Opinion
No. 91 Civ. 6818 (RPP)
September 20, 2002
Attorney for Plaintiff: Mark C. Sternick from Forest Hills, New York.
Attorney for Defendants: Levy, Boonshoft Spinelli, P.C. By: David M. Levy from New York, New York.
OPINION AND ORDER
By motion dated February 19, 2002, and supplemented on March 22, 2002, Plaintiff Tho Dinh Tran moves for an award of additional attorney's fees totaling $29,516.25, pursuant to Rule 54(d)(2) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") and 29 U.S.C. § 219. The Plaintiff also moves for costs in the amount of $3,588.41, pursuant to Fed.R.Civ.P. 54(d)(1) and 29 U.S.C. § 216 for services rendered in connection with Defendants' appeal of this Court's opinion and order of August 4, 2000.
Plaintiffs claim for additional fees includes a fee of $17,910.00 as well as $7,500 paid to appellate counsel. The Plaintiff also seeks $4,106.25 based on contemporaneously recorded time records for trial counsel using Amicus practice management software billed at a rate of $225 an hour. (Affidavits of Mark Sternick Esq. dated February 19, 2002 and March 22, 2002).
Background
Subsequent to hearing the evidence in this case, this Court filed an opinion and order dated August 4, 2000, finding that Plaintiff had proved by a preponderance of the evidence that Defendants had willfully violated the Fair Labor Standards Act ("FLSA") and awarded damages and liquidated damages to Plaintiff, totaling $90,196.70, based on a minimum wage of $4.25 an hour and overtime wages at $6.38 an hour.
Tho Dinh Tran v. Dinh Truong Tran, et al., 2000 U.S. Dist. Lexis 10946 (S.D.N.Y. 2000).
The Court also found, by a preponderance of the evidence, that the Defendants, in violation of the terms of a collective bargaining agreement with the union, had engaged in a pattern of racketeering by the payment of bribes to union representatives. The court found that this activity enabled the Defendants to conduct an enterprise affecting interstate commerce by others in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 (c). The Court awarded damages pursuant to 18 U.S.C. § 1964 (c) based on the amounts Plaintiff would have earned at union rates, totaling $199,832.85, which the Court then trebled for a total of $599,498.55. The Court also addressed Defendants' counterclaims and reduced the RICO damages to $595,639.05. Finding that the Plaintiff could not benefit from a double recovery, Plaintiff was awarded $595,639.05, plus reasonable attorney's fees and costs. Thereafter, Plaintiff applied for attorney's fees and the Court, by orders dated April 13, 2001 and May 5, 2001, awarded Plaintiff counsel fees totaling $96,730.25.
The order dated April 13, 2001 awarded $94,536.50 in attorney's fees. In setting these fees, the Court reduced Plaintiffs request in terms of the number of the hours claimed by certain Plaintiffs attorneys and also reduced the hourly rates requested by counsel. Total attorney's fees include an award by order dated May 5, 2001 of $2,193.75 in fees for defending Defendants' motion for reconsideration.
Defendants appealed the Court's decision of August 4, 2000 and Plaintiff cross appealed. Defendants' Amended and Consolidated Notice of Appeal included an appeal of the Court's order, awarding attorney's fees of $94,536.50, plus additional fees pending award in connection with Plaintiffs response to Defendants' motion for consideration.
On February 5, 2002, in Tran v. The Alphonse Hotel Corp., et al., 281 F.3d 23 (2d Cir. 2002), the United States Court of Appeals for the Second Circuit affirmed in part, reversed in part, and remanded with instructions to enter judgment in accordance with its opinion. In particular, the Second Circuit upheld the Court's finding that Defendants had willfully violated the FLSA and determined, as argued in the cross appeal, that FLSA damages should have been based on union wage rates, not on minimum wage rates. (Ex. B to Affidavit of Robert M. Levy dated March 15, 2002; Appellee's Brief in Support of Cross Appeal at 27-28). The Second Circuit calculated Plaintiffs FLSA damages at $116,107.82, which it doubled, in view of the finding of a willful violation, to provide liquidated damages of $232,215.64, which judgment this Court was instructed to enter.
This Court's finding of a RICO violation under 18 U.S.C. § 1962 (c) was reversed by the Court of Appeals. The Court of Appeals held that Plaintiffs amended complaint could not relate back to the date of the original pleadings since the original complaint did not give Defendants notice that Plaintiffs claims were based in part on acts of bribery. Further, the Court of Appeals held that Plaintiffs proof at trial did not establish both Defendants' fraudulent concealment of the bribery and also due diligence by Plaintiff in acting to discover the bribery. As such, the Plaintiff did not establish the elements of equitable tolling as required under Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997); Corcoran v. New York Power Authority, 202 F.3d 530 (2d Cir. 1999), cert. denied, 529 U.S. 1109 (2000).
The Plaintiff evidently did not make a record that discovery was prevented by the defendants conduct, or that the bribes were not reflected in the defendants' books, or admitted by defendant Tran; nor that La Tran was a third-party witness who was located and who acknowledged the bribes only after a number of years of litigation. Nor, evidently, was a record made of the delays due to the prior incapacity and death (due to cancer) of Plaintiffs original counsel and Plaintiffs difficulty in finding counsel to continue in his behalf.
The Second Circuit noted that the District Court had granted Plaintiffs motion for attorney's fees by clearly stating, "[t]he district court . . . granted the motion for attorney's fees." Tran, 281 F.3d at 30. However, the Court of Appeals did not indicate in any way that the order should be reconsidered.
Defendants oppose Plaintiffs application for an award of additional counsel fees and expenses based on the Second Circuit's rejection of Plaintiffs cross appeal of this Court's dismissal of his claim under the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185 (a), and also ask the Court to reconsider its prior award of attorney's fees in the light of the Court of Appeals decision reversing this Court's determination of RICO liability.
Discussion
Attorney's Fees for RICO Claim
Since the Defendants included in their Amended and Consolidated Notice of Appeal this Court's April 13, 2000 order awarding Plaintiff attorneys fees and costs of $94,536.50, they are precluded, under the law of case doctrine, from asking this Court to reduce that award at this stage of the litigation, Carlisle Ventures, Inc. v. Barco Espanol de Credito, 2001 WL 185134 (S.D.N.Y. 2001). Under the law of the case doctrine, a lower court must apply a superior court's decision on remand. See Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 79 (2d Cir. 1997) (also noting that the so-called mandate rule requires the trial court to proceed according to the appellate court's mandate). The law of the case doctrine applies both to matters expressly decided on appeal and those decided by necessary implication. Tech Speciality Steel Corp. v. Allegheny Internet Credit Corp., 104 F.3d 601, 603 (3d Cir. 1997); Catazano by Catazano v. Wing, 103 F.3d 223, 230-231 (2d Cir. 1996); Uni Group, Inc. v. Winokur, 45 F.3d 1208 (8th Cir. 1995). Since the Court of Appeals did not disturb the Court's prior award of attorney's fees, the implication is that it was affirmed and reconsideration is precluded.
Nevertheless, because the Second Circuit did not expressly affirm this Court's prior awards of attorney's fees and because the Second Circuit did reverse this Court's determination that Plaintiff had prevailed on his RICO claim, the Court has considered Defendants' claim that its earlier awards should be reduced for those services of Plaintiffs attorney which pertained to the RICO claim. On review, the Court declines to disturb its prior awards of attorney's fees to the Plaintiff.
While the Second Circuit held that the RICO claim did not "relate back" to the original complaint in a manner sufficient to give the Defendant fair notice of its bribery allegations, this Court finds that the facts underlying the RICO claim were inextricably intertwined with the core facts on Plaintiffs FLSA claim and, accordingly, Plaintiffs attorney's efforts in developing those facts were inextricably commingled. Indeed, the evidence of bribery by Defendants, as testified to by La Tran, was of vital importance to the Court's finding that the Plaintiff had proved a willful violation of the FLSA. The FLSA claim was Plaintiffs original claim and the central claim in this lawsuit. Since Plaintiff prevailed on this issue and achieved a significant benefit which he sought in bringing the suit, Plaintiff was the prevailing party.See Texas State Teachers Ass'n. et. al. v. Garland Independent School District, 489 U.S. 782, 789 (1989).
Tran, 281 F.3d at 36.
Moreover, as stated in Hensley v. Eckhard, 461 U.S. 424, 435 (1983), where successful and unsuccessful claims "involve a common core of facts or [are] based on related legal theories" attorneys fees may be awarded in full (emphasis added). In the instant case, all three of Plaintiffs claims involved a common core of facts. Under these circumstances:
the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. . . . Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not sufficient reason for reducing a fee. The result is what matters.Id. at 435; see also Le Blanc-Sternberg v. Fletcher, 143 F.3d 748, 761-763 (2d Cir. 1998); Quaratino v. Tiffany Co., 166 F.3d 422, 425-427 (2d Cir. 1997); Reed v. Lawrence Co., 95 F.3d 1170, 1183 (2d Cir. 1996); Grant v. Martinez, 973 F.2d 96, 99-101 (2d Cir. 1992);Dominic v. Consolidated Edison, 822 F.2d 1249, 1259 (2d Cir. 1987);McClain v. Barnhart, 186 F. Supp.2d 435, 438 (S.D.N.Y. 2002).
Texas State, 489 U.S. 782 (1989), upon which the Defendant relies, is distinguishable from the instant case. Texas State involved a reversal of a district court decision which denied any award of attorney's fees on the basis that the plaintiff was not the prevailing party. In reversing, the Supreme Court stated that an award of some fees based on only the few claims on which a plaintiff prevailed would be appropriate. The Court stated, "[w]here the plaintiffs claims are based on different facts and legal theories, and the plaintiff has prevailed on only some of those claims, we indicated that `[t]he congressional intent to limit [fee] awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.'" Id. at 789 (quoting Hensley, supra, at 435). The Supreme Court in Texas State did not, however, overrule Hensley's rule that, when several claims are based on a common core of facts, an award based on the lodestar amount of all services performed is appropriate. Hensley, 461 U.S. at 435.
Attorney's Fees for the LMRA Appeal
Defendants' other request, namely, to exclude fees incurred by Plaintiff in connection with Plaintiffs appeal from this Court's dismissal of its claim under LMRA, 29 U.S.C. § 185 (a), is not precluded and is ripe for this Court's review.
As the Court views the matter, whereas the Plaintiff is entitled to recover for his attorney's time in pursuing the FLSA claim and RICO claim on appeal based on Hensley, supra, Plaintiffs continued pursuit of his LMRA claim on appeal was unwarranted. The District Court had held that Plaintiffs LMRA claim failed because Plaintiff had not made a timely demand for arbitration, and that determination had been upheld by the Second Circuit on Plaintiffs prior appeal. Tran v. Tran, 54 F.3d 115, 118. At the time of Plaintiffs second appeal, the LMRA claim was still deficient for the reason held by the Second Circuit in the first appeal.Tran, 281 F.3d at 32. In view of the prior rejection of Plaintiffs LMRA claim by both the District Court and the Second Circuit, it is inappropriate, despite the common core of facts underlying this claim, to reward Plaintiffs attorney with compensation for re-raising this issue on appeal.
Calculation of Attorney's Fee Award
Review of Plaintiffs hourly records of services rendered on appeal are not apportioned between Plaintiffs pursuit of its FLSA, RICO and LMRA claims. Instead, that time is divided between hours devoted to preparing Plaintiffs responsive brief, the brief in support of his cross appeal, his reply brief, as well as hours utilized in preparing the record on appeal and in settlement discussions. Accordingly, on the basis of those records, the Court is unable to be definitive in ascertaining the exact number of hours devoted by counsel to pursuing each of Plaintiffs three legal claims during the appeal. Nonetheless, the Court does not find that the records were kept in such a manner as to impede the Court's efforts to evaluate the reasonableness of any of the listed activities, as such, this case is distinguishable from Soler v. GU, INC., 801 F. Supp. 1056 (S.D.N.Y. 1992) relied upon by the defendant. (Def. Opp. Mem. at 11).
Upon reviewing the time records as well as the briefs on appeal (Affidavit of David M. Levy, Esq., dated March 15, 2002, Ex. C) and excluding time Plaintiff spent on settlement negotiations and preparation of the record on appeal, from its calculations, the Court concludes that thirty percent of Plaintiffs attorneys' time on appeal was devoted to the appeal of the LMRA and state law issues rejected by the Second Circuit. Accordingly, the Court reduces Plaintiffs claim for $29,516.25 in additional attorneys fees by 30% to $20,661.38. The claim for costs of $3,588.41 are split, $2,215.00 are considered costs related to the trial and $1,373.41 are costs related to the appeal.
The $2,193.75 awarded for attorney's fees in the order dated May 5, 2001 will be added to this to determine the total attorney fee award related to work done after the August 16, 2002 judgment.
Conclusion
The Court orders the judgment entered by this court on August 16, 2002 in the amount of $595,639.05, plus reasonable attorney's fees, vacated. The court orders a modified final judgment for Plaintiff to be entered in the amount of $232,215.64, together with attorney's fees of $94,536.50, costs of $2,215.00 and post judgment interest calculated thereon to run from August 16, 2000. The court further orders a judgment of $22,855.15 for attorney's fees and costs of $1,373.41 in conjunction with post judgment interest calculated thereon to run from February 5, 2002.
IT IS SO ORDERED.