Zabkowicz v. West Bend Co.

• Decision Date: 15 January 1985
• Docket Number: No. 83-C-187.,83-C-187.
• Citation: 601 F. Supp. 139
• Parties: Carol and Stanley ZABKOWICZ, Plaintiffs, v. The WEST BEND COMPANY, et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

601 F. Supp. 139

Carol and Stanley ZABKOWICZ, Plaintiffs, v. The WEST BEND COMPANY, et al., Defendants.

No. 83-C-187.

United States District Court, E.D. Wisconsin.

January 15, 1985.

Michael R. Fox, Madison, Wis., Walter F. Kelly, Milwaukee, Wis., for plaintiffs.

William Sosnay, Mary A. Moore, Mulcahy & Wherry, Milwaukee, Wis., for defendants.

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

This is an application for attorney's fees. The plaintiffs brought this action pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Wisconsin Fair Employment Act, Wis.Stat. § 111.31 et seq., the National Labor Relations Act, 29 U.S.C. § 185 et seq., and the common law of torts. Mrs. Zabkowicz charged that she had been sexually harassed at her place of employment. She also maintained that her employer, after being notified of the problem, failed to take corrective steps. After a three-day trial, a judgment was entered in favor of Mrs. Zabkowicz against the defendant West Bend Company in the amount of $2763.20, representing back wages for the period of work missed by Mrs. Zabkowicz because of her being sexually harassed. 589 F.Supp. 780 (Wis.1984). Her claim for back wages was the only count that went to trial, and the only one on which she prevailed. All of the other claims of Carol and Stanley Zabkowicz were dismissed before the presentation of any evidence. While the plaintiffs may harbor hopes that Mrs. Zabkowicz' tort claim will be reinstated on appeal, it is clear that attorney's fees should not be awarded to plaintiffs' counsel as to any of the dismissed counts; indeed, even if the plaintiffs prevailed on the tort claims, there could be no fee recovery under Title VII.

The fee applications of Mr. Fox and Mr. Kelly do not reflect any subtraction for time devoted to the non-compensable tort and labor claims made by Mr. and Mrs. Zabkowicz. The fee application of Mr. Hawkins shows that only 24.6 of his claimed 394 hours were devoted to non-compensable aspects of this litigation.

In their tort and labor claims which were dismissed before trial, the plaintiff and her husband sought $3.5 million. Their legal representatives were to be paid on a contingency basis. It is reasonable to assume that a major incentive to the considerable time invested by counsel in this litigation was the possible fee to be earned if Mrs. Zabkowicz prevailed on her tort claim. Out of a total of over 800 hours of legal work claimed by the plaintiffs' three lawyers, only 24.6 are now attributed by them to the $3.5 million claim; all of the rest of the 800 hours of labor performed by the plaintiffs' counsel were directed at the back pay count in which there was a maximum possible recovery to Mrs. Zabkowicz of $2763.20.

After the trial, when I ordered the entry of judgment in her favor on the back pay issue, I fully contemplated that Mrs. Zabkowicz' attorneys would be awarded a reasonable attorney's fee pursuant to the standards of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), and Lynch v. Milwaukee, 747 F.2d 423 (7th Cir.1984). Plaintiff's counsel have now submitted a claim for 822.10 hours of legal service and have requested fees of $127,515, plus expenses of $20,785.

In two recent cases, the court of appeals for this circuit has considered the matter of exaggerated fees and has sustained the district court's rejection of all fees under such circumstances. Vocca v. Playboy Hotel of Chicago, Inc., 686 F.2d 605, 606 (7th Cir.1982); Brown v. Stackler, 612 F.2d 1057 (7th Cir.1980). In Brown, counsel submitted a bill for 834.5 hours of time spent; that figure is remarkably similar to the 822 hours involved in the case at bar. In denying fees altogether, the district Judge (Judge Grady) observed that the 834 hours spent on the uncomplicated case was "more than half the billable time that an attorney would have for a whole year...." Brown v. Stackler, 460 F.Supp. 446, 447 (N.D.Ill.1978). The court of appeals held, at 612 F.2d 1057, 1059, that the denial of all fees was appropriate as a means of encouraging counsel to "maintain adequate records and submit reasonable, carefully calculated and conscientiously measured claims when seeking statutory counsel fees."

The plaintiff's fee petition is seriously flawed in that it almost entirely fails to distinguish hours spent on the Title VII claim from hours spent on non-compensable claims. The plaintiff is barred from seeking compensation from the defendant for work spent on non-Title VII claims, and it is prevailing counsel's duty to assure that his petition excludes non-compensable hours. The petition also appears to be based in part on an after-the-fact reconstruction rather than contemporaneous records as the statute requires. For example, Mr. Fox claims to have expended 13.0 hours daily on June 20, 21, 22 and 25, 1984, for "trial preparation and trial." That exactly 13 hours would have been expended each day seems doubtful. Moreover, the court was not in session on June 21, 1984. The petition is thus neither "carefully calculated" nor based on "adequate records" as required by Brown.

In its brief in connection with the instant application for attorney's fees, the defendant's lawyers have brought to my attention (for the first time) matters relating to the settlement discussions that had taken place between the parties. In an affidavit submitted in opposition to the plaintiffs' attorneys fee application, Attorney Mary Moore avers that...