Fryer v. A.S.A.P. Fire Safety Corp, Inc.

Full title: Stephen FRYER, Plaintiff, v. A.S.A.P. FIRE AND SAFETY CORP, INC., Joseph…

Court: United States District Court, D. Massachusetts

Date published: Nov 4, 2010

750 F. Supp. 2d 331 (D. Mass. 2010)

Opinion

Civil Action No. 09-10178-MBB.

November 4, 2010.

Jonathan H. Meyer, Backus, Meyer, Solomon, Manchester, NH, Nancy A. Richards-Stower, Law Offices of Nancy Richards, Merrimack, NH, for Plaintiff.

Brian T. Akashian, Law Offices of Kevin J. Murphy, Kevin J. Murphy, Attorney at Law, Chelmsford, MA, for Defendants.

MEMORANDUM AND ORDER RE: PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS (DOCKET ENTRY # 46)

BOWLER, United States Magistrate Judge.

Pending before this court is a motion for attorneys' fees and costs filed by plaintiff Stephen Fryer ("plaintiff"). (Docket Entry # 46). Defendants A.S.A.P. Fire and Safety Corporation, Inc. ("ASAP"), Joseph Sheedy ("Sheedy") and Brian Cote ("Cote") (collectively: "defendants") oppose the motion. (Docket Entry # 52).

Plaintiff seeks attorneys' fees, costs and expenses under 38 U.S.C. § 4323(a)(2)(A), section 150 of Massachusetts General Laws chapter 149 ("chapter 149") and section 1B of Massachusetts General Laws chapter 151B ("chapter 151B"). (Docket Entry # 46). Plaintiff submits that attorneys' fees in the amount of $180,863.21 and costs in the amount of $8,453.29 are reasonable because of the complexity injected into the case by the time constraints of plaintiff's impending deployment, ASAP's record keeping practices and ASAP's failure to fully comply with discovery requests.

PROCEDURAL BACKGROUND

As set forth in the amended complaint, plaintiff, a member of the Massachusetts National Guard, brought claims for violations of the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4311 et seq. ("USERRA"), section 150 of chapter 149 and sections 1B and nine of chapter 151B. (Docket Entry # 12).

During discovery, plaintiff's attorneys Jon Meyer, Esq. ("Attorney Meyer") and Nancy Richards-Stower, Esq. ("Attorney Richards-Stower") (collectively: "plaintiff's counsel") made repeated requests for documents and answers to interrogatories to which they believed defendants did not fully answer. Plaintiff's counsel subsequently filed a motion to compel discovery and for sanctions on September 22, 2009. (Docket Entry # 16). On October 19, 2009, this court denied the motion to compel without prejudice to be renewed if satisfactory production was not made in ten days and ordered the portion of the motion seeking sanctions to be renewed at the end of the case. (Docket Entry # 20). Defendants produced additional documents and made Cote available by telephone to help work through the documents provided. Plaintiff did not renew the motion to compel.¹ (Docket Entry # 46).

1 Plaintiff cites to defendants' production of documents as well as not wanting to risk postponing the trial date as reasons for not renewing the motion to compel. (Docket Entry # 46).

On June 22, 2009, plaintiff voluntarily dismissed counts brought under the Fair Labor Standards Act of 1938, 28 U.S.C. § 201 ("FLSA"), and Massachusetts common law. (Docket Entry # 13). Plaintiff thereafter proceeded to trial on the claims that defendants violated USERRA by failing to reemploy him in his predeployment position, discriminating and retaliating against him because of his military service and terminating him because of his military service. Plaintiff also alleged discriminatory and retaliatory treatment on the basis of his military service under chapter 151B. Finally, plaintiff brought claims for denying him definitely determinable sales commissions in violation of section 148 of chapter 149 and overtime wages in violation of sections 1A and 1B of chapter 151.

With the exception of not finding liability on the part of Sheedy and Cote for lost overtime, the jury found in plaintiff's favor on all claims. In answer to a 31 question verdict form, the jury found defendants liable on the discrimination, retaliation, reemployment and discharge claims under USERRA. The jury awarded plaintiff back pay in the amount of $42,234 consisting of lost wages and benefits. It found that each defendant acted willfully which resulted in a doubling of the award. The jury also found defendants liable on the two chapter 151B claims for discrimination and retaliation. Adhering to the instructions not to award compensatory damages more than once for the same injury, the jury did not award back pay under chapter 151B but did award front pay in the amount of $105,000 and emotional distress damages in the amount of $289,000. In addition, plaintiff was awarded $5,260 as compensation for earned commissions and $4,240 as compensation for lost overtime.

Defendants subsequently filed a motion for a new trial or, in the alternative, a remittitur of the jury's $505,748 verdict. (Docket Entry # 41). Plaintiff opposed the motion (Docket Entry # 48) and this court denied it on January 25, 2010. (Docket Entry # 57). On December 7, 2009, plaintiff filed the motion for attorneys' fees and costs. (Docket Entry # 46). Defendants oppose the amount of fees and various items included in the fee request. (Docket Entry # 52). They maintain that: (1) 554.55 hours of work is excessive and unreasonable for this straightforward employment termination case; and (2) the fee is disproportionate to the results obtained. (Docket Entry # 52).

FACTUAL BACKGROUND

Having set out the factual background in the January 25, 2010 Memorandum and Order (Docket Entry # 57) denying defendants' first motion for a new trial (Docket Entry # 41), it need not be repeated at length.

Plaintiff joined ASAP in January 2006 and in January 2007 he reenlisted in the Massachusetts National Guard. He received a deployment letter in February 2007 at which time ASAP slowed or withheld payment of certain commissions. Plaintiff reported for active duty on May 1, 2007, and went to Kuwait a month later. During his military service, ASAP did not pay the overdue commissions.

When plaintiff returned home in May 2008, ASAP informed him that there were no positions available. Plaintiff sent ASAP a certified letter dated May 22, 2008, formally requesting reinstatement to his position. Plaintiff received a telephone call from ASAP instructing him to report to work on June 30, 2008, in a position that was not plaintiff's predeployment position or a position of like seniority, status or pay. Plaintiff accepted the position but requested to return to his former position.

In late October 2008, ASAP terminated plaintiff. Ample evidence supports viewing the reasons given as pretextual with the real reason being plaintiff's military service and his complaints about not having the benefits and the responsibilities of his predeployment position. Plaintiff submits that his repeated and active attempts to obtain work over the course of the year following his termination proved unsuccessful. He contends that these circumstances compounded the financial difficulties, the emotional stress and the depression he experienced. Plaintiff subsequently received news of another deployment to take place as early as January 2010 and later anticipated for March 2010. (Docket Entry # 46).

DISCUSSION

As mentioned previously, plaintiff seeks attorneys' fees in the amount of $180,863.21 and costs in the amount of $8,453.29. (Docket Entry # 46). While defendants question the reasonableness of the requested amount, they do not directly challenge plaintiff's entitlement to an award. (Docket Entry # 52).

Under the American Rule, each party ordinarily bears his own attorneys' fees absent express statutory authority to the contrary. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 241 (1975). USERRA was enacted in part to "encourage non-career service in the uniformed services" and to "minimize the disruption to the lives of persons performing service in the uniformed services." 38 U.S.C. § 4301(a)(1). Consequently, the statute provides that, "An employee so aggrieved who prevails in such an action . . . shall be awarded the costs of litigation and reasonable attorneys' fees." 38 U.S.C § 4323(a)(2)(A). In light of plaintiff's recovery under USERAA, section 150 of chapter 149 and sections 1B and nine of chapter 151B, he is a prevailing party and thus entitled to attorneys' fees and costs. This court therefore turns to a lodestar analysis to calculate a reasonable fee award.

I. Lodestar Analysis

"The trial court's discretion in respect to fee awards is extremely broad." Lipsett v. Blanco, 975 F.2d 934, 937 (1^st Cir. 1992). In guiding the court's discretion, it is appropriate to calculate the fee using the lodestar method. See Fontaine v. Ebtech Corp., 613 N.E.2d 881, 892 (Mass. 1993) ("in a simple discrimination case, the basic fee award [under section nine of chapter 151B], calculated by the lodestar method, is adequate to achieve the statutory purpose"); Grendel's Den Inc. v. Larkin, 794 F.2d 945, 950 (1^st Cir. 1984). The lodestar method multiplies the total number of hours reasonably spent preparing and litigating a matter by the fair market rate. See Fontaine v. Ebtec Corp., 613 N.E.2d at 892; see also Grendel's Den, Inc. v. Larkin, 749 F.2d at 950.

A. Number of Hours Reasonably Spent

The usual starting place is the billing record supplied by the plaintiffs. See Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d 288, 295-96 (1^st Cir. 2001); accord Killean v. Westban Hotel Venture, LP., 872 N.E.2d 731, 737 (Mass.App.Ct. 2007) (inquiry "should begin . . . with the amount of time documented by the plaintiff's attorney"). Plaintiff is seeking payment for 530.22 hours of time spent by plaintiff's counsel and supporting personnel. Defendants submit that the novelty and complexity should be considered in determining the reasonableness of the number of hours spent. Defendants assert that this is a straightforward termination case and that the requested hours should therefore be reduced accordingly. (Docket Entry # 52).

Plaintiff submits that because of the complexity of the case the number of hours for which award is requested is reasonable. Plaintiff argues that USERRA, enacted in 1994, is a relatively new statute that in the case at bar involved complicated issues of proof. Plaintiff further submits that the trial needed to take place before his possible January 2010 deployment as plaintiff's counsel feared he might return unable to testify, changed in a way that testimony would be ineffective or that he could possibly lose his life. (Docket Entry # 46). Plaintiff's counsel deemed his testimony necessary to the success of his claims because nearly all of plaintiff's potential witnesses remained employed by ASAP. (Docket Entry # 46).

Additionally, according to plaintiff, ASAP's records did not distinguish between earned salary commissions or overtime. The records thus required tedious indexing and mathematical calculations to establish the accurate and provable amount of commissions and unpaid overtime required to recover under a number of the claims. Plaintiff's counsel asserts that ignoring document requests and interrogatories on the part of defendants heightened time and evidentiary constraints. (Docket Entry # 46).

Defendants challenge the following entries as excessive and in need of reduction: (1) five hours to research court rules and electronic filing requirements; (2) over four hours of work in connection with a proceeding before the Massachusetts Commission Against Discrimination ("MCAD"); (3) seven hours to "amend [a] complaint"; (4) over ten hours to "review a file"; (5) 6.67 hours to prepare plaintiff for deposition; (6) 13 hours to draft a motion to compel; and (7) over 31 hours to prepare for plaintiff's direct testimony. (Docket Entry # 52). Calculating "the number of hours reasonably spent" initially involves determining the number of hours spent and then subtracting hours that "were duplicative, unproductive, excessive, or otherwise unnecessary." Grendel's Den, Inc. v. Larkin, 749 F.2d at 950-52;see also Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1^st Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. at 434 ("hours that are excessive, redundant, or otherwise unnecessary" should be excluded from fee request)).

Turning to item number one and reviewing the invoices, throughout litigation plaintiff's counsel spent under five hours researching court rules, federal rules and electronic requirements. (Docket Entry # 46, Ex. 4 6). This research was necessary for the correct filing of plaintiff's claims and is appropriately included in the calculation of attorneys' fees.See, e.g., McLaughlin v. Boston School Committee, 976 F.Supp. 53, 62 (D.Mass. 1997) (legal research appropriate to include in fee calculation).

As to item number two and under Massachusetts law, plaintiff may not resort to the courts for a discrimination claim unless he previously filed a timely complaint with the MCAD. Reidy v. Travelers Ins. Co., 928 F.Supp. 98, 107 (D.Mass. 1996). Attorney Richards-Stower spent less than five hours at the MCAD on June 8, 2009, during which time she made a filing and attended multiple meetings with administrators and staff. (Docket Entry # 46, Ex. 4). Inasmuch as the filing with the MCAD was a prerequisite to the discrimination claim in this court, these hours are appropriately and reasonably included in the fee request.

As to the third item, plaintiff's counsel spent seven hours that defendants challenge as excessive to draft and file the proposed amended complaint. (Docket Entry # 46, Ex. 4). In the amended complaint, plaintiff's counsel added the MCAD and 151B discrimination claims on which plaintiff prevailed at trial. Amending the complaint in this manner was therefore productive and necessary time.

With respect to the fourth item, defendants maintain that 10.8 hours billed by plaintiff's counsel on June 26, 2009, were excessive to "review a file." (Docket Entry # 52). The actual invoices include review of multiple files, draft of "complaint to facilitate," document requests and interrogatories. (Docket Entry # 46, Ex. 4). Given the multiple tasks completed and the necessity for such tasks, the amount of time is reasonable.

With respect to the fifth item, the invoices reflect 6.67 hours billed on July 30, August 5 and August 6, 2009, to prepare plaintiff for his deposition. (Docket Entry # 52). As nearly all of plaintiff's potential witnesses remained employed by ASAP, plaintiff's deposition was crucial to the case. This court therefore finds it reasonable to include this time in the fee request.

Under the sixth item, defendants challenge as excessive the 13 hours billed on September 18 and September 19, 2009, to draft the motion to compel. (Docket Entry ## 52 16). Due to the difficulties faced by plaintiff's counsel during discovery and in light of defendant producing additional documents after the filing of the motion, these hours are both reasonable and productive.

Turning to item seven, defendants submit that over 31 hours spent on November 13, November 14 and November 15, 2009, is excessive to prepare plaintiff for his direct testimony. Despite the important role plaintiff's testimony played in the case, this court reduces the number of hours requested by Attorney Richards-Stower by ten hours to more reasonably reflect the amount of time required given the nature of the task and the experience of plaintiff's counsel. See Torres-Rivera v. O'Neill-Cancel, 524 F.3d at 336.

Defendants next challenge as excessive and not compensable hours spent by both Attorney Meyer and Attorney Richards-Stower to attend depositions, a meeting and court appearances. Defendants point specifically to a three hour meeting on March 24, 2009, depositions, status and pretrial conferences, ² as well as six days of trial where both attorneys billed for their time. (Docket Entry # 52).

2 The invoices reflect 45 hours billed for depositions and court conferences on August 10, September 2, October 13, October 19 and November 12, 2009.

Plaintiff asserts that rather than creating additional hours of billable time, joint attendance enabled counsel to reduce the hours plaintiff's counsel expended on other tasks such as discussion about the meeting, the depositions and court appearances. (Docket Entry # 46). Plaintiff's counsel had a division of labor based on Attorney Meyer and Attorney Richards-Stower's expertise and experience, according to plaintiff. (Docket Entry # 46). Plaintiff further submits that it is not appropriate for "only one attorney to appear for any party in any employment case in federal court or state court." (Docket Entry # 46).

Contrary to plaintiff's position, the "'time of two or three lawyers in a courtroom or conference, when one would do, 'may obviously be discounted.'" Lipsett v. Blanco, 975 F.2d at 938 (quoting Hart v. Borque, 798 F.2d. 519, 523 (1^st Cir. 1986)); see also U.S. v. One Star Class Sloop Sailboat Built in 1930 with Hull No. 721, Named Flash II, 546 F.3d 26, 44 (1^st Cir. 2008) (noting problem of overstaffing in cases involving prospect of fee shifting and that in that case there was not a legitimate need for a second attorney). "A trial court should ordinarily greet a claim that several lawyers were required to perform a single set of tasks with healthy skepticism." United Nuclear Corp. v. Cannon, 564 F.Supp. 581, 590 (D.R.I. 1983). That said, given "the complexity of modern litigation, the deployment of multiple attorneys is sometimes an eminently reasonable tactic." Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d at 297.

Staffing issues are "often best resolved by the trial court's application of its intimate, first-hand knowledge of a particular case's nuances and idiosyncrasies." Wagenmann v. Adams, 829 F.2d 196, 224-25 (1^st Cir. 1987). In consideration of plaintiff's counsel's significant experience in employment law matters, the use of a second attorney at the March 2009 meeting, the depositions and the court conferences was not warranted. Accordingly, the reward will be reduced by $6,440 to account for 18.4 hours of duplicative time billed by Attorney Richards-Stower.

The use of both attorneys during the six days of trial, however, was appropriate. See, e.g., Rini v. United Van Lines, 903 F.Supp. 234, 238 (D.Mass. 1995) ("use of two attorneys to try the case was entirely appropriate and customary"); Computer Systems Engineering, Inc. v. Qantel Corp., 571 F.Supp. 1379, 1381 (D.Mass. 1983) ("nature and complexity of the case warranted in-court use of associate counsel"); Mustapha v. DaimlerCrysler Co., Inc., 2007 WL 4878914, *19 (Mass.Super. Jan. 15, 2007) (presence of second attorney at trial necessary even though he did not examine witnesses because the "case was complicated" and lead counsel needed to confer with the additional attorney). It is also worth noting that defendants had two attorneys of record during the trial.

Defendants additionally challenge fees for hours unreasonably billed for unrelated matters. Specifically, they challenge time spent on plaintiff's civil suit arising out of an automobile accident as well as research on survival of a decedent's claims.³ (Docket Entry # 52). Plaintiff's counsel do not address the inclusion of research for survival of decedent's claims in the fee calculation. They do indicate that they included hours spent on plaintiff's automobile accident case because issues of indemnification and depositions in the automobile accident case directly related to the case at bar. (Docket Entry # 46, Ex. 4).

3 Time sheets dated January 10, January 14, March 25 and April 21, 2009 (Docket Entry # 46, Ex. 4) reflect the time spent on the automobile accident case and the research relative to the survival of a decedent's claims.

The record fails to show a common "core of related facts" or "related legal theories" to justify awarding fees for work done relative to the survival of a decedent's claim. See Garrity v. Sununu, 752 F.2d 727, 734 (1^st Cir. 1984) ("where as here . . . attorneys' fees are allowed to the prevailing party the question becomes whether . . . claims included 'a common core of facts,' or were 'based on related legal theories,' linking them to the successful claim.") (quoting Hensley v. Eckerhart, 461 U.S. at 435); accord Lipsett v. Blanco, 975 F.2d at 940. It was necessary and reasonable that testimony at trial included the automobile accident, however, thereby warranting compensation. Accordingly, the time Attorney Richards-Stower (1.05 hours) invoiced for plaintiff's potential survival of a decedent's claim is not included in the fee award. The remaining hours are appropriate and reasonable. This court therefore turns to the hourly rate.

B. Reasonable Hourly Rate

To determine the reasonable hourly rate, the court "applies the prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the attorneys involved)." Gay Officers Action League v. Puerto Rico, 247 F.3d at 295; see also Andrade v. Jamestown Housing Authority, 82 F.3d 1179, 1190 (1^st Cir. 1996). The prevailing market rate in a community is the rate charged "'for similar services by lawyers of reasonable comparable skill, experience and reputation.'" Andrade v. Jamestown Housing Authority, 82 F.3d at 1190 (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984)). The relevant community for determining hourly rates is the community where the court sits. See Stokes v. Saga International Holidays, Ltd., 376 F.Supp.2d 86, 92 (D.Mass. 2005) (Boston provides "the 'relevant community' against which the rates will be determined"); Parker v. Town of Swansea, 310 F.Supp.2d 376, 388 (D.Mass. 2004); Alfonso v. Aufiero, 66 F.Supp.2d 183, 197 (D.Mass. 1999). With this framework in mind, this court turns to the rates for the attorneys involved noting that plaintiff's counsel voluntarily removed hours from the fee request for claims dismissed in the amended complaint.

With respect to Attorney Meyer, plaintiff seeks to recover a total of $66,484 representing 204.57 hours of work performed through trial at an hourly rate of $325. (Docket Entry # 46). Attorney Meyer submits a declaration to support the hourly rate. (Docket Entry # 46, Ex. 5). Attorney Meyer graduated from Harvard Law School in 1975 and earned his degree cum laude. He has extensive experience representing employees in employment cases and is a former chair of the New Hampshire Bar Association's section on labor and employment law.

Plaintiff additionally requests fees for the services of Attorney Richards-Stower totaling $113,513.21 representing 324.32 hours of work performed through trial at an hourly rate of $350. (Docket Entry # 46). She also submits an affidavit to support the hourly rate. (Docket Entry # 46, Ex. 3). Attorney Richards-Stower's practice began in 1967 and now concentrates exclusively in the representation of employees in matters involving discrimination, retaliation, wrongful termination, whistle blowing and defamation in New Hampshire and Massachusetts. (Docket Entry # 46, Ex. 3). Among Attorney Richards-Stower's numerous legal distinctions, she has been inducted into the College of Labor and Employment Lawyers and in 1993 founded the New Hampshire chapter of the National Employment Lawyers Association.

Plaintiff also provided affidavits by Attorneys Elizabeth Rodgers, Esq. ("Rodgers"), Dahlia Rudavsky, Esq. ("Rudavsky") and Kevin Powers, Esq. ("Powers"). (Docket Entry # 46, Ex. 7, 8, 9). As set out in the affidavits, all three attorneys know plaintiff's counsel, are reputable in the employment law community and have comparable experience in Boston. All recently billed over $350 per hour for their services or received awards reflecting this hourly rate. (Docket Entry # 46, Ex. 7, 8, 9). Rodgers, Rudavsky and Powers endorse the hourly rates of plaintiff's counsel as reasonable if not modest in comparison to the prevailing market rate and their experience. (Docket # 46, Ex. 7, 8 9). Additionally, attorneys' fees in the range of $200 to $375 per hour are not uncommon in the Boston area for attorneys with comparable or less experience than plaintiff's counsel. See, e.g., Stokes v. Saga Intern. Holidays, Ltd., 376 F.Supp.2d at 93 (approving requested $375 hourly rate for 1972 law school graduate with over "30 years of business and commercial litigation experience"); Guckenberger v. Boston University, 8 F.Supp.2d 91, 105 (D.Mass. 1998) (applying "rates for the lawyers in this case ranging from $140 to $325 per hour" with Boston as the relevant community).

Defendants do not address the hourly rates except to submit that: "The trial judge is best positioned after viewing counsel's abilities to determine their 'market rate.'" (Docket Entry # 52). In light of Attorney Meyer and Attorney Richards-Stower's significant experience in employment law matters and the supporting affidavits evidencing a rate commensurate with the rates requested, this court finds the hourly rates of $325 and $350 reasonable and in line with rates of comparably skilled attorneys in the Boston community.

Plaintiff, however, fails to adequately support the requested $85 hourly rate of Attorney Meyer's assistant Patricia Carrel ("Carrel"), the $90 hourly rate of former legal intern Patrick Arnold ("Arnold") and the $85 hourly rate of paralegal Sarah Prescott ("Prescott"). Attorney Meyer simply avers that the "rates charged for their services are the same rates . . . charged for their services to private clients." (Docket Entry # 46, Ex. 5). Plaintiff does not provide any additional information as to their education and experience to support the rates or the location of the private clients as in New Hampshire, Massachusetts or more notably, Boston.

As the fee applicant, plaintiff must provide evidence that establishes the skill and experience of the person for whom fees are requested as well as evidence that informs the court of the relevant prevailing market rate. See Martino v. Massachusetts Bay Transportation Authority, 230 F.Supp.2d 195 (D.Mass. 2002), (interpreting Massachusetts law with regard to state retaliation claim and resultant request for fees); see Calhon v. Acme Cleveland Corp, 801 F.2d 558, 560 (1^st Cir. 1986) (citing King v. Greenblatt, 560 F.2d at 1025). Where the information relative to experience is "lacking, as it was here, we do not think it should be supplied by the district court." Calhoun v. Acme Cleveland Corp., 801 F.2d at 560. Accordingly, this court will exclude fees amounting to $432.50 requested for Carrel, Arnold and Prescott from the fee calculation of the lodestar amount.

C. Adjustment of the Lodestar Amount

Defendants argue that because plaintiff's counsel met with him shortly after he returned from Iraq, they anticipated "this litigation even prior to plaintiff's reemployment and subsequent termination." (Docket Entry # 52). In fashioning the lodestar, "the court can segregate time spent on certain unsuccessful claims, eliminate excessive or unproductive hours, and assign more realistic rates to time spent." Coutin v. Young Rubicam Puerto Rico, Inc., 124 F.3d at 337 (citations omitted). Defendants, however, fail to offer any evidence or identify any authority to support that an early meeting between plaintiff's counsel and plaintiff would make attorneys' fees excessive or unproductive.

Defendants' final argument is that absent the emotional distress damages the jury award is "at best very modest" and that the fee request is clearly disproportionate to the result obtained. (Docket Entry # 52). A court may consider the amount of damages recovered in relation to the amount sought and then lower the amount of attorneys' fee request if appropriate. Farrar v. Hobby, 506 U.S. 103, 114 (1992). Further, success or a downward adjustment based on "the results obtained," is not limited to analyzing success on different claims and their interrelatedness. See Coutin v. Young Rubicam Puerto Rico, Inc., 124 F.3d at 388. "[T]he relief actually achieved" or "the societal importance of the right which has been vindicated" is also of importance. Coutin v. Young Rubicam Puerto Rico, Inc., 124 F.3d at 338.

In the case at bar, plaintiff prevailed on all claims with the exception of the jury not finding liability on the part of Sheedy and Cote for lost overtime. Aside from the emotional distress damages award, plaintiff received an award of back pay in the amount of $42,234 and front pay in the amount of $105,000 in addition to compensation for earned commissions and lost overtime, certainly not insignificant or insubstantial sums. See,e.g., Coutin v. Young Rubicam Puerto Rico, Inc., 124 F.3d at 340 (characterizing $45,000 award as "substantial in absolute terms"). Finally, the lawsuit achieved greater protection of plaintiff's employment rights as well as protection from employment discrimination on the basis of his military service. In the circumstances of this case, therefore, "it goes without saying that reasonable fees should be paid for time productively spent without any discount for limited success." Id. at 399.

Plaintiff did not request an upward adjustment of the fee as calculated. Inasmuch as he bears the burden of justifying an upward adjustment, see Blum v. Stenson, 465 U.S. at 898, and such an adjustment is proper in few cases, Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. at 564-65, an upward adjustment in the instant case is not warranted.

Using the lodestar approach and consistent with the foregoing analysis, an attorneys' fee award comprised of $66,484.5 for the services of Attorney Meyer (reflecting the subtraction of $432.50 for the services of assistants and paralegals) and $103,205.71 for the services of Attorney Richards-Stower (having removed $367.5 for 1.05 hours billed for plaintiff's potential survival of decedent's claim, $3,500.00 for ten hours billed in excess for preparing plaintiff's testimony and $6,440.00 for 18.4 hours billed by both attorneys when a single attorney would have sufficed) is reasonable and represents the objective worth of the services. Plaintiff is thus awarded $169,690.21 in attorneys' fees.

II. Costs

Plaintiff requests an award of $590.90 for costs associated with the work of Attorney Richards-Stower and $7,863.17 for costs associated with the work of Attorney Meyer which includes payment of plaintiff's expert witness. Costs otherwise include those for filing, service fees, copying, travel, parking and depositions. (Docket Entry # 46, Ex. 4). USERRA allows an award of reasonable attorneys' fees, expert witness fees and other litigation expenses. See 38 U.S.C. § 4323(a)(2)(A); see, e.g., Serricchio v. Wachovia Securities, LLC, 2010 WL 1330629, *7 (D.Conn March 31, 2010). Defendants do not address this issue. The expenses are reasonable and customary "out-of-pocket expenses incurred by counsel . . . which are customarily understood as 'attorney's fees.'" Data General Corp. v. Grumman Sys. Support Corp., 825 F.Supp. 340, 368 (D.Mass. 1993) ("out-of-pocket expenses" may include such items as "courier service, computer research, local travel, meals, telephone, postage, and parking"). Having reviewed the invoices, the expenses are therefore compensable. See Data General Corp v. Grumman Sys. Support Corp., 825 F.Supp. at 368;accord Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8^th Cir. 1996).

III. Interest

As a final matter, on January 25, 2010, this court allowed plaintiff's post trial motion for interest (Docket Entry # 45) while noting that applicable postjudgment interest on attorneys' fees and costs will be addressed in conjunction with the motion for fees. (Docket Entry # 56). Postjudgment interest "is to be calculated to affect the entire judgment, including attorney's fees and costs awarded herein." McDonough v. City of Quincy, 353 F.Supp. 2d 179, 192 (D.Mass. 2005); accord Mill Pond Assocs., Inc. v. E B Giftware, Inc., 751 F.Supp 299, 302-03 (D.Mass. 1990). Postjudgment interest will thus be calculated from November 24, 2009. See McDonough v. City of Quincy, 353 F.Supp 2d at 192 ("[p]ost judgment interest runs from the date of entry of the merits judgment"); see also Mogilevsky v. Bally Total Fitness Corp., 311 F.Supp. 2d 212, 224 (D.Mass. 2004). Accordingly, this court awards $69,237.12 in interest calculated at the rate of .41% on the attorneys' fees and costs awarded.

CONCLUSION

In accordance with the foregoing discussion, plaintiff's motion for attorney's fees (Docket Entry # 46) is ALLOWED to the extent that plaintiff is entitled to an award of attorneys' fees and costs in the amount of $178,144.28. In addition, postjudgment interest on attorneys' fees and cost are awarded in the amount of $69,237.12.