Johnson v. G.D.F., Inc., 07 C 3996
| Decision Date | 05 February 2014 |
| Docket Number | No. 07 C 3996,07 C 3996 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | ROBERT S. JOHNSON, Plaintiff, v. G.D.F., INC. d/b/a DOMINO'S PIZZA, Defendant. |
Jeffrey T. Gilbert
Magistrate Judge
This matter is before the Court on plaintiff Robert Johnson's second Motion for Attorneys' Fees and Costs Upon Remand from the Court of Appeals with Renewed Motion for Evidentiary Hearing and Proposed Order for New Award of Fees and Costs [Dkt.#235] ("Renewed Motion for Attorneys' Fees").1 For the reasons discussed herein, the Motion is granted in part and denied in part.
This case began in May 2005 and has a long history that the Court will not recount in this Memorandum Opinion and Order. A detailed discussion of the facts and procedural history can be found in Robert S. Johnson v. G.D.F., Inc. d/b/a, Domino's Pizza, 668 F.3d 927 (7th Cir. 2012). One of the few things that is not disputed in this case is that plaintiff Robert Johnson ("Johnson") obtained a favorable jury verdict against defendant G.D.F., Inc. d/b/a Domino's Pizza ("GDF") on a retaliation claim under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §215, et seq., after a three-day trial in October 2009. The jury awarded Johnson $1,000 in lost wages, $4,000 in punitive damages, and zero dollars for compensatory damages. See [Dkt.#123].
As the prevailing party, Johnson and his counsel Ernest Rossiello ("Rossiello") seek to recover the attorneys' fees and costs of the action. In the first motion for attorneys' fees, Johnson and Rossiello sought $111,851 in attorneys' fees and $715.87 in costs. The district court dramatically slashed the requested fees and awarded only $1,500 in attorneys' fees and $364.20 in costs. Johnson and Rossiello appealed. The Seventh Circuit reversed the district court's decision, holding that GDF "must pay for the attorney hours reasonably required to see the case through trial, to appeal and for the collection of fees" and remanded this case to the district court for "[a] determination of the hours reasonably expended and the reasonable hourly rate." Johnson, 668 F.3d at 933.
Johnson and Rossiello filed a second fee petition and Renewed Motion for Attorneys' Fees, seeking their attorneys' fees and costs, and requesting an evidentiary hearing. As discussed more fully below, Rossiello was suspended from the practice of law in March 2012 when the Seventh Circuit mandate issued. He, therefore, brought Keith Hunt and Associates ("Hunt") into the case to assist with the second fee petition. The Renewed Motion for Attorneys' Fees also includes Hunt's request for his attorney's fees and expenses arising from his work on the second fee petition and Renewed Motion for Attorneys' Fees.
The Court held a hearing on September 25, 2013, on the Renewed Motion for Attorneys' Fees during which it provided Johnson's counsel with the opportunity to present their arguments and to respond to the Court's questions. At that hearing, Rossiello made an extended oral presentation, and the Court accepted additional exhibits in support of the Renewed Motion forAttorneys' Fees. See [Dkt.#239]. (By the time of the September 25, 2013 hearing, Rossiello's suspension from practice had been lifted.) After the hearing, Johnson, Rossiello and Hunt also submitted supplemental billing records for which they are seeking compensation as part of the second fee petition and Renewed Motion for Attorneys' Fees. See [Dkt.##261, 262]. They now seek a total of $290,917.48 in fees and $2,197.94 in costs, more than double the amounts sought in the first fee petition. See Proposed Order Awarding Attorney's Fees (At Current Rates) [Dkt.#266], at 6.
Although Johnson, Rossiello and Hunt say they are seeking $290,917.48 in attorneys' fees in their Proposed Order Awarding Attorneys' Fees (At Current Rates) [Dkt.#266], the attorneys' fees requested in that Proposed Order actually total $291,694.64 according to the Court's calculation. Id. Further, it appears that Rossiello has calculated interest on his associates' fees but not on his time or that billed by Hunt. In addition, the total number of hours set out in the Proposed Order in each category is slightly different than as represented in the briefs filed by Johnson and his counsel. And these are just some of the inconsistencies that permeate the filings made by Johnson, Rossiello and Hunt in support of the second fee petition and Renewed Motion for Attorneys' Fees. The Court has done its best to properly represent the number of hours and calculation of attorneys' fees that Johnson and his counsel are seeking. At times, however, the Court cannot reconcile counsel's calculations, and the Court has been hindered by a host of errors in counsel's various submissions.
GDF does not dispute the calculation of the total number of hours being sought by Johnson and his counsel. GDF simply accepts the total number of hours as represented by Johnson and his counsel and argues the amounts being sought are excessive. Further, while theCourt often comes up with different numbers than Rossiello and Hunt, the differences sometimes are not material. And the Court acknowledges it might be misreading Rossiello's or Hunt's time records or categorizing time differently than they did in coming up with their numbers.
The parties completely defaulted in their obligation to iron out discrepancies in a joint statement pursuant to Local Rule 54.3(e). See Parties' Local Rule 54.3 Joint Statement Regarding Plaintiff's Motion For Attorneys' Fees [Dkt.#231] ("The parties have not been able to reach stipulations regarding hourly rates or the amount of time sought by plaintiff."). Therefore, for the purpose of calculating the number of hours and corresponding attorneys' fees that Johnson, Rossiello and Hunt are seeking, the Court will, for the most part, use the figures as represented by them in the second fee petition and Renewed Motion for Attorneys' Fees as the starting point for its lodestar analysis. When it is essential for a critical analysis of the attorneys' fees requested, however, the Court has delved into Rossiello's and Hunt's time records and calculated the actual hours spent on particular tasks or aspects of this litigation.
As the prevailing party, Johnson is entitled to "a reasonable attorney's fee to be paid by defendant, and the costs of the action." 29 U.S.C. § 216(b). When a prevailing party is entitled to "a reasonable attorney's fee," the Seventh Circuit has instructed that "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, 668 F.3d at 929 (citing Pickett v. Sheridan Health Care, 664 F.3d 632, 639-640 (7th Cir. 2011)). The Seventh Circuit has defined a reasonable hourly rate as one that is "derived from the marketrate for the services rendered." Pickett, 664 F.3d at 640 (quoting Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003)).
The fee applicant bears the burden of "produc[ing] satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community." Pickett, 664 F.3d at 640 (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). If the fee applicant satisfies this burden, the burden then shifts to the other party to offer evidence that sets forth "a good reason why a lower rate is essential." Id. (quoting People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1313 (7th Cir. 1996)).
Recognizing the difficulty in determining the hourly rate of an attorney who uses contingent fee arrangements, the Seventh Circuit has advised district courts to rely on the "next best evidence" of an attorney's market rate, namely "evidence of rates similarly experienced attorneys in the community charge paying clients for similar work and evidence of fee awards the attorney has received in similar cases." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999). Of these two alternatives, the Seventh Circuit has expressed a preference for third party affidavits that attest to the billing rates of comparable attorneys. Id. at 556. If a fee applicant does not satisfy its burden, the district court has the authority to make its own determination of a reasonable rate. See Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 409 (7th Cir. 1999).
Once the district court has established the lodestar, it then may adjust it to account for factors not subsumed by the lodestar calculation. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 543-44 (2010).
At the outset, the Court must highlight a portion of the Seventh Circuit's opinion in this case which addresses directly GDF's overarching and oft-repeated arguments — in response to the second fee petition and instant Renewed Motion for Attorneys' Fees as well as the first fee petition — that because the fees sought by Johnson, Rossiello and Hunt in this case are unreasonable and excessive, the Court should cut those fees dramatically without engaging in a lodestar analysis. GDF laments that it never would have spent so much time on this case had it "known this to be a $1,000 back-pay suit" and that its counsel billed so much time in the case because GDF assumed "the case was filed in good faith and that truthful disclosures were made in discovery." GDF Resp. [Dkt#239], at 9.
These arguments were flatly rejected by the Seventh Circuit. The Court of Appeals' analysis bears repeating here to put into context the exercise this Court must engage in to calculate the lodestar appropriate in this case. The Seventh Circuit concluded:
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