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Mace v. Willis

United States District Court, D. South Dakota, Southern Division

September 27, 2018

KIESHIA MACE, Plaintiff,




         This 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.[1] 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).


         Ms. 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.

         A 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.

         Kickbox 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.

         Ms. Mace now seeks an award of attorney's fees as follows:

Appellate Fees (50.6 hrs x $275/hr $904.48 sales tax)

$14, 819.48

District Court Fees (71.5 hrs x $275/hr $1, 295.36 tax)

$20, 957.86

District Court Paralegal Fees (2.8 hours x $95/hr)



$36, 043.34

         Kickbox 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.


         A. The Lodestar Method

         The 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.

         The 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.

         Once the lodestar is calculated, there are twelve factors (the Johnson factors), [2] 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 properly;
(4) the preclusion of employment by the attorney due to ...

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