Heder v. City of Two Rivers

• Decision Date: 31 March 2003
• Docket Number: No. 00-C-0274.,00-C-0274.
• Citation: 255 F.Supp.2d 947
• Parties: Christopher J. HEDER, Plaintiff, v. CITY OF TWO RIVERS, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

255 F.Supp.2d 947

Christopher J. HEDER, Plaintiff, v. CITY OF TWO RIVERS, Defendant.

No. 00-C-0274.

United States District Court, E.D. Wisconsin.

March 31, 2003.

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Steven R. Olson, Radosevich Mozinski & Cashman, Manitowoc, WI, for Plaintiff.

Everett E. Wood, Davis & Kuelthau, Milwaukee, WI, Thomas A. Cabush, Kasdorf Lewis & Swietlik, Milwaukee, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Plaintiff Christopher Heder ("Heder") sued the defendant City of Two Rivers ("City"), his former employer, under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(k), and Wis. Stat. § 109.03 seeking to recover unpaid overtime and monies withheld from his paychecks. He recovered most of what he sought and now petitions for an award of attorneys' fees pursuant to 29 U.S.C. § 216(b).

I. FACTUAL AND PROCEDURAL BACKGROUND

Heder was employed as a firefighter and, during his term of employment, the City implemented a policy requiring all firefighters to become certified as paramedics. Under a memorandum of agreement between the City and the union representing firefighters, Heder would receive $5.58 per hour (half his hourly rate) for time spent obtaining the required certification; and, if he left his position within three years of beginning the paramedic training, he would owe the City the cost of the training plus any wages he received for time spent in training and any paramedic premium pay he received after becoming certified. Heder left after two-and-a-half years, and the City withheld all of his pay for his last three weeks of work ($2,281) pursuant to the memorandum of agreement. The City asserted that Heder owed a total of $7,641, $5,360 of which still remained due after the City had withheld his final paychecks.

Heder hired attorney Steven R. Olson ("Olson"). After consulting with Heder, Olson contacted the City and proposed a settlement whereby Heder would agree not to pursue a claim against the City and the City would, in exchange, retain the $2,281 recouped from Heder's final paychecks and agree to seek no further repayments. The City rejected the offer.

Heder then filed suit arguing that the City paid him less overtime than required by the FLSA and recouped training expenses and wages from his final paychecks in violation of Wis. Stat. § 109.03. The City counterclaimed for the unpaid training expenses, wages and premium pay. At issue was a total of approximately $8,900 ($2,281 which the City withheld from Heder's final paychecks + $5,360 which the City said Heder still owed under the memorandum of agreement + approximately $1,259 which Heder alleged the City owed him for overtime).

The parties filed cross motions for summary judgment. I held that (1) the FLSA entitled Heder to more overtime compensation than he was paid for time spent in training; (2) the memorandum of agreement was unenforceable to the extent it required Heder to repay wages and premium pay and because it contained a cliff, rather than an amortized repayment schedule; and (3) the City's withholding of Heder's final paychecks violated Wis. Stat. § 109.03 and the FLSA's minimum wage requirements. Under my decision, Heder was entitled to all the money in dispute. Judgment was entered on November 1, 2001. By that time, the City had indicated its intent to appeal. The judgment, therefore, indicated that Heder's application for reasonable attorneys' fees and costs would not be due until after the appeal.

The City appealed. The parties filed appellate briefs, and the Seventh Circuit Court of Appeals requested oral argument. On July 10, 2002, the court of appeals affirmed in part and reversed in part and returned the case to me for a determination of the amount of damages. The parties agreed that under the Seventh Circuit's decision, Heder was entitled to all the money in dispute except the cost of the tuition and books, which was approximately $1,400, and the City was entitled to nothing. Thus, Heder obtained a judgment for $3,540 ($1,259 in unpaid overtime + $2,281 withheld from Heder's paychecks).

I urged the parties to resolve the issue of attorneys' fees themselves. Heder offered to settle his claim for $25,000, but the City rejected the offer. Thus, Heder moved for an award of attorneys' fees and costs, and the City opposed the motion.

When Heder first obtained counsel, Olson charged him a fee of $125 per hour. Pursuant to their agreement, interest would be charged at a rate of 18% compounded monthly for fees unpaid after 30 days. In March 2000, the hourly rate increased to $135. Also in the spring of 2000, Heder began to have difficulty making payments. Heder and Olson renegotiated their fee agreement to require Heder to pay immediately only 50% of all fees billed, with the balance to be paid at the conclusion of the case.

II. DISCUSSION

Title 29 U.S.C. § 216(b)¹ entitles a prevailing plaintiff in a FLSA action to reasonable attorneys' fees and costs. Small v. Richard Wolf Med. Instruments Corp., 264 F.3d 702, 707 (7th Cir.2001). The provision exists to enable plaintiffs to employ reasonably competent lawyers without cost to themselves if they prevail and, thereby, to help ensure enforcement of the substantive provisions of FLSA. United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Ass'n, Local 307 v. G & M Roofing & Sheet Metal Co., Inc., 732 F.2d 495, 502 (6th Cir.1984) (citing Maddrix v. Dize, 153 F.2d 274, 275-76 (4th Cir.1946)).

A. Attorneys' Fees for Work Related to the Merits of the Case

[2,3] Reasonable attorneys' fees are determined using the lodestar approach. Small, 264 F.3d at 707. Under this approach, the court must first determine the number of hours reasonably expended on the merits of the litigation. Batt v. Micro Warehouse, Inc., 241 F.3d 891, 893-94 (7th Cir.2001). Then the court must determine a reasonable hourly rate. Id. at 894. Multiplication of these two amounts results in the lodestar, Small, 264 F.3d at 707, which is presumed to be a reasonable fee, City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).² However, the court can discount or increase the lodestar based on a variety of factors. Bankston v. Illinois, 60 F.3d 1249, 1255 (7th Cir.1995) (citing Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), overruled on other grounds by Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)).

1. Hours Reasonably Expended

The plaintiff has the burden of proving the reasonableness of the hours expended and should "exclude from his or her request excessive, redundant or otherwise unnecessary expenses." Batt, 241 F.3d at 894. If the plaintiff fails to exelude such expenses, I must. Id.

Olson asserts that he spent 214.2 hours on the merits of the litigation. Review of Heder's fee petition does not reveal any unnecessary expenses; and the City points to none. The litigation required discovery, legal research and lengthy briefing on cross dispositive motions when the case was first before me, and still more briefing and argument before the court of appeals. 214.2 hours is a reasonable amount of time.

2. Reasonableness of the Hourly Rate

"A `reasonable' hourly rate should reflect the `market rate' for the attorney's services." Batt, 241 F.3d at 894 (internal citation omitted)."`[T]he attorney's actual billing rate for comparable work is presumptively appropriate to use as the market rate.'" Mathur v. Bd. of Trs. of S. III. Univ., 317 F.3d 738, 743 (7th Cir.2003) (quoting Spegon v. Catholic Bishop of Chi, 175 F.3d 544, 555 (7th Cir.1999)).

Here, Olson and Heder had fee agreements setting forth hourly rates— $125 per hour until March 16, 2000, and $135 per hour thereafter. Heder requests a fee award based on these amounts. Olson attests that these were the rates he charged to all his regular, hourly, paying clients; Heder was no exception. These rates are, therefore, the market rates and presumed reasonable. The City does not argue otherwise. Their reasonableness is further supported by an affidavit from another attorney practicing employment law in the same geographic area who states that the market rate for someone such as Olson would have been $150.

3. Adjustment of the Lodestar

Multiplying the number of hours spent by the hourly rates results in a lodestar of $28,542. This is the presumptively reasonable fee. City of Burlington, 505 U.S. at 562, 112 S.Ct. 2638. However, the court can adjust the lodestar in light of several factors known as "the Hensley factors." People Who Care v. Rockford Bd. of Educ, 90 F.3d 1307, 1310-11 (7th Cir. 1996) ("People Who Care I") (citing Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Many of these factors may be subsumed within the lodestar itself, in which case the court need not give them separate consideration. Id. The party advocating adjustment of the lodestar bears the burden of establishing that such an adjustment is necessary. City of Burlington, 505 U.S. at 562, 112 S.Ct. 2638; Grant v. Martinez, 973 F.2d 96, 101 (2d Cir.1992). Here, Heder seeks to obtain fees equal to the amount of the lodestar, plus interest, and the City seeks a downward adjustment. Thus, the City bears the burden.

a. Degree of Success Obtained

The most important Hensley factor, which may not be subsumed within the lodestar, is the "`degree of success obtained.'" Spegon, 175 F.3d at 550 (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). Consideration of this factor is key where a plaintiff has prevailed on some but not all of his claims. Hensley, 461 U.S. at 434, 103 S.Ct. 1933. Whether Heder can obtain fees based on unsuccessful claims depends upon whether they are related to the successful ones. As the Seventh Circuit has explained,

[W]hen claims are interrelated ... time spent pursuing an unsuccessful claim may be compensable if it also contributed to the success of other...