Rabetski v. Century Oaks of Appleton, Inc.

Filing 21

ORDER signed by Chief Judge William C. Griesbach on 6/5/18. Plaintiff's 13 MOTION for Attorney Fees and costs is GRANTED. Defendant shall pay Plaintiff's reasonable attorney's fees of $10,080.00 and costs of $401.60. This case is DISMISSED. The Clerk is directed to enter judgment. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TABETHA RABETSKI,
Plaintiff,
v.

Case No. 17-C-1453

CENTURY OAKS OF APPLETON, INC.,
Defendant.

DECISION AND ORDER

Plaintiff Tabetha Rabetski filed this action against Defendant Century Oaks of Appleton, Inc.,
alleging that Defendant failed to pay her regular and overtime pay as required under the Fair Labor
Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et seq., and Wisconsin’s wage and hour laws. The
parties have apparently reached a settlement, and Defendant has made a $1,025.00 payment to
Plaintiff. ECF No. 15-1 (letter from Defendant’s counsel regarding settlement). This matter now
comes before the court on Plaintiff’s motion for an award of attorney’s fees and costs. ECF No. 13.
Plaintiff filed her motion on May 3, 2018, and under Civil Local Rule 7(b) (E.D. Wis.), Defendant’s
response was due on May 24, 2018. Because Defendant has not filed a response, Plaintiff has asked
that the court proceed to decide the motion (ECF No. 20), noting that “[f]ailure to file a
memorandum in opposition to a motion is sufficient cause for the Court to grant the motion,” Civil
L.R. 7(d). For the reasons stated below, Plaintiff’s motion for an award of attorney’s fees and costs
will be granted.
The FLSA permits an award of attorney’s fees and costs to a prevailing plaintiff. 29 U.S.C.
§ 216(b) (“The court in such action 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 costs of the action.”).
“When a prevailing party is entitled to ‘a reasonable attorney’s fee,’ the district court must make that
assessment, at least initially, based on a calculation of the ‘lodestar’—the hours reasonably expended
multiplied by the reasonable hourly rate—and nothing else.” Johnson v. GDF, Inc., 668 F.3d 927,
929 (7th Cir. 2012) (citations omitted). Under limited circumstance, the court may adjust the
lodestar after performing the calculation. See, e.g., Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
554–56 (2010). Although the award of fees is mandatory, this court has “wide latitude” in
determining the amount of any award. Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 406 (7th Cir.
1999) (quoting Strange v. Monogram Credit Card Bank of Ga., 129 F.3d 943, 945 (7th Cir. 1997)).
“A plaintiff who has settled a case is considered a prevailing party if she has achieved some
success on the merits and can point to a resolution that has changed the legal relationship between
herself and defendant.” Connolly v. Nat’l Sch. Bus Serv., Inc., 177 F.3d 593, 595 (7th Cir. 1999);
see also Johnson, 668 F.3d at 929–30. The Seventh Circuit has held that, when considering whether
a settling plaintiff qualifies as a prevailing party, the court should consider “1) whether the lawsuit
was causally linked to the relief obtained, and 2) whether the defendant acted gratuitously, that is,
the lawsuit was frivolous, unreasonable or groundless.” Id. at 596 (quoting Fisher v. Kelly, 105 F.3d
350, 353 (7th Cir. 1997)). There can be no doubt that this lawsuit actually caused Defendant to
make the $1,025.00 payment to Plaintiff, and Defendant has not raised any argument that Plaintiff’s
claims were frivolous, unreasonable, or groundless. Accordingly, the court concludes that Plaintiff
is a prevailing party and will proceed to conduct the attorney’s fees analysis.
To calculate the lodestar, the court must first ascertain the reasonable hourly rate for
Plaintiff’s attorney’s services. Johnson, 668 F.3d at 929. “The determination of an attorney’s
2

‘[reasonable] hourly rate’ is to be based on the ‘market rate’ for the services rendered.” Spegon v.
Catholic Bishops of Chi., 175 F.3d 544, 554 (7th Cir. 1999) (citing People Who Care v. Rockford
Bd. of Educ., 90 F.3d 1307, 1313 (7th Cir. 1996)). Ultimately, “a fee applicant need only offer third
party affidavits attesting to billing rates that truly are comparable to meet her burden.” Pickett v.
Sheridan Health Care Ctr., 664 F.3d 632, 641 (7th Cir. 2011). In his declaration, Plaintiff’s counsel
states that he bills at the rate of $350.00 per hour for work performed on employment law cases such
as this one arising under the FLSA and Wisconsin law. ECF No. 15 ¶ 6. Plaintiff’s counsel has also
submitted declarations from his law partner and three additional attorneys who work for two
different firms; each attorney declares that he or she bills at the rate of $350.00 per hour for work
performed on this kind of employment law case. ECF No. 16 ¶¶ 3, 7; ECF No. 17 ¶¶ 3, 6; ECF
No. 18 ¶¶ 3, 6; ECF No. 19 ¶¶ 2, 6. Other courts in this district have recognized $350.00 per hour
as a reasonable hourly rate in FLSA cases. See Gibbs v. Sasta Bazaar, Inc., No. 17-cv-1268-pp,
2018 WL 2012921, at *2 (E.D. Wis. Apr. 30, 2018); Andrews v. Chevy Chase Bank FSB, 706 F.
Supp. 2d 916, 920–21 (E.D. Wis. 2010). Based on the affidavits presented by Plaintiff and those
other decisions in this district, the court concludes that $350.00 per hour reflects the reasonable
market rate for employment law matters similar to Plaintiff’s claims.
Having identified the reasonable hourly rate, the court must next determine whether
Plaintiff’s counsel reasonably expended 27.80 hours litigating this matter, as well as 1 hour preparing
this motion for an award of fees. Plaintiff’s counsel has submitted a copy of the invoice detailing his
firm’s allocation of time to this matter, which shows that he spent 27.20 hours working on this case
and his law partner spent 0.6 hours working on it. ECF No. 15-2. The brief in support of the
motion provides the following accurate summary of the invoice:
3

[A] total of 8.3 hours was spent drafting and filing the Complaint and related
initiating and service documentation; a total of 1.3 hours was spent reviewing
documentation relevant to Plaintiff’s FLSA and [Wisconsin Wage Payment and
Collection Laws] claims; a total of 0.1 hours was devoted to intra-office
communications; a total of 3.8 hours was spent reviewing Defendant’s Answer,
Defendant’s provided documentation, and drafting written discovery requests to
Defendant; a total of 2.0 hours was spent drafting the parties’ Rule 26(f) report,
communication with Defendant’s counsel regarding same, and filing same with this
Court; a total of 0.9 hours was spent drafting deposition notices to Defendant; a total
of 7.2 hours was spent communicating with Plaintiff; and a total of 0.9 hours was
spent communicating with Defendant’s counsel (primarily via e-mail).
ECF No. 14 at 5–6 (footnote omitted) (citing ECF No. 15-2). A review of the invoice itself
indicates that this expenditure of time was reasonable. The most substantial line items consist of 2.5
hours for an initial meeting with the client, 5.9 hours for work reviewing the file and preparing the
complaint, 2.9 hours of legal research, and 3.8 hours reviewing the file documents and preparing
discovery requests after receiving Defendant’s answer. ECF No. 15-2 at 1–2. All of those figures
seem like reasonable allocations of time for a case in the initial phases of litigation. None of the
smaller time entries—such as for email exchanges with Plaintiff or opposing counsel—strike the
court as unreasonable, either. Notably, the invoice does not contain gratuitous line items for
extensive legal research or discovery preparation in a case that ultimately settled.
Defendant’s letter to Plaintiff’s counsel regarding the settlement objected to the amount of
attorney’s fees incurred between November 21, 2017, and the February 8, 2018 date of the
settlement letter. ECF No. 15-1 at 2. But the Plaintiff’s expenditures during that period do not seem
to be unreasonable. Again, the two largest line-items during that period are 2.9 hours for legal
research on January 9, 2018, and 3.8 hours for reviewing the answer and drafting discovery
documents on January 15, 2018. Id. Both actions prior to the scheduling conference reflect
reasonable efforts to make initial preparations in the case. Notably, after the January 25, 2018
4

scheduling conference, Plaintiff’s counsel only expended a further 0.4 hours finalizing deposition
notices and 0.1 hours reviewing Defendant’s settlement letter. Id. at 3. The remaining line items
consist largely of correspondence and preparation for the scheduling conference; these actions were
neither excessive nor unreasonable. Consequently, the court finds that Plaintiff’s counsel reasonably
expended 27.80 hours litigating this matter.
Defendant’s February 8, 2018 settlement letter asserts that any hours expended by
Defendant’s counsel after that date would be presumptively unreasonable. ECF No. 15-1 at 2.
Plaintiff’s counsel, however, asserts that he reasonably expended an additional 1.00 hour preparing
this motion for attorney’s fees and the supporting brief. The Seventh Circuit has held that an
attorney may reasonably include an appropriate amount of time allocated to preparing the motion
as part of a request for fees. See Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 411 (7th Cir. 1999)
(first citing Ustrak v. Fairman, 851 F.2d 983, 988 (7th Cir. 1988); then citing Kurowski v.
Krajewski, 848 F.2d 767 (7th Cir. 1988)). The court concludes that a single hour reflects a
reasonable expenditure of time preparing a motion requesting attorney’s fees and costs in this matter.
Having concluded that Plaintiff’s counsel reasonably expended 27.80 hours litigating this
matter and 1.00 hour preparing the motion for attorney’s fees at the reasonable billing rate of
$350.00 per hour, the court calculates the loadstar as $10,080. In light of that calculation, the court
may adjust the lodestar to account for “factors including the complexity of the legal issues involved,
the degree of success obtained, and the public interest advanced by the litigation.” Schlacher v. Law
Offices of Philip J. Rotche & Assocs., P.C., 574 F.3d 852, 856–57 (7th Cir. 2009). But the court
“may not ‘eyeball’ and decrease the fee by an arbitrary percentage because of a visceral reaction that
the request is excessive.” Id. at 857.
5

The most obvious basis for the court to consider adjusting the lodestar is the potentially
disproportionate size of the of attorney’s fees award relative to the amount of Plaintiff’s recovery.
An award of $10,080.00 in attorney’s fees and $401.61 in costs would exceed Plaintiff’s $1,025.00
recovery by a factor of more than 10. The Seventh Circuit, however, has “rejected the notion that
the fees must be calculated proportionally to damages.” Anderson v. AB Painting and Sandblasting
Inc., 578 F.3d 542, 545 (7th Cir. 2009) (quoting Alexander v. Gerhardt Enters., Inc., 40 F.3d 187,
194 (7th Cir. 1994)). Indeed, the Seventh Circuit has approved an award for “a fee 21 times as great
as the damages that the plaintiff obtained.” Ustrak, 851 F.2d at 989. “And ‘[g]iven the nature of
claims under the FLSA, it is not uncommon that attorneys fee requests will exceed the amount of
the judgment in the case.” Heder v. City of Two Rivers, 255 F. Supp. 2d 947, 955 (E.D. Wis. 2003)
(quoted source omitted). Accordingly, the court sees no need to adjust the lodestar amount here
based on its size relative to Plaintiff’s recovery.
IT IS THEREFORE ORDERED that Plaintiff’s motion for an award of attorney’s fees and
costs (ECF No. 13) is GRANTED. Defendant shall pay Plaintiff’s reasonable attorney’s fees of
$10,080.00 and costs of $401.61.
IT IS FURTHER ORDERED that this action is DISMISSED. The Clerk is directed to
enter judgment accordingly.
Dated this 5th day of June, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

6