Sommerfield v. City of Chicago et al

Filing 760

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 8/25/2017:Before the Court is a Motion for Additional Attorneys Fees [ECF No. 746] filed by Joseph Longo, counsel for Plaintiff Detlef Somerfield. Because the Court sees no reason to increase Longos fees beyond what it has awarded him, the Motion is denied.Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DETLEF SOMMERFIELD,
Plaintiff,

Case No. 06 C 3132

v.

Judge Harry D. Leinenweber

CITY OF CHICAGO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is a Motion for Additional Attorney’s Fees
[ECF

No.

746]

filed

Detlef Somerfield.
Longo’s

fees

by

Joseph

Longo,

counsel

for

Plaintiff

Because the Court sees no reason to increase

beyond

what

it

has

awarded

him,

the

Motion

is

denied.
I.

BACKGROUND

“Fee litigation has become a heavy burden on the federal
courts.

It can turn a simple civil case into two or even more

cases – the case on the merits, the case for fees, the case for
fees on appeal, the case for fees for proving fees, and so on ad
infinitum, or at least ad nauseam.”
983, 987 (7th Cir. 1988).

Ustrak v. Fairman, 851 F.2d

The Court is here faced with such an

ad nauseam fee dispute.
After
managed

to

years
win

of
for

protracted
his

client

litigation,

Attorney

$30,000

his

in

Title

Longo
VII

discrimination

suit.

For

his

efforts,

Longo

requested

$1.5

million in attorney’s fees, representing 3,742 hours worked at
an hourly rate of $395.
requested the fees.
recouped

from

directly,

as

beyond

an

(Technically, it was Plaintiff who

However, Longo has made clear that any fees

Defendant
Plaintiff

hour-long

City
had

of

not

Chicago
paid

consultation.

are

Longo

The

to

for

Court

go

his

thus

to

him

services
refers

to

Longo as the movant in these fee petitions.)
Magistrate Judge Jeffrey Cole thought the requested $1.5
million “unreasonable and unsustainable” and recommended against
awarding it.

Sommerfield v. City of Chi., No. 06 C 3132, 2012

U.S. Dist. LEXIS 155064, at *45-46 (N.D. Ill. Oct. 29, 2012)
(Cole, M.J.).

In his careful analysis, Judge Cole examined one

by one the objections lodged by the City of Chicago to Longo’s
claimed hours and found many of them meritorious.
the

judge

disallowed

time

spent

on

motions

As a result,
that

were

“frivolous,” “manipulative,” “riddled with errors,” in violation
of

the

local

rules,

or

overall

representative

of

“Longo’s

insistence on filing unreasonable motions, which needlessly took
the

courts’

time,

thereby

significantly

affecting

the

due

administration of justice by limiting the time the judges in
this

case

attention.”

could
Id.

devote
at

to

*30-32,

other
35.
- 2 -

cases
The

which

judge

needed

further

their

rejected

Longo’s contention that he should be paid at an hourly rate of
$395.

Judge Cole reasoned that if Longo “were to be paid what

competent, rule-abiding lawyers in comparable cases are paid,”
the

result

lawyers

would

to

Finally,

be

conduct

Judge

to

“create

themselves

Cole

a

perverse

disincentive

professionally.”

recommended

that

Longo’s

Id.

at

total

for
*45.

fees

be

halved due to his limited success on the case.
Longo fought unsuccessfully against the adoption of Judge
Cole’s

recommendations.

magistrate’s

report,

thus

This

Court

cutting

adopted

Longo’s

in

hours

full
to

the

2,878,

reducing the hourly rate to $300, and applying a 50% discount to
the total fees allowed to reflect the lack of success in the
underlying case.

Sommerfield v. City of Chi., No. 06 C 3132,

2013 U.S. Dist. LEXIS 3715, at *26 (N.D. Ill. Jan. 10, 2013)
(Leinenweber, J.).
in fees.

All told, the Court awarded Longo $430,000

He appealed – and lost.

The Seventh Circuit affirmed this Court’s fee award in all
respects.

Sommerfield v. City of Chi., Nos. 12-1506, 13-1265,

2017 U.S. App. LEXIS 12443, at *16 (7th Cir. July 12, 2017).
Calling the fees sought a “princely” sum, the court affirmed
that this amount of fees was unjustified given Longo’s limited
success in the case. Id. at *4.

As the court stated, “Longo

spent over a decade on a case in which he lost on most claims
- 3 -

and netted his client $30,000.” Id. at *13.

The court concluded

that a reduction for limited success was “entirely appropriate”
under such circumstances, as were the excision of “unnecessary”
hours and a lower hourly rate due to Longo’s “poor performance.”
Id. at *11-13.
Table 1 summarizes the outcome from this first round of the
fee dispute.

As can be seen, Longo ultimately recovered 29% of

the fees that he requested ($430,000/$1,496,575).

In addition,

of the $430,000 recovered, a non-negligible amount was agreed to
by the City of Chicago ($116,561).

As such, of the amount that

was actually in dispute, Longo proved that he was entitled to
only

20%

of

the

amount

requested

(($430,000-

116,561)/$1,496,575).
Table 1:

Hourly Rate
Number of Hours
Lodestar
(Hourly Rate x
No. of Hours)
Adjustment
Final Amount

Summary of First Round of Fee Disputes
As Requested by As Agreed to by
Plaintiff
Defendant
$395/hour
$275/hour
3,742 hours
2,742 hours
$1,478,090
$754,050

No adjustment
$1,496,575

Reduce by 85%
$116,561

As Awarded by
the Court
$300/hour
2,878 hours
$863,400

Reduce by 50%
$430,000

Note:
Except for the Final Amount field, the above figures
exclude the work done by Longo’s associate.
The associate
performed only about 70 hours of work and her fees were not
disputed.
Despite having thrown good money after bad by fighting the
Magistrate Judge’s recommendations and appealing the fee award,
- 4 -

Longo followed up on this first-round effort with yet another
petition for fees and costs.

In this Motion now before the

Court, Longo asks to be compensated for proving the first round
of fees.

That is, Longo requests compensation for all the work

he did after the Court entered the $30,000 judgment in favor of
his client in March 2012.

As Longo’s records make clear, this

work includes administrative tasks like “dictate new date for
docket; calendar date; [and] ensure inclusion of new date in
docket.”

See,

generally,

ECF

No.

747,

Ex.

17.

Other,

more

substantive tasks include all the work Longo did in pursuit of
the $1.5 million fee request, without regard to whether the work
was successful in netting him any extra dollar.

For example,

Longo seeks compensation for the 45 hours he spent objecting to
Magistrate Judge Cole’s recommendations, recommendations which
were adopted in full by this Court and affirmed on appeal. Id.
at 14-15.

In the same vein, Longo asks to be paid at the

already-rejected rate of $395 per hour.

Since he claims to have

worked for more than 300 hours on the fee issue, the total
amount he wishes the Court to bill to the City of Chicago comes
to about $120,000.
Longo also seeks costs.

Specifically, he asks for $246.15

to cover the cost of shipping, transcripts, and court reporter
attendance associated with his work on the matter of fees.
- 5 -

This

is to come on top of the $9,586.40 in costs the Court already
taxed in recognition of the expenses incurred in the underlying
litigation.

See, Sommerfield v. City of Chi., No. 06 C 3132,

2012 U.S. Dist. LEXIS 155720, at *13 (N.D. Ill. Oct. 31, 2012).
Table 2 summarizes the amount of money requested during the
second round, juxtaposing it to the amount awarded for Longo’s
efforts during the decade-long merits stage of the case.
Table 2:

Second Round Attorney’s Fees and Costs Requested
First Round
Awards by the
Court
$9,586.40
$300/hour
2,878 hours
$863,400

Reduce by 50%
$430,000

No Reduction
$122,292

Costs
Hourly Rate
Number of Hours
Lodestar
(Hourly Rate x
No. of Hours)
Adjustment
Final Fees
Amount

Second Round
Requests by
Plaintiff
$246.15
$395/hour
309.6 hours
$122,292

For the reasons stated below, the Court denies the feesfor-fees petition in its entirety.
II.

LEGAL STANDARD

In a Title VII case like the one at bar, the Court “in its
discretion, may allow the prevailing party . . . a reasonable
attorney’s
standards

fee.”
for

42

U.S.C.

determining

§ 2000e-5(k).
reasonable

Moreover,

attorneys’

fees

“[t]he
in

a

Title VII action are the same as those used to determine 42
- 6 -

U.S.C. § 1988 fees,” or those awarded in civil rights cases.
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 n.1 (7th
Cir. 2011).

This means that the standards set by the Supreme

Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), govern the
analysis in this case.
In Hensley, the Supreme Court cautioned that “[a] request
for

attorney’s

litigation.”

fees

should

not

result

Hensley, 461 U.S. at 437.

in

a

second

major

Accordingly, a fee

applicant should exercise “billing judgment” and “make a goodfaith

effort

excessive,

to

exclude

redundant,

or

from

a

fee

otherwise

(internal quotation marks omitted).

request

hours

unnecessary.”

that

Id.

at

are
434

Should such an effort not

stave off major disputes on the proper amount of fees to be
awarded, then “the most useful starting point for determining
the amount of a reasonable fee is the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate.” Id. at 433.

The burden is on the fee applicant to prove

this lodestar figure. Id.
Moreover, the lodestar should be adjusted downward where
the applicant has achieved less than excellent results.
Hensley, 461 U.S. at 434-36.

See,

Because “the most critical factor

is the degree of success obtained,” a court should always ask,
“did the plaintiff achieve a level of success that makes the
- 7 -

hours reasonably expended a satisfactory basis for making a fee
award?”

Id. at 434.

If the answer to this question is no, then

the court “may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award.”

Id. at 436-67.

Within this framework, the district court exercises wide
discretion, and its decision to award or deny fees is reviewed
with deference.

Hensley, 461 U.S. at 437; Pickett, 664 F.3d at

639; Ustrak, 851 F.2d at 987.

In particular, the court has the

discretion to deny a fee petition in its entirety.

See, Budget

Rent-A-Car Sys. v. Consol. Equity LLC, 428 F.3d 717, 718 (7th
Cir. 2005) (quoting with approval the holding from Fair Housing
Council of Greater Washington v. Landow, 999 F.2d 92, 96-97 (4th
Cir. 1993), that “a district court has the discretion to deny a
request for attorneys’ fees in its entirety when the amount of
the

request

is

grossly

excessive”)

(internal

quotation

marks

omitted); In re Burlington N., Emp’t Practices Litig., 832 F.2d
430, 434 (7th Cir. 1987) (“[A] fees award for fees litigation
can be reduced, even to nothing, so that the award is reasonable
when considered in light of all the circumstances of the case.”)
(internal quotation marks omitted); Muscare v. Quinn, 680 F.2d
42, 45 (7th Cir. 1982) (ruling that “the district judge had
discretion to deny the plaintiff’s second fee request in its
entirety”).
- 8 -

The Seventh Circuit has specifically applied this principle
to fees-for-fees petitions like the one at bar.

See, Muscare,

680 F.2d at 45 (affirming a complete denial of attorney’s fees
sought for proving fees); Burlington, 832 F.2d at 434 (holding
that

Muscare

comports

with

the

analysis

in

Hensley).

In

particular, the court has laid out a three-step approach which a
district

judge

may

use

to

determine

whether

a

plaintiff

is

entitled to any additional fees for his work in proving fees:
First, the district court should assess the results
obtained by the litigation; second, the district court
should next measure the extent of plaintiffs’ success
by comparing the results obtained from the lawsuit
with the relief plaintiffs sought; and finally, the
district court is to structure an award that is
reasonable in light of the plaintiffs’ success.
Burlington, 832 F.2d at 435.

The Court follows this approach

below.
As
grant

for

or

costs,

deny

the

costs

as

Court
it

retains

does

with

the

same

fees.

Lindgren, 856 F.3d 498, 502 (7th Cir. 2017).

discretion
See,

Baker

to
v.

While FED. R. CIV.

P. 54(d) creates a presumption in favor of awarding costs, this
presumption comes with two caveats. First, it only applies to
those costs that fall within the categories enumerated in 28
U.S.C. § 1920.

See, id.; Firestine v. Parkview Health Sys., 374

F.Supp.2d 658, 671 (N.D. Ind. 2005) (“Rule 54(d) works in tandem
with

28

U.S.C.

§ 1920

and

cannot
- 9 -

be

stretched

beyond

the

parameters

defined

unenumerated

in

in

section

section

alteration marks omitted).
a “prevailing party.”

1920

1920.”)

to

encompass

(internal

charges

quotation

and

Second, costs may be awarded only to

See, FED. R. CIV. P. 54(d)(1). “In a case

with mixed results, the district court has the discretion to
determine whether a party” prevailed.

Baker, 856 F.3d at 502.

With these principles in mind, the Court turns to Longo’s
petition.
III.
The
seriatim.

Court

approaches

ANALYSIS

the

relief

sought

in

the

petition

It begins with Longo’s fee request and then moves to

consider his plea to be reimbursed for costs.
A.
Because

the

Court

Attorney’s Fees
concludes

that

Longo

claimed

an

exorbitant amount of fees in the first fee petition, spent an
unnecessary amount of time presenting the petition, and achieved
little to no success for his efforts, it awards him no fees on
his second-round petition.
As may be recalled, Longo asks for $122,292 for his work in
proving fees, or more than a quarter of the amount he obtained
for all the work unrelated to fees.

See, supra, Table 2.

Even

were the Court to do a line-by-line analysis of all the time
entries Longo has submitted – a time-consuming task given there
- 10 -

are over 20 pages of such entries – it would immediately deny
payment for a substantial chunk of the work.

But see, Tomazzoli

v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) (“[I]t is generally
unrealistic to expect a trial court to evaluate and rule on
every entry in an application.”).
For

one,

the

Court

would

administrative or clerical work.
to

non-professional

staff

and

under Seventh Circuit case law.

exclude

any

time

expended

on

Such work is easily delegated
therefore

should

be

disallowed

See, Spegon v. Catholic Bishop,

175 F.3d 544, 553 (7th Cir. 1999); Alcazar-Anselmo v. City of
Chicago, No. 07 C 5246, 2011 U.S. Dist. LEXIS 82291, at *21-22
(N.D. Ill. July 27, 2011) (Leinenweber, J.) (“All of the 39.5
hours that Botello worked, however, appear to be clerical, and
are

not

recoverable.”);

Eli

Lilly

&

Co.

v.

Zenith

Goldline

Pharms, Inc., 264 F.Supp.2d 753, 763 (S.D. Ind. 2003) (refusing
to

award

secretarial

time

because

“[a]

lawyer’s

rates

are

expected to include compensation for required administrative and
secretarial

help”).

Longo

argues

that

he

is

a

solo

practitioner, and on this basis, claims that he should be paid
the same $395/hour rate for whatever work he performs.
proposition finds no support in precedent.
Simon,

755

F.3d

547,

565-66

(7th

Cir.

This

See, Montanez v.

2014)

(affirming

the

district court’s decision to disallow “time billed for clerical
- 11 -

work

that

was

nonetheless

recorded

at

an

attorney’s

rate”);

Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717 (5th
Cir. 1974) (“It is appropriate to distinguish between legal work
. . . and other work which can often be accomplished by nonlawyers but which a lawyer may do because he has no other help
available.

Such

non-legal

work

.

.

.

is

not

enhanced

[in

compensable value] just because a lawyer does it.”).
For another, the Court would strike all time entries spent
on tasks that Longo knew to be useless.

This includes any time

Longo expended to argue, yet again, that he deserves a $395
hourly

rate.

Magistrate

Judge

Cole

had

minced

no

words

in

explaining why Longo cannot be compensated at this rate, and the
Court adopted Judge Cole’s recommendation.

Yet in this Petition

(which he seeks to be compensated for), Longo again presses for
that rate.

Worse yet, he relies on the same arguments, already

raised and rejected, to urge for this hourly rate.

At bottom,

the arguments boil down to nothing more than that Longo has been
an attorney for 30 years and that his tenure alone, uncoupled
from any skillfulness or competence shown in prosecuting the
case, justifies payment of $395 for every hour worked.
The Court rejects this contention once more.

See, Perdue

v. Kenny A., 559 U.S. 542, 555 (2010) (stating that an hourly
rate may not accurately measure an attorney’s market value if it
- 12 -

“takes into account only a single factor (such as years since
admission to the bar)”); Johnson, 488 F.2d at 719 (“Longevity
per se, however, should not dictate the higher fee.”).

As far

as the Court can tell from the latest fee Petition, Longo’s
skills as an attorney have not much changed since Judge Cole
assessed

them.

As

such,

neither

should

his

hourly

rate

be

increased, nor the time spent arguing otherwise be remunerated.
With all this said, the Court takes a different route in
determining that Longo should be awarded no additional fees.

It

takes a look at the litigation in its two phases – merits and
fees – and from this examination, structures an award that is
reasonable in light of all the circumstances of the case.

See,

Burlington, 832 F.2d at 434-35 (endorsing such an approach).
Here, the merits stage of the case is summarized not just by the
$30,000

that

Plaintiff

recovered.

Indeed,

this

is

all

that

Plaintiff won, but the end result does not capture Longo’s means
in getting there.

In the years in which he prosecuted the

merits of the case, Longo engaged in a pattern of litigation
tactics

that,

sanctions
order,”

time

filing

as

Judge

Cole

and

again,

“ignoring

motions

that

recounted,

were

court

included
order

“frivolous,”

risking

after

court

“manipulative,”

“inordinately stale,” “disingenuous,” “baseless,” “nonsensical,”
and generally making unnecessary work for all parties involved
- 13 -

by “evincing an unwillingness to take no for an answer when his
motions were denied.”
at *25-40.
thereby

Sommerfield, 2012 U.S. Dist. LEXIS 155064

All told, Longo “needlessly took the courts’ time,

significantly

affecting

the

due

administration

of

justice.” Id. at *31.
This conduct persisted to the fees stage of the litigation.
In presenting the first fee petition, Longo continued to indulge
his “penchant for needlessly dilating the proceedings . . . thus
unreasonably multiplying his fees and his opponents’ costs.” Id.
at *10.

The petition itself demonstrates that Longo exercised

no “billing judgment,” contrary to what is required by precedent
and

ethical

particular,

norms.

for

every

434.

In

rarely equals the number of hours reasonably expended.”

Ohio-

“the

billed

at

worked

that

have

U.S.

actually

fact

to

461

worked

the

seems

Hensley,

hour

despite

he

See,

number

of

hours

Sealy Mattress Mfg. Co. v. Sealy, Inc., 776 F.2d 646, 651 (7th
Cir. 1985) (emphasis removed).

Nowhere is this more evident

than in the fact that Judge Cole had to strike more than 800 of
the hours claimed.
Longo’s inflated bill is a reason not only to cut down on
the fees awarded for work on the merits but also to deny the
fees-for-fees
(“Generally,

Motion.
the

court

See,
has

Firestine,
discretion
- 14 -

374
to

F.Supp.2d

deny

all

at

the

668

hours

spent preparing a fee petition if the petition is ‘exorbitant,’
thus multiplying work for the opposing party and the court.”).
This is exactly what the court in Eli Lilly did.

The plaintiff

in

preparing

an

devoted

to

that

case

“extravagant”
“attempts
expenses.”

to

had

spent

fee

petition,

justify

a

number
much

excessive

of
of

hours
which

and

on
were

unreasonable

Eli Lilly, 264 F.Supp.2d at 784.

fees

and

Finding that the

result of such a fee petition “was to multiply work for [the
defendant]

and

for

the

court,”

forcing

both

to

“deal[]

with

matters that never should have been submitted,” the court denied
altogether Eli Lilly’s fee request for proving fees. Id. The
case at bar is indistinguishable from Eli Lilly, and the Court
is inclined to the same outcome.
Concomitantly, that Longo’s request was for an excessive
and unreasonable amount of fees explains his lack of success in
getting those fees.

Because the degree of success obtained is

crucial to determining the proper amount of fees to be awarded,
the fact that Longo obtained only 30% of the fees he sought, and
only 20% of what was in dispute, further inclines the Court to
refuse him any more fees.

Hensley, 461 U.S. at 436-37, 440.

Indeed, the Seventh Circuit leaned heavily on this factor in its
previous examinations of fees-for-fees petitions. In Burlington,
832 F.2d at 435, the court affirmed the trial judge’s decision
- 15 -

to

reduce

counsels

counsels’

had

fees-for-fees

succeeded

in

request

obtaining

sought in their first-round fee petition.

a

42%

only

by

of

third
the

when
amount

The court also noted

that much of the time spent on the first-round petition was
devoted

to

an

circumstances

issue
of

that

this

counsels

case,

in

lost.

which

This

Longo

mirrors

obtained

the

but

a

fraction of what he had sought and expended much time on issues
that

he

lost,

e.g.,

the

adoption

of

Judge

Cole’s

recommendations.
Of

course,

Burlington.

Longo

did

even

worse

than

counsels

in

His rate of recovery is closer to that of the

plaintiff in Muscare.

There, the plaintiff’s lawyer had sought

$41,000 in fees and received only $8,000 (20%); nonetheless, he
returned for a second round, asking for an additional $10,000
for his success in obtaining the $8,000.
43-44.

Muscare, 680 F.2d at

The district court refused to award any fees, and the

Seventh Circuit affirmed.
Writing

for

the

court

in

Muscare,

Judge

Richard

Posner

explained that awarding fees for proving fees may provide too
much

of

an

incentive

to

litigate,

overcompensate plaintiffs’ lawyers.
44-45.
previous

This

Court

occasion,

has

echoed

where

it,

as

- 16 -

successive

awards

See, Muscare, 680 F.2d at

Judge
too,

the

Posner’s
denied

a

concern

on

a

fees-for-fees

petition.

See, Alcazar-Anselmo, 2011 U.S. Dist. LEXIS 82291 at

*17-18 (“If a prevailing attorney could recover fees for all of
the work on a fees petition, he would be motivated to pile on
the hours for a petition.
it,

to

deny

this

fee

The Court has discretion, and uses

request

for

proving

fees.”).

Longo

certainly “pile[d] on the hours” in this case, and as the hours
led to little other than unnecessary work “affecting the due
administration of justice,” he should not be paid any more for
them than he already has.

Sommerfield, 2012 U.S. Dist. LEXIS

155064 at *31.
The Court makes this judgment in light of all the facts of
this case.
have

Under certain circumstances, fees-for-fees petitions

become

society’s

“the

tail

penchant

distasteful

that

for

impression

wags

the

litigation,”
that

dog,”

and

evidence

reinforcement

“attorneys

litigate

of
of

fees

“our
the
with

greater energy and enthusiasm than they litigate any other type
of issue.”
Illinois,

Ustrak, 851 F.2d at 988; Nanetti v. University of
944

F.2d

1416,

1417

(7th

Cir.

1991).

Such

circumstances present themselves when the client has recovered
nothing other than a modest sum of damages; the attorney has
largely

failed

on

the

first-round

motion

for

fees;

and

the

cumulating fee petitions, by their exorbitant and unreasonable
nature,

create

unnecessary

work
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for

the

fee

applicant’s

counterparty and the court.

This trifecta of conditions infects

this case and thus leads the Court to deny the petition in full.
Having decided to award Longo no additional fees, the Court
now considers the costs portion of his Petition.
B.

Costs

Given the mixed results Longo achieved in the fee disputes,
the Court finds that he was not the prevailing party for the
purposes of taxing costs under FED. R. CIV. P. 54(d).

As such, he

is not entitled to any costs.
In a battle for costs, “the ‘prevailing party’ is the party
who

prevails

as

to

the

substantial

part

of

the

litigation.”

Testa v. Vill. of Mundelein, 89 F.3d 443, 447 (7th Cir. 1996).
(This

is

a

different

and

more

stringent

applicable to attorney’s fees awards.
502-03.)
petition

The
is

relevant

Longo’s

litigation

first-round

standard

than

that

See, Baker, 856 F.3d at
in

this

petition,

second-round

since

this

is

portion of the litigation for which Longo now seeks costs.

fee
the
See,

Muscare, 680 F.2d at 44.
There is no clearer evidence that Longo did not prevail in
his first-round fee petition than that he appealed the Court’s
decision disposing of that Motion.

The logical equivalence of

the statement “[y]ou cannot persist in suing after you’ve won”
is that if one persisted, then one did not win.
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Greisz v.

Household Bank, N.A., 176 F.3d 1012, 1015 (7th Cir. 1999).
short,

Longo

because
appeal.)
At

he

appealed

lost

the

it.

outcome

(In

of

contrast,

the
the

first
City

fee

made

In

petition
no

cross

The losing party cannot tax costs.
the

sufficiently

least,

the

mixed

result

that

the

from

the

Court,

disallow costs to both parties.

in

first
its

petition

was

discretion,

may

As noted previously, of the

$1.5 million that Longo sought, he won less than 30% – meaning
that he lost the remaining 70%.
got

an

hourly

rate

that

was

The City, on the other hand,
close

to

what

it

wanted

essentially just the hours it claimed were reasonable.
supra, Table 1.

and
See,

Even if the City did not get its way in all

respects, then still it succeeded much more substantially than
Longo.
lose

That the City did not win everything and Longo did not

everything

do

not

change

the

fact

that

Longo

did

not

prevail.
Even if the Court were to overlook the fact that Longo was
not the prevailing party in the first fee petition, still it
would deny him costs.

Of the three categories of costs that he

claims – shipping, transcripts, and court reporter attendance –
shipping falls outside of the enumerated costs under 28 U.S.C.
§ 1920 and so is not compensable.
with

others,

have

specifically

Indeed, this Court, along

found

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shipping

costs

to

be

unrecoverable.

See, e.g., Blackwell v. Kalinowski, No. 08 C

7257, 2011 U.S. Dist. LEXIS 89562, at *7 (N.D. Ill. Aug. 11,
2011); Menasha Corp. v. News Am. Mktg. In-Store, Inc., No. 00 C
1895, 2003 U.S. Dist. LEXIS 13405, at *7 (N.D. Ill. July 31,
2003)

(Leinenweber,

J.);

Harkins

v.

Riverboat

Servs.,

286

F.Supp.2d 976, 981 (N.D. Ill. 2003).
Of the remaining categories, Longo has made no argument as
to why the transcripts, all dated before the 2012 judgment was
handed down, were a necessary expense for his fee petition when
they were not needed for the underlying litigation (for which he
already recovered costs).

See, e.g., Menasha, 2003 U.S. Dist.

LEXIS 13405 at *2 (“When evaluating a bill of costs, the Court
must determine whether . . . the expenses are reasonable and
necessary.”)
Inc., 58

(quoting

F.3d

marks omitted).

341,

Deimer

345

(7th

v.

Cincinnati

Cir.

1995))

Sub-Zero

(internal

Prods.,
quotation

In the same vein, the attendance of the court

reporter is untied to any actual transcripts.

As such, Longo

has

attendance

shown

necessary

neither
nor

that

that

the

court

the

rate

within the compensable range.

he

reporter’s

seeks

for

the

attendance

was
is

See, Blackwell, 2011 U.S. Dist.

LEXIS 89562, at *6 (“[T]he court reporter’s attendance fee may
be taxed as costs only to the extent that the fee, when added to
the per page rate charged for the deposition transcript, does
- 20 -

not make the total charge per page exceed the applicable page
rate established by the Judicial Conference.”).
In sum, the Court cannot award costs on the record before
it.

It therefore orders the parties to bear their own costs.
IV.
For

the

Petition

for

stated

reasons
Fees

CONCLUSION
herein,

and

Costs

for

Plaintiff’s
time

spent

second-round
proving

the

attorney’s fees in the underlying case [ECF No. 746] is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: August 25, 2017

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