Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 1 of 9 PageID #: 3654
`
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`CLAUDIA GAYLE, Individually, On Behalf
`:
`of All Others Similarly Situated and as Class
`:
`Representative,
`
`
`
`
`:
`
`
`
`
`
`
`
`:
`
`
`
`
`
`Plaintiff,
`:
`
`
`
`
`
`
`
`:
`
`
`- against -
`
`
`
`:
`
`
`
`
`
`
`
`:
`HARRY’S NURSES REGISTRY, INC., and
`:
`HARRY DORVILIER,
`
`
`
`:
`
`
`
`
`
`
`
`:
`
`
`
`
`
`Defendants.
`:
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`
`
`
`07 Civ. 4672 (NGG) (PK)
`
`
`
`
`
`
`
`PLAINTIFFS’ REPLY MEMORANDUM OF LAW
`IN FURTHER SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND COSTS
`
`
`
`
`
`
`
`
`
`
`
`ISAACS BERNSTEIN, P.C.
`2108 Yardley Road
`Yardley, Pennsylvania 19067
`(917) 693-7245
`
`
`
`
`
`Of Counsel:
`
`
`Jonathan A. Bernstein
`
`
`

`

`Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 2 of 9 PageID #: 3655
`
`
`
`
`
`PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN FURTHER
`SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND COSTS
`
`
`I. Defendants’ Contention that Fee-Shifting Does Not Apply to Its Motion to Reopen
`
`the Case Is Mistaken and Ignores the Law of this Case
`
`
`Defendants argue that, since liability for unpaid overtime premium pay was adjudicated
`
`years ago and the appeal on which this fee application is based was of a collateral issue, 29 U.S.C.
`
`§ 216(b) and the American Rule preclude an award of fees. In other words, argue Defendants,
`
`Plaintiffs are not entitled to a fee award for hours expended on the successful defense of an FLSA
`
`appeal if the appeal is of something other than the employer’s liability for overtime. That argument
`
`is wrong for several reasons.
`
`First, once a plaintiff is determined to be a prevailing party on the merits of a fee-shifting
`
`claim, she is entitled to an award of attorneys’ fees for all work done on appeal or in monitoring
`
`and enforcing the judgment. It is irrelevant that the merits of the claim were adjudicated earlier in
`
`the litigation. Accordingly, in Quaratino v. Tiffany & Co., 166 F.3d 422, 428 (2d Cir. 1999), the
`
`Second Circuit awarded attorneys’ fees under Title VII’s fee-shifting provision for services
`
`rendered in connection with the appeal of the district court’s fee calculation. That is, the cited
`
`Quaratino appeal concerned the fee question only; it did not concern the pregnancy discrimination
`
`that impelled the lawsuit in the first instance (which was the subject of Quaratino v. Tiffany & Co.,
`
`71 F.3d 58 (2d Cir. 1995)).
`
`Second, it is the law of this case that fees for work defending appeals of collateral matters
`
`are awardable pursuant to Young v. Cooper Cameron Corp., 586 F.3d 201, 208 (2d Cir. 2009). On
`
`July 31, 2020, this Court awarded fees for services rendered in connection with the successful
`
`
`
`1
`
`

`

`Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 3 of 9 PageID #: 3656
`
`
`defense of the “double-dipping appeal,” in which Defendants sought sanctions against Plaintiff’s
`
`counsel for allegedly having failed to remit the full judgment amounts to his clients. ECF No. 280.
`
`Judgment for overtime wages had been awarded by this Court in 2012 and affirmed by the Second
`
`Circuit in 2014. The Supreme Court denied certiorari in 2015. It was not until 2017 that Defendants
`
`advanced the “double-dipping” allegations. Id. at 4. Neither the “double-dipping” appeal nor the
`
`defense of that appeal pertained directly to liability for overtime pay. Attorney fees for successful
`
`defense of the appeal were awarded nevertheless.
`
`Similarly, it is law of the case that Plaintiffs’ counsel is entitled to a fee award for services
`
`rendered in connection with enforcement of a judgment for overtime premium pay. In 2015, this
`
`Court determined that Plaintiff’s counsel’s time so spent was reasonable and compensable. ECF
`
`No. 225 at 5. That is, attorneys’ fees for services rendered in connection with procurement of the
`
`overtime judgment were awarded in 2013. Id. at 1-2. The 2015 fee award was for post-judgment
`
`legal work: “enforcing the district court judgment, … communicating various matters to the
`
`approximately 50 individual Plaintiff opt-ins [and] making the instant fee application.” Id. at 5.
`
`Third, as to Defendants’ public-policy contentions: Congress has abrogated the American
`
`Rule in FLSA cases. 29 U.S.C. 216(b). That abrogation reflects a Congressional judgment that
`
`working people are entitled to their full wages with liquidated damages (if they must sue to recover
`
`those wages) and should not have to pay attorneys’ fees, which are typically unaffordable to the
`
`average worker. E.g., Roofers Local 307 v. G & M Roofing & Sheet Metal Co., 732 F.2d 495 (6th
`
`Cir. 1984). It would make no sense to force those same workers to pay out attorneys’ fees to defend
`
`those wages against collateral attacks.
`
`
`
`
`
`2
`
`

`

`Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 4 of 9 PageID #: 3657
`
`
`II. Claudia Gayle Filed Her Consent to Be a Party to This Collective Action in 2008
`
`Defendants urge that no fee award is proper in this case because Claudia Gayle, the lead
`
`plaintiff, purportedly did not consent to be a party to this collective action. Defendants offer no
`
`authority for the proposition that that alleged procedural defect vitiates Plaintiffs’ status as
`
`prevailing parties. More to the point, Claudia Gayle did file her consent with this Court in 2008
`
`(more than six months before the collective action was certified).
`
`On August 15, 2008, Claudia Gayle filed her affidavit in support of her cross-motion for
`
`summary judgment and to authorize notice of a collective action pursuant to 29 U.S.C. § 216(b).
`
`ECF No. 33; Ex. 4. In that Affidavit, she stated under oath that
`
`I am the plaintiff in this action. I make and submit this affidavit …
`in support of my cross-motion to authorize notice of this action. . . .
`I believe that most of the field nurses employed by defendants are
`unaware that the pay practice [described in this affidavit] is
`unlawful, that many, if not most, of them lack the resources to hire
`private counsel to prosecute a lawsuit on their behalf and that, if
`given the opportunity, they would opt in to the above-captioned
`lawsuit.
`
`
`Id. ¶¶ 1, 8.
`
`The FLSA does not prescribe a particular form by which a person consents to join an
`
`FLSA collective. Mendez v. Radec Corp., 260 F.R.D. 38, 52 (W.D.N.Y. 2009). A consent form
`
`is sufficient where it clearly manifests the individual’s consent to become a party plaintiff to the
`
`litigation. Id. (named plaintiff’s signed declaration in support of collective action notice and Rule
`
`23 certification held sufficient to satisfy Section 216(b) notwithstanding failure to file formal
`
`consent). It is respectfully submitted that Exhibit 4 manifests Ms. Gayle’s consent to become a
`
`party plaintiff.
`
`
`
`3
`
`

`

`Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 5 of 9 PageID #: 3658
`
`
`
`Defendants misconstrue the language of Section 216(b) providing that “[n]o employee
`
`shall be a party plaintiff to any such action unless he gives his consent in writing to become such
`
`a party and such consent is filed in the court in which such action is brought.” “Such,” in the
`
`quoted sentence, refers to the collective actions created by the immediately preceding sentence of
`
`Section 216(b), not to individual actions. The quoted language does not mean that the lawsuit is a
`
`nullity unless the named plaintiff files a consent form and the complaint simultaneously; it means
`
`only that no person can be a party to a collective action unless that person has filed his or her
`
`consent. In fact, first-stage certification of a collective action (for which Ms. Gayle moved and
`
`perforce consented in August 2008) was ordered by Judge Sifton on March 9, 2009 (Dkt. No. 53
`
`at 28).
`
`
`
`III. Defendants Identify No Reason That the Lodestar/Presumptively Reasonable Fee
`
`Should be Reduced
`
`
`Defendants allege that “the Second Circuit Court of Appeals rejected the jurisdictional
`
`arguments raised by Plaintiffs’ counsel in reaching its decision.” In fact, the Court of Appeals’
`
`Order and Mandate says that:
`
`[Defendants-]Appellants move for leave to file a late appellate brief
`and for leave to file a sur-reply regarding the [Plaintiffs-]Appellees’
`motion to dismiss. Appellees cross-move to dismiss the appeal for
`lack of jurisdiction … Upon due consideration, it is hereby
`ORDERED
`that Appellants’ motion to file a sur-reply
`is
`GRANTED. It is further ORDERED that Appellees’ motion to
`dismiss the appeal is also GRANTED. To the extent that Appellants
`seek to challenge the 2012 and/or 2013 judgments, this Court lacks
`jurisdiction; the time to file a notice of appeal challenging those
`judgments has long since elapsed. (Citation omitted.)
`
`To the extent that the Appellants seek to challenge the district
`
`
`
`4
`
`

`

`Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 6 of 9 PageID #: 3659
`
`
`
`court’s May 2021 order denying their motion to reopen the action,
`this Court has jurisdiction, but the appeal is dismissed as frivolous.
`
`Ex. 1 at 1-2. This hardly qualifies as a rejection of Plaintiffs’ jurisdictional arguments.
`
`Defendants contend that the Court of Appeals “rejected” Plaintiffs’ distinction between
`
`procedural and substantive orders and determined that the arguments lacked merit. Apparently, the
`
`basis for this contention is that the terse order quoted above does not say in so many words that
`
`the Court of Appeals adopted the distinction. In any event, it is unclear why this purported fact
`
`should operate to reduce the lodestar/presumptively reasonable fee. The relevant inquiry is
`
`whether, at the time the work was performed, a reasonable attorney would have engaged in similar
`
`time expenditures. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992).1 Surely Defendants do not
`
`contend that Plaintiffs’ counsel should have ignored the Second Circuit’s directive to brief the
`
`issue. In any event, Defendants do not contend that the time spent briefing the issue was excessive.
`
`
`
`IV.
`
` Defendants’ Other Contentions Are Without Merit
`
`A. The Pro Se Contention
`
`Harry’s Nurses Registry, Inc. is a corporation. It cannot appear pro se. Its attempts to do so
`
`were repeatedly rejected. E.g., ECF No. 75. If Mr. Dorvilier believes that his former attorneys
`
`
`1 The Court of Appeals, rather than decide Plaintiffs’ motion to dismiss in the first instance,
`requested briefing on the jurisdictional question in light of Yonkers Bd. of Education. Plaintiffs
`supplied a memorandum. Ex. 5. That memorandum noted that, as a consequence of the
`procedural/substantive distinction announced in Yonkers Bd. of Educ., the Court had no
`jurisdiction to entertain challenges to the various issues that had been decided or waived in earlier
`litigation. Plaintiffs had already asserted in their moving papers that the issue purportedly appealed
`(the correctness of this Court’s Order refusing to reopen the case) had been forfeited because
`Defendants did not brief it. Ex. 6 at 6-7.
`
`
`5
`
`
`
`

`

`Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 7 of 9 PageID #: 3660
`
`
`ought to have advanced his contentions in this Court, his remedy is malpractice, not appeal.
`
`B. The Hourly Rate Contention
`
`Defendants contend that fees should be awarded at the rate previously approved by this
`
`Court. Defendants appear unaware that on this motion Plaintiffs seek $350 per hour, which is the
`
`rate previously approved by this Court. Moving MOL at 9-10.
`
`C. The “Plaintiffs’ Counsel Should Not Have Read Harry’s Brief” Contention
`
`Defendants contend that Plaintiffs’ counsel should somehow have known that their 95
`
`pages of briefing were
`
`not filed to provide the legal basis for granting the Appeal, but rather
`was provided to call attention to substantive errors that Defendant
`believes had been made by the District Court and Second Circuit
`Court of Appeals in issuing their FLSA wage and compensation
`judgments. … A detailed review of said briefing while of interest
`and informational to those taking the time to review same, was
`clearly presented as a document that was suitable for optional review
`in the discretion of the reviewer and was strictly relevant to the issue
`raised on appeal as to whether the case status designation should be
`changed from “closed” to “open.”
`
`Affirmation of George A. Rusk ¶ 16(d). Mr. Rusk does not explain why it was merely optional for
`
`appellate counsel to review briefing that was “strictly relevant to the issue raised on appeal.” To
`
`the extent that Mr. Rusk asserts that it was clear that such review was merely optional, he does not
`
`indicate how Plaintiff’s counsel should have divined this -- especially since it is contradicted by
`
`the Brief itself.
`
`The Preliminary Statement to the Brief states that
`
`The purpose of this appeal is to set the record straight on what can
`only be aptly referred to as “bad law” that currently remains on
`record in the Second Circuit dockets; to do so, Defendants ask that
`a series of court decisions be corrected because the decisions
`
`6
`
`
`
`
`
`

`

`Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 8 of 9 PageID #: 3661
`
`
`
`currently on record are not supported by law and cannot be allowed
`to stand….[T]here are no less than ten (10) separate, valid reasons
`to reopen this case.” (Emphasis in original.) 2 It is Defendants’
`position that these ten (10) reasons are not only legally valid but they
`clearly demonstrate that the “litigation to judgment” by EDNY and
`the Second Circuit was far from conclusive, was not supported by
`applicable federal and state law and DID NOT reach just verdicts
`that properly addressed the merits of federal employment law and
`personal liability and criminal liability law that are at the heart of
`this case.
`
`Ex. 7 at 7. The “Concise Factual and Procedural Background” section of the Brief stated:
`
`Defendants seek a ruling that the “litigation to judgment” rendered
`in the instant case to date is flawed and must be re-examined and
`corrected because it either ignored or failed to properly consider
`substantive, applicable legal precedent and case law; and the
`egregious nature and extent of the legal errors in this case point to
`the need for a fundamental, in-depth assessment and overhaul of the
`second circuit pro se program - to ensure that such errors are not
`repeated in the future.
`
`Id. at 9. Otherwise stated, Mr. Rusk represented to the Court of Appeals that the case should be
`
`reopened on the basis of the matters raised in his brief, but he now represents to this Court that
`
`familiarity with the matters raised in his brief was “optional” for the Court and the opposing party.
`
`D. The Satisfaction of Judgment Contention
`
`Defense counsel insists, notwithstanding his admission that the true motive of his attempt
`
`to have the case reopened was to facilitate his motion to move this case to the Panel on Multidistrict
`
`Litigation for the purpose of revisiting the well-settled body of FLSA law, that the primary motive
`
`of his attempt to reopen the case was for the purpose of demanding satisfaction of judgment.
`
`Defense counsel appears unaware that that can be done even when a case is closed – and has been
`
`
`2 Those ten reasons are recounted at Footnote 1 of the Rusk Affirmation.
`7
`
`
`
`

`

`Case 1:07-cv-04672-NGG-PK Document 309 Filed 05/09/22 Page 9 of 9 PageID #: 3662
`
`
`done in this case.
`
`E. The “Time Spent Reviewing Administrative Orders” Contention
`
`Defense counsel contends that a fee award for time spent reviewing administrative orders
`
`should be limited to 30 minutes. However, he does not identify any specific time entries he believes
`
`to be excessive. In fact, the fee application seeks an award for only 18 minutes so spent (0.2 hours
`
`on June 29, 2021; 0.1 hours on October 4, 2021). Ex. 2.
`
`
`
`CONCLUSION
`
`For the foregoing reasons, Plaintiffs request an award of reasonable attorneys’ fees in an
`
`amount of $18,043.00 and an award of taxable costs in the amount of $55.61.
`
`Dated: Yardley, Pennsylvania
`May 5, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`ISAACS BERNSTEIN, P.C.
`
`By: ______/s/______________________
`
`2108 Yardley Road
`Yardley, PA 19067
`(917) 693-7245
`jb@lijblaw.com
`Attorneys for Plaintiffs
`
`
`
`8
`
`