Wescher v. Chem-Tech International et al

Filing 154

ORDER signed by Judge Pamela Pepper on 1/3/2017 GRANTING 135 Plaintiff's motion for attorneys' fees and costs (cc: all counsel) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ROGER A. WESCHER,

Case No. 13-CV-229-PP

Plaintiff,
v.
CHEM-TECH INTERNATIONAL,
Defendant.
______________________________________________________________________________
ORDER GRANTING MOTION FOR ATTORNEYS’ FEES
AND COSTS (DKT. NO. 135)
______________________________________________________________________________
INTRODUCTION
The plaintiff, Roger Wescher, represented himself until the court partially
denied Chem-Tech’s motion for summary judgment. Dkt. No. 73. About a
month later, the court appointed counsel to represent him. Dkt. No. 75. The
Cross Law Firm accepted the appointment. Dkt. No. 76. Several members at
Cross Law Firm worked on the case: Katherine Holiday (lead counsel until her
maternity leave); Janice Pintar (until leaving the firm on July 8, 2015); Mary
Flanner (who succeeded Holiday and Pintar); and several law clerks and
paralegals. Dkt. No. 136 at 3. The results of the efforts of these lawyers was
that after a jury trial, the jury found in favor of the plaintiff and awarded him
back pay in the amount of $90,000. Dkt. No. 121. The court awarded the
plaintiff an additional equitable award of $81,949.33. Dkt. No. 152.

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The plaintiff now seeks an award of attorneys’ fees and costs. Dkt. No.
136. The plaintiff requests fees in the amount of $157,662.50, and costs of
$3,669.51. Id. at 1. The court finds that the plaintiff’s request is reasonable.
DISCUSSION
USERRA provides that a court may award fees and costs to the prevailing
party’s attorney. 38 U.S.C. §4323(h)(2). To be eligible for a fee award, a plaintiff
must have prevailed on “any significant claim affording some of the relief
sought.” Texas Ass’n v. Garland, 489 U.S. 782, 791 (1989). Here, the plaintiff
prevailed on his USERRA claim, and the jury awarded him $90,000, finding
that his military service was a motivating factor in his termination and that
Chem-Tech did not meet its burden of proving that it would have terminated
the plaintiff otherwise. Dkt. No. 121. Post-trial, the plaintiff successfully
obtained additional equitable relief from the court. Dkt. No. 152. The plaintiff
prevailed on several significant claims affording some of the relief he sought,
and therefore is eligible for a fee award.
Though the Cross Law Firm agreed to represent the plaintiff pro bono,
both parties agree that this does not prevent the court from awarding fees and
costs. Dkt. No. 136 at 5; Dkt. No. 142 at 4-5. In fact, both parties recognize
that awarding fees may “serve the public purpose of encouraging
representation by pro bono counsel . . . .” Dkt. No. 142 at 4; Dkt. No. 136 at 6.
In order to encourage counsel to accept pro bono cases, this court will not
exclude the firm from fee eligibility solely because it agreed to represent the
plaintiff pro bono.
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Cross Law Firm calculates its total fees at $166,387.50, and its total
costs at $3,669.51. Dkt. No. 137-1 at 41. Recognizing that part of the time
billed was due to the substitution of lawyers mid-case, the firm applied a fee
reduction, resulting in total fees of $157,662.50. Id. The following chart shows
the total fees for each person who worked on the case. Id.

The court must determine whether the requested fees are reasonable.
When evaluating fees resulting from fee-shifting provisions similar to 38 U.S.C.
§4323(h)(2), the “lodestar” method is the typical starting point for determining
the reasonableness of fees. A. Baurer Mech., Inc. v. Joint Arbitration Bd., 562
F.3d 784, 793 (7th Cir. Ill. 2009). The “lodestar” method involves multiplying a
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reasonable hourly rate by a reasonable number of hours expended. Id. “Once
this amount is calculated, the district court may adjust the amount up or down
to take into account various factors regarding the litigation.” Mathur v. Board
of Trustees of Southern Illinois University, 317 F.3d 738, 742 (7th Cir. 2003)
(footnote and citations omitted).
Chem-Tech states two reasons why this court should adjust the
plaintiff’s fees downward. Dkt. No. 142 at 2, 5. Neither is persuasive.
First, Chem-Tech argues that the court should reduce the fees because
the Cross Law Firm achieved mixed results. Id. at 3. It argues that although
the plaintiff successfully recovered back pay and equitable relief, the back pay
awarded was less than the amount the plaintiff asked the jury to award, and
the jury did not award willfulness damages. Id. The court declines to reduce
the fees based on this rationale.
There is no way to know why the jury awarded $90,000, rather than the
$120,000 the plaintiff requested. The court will not assume that the jury found
the plaintiff’s claim lacking in some way; perhaps the jury believed that the
plaintiff “got the math wrong.” Without any further information about how the
jury came up with the back-pay amount, the court will not assume that the
lower amount was the result of a failure on the part of counsel.
As for the argument regarding the jury’s failure to award willfulness
damages, a court need not make a deduction for unsuccessful claims when the
claims share a common core of facts and are based on related legal theories.
Graham v Sauk Prairie Police Comm., 915 F.2d 1085, 1109 (7th Cir. 1990).
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“Instead, a court should focus on the significance of the overall relief obtained
by the plaintiff in relation to the hours reasonably expended on the litigation . .
. . The fee award should not be reduced simply because the plaintiff failed to
prevail on every contention raised in the lawsuit.” Id. The plaintiff’s willfulness
argument arose from the same set of facts that resulted in the back pay award.
The court cannot separate the work done to achieve the back pay award from
the work done to advocate for willfulness damages.
Second, Chem-Tech disputes the reasonableness of (1) the fees related to
unnecessary discovery requests, (2) the reduction of repetitive fees, (3) the
itemized costs, and (4) the attorney rates. Dkt. No. 142 at 5, 6, 7. The court
does not find these arguments persuasive.
Chem-Tech argues that the court should not award fees generated by
collecting “unnecessary” discovery. Id. at 5. As indicated above, the plaintiff
represented himself from the date he filed the original complaint (March 1,
2013) through October 2014. The Cross Law Firm agreed to represent the
plaintiff in early October 2014, after Judge Goodstein had ruled on the
defendant’s motion for summary judgment. Dkt. No. 76. After the firm came on
board, the parties attempted mediation, but were not able to resolve the case.
After the defendant answered the amended complaint (this one filed by
counsel), the law firm filed a motion asking to reopen discovery. Dkt. No. 92.
The firm argued that because the plaintiff had been representing himself
during the discovery period, and because he was not a lawyer, he had not
known what he could and could not ask for, or how to ask for it. After briefing
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and hearings, the court concluded that it was appropriate to reopen discovery
to allow counsel to seek information the plaintiff had not known to request.
Dkt. No. 103.
Chem-Tech specifically references the discovery obtained after the court
granted the law firm’s motion to reopen discovery when arguing that the court
should not award fees for the collection of “unnecessary” discovery. Dkt. No.
142 at 5. The firm responds that this allegedly unnecessary discovery
uncovered helpful emails that counsel later used as trial exhibits. Dkt. No. 146
at 6. Beyond that, the court already has found, when it ruled on the motion to
reopen discovery, that the discovery requests counsel made on the plaintiff’s
behalf were reasonable. Chem-Tech provides no explanation for why the court
should change its mind, or its ruling, in that regard, and the court will not do
so.
Chem-Tech also argues that the Cross Law firm’s reduction of fees to
account for duplicative work resulting from changing lead counsel is
unreasonably low, because Attorney Flanner used her “billing judgment,”
rather than eliminating specific time entries. Dkt. No. 142 at 2. The court
disagrees with the defendant’s conclusion.
Attorney Flanner indicated that she spent 259.20 hours on the case, but
subtracted twenty of those hours to account for the transition to her from
Attorney Holiday. Dkt. No. 137-1 at 41. She also deducted ten hours of
paralegal time and five hours of legal intern time. She employed an 8%
reduction, rather than eliminating specific time entries. In her reply brief, she
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describes the twenty-hour reduction for the transition between attorneys as “a
billing judgment and courtesy due to the unexpected decision of Attorney
Holiday not to return to work as planned.” Dkt. No. 146 at 6-7.
The court reviewed the time entries from the period surrounding the
attorney transition, and did not see any entries it considered duplicative. Dkt.
No. 137-1 at 25. Even if Attorney Flanner had been lead counsel from
inception, as a zealous advocate she still would have needed to review the
pleadings and discovery before taking the case to trial. Dkt. No. 146 at 7; See
Watson v. E.S. Sutton, Inc., 2006 WL 6570643 , *8 (S.D.N.Y. August 11, 2006)
(finding that time getting up to speed on the case before trial was not
duplicative because “any reasonable attorney would have reviewed the case file
at that point in the litigation.”) Even if the court had considered some of the
time Attorney Flanner spent reviewing documents to be “duplicative,” that time
did not exceed twenty hours. The court finds that Attorney Flanner’s 8%
reduction was very reasonable, and her calculation of a percentage reduction
rather than the use of itemized deductions to be efficient and fair.
Chem-Tech asserts that the allocations in the bill of costs make it
difficult to assess whether the costs were reasonably expended in the litigation.
Dkt. No. 142 at 7. In response, the Cross Law Firm submitted an amended bill
of costs, dkt. no. 147-1; an amended spreadsheet of costs, dkt. no. 147-2; and
a table of other costs, dkt. no. 147-3. The supplemental documents provide
further itemization of the costs, and the court’s review convinces it that the
costs are reasonable.
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Finally, Chem-Tech objects to the reasonableness of the hourly rates of
the billing attorneys. Dkt. No. 142 at 7. It argues that the rates are not properly
supported by affidavits concerning this district’s market rates. Id. The Cross
Law firm used their actual billing rates, dkt. no. 146 at 9, and provided
affidavits from two local employment law attorneys (dkt. nos. 139—Janet
Heins—and 140—Jeffrey Hynes) attesting to the reasonableness of those rates.
The Seventh Circuit “has allowed the party seeking attorneys’ fees to
create a presumption that an hourly rate is reasonable where the attorney
demonstrates that the hourly rate she has requested is in line with what she
charges other clients for similar work.” Jeffboat LLC v. Dir. Office of Workers’
Comp. Programs, 553 F.3d 487, 490 (7th Cir. 2009) (citing Mathur, 317 F.3d at
743). “However, if the district court decides that the proffered rate overstates
the value of an attorney’s services, it may lower [the rate] accordingly.” Mathur,
317 F.3d at 743.
Chem-Tech does not challenge the actually rates billed by the relevant
attorneys—only the evidence the firm provided to support the rates. Dkt. No.
142 at 7. The court finds that the firm provided sufficient evidence to support
the reasonableness of its rates. See Dkt. No. 146 at 10-11. Chem-Tech did not
provide any evidence that the firm’s standard rates overstate the value of its
services, and the court has no reason to conclude as much.
CONCLUSION
The court GRANTS the plaintiff’s motion for attorneys’ fees and costs.
Dkt. No. 135. The court AWARDS the plaintiff reasonable attorney fees in the
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amount of $157,662.50, plus reasonable costs and expenses in the amount of
$3,669.51, for a total award of $161,332.01.
Dated in Milwaukee, Wisconsin this 3rd day of January, 2017.

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