Terry A. Batt, Mark S. Ferus and Russell Cannizzo v. Micro Warehouse, Incorporated

241 F.3d 891, 6 Wage & Hour Cas.2d (BNA) 1383, 2001 U.S. App. LEXIS 2841, 2001 WL 195209
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 28, 2001
Docket99-4346
StatusPublished
Cited by27 cases

This text of 241 F.3d 891 (Terry A. Batt, Mark S. Ferus and Russell Cannizzo v. Micro Warehouse, Incorporated) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Terry A. Batt, Mark S. Ferus and Russell Cannizzo v. Micro Warehouse, Incorporated, 241 F.3d 891, 6 Wage & Hour Cas.2d (BNA) 1383, 2001 U.S. App. LEXIS 2841, 2001 WL 195209 (7th Cir. 2001).

Opinion

RIPPLE, Circuit Judge.

Terry Batt, Mark Ferus and Russell Cannizzo, prevailing plaintiffs in a Fair Labor Standards Act (“the FLSA” or “the Act”) action, bring, this appeal to challenge the amount of attorneys’ fees awarded by the district court under the Act. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I

BACKGROUND

Mr. Batt brought this FLSA action seeking liquidated damages for Micro Warehouse’s failure to pay him overtime during his employment. Mr. Ferus and Mr. Cannizzo later joined the action. Micro Warehouse made an offer of judgment to all three plaintiffs of approximately $6,600, excluding attorneys’ fees. All three plaintiffs accepted the offer.

A.

Mr. Batt’s attorney, Ernest Rossiello, submitted ¿ fee petition to the district court in the amount of $12,840.50. The petition requested compensation for 21.6 hours of attorney time and 5.2 hours of paralegal time for litigating the merits of the action. It also requested compensation for 10.5 attorney hours and 2.1 paralegal hours for preparing the fee petition.

Mr. Rossiello requested that he be compensated at the rate of $375 per hour for his time and $110 per hour for his paralegal’s time. In support of his hourly rate, Mr. Rossiello submitted his own affidavit and those of other practitioners. Mr. Ros-siello stated in his affidavit that he had been awarded hourly fees ranging from $250 to $375 in FLSA cases. The affidavits of the other practitioners stated that they believed $375 per hour was “within the market range,” “that Mr. Rossiello’s market rate [was] between $375 per hour and $400 per hour,” and that “an hourly rate of $375 for services rendered by Mr. Rossiello ... [was] reasonable and within the current market range.” R.26, Ex.H5, Ex.I 4 and Ex.J 2. Only one affiant, Robin Potter, gave evidence of actual hourly *893 rates awarded for “similar services”; Attorney Potter stated: “I was paid in excess of $350 per hour for my services as plaintiffs counsel in the FLSA cases noted in paragraph 5_” Id., Ex.H-5.

B.

Micro Warehouse filed a response to Mr. Rossiello’s petition in which it objected both to the amounts of time expended and the rate claimed by Mr. Rossiello. With respect to specific time entries, Micro Warehouse argued that the 10.5 hours Mr. Rossiello spent on the fee application was excessive. As well, Micro Warehouse pointed to numerous entries that it believed were inaccurate, duplica-tive or clerical in nature. With respect to Mr. Rossiello’s rate, Micro Warehouse cited several fee decisions by district courts in this circuit to demonstrate that Mr. Rossiello consistently had been awarded hourly fees of less than $375. In reply, Mr. Rossiello addressed Micro Warehouse’s arguments concerning the amount of time spent on the fee petition and his hourly rate. However, he did not refute Micro Warehouse’s objections to the specific time entries.

C.

In its fee order, the district court “agree[d] with all of the defendant’s objections to the specific time entries that it claim[ed] were unnecessary, clerical, or inaccurate.” R.30. In doing so, it noted that the plaintiffs had failed to offer any reply to the specific objections. Consequently, the court allowed 9.4 attorney hours and .8 paralegal hours for the merits of the action. With respect to the fee petition, the district court concluded that 10.5 hours in litigating the fee petition was excessive. Noting that relatively few hours were devoted to the merits of the case, the district court reduced the time allowed for Mr. Rossiello’s work on the fee petition to two hours; it did not reduce the 2.1 hours of paralegal time.

The district court also addressed the requested hourly rate. Based on Mr. Ros-siello’s affidavits and the cases submitted by Micro Warehouse, the district court determined that Mr¡ Rossiello’s market rate was $350 per hour. The court stated that “even this rate seemed a little high”; nevertheless, it was willing to accept the rate “because plaintiffs properly have provided evidence that such are market rates.” R.30.

The district court’s analysis, therefore, yielded a total fee of $4,280.00: 11.4 hours of Mr. Rossiello’s time at $350 per hour and 2.9 paralegal hours at $100 per hour.

II

DISCUSSION

Under the FLSA, prevailing plaintiffs are entitled to reasonable attorneys’ fees. See Bankston v. Illinois, 60 F.3d 1249, 1255 (7th Cir.1995) (citing 29 U.S.C. § 216(b)). “District courts have wide discretion in determining the appropriate amount of attorneys’ fees and costs; therefore, our review of such determinations is limited to a highly deferential abuse of discretion standard.” Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir.1999). We have explained that “[t]his deferential standard ‘is appropriate in view of the district court’s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.’ ” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).

This court has set forth in detail the analysis that a district court must undertake to determine a reasonable fee in an FLSA case. The district court first must determine the number of hours reasonably expended on the merits of the matter. “[Hjours that an attorney would not properly bill to his or her client in the private sector cannot properly be billed to *894 the adverse party under a fee-shifting statute such as the FLSA.” Id. at 552. Thus, plaintiffs counsel should exclude from his or her request excessive, redundant or otherwise unnecessary expenses; in the event counsel does not exercise such judgment, the district court may reduce the number of hours accordingly. See Hensley, 461 U.S. at 434, 103 S.Ct. 1933.

The court then must calculate the number of hours reasonably expended on preparing the fee petition. This court has stated that “[o]ne factor we consider[] in determining the reasonableness of those hours [is] the comparison between the hours spent on the merits and the hours spent on the fee petitions.” Spegon, 175 F.3d at 554. The relevant inquiry with respect to this determination is “whether the hours claimed to have been expended on the fee request bear a rational relation to the number of hours spent litigating the merits.” Id.

Once the district court has ap plied these principles to determine the appropriate number of attorney hours involved, the court then must determine a reasonable hourly rate. A “reasonable” hourly rate should reflect the “market rate” for the attorney’s services, People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205,

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241 F.3d 891, 6 Wage & Hour Cas.2d (BNA) 1383, 2001 U.S. App. LEXIS 2841, 2001 WL 195209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/terry-a-batt-mark-s-ferus-and-russell-cannizzo-v-micro-warehouse-ca7-2001.