The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on plaintiff Zane Holder's motion for an award of attorney's fees and costs pursuant to 29 U.C.S. § 2617(a)(3) (Doc. 88). The defendants have objected to various aspects of Holder's request (Doc. 89).
Holder brought this case under the Family and Medical Leave Act ("FMLA") 29 U.S.C. § 2601 et seq. and prevailed on a portion of his claim. Under the FMLA, an award of reasonable attorney's fees and costs is mandatory where judgment is entered in favor of a plaintiff. See 29 U.S.C. § 2617(a)(3); Franzen v. Ellis Corp., 543 F.3d 420, 430 (7th Cir. 2008).
The parties agree that the Court should determine an appropriate fee beginning with the lodestar method, which involves "multiplying the number of hours the attorney reasonably expended on the litigation times a reasonable hourly rate." Mathur v. Board of Trs. of S. Ill. Univ., 317 F.3d 738, 742 (7th Cir. 2003) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court can then adjust the total amount based on various factors specific to the litigation. Mathur, 317 F.3d at 742 & n.1.
Holder's counsel requests an attorney fee of $64,925.00 ($265 per hour for 245 hours), a paralegal fee of $2,606.25 ($75 per hour for 34.75 hours), costs and other expenses of $1,586.79, for a total award of $69,118.04. The defendants object to various aspects of this request, which the Court will address in turn.
I. Reasonableness of Attorney Hourly Rate
A reasonable hourly rate is presumed to be an attorney's actual billing rate for comparable work. Mathur v. Board of Trs. of S. Ill. Univ., 317 F.3d 738, 743 (7th Cir. 2003). Indeed, "the best evidence of the market value of legal services is what people will pay for it." Stark v. PPM Am., Inc., 354 F.3d 666, 675 (7th Cir. 2004). The fee applicant bears the burden of proving his market rate, but once he does this, the opposing party may attempt to convince the Court that a lower rate is justified. Stark, 354 F.3d at 674-75. "Only if an attorney is unable to provide evidence of her actual billing rates should a district court look to other evidence, including rates similar experienced attorneys in the community charge paying clients for similar work." Mathur, 317 F.3d at 743 (omitting internal quotation marks).
Holder's counsel has provided evidence that when he bills a client at a straight hourly rate he charges $200, but that he charges more in cases where payment may be delayed until the end of a case and is contingent on some sort of recovery. He agreed with Holder that Holder would not pay more than $2,500 out of pocket in legal fees, that if the case settled he would receive $265 per hour, and if the case went to trial he would receive $325 per hour. The defendants argue counsel should receive only $200 per hour in this case because that is what he has actually charged and received from a client in the past and therefore is his actual billing rate.
The Court agrees with the defendants. Holder's counsel is able to command $200 per hour in the legal market, which is his presumptive market rate, and was prepared to charge Holder far less should the case not have turned out in his favor. A reasonable attorney billing rate for Holder's counsel is $200 per hour.
II. Reasonableness of Number of Hours
The Court should not allow payment for hours spent by counsel that would not ordinarily be billed to a paying client or are easily delegated to non-professional staff such as a secretary. See Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 553 (7th Cir. 1999). Such hours are not reasonable or necessary. Id.
The defendants argue that several items should not be billed as an attorney (preparing an appendix in response to a summary judgment motion) or paralegal work (preparing civil cover sheet, summons and correspondence) because they are secretarial in nature. The Court notes that the appendix time entry also includes reviewing documents to be used in response to a summary judgment motion, work appropriately performed by an attorney, and can be performed simultaneously with preparing the appendix. It may be billed as attorney work.
As for paralegal work, preparing a civil cover sheet involves some legal judgment that involves more than pure secretarial skills. Preparing letters to a client and to opposing counsel likewise may involve more than secretarial skills. These tasks may be properly billed as paralegal work. Preparing summons, however, ...