United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
Melody Benson brought this action against her former
employers, Defendants M2 Property Group LLC, Moraine Ridge
LLC, and Willow Ridge LLC, alleging violations of the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 215 et
seq., and Wisconsin's Wage Payment and Collection
Laws (WWPCL). The parties settled the matter, and the court
approved the settlement on March 7, 2019. Presently before
the court is Plaintiff's motion for attorneys' fees
and costs pursuant to 29 U.S.C. § 216(b). For the
reasons stated below, the motion will be granted, but for a
Property is a real estate brokerage, management, and leasing
company that owns Moraine Ridge, a resident care apartment
complex, and Willow Ridge, a community-based residential
facility. Plaintiff was employed by Defendants from November
2015 through May 4, 2018. Plaintiff filed her complaint
against Defendants on June 6, 2018.
parties eventually settled the lawsuit and filed a joint
motion for settlement approval on March 6, 2019. The
following day, the court approved the settlement, noting that
the settlement represents a fair and reasonable resolution of
the bona fide dispute over the alleged violations. The court
recognized that the only remaining issue was the reasonable
amount of attorneys' fees and costs to be awarded to
Plaintiff and set a briefing schedule. That issue is now
fully briefed and ripe for resolution.
to the FLSA, a prevailing plaintiff is entitled to “a
reasonable attorney's fee to be paid by the defendant,
and costs of the action.” 29 U.S.C. § 216(b).
Although the FLSA does not address what it means to prevail,
the Supreme Court has found that a “prevailing
party” in an action brought pursuant to a fee-shifting
statute is “one who has been awarded some relief by the
court” and has obtained a “judicially sanctioned
change in the legal relationship of the parties.”
Buckhannon Board & Care Home, Inc. v. West Virginian
Dep't of Health & Human Servs., 532 U.S. 598,
603, 605 (2001); accord Saizan v. Delta Concrete Prods.
Co., 448 F.3d 795, 799 n.7 (5th Cir. 2006)
(“Though the attorney's fee provision of the FLSA
does not mention ‘prevailing party,' we typically
cite prevailing party fee-shifting jurisprudence in FLSA
cases.”); Dionne v. Floormasters Enters.,
Inc., 667 F.3d 1199, 1205 (11th Cir. 2012) (noting that
the “FLSA plainly requires that the plaintiff receive a
judgment in his favor to be entitled to attorney's fees
and costs”). “No material alteration of the legal
relationship between the parties occurs until [one of the
parties] becomes entitled to enforce a judgment, consent
decree, or settlement against the [other].” Farrar
v. Hobby, 506 U.S. 103, 113 (1992).
assert that Plaintiff's motion for attorneys' fees
must be denied because she is not a prevailing party. They
maintain that the parties entered into a settlement agreement
and that it was only necessary for the court to approve the
agreement to ensure a final resolution of Plaintiff's
FLSA allegations. Defs.' Br. at 4, Dkt. No. 32. Indeed, a
settlement agreement alone does not serve as the basis for
finding that a plaintiff is a prevailing party in an FLSA
case. But court approval of the settlement agreement
constitutes a “judicially sanctioned change in the
legal relationship of the parties, ” such that the
plaintiff is the prevailing party. Buckhannon, 532
U.S. at 605; see also Almanza v. United States, 135
Fed.Cl. 645 (Fed. Cl. 2018) (finding that plaintiffs were the
prevailing party after court approved settlement agreement in
FLSA action); Dickinson v. Crabs on Deck, LLC, No.
17-3347, 2018 WL 5026364, at *3 (D. Md. Oct. 17, 2018)
(“Certainly, when a court approves a settlement
agreement, ‘there is [a] judicially sanctioned change
in the legal relationship of the parties,' such that the
plaintiff qualifies as a prevailing party.”).
In this case, the court issued an order approving the
settlement agreement as fair and reasonable, which is
required in the unique context of the FLSA, and altered the
legal relationship between the parties. The court's
approval of the settlement agreement is therefore sufficient
to make Plaintiff the prevailing party. As the prevailing
party, Plaintiff is entitled to an award of attorneys'
fees and costs.
district court calculates attorneys' fees using the
“lodestar” method: “the number of hours
that any attorney worked on the case multiplied by a
reasonable hourly rate.” Jeffboat, LLC v. Director,
Office of Workers' Compensation Programs, 553 F.3d
487, 489 (7th Cir. 2009) (citing Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983); Mathur v. Bd.
of Trs. of S. Ill. Univ., 317 F.3d 738, 742 (7th Cir.
2003)). “The standard is whether the fees are
reasonable in relation to the difficulty, stakes, and outcome
of the case.” Connolly v. Nat'l Sch. Bus Serv.,
Inc., 177 F.3d 593, 597 (7th Cir. 1999). “If
necessary, the district court has the flexibility to
‘adjust that figure to reflect various factors
including the complexity of the legal issues involved, the
degree of success obtained, and the public interest advanced
by the litigation.'” Gastineau v. Wright,
592 F.3d 747, 748 (7th Cir. 2010) (quoting Schlacher v.
Law Offices of Phillip J. Rotche & Assocs., 574 F.3d
852, 856-57 (7th Cir. 2009)). The plaintiff bears the burden
of establishing the reasonableness of the time expended and
hourly rates charged by her attorney. See Hensley,
461 U.S. at 437. There is nevertheless a “strong
presumption that the lodestar represents the reasonable
fee.” City of Burlington v. Dague, 505 U.S.
557, 562 (1992) (internal quotation marks omitted);
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632,
639 (7th Cir. 2011).
requests an hourly rate of $350.00 for Attorneys Scott S.
Luzi and David M. Potteiger of Walcheske & Luzi, LLC. A
reasonable hourly rate is “‘the rate that lawyers
of similar ability and experience in the community normally
charge their paying clients for the type of work in
question.'” Spegon v. Catholic Bishop of
Chi., 175 F.3d 544, 555 (7th Cir. 1999) (quoting
Bankston v. State of Illinois, 60 F.3d 1249, 1256
(7th Cir. 1995)). The party seeking the fee bears the burden
of producing “satisfactory evidence-in addition to the
attorney's own affidavits-that the requested rate[s] are
in line with those prevailing in the community.”
Connolly, 177 F.3d at 597. Once this burden is
satisfied, the burden shifts to the other party to offer
evidence that sets forth “a good reason why a lower
rate is essential.” Id. (internal quotation
marks and citations omitted). To support the rate requested,
Plaintiff submitted declarations from Attorneys Larry A.
Johnson and Robert M. Mihelich showing that the requested
rate is in line with what is normally charged by other
practitioners for similar services. See Johnson
Decl., Dkt No. 29; Mihelich Decl., Dkt. No. 30. Although
Defendants assert that Plaintiff's counsel's hourly
rates of $350.00 are unreasonable, this court has approved
this hourly rate for Attorneys Luzi and Potteiger in similar
cases. See, e.g., Blemberg v. ARC Fire
Protection LLC, No. 18-cv-637 (E.D. Wis. Mar. 27, 2019);
Kapellusch v. Bold Salons LLC, No. 18-cv-843 (E.D.
Wis. Jan. 31, 2019); Gerlach v. West Revenue
Generation Servs., No. 18-cv-170 (E.D. Wis. Jan. 3,
2019); Rabetski v. Century Oaks of Appleton, Inc.,
No. 17-cv-1453 (E.D. Wis. June 5, 2018). The court therefore
finds that the requested rate is reasonable.
seeks an award of attorneys' fees based on 60.6 hours of
billable time dedicated to this case. Defendants assert that
Plaintiff should not recover fees for time spent opposing
Defendants' motion to compel Plaintiff's initial
disclosure of a computation of each category of damages
claimed by Plaintiff and limit the scope of discovery.
Defendants filed their motion to compel over two months after
Plaintiff's initial disclosures were due, requesting that
the court compel Plaintiff to comply with Rule 26 and limit
the scope of discovery, as the expense of further discovery
outweighed any purported benefit. Defendants indicated that
they had produced over 500 pages of documents in response to
Plaintiff's discovery requests. Plaintiff maintained that
she was unable to disclose a specific damages calculation
because she did not have the requisite information to do so.
But Rule 26 of the Federal Rules of Civil Procedure requires
that a party provide its initial disclosures, including
“a computation of each category of damages claimed by
the disclosing party, ” based on the information then
reasonably available to it. Fed.R.Civ.P. 26(a)(1)(A)(iii),
(A)(1)(E). In other words, the Rule requires early disclosure
of an approximation of damages to give Defendants some idea
of the value of Plaintiff's claims. On this basis, the
court granted the motion to the extent that Plaintiff was
required to provide Defendants with supplemental Rule 26(a)
disclosures. The court was not in a position to stop
discovery, however, and denied Defendants' request to
limit the scope of further discovery. In light of the mixed
results, the court did not grant Defendants' request for
fees. For the same reason, the court will not allow Plaintiff
to recover fees for time spent opposing the motion, as it
would be unfair to require Defendants to pay for the
unsuccessful portion of Plaintiff's opposition.
Therefore, the court will not order Defendants to pay for the
expenses Plaintiff incurred in opposing the motion to compel
and will reduce Plaintiff's fee request by $3, 325.00.
also claim that the remaining hours were not reasonably
expended on the litigation. But aside from the hours related
to Plaintiff opposing the motion to compel, the court
concludes that the time incurred drafting the complaint,
investigating the case, participating in discovery, and
calculating damages was reasonably expended on the case.
Contrary to Defendants' assertion, Plaintiff's
complaint was not “canned” or “boilerplate,
” but specifically alleged the nature of her work and
the provisions of the employee handbooks governing her
employment. The complaint also alleged the various categories
of FLSA and/or state wage law violations that Plaintiff
claimed resulted in the damages she was seeking. It is true
that Plaintiff failed to disclose a computation of her
damages prior to the court's order directing her to do
so, but as counsel explained, the amount of damages was
uncertain and difficult to determine given the time periods
involved and the complicated calculations required in order
to provide precise answers. Having reviewed the documentary
support, the court is satisfied that the hours claimed are
reasonable. The lodestar amount is therefore $17, 885.00
(51.1 hours multiplied by $350.00).
calculating the lodestar, the court may, at its discretion,
increase or reduce the lodestar amount by considering the
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5)
the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” ...