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Koenig v. Bourdeau Construction LLC

United States District Court, E.D. Missouri, Eastern Division

November 26, 2014

RYAN KOENIG, JAMES KOENIG, II, on behalf of themselves and all others similarly situated, Plaintiffs,


STEPHEN N. LIMBAUGH, Jr., District Judge.

This matter comes before the Court on plaintiffs' motion for attorneys' fees and costs pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b), and Federal Rule of Civil Procedure 68. The matter has been fully briefed and is ready for disposition. For the following reasons, the motion will be granted in part and denied in part.

I. Background

On March 14, 2013, plaintiffs Ryan Koenig and James Koenig, II filed this action against defendant Bourdeau Construction LLC, seeking to recover unpaid wages, liquidated damages, attorney fees, and other relief for violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA") and the Missouri Minimum Wage Law, § 290.500 RSMo, et seq. ("MMWL"). On March 25, 2013, Vincent Nack filed a consent to join the lawsuit.

On April 13, 2013, Bourdeau served upon plaintiffs James Koenig, II and Ryan Koenig an Offer of Judgment pursuant to Rule 68. Plaintiffs declined the offer. Thereafter, plaintiffs filed a motion to conditionally certify class. On October 31, 2013, this Court granted the motion for conditional certification. On December 18, 2013, James Larkin filed a consent to join the lawsuit.

On June 20, 2014, Bourdeau served upon the plaintiffs a second Offer of Judgment. The Offer of Judgment provided the following for the four plaintiffs in the case: $514.00 for James Koenig, II; $2, 423.86 for Ryan Koenig; $3, 324.00 for Vince Nack; and $5, 402.50 for James Larkin. In addition, the Offer of Judgment provided for reasonable attorneys' fees, costs, and expenses to which plaintiffs are entitled by law, as determined by this Court. Plaintiffs accepted the offer and have filed a motion for attorneys' fees and costs, which is now before this Court. Plaintiffs seek $32, 400.25 in attorneys' fees and $1657.17 in costs.

II. Discussion

A. Attorney's Fees

The FLSA provides that the 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 the costs of the action." 29 U.S.C. § 216(b). The starting point for determining the amount of reasonable attorneys' fees is the lodestar amount, which 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). "[The court does] not automatically accept the lawyer's rate as reasonable; we look also to the ordinary fee for similar work in the community." Shakopee v. Mdewakanton Sioux Community v. City of Prior Lake, Minn., 771 F.2d 1153, 1160 (8th Cir. 1985) (internal quotation and citation omitted). "The court should also consider: (1) the time and labor required, (2) the novelty and difficulty of the question, (3) the skill requisite to perform the legal services properly, (4) the preclusion of other employment due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases." Starks v. Harris Co. Inc., 4:12CV473 DDN, 2014 WL 1314945, at *2 (E.D. Mo. March 26, 2014) (citing Zoll v. Eastern Allamakee Community School Dist., 588 F.2d 246, 252 n. 11 (8th Cir. 1978).

"The fee applicant bears the burden of substantiating the claimed number of hours expended." West v. Matthews Intern. Corp., 4:09CV1867 DDN, 2011 WL 3904100, at *3 (E.D. Mo. Sept. 6, 2011) (citing Hensley, 461 U.S. at 437). "The court should deduct hours that are not reasonably expended." Id. (citing Hensley, 461 U.S. at 434). "A court may reduce attorney hours, and consequently fees, for inefficiency or duplication of services in cases where more than one attorney is used." Id. (quoting A. J. ex rel. L. B. v. Kierst, 56 F.3d 849, 864 (8th Cir. 1995)). Additionally, hours that are "excessive, redundant, or otherwise unnecessary" are not to be included in an award of fees. Hensley, 461 U.S. at 434. Further, "[p]laintiffs are not entitled to attorney's fees for time expended for work that should be considered clerical in nature." Betton v. St. Louis County, 4:05CV01455 JCH, 2010 WL 2025333, at *7 (E.D. Mo. May 19, 2010) (internal quotation and citation omitted); see also Sellers v. Peters, 624 F.Supp.2d 1064, 1069 (E.D.Mo.2008) ("[c]ompensation for... clerical tasks is not appropriate").

Plaintiffs seek attorneys' fees as follows: for attorney James Nowogrocki, 74.3 hours at $350.00 per hour for a total of $26, 005.00; for attorney Richard Worth, 3.7 hours at $250.00 per hour for a total of $925.00; for paralegal Lisa Kogel, 9.5 hours at $92.00 per hour for a total of $874.00; for paralegal Ashley Webb, 47.3 hours at $62.50 per hour for a total of $2956.25; for first year law student Morgan Taylor, 2.5 hours at $50 per hour for a total of $125.00; for second year law student Ray Syrcle, 20.2 hours at $75 per hour for a total of $1515.00. The total amount of attorneys' fees requested by plaintiffs is $32, 400.25.

In support of the attorneys' fees and costs requested by plaintiffs, they submitted the affidavit testimony of their lead attorney, James Nowogrocki. Mr. Nowogrocki offered testimony substantiating the number of hours expended. He testified that he has practiced employment and labor law in the metropolitan St. Louis area since September 1988. He has extensive experience in FLSA litigation in federal court. He devotes a substantial percentage of his practice in the representation of individuals in employment matters. Based upon his experience and knowledge, he testified that the billing rates in the St. Louis area for paralegals and law students range from $50.00 to $100.00 per hour. He testified to the accuracy of the legal fees and costs as set forth on an invoice attached to his affidavit.

Plaintiffs also offered the affidavit testimony of Donna Harper, an attorney with Sedey Harper, P.C., who has practiced law since 1979. Ms. Harper testified that she has spent her entire legal career in the area of plaintiff's employment litigation. She practiced exclusively in federal court for the first twenty-seven years of her career, and in both state and federal court for the past eight-plus years. She testified that she is familiar with the rates charged by attorneys in the St. Louis metropolitan area in employment discrimination, wage and hour cases, and other types of litigation in state and federal court. She testified that she was familiar with Mr. Nowogrocki and Mr. Worth professionally as plaintiff employment attorneys. Based on her knowledge and experience, she testified that the rates requested by plaintiffs for the attorneys, paralegals, and law students are consistent with the rates charged by firms who employ attorneys and paralegals in St. Louis with similar skills, experience and reputation when serving feepaying clients.

In its opposition to plaintiffs' motion, defendant argues that a reasonable hourly rate for Mr. Nowogrocki would be $250.00, for Mr. Worth $160.00, for the law clerks $25.00, and for the paralegals $62.50. Defendant claims that "[i]n determining reasonable hourly rates, courts have consistently approved the rate of $250.00 as a reasonable rate for an experienced partner practicing employment law." This argument has previously been rejected by this Court. In Lupo v. Hooter's of St. Peters, 4:13CV601 CAS, 2013 WL 3229602, at *2 ...

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