Motion for Child Support in Hector Manuel Ramos Coya, Chaka S. Tripp v. Grease Monkeys Of Ny, Inc., Valery Goykhberg| Trellis.Law

On February 08, 2015 a Motion-Secondary was filed involving a dispute between Chaka S. Tripp, Hector Manuel Ramos Coya, and Grease Monkeys Of Ny, Inc., Valery Goykhberg, for Tort in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 05/24/2016 05:59 PM INDEX NO. 501419/2015
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/24/2016

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS

HECTOR MANUEL RAMOS COYA and
CHAKA S. TRIPP,

Plaintiffs,

– against – Index No. 501419-2015

GREASE MONKEYS OF NY, INC. and
VALERY GOYKHBERG,

Defendants.

Memorandum of Law
in Support of Plaintiffs’
Motion for Attorney Fees and Costs

ANTHONY P. CONSIGLIO, Esq.
200 Pinehurst Avenue, # 1-D
New York, NY 10033
(212) 810-6805

May 24, 2016

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................................................................. ii

PRELIMINARY STATEMENT ........................................................................................ 1

RELEVANT FACTS AND PROCEDURAL HISTORY .................................................. 1

ARGUMENT ...................................................................................................................... 1

I.
The Applicable Law ..................................................................................................1

A.
The Mandatory Fee Shifting Provisions of the Wage and Hour
Provisions of the Labor Law...........................................................................1
B.
The Remedial Purpose of the Wage and Hour Laws ......................................2
C.
Authority of Federal Case Law in New York Fee Shifting
Determinations ................................................................................................3
D.
Authority of Employment Discrimination and Other Civil Rights
Case Law in Fee Shifting Determinations Pursuant to Wage and
Hour Laws ......................................................................................................3
E.
Plaintiffs As Prevailing Parties, and Fee Shifting Mandatory, When
Wage and Hour Claims Are Settled ................................................................4
F.
No Proportionality Between Damages and Attorney Fees .............................5
G.
The Lodestar Calculation ................................................................................7

II.
An Award of the Full Lodestar and Costs Is Appropriate in This Case ..................8

A.
Defendants’ Resistance and Obstructionist Litigation Tactics Made
the Expenditure of Attorney Hours Herein Necessary ...................................8
B.
Comparison of Plaintiffs’ Early Settlement Demands to the Final
Settlement Amount Does Not Demonstrate Limited Success ........................9
C.
Plaintiffs’ Success Was Not Partial, Because Their Claims Were
Intertwined with a Common Core of Facts...................................................11
D.
The Time Spent Preparing This Fee Application Was Reasonable ..............12
E.
Plaintiffs’ Documented Costs Are Reasonable.............................................13
CONCLUSION ................................................................................................................. 13

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TABLE OF AUTHORITIES

Page
Cases
Albunio v. City of New York, 23 N.Y.3d 65 (2014) .......................................................... 3

Allende v. Unitech Design, Inc., 783 F. Supp. 2d 509 (S.D.N.Y. 2011) ........................ 4, 5

Ayres v. 127 Restaurant Corp., 1999 WL 328348 (S.D.N.Y. 1999), aff’d 201
F.3d 430 (2d Cir. 1999)....................................................................................................... 3

Beckman v. KeyBank, N.A., 293 F.R.D. 467 (S.D.N.Y. 2013) ......................................... 3

Berrian v. City of New York, 2014 WL 6604641 (S.D.N.Y. Nov. 21, 2014) .................. 10

Bonnette v. California Health & Welfare Agency, 704 F.2d 1465 (9th Cir. 1983) ............ 5

Carlson v. Katonah Capital, L.L.C., 2006 WL 273548, (Sup. Ct., N.Y. County,
Jan. 27, 2006) ...................................................................................................................... 2

City of Riverside v. Rivera, 477 U.S. 561 (1986)............................................................... 9

Cruz v. Nieves, 2015 WL 8830859 (Sup. Ct., Bronx County, June 22, 2015)............... 3, 6

Diggs v. Oscar De La Renta, LLC, No. 16175/12, NYLJ 1202756725883 (Sup.
Ct., Queens County, Apr. 4, 2016) ................................................................................. 6, 7

Donovan v. CSEA Local Union 1000, 784 F.2d 98 (2d Cir. 1986).................................... 7

Encalada v. Baybridge Enterprises Ltd., 2014 WL 4374495 (E.D.N.Y. Sep. 2,
2014), aff’d 612 Fed. Appx. 54 (2d Cir. 2015), cert. denied --- S. Ct. ---, 2016
WL 235186 (Apr. 25, 2016) ............................................................................................. 10

Fegley v. Higgins, 19 F.3d 1126, 1130 (6th Cir. 1994), cert. denied 513 U.S. 875
(1994) .................................................................................................................................. 5

Fornuto v. Nisi, 923 N.Y.S.2d 493 (App. Div., 1st Dept., 2011) ....................................... 4

Frank Music Corp. v. MGM, Inc., 886 F.2d 1545 (9th Cir. 1989), cert. denied
494 U.S. 1017 (1990) .......................................................................................................... 9

Fresh Meadows Med. Assocs. v. Liberty Mut. Ins. Co., 49 N.Y.2d 93 (1979) .................. 7

Gebhardt v. Time Warner Entertainment-Advance/Newhouse, 726 N.Y.S.2d 534
(App. Div., 4th Dept., 2001) ............................................................................................... 2

Gonzalez v. Scalinatella, Inc., 112 F. Supp. 3d 5 (S.D.N.Y. 2015) .................................... 9

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Gordon v. Camp Canine, Inc., 2003 WL 1563288 (S.D.N.Y. Mar. 25, 2003) ................. 10

Gottlieb v. Kenneth D. Laub & Co., 82 N.Y.2d 457 (1993), reargument denied
83 N.Y.2d 801 (1994) ......................................................................................................... 2

Hensley v. Eckerhart, 461 U.S. 424 (1983) .................................................................. 4, 12

Hernandez v. Kaisman, --- N.Y.S.3d ---, 2016 WL 1737263 (App. Div., 1st
Dept., May 3, 2016) ............................................................................................................ 6

Hernandez v. Kaisman, 2015 N.Y. Slip Op. 31743(U) (Sup. Ct., N.Y. County,
Apr. 30, 2015) ..................................................................................................................... 6

Howe v. Hoffman-Curtis Partners Ltd., LLP, 215 Fed. Appx. 341 (5th Cir. 2007) ........... 5

Ibarra v. HSCS Corp., 2012 WL 3964735 (S.D.N.Y. Sep. 10, 2012) .............................. 11

Jackson v. Estelle’s Place, LLC, 391 Fed. Appx. 239 (4th Cir. 2010), cert. denied
562 U.S. 1219 (2011) .......................................................................................................... 5

Kahlil v. Original Old Homestead Restaurant, Inc., 657 F. Supp. 2d 470
(S.D.N.Y. 2009) .......................................................................................................... 4, 6, 7

Kumble v. Windsor Plaza Co., 555 N.Y.S.2d 290 (App. Div., 1st Dept., 1990)................ 7

Lochren v. County of Suffolk, 344 Fed. Appx. 706 (2d Cir. 2009) ................................. 13

Maher v. Gagne, 448 U.S. 122 (1980) ................................................................................ 4

Matheson v. T-Bone Restaurant, LLC, 2011 WL 6268216 (S.D.N.Y. Dec. 13,
2011) ................................................................................................................................... 2

Millea v. Metro-North Railroad Co., 658 F.3d 154 (2d Cir. 2011) .................................... 6

N.A.A.C.P. v. Town of East Haven, 259 F.3d 113 (2d Cir. 2001), cert. denied
534 U.S. 1129 (2002) .......................................................................................................... 9

Perdue v. Kenny A., 559 U.S. 542 (2010) .......................................................................... 7

Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir. 1999) ............................................ 7, 12

Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998) .......................................... 9

Sand v. Greenberg, 2010 WL 69359 (S.D.N.Y. Jan. 7, 2010)............................................ 3

Savoie v. Merchants Bank, 166 F.3d 456 (2d Cir. 1999) ................................................... 8

Sugarman v. Village of Chester, 213 F. Supp. 2d 304 (S.D.N.Y. 2002) ...................... 8, 12

iii

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United Staffing Registry, Inc. v. Bacasmas, No. 300548-2012, NYLJ
1202729931144 (Civ. Ct., Queens County, June 1, 2015) ................................................. 7

Villacorta v. Saks Inc., 2011 WL 2535058 (Sup. Ct., N.Y. County, May 6, 2011) ........... 2

Westheim v. Elkay Industries Inc., 560 N.Y.S.2d 779 (App. Div., 1st Dept.,
1990) ................................................................................................................................... 2

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PRELIMINARY STATEMENT

This is an action for unpaid overtime wages, retaliation, and wage notice

violations brought under the wage and hour provisions of the New York Labor Law. The

parties previously settled all claims in this action, excepting only Plaintiffs’ claim for

attorney fees. Under the Labor Law, Plaintiffs, having prevailed on their claims through

settlement, are entitled to a mandatory award of their reasonable attorney fees and costs.

As Plaintiffs’ attorney, I have submitted a separate Affirmation outlining in detail

the 193.6 hours of attorney work that I performed in this litigation, and providing

evidence that the reasonable hourly rate for my work is $300. With my affirmation, I

have also submitted evidence of Plaintiffs’ costs in the amount of $595.

This memorandum of law sets forth the applicable law on this motion for attorney

fees and costs, and a brief analysis demonstrating that the work performed was

reasonable and necessary to the Plaintiffs’ success and should be compensated in full

under the standard lodestar calculation.

RELEVANT FACTS AND PROCEDURAL HISTORY

For a statement of the relevant facts and procedural history on this motion, the

Court is respectfully referred to the accompanying Affirmation of Anthony P. Consiglio.

ARGUMENT

I. The Applicable Law

A. The Mandatory Fee Shifting Provisions of the Wage and Hour
Provisions of the Labor Law

The New York Labor Law provides for mandatory “fee shifting” of the attorney

fees and costs incurred by plaintiffs who prevail on wage and hour claims. The fee

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shifting provisions of the Labor Law apply to each of the claims brought by Plaintiffs in

this action. See Labor Law §§ 198(1-a), (1-b), (1-d), 215(2)(a), and 663(1); see also id.

§ 2(16) (second provision) (incorporating into the Labor Law the regulations

promulgated thereunder); 12 N.Y.C.R.R. § 142-2.6(a)(4) (requiring overtime of one and

one-half times the minimum wage to be paid on all weekly hours worked beyond 40).

The mandatory attorney fees provisions of Article 6 of the Labor Law apply to

any and all successful claims brought thereunder. See Gottlieb v. Kenneth D. Laub &

Co., 82 N.Y.2d 457, 464 (1993), reargument denied 83 N.Y.2d 801 (1994). New York

courts routinely recognize that an award of attorney fees is mandatory on all successful

claims brought under Article 6.1

B. The Remedial Purpose of the Wage and Hour Laws

New York’s Labor Law, like the federal Fair Labor Standards Act (FLSA), is a

“remedial statute[ ], the purposes of which are served by adequately compensating

attorneys who protect wage and hour rights.” Matheson v. T-Bone Restaurant, LLC,

2011 WL 6268216, *8 (S.D.N.Y. Dec. 13, 2011). “Fee awards in wage and hour cases

are meant to encourage members of the bar to provide legal services to those whose wage

1
See, e.g., Gebhardt v. Time Warner Entertainment-Advance/Newhouse, 726 N.Y.S.2d 534, 536
(App. Div., 4th Dept., 2001) (affirming award of attorney fees to plaintiff successful on claim for
illegal deduction and liquidated damages under § 193(1) ); Westheim v. Elkay Industries Inc., 560
N.Y.S.2d 779, 780 (App. Div., 1st Dept., 1990) (affirming award of attorney fees predicated upon
successful claim for wages under Article 6); Villacorta v. Saks Inc., 2011 WL 2535058, *15 (Sup.
Ct., N.Y. County, May 6, 2011) (plaintiff has a claim for attorney fees predicated upon valid
claim for unused vacation pay under § 191); Carlson v. Katonah Capital, L.L.C., 2006 WL
273548, *2, 5 (Sup. Ct., N.Y. County, Jan. 27, 2006) (plaintiff has a cause of action for attorney
fees predicated upon valid claim for wages under Article 6); United Staffing Registry, Inc. v.
Bacasmas, No. 300548-2012, NYLJ 1202729931144 (Civ. Ct., Queens County, June 1, 2015)
(Exhibit F) (awarding attorney fees to defendant successful on counterclaim brought under § 198-
b). A copy of the cited decision in United Staffing Registry is included in Exhibit F of the
accompanying Affirmation of Anthony P. Consiglio.

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claims might otherwise be too small to justify the retention of able, legal counsel.” Id.

(internal quotation marks and citation omitted).

The “remedial” purpose of the wage and hour laws serves the indispensable

public purpose of holding employers accountable to pay their employees their due wages.

The fee-shifting provisions of these laws are an integral part of that purpose. See

Beckman v. KeyBank, N.A., 293 F.R.D. 467, 477 (S.D.N.Y. 2013) (if plaintiffs’ attorneys

were not adequately compensated through the statutory fee shifting provisions, “wage

and hour abuses would go without remedy because attorneys would be unwilling to take

on the risk”); Sand v. Greenberg, 2010 WL 69359, *3 (S.D.N.Y. Jan. 7, 2010) (“But for

the separate provision of legal fees, many violations of the Fair Labor Standards Act

would continue unabated and uncorrected.”).

C. Authority of Federal Case Law in New York Fee Shifting
Determinations

The New York Court of Appeals has indicated that federal case law provides

important guidance to New York State courts in determining an award of attorney fees

pursuant to New York statutes with a remedial purpose. See Albunio v. City of New York,

23 N.Y.3d 65, 73 (2014); see also Cruz v. Nieves, 2015 WL 8830859, *3 (Sup. Ct.,

Bronx County, June 22, 2015) (citing Albunio and relying on federal case law in deciding

issues pertaining to award of attorney fees under the New York City Human Rights Law).

D. Authority of Employment Discrimination and Other Civil Rights Case
Law in Fee Shifting Determinations Pursuant to Wage and Hour
Laws

Furthermore, “the law on attorney’s fees is no different in FLSA cases than it is in

employment discrimination cases.” Ayres v. 127 Restaurant Corp., 1999 WL 328348, *1

(S.D.N.Y. 1999), aff’d 201 F.3d 430 (2d Cir. 1999) (relying on employment

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discrimination case law in deciding issues pertaining to award of attorney fees under

FLSA). That is because “many of the policy considerations are the same.” Id.

The Supreme Court of the United States has made it clear that courts are to apply

the same standards across all fee awards pursuant to statutory fee-shifting provisions.

When it set forth the standards for fee shifting in federal civil rights cases under the Civil

Rights Attorney’s Fee Award Act of 1976, commonly known as “Section 1988,” the

Court held that “[t]he standards set forth in this opinion are generally applicable in all

cases in which Congress has authorized an award of fees to a ‘prevailing party.’ ”

Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983).

E. Plaintiffs As Prevailing Parties, and Fee Shifting Mandatory, When
Wage and Hour Claims Are Settled

“Plaintiffs are the prevailing party for the purposes of the FLSA and [New York

Labor Law] ‘if they succeed on any significant issue in litigation which achieves some of

the benefit the parties sought in bringing suit.’ ” Kahlil v. Original Old Homestead

Restaurant, Inc., 657 F. Supp. 2d 470, 474 (S.D.N.Y. 2009), quoting Hensley, 461 U.S. at

433. “ ‘The fact that plaintiff prevailed through a settlement rather than through litigation

does not weaken plaintiff’s claim to fees.’ ” Id., quoting Maher v. Gagne, 448 U.S. 122,

129 (1980) (alterations omitted). See also Allende v. Unitech Design, Inc., 783 F. Supp.

2d 509, 510–11 (S.D.N.Y. 2011) (plaintiffs who settled FLSA and Labor Law claims but

were unable to settle the issue of plaintiffs’ attorney fees are prevailing parties).

An award of attorney fees to a prevailing plaintiff under the wage and hour

provisions of New York’s Labor Law is “mandatory,” including when a plaintiff prevails

through a monetary settlement rather than litigation. Fornuto v. Nisi, 923 N.Y.S.2d 493,

494 (App. Div., 1st Dept., 2011) (citing Kahlil). In Fornuto, the plaintiffs reached a

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stipulation of settlement on their wage and hour claims brought under the FLSA and the

Labor Law. The stipulation of settlement made no provision for plaintiffs’ attorney fees,

and the trial court likewise made no provision for an award of attorney fees in its

judgment. The Appellate Division, First Department modified the judgment, overruling

the trial court’s denial of attorney fees, and remanded for a determination of the attorney

fees due to the plaintiffs. In doing so, the court noted that attorney fees were

“mandatory” under the Labor Law, § 198(1-a). Id.

F. No Proportionality Between Damages and Attorney Fees

Given the remedial purpose of the wage and hour laws, attorney fees may be

awarded in amounts many times larger than the damages recovered by the wage and hour

plaintiff, and it is inappropriate for a court to require proportionality between the

damages obtained by the plaintiff and the attorney fees awarded to his attorney.

While the requested attorneys’ fees exceed plaintiffs’ own
recovery in the case, that is of no matter. In FLSA cases, like other
discrimination or civil rights cases, the attorneys’ fees need not be
proportional to the damages plaintiffs recover, because the award
of attorneys’ fees in such cases encourages the vindication of
Congressionally identified policies and rights.”

Allende, 783 F. Supp. 2d at 511 (collecting cases).

Courts around the country apply this no-proportionality principle in wage and

hour cases.2 Indeed, in federal courts of the Second Circuit, disregarding the lodestar and

2
See Jackson v. Estelle’s Place, LLC, 391 Fed. Appx. 239, 240–41, 245 (4th Cir. 2010), cert.
denied 562 U.S. 1219 (2011) (in an action securing less than $20,000 in FLSA damages,
affirming award of $36,000 in attorney fees); Howe v. Hoffman-Curtis Partners Ltd., LLP, 215
Fed. Appx. 341, 342 (5th Cir. 2007) (“Given the nature of claims under the F.L.S.A., it is not
uncommon that attorney fee requests can exceed the amount of judgment in the case by many
multiples.”); id. (affirming award of $129,805 in attorney fees in an action securing $23,357 in
FLSA damages); Fegley v. Higgins, 19 F.3d 1126, 1130, 1135 (6th Cir. 1994), cert. denied 513
U.S. 875 (1994) (affirming award of $40,000 in attorney fees in an action securing $7,680 in
FLSA damages, and allowing for additional attorney fees to plaintiffs for defending against the
appeal); Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1467 (9th Cir. 1983)

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calculating an attorney fee award as a proportion of the damages obtained by the plaintiff

in a fee-shifting case is “legal error”:

Especially for claims where the financial recovery is likely to be
small, calculating attorneys’ fees as a proportion of damages runs
directly contrary to the purpose of fee-shifting statutes: assuring
that civil rights claims of modest cash value can attract competent
counsel. The whole purpose of fee-shifting statutes is to generate
attorneys’ fees that are disproportionate to the plaintiff’s recovery.
Thus, the district court abused its discretion when it ignored the
lodestar and calculated the attorneys’ fees as a proportion of the
damages awarded.

Millea v. Metro-North Railroad Co., 658 F.3d 154, 169 (2d Cir. 2011).

The Millea rule is cited with approval by New York state courts. See Cruz, 2015

WL 8830859, *7–8 (quoting Millea and awarding attorney fees of $164,778 upon

settlement of $35,000 in employment discrimination case).

New York State courts do not hesitate to award attorney fees greatly exceeding

damages in fee-shifting cases, including wage and hour cases under the Labor Law. See,

e.g., Hernandez v. Kaisman, --- N.Y.S.3d ---, 2016 WL 1737263, *1 (App. Div., 1st

Dept., May 3, 2016) (affirming attorney fee award of $264,612 in employment

discrimination action where trial court remitted jury verdict of $50,000 as more than

twice too large, see Hernandez v. Kaisman, 2015 N.Y. Slip Op. 31743(U) (Sup. Ct., N.Y.

County, Apr. 30, 2015) ); Diggs v. Oscar De La Renta, LLC, No. 16175/12, NYLJ

1202756725883, *1, 4 (Sup. Ct., Queens County, Apr. 4, 2016) (Exhibit F) (awarding

attorney fees of $115,603 upon jury verdict of $31,440 for employment discrimination

(affirming award of $100,000 in attorney fees in an action securing $18,455 in FLSA damages);
Kahlil v. Original Old Homestead Restaurant, Inc., 657 F. Supp. 2d 470, 473, 477–78 (S.D.N.Y.
2009) (awarding $93,172 in attorney fees in an action securing $36,000 in FLSA and New York
Labor Law damages); Encalada v. Baybridge Enterprises Ltd., 2014 WL 4374495, *2, 4
(E.D.N.Y. Sep. 2, 2014), aff’d 612 Fed. Appx. 54 (2d Cir. 2015), cert. denied --- S. Ct. ---, 2016
WL 235186 (Apr. 25, 2016) (awarding $7,000 in attorney fees in an action securing $1,800 in
settlement of FLSA damages).

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claims); United Staffing Registry v. Bacasmas, No. 300548/12, NYLJ 1202729931144,

*3 (Civ. Ct., Queens County, June 9, 2015) (Exhibit F) (awarding attorney fees of

$54,941 for counterclaim under Labor Law § 198 upon directed verdict of $6,522).3

G. The Lodestar Calculation

The amount of attorney fees to be awarded pursuant to the Labor Law is

calculated by the lodestar method, multiplying the number of hours reasonably expended

in attorney work by the reasonable hourly rate for the attorney’s work. See Diggs, NYLJ

1202756725883 at *2 (Exhibit F); United Staffing Registry, NYLJ 1202729931144 at *2

(Exhibit F).

There is a “strong presumption” that the unmodified lodestar represents a

reasonable fee. Perdue v. Kenny A., 559 U.S. 542, 546, 554 (2010); Quaratino v. Tiffany

& Co., 166 F.3d 422, 425 (2d Cir. 1999). Included in the lodestar are the attorney’s

hours spent on pre-litigation work, including investigation of facts, settlement demand

and negotiations, and drafting the complaint. See Kahlil, 657 F. Supp. 2d at 477. Also

included in the lodestar are the attorney’s hours spent on the application for an award of

attorney fees. See Kumble v. Windsor Plaza Co., 555 N.Y.S.2d 290, 292 (App. Div., 1st

Dept., 1990), citing Fresh Meadows Med. Assocs. v. Liberty Mut. Ins. Co., 49 N.Y.2d 93,

98–99 (1979) (statutes creating a right to attorneys’ fees are served by allowing an award

of attorney fees incurred in making the application for fees); Diggs, NYLJ

1202756725883 at *4 (Exhibit F). “The fee application is a necessary part of the award

of attorney fees.” Donovan v. CSEA Local Union 1000, 784 F.2d 98, 106 (2d Cir. 1986).

Courts uphold fee awards where the time spent on the fee application is up to 24% of the
3
Copies of the cited decisions in Diggs and United Staffing Registry are included in Exhibit F.
All exhibits referred to in this memorandum of law are annexed to the accompanying Affirmation
of Anthony P. Consiglio dated May 24, 2016.

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total time claimed. See Sugarman v. Village of Chester, 213 F. Supp. 2d 304, 312

(S.D.N.Y. 2002).

The fee-seeking party bears the burden of establishing its entitlement to an award

of attorney fees and of documenting the hours worked and the appropriate hourly rate.

See Savoie v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999).

II. An Award of the Full Lodestar and Costs Is Appropriate in This Case

As Plaintiffs’ attorney, I have submitted an affirmation describing my billing

records, work performed on this case, and skills and experience. The Court is

respectfully referred to my accompanying Affirmation for a recital of these facts. All

these facts demonstrate the reasonableness of the attorney fees requested on this motion.

In light of the applicable law cited above, these facts demonstrate that Plaintiffs are

prevailing parties entitled to an award of their attorney fees calculated using the lodestar

method.

A. Defendants’ Resistance and Obstructionist Litigation Tactics Made
the Expenditure of Attorney Hours Herein Necessary

In particular, my Affirmation describes the chief difficulties encountered in this

case: the Defendants’ resistance from November 2014 through early October 2015 to

sharing the employment records in their exclusive possession as a basis for reasoned

negotiation; the Defendants’ delay of efficient discovery through the same resistance;

defense counsel’s belligerent advocacy style, which repeatedly obstructed settlement

discussions and discovery.

As a result, Defendants may not now object to the number of attorney hours

expended. “The [defendant] cannot litigate tenaciously and then be heard to complain

about the time necessarily spent by the plaintiff in response.” City of Riverside v. Rivera,

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477 U.S. 561, 580 n.11 (1986) (internal quotation marks and citation omitted). Courts

reviewing fee applications recognize that “the responses necessitated by the maneuvering

of the other side” are an important factor in evaluating the reasonable of the attorney

hours documented in a fee application. Robinson v. City of Edmond, 160 F.3d 1275,

1284 (10th Cir. 1998) (internal quotation marks and citation omitted). “Although

defendants had the right to play hardball in contesting plaintiffs’ claims, it is also

appropriate that defendants bear the cost of their obstructionist strategy.” Frank Music

Corp. v. MGM, Inc., 886 F.2d 1545, 1557 (9th Cir. 1989), cert. denied 494 U.S. 1017

(1990) (internal quotation marks, citation, and alterations omitted).

B. Comparison of Plaintiffs’ Early Settlement Demands to the Final
Settlement Amount Does Not Demonstrate Limited Success

No downward adjustment of the lodestar is appropriate for a comparison of a

plaintiff’s original demands against his ultimate settlement amount unless the plaintiff

demonstrated bad faith or unreasonably extended litigation.

[T]he parties’ closeness to settlement in informal negotiations, or a
defendant’s subjective willingness to reach an agreement are,
together or alone, insufficient grounds for declining to award
attorney’s fees incurred in subsequent litigation. . . . If a district
court were allowed to rely on informal negotiations and hindsight
to determine whether further litigation was warranted and,
accordingly, whether attorney’s fees should be awarded, plaintiffs
with meritorious claims could be improperly dissuaded from
pressing forward with their litigation.

N.A.A.C.P. v. Town of East Haven, 259 F.3d 113, 119–20 (2d Cir. 2001), cert. denied 534

U.S. 1129 (2002). See further Gonzalez v. Scalinatella, Inc., 112 F. Supp. 3d 5, 20

(S.D.N.Y. 2015) (“While defendants ask us to reduce plaintiff’s fee award because of his

earlier declination to settle for a modest sum, the judicial system does not require litigants

to wager the ultimate value of their claims in such a way.”); Berrian v. City of New York,

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2014 WL 6604641, *5 (S.D.N.Y. Nov. 21, 2014) (no downward adjustment of the

lodestar is appropriate because of limited monetary success in relation to original

monetary demand unless plaintiff extended the litigation unreasonably by means of an

excessive demand); Encalada v. Baybridge Enterprises Ltd., 2014 WL 4374495, *2, 4

(E.D.N.Y. Sep. 2, 2014), aff’d 612 Fed. Appx. 54 (2d Cir. 2015), cert. denied --- S. Ct. ---

, 2016 WL 235186 (Apr. 25, 2016) (“[M]any defendant employers, like the one here,

argue that plaintiff’s rate or time expended should be reduced because the plaintiff

unreasonably refused to settle early, effectively churning the case to enhance his legal

fee. The argument is not irrelevant but often has limited persuasive value. For one thing,

it is difficult for a court tell which side, if either, is at fault for not settling earlier, as

neither admits to unreasonableness.”); Gordon v. Camp Canine, Inc., 2003 WL 1563288,

*3 (S.D.N.Y. Mar. 25, 2003) (refusing to make a downward adjustment of the lodestar

based on the fact that plaintiffs could have accepted an earlier settlement offer of $13,500

inclusive of attorney fees, but held out and obtained a later settlement offer of $15,000

plus attorney fees, and noting that “[w]hile the difference may not be large in absolute

terms, it can surely be significant to the wage earners whom the FLSA is designed to

protect”).

Here, no downward adjustment for limited monetary success is appropriate. As

my accompanying Affirmation demonstrates, Plaintiffs took pains to explain to

Defendants that their early settlement demands were made without the benefit of

Defendants’ employment records; emphasized that their demands for that reason set forth

Defendants’ potential exposure, rather than a demand based on full information;

requested in vain that Defendants share their records with them; requested that

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Defendants share with Plaintiffs the settlement position statement requested by the Court

setting forth Defendants’ bases for its settlement offers. Plaintiffs’ settlement demand

made shortly after Defendants produced their unredacted documents, which Plaintiffs

fought for four months to obtain, was nearly the amount for which Plaintiffs settled two

months later ($20,000 demand made on November 20, 2015, compared to $18,000 offer

accepted on January 22, 2016).

C. Plaintiffs’ Success Was Not Partial, Because Their Claims Were
Intertwined with a Common Core of Facts

As explained in my Affirmation, I removed from my billing records submitted on

this motion my work performed on behalf of a third employee who chose not to pursue

his claims in this litigation. That employee’s claims were severable from the Plaintiffs’

claims, and they were unsuccessful because he abandoned them. Thus, no award of

attorney fees is appropriate. See Ibarra v. HSCS Corp., 2012 WL 3964735, *4 n.3

(S.D.N.Y. Sep. 10, 2012).

However, the Plaintiffs’ claims of unpaid overtime, retaliation for requesting the

overtime paid to them, and wage notice violations are all factually intertwined, as shown

in my accompanying Affirmation, ¶ 30. Of these claims, only Plaintiffs’ retaliation

claims are not explicitly mentioned in the parties’ Stipulation of Settlement (Exhibit B).

Nevertheless, the Court should not conclude from the settlement agreement’s silence as

to retaliation that the Plaintiffs achieved only a partial success in this litigation, or that the

retaliation claims could have been removed from the litigation without affecting the

settlement outcome actually obtained by the Plaintiffs.

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“[W]here a lawsuit consists of related claims, a plaintiff who has won substantial

relief should not have his attorney’s fees reduced simply because the district court did not

adopt each contention raised.” Hensley, 461 U.S. at 440.

Many civil rights cases will present only a single claim. In other
cases the plaintiff’s claims for relief will involve a common core of
facts or will be based on related legal theories. Much of counsel’s
time will be devoted generally to the litigation as a whole, making
it difficult to divide the hours expended on a claim-by-claim basis.
Such a lawsuit cannot be viewed as a series of discrete claims.
Instead the district court should focus on the significance of the
overall relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation.

Id. at 435.

“Attorney’s fees may be awarded for unsuccessful claims as well as successful

ones . . . where they are inextricably intertwined and involve a common core of facts or

are based on related legal theories.” Quaratino, 166 F.3d at 425.

D. The Time Spent Preparing This Fee Application Was Reasonable

Finally, the time spent preparing this fee application was reasonable and should

be included in the Court’s award of attorney fees to Plaintiffs. Of the 193.6 attorney

worked hours claimed on this motion, 41.7 of those hours were spent on this fee

application. See my billing records (Exhibit D), entries dated May 4, 7, 8, 14, 15, 21, and

22, and second entry dated May 24, 2016. These hours represent 21.5% of the total hours

claimed. See Sugarman, 213 F. Supp. at 312 (attorney time spent on fee application is

reasonable up to 24% of total attorney time expended on case).

In addition, additional attorney time spent on a reply to any opposition by

Defendants to this motion for an award of fees should be included in the Court’s ultimate

fee award to Plaintiffs. See, e.g., Lochren v. County of Suffolk, 344 Fed. Appx. 706, 710

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(2d Cir. 2009) (remanding for an additional award of attorney fees for reply papers in fee

application).

E. Plaintiffs’ Documented Costs Are Reasonable

Plaintiffs have submitted documentation of costs, including litigation filing fees,

service of process fees, and motion fees. Such necessary litigation costs are routinely

awarded to prevailing plaintiffs under the Labor Law, as shown in the various cases cited

in this memorandum of law.

CONCLUSION

For all these reasons, Plaintiffs respectfully request that the Court award them

their attorney fees ($58,083.00, representing 193.6 hours at $300/hour) and costs

($595.00) documented on this motion in full.

Dated: May 24, 2016
New York, New York
Respectfully submitted,

ANTHONY P. CONSIGLIO, Esq.
200 Pinehurst Avenue, # 1-D
New York, NY 10033
(212) 810-6805
tony@consigliolawfirm.com
Attorney for Plaintiffs Hector Manuel
Ramos Coya and Chaka S. Tripp

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Case Info

Judge

Aaron Maslow Track Judge’s New Case

Case No.

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Document Filed Date

May 24, 2016

Case Filing Date

February 08, 2015

County

Parties

Chaka S. Tripp Plaintiff
CONSIGLIO, ANTHONY PATRICK Attorney for the Plaintiff
DROGIN, LAURENT SCOTT Attorney for the Defendant
DROGIN, LAURENT SCOTT Attorney for the Defendants
Grease Monkeys of NY, Inc. Defendant
Hector Manuel Ramos coya Plaintiff
Toevs Carolan, Tara Attorney for the Defendant
Toevs Carolan, Tara Attorney for the Defendants
Valery Goykhberg Defendant
KELECHI ACHOLONU Attorney

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Motion-Secondary: Hector Manuel Ramos Coya, Chaka S. Tripp v. Grease Monkeys Of Ny, Inc., Valery Goykhberg

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