Shin v. Party Well Rest & Oriental Bakery Inc.

MEMORANDUM AND ORDER

TARYN A. MERKL, UNITED STATES MAGISTRATE JUDGE:

Plaintiff Woun Jae Shin initiated this action against Defendants Party Well Rest & Oriental Bakery Inc., doing business as Mail Garden Restaurant; Daniel Ahn; and Young Joon Ahn on March 11, 2020. (Compl., ECF No. 1.) Plaintiff alleged various claims, including violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and New York Labor Law (“NYLL”), Art. 6 § 190 et seq. and Art. 19 § 650 et seq. (Id. at ¶ 1.) Following two rounds of mediation, the denial of Plaintiff's motion for summary judgment, and two settlement conferences before the Honorable Carol Bagley Amon and the Honorable Cheryl L. Pollak, the case proceeded to trial in April 2023. Prior to trial, Plaintiff voluntarily dismissed his FLSA claim so as to streamline the trial. (See Stip. of Dismissal, ECF No. 78; Pl.'s Ltr., ECF No. 76; Apr. 6, 2023 ECF Order.) The jury returned a verdict in Plaintiff's favor, finding Defendants liable on all of Plaintiff's claims under the NYLL, including unpaid overtime, unpaid spread-of-hours, and failure to provide a time-of-hire notice. (See Verdict Sheet, ECF No. 91, at ECF pp. 2025.) The jury also found that Defendants had not acted in good faith, as defined by the

court's instructions, which was relevant to the applicability of liquidated damages. (See id. at ECF p. 25.) Based on the jury's findings, Judge Amon issued a judgment in favor of Plaintiff in the amount of $618,788.76, plus interest. (Judgment, ECF No. 98.) Plaintiff's counsel now seeks fees and costs. (Decl. of Ryan Kim in Supp. of Pl.'s Mot. for Att'y's Fees & Costs, ECF No. 95 (hereinafter “Kim Decl.”).) Defendants object on substantive and procedural grounds. (Defs.' Mem. of Law in Opp'n to Award Att'y's Fees & Costs, ECF No. 96 (hereinafter “Defs.' Mem.”).) For the reasons set forth herein, the Court grants Plaintiff's motion for fees and costs in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

As set forth in the complaint, Plaintiff alleged that Defendants hired him to work as a manual laborer at their restaurant from 2004 to 2017. (Compl., ECF No. 1, ¶ 7.) In the complaint, Plaintiff claimed that he regularly worked six days per week, 12 to 13 hours per day, and was paid a flat rate of $600 or $700. (id. ¶¶ 8, 9.) On April 12, 2023, the last day of trial, the jury returned a verdict for Plaintiff on all claims under the NYLL, finding that Defendants owed Plaintiff back wages from 2011 to 2017.^[1] (Verdict Form, ECF No. 91, at ECF pp. 21-22.) Based on the jury's findings, Judge Amon issued a judgment awarding Plaintiff $618,788.76, including $296,093.63 in unpaid overtime,

$12,050.75 in unpaid spread-of-hours pay, liquidated damages of $308,144.38, and a statutory penalty of $2,500, as well as pre- and post-judgment interest, and additional interest in the event the judgment is not paid, pursuant to the NYLL. (App. to Judgment, ECF No. 98, at ECF pp. 2-3.) The statutory penalty was based on the jury's determination that Defendants failed to provide Plaintiff with a proper wage notice at the time of hire. (Verdict Form, ECF No. 91, at ECF p. 24.) The judgment also detailed each Defendant's liability for the total award, and the basis for the interest calculations. (Judgment, ECF No. 98.)

On April 21, 2023, shortly after trial, Plaintiff's counsel filed a letter setting forth Plaintiff's arguments in support of his entitlement to pre- and post-judgment interest, and requesting leave to file a motion for attorney's fees and costs. (Pl.'s Ltr., ECF No. 92.) On May 8, 2023, Judge Amon set a briefing schedule for the attorney's fee application, directing Plaintiff's counsel to move for attorney's fees by May 12, 2023, with Defendants to file a response by May 26, 2023. (May 8, 2023 ECF Scheduling Order.) On May 12, Plaintiff's counsel filed a letter motion seeking an extension of time to May 19, 2023, to file the attorney's fee application. (Pl.'s Ltr., ECF No. 94.) Judge Amon granted the motion on May 15, 2023, directing Plaintiff's counsel to file the application by May 19, 2023, and setting June 2, 2023, as Defendants' deadline for a response. (May 15, 2023 ECF Order.)

On May 20, 2023, Plaintiff's counsel filed the application for fees, styled as a declaration in support of the fee petition, which was filed with an accompanying memorandum of law and exhibit. (See Kim Decl., ECF No. 95; Pl.'s Mem. of Law in Supp. of Appl. for Att'ys' Fees & Costs, ECF No. 95-1 (hereinafter “Pl.'s Mem.”); Pl.'s Ex., ECF No. 95-2 (hereinafter “Billing Records”).) On June 2, 2023, defense counsel filed Defendants' opposition to the attorney's fee application, arguing that it is procedurally

deficient because it was filed late and not styled as a motion, and is substantively deficient, as discussed more fully below. (Defs.' Mem., ECF No. 96.)

In the declaration submitted in support of the application for fees and costs, Plaintiff's counsel Ryan Kim seeks $276,407 in fees, including $262,295 in fees for his work, based on 476.9 hours billed at an hourly rate of $550, and $14,112 in fees for the work of paralegal Jia Choi, based on 117.6 hours billed at an hourly rate of $120. (Kim Decl., ECF No. 95, ¶ 41.) Counsel also seeks reimbursement for costs in the amount of $7,295.71.^[2] (id. at 10.) Accordingly, counsel seeks a grand total of $283,702.71 in attorney's fees and costs. (id. at ¶ 51.)

In response, Defendants contend that the court “should refuse to award Plaintiff any attorney's fees or costs on both procedural and substantive grounds.” (Defs.' Mem., ECF No. 96, at 2.) Specifically, Defendants argue that Plaintiff's application is procedurally deficient because it was filed one day late, and counsel failed to seek an enlargement of time to file. (id. at 3.) Defendants further argue that the application should be denied because it was not filed “by motion in accordance with Rule 54” of the Federal Rules and contending that the docket is “devoid” of materials required by Fed.R.Civ.P. 54, and Local Rules 6.1, 7.1, and 54.1(c)(7). (id. (emphasis in original).) Due to Plaintiff's counsel's purported failure to file the application as a motion, Defendants posit that “[i]t is axiomatic that the Court cannot grant a motion that has not been made.” (id.)

Defendants also argue that Plaintiff's motion has substantive deficiencies. First, Defendants argue that “Plaintiff has failed to produce for review his engagement letter with his counsel,” and question whether Plaintiff's counsel has complied with the professional rules with regard to contingency fees. (id. at 4.) Defendants also contend that Plaintiff's counsel's billing records are an insufficient basis for a fee award, arguing that they do not “appear” to be contemporaneous and because Plaintiff's counsel “admits that he has altered the information reflected in the Billing Statement from its original condition.”^[3] (id. at 5 (emphasis in original).) Relatedly, Defendants argue that no additional information has been provided to “confirm” that the Billing Records were contemporaneously generated, and that Plaintiff's counsel has not provided metadata for counsel's billing software. (id. at 5-6)

As to costs, Defendants argue that they should not be awarded because the NYLL does not expressly provide for an award of costs, that Plaintiff has not submitted receipts for costs, and that Plaintiff failed to file an appropriate motion under Federal Rule of Civil Procedure 54. (id. at 6.) After Plaintiff's original application was filed, the Court issued an order noting that counsel had not provided “receipts, invoices, or similar documentation regarding costs,” and directed Plaintiff to submit any such documentation or authority. (Nov. 1, 2023 ECF Order.) On November 15, 2023, Plaintiff's counsel filed a supplemental letter, attaching various receipts in support of the request for costs. (See Receipts, ECF No. 108-1.) On November 22, 2023, Defendants

filed a letter supplementing their memorandum in opposition to Plaintiff's application for attorneys' fees and costs. (Defs.' Ltr., ECF No. 109.)

As a threshold matter, the Court rejects Defendants' procedural arguments urging that the fee application should be denied since it was filed one day late and because it was not styled as a formal motion, in an exercise of discretion. (See Defs.' Mem., ECF No. 96, at 3.) Defendants were not prejudiced by the application being filed one day late, and the Court has “broad discretion to determine whether to overlook a party's failure to comply with local court rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001). Although the application should have been filed on time, and even if it may be better practice to file a motion accompanied by a declaration, the motion should not be denied on these formalistic grounds. Rather, for the reasons set forth herein, the Court grants Plaintiff's motion for attorney's fees and costs in part.

DISCUSSION

I. Legal Standards

A. The FLSA and NYLL

Under both the FLSA and the NYLL, a prevailing plaintiff is entitled to an award of “reasonable” attorney's fees. See 29 U.S.C. § 216(b); NYLL § 663(1). As the Second Circuit observed in Fisher v. S.D. Protection Inc., “[a]ttorneys' fees and costs in FLSA actions generally arise in three contexts.” 948 F.3d 593, 600 (2d Cir. 2020). They arise “following a ruling in favor of [the] plaintiff,” in the context of a negotiated settlement where attorneys' fees and costs are incorporated “into the settlement amount,” and in the event of a negotiated settlement where “the settlement agreement reserves the questions of fees and costs for the court to decide.” id. at 600-01. The Fish...