Sommerfield v. City of Chicago et al
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
Case No. 06 C 3132
Judge Harry D. Leinenweber
CITY OF CHICAGO, et al.,
MEMORANDUM OPINION AND ORDER
Before the Court is a Motion for Additional Attorney’s Fees
Because the Court sees no reason to increase
“Fee litigation has become a heavy burden on the federal
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.
million in attorney’s fees, representing 3,742 hours worked at
an hourly rate of $395.
requested the fees.
(Technically, it was Plaintiff who
However, Longo has made clear that any fees
Longo as the movant in these fee petitions.)
Magistrate Judge Jeffrey Cole thought the requested $1.5
million “unreasonable and unsustainable” and recommended against
Sommerfield v. City of Chi., No. 06 C 3132, 2012
U.S. Dist. LEXIS 155064, at *45-46 (N.D. Ill. Oct. 29, 2012)
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.
As a result,
“frivolous,” “manipulative,” “riddled with errors,” in violation
insistence on filing unreasonable motions, which needlessly took
administration of justice by limiting the time the judges in
- 2 -
Longo’s contention that he should be paid at an hourly rate of
Judge Cole reasoned that if Longo “were to be paid what
competent, rule-abiding lawyers in comparable cases are paid,”
halved due to his limited success on the case.
Longo fought unsuccessfully against the adoption of Judge
reducing the hourly rate to $300, and applying a 50% discount to
the total fees allowed to reflect the lack of success in the
Sommerfield v. City of Chi., No. 06 C 3132,
2013 U.S. Dist. LEXIS 3715, at *26 (N.D. Ill. Jan. 10, 2013)
All told, the Court awarded Longo $430,000
He appealed – and lost.
The Seventh Circuit affirmed this Court’s fee award in all
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
As can be seen, Longo ultimately recovered 29% of
the fees that he requested ($430,000/$1,496,575).
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
Number of Hours
(Hourly Rate x
No. of Hours)
Summary of First Round of Fee Disputes
As Requested by As Agreed to by
Reduce by 85%
As Awarded by
Reduce by 50%
Except for the Final Amount field, the above figures
exclude the work done by Longo’s associate.
performed only about 70 hours of work and her fees were not
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
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
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.
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.
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 -
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
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.
Second Round Attorney’s Fees and Costs Requested
Awards by the
Reduce by 50%
Number of Hours
(Hourly Rate x
No. of Hours)
For the reasons stated below, the Court denies the feesfor-fees petition in its entirety.
In a Title VII case like the one at bar, the Court “in its
discretion, may allow the prevailing party . . . a reasonable
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
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
Hensley, 461 U.S. at 437.
Accordingly, a fee
applicant should exercise “billing judgment” and “make a goodfaith
(internal quotation marks omitted).
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.
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
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
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.
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
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
- 8 -
The Seventh Circuit has specifically applied this principle
to fees-for-fees petitions like the one at bar.
680 F.2d at 45 (affirming a complete denial of attorney’s fees
sought for proving fees); Burlington, 832 F.2d at 434 (holding
particular, the court has laid out a three-step approach which a
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
Lindgren, 856 F.3d 498, 502 (7th Cir. 2017).
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
- 9 -
alteration marks omitted).
a “prevailing party.”
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
It begins with Longo’s fee request and then moves to
consider his plea to be reimbursed for costs.
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.
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.”).
administrative or clerical work.
under Seventh Circuit case law.
Such work is easily delegated
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
Pharms, Inc., 264 F.Supp.2d 753, 763 (S.D. Ind. 2003) (refusing
expected to include compensation for required administrative and
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.
See, Montanez v.
district court’s decision to disallow “time billed for clerical
- 11 -
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
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
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
Worse yet, he relies on the same arguments, already
raised and rejected, to urge for this hourly rate.
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.
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 the Court can tell from the latest fee Petition, Longo’s
skills as an attorney have not much changed since Judge Cole
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.
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.
Burlington, 832 F.2d at 434-35 (endorsing such an approach).
Here, the merits stage of the case is summarized not just by the
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
“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.”
Sommerfield, 2012 U.S. Dist. LEXIS 155064
All told, Longo “needlessly took the courts’ time,
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.
The petition itself demonstrates that Longo exercised
no “billing judgment,” contrary to what is required by precedent
rarely equals the number of hours reasonably expended.”
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
- 14 -
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.
Eli Lilly, 264 F.Supp.2d at 784.
Finding that the
result of such a fee petition “was to multiply work for [the
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 -
sought in their first-round fee petition.
The court also noted
that much of the time spent on the first-round petition was
fraction of what he had sought and expended much time on issues
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.
Muscare, 680 F.2d at
The district court refused to award any fees, and the
Seventh Circuit affirmed.
explained that awarding fees for proving fees may provide too
overcompensate plaintiffs’ lawyers.
- 16 -
See, Muscare, 680 F.2d at
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.
The Court has discretion, and uses
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
Under certain circumstances, fees-for-fees petitions
greater energy and enthusiasm than they litigate any other type
Ustrak, 851 F.2d at 988; Nanetti v. University of
circumstances present themselves when the client has recovered
nothing other than a modest sum of damages; the attorney has
cumulating fee petitions, by their exorbitant and unreasonable
- 17 -
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.
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
Testa v. Vill. of Mundelein, 89 F.3d 443, 447 (7th Cir. 1996).
applicable to attorney’s fees awards.
See, Baker, 856 F.3d at
portion of the litigation for which Longo now seeks costs.
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.
- 18 -
Household Bank, N.A., 176 F.3d 1012, 1015 (7th Cir. 1999).
The losing party cannot tax costs.
disallow costs to both parties.
As noted previously, of the
$1.5 million that Longo sought, he won less than 30% – meaning
that he lost the remaining 70%.
The City, on the other hand,
essentially just the hours it claimed were reasonable.
supra, Table 1.
Even if the City did not get its way in all
respects, then still it succeeded much more substantially than
That the City did not win everything and Longo did not
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.
Indeed, this Court, along
- 19 -
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,
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
In the same vein, the attendance of the court
reporter is untied to any actual transcripts.
As such, Longo
within the compensable range.
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 therefore orders the parties to bear their own costs.
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
- 21 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?