Consolidated Paving Inc v. County of Peoria, Illinois
Filing
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ORDER & OPINION entered by Judge Joe Billy McDade on 6/3/13. IT IS ORDERED that Plaintiff's Petition for Fees 45 is GRANTED IN PART and DENIED IN PART. Plaintiff is awarded $73,011.10 in costs and attorneys' fees pursuant to 42 U.S.C. § 1988. The Clerk is DIRECTED to prepare an amended judgment to this effect. SEE WRITTEN ORDER. (AEM, ilcd)
E-FILED
Tuesday, 04 June, 2013 08:21:36 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CONSOLIDATED PAVING, INC., an
Illinois Corporation,
Plaintiff,
v.
COUNTY OF PEORIA, ILLINOIS,
Defendant.
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Case No. 10-cv-1045
ORDER & OPINION
This matter is before the Court on Plaintiff’s Motion for Fees and Costs (Doc.
45). In response to this Court’s Order dated March 7, 2013 (Doc. 48), Defendant
filed a brief stating its objections to the fee request (Doc. 49). Plaintiff then filed a
brief in response (Doc. 50). For the reasons stated below, Plaintiff is awarded
$73,011.10 in attorneys’ fees and costs.
The background of this case is laid out fully in the Order taking the present
Motion under advisement. (Doc. 48 at 1-3). In that Order, the Court held that
Plaintiff’s Motion was timely, that Plaintiff was the prevailing party, and that it
was therefore entitled to recover attorneys’ fees. However, further briefing was
necessary to determine the amount it would receive. As the Motion is now fully
briefed, it is ready for determination.
DISCUSSION
Plaintiff seeks attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.
Plaintiff originally requested fees in the amount of $88,917.35, based on 246.5 hours
of attorney work and 19.75 hours of legal assistant work. (Doc. 45-1 at 1-2). In the
previous Order, the Court explained that fees for certain work performed would not
be awarded: work preparing Plaintiff’s briefs related to the Motion for Judgment on
the Pleadings and work preparing the Petition for Fees. (Doc. 48 at 10-13).
Plaintiff’s counsel helpfully itemized this work in its Response brief, which indicates
this already disallowed work totals 38.25 hours of attorney work and 3.25 hours of
legal assistant work. Thus, Plaintiff’s modified request, in light of the previous
Order, is for an award of $75,286.10, which is calculated based on 208.25 hours of
attorney work, 16.5 hours of legal assistant work, and $1,161.10 in costs. Defendant
raises challenges to Plaintiff’s attorneys’ fees request, both to the hourly rate and to
the number of hours. It also seeks a reduction based on the limited success it claims
Plaintiff achieved.
In calculating an appropriate attorneys’ fee award, a district court first
determines the lodestar amount, which is the “number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). A court then can adjust that amount based on
a number of factors, including the results obtained by the prevailing party. Id. at
434.
I.
Reasonable Rate
Plaintiff requests fees at the rate of $350 per hour for its attorneys, Mr.
Zabek and Mr. Leiter, and $75 per hour for their legal assistant, Ms. Sutherland.
Defendant argues that the hourly rates Plaintiff requests are unreasonably high,
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and that they should be reduced accordingly. It argues that $350 per hour is much
higher than attorneys in the area charge for similar services.
The Seventh Circuit has repeatedly held that the presumptive market rate,
which the court uses as equivalent to a reasonable rate, is the rate the party’s
attorneys actually charge for comparable work. See, e.g., Uphoff v. Elegant Bath,
Ltd., 176 F.3d 399, 407 (7th Cir. 1999). Further, “the best evidence of whether
attorney's fees are reasonable is whether a party has paid them.” Cintas Corp. v.
Perry, 517 F.3d 459, 469 (7th Cir. 2008). Once the moving party provides evidence
showing the billing rate, “the burden is upon the defendant to present evidence
establishing ‘a good reason why a lower rate is essential.’” People Who Care v.
Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1313 (7th Cir. 1996)
(quoting Gusman v. Unisys Corp., 986 F.2d 1146, 1151 (7th Cir. 1993)). For
example, a court may deviate from the presumptive rate based on the attorney’s
experience. Id. at 1315.
Here, Plaintiff submits a copy of the fee agreement between it and its
counsel, showing that it was billed by its attorneys at the rates it requests from the
Court. (Doc. 50-1 at 1). Further, Plaintiff has already paid the attorneys’ fees at
those rates. (Doc. 50-1 at 3). Defendant, in opposing the submitted rates, provides
exhibits showing lower rates it has paid to attorneys in the area, presumably for
similar cases, though that is not stated. (Docs. 49-1, 49-2). It also points to the
Court’s previous findings that Plaintiff’s counsel’s work has been subpar.
The Court finds Plaintiff adequately showed the presumptive market rate by
demonstrating it had actually paid the requested rate. Defendant did not meet its
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burden of showing a good reason why a lower rate is essential. Defendant may have
paid a lower rate in other cases than Plaintiff has paid its attorneys in this case, but
there could be many reasons for that. Further, problems with inadequate work were
addressed by the Court’s previous determination that certain work would be
uncompensated in its entirety. Thus, the rate of $350 per hour for attorneys and
$75 for the legal assistant, as the rate paid, is a reasonable rate in this case.
II.
Reasonable Hours
To reach a reasonable number of hours expended on litigation, a court should
“exclude hours that are ‘excessive, redundant or otherwise unnecessary.’” Small v.
Richard Wolf Med. Instruments Corp., 264 F.3d 702, 708 (7th Cir. 2001) (quoting
Hensley, 461 U.S. at 434). Hours that would not be properly billed to a client are not
appropriate for fee awards. Hensley, 461 U.S. at 434. Simply asserting that the
hours were necessary and reasonable is insufficient to meet the moving party’s
burden of showing the hours were reasonable. Spegon v. Catholic Bishop of Chi.,
175 F.3d 544, 553 (7th Cir. 1999).
As noted above, Plaintiff requests attorneys’ fees for 208.25 hours of attorney
work and 16.5 hours of legal assistant work. It provides affidavits and various other
documents detailing the tasks performed and time spent on those tasks. (Doc. 45-1
at 4-15). Defendant’s objections to the requested hours will be addressed in turn
below.
First, Defendant argues that Plaintiff should only be awarded attorneys’ fees
for the work done in relation to the preliminary injunction, as that is what makes
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Plaintiff the prevailing party. (Doc. 49 at 4-5).1 It claims no fees incurred after April
26, 2010, the date the written order granting a preliminary injunction was issued,
should be awarded. (Doc. 49 at 4-5). However, as explained in the Court’s previous
Order, Plaintiff would not have been the prevailing party on the basis of the
preliminary injunction had the merits ultimately been resolved against it; rather, it
was the subsequent mooting of the case because of Defendant’s amending the
ordinance, combined with the preliminary injunction, that made Plaintiff the
prevailing party. (Doc. 48 at 7-10). Thus, Defendant’s first objection is meritless. To
the extent it relates to a reduction of the award based on limited success, which
occurs after the lodestar amount is calculated, this contention is addressed below.
Second, Defendant argues that some of the time requested is duplicative,
such as when both attorneys on the case were present for the same telephone
conference. (Doc. 49 at 6). Plaintiff again relies heavily on a presumption that fees
that were paid are reasonable. (Doc. 50 at 8). Though this presumption clearly
applies to the hourly rate, it is unclear that the same holds true for the number of
hours worked, and Defendant cites no cases directly supporting such a proposition.
Even if a presumption does apply, having reviewed the itemization of requested
hours, the Court finds some of the reported hours to clearly be unnecessarily
duplicative. It is not inherently duplicative or redundant for two attorneys to
perform similar or overlapping tasks when working on the same case, but activities
Defendant makes a related argument about “needlessly increasing the cost of
litigation,” but seems to conclude that this issue “has in large part already been
addressed” by the Court excluding some work from the fee calculation. (Doc. 49 at 56). This confusing and undeveloped argument need not be addressed by the Court.
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that should reasonably have been performed by only one attorney should not be
compensated doubly.
Though Plaintiff submitted a “no duplication matrix” in an attempt to show
that no entries were duplicated (Doc. 50-1 at 11-12), which to its attorneys
apparently only meant time was not listed twice for the attorneys discussing the
case with each other, the Court finds time spent by both attorneys on a task that
did not reasonably need the work of two attorneys to be duplicative or excessive. For
example, it was unnecessary for both of Plaintiff’s attorneys to attend a County
Board meeting, even if, as Plaintiff’s counsel represents, they had different reasons
for attending. The Court excludes 11.5 hours from the requested amount on this
basis.2
Third, Defendant claims time spent communicating with the County Board
and at hearings should not be compensated, citing a Third Circuit case. (Doc. 49 at
7). In People Against Police Violence v. City of Pittsburgh, 520 F.3d 226 (3d Cir.
2008), the appellate court noted in a footnote that the district court did not award
compensation for attending city council hearings or corresponding with city officials.
520 F.3d at 236 n.7. It did not explain why. The Court does not find it unreasonable
for Plaintiff’s counsel to attend County Board hearings, particularly given its
attempt to affect change with the problematic ordinance. Defendant does not
expound upon its reason for such a reduction; thus, this argument is rejected.
Where Plaintiff’s counsel listed more than one task within a particular time block,
the Court attempted to determine the amount of time reasonably allocated to the
various tasks. As it is Plaintiff’s burden to prove reasonable hours, the Court erred
on the high side when determining the amount of time that should be excluded for
unreasonable tasks where they were not itemized individually.
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Fourth, Defendant points to seven instances in which Attorney Zabek
communicated with Karrie Alms, who had been running for a County Board seat at
the time, and to one instance in which Mr. Zabek billed for “[r]eview[ing] article
online regarding asphalt comments from bloggers.” (Doc. 49 at 7). It argues these
communications could not possibly have been reasonably necessary. Regarding
communications with Ms. Alms, Defendant argues that any exchange of information
between Ms. Alms and Plaintiff’s counsel would have been unnecessary, as she was
not involved in the case and did not have information that could not have been
received from other sources. Plaintiff asserts that its counsel was communicating
with Ms. Alms as a potential witness, which is reasonable. (Doc. 50-1 at 2). The
Court does not find this to be unreasonable time spent, so will not reduce the award
on this basis. As for reading the online asphalt article, the Court finds no reason
this would be reasonably necessary as part of the litigation. Accordingly, the Court
reduces the hours for the lodestar calculation by a further .5 hours.
Fifth, Defendant argues that Plaintiff’s counsel’s communications with its
agents without its counsel’s permission violates Illinois Rule of Professional
Conduct 4.2, made applicable to attorneys practicing in this Court by Local Rule
83.6(D). (Doc. 49 at 8-9). Plaintiff contends that the “[d]iscussions with Defendant’s
officials and employees were proper and invited by Defendant.” (Doc. 50 at 9).
Plaintiff apparently does not contest that the individuals Defendant lists were
agents of Defendant and that Rule 4.2 applied; thus, the Court will not address this
question. Instead, Plaintiff claims that Defendant’s counsel was aware of the
communications and even participated in many of them, and that Defendant,
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through its agents, sought Plaintiff’s counsel’s consultation on matters related to
the ordinance.
Illinois Rule of Professional Conduct 4.2 states:
In representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court
order.
As noted in one of the comments, the fact that the represented person consents to or
initiates the contact does not make the rule inapplicable. Rule 4.2 cmt. 3. It is the
attorney’s consent that matters. Plaintiff’s counsel’s exhibits do not show
Defendant’s counsel was part of or consented to the specifically contested
communications. The Court finds these communications were not reasonably
expended in the litigation, and should be omitted for purposes of calculating the
lodestar amount. Thus, the request is reduced by 4.5 hours to account for these
improper communications.
Finally, Defendant argues that some of the administrative tasks performed
by the attorneys and legal assistant should not be compensated at the attorney or
paralegal rate, as they should have been delegated to an employee with a lower pay
rate. (Doc. 49 at 8-10). The Court has discretion to reduce hours that are spent on
administrative tasks that reasonably could have been delegated. See Spegon, 175
F.3d at 553. When determining whether fees for paralegal work are reasonable, a
court must determine “whether the work was sufficiently complex to justify the
efforts of a paralegal, as opposed to an employee at the next rung lower on the payscale ladder.” People Who Care, 90 F.3d at 1315.
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Plaintiff argues that the hours it requested for Ms. Sutherland’s time was
mistakenly referred to as paralegal time in its prior filing, and that she is more
properly called a legal assistant. (Doc. 50 at 9-10). This is further supported by the
fee agreement letter Plaintiff’s counsel sent to Plaintiff, setting the legal assistant
rate at $75 per hour and making no mention of any paralegal. Thus, Ms.
Sutherland’s time is evaluated as legal assistant time, and her administrative tasks
are therefore fully appropriate. Further, the minimal, short telephone conferences
Defendant points to, in which Plaintiff’s counsel attempted to schedule or discuss
hearings with the Court, are not unreasonable, even if they could be characterized
as administrative. Attorneys occasionally communicate directly with the Court
staff, particularly to resolve minor issues, which often saves time and expense by
increasing efficiency. These very few instances are not unreasonable and will be
included in the lodestar calculation.
With the reductions in hours for time that was not reasonably necessary to
the litigation, the number of hours applied to the lodestar amount is 191.75 hours of
attorney work and 16.5 hours of legal assistant work. Multiplied by the reasonable
rate determined above, this equals a lodestar amount of $69,511.10, including costs
in the amount of $1,161.10.
III.
Adjustments of Lodestar
Once the lodestar is calculated, a court may adjust the fee upward or
downward based on a number of factors. Hensley, 461 U.S. at 434. The most
important factor for this determination is the degree of success. Id. at 435. A court
is to consider whether the party failed to prevail on other, unrelated claims, and
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whether the level of success makes the hours expended a satisfactory basis for the
fee award. Id. at 434. The emphasis is on the result, not on whether the party
succeeded on each particular ground or contention. Id. at 435.
Defendant argues that because Plaintiff achieved limited success, the fee
award should be reduced to reflect that success. It points to the pleadings and notes
that Plaintiff brought a count for a declaratory judgment and a count for a
preliminary and permanent injunction. (Doc. 49 at 4). Defendant also argues that
because the case was mooted and Plaintiff did not obtain a declaratory judgment or
permanent injunction, its efforts beyond those related to the preliminary injunction
did not result in success.
As noted above, Plaintiff’s success came in part from the mooting of the case,
which happened because of Defendant’s voluntary behavior. Though no final success
on the merits was obtained, that was unavailable because Defendant voluntarily
changed the ordinance in question, mooting the case. In addition, Plaintiff’s
declaratory judgment claim was related to the preliminary injunction, not a distinct
and unrelated claim. Thus, the Court agrees that Plaintiff achieved essentially all of
the results it sought. The ordinance that Plaintiff believed infringed upon its
constitutional rights was changed such that it no longer infringed upon those rights,
in large part because of the Court-ordered preliminary injunction.
Further, the Court finds the number of hours used as the basis for the
lodestar is a satisfactory basis for the fee award. Plaintiff’s counsel, through the
litigation process and much behind-the-scenes work, obtained the results their
client sought, including the ultimate amendment of the ordinance resulting in
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mooting the case. Other courts facing similar fact patterns have reached similar
conclusions, and have not reduced a fee award just because the case was mooted
after the preliminary injunction and thus was not resolved on the merits. See, e.g.,
People Against Police Violence, 520 F.3d at 236-37; Dupuy v. McEwen, 648 F. Supp.
2d 1007, 1027-28 (N.D. Ill. 2009). Because Plaintiff achieved the results it sought,
the Court does not reduce the award below the lodestar amount.
As a final matter, Plaintiff points out that it attempted to stipulate to the
attorneys’ fees, as requested by the Court, and that Defendant made no counteroffer
or attempt to settle the fee dispute. (Doc. 50 at 2). It asks the Court to consider the
hours spent in responding to Defendant’s brief, in excess of 35 attorney hours, as
they would not have been incurred had Defendant been willing to negotiate a
stipulation to the fees. Normally, time spent preparing fee petitions may be
awarded as part of the attorneys’ fees. Kurowski v. Krajewski, 848 F.2d 767, 777
(7th Cir. 1988). Because of the problems noted in the Court’s previous Order, work
on the initial Petition for Fees is excluded from this award. However, the Court
agrees that Plaintiff should receive attorneys’ fees for the work its attorneys
performed in responding to Defendant’s brief, which could have been avoided had
Defendant been open to negotiations as the Court had encouraged. Plaintiff showed
not just the failure to reach a stipulation, but more importantly, Defendant’s
unwillingness to negotiate. The Court finds 35 hours to be excessive, but awards
fees for an additional 10 hours to compensate for preparing Plaintiff’s response to
Defendant’s brief. Thus, an additional $3,500 is added to the lodestar amount
calculated above, resulting in a total award of $73,011.10.
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CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Petition for Fees (Doc. 45) is
GRANTED IN PART and DENIED IN PART. Plaintiff is AWARDED $73,011.10 in
costs and attorneys’ fees pursuant to 42 U.S.C. § 1988. The Clerk is DIRECTED to
prepare an amended judgment to this effect.
Entered this 3rd day of June, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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