Lippe v. TJML, LLC et al, No. 8:2012cv00260 - Document 23 (D. Md. 2013)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/13/13. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : GORDON LIPPE : v. : Civil Action No. DKC 12-0260 : TJML, LLC, et al. : MEMORANDUM OPINION Plaintiff Gordon Lippe brought claims under the Fair Labor Standards Act ( FLSA ), Maryland Wage and Hour Law ( MWHL ), the Maryland Wage Employee Payment Retirement and Collection Income Act Security ( MWPCL ), Act and ( ERISA ) the against Defendants TMJL, LLC, t/a Tony & James Restaurant and Bar ( Tony and James ); Tony Massenburg, one of the owners of Tony & James; TJML, LLC Group Journeyman, LLC, Health t/a Plan 44 ( Group Sports Bar & Health Grill seeking to recover unpaid wages and bonuses. Memorandum judgment Opinion was and entered Order in issued Plaintiff s Plan ); and ( Journeyman ), (ECF No. 1). In a on January 16, 2013, favor against Defendants Massenburg, Tony & James, and Journeyman on a number of claims. (ECF Nos. 14 & 15). On February 4, 2013, Plaintiff filed a status report stipulating to the dismissal of any unresolved causes of judgment. action and requesting (ECF No. 16). the court to enter final Plaintiff also requested that the court award interest. him attorneys fees, costs, and post-judgment On February 15, 2013, Plaintiff s remaining claims were dismissed and judgment was entered in Plaintiff s favor for costs. (ECF No. 17). On March 1, 2013, Plaintiff provided a more detailed schedule of the amounts of attorneys fees and costs sought, as contemplated by Local Rule 109 and Appendix B to the Local Rules. (ECF No. 18). respond to Plaintiff s filings. Massenburg filed a suggestion Defendant Massenburg did not On March 15, 2013, Defendant of bankruptcy, noting that he filed for relief under Title 11 of the United States Bankruptcy Code on September 18, 2012. This sequence of (ECF No. 19). events raised a number of concerns regarding the automatic stay provision of the U.S. Bankruptcy Code, which prohibits all acts to collect a pre-petition debt. 11 U.S.C. § 362(a)(6) provides that a petition . . . operates as a stay, applicable to all entities, of . . . any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case. Consequently, the judgments in the January 16, 2013 and February 15, 2013 Orders are void as to Massenburg and a new judgment will be issued. Following litigate this the revelation case after that Massenburg 2 Plaintiff filed a continued to suggestion of bankruptcy, the court ordered Plaintiff to show cause why he should not be sanctioned. In their (ECF No. 21). response to the court s show cause order, Plaintiff s counsel admitted that they knew of the September 18, 2012 bankruptcy filing while they were proceeding forward with their action against Defendant Massenburg. (ECF No. 22 ¶ 6). It was Plaintiff s counsel s custom and understanding that it is the Debtor s responsibility to file a suggestion of bankruptcy in all courts with pending cases against the Debtor as soon as the bankruptcy is filed, which counsel believed had been done in this case. (Id. ¶ 2). communications costs, and with Plaintiff s counsel contends that their this post-judgment court requesting interest were attorneys only fees, clarifying a judgment already granted on the record by defining a debt in dollar amount as had not previously occurred. (Id. ¶ 5). Plaintiff s counsel represents that [n]o action of any kind was taken or intended against the Debtor or his estate once the amount due was established by this Court. (Id. ¶ 10). A creditor will not be sanctioned unless its violation of the automatic stay is willful. context, the United States 11 U.S.C. § 362(k)(1). Court of Appeals for the In this Fourth Circuit discussed the elements of willfulness: [t]o constitute a willful act, the creditor need not act with specific intent 3 but must only commit an intentional act with knowledge of the automatic stay. Citizens Bank of Strumpf), 37 155, (4th Cir. F.3d 159 grounds, 516 U.S. 16 (1995). from continuing judicial Md. v. Strumpf 1994), rev d (In on re other Bankruptcy law forbids creditors proceedings against bankrupts, and, accordingly, it is the creditor s obligation to inform other courts of the situation. In re Soares, 107 F.3d 969, 978 (1st Cir. 1997) (internal citation omitted). Seeking the entry of judgment after the filing of a bankruptcy petition when a party was aware failing of the debtor s subsequently constitutes a willful to bankruptcy seek vacatur violation. petition of While that let alone judgment Massenburg has not sought sanctions, the award of attorneys fees for the time period after the bankruptcy will be reduced. In their motion for award of attorney s fees, Plaintiff s counsel requests $39,745. (ECF No. 18). In any action under the FLSA, [t]he court . . . shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney s fee to be paid by the defendant, and costs of the action. 29 U.S.C. § 216(b). The payment of attorneys fees and costs to employees who prevail on FLSA claims is mandatory. The amount of the attorney s fees, however, is within the sound discretion of the trial court. Burnley v. Short, 730 F.2d 136, 4 141 (4th Cir. 1984). The MWHL and MWPCL also allow for the recovery of attorneys fees and costs. See Md.Code Ann., Lab. & Empl. § 3 427 ( If a court determines that an employee is entitled to recovery in an action under this section, the court may allow against the employer reasonable counsel fees and other costs. ); id § 3-507.2 (If a court finds than an employer withheld the wage of an employee in violation of this title . . . the court may award the employee . . . reasonable counsel fees and other costs. ). The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) - an approach commonly known as the lodestar method, Grissom v. The Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008).1 In deciding what constitutes a reasonable number of hours and a reasonable rate, numerous factors may prove pertinent, including: (1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney s expectations at the outset of the litigation; (7) the time limitations 1 Maryland courts also use the lodestar approach when determining attorneys fees under fee-shifting statutes. See, e.g., Friolo v. Frankel, 373 Md. 501, 504-05 (2003). 5 imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys fees awards in similar cases. Robinson v. Equifax Info. Servs., 560 F.3d 235, 243 44 (4th Cir. 2009) (quoting Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978)).2 [T]he burden rests with the fee applicant to establish the reasonableness of a requested rate. Id. at 244 (quoting Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990)). In addition to the attorney s own affidavits, the fee applicant must produce satisfactory specific evidence of the prevailing 2 The United States Supreme Court recently appeared to question the approach adopted by the Fourth Circuit in Kimbrell's originally set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) - describing it as an alternative to the lodestar method and explaining that it provides too little guidance for district courts and places too great of an emphasis on subjective considerations. See Perdue v. Kenny A., 559 U.S. 542, 551-52 (2010) ( [T]he lodestar method is readily administrable, and unlike the Johnson approach, the lodestar calculation is objective, and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results. (internal citations omitted)). Nonetheless, the Johnson factors, as opposed to the Johnson method, are still relevant in informing the court s determination of a reasonable fee and a reasonable hourly rate ; [Perdue] cautions against using a strict Johnson approach as the primary basis for determining reasonable attorneys fees, but nowhere calls into question the idea of using relevant Johnson factors in helping to come to a reasonable fee. Spencer v. Cent. Servs., LLC, No. CCB 10 3469, 2012 WL 142978, at *5 6 (D.Md. Jan. 13, 2012) (internal quotations marks and citations omitted). 6 market rates in the relevant community for the type of work for which he seeks an award, including, for example, affidavits of other local lawyers who are familiar both with the skills of the fee applicants and more generally with the type of work in the relevant community. and citations Id. at 244, 245 (internal quotation marks omitted). Finally, where the plaintiff has failed to prevail on a claim that is distinct in all respects from [the] successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Hensley, 461 U.S. at 440. Plaintiff s counsel are Timothy W. Romberger and Sharon M. Donahue, both of whom have been practicing law for over fifteen years. In support of their request for attorneys fees in the amount of $39,745, Romberger and Donahue each submitted declarations, both of which attest to the number of hours spent on this litigation by themselves and their paralegal. 18-2 & 18-3). (ECF Nos. Plaintiffs counsel represent that they expended a total of 136.8 hours on this case, including 129.8 hours by Plaintiff s counsel, and 7.0 hours by their paralegal. 18-1, at 8). (ECF No. Counsel substantiate these averments with detailed time records with notations as to which attorney or paralegal performed each task. (ECF No. 18-1). A review of these time records does not reflect any overly redundant, excessive, or 7 unnecessary work and they will be accepted by the court, with one exception: the December 14, 2011 entry for Review health insurance information provided by client; research ERISA Form 5500 re: hours. United Healthcare [performed (ECF No. 18-1, at 1). by attorney] for 2.1 This work is readily identifiable as being solely devoted to the unsuccessful ERISA claim and, consequently, the number of attorney hours will be reduced to 127.7. With respect to hourly rates, counsel propose $300.00 per hour for the attorneys and $115.00 per hour for the paralegal. While these proposed rates are within the ranges set forth in Appendix B to the local rules for paralegals and attorneys with more than fifteen years of experience, counsel have not submitted any evidence other than their own declarations that these rates are within the prevailing rates in the community. Instead, they cite to a recent decision in another case in which the $300 per hour rate was approved. however, shows that only counsel A review of that case, declarations were provided there as well. Given the procedural posture of this case, the court will accept the rate proposal inasmuch as it is lower than counsel s normal fee and at the lower end of the guideline range in our local rules. In the future, however, counsel would be 8 well advised to support their fee requests with additional evidence of the prevailing market rates. As discussed above, because counsel willfully violated the automatic stay as to Defendant Massenburg when he filed for bankruptcy on September 15, 2012, subsequent work will be reduced. the fees requested for The court will grant, in its entirety, Plaintiff s counsel s request for those fees incurred before the automatic stay was entered on September 18, 2012, which comes to 122 hours in attorney time and 1.5 hours in paralegal time. $36,772.50. Multiplied by the hourly rates equals Once the stay was entered, however, all activity as to Massenburg should have stopped and the court should have been informed. opposed Separating out what work was done as to Massenburg as to the other Defendants would be impossible, given their interconnectedness. difficult, if not For lack of a more precise solution, the court will reduce the award of attorney s fees for post-bankruptcy work thirty-three Massenburg was one defendant of three.3 counsel s accounting, the paralegal spent hours 5.5 attorneys working when According to Plaintiff s spent 5.7 hours post-September Multiplied by the hourly rates equals $2,315.00. 3 percent and 18, the 2012. Reducing the Plaintiff brought only a claim of an ERISA violation against Defendant Group Health Plan. That claim was dismissed on February 15, 2013. 9 fees by the percentages described above comes to $1,543.33. Add that to work done before September 18, 2012 results in a sum total of $38,315.83. Accordingly, Plaintiff s counsel will be approved for $38,315.83 in attorney s fees. A separate order will be entered. /s/ DEBORAH K. CHASANOW United States District Judge 10
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