive request,”
Reilly, 1 F.3d at 1258, again in the future, the costs requested will be adjusted downwards to
$500, from the amount of $635.44 requested in the plaintiff’s initial fee petition in this case.
Record of Expenses at 1.
IV. CONCLUSION
For the above reasons, plaintiff’s motion for attorneys’ fees is granted in part, and
defendants must remit to plaintiff $9,500 to cover his attorneys’ fees and costs. This sum
constitutes the reasonable fee accrued in pursuit of plaintiff’s claims under the DCWPCA,
DCMWRA, and FLSA, after consideration of the exhibits and declarations submitted by both
parties, the damages agreed upon as to the underlying claims, the procedural history of this
dispute, and the conduct of both plaintiff’s and defendants’ counsel in negotiating this fee award.
An order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: October 2, 2023
__________________________
BERYL A. HOWELL
United States District Judge
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