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Katherine Zebroski v. Johanna Gouak

August 11, 2011


The opinion of the court was delivered by: Pratter, J.


After prevailing on one of seven claims at the trial of her employment termination suit before the Honorable John P. Fullam,*fn1 Plaintiff Katherine Zebroski filed a motion for attorney's fees and costs under the Pennsylvania Minimum Wage Law ("PMWL"), 43 P.S. § 333.113, and the Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260.9a(f). Defendants oppose the motion. Oral argument was held on July 1, 2011, and both parties have filed supplemental briefing on the issue.

I. The Case

Ms. Zebroski was a waitress at Erwin's Country Kitchen, a restaurant in Trevose, Pennsylvania operated by Country Flavor, which is owned by Johanna Gouak and Erwin Lauinger. After a series of disputes with the cook, Fernando Esguerra, apparently things got too hot, and Ms. Zebroski was fired. Ms. Zebroski filed suit against her former employers, alleging wrongful termination and accusing them of negligently and recklessly ignoring the fact that Mr. Esguerra had injured and threatened her and of violating the Fair Labor Standards Act ("FLSA") and the PMWL as well. She later amended her complaint to add two FLSA retaliation claims. According to Ms. Zebroski's Amended Complaint, she sought in excess of $150,000 for each count other than the wage claims. Ms. Zebroski contends that at trial, she asked the jury to award damages of $11,702.68 for the FLSA wage claim and $14,352.38 for the PMWL claim. See Supp. Brief in Support of Pl.'s Mot. For Allowance of Attorney's Fees and Costs, at 1.*fn2 After a five-day trial in May 2010, the jury found in favor of Ms. Zebroski on her PMWL claim, awarding her $7,176.19 in damages. The jury found in favor of the Defendants on the remaining six counts.

II. Legal Standard

A court calculates the appropriate fee award by "'multiplying the number of hours reasonably expended on the litigation [by] a reasonable hourly rate,'" which is called the "lodestar." Tobin v. Haverford Sch., 936 F. Supp. 284, 287 (E.D. Pa. 1996) (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). From a procedural standpoint, [t]he party seeking attorney's fees has the burden to prove that its request for attorney's fee is reasonable. To meet its burden, the fee petitioner must submit evidence supporting the hours worked and rates claimed. In a statutory fee case, the party opposing the fee award then has the burden to challenge by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee. The district court cannot decrease a fee award based on factors not raised at all by the adverse party. Once the adverse party raises objections to the fee request, the district court has a great deal of discretion to adjust the fee award in light of those objections.

Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (internal citations and quotations omitted). The Court of Appeals for the Third Circuit has explained how specific a fee petition should be:

A fee petition should include "some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the hours spent by various classes of attorneys, e.g., senior partners, junior partners, associates." However, "it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney." We found sufficient specificity where the computer-generated time sheet provided "the date the activity took place."

Keenan v. City of Philadelphia, 983 F.2d 459, 473 (3d Cir. 1992) (internal citations omitted).

Thus, a district court has "a positive and affirmative function in the fee fixing process, not merely a passive role." Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 178 (3d Cir. 2001). "In reviewing a fee application, a district court must conduct 'a thorough and searching analysis.'" Interfaith Community Organization v. Honeywell Intern., Inc., 426 F.3d 694, 703 (3d Cir. 2005) (quoting Evans v. Port Auth. of N.Y. & N.J., 273 F.3d 346, 362 (3d Cir. 2001)). The Court must determine the reasonableness of both the number of hours expended, as well as the proposed hourly rate. Tobin, 936 F. Supp. at 288. The appropriate hourly rate for attorney's fees purposes is the prevailing market rate in the relevant community, i.e., the "rate charged by attorneys of equivalent skill and experience performing work of similar complexity." Student Pub. Interest Res. Group of N.J., Inc. v. AT&T Bell Labs., 842 F.2d 1436, 1450 (3d Cir. 1988). In each of these matters, the presiding court has considerable discretion when evaluating fee petitions. Bell v. United Princeton Properties, Inc., 884 F.2d 713, 721 (3d Cir. 1989).

When a plaintiff has achieved only partial success, the court may adjust the fee downward, "even where the plaintiff's claims were interrelated, non-frivolous, and raised in good faith." See Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). In determining the degree of success, the Court may compare the amount of damages awarded to the amount requested, but the Court may not use that comparison to simply "maintain some ratio between the fees and the damages awarded." See Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 318 (3d Cir. 2006).

III. Discussion

Obviously, the issue here is what should the appropriate fee award be where an able and experienced Plaintiff's counsel has labored mightily, has honorably accounted for his labors, but the net result to his client pales in comparison to what was hoped for. Seen through the defense's eyes, ought a virtually successful defendant be made to absorb essentially a full complement of fees and costs when the verdict was only a small fraction of what the defendant battled against? This is no simple balancing act and not an occasion for rote application of arithmetical formulae, for the task is to reconcile reality with creditable lawyering.

Plaintiff's counsel claims to have excluded from his statement of fees any time spent solely on unsuccessful claims. Thus, he asserts that a 20% reduction in hours is sufficient to account for the admittedly limited success achieved at trial. He suggests that an hourly rate of $400 is an appropriate rate given his level of experience and expertise in employment matters. Defendants oppose the motion, arguing that (1) a 20% reduction does not adequately adjust for the lack of success represented by a recovery of only approximately 1% of the damages demanded in the Amended Complaint, (2) $400 an hour is much too high a rate for the work involved in bringing the one successful claim--a simple wage and hour claim, (3) Plaintiff's counsel should not be allowed to bill his full rate for tasks that could ...

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