United States District Court, D. South Dakota, Southern Division
ORDER AWARDING PLAINTIFF'S ATTORNEY'S
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
matter is before the court on plaintiff Kieshia Mace's
complaint alleging a violation of the Uniformed Services
Employment and Reemployment Rights Act ("USERRA"),
38 U.S.C. §§ 4301-4335. Docket No. 1. After a
successful court trial and appeal, Ms. Mace now seeks an
award of attorney's fees. See Docket Nos. 26, 44
& 49. Defendants Corey Willis and Kickbox Dakota, LLC
(collectively “Kickbox”), oppose the motion.
See Docket Nos. 45 & 50. The parties have
consented to this magistrate judge handling this case
pursuant to 28 U.S.C. § 636(c).
Mace filed her complaint October 27, 2016, after Kickbox
refused to rehire her upon her return from National Guard
duty on August 8, 2016. Ms. Mace originally pleaded claims in
two general subject areas: wrongful termination under USERRA
and wrongful refusal to pay outstanding wages under South
Dakota state law. See Docket No. 1. The state law
claims were voluntarily dismissed after Kickbox provided
discovery to Ms. Mace that it had paid her in full for all
hours she had worked. See Docket No. 20.
one-day court trial on the USERRA claim was held on April 11,
2017, after which the court found in Ms. Mace's favor.
See Docket No. 24. The court concluded Kickbox
willfully violated USERRA under 38 U.SC. § 4312, but
that Ms. Mace had failed to show Kickbox violated 8 U.S.C.
§ 4311 of USERRA, which requires a showing of
discriminatory intent. Id. The court awarded $979.20
in lost wages and an equal amount in liquidated damages.
Id. The court found in favor of a third defendant,
David Borchardt, finding he did not qualify as an employer
under USERRA. Id.
appealed to the Eighth Circuit. Mace v. Willis, 897
F.3d 926 (8th Cir. 2018). Kickbox argued on appeal that the
court had erred in holding it liable under 38 U.S.C. §
4312 because Ms. Mace was not guaranteed any hours when she
had been employed at Kickbox. Id. at 928. Kickbox
also argued that the court had erred in finding its violation
of USERRA to be willful. Id. at 928-29. The Eighth
Circuit affirmed in all respects. Id. at 929.
Mace now seeks an award of attorney's fees as follows:
Appellate Fees (50.6 hrs x $275/hr $904.48 sales
District Court Fees (71.5 hrs x $275/hr $1,
District Court Paralegal Fees (2.8 hours x $95/hr)
TOTAL FEES REQUESTED:
resists Ms. Mace's motion. See Docket No. 50.
Kickbox asserts that no attorney's fees should be awarded
for the appeal because Kickbox took the appeal in “good
faith.” Id. It also characterizes as
“grossly excessive” Ms. Mace's request for
attorney's fees at the trial court level. Id.
Kickbox does not suggest what amount of attorney's fees
it believes the court should award as reasonable fees. It
does not take issue with the hourly rate Ms. Mace's
attorney requests. Finally, it does not point out time
entries which Kickbox believes were unnecessary or excessive.
The Lodestar Method
appropriate amount of attorney's fees is highly
fact-specific to the case. There are two methods of
determining attorney's fees: the lodestar method and the
“percentage of the benefit” method. See H.J.
Inc. v. Flygt Corp., 925 F.2d 257, 259-60 (8th Cir.
1991); Comerica Mortg. Corp. v. Cenlar Fed. Svgs.
Bank, 83 F.3d 241, 246 (8th Cir. 1996); Walitalo v.
Iacocca, 968 F.2d 741, 747-48 (8th Cir. 1992). The court
has discretion to decide which method of determining fees is
appropriate. Comerica Mortg. Corp., 83 F.3d at 246.
Here, Kickbox addresses only the lodestar method, so the
court chooses to employ that method.
lodestar is figured by multiplying the number of hours
reasonably expended by the reasonable hourly rates.
Finley v. Hartford Life & Accident Ins. Co., 249
F.R.D. 329, 332-33 (N.D. Cal. Feb. 22, 2008); Tequila
Centinela, S.A. de C.V. v. Bacardi & Co., Ltd., 248
F.R.D. 64, 68 (D.D.C. 2008); Creative Resources Group of
New Jersey, Inc. v. Creative Resources Group, Inc., 212
F.R.D. 94, 103 (E.D.N.Y. 2002); Kayhill v. Unified
Gov't. of Wyandotte County, 197 F.R.D. 454, 459 (D.
Kan. 2000); and Trbovich v. Ritz-Carlton Hotel Co.,
166 F.R.D. 30, 32 (E.D. Mo. 1996). The burden is on the
moving party to prove that the request for attorney's
fees is reasonable. Tequila Centinela, S.A. de C.V.,
248 F.R.D. at 68; Creative Resources Group, Inc.,
212 F.R.D. at 103; Kayhill, 197 F.R.D. at 459.
the lodestar is calculated, there are twelve factors (the
Johnson factors),  that are relevant in considering
whether that figure should be adjusted up or down:
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service
(4) the preclusion of employment by the attorney due to