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Wescher v. Chem-Tech International

United States District Court, E.D. Wisconsin

January 3, 2017

ROGER A. WESCHER, Plaintiff,


          HON. PAMELA PEPPER United States District Judge.


         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.

         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.


         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.

         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.

         Time Summaries:

Nola J, Hitchcock Cross - Managing Attorney (NJHC)

5.60 hours @ $395.00


$2, 212.00

Mary C. Flanner-Associate Attorney (MCF)

259.20 hours @ $325.00


$84, 240, 00

Janice Pintar-Associate Attorney (JP)

45.80 hours @ $325.00


$14, 885, 00

Katherine Holiday - Associate Attorney (KH)

129.70 hours @ $295.00


$39, 261.50

William Wetzel - law intern (WW)

4.00 hours @ $195.00



Paul Schinner- law intern (PS)

106, 40 hours @ $195.00


$20, 748, 00

Israel Santa Maria - paralegal (ism)

30, 90 hours @ $125.00


$3, 862, 50

Rhea Geschke- paralegal (rng)

4.20 hours @ $95.00



Total Fees before Reduction:


$166, 387.50

Mary C. Flanner hours removed

20 hours @ $325.00


-$6, 500.00

Israel Santa Maria hours removed

10 hours @ $125.00


-$1, 250.00

Paul Schinner hours removed

5 hours @ $195.00



Total Fees after Reduction:


$157, 662.50

         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 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 ...

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