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Miller v. Food Concepts International, LP

United States District Court, S.D. Ohio, Eastern Division

November 13, 2017

JOSEPH MILLER, Plaintiff,
v.
FOOD CONCEPTS INTERNATIONAL, LP, et al, Defendants.

          OPINION & ORDER

          ALGENON L. MARBLEY Magistrate Judge Deavers

         This matter comes before the Court on Plaintiffs' Motion for Attorney's Fees and Costs (“Motion for Attorney's Fees”) for the cases filed by Plaintiffs Joseph Miller (2:13-cv-00124), Teddy Crozier (2:13-CV-00125), Komekeo Coleman (2:13-CV-00126), Eric Gibbs (2:13-CV-00127), Stacie Johnson (2:13-CV-00129), Lucas Troyer (2:13-CV-00130), Angie Tigner (13-CV-132), Amanda McEldowney (2:13-CV-00133), and Jamie Keegan (2:13-CV-00134) (collectively, “Plaintiffs”) against Food Concepts International, LP (“Food Concepts”), Abuelo's International LP (“Abuelo's”), Mark Myers, and Darren DelVecchio (collectively, “Defendants”). Plaintiffs filed the Motion for Attorney's Fees in Miller's case only. (Doc. 191.) For the following reasons, Plaintiffs' Motion for Attorney's Fees is GRANTED with modifications.

         I. BACKGROUND

         Plaintiffs' original complaints, filed in January 2013 in the Franklin County Court of Common Pleas, alleged various causes of action against Defendants, such as: sex discrimination; negligent hiring, supervision, and retention; intentional infliction of emotional distress; violation of state and federal minimum wage and overtime laws; and wrongful termination. (Doc. 1-1.)[1]The original complaints, albeit long, were short on facts pertaining to Plaintiffs. Defendants removed the cases to federal court on February 12, 2013. (Doc. 1.)

         Over the next eight months, following multiple requests from Defendants, the Court issued several orders requiring Plaintiffs to file amended complaints that complied with the basic notice requirements of Federal Rule of Civil Procedure 8(a). (Docs. 9, 16, 27.) When Plaintiffs' counsel finally filed amended complaints on October 15, 2013, it became clear that these amended complaints, too, failed to comply with the Court's orders and the federal rules. Consequently, Magistrate Judge Mark Abel was compelled to order Plaintiffs to show cause why their lawsuits should not be dismissed. (Doc. 30.)

         On October 25, 2013, Plaintiffs filed a third version of their complaints to their responses to Magistrate Judge Abel's Order to Show Cause. (Doc. 31.) With no explanation or request for leave, some Plaintiffs attached a fourth version on November 18, 2013. (See, e.g., Doc. 33.) Depending on the Plaintiff, these complaints alleged causes of action for: (a) wage and hour violations of the Fair Labor Standards Act (FLSA); (b) breach of contract; (c) retaliation under state and federal law; (d) aiding and abetting discrimination in violation of state law; (e) a hostile work environment; and/or (f) retaliation/loss of job benefits. (Doc. 36.) On January 17, 2014, Magistrate Judge Abel conducted an exhaustive review to see whether these versions could pass muster under Rule 8(a) notice pleading. (Doc. 36.) Alas, large sections of them could not, and Magistrate Judge Abel recommended that Plaintiffs' retaliation and aiding and abetting claims be dismissed with prejudice, as well as the vast majority of their hostile work environment claims. (Doc. 36.) Magistrate Judge Abel recommended that Plaintiffs' claims under the FLSA for breach of contract for wages and benefits, as well as Johnson's hostile work environment claims, be allowed to proceed. (Doc. 36.) No party objected, and, on February 18, 2014, this Court adopted the Report and Recommendation. (Doc. 38.)

         The next several months were punctuated by discovery disputes (see, e.g., Docs. 45, 50, 53, 61, 62, 79), Plaintiffs' unsuccessful motion for sanctions following a mailing mix-up, (Docs. 47, 69), and Plaintiffs' attempt to file a second amended complaint. (Doc. 60.) Magistrate Judge Abel denied Plaintiffs' motion for leave to file a second amended complaint on February 18, 2015. (Doc. 82.) At least one Plaintiff objected to the order, (see, e.g., Tigner Doc. 62), and this Court overruled that objection. (Tigner Doc. 66.) Plaintiffs also filed a motion for prejudgment attachment of Defendants' assets, (Doc. 90), which, following a hearing, this Court denied for lack of valid justification. (Doc. 119 at 5.)

         Defendants filed motions for summary judgment on July 5, 2016. (Doc. 156.) Plaintiffs filed oppositions to Defendants' motions for summary judgment on August 29, 2016, (Doc. 173), and the parties also litigated a motion to strike the affidavits filed with Plaintiffs' oppositions. (Docs. 178-82.) On March 29, 2017, the Court granted Defendants' motions for summary judgment on all of Plaintiffs' claims, with the exception of their FLSA wage and hour claims against Defendants Abuelo's and Food Concepts. (Doc. 184 at 56.) The Court also granted in part Defendants' motion to strike.

         On June 1, 2017, at a Court-held mediation, the parties settled their remaining FLSA wage and hour claims. (Doc. 188.) In connection with the settlement, the parties agreed to allow the Court to determine the reasonableness of Plaintiffs' attorney's fees and costs. Plaintiffs' counsel submitted the instant Motion for Attorney's Fees on July 14, 2017, (Doc. 191), and the parties submitted additional evidence at a reasonableness hearing on Thursday, October 5, 2017. The Motion for Attorney's Fees is now fully briefed, argued, and ripe for review.

         II. STANDARD OF REVIEW

         To a prevailing plaintiff following a FLSA action, FLSA provides a “reasonable attorney's fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). This Court must ensure that an attorney's fee is “reasonable.” Id.; Moore v. Freeman, 355 F.3d 558, 565 (6th Cir. 2004). The starting point for such a calculation is the “lodestar” method: multiplying the “number of hours reasonably spent on the case by an attorney times a reasonable hourly rate.” Moore, 355 F.3d at 565. Then, “[t]hat amount may . . . be adjusted upwards or downwards, as the district court finds necessary under the circumstances of the particular case.” Id. The party seeking a fee award must “submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the court may reduce the award accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A fee is reasonable if it is “adequately compensatory to attract competent counsel yet . . . avoids producing a windfall for lawyers.” Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir. 2007) (internal quotations omitted) (emphasis omitted).

         The Court may also tax the following costs: “(1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; [and] (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” 28 U.S.C. § 1920. It is preferable that the prevailing party include supporting documentation. Mikaloff v. Walsh, No. 5:06-96, 2009 WL 901860, at *11 (N.D. Ohio Mar. 30, 2009).

         III. ANALYSIS

         Plaintiffs seek $1, 026, 316.10 for attorney's fees and $102, 325.72 in costs, plus 3%, or $30, 789.48, for “fees for fees, ” for a total of $1, 159, 431.30.[2] Defendants have raised a number of objections to Plaintiffs' fee petition, including to the requested rates, hours, and costs. (Doc. 194.) The Court will address each seriatim.

         A. Reasonable Hourly Rates

         In determining a reasonable hourly rate, “[t]he appropriate rate . . . is not necessarily the exact value sought by a particular firm, but is rather the market rate in the venue sufficient to encourage competent representation.” Sykes v. Anderson, 419 F. App'x 615, 618 (6th Cir. 2011) (internal quotations omitted). The market rate is “the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Gonter v. Hunt Valve Co., 510 F.3d 610, 618 (6th Cir. 2007). Comparable skill and experience, of course, means skill and experience in the specific area of law at issue in the case. Snide v. Disc. Drug Mart, Inc., No. 1:11-cv-244, 2013 U.S. Dist. LEXIS 165584, *22-25 (N.D. Ohio Oct. 30, 2013).

         In making its determination, the court may “consider a party's submissions, awards in analogous cases, state bar association guidelines, and its own knowledge and experience from handling similar requests for fees.” Ne. Ohio Coal. for the Homeless v. Husted, No. 2:06-cv-896, 2014 WL 4829597, at *12 (S.D. Ohio Sept. 29, 2014) (vacated in part on other grounds) (quoting Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F. App'x 496, 499 (6th Cir. 2011)). The fee applicant bears the burden to “produce satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 896 (1984).

         The Sixth Circuit has looked to six considerations in determining the reasonableness of a rate:

1) the value of the benefit rendered to the [client], 2) society's stake in rewarding attorneys who produce such benefits in order to maintain an incentive to others, 3) whether the services were undertaken on a contingent fee basis, 4) the value of the services on an hourly basis, 5) the complexity of the litigation, and 6) the professional skill and standing of counsel involved on both sides.

Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974) (internal quotations omitted).

         Plaintiffs seek an award based on a $325 hourly rate for Attorney James Meaney; a $229.33 hourly rate for Attorney Wesley Fortune; a $175 hourly rate for Attorneys Aikaterini Paragiou, Clint White, Nicole Derr, and Jessica Shields; and flat rates of $1, 500 and $1, 000, respectively, for Attorneys John Gonzalez and Gilbert Gradisar. (Docs. 191, 192-5 to 192-7, 192-8.) The rates requested for Fortune, Paragiou, White, Derr, and Shields equal the rates this Court awarded for parallel litigation on behalf of Rachel Autrey. See Autrey v. Food Concepts, et al. (Case No. 2:13-CV-00131, Doc. 85). Defendants, in turn, seek a $225 rate for Meaney-less than the rate the Court awarded in Autrey. They also seek a $200 per hour rate for Fortune. (Doc. 194 at 39.)

         When assessing the requested rates, the Court's starting place will be its fee award in Autrey, because Autrey raised essentially the same claims against the same Defendants as the Plaintiffs here, and she retained the same lawyers to do so.[3]

         1. Meaney

         When the Court considered the reasonable rate for Meaney in the Autrey Award, it had little information on which to base his rate. (Autrey Award at 8-10.) Autrey justified the rate for Meaney “by stating that he has practiced law for thirty-plus years and that he has litigated one Ohio Court of Claims case” that was unrelated to the claims at issue. (Id. at 8.) Autrey also pointed to the report by the Ohio State Bar Association, “The Economics of Law Practice in Ohio in 2013” (“OSBA Report”), which, based on a number of characteristics pertaining to Meaney-an attorney practicing in suburban Columbus, with 26-35 years of experience, specializing in labor and employment law, as a partner in a small firm-suggested that the requested $325 rate was too high. (Id.)

         Ultimately, because Plaintiff did not meet her burden to “produce satisfactory evidence . . . that the requested rate [for Meaney was] in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation, ” Blum v. Stenson, 465 U.S. 866, 896 (1984), the Court was forced to estimate a reasonable rate for Meaney based on averaging the aforementioned characteristics from the OSBA Report. (Autrey Award at 10.) This reasonable rate was $234.50 per hour. (Id.)

         Here, Plaintiffs provide further evidence for the requested $325 per hour rate. Specifically, Plaintiffs point to the affidavits of Meaney and of another attorney, John Marshall, who frequently testifies as to market rates for attorneys in central Ohio. Meaney asserts in his affidavit that he “ha[s] been licensed to practice law in the State of Ohio for nearly 40 years (since October of 1977) and ha[s] been involved with litigation matters during all of that time.” (Meaney Aff't, Doc. 192-5, at ¶ 3.) He was also licensed to practice in the U.S. Virgin Islands, where he served as lead counsel in hundreds of asbestos litigation cases between 1997 and 2004. (Id.) He focused on non-employment-related matters until “[a]pproximately six years ago [when he] expanded [his] practice to include employment law matters[.]” (Id. ¶ 4.) Since then, Meaney has handled employment law cases, including under the FLSA. (Id.) He was co-counsel with Fortune on Plaintiffs' cases from July 2013 through July 2014. During that time, and continuing on to now, he billed $325 per hour.

         Marshall “ha[s] been lead counsel in hundreds of civil rights and employment cases filed in the federal and state courts” over the last 32 years, as well as co-counsel on a number of others. (Marshall Aff't, Doc. 193, at ¶ 3.) His legal acumen has been recognized by a number of publications: he was named one of the Best Lawyers in America from 1996 to present, one of the Top 100 Lawyers in Ohio by Ohio “Super Lawyer” magazine from 2009-2016, one of the “Top 10 lawyers in Ohio” from 2011-2013, and one of the “Top 5 Columbus Area Super Lawyers for 2012, 2013, 2015, and 2016. (Id. ¶ 4.) He was also “selected as the 2012 and 2014 Lawyer of the Year in Employment Law - Individuals, as well as a Top 50 lawyer in Columbus by Best Lawyers and U.S. News and World Report (2010-2013).” (Id.) Marshall presents and teaches seminars on employment law and litigation, including on the issue of attorney's fees, (id.), and he has also been called upon on several occasions to opine as to the reasonableness of attorney rates and hours. (Id. ¶ 5.) Marshall opines that a $325 hourly rate for Meaney “is within the fair and reasonable market rate for the services rendered by Mr. Meaney.” (Id. ¶ 9.) He also “personally know[s] Mr. Meaney and ha[s] worked with him on employment related matters and can affirmatively state that he can and has commanded a rate of $325.00 per hour in similar cases.” (Id.)

         Defendants, for their part, argue briefly that a $325 per hour rate for Meaney is “excessive, ” because it “is in the 95th percentile for attorneys in Suburban Columbus. It is in the 90th percentile for a firm of his size. And it is in the 75th percentile for billing rates based on his years in practice.” (Doc. 194 at 39.) Defendants further posit that “Plaintiff provides no documentation to justify that the rates are reasonable given Mr. Meaney's relative experience or expertise in wage and hour matters.” (Id.) They ask the Court to award a $225 per hour rate[4] for Meaney, based on the median rate “for attorneys with his relative experience and firm size in the Suburban Columbus area.” (Id.)

         Defendants' arguments are not well taken. The Court notes, first, that averaging the relevant factors from the OSBA Report, as the Court did in the Autrey Award, yields a rate of $234.50 per hour, not $225. Second, the Court had arrived at this $234.50 rate in the Autrey Award “in the absence of evidence provided by Plaintiff.” (Autrey Award at 10.) Here, though, Plaintiffs have provided additional evidence. Blum, 465 U.S. at 896. Based on that evidence, as well as “state bar association guidelines, and [the Court's] own knowledge and experience from handling similar requests for fees, ” H, 2014 WL 4829597, at *12 (internal quotations omitted), the Court finds that an hourly rate of $325 is reasonable for Meaney.

         2. Fortune

         In the Autrey Award, the Court found a $229.33 rate for Fortune to:

Represent[] an appropriate balance between society's interest in vindicating wage and hours plaintiffs' rights, with the value actually rendered to Ms. Autrey. The rate of $229.33 also reflects Fortune's having taken Ms. Autrey's case on a contingency fee basis, the complexity of the litigation, and his approximately six-years' experience in the field.

         (Autrey Award at 12.) Marshall opines that the requested hourly rate for Fortune “is on the low end of the fair and reasonable market value for the services rendered by Mr. Fortune and attorneys of similar background and experience in this type of litigation.” (Marshall Aff't, Doc. 193, at ¶ 8.)

         Defendants attack this rate on the grounds that “the many litigation deficiencies” in the case make it “clear that a further reduction in Counsel's proposed rate [to $200 per hour] is appropriate.” (Doc. 194 at 39.)

         The Court recognizes the inefficient manner in which these cases were litigated. These deficiencies were present in Autrey's case as well. However, Plaintiffs were more successful in extracting settlement funds from Defendants than Autrey, who accepted an offer of judgment. In fixing a reasonable rate, the Court must balance multiple concerns, including the value of the benefit rendered to Plaintiffs, society's interest in vindicating Plaintiffs' rights in wage and hours claims, Fortune's having taken these cases on a contingency fee basis, the value of the services Fortune provided, the complexity of the litigation, and Fortune's experience. For these reasons, as well as the reasons expressed in the Autrey order, the Court finds a $229.33 rate for Fortune to be reasonable.

         3. Associates, Staff, and Gonzalez and Gradisar

         Defendants do not attack the rates of associates and staff in Fortune's office, or those of Gonzalez and Gradisar. Instead, Defendants attack the reasonableness of their hours. Therefore, as it did in Autrey, and for the reasons stated in the Autrey Award, the Court finds a $175 per hour rate to be reasonable for Fortune's associates-Parigiou, White, Derr, and Shields-and an $85 per hour rate to be reasonable for Fortune's Legal Assistant.

         As for Gonzalez and Gradisar, Marshall attests:

[T]he flat rate fee for John Gonzalez of $1500.00 and Gilbert Gradisar of $1000.00 was fair and reasonable for the services they rendered to Plaintiffs through their limited appearances. Based upon their standard hourly rates of $300.00, which is within the reasonable market value for service[s] rendered by attorneys with their respective background[s] and experience, the number of hours they spent on Plaintiffs' behalf and the result obtained, the fee is justified.

         (Marshall Aff't, Doc. 193, at ¶ 10.) Because Defendants fail to contest these rates, and in light of Marshall's affidavit, the Court finds them to be reasonable.

         In summary, the Court will apply the following rates:

Timekeeper
Hourly Rate
Meaney
$325
Fortune
$229.33
Parigiou
$175
White
$175
Derr
$175
Shields
$175
Legal Assistant
$85
Flat Rate
Gonzalez
$1, 500
Gradisar
$1, 000

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