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Koziara v. BNSF Railway Co.

United States District Court, W.D. Wisconsin

August 19, 2016

MICHAEL KOZIARA, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON, District Judge.

         A jury found in favor of plaintiff Michael Koziara on his claim that defendant BNSF Railway Company retaliated against him for reporting a workplace injury, in violation of the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109. Koziara now moves for an order awarding him attorney fees, litigation costs, and pre- and post-judgment interest. Dkt. 228. BNSF objects for several reasons. BNSF also moves to stay enforcement of the judgment pending the resolution of its appeal to the Seventh Circuit. Dkt. 251.

         All told, Koziara seeks $637, 627.50 in attorney fees, $41, 000.70 in litigation costs, and $45, 643.34 in pre- and post-judgment interest. The court will grant Koziara’s motion in substantial part, reducing the amounts that he seeks to account for BNSF’s valid objections. The court will also grant BNSF’s motion to stay enforcement of the judgment, which Koziara does not oppose.

         BACKGROUND

         The court recounted the material facts of the case in its summary judgment opinion, Dkt. 73, and summarized them in its post-trial opinion, Dkt. 227. For purposes of this opinion, only a limited description of the case is necessary.

         This is a retaliation case. Koziara used to work for BNSF, in the Maintenance of Way department. In 2010, Koziara suffered an injury while supervising a crew that was removing crossing planks. Koziara reported the injury to BNSF, which investigated and determined that Koziara had violated the company’s safety rules. As a result, BNSF suspended Koziara. While investigating, BNSF also learned that Koziara had taken company property on an earlier occasion. After separate disciplinary proceedings, BNSF fired Koziara for theft.

         Koziara filed suit in this court in December 2013. Both sides moved for summary judgment, which the court substantially denied. After a four-day trial, a jury found in Koziara’s favor and awarded him $425, 724.64 for lost wages, pain and suffering, and punitive damages. BNSF moved for judgment as a matter of law or, in the alternative, for a new trial, which the court denied. BNSF has since appealed to the Seventh Circuit.

         ANALYSIS

         A. Koziara’s motion for attorney fees, litigation costs, and interest

         A plaintiff who prevails on a claim under the FRSA is entitled to recover his “litigation costs, expert witness fees, and reasonable attorney fees.” 49 U.S.C. § 20109(e)(2)(C). BNSF does not challenge Koziara’s entitlement to attorney fees, litigation costs, and interest. But it has lodged a lengthy objection to the specific amounts that Koziara seeks. Although some of BNSF’s points are valid, the court will overrule many of its objections.

         1. Attorney fees

         The court uses a “lodestar method” to determine a reasonable fee, “multiplying the ‘number of hours reasonably expended on the litigation by a reasonable hourly rate.’” Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011) (internal alterations omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The lodestar method applies even in cases where the prevailing party has a contingency fee agreement with his counsel, as Koziara does in this case. 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. Bd. of Trs. of S. Ill. Univ., 317 F.3d 738, 742 (7th Cir. 2003).

         Koziara seeks $637, 627.50 in fees for the 1, 633 hours that his attorneys spent working on this case. Dkt. 247, at 37. The three attorneys who performed most of this work ordinarily charge $650 per hour, $525 per hour, and $350 per hour, and the paralegals and assistants ordinarily charge $175 per hour.

         The Seventh Circuit “define[s] a reasonable hourly rate as one that is derived from the market rate for the services rendered [and] presume[s] that an attorney’s actual billing rate for similar litigation is appropriate to use as the market rate.” Pickett, 664 F.3d at 640 (citations and internal quotation marks omitted). As evidence of reasonableness, Koziara has submitted affidavits from his attorneys, who indicate that their rates in this case are the same rates that they charge to hourly clients for similar work. Dkt. 230, ¶ 9; Dkt. 231, ¶ 8; Dkt. 232, ¶ 12. These affidavits are persuasive because “[t]he best evidence of an attorney’s market rate is his or her actual billing rate for similar work.” Johnson v. GDF, Inc., 668 F.3d 927, 933 (7th Cir. 2012). Koziara has also submitted affidavits from other attorneys who believe that the rates that Koziara’s attorneys charged are reasonable. Dkt. 233, ¶ 14; Dkt. 234, ¶ 13; Dkt. 236, ¶¶ 5, 7. This “‘next best evidence’ of an attorney’s market rate” further supports the reasonableness of the rates that Koziara’s attorneys charged. Pickett, 664 F.3d at 640. From the affidavits that Koziara has submitted in support of his fee request, and because BNSF does not object to the rates, the court concludes that the rates that Koziara’s attorneys charged in this case were reasonable.

         The more difficult issue is the reasonableness of the hours that Koziara’s attorneys billed. “[T]he best evidence of whether attorney’s fees are reasonable is whether a party has paid them.” Id. at 653-54 (citations and internal quotation marks omitted). Here, Koziara’s attorneys took this case on a contingency, which means that the court does not have a readily available check on whether the total fee is reasonable. And because Koziara’s success at trial entitles him to fee-shifting, the court must be particularly vigilant for fees that an attorney would not ordinarily or reasonably bill to a paying client.

         BNSF objects to time spent on: (1) “inter-office conferences”; (2) depositions at which two of Koziara’s attorneys appeared and for which both attorneys billed; (3) a mock trial that Koziara held; and (4) work that non-record attorneys performed on the case. BNSF also asks for a downward adjustment because many of Koziara’s billing entries are vague. Finally, BNSF asks for a further downward adjustment given the relatively simple nature of the case. Some, but not all, of BNSF’s arguments are persuasive.

         a. Inter-office conferences

         BNSF’s first objection is to the hours that Koziara’s attorneys spent on “inter-office conferences.” According to BNSF, these entries account for more than 185 hours and about $85, 000 of Koziara’s requested fee.[1]

         The Seventh Circuit has rejected “a blanket rule according to which internal communication time never would be reimbursed.” Tchemkou v. Mukasey, 517 F.3d 506, 511 (7th Cir. 2008). But district courts must nevertheless “scrutinize fee petitions for duplicative billing when multiple lawyers seek fees.” Schlacher v. Law Offices of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 858 (7th Cir. 2009). Here, most of the entries for inter-office conferences are vague. They typically follow one of two generic formats:

• Conference with [person] regarding case status and strategy; or
• Attend team meeting regarding case strategy and status.

See generally Dkt. 243-1, at 2-14 (listing entries from Dkt. 230-2). The problems with these entries are apparent when compared to other, more detailed entries that indicate the specific tasks that Koziara’s attorneys completed. See, e.g., Dkt. 230-2, at 8 (“Attend team meeting regarding reply in support of plaintiff’s motion for summary judgment and the FELA-trial”), 9 (“Conference with [attorneys] regarding the interplay between the FELA-case and the FRSA-case”), (“Attend team meeting regarding witness order and amending exhibit list”).

         Koziara defends his vague entries by arguing that the surrounding entries identify the specific topics or strategy items that his attorneys discussed. This argument is consistent with Seventh Circuit precedent that entries “although vague when read in isolation, are not impermissibly vague when viewed in the context of the surrounding documentation.” Berberena v. Coler, 753 F.2d 629, 634 (7th Cir. 1985); see also Soleau v. Ill. Dep’t of Transp., No. 09-cv-3582, 2011 WL 2415008, at *8 (N.D. Ill. June 9, 2011) (“Each entry should be considered in context of the surrounding entries.”).

         After reviewing Koziara’s billing records, the court is satisfied that surrounding entries provide sufficient context for many, but not all, of the vague entries. Generic entries for conferences about “case strategy and status” appear too often for the court (or BNSF) to reliably tether them to particular tasks or stages of the litigation. Although these conferences were short-most were 0.1 or 0.2 hours-they were frequent. A reduction in the hours that Koziara has submitted is therefore appropriate. See Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000) (“[W]hen a fee petition is vague or inadequately documented, a district court may either strike the problematic entries or (in recognition of the impracticalities of requiring courts to do an ...


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