Lima Lucero v. Parkinson Construction Company, Inc.

• Court: District Court, District of Columbia
• Decided: July 1, 2019
• Docket: Civil Action No. 2018-0515
• Status: Published

Opinion

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

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.

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.

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.

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