311 F.Supp.2d 212 (2004) | Cited 7 times | D. Massachusetts | March 31, 2004


In these two cases, the plaintiff, Boris Mogilevsky ("Mogilevsky"),sued the defendant, Bally Total Fitness Corporation ("Bally"), fordamages arising from Bally's conduct in relation to his employment. Inthe first suit (the "FLSA Action"), Mogilevsky asserted claims related tothe nonpayment of wages under the Fair Labor Standards Act,29 U.S.C. § 201-219, the comparable state statute, Mass. Gen. Laws ch.151, §§ 1-22, and Mass Gen. Laws ch. 149, § 184.2d Am. Compl. § 1 [Doc.No. 21 in Civ. Action No. 01-11240]. In the second suit (the"Discrimination Action"), Mogilevsky asserted claims under the federalAge Discrimination in Employment Act, 29 U.S.C. § 621-634, the Americanswith Disabilities Act, 42 U.S.C. § 12101-12213, and the comparable statestatute, Mass. Gen. Laws ch.Page 2151B, alleging discrimination on account of age and perceiveddisability, and for reprisal. 1st Am. Compl. § 1 [Doc. No. 30 in Civ.Action No. 01-11749] ("Discrimination Compl."). In addition, he asserteda violation of the federal Family and Medical Leave Act ("FMLA"),29 U.S.C. § 2601-2654. Id.

Having prevailed in part in the FLSA Action, and having secured anAgreement for Judgment in the Discrimination Action, Mogilevsky now seeksattorney's fees and costs. [Doc. No. 59 in Civ. Action No. 01-11240,Doc. No. 59 in Civ. Action No. 01-11749]. As these actions involve thesame parties, attorneys, and related facts and circumstances, they areappropriately treated together.


A. The FLSA Action

Mogilevsky originally filed this case in the Massachusetts SuperiorCourt sitting in and for the County of Suffolk on April 7, 2001 andamended his complaint on June 19, 2001. Notice of Removal [Doc. No. 1] at1. Bally removed the action to this Court on July 18, 2001, id., andfiled its answer on August 15, 2001, [Doc. No. 5].

Mogilevsky served discovery requests on Bally at the end of October andBally responded in December 2001. Def.'s Opp'n ("Def.'s FLSA Opp'n")[Doc. No. 69] at 2. During discovery, the parties attempted mediationbefore Magistrate Judge Cohen inPage 3January 2002 without reaching a settlement. Order of 1/17/02. [Doc.No. 13]. On February 26, 2002, Mogilevsky, without objection, amended hiscomplaint for the purpose of transferring certain of his claims to therelated Discrimination Action. [Doc. No. 14]. The parties conducteddepositions in March 2002 followed by Mogilevsky's second documentrequest. Def.'s FLSA Opp'n at 2. On April 5, 2002, Mogilevsky filed asecond amended complaint. [Doc. No. 21].

The parties again attempted mediation in July 2002, but wereunsuccessful in reaching agreement. Report of 7/25/02 [Doc. No. 31]. Afinal pretrial conference was held on July 29, 2002, during which theparties filed a joint pretrial statement, which they subsequently amendedon August 21, 2002 [Doc. No. 34].

On August 26, 2002, Bally made an Offer of Judgment under Fed.R. Civ.P. 68, submitting that judgment be taken against it in the amount of$5,000 plus costs and attorneys fees. [Doc. No. 58]. Mogilevsky did notaccept the offer.

On September 13, 2002, the parties filed trial briefs and proposedfindings of fact and conclusions of law. [Doc. Nos. 39-40]. The Courtconducted a bench trial on September 17, 18, 26 and 27. At the conclusionof the trial, the Court ordered supplemental briefing in the nature of anaccounting in light of the Court's tentative findings and rulings. Theparties made further submissions during November and December 2002 [Doc.Nos. 45, 48-51] as well as in April 2003 [Doc. Nos. 54-55]. The CourtPage 4rendered its opinion on May 13, 2003, Moqilevsky v. Bally Total FitnessCorp., 263 F. Supp.2d 164 (D. Mass. 2003), and judgment entered inMogilevsky's favor on May 15, 2003, in the amount of $4,567.21 [Doc. No.57]. Mogilevsky filed a motion to alter or amend the judgment on May 27,2003 [Doc. No. 61], which was denied, Order of 6/2/03.

B. The Discrimination Action

Mogilevsky first filed a complaint with the Massachusetts CommissionAgainst Discrimination on December 21, 2000. Discrimination Compl. §36. The parties conducted discovery, including the taking of depositions,while the matter was pending at the agency level. Pl.'s Rev'd Mem. at 2("Pl's Discrimination Mem.") [Doc. No. 63]. Following the agencyproceedings and issuance of an EEOC right to sue letter with respect toMogilevsky's federal claims, the case commenced in this Court on October11, 2001. Discrimination Compl.

Discovery continued, beginning in March 2002. Pl's Discrimination 2. Mogilevsky deposed two Bally witnesses on October 29, 2002, and twomore on November 13, 2002. Def.'s Opp'n ("Def.'s Discrimination Opp'n")[Doc. No. 64] at 2.

Bally filed a motion for summary judgment on December 9, 2002 [Doc.No. 17], which was opposed by Mogilevsky in a memorandum filed onDecember 23, 2003 [Doc. No. 21]. Bally filed a reply brief [Doc. No.25] and this Court, after hearing, deniedPage 5Bally's motion on January 15, 2003 [Doc. No. 31]. The matter was then setto be tried before a jury on April 22, 2003. See Doc. No. 33. On thefirst scheduled day of trial, the case was settled, and the parties filedan Agreement for Judgment in the amount of $70,000 plus costs andreasonable attorney's fees to be assessed by the Court. [Doc. No. 46].


A. Determining Attorney's Fees

In the FLSA Action, Mogilevsky is entitled to reasonable attorney'sfees and costs under 29 U.S.C. § 216(b) and Mass. Gen. Laws ch. 149, §150. In the Discrimination Action, Mogilevsky seeks his attorney's feesand costs under the Agreement for Judgment, and under 42 U.S.C. § 12117(claims brought under the ADA, to which 42 U.S.C. § 2000e-5(k) applies),29 U.S.C. § 626(b) (claims brought under the ADEA, to which29 U.S.C. § 216(b) applies), 29 U.S.C. § 2617(a)(3) (claims brought underthe FMLA), and under Mass. Gen. Laws ch. 151B, § 9 (claims brought underMass. Gen. Laws. ch. 151B). Each of these statutes permits the plaintiffto recover reasonable attorney's fees and costs.

It is well established that the lodestar approach, "which computesattorney's fees by multiplying the number of hours reasonably spent on acase by a reasonable hourly rate," is the appropriate method ofdetermining attorney's fees under the fee-shifting provisions applicablein these cases. Martino v.Page 6Massachusetts Bay Transp. Auth., 230 F. Supp.2d 195, 201 (D. Mass. 2002)(citing, inter alia, Blum v. Stenson, 465 U.S. 886, 897 (1984), andHenley v. Eckerhart, 461 U.S. 424, 433 & n.7 (1983)).

1. Reasonable Hourly Rate

In determining what hourly rate to apply to Mogilevsky's attorney inthe lodestar calculation, this Court must find "the prevailing hourlyrate in Boston for attorneys of comparable skill, experience, andreputation." Martino, 230 F. Supp.2d at 205. The burden is on Mogilevskyto provide this Court with affidavits and other forms of evidence that:"(1) establish his lawyer['s] skills and experience, and (2) inform theCourt of the prevailing market rate in the community for attorneys withsuch qualifications." Id. (citing Blum, 465 U.S. at 895-96 n.ll, andSystem Mgmt. v. Loiselle, 154 F. Supp.2d 195, 209 (D. Mass. 2001)).

Mogilevsky submits affidavits from his attorney, Harvey Shapiro, Esq.("Shapiro"), in which Shapiro requests an hourly rate of $200 for hiswork on both of these cases. Shapiro Affs. [Doc. No. 65 in Civ. ActionNo. 01-11240, Doc. No. 53 in Civ. Action No. 01-11749] § 8.1Shapiro's affidavits demonstrate thatPage 7he has had a long and impressive career as an attorney in the Bostonarea. After graduating from Harvard Law School in 1973, Shapiro began hiscareer as a staff attorney with Greater Boston Legal Services, where heworked from 1974 to 1985. Id. at §§ 1, 3. Subsequently, he was a partnerin the law firm of Collier, Shapiro & McCutcheon, until he began hispractice as a solo practitioner in November 2000. Id. § 2.

Shapiro has practiced "at all levels of the state and federal courts,"with "substantial work in the housing, real estate, consumer, and publicbenefits areas, frequently with emphasis on Chapter 93A [theMassachusetts Consumer Protection Act]." Id. § 4. In addition, he hasserved on a number of legal education panels throughout his tenure as amember of the Massachusetts bar. Id. § 5.

Mogilevsky also proffers the affidavits of Dahlia Rudavsky, Esq.("Rudavsky"). Rudavsky Affs. [Doc. No. 66 in Civ. Action No. 01-11240,Doc. No. 54 in Civ. Action No. 01-11749]. Rudavsky, who is a partner inthe law firm of Messing, Rudavsky & Weliky, P.C. and has been a memberof the Massachusetts Bar since 1980, states that the market rate chargedfor her time and that of her partner is $345 per hour. Rudavsky Affs. §3. Rudavsky states that in McMillan v. Massachusetts Society forPrevention of Cruelty to Animals, 880 F. Supp. 900 (D. Mass. 1995)(Stearns, J.), aff'd in part, vacated in part, and remanded, 140 F.3d 288(1st Cir. 1998), she was awarded fees at the rate of $285 andPage 8$295 per hour. Id. § 4. She also asserts that she is familiar withprevailing market rates for Boston area law firms and with awards ofattorneys' fees made to counsel for prevailing plaintiffs in employmentdiscrimination cases, and submits that the $200 hourly rate requested byAttorney Shapiro is "quite modest" given his experience level, and thatit "understates the fair market value of his services." Id. § 6.

Two factors, however, weigh against Rudavsky's opinion. First, althoughShapiro states that he has "litigated some employment related disputes,"he acknowledges that he had not "previously litigated any claims underthe federal or state statutes governing minimum wage and overtimepayments." Shapiro Affs. § 6. Second, as a solo practitioner, Shapiroperformed virtually all of the work on Mogilevksy's cases himself, withoutsubstantial assistance from junior attorneys, paralegals, or the like.The First Circuit has suggested that a court "should filter out the`non-core' (i.e., less lawyerly) work from the `core' (i.e., morelawyerly) work, and compensate the `non-core' work at two-thirds thereasonable hourly rate for `core' work". System Management, 154 F.Supp.2d at 201. While this Court initially followed the "core" versus"non-core" distinction, id. at 209 n.2, the Court changed its approach inSystem Management, where, after substantial analysis, it determined thatonce the appropriate hourly rate and number of hours reasonably expendedPage 9are determined, the lodestar calculation will yield a presumptivelycorrect result and that "additional tinkering merely serves to doublecount some factors." Id. at 209. Of course, a court must not permit anattorney to recover his "standard hourly rate . . . for performing tasksappropriate to either a less experienced lawyer or a secretary orparalegal." McMillan, 140 F.3d at 308. Shapiro performed many such tasks.In light of that fact, this Court adopts a reasonable fee that issomewhat lower than the prevailing market rate for attorneys of Shapiro'squalifications and experience, and applies this reduced rate to all hoursreasonably expended. The Court considers a harmonized rate of $175 perhour to be reasonable in light of the substantial time Shapiro spentengaged in tasks that "would no doubt have been performed by employeeswith significantly lower hourly rates."2 Martino, 230 F. Supp.2d at205.

2. Reasonable Hours Expended

Having arrived at an appropriate hourly rate, the Court now determinesthe number of hours reasonably spent on the litigation. Grendel'sDen, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984). To arrive atthis number, the Court must first "determine the number of hours actuallyspent and then subtractPage 10from that figure hours which were duplicative, unproductive, excessive,or otherwise unnecessary." Id. (citing Hensley Eckerhart, 461 U.S. 424,432-35 (1983), Woitkowski v. Cade, 725 F.2d 127, 130 (1st Cir. 1984), andFurtado v. Bishop, 635 F.2d 915, 920 (1st Cir. 1980)). Attorneys seekingfee awards must provide "detailed contemporaneous time records," to avoida "substantial reduction in any award, or, in egregious cases,disallowance." Grendel's Den, 749 F.2d at 952.

Mogilevsky's counsel has met his documentation burden in both of thesecases by producing a 142-page itemization in the FLSA Action and a150-page itemization in the Discrimination Action. [Doc. No. 67 in Civ.Action No. 01-11240, Doc. No. 56 in Civ. Action No. 01-11479]. Thesesubmissions itemize all aspects of Shapiro's involvement in these casesand preclude any reduction on the basis of insufficient documentation.

This does not end the inquiry, however. When determining the number ofbillable hours to allow, a Court "has a right — indeed, a duty — to seewhether counsel substantially exceeded the bounds of reasonable effort."Gluckenberger v. Boston University, 8 F. Supp.2d 91, 99-100 (D. Mass.1998) (Saris, J.) (quoting United States v. Metropolitan Dist. Comm'n,847 F.2d 12, 17 (1st Cir. 1988)) (internal quotation marks omitted)."[T]he law firm's bill need not be swallowed whole by the client'slitigation adversary just because it is the law firm's bill."Metropolitan District Commission, 847 F.2d at 17 (emphasis inPage 11original). Nor need the district judge "feel handcuffed by counsel'ssubmission of time records, no matter how elaborate." Id. at 18. Rather,the judge must "draw[] on his own experience and wisdom [in] decidingwhether the time spent on each phase was in excess of a reasonableamount." Id. (alterations in original) (quoting Gabriele v. Southworth,712 F.2d 1505, 1507 (1st Cir. 1983)) (internal quotation marks omitted).

a. The FLSA Action

Shapiro reports that he spent a total of 830.1 hours working on theFLSA Action.3 Shapiro FLSA Aff., Add. D at 1. Of this amount, heattributes 5.0 hours to the work of a paralegal, with the remaining 825.1hours owing to his personal efforts. Id. Shapiro proposes numerousadjustments to this total to account for hours spent on unsuccessfulclaims (100.0 hours), the motion to alter or amend the judgment (20.4hours), post judgment settlement efforts (3.0 hours), client relations(24.8 hours), and the companion case (31.6 hours). Id. at 1-2. He alsosuggests a reduction equivalent to 51.4 hours for failure to provewillful violations on the claims on which MogilevskyPage 12succeeded, and a reduction equivalent to 117.4 hours for failing toobtain a judgment that exceeded the amount of Bally's Rule 68 Offer ofJudgment. Id. at 2-3. After all deductions, Shapiro seeks total fees of$92,465.83. Id. at 3.

Bally, on the other hand, argues that this Court should award a totalof $20,000 in legal fees to Mogilevsky. Def.'s FLSA Opp'n at 19. Inaddition to its argument regarding Shapiro's hourly rate, Bally submitsthat this Court should substantially reduce the fees because Shapirofailed to obtain an award greater than the amount offered by Bally, wasunsuccessful on several claims, and billed hours that, even with theproposed adjustments, are excessive. Id. at 1. The Court addresses thesearguments in turn.

i. Effect of the Rule 68 Offer

On August 26, 2002, Bally tendered a Rule 68 Offer of Judgment in theamount of $5,000 plus attorneys fees and costs accrued to date.Mogilevsky refused this offer and, at trial, was awarded $4,567.21,$432.79 less than the offer. Under Rule 68, "[i]f the judgement finallyobtained by the offeree is not more favorable than the offer, the offereemust pay the costs incurred after the making of the offer." Fed.R. Civ.P. 68. The rule is designed to "encourage settlement of disputes andavoid protracted litigation." Crossman v. Marcoccio, 806 F.2d 329, 332(1st Cir. 1986).Page 13

In Marek v. Chesny, 473 U.S. 1 (1985), the Supreme Court addressed thequestion "whether the term `costs' in Rule 68 includes attorney's feesawardable under 42 U.S.C. § 1988." Id. at 5. The Supreme Court noted thatunder the plain language of Section 1988, the prevailing party in aSection 1983 action may recover attorney's fees "as part of the costs,"id. at 9, and held that plaintiffs "who reject an offer more favorablethan what is thereafter recovered at trial will not recover attorney'sfees for services performed after the offer is rejected," id. at 10.Thus, when a statute includes attorney fees as part of the costs, Chesnyapplies and potentially will bar recovery of attorney's fees for servicesperformed after refusal of a Rule 68 offer. Where the statute does notinclude attorney's fees as part of the costs, however, Chesny is notimplicated.

Mogilevsky seeks to recover his attorney's fees under the penaltyprovision of the FLSA, 29 U.S.C. § 216(b), which allows a prevailingplaintiff to recover "a reasonable attorney's fee to be paid by thedefendant, and costs of the action," and under Mass. Gen. Laws ch. 149,§ 150, which entitles prevailing plaintiffs to "an award of the costs ofthe litigation and reasonable attorney fees." Because neither of thesestatutes includes attorney's fees as an element of costs, "unlikeattorney fees in a section 1983 action, attorney fees in an FLSA Actionare not automatically shifted by Rule 68." Haworth v. Nevada, 56 F.3d 1048,1051 (9th Cir. 1995). Bally suggests that ChesnyPage 14properly should be read to apply to FLSA actions. Def.'s FLSA Opp'n at12. In support, it notes that the Supreme Court held that "absentcongressional expressions to the contrary, where the underlying statutedefines `costs' to include attorneys' fees, . . . such fees are to beincluded as costs for purposes of Rule 68." Chesny, 453 U.S. at 9. WhileBally focuses this Court's attention on the words "absent congressionalexpressions to the contrary," the text that immediately follows thatphrase clearly limits its application to statutes which "define[] `costs'to include attorneys' fees." Id. As the fee-shifting statutes in playhere do not "define" costs to include such fees, Bally's argument fails.

Moreover, Congress is not without the means expressly to indicate thata rejected Rule 68 offer may cut off the right to attorney's fees. Forexample, the Individuals with Disabilities Education Act,20 U.S.C. § 1400-1490, contains the following provision: Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under this section for services performed subsequent to the time of a written offer of settlement to a parent if — (I) the offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins; (II) the offer is not accepted within 10 days; and

(III) the court or administrative hearing officer finds that the relief finally obtained by the parents is notPage 15 more favorable to the parents than the offer of settlement.

20 U.S.C. § 1415(i)(3)(D)(i). Congress could have enacted a similarprovision in the FLSA in the nineteen years since Chesny was decided. Ithas not.

Of course, the Court must exercise caution in attributing weight tocongressional silence, United States v. Wells, 519 U.S. 482, 495-96(1997), particularly in the absence of a strong judicial signalequivalent to "virtually unanimous accord" among courts of appeals on thespecific question before it, see General Dynamics Land Sys., Inc. v.Cline, 124 S.Ct. 1236, 1244-45 (2004). Although Chesny indicated howfuture courts would interpret the FLSA, it did not specifically discussthe FLSA, so the opinion was less likely to register on Congress's radarscreen as implicating the FLSA.4 Still, congressional silence isprobative, and when combined with the existence of alternative statutoryformulations regarding fees and costs, points to the bestinterpretation.Page 16

Although the statute does not impose a per se rule cutting offattorney's fees after refusal of a Rule 68 offer, this Court may considerMogilevsky's refusal of Bally's offer as a factor in determining whetherthe hours worked on the case were excessive. Haworth, 56 F.3d at 1052.The fact that a plaintiff may have "an FLSA violation in her pocket doesnot give her a license to go to trial, run up the attorney fees and thenrecover them from the defendant." Id.

Of the 764.2 hours Mogilevsky claims for work excluding the feepetition, 292.7 hours were devoted to work performed after Bally'sRule 68 Offer of Judgment. Add. D at 2 n.6. Thus, work performed after theoffer represents 38.3% of the total. Mogilevsky proposes a 50% reductionof Shapiro's hours incurred after the Rule 68 offer, and the Court adoptshis suggestion. Consequently, the Court will reduce the calculatedlodestar amount by 19.15% to account for Mogilevsky's failure to realizea judgment more favorable than Bally's Rule 68 offer.

ii. Limited Results Obtained

Analysis of the results obtained is a "preeminent consideration in thefee-adjustment process." Coutin v. Young & Rubicam Puerto Rico, Inc.,124 F.3d 331, 338 (1st Cir. 1997). In Coutin, the First Circuit explainedthat the meaning of "results obtained" includes (1) "a plaintiff'ssuccess claim by claim"; (2) "the relief actually achieved"; and (3) "thesocietalPage 17importance of the right which has been vindicated." Id. Based on itsanalysis of these three factors, the Court concludes that adjustment tothe lodestar is appropriate.

The Court first considers the substantial importance of the rightsprotected by the FLSA, which was passed "to aid the unprotected,unorganized and lowest paid of the nations's working population; thatis, those employees who lacked sufficient bargaining power to secure forthemselves a minimum subsistence wage." Brooklyn Sav. Bank v. O'Neil,324 U.S. 697, 707 n.18 (1945) (citing FLSA legislative history). FLSAcases thus involve rights that are important in themselves, and Congresshas implicitly made a judgment that FLSA suits are likely to lead tochanges in an employer's practices that have effects beyond the immediatesuit. See id. at 706-07 & nn.17-18. Mogilevsky, having prevailed oncertain of his claims, is thus entitled to a substantial fee award underthe FLSA.

As Bally points out, however, Mogilevsky failed to prove his claim for1,402.5 hours of unpaid floor time and 287 hours of overtime based on thecontention that he had accumulated that number of personal trainingcoupons. Def.'s FLSA Opp'n at 14. He also failed to prevail on his statelaw claim for unpaid wages, his breach of contract claim for hours workedbefore May 18, 1999, and his contract claim for a higher rate of vacationpay. Id. Finally, by failing to prove willfulness on Bally'sPage 18part, Mogilevsky failed to obtain the three-year FLSA statute oflimitations. Def.'s FLSA Opp'n at 14.

Mogilevsky concedes that he did not prevail in these matters and,although these claims are somewhat interrelated with those on which hedid succeed, he proposes adjustments to the fees on this basis. Heproposes a reduction of 100.0 hours for those claims on which he was notsuccessful, plus a reduction of 10% of the net fee claimed after allother deductions. Add. D. at 1-3.

The Court, having considered both parties' arguments, determines that areduction of 15.0% of the lodestar amount is appropriate in light ofMogilevsky's limited success in this case.

iii. Excessive Hours

As Bally points out, "[d]espite the complicated chalks and chartsdesigned by Mogilevsky and his counsel, this was a simple matter.Mogilevsky alleged that he had worked thousands of hours for which he wasuncompensated or shortchanged, and Bally denied those claims." Def.'sFLSA Opp'n at 15. In total, there were five depositions, none of whichrequired more than half a day, and all of which were completed in lessthan twelve hours in the aggregate. Id. at 15-16. There was limited paperdiscovery, some mediation, one discovery dispute (decided by this Courton the papers), no summary judgment motion filed, and a four-dayjury-waived trial. Id.Page 19

Shapiro begins with a request of $162,373.00. Add. D. at 1. Then hereduces this amount by $69,707.17 to arrive at his net request of$92,465.83. Id. at 1-3. Shapiro's calculations, however, sidestep theunavoidable fact that expenditure of 830 hours of effort on a case ofthis level of complexity is excessive. The Court, therefore, in theexercise of its discretion, must evaluate the time spent in this case anddetermine a reasonable number of hours to allow for each category of workperformed. Shapiro's affidavit breaks the time into numerous categories,which the Court has carefully evaluated before making the adjustmentsshown below: FLSA ACTION REQUESTED ALLOWED CATEGORY OF WORK PERFORMED HOURS HOURS Research and Drafting Complaints 47.9 47.9 Additional Research 24.6 0.0 Conferencing with Client and Opposing 40.0 20.0 Attorney Document Review and Analysis 39.4 24.0 Preparation and Evaluation of 37.5 20.0 Statistical Data, Tables, and Chalks Scheduling, Pre-trial, and Settlement 22.4 22.4 Conferences Depositions 79.3 79.3 Discovery (Excluding Depositions) 60.9 60.9 Mediation and Settlement 68.7 68.7

Preparation of Joint Pre-trial 40.4 40.4 Memorandum; Computation and Negotiation of StipulationsPage 20

Trial Memorandum and Proposed and 48.6 48.6 Supplementary Findings of Fact Evaluation and Assembly of Exhibits 13.6 13.6 and Exhibit Books Trial Preparation 79.4 40.0 Trial 16.5 16.5 Post-Trial Analysis & Submissions 99.9 40.0 Motion to Alter or Amend Judgment 20.4 0.0 Application for Attorney's Fees 61.0 30.0 Miscellaneous 14.1 0.0 Paralegal Time -5.0 -5.0 Total: 809.6 567.3

The award for the FLSA Action is calculated as the product of the 567.3allowed hours and the allowed hourly rate of $175. This yields a lodestarof $99,277.50 before further adjustments. The lodestar is then reduced bythe adjustments for continuing the litigation beyond the point of theRule 68 Offer (19.15%) and for achieving limited success (15.0%),resulting in a 34.15% total reduction of the fee. This results in anadjusted award of $65,374.23.

In addition, Mogilevsky claims $2,574.94 in costs after adjustments and$200.00 for five hours of paralegal time. The Court approves both ofthese charges in full. Thus, Mogilevsky'sPage 21total recovery for the FLSA Action is $68,149.17, including costs.5

b. The Discrimination Action

In the Discrimination Action, Mogilevsky seeks attorney's fees of$145,606.00. Shapiro Discrim. Aff., Add. E at 1. Bally argues that theCourt should limit its award to $41,972.37. Def.'s Discrimination Opp'nat 20.

In support of his motion, Mogilevsky first argues that his recovery of$70,000 was "substantial, especially in light of his re-employment inAugust 2002, and his annual compensation." P1.'s Discrimination Mem. at10. Further, Bally agreed to indemnify Mogilevsky against any attempt bythe Division of Employment and Training to recover all or a portion ofthe $35,000 in benefits that he had received while unemployed. Id. at10-11. Thus, the total value of the settlement was $105,000, whichexceeded the amount that Mogilevsky would have earned from Bally duringthe period of his unemployment. Id. at 11. Additionally, Mogilevskycorrectly points out that courts must consider "the societal importanceof the vindicated right" when determining the reasonableness of anattorney's fee petition. Id. at 12.Page 22

While Mogilevsky's substantial recovery precludes reduction of hisattorney's fee award on the basis of "limited success," Bally maintainsthat the fee Mogilevsky is requesting is "patently unreasonable whencompared to awards on matters in this district that went to trial."Def.'s Discrim. Opp'n at 11. Bally cites numerous cases in support of itscontention that Mogilevsky's fee request is "far off base": • Alfonso v. Aufiero, 66 F. Supp.2d 183 (D. Mass. 1999) (Saris, J.). The Court awarded plaintiffs $129,903 in fees in a "contentious civil rights action against the City of Somerville . . . and eight of its police officers." Id. at 188. The case was tried to a jury for twelve days. Id. at 190. After seven days of deliberations, the jury returned a verdict, but post- trial motions and "wrangling" occupied the parties and court until the case ultimately settled months later during a conference with the court. Id. at 189-90. • Connolly v. Harrelson, 33 F. Supp.2d 92 (D. Mass. 1999). This Court awarded plaintiffs $79,949.41 in fees after a civil rights trial. Id. at 99. • Wilson v. McClure, 135 F. Supp.2d 66 (D. Mass. 2001). This court awarded plaintiffs $58,195.41 in fees after the trial of the plaintiffs' claims of racial discrimination. Id. at 74. • Daviqnon v. Clemmey, 176 F. Supp.2d 77 (D. Mass. 2001), vacated in part, 322 F.3d 1 (1st Cir. 2003). This Court awarded $81,375.00 in fees, a holding that was not disturbed on appeal, in a Massachusetts civil rights matter that was tried to a jury and resulted in a jury verdict of $4,850,000.00. Id. at 98. After the verdict, defendants filed motions for new trial, remittitur, and enforcement of an earlier agreement for judgment. Id.Def.'s Discrim. Opp'n at 11-12. In light of the straightforward nature ofthe claims in this matter, the limited proceduralPage 23history, and the fact that the case settled before empanelment ofthe jury, this Court finds that the hours worked on this case wereexcessive and that a substantial reduction is warranted. As with the FLSAcase, the Court has carefully evaluated the filings before making theadjustments shown below:DISCRIMINATION ACTION REQUESTED ALLOWEDCATEGORY OF WORK PERFORMED HOURS HOURS

Research and Drafting Complaints 90.6 40.0

Conferencing with Client and OpposingAttorney 28.1 20.0

Document Review and Analysis 20.5 10.0

Scheduling, Pre-trial, and SettlementConferences 13.5 13.5

Depositions 95.0 40.0

Discovery (Excluding Depositions) 97.7 40.0

Summary Judgment Practice 84.3 84.3

Mediation and Settlement Practice 55.3 55.3

Preparation of Jury Instructions andSpecial Questions, Related Research 51.4 20.0

Preparation of Joint Pre-trialMemorandum Preparation; Computationand Negotiation of Stipulations 30.8 30.8

Evaluation and Assembly of Exhibitsand Exhibit Books 14.1 14.1

Trial Preparation 63.0 40.0

Application for Attorney Fee's 57.0 30.0

FLSA-Related Discrimination Entries 34.1 0.0

Miscellaneous 12.0 0.0

Total: 747.4 438.0

Page 24 The award for the discrimination action is calculated as the product ofthe 438.0 allowed hours multiplied by the allowed hourly rate of $175.This results in an award of $76,650.00. In addition, Mogilevsky documents$5,172.07 in costs, which the Court has reviewed and approves in full.Thus, Mogilevsky's total recovery for the discrimination action is$81,822.07, including costs.

B. Interest on Awards

A final matter remains concerning whether interest on either of theseattorney's fee awards may already be due under 28 U.S.C. § 1961(a),which provides that "[i]nterest shall be allowed on any money judgment ina civil case recovered in a district court."

There are often two distinct judgments in civil rights cases. Thefirst, known as the "merits judgment," grants the prevailing party theright to recover attorney's fees. The second, known as the "exact quantumjudgment," defines the precise amount of the fee award. See Nick J.Kemphaus & Richard A. Bales, Interest Accrual on Attorney's Fee Awards,23 Rev. Litig. 115, 116 (2004). The circuits are split as to wheninterest on an attorney fee award begins to accrue, with the Fifth,Sixth, Eighth, Ninth, Eleventh, and Federal Circuits holding thatinterest begins to accrue under section 1961(a) from the date of themerits judgment, and the Third, Seventh, andPage 25Tenth Circuits holding that interest begins to accrue on the date of theexact quantum judgment. Id. at 116-17 (collecting cases). In Foley v.City of Lowell, 948 F.2d 10 (1st. Cir. 1991), the First Circuit held that"if an attorneys' fee award is incorporated in a final judgment, ashere, interest will thereafter accrue on the amount of the award." Id. at21. It did not, however, reach the question whether "postjudgementinterest begins to accrue from the date a judgment expressly andunconditionally establishing a party's right to attorneys' fees isentered or from the date of a judgment that establishes the quantum ofsuch fees," because the judgment at issue in Foley did not mentionattorneys' fees and the statute governing their award was permissiverather than mandatory. See id. at 22 & n.16; see also 42 U.S.C. § 1988(stating that a court "in its discretion, may allow the prevailing party. . . a reasonable attorney's fee as part of the costs." (emphasisadded)). Thus, entry of the merits judgment in Foley did not"unconditionally establish" a right to attorney's fees.

In the FLSA Action, in contrast to Foley, the statutes authorizing feesare not discretionary; therefore, the right to recover attorney's fees inthat case was unconditionally established upon entry of the meritsjudgment. See 29 U.S.C. § 216(b) ("The court . . . shall, in addition toany judgment awarded to the plaintiff or plaintiffs, allow a reasonablePage 26attorney's fee to be paid by the defendant, and costs of the action."(emphasis added)); Mass. Gen. Laws ch. 149, § 150 ("An employee . . . whoprevails . . . shall be entitled to an award of the costs of thelitigation and reasonable attorney fees." (emphasis added)).6Moreover, in the Discrimination Action, the Agreement for Judgmentexplicitly calls for Bally to pay "costs and reasonable attorney's feesto be assessed by the Court." Agreement for Judgment [Doc. No. 50 inCiv. Action No. 01-11749] at 1. Consequently, this Court must reach theissue of when interest on attorney's fees should begin to accrue.

Two recent cases typify the split in authority on this issue. In thefirst case, Eaves v. County of Cape May, 239 F.3d 527 (3d Cir. 2001), theplaintiff prevailed in her Title VII claim for employment discriminationand retaliation in a trial to a jury. On August 11, 1998, the districtcourt entered judgment on the jury verdict in her favor, "together withattorney's fees and costs in an amount to be determined pursuant to Rule54(d), Fed.R. Civ. P." Id. at 528. More than sixteen months later, onJanuary 27, 2000, the district court resolved the motion for attorney'sfees that had been pending and held that interestPage 27would accrue as of the August 11, 1998 judgment, which it amended toincorporate the quantification of the fee award and its ruling thatinterest was to run as of the date of the first judgment. Id. at 528-29.The Third Circuit reversed.

Although it acknowledged that the "`majority view' . . . is thatpost-judgment interest on an attorney's fee award runs from the date thatthe district court enters a judgment finding that the prevailing party isentitled to such an award," id. at 531, the Third Circuit believed thatdecisions adopting this view "ignore a textual analysis of § 1961(a)and, instead base their result on policies they find to underliepost-judgment interest and attorney's fee awards." Id. at 532. For theThird Circuit, the correct answer is dictated by the text of section1961(a) and by case law interpreting the term "money judgment." Id. TheCourt considered the language of section 1961(a), which states that"[i]nterest shall be allowed on any money judgment" followed by "interestshall be calculated from the date of . . . judgment." Ruling that thejudgment referred to in the second clause is the "money judgment"specified in the first, the Court held that, by the terms of section1961(a), "post-judgment interest does not begin to run until the districtcourt enters the judgment at issue, i.e., the `money judgment.'" Kemphaus& Bales, supra, at 124 (quoting Eaves, 539 F.3d at 532;28 U.S.C. § 1961(a)).Page 28

On the other hand, the Sixth Circuit recently examined the question anddetermined that the point where interest on an attorney's fees awardbegins to accrue is the date of the merits judgment. Associated Gen.Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482 (6th Cir. 2001). InDrabik, the plaintiff sued the Director of the Ohio Department ofAdministrative Services pursuant to 42 U.S.C. § 1983, alleging that theOhio Minority Business Enterprise Act, which provided for set-asidebidding for minority-owned businesses, was unconstitutional. Id. at 483.On November 3, 1998, the district court entered judgment granting therelief sought and approving the plaintiff's request for attorney's fees.Id. Subsequently, on October 13, 1999, the court granted the plaintiff'smotion for fees in the amount of $113,915.48, and in a ruling issued onJanuary 5, 2000, the district court held that interest on the attorney'sfees accrued from November 3, 1998, the date of the merits judgment. 484.

On appeal, the Sixth Circuit affirmed, holding that "a judgment thatunconditionally entitles a party to reasonable attorney fees is the`money judgment' contemplated by § 1961." Id. at 90. The Sixth Circuitruled that, in drafting section 1961, "Congress used the term `moneyjudgment' in its commonly understood sense of the judgment on a verdict."Id. at 494 (citing Eaves, 239 F.3d at 535 ("[T]he phrase `money judgment'Page 29commonly refers to a judgment entered upon a jury verdict.")). Itreasoned that "[i]f interest does not accrue from the time a partybecomes entitled to such fees, the losing party has every reason to delayquantification of the fees." Id. at 494. To deny plaintiffs the right tointerest during the potentially lengthy period prior to suchquantification would unfairly prejudice them and unfairly benefit losingparties, who would retain the use of the money during the interim periodwithout being required to pay its value. Id. at 495. On the other hand,requiring the losing party to pay interest on the award from the time ofthe merits judgment works no prejudice since that party has the use ofthe funds during the intervening period between the merits judgments andthe judgment fixing the amount of the fees. Id.

This Court rules that the view persuasively espoused in the SixthCircuit's opinion in Drabik is the correct one. The Court therefore holdsthat interest on the awarded attorney's fees and costs in each of theseactions shall accrue as of the date of the underlying merits judgmentspursuant to 28 U.S.C. § 1961(a). For the FLSA Action, that date is May15, 2003 [Doc. No. 57 in Civ. Action No. 01-11240], and for theDiscrimination Action, that date is May 12, 2003 [Doc. No. 46 in Civ.Action No. 01-11749].


For the reasons expressed above, Mogilevsky's motions for attorney'sfees and costs [Doc. 59 in Civ. Action No. 01-11240, Doc. No. 59 in Civ.Action No. 01-11749] are ALLOWED as modified by the Court.

The total amount allowed for the FLSA Action is $68,149.17, includingcosts. Interest on this amount shall be calculated from May 15, 2003 atthe legal rate in effect on that date (1.23%).7 The total amountallowed for the Discrimination Action is $81,822.07, including costs.Interest on this amount shall be calculated from May 12, 2003 at thelegal rate in effect on that date (1.23%). Bally is, therefore, orderedto pay Mogilevsky $149,971.24 plus accrued interest.


1. There are a couple of instances where virtually identicalaffidavits were submitted in the two cases. The Court will generallytreat such twin affidavits as one document for short-form citationpurposes.

2. Shapiro requests an hourly rate of $150 for the time he spent inpreparing the fee petitions in these cases. Because the Court selects$175 as a harmonized rate, it will use that rate for both the allowablefee petition hours and the other work performed by Shapiro.

3. The actual total shown is 830.12 hours, with all amounts calculatedin increments of one-hundredth of an hour. Shapiro FLSA Aff., Add. D at1. While the Court acknowledges the importance of attorneys' providingdetailed accounts of time spent and appreciates this level of granularity(which amounts to increments of thirty-six seconds), in light of theapproximate nature of the equitable adjustment to be made to this total,the Court has rounded all entries to the nearest one-tenth of an hour(which amounts to increments of six minutes).

4. For an example of a swift congressional overruling of a SupremeCourt interpretation of a statute, compare Finley v. United States,490 U.S. 545, 555-56 (1989), which held that the Federal Tort ClaimsAct, 28 U.S.C. § 1346(b), did not permit exercise of pendent-partyjurisdiction over additional parties as to which no basis for federaljurisdiction existed, with the Judicial Improvements Act of 1990, Pub.L.No. 101-650, 104 Stat. 5089, which amended 28 U.S.C. § 1367 to overruleFinley.

5. The Court notes that under Rule 68, Bally is entitled to costs ithas incurred after making its offer to Mogilevsky. Because Bally has notsubmitted a Bill of Costs, however, the Court does not address the matterin this Memorandum and Order.

6. The Massachusetts fee-shifting statute is relevant to this analysisin that a plaintiff "who prevails on congruent federal and state claimsand qualifies for fee-shifting under two or more statutes may recoverfees under whichever fee-shifting regime she chooses." Coutin, 124 F.3dat 342 (citing Freeman v. Package Machine Co., 865 F.2d 1331, 1347 (1stCir. 1988)).

7. See 28 U.S.C. § 1961(a).Page 1

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