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Case 1:05-cv-08560-GBD-GWG Document 67 Filed 01/12/2009 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DO YEA KIM,

Plaintiff,

-against-

167 NAIL PLAZA, INC., ET AL.,

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Defendant.




DECISION AND ORDER
05 CV 8560 (GBD) (GWG)


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GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:

Plaintiff Do Yea Kim filed two unopposed motions to amend the judgment issued by this

Court after plaintiff obtained a jury verdict in her favor on October 26, 2007. Specifically,

plaintiff seeks attorneys’ fees and costs totaling $624,037.80, plus an award of pre-judgment

interest. Plaintiff’s motions were referred to Magistrate Judge Gabriel Gorenstein for a Report

and Recommendation (“the Report”). Magistrate Judge Gorenstein issued a report

recommending that plaintiff be awarded attorney’s fees and costs in the amount of $181,573.80

and that an award of pre-judgment interest be granted. This court adopts the Report’s

recommendations in their entirety.

This Court may accept, reject or modify, in whole or in part, the findings and

recommendations set forth within the Report. 28 U.S.C. § 636(b)(1) (2006). When parties

submit objections to a magistrate’s report, the Court must make a de novo determination of those

portions of a report to which objections are made. Id.; see also Williams v. Beemiller, Inc., 527

F.3d 259, 261-62 (2d Cir. 2008). A district judge may also receive further evidence from the

parties after reviewing a report or recommit the matter to the magistrate judge with further

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Case 1:05-cv-08560-GBD-GWG Document 67 Filed 01/12/2009 Page 2 of 4

instructions. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C) (2006). If the parties do not

submit objections, the Court may accept a report provided there is no clear error on the face of

the record. See Role v. Eureka Lodge No. 434, I.A. of M & A.W. AFL-CIO, 402 F.3d 314, 317

(2d Cir. 2005); see also Heisler v. Kralik, 981 F.Supp. 830, 840 (S.D.N.Y. 1997), aff’d 164 F.3d

618 (2d Cir. 1998).

This Court’s judgment issued after a jury trial included an award of reasonable costs and

attorneys’ fees pursuant to the Fair Labor Standards Act and New York Labor Law. See Do

Yea Kim v. 167 Nail Plaza, 2008 WL 2676598, at * 6 n. 4 (S.D.N.Y. July 7, 2008); see also 29

U.S.C. §216(b) (2006); N.Y. Lab. Law §§ 198(1-a), 663(1) (McKinney 2002). Plaintiff now

seeks compensation for approximately 1800 hours billed by the attorneys and paralegal

assistants who represented her in this action.

The Report details the “conscientious and detailed inquiry into the validity of the

representations that a certain number of hours were usefully and reasonably expended” in

plaintiff’s case. See Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). In conducting

that inquiry, Magistrate Judge Gorenstein noted that plaintiff’s case “was procedurally simple in

comparison with many wage or employment cases.” Report at 3. Moreover, plaintiff presented

no evidence in support of her fee application to justify the inexplicably large number of

attorneys in the courtroom at trial. Id. at 4. The magistrate judge also found that the time

records submitted in support of plaintiff’s application revealed “some questionable billing

entries, such as time billed for preparing for a post-verdict press conference and time billed to

negotiate a settlement on behalf of a plaintiff other than Kim.” Id. Consequently, the Report

recommends that the hours underlying plaintiff’s attorneys’ fees be reduced by 40%.

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Case 1:05-cv-08560-GBD-GWG Document 67 Filed 01/12/2009 Page 3 of 4

After evaluating the case-specific factors relevant to assessing reasonable billing rates

that were enumerated by the Second Circuit Court of Appeals in Arbor Hill Concerned Citizens

Neighborhood Ass’n. v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008), Magistrate Judge

Gorenstein recommended that this Court apply rates ranging from $150-200 to its calculation of

plaintiff’s attorneys’ fees, and a rate of $50 for paralegal assistants. Among the factors relevant

to that recommendation were the magistrate judge’s findings that: 1) “only one of the six

attorneys for whom compensation is being awarded, Steve Choi, has demonstrated any

experience in FLSA litigation” and 2) plaintiff provided no information regarding the

“experience reputation, and ability” of the remaining attorneys and paralegal assistants involved

in the representation. Report at 6-7; see also Arbor Hill, 522 F.3d at 186, n. 3 (citation omitted).

Plaintiff also seeks to obtain prejudgment interest on the overtime wages awarded on her

various state law claims. Magistrate Judge Gorenstein correctly determined that plaintiff is

entitled to pre-judgment interest on $12,783.10 in overtime wages at the rate of 9% per annum

from April 7, 2001 through the date that judgment is entered on plaintiff’s claim. Report at 9;

see also N.Y. Labor Law §§ 198(1-a), 5001(b) (2002); Yang v. ACBL Corp., 427 F.Supp.2d

327, 342 (S.D.N.Y. 2005) (fixing intermediate date to calculate pre-judgment interest where

damages were incurred on different dates). The Report further recommends that plaintiff

receive pre-judgment interest on $85,590 in damages on her retaliation claim from November

12, 2006 through the date that a final judgment is entered in her favor. Report at 9. This Court

finds that the magistrate judge’s calculation of pre-judgment interest is consistent with N.Y.

C.P.L.R. § 5001 and appropriate in light of the facts in this case.

In his Report, the magistrate judge advised the parties that failure to file timely

objections thereto would constitute a waiver of those objections. See 28 U.S.C. 636(b)(1)(A)

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