Obrycka et al v. City Of Chicago et al

Filing 751

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 4/23/2013:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KAROLINA OBRYCKA,
Plaintiff,
v.
CITY OF CHICAGO and ANTHONY
ABBATE, JR.,
Defendants.

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Case No. 07 C 2372

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On November 13, 2012, a jury found in favor of Plaintiff Karolina Obrycka after an
approximately two and a half week jury trial in this lawsuit brought pursuant to 42 U.S.C. §
1983. During this litigation, which lasted well over five years, Plaintiff was represented by
attorneys at the law firm of Ekl, Williams, and Provenzale, LLC (hereinafter “the Ekl law firm”)
and Gustavo Munoz. On January 22, 2013, Defendant City of Chicago and the Ekl law firm
settled their attorney’s fee dispute. Before the Court is Mr. Munoz’s fee petition pursuant to 42
U.S.C. § 1988(b).1 For the following reasons, the Court, in its discretion, awards Mr. Munoz
$148,955.00 in attorney’s fees.
LEGAL STANDARD
The prevailing party in a Section 1983 action may recover reasonable attorney’s fees.
See 42 U.S.C. § 1988; Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012). Here, the City

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On April 4, 2013, the Court granted Mr. Munoz’s motion for leave to file a reply brief
that was due on or before April 15, 2013. To date, Mr. Munoz has failed to file any such reply
brief.

does not dispute that Plaintiff is the prevailing party in this lawsuit. To determine reasonable
attorney’s fees, district courts use the lodestar method by multiplying the number of hours
reasonably expended on the litigation by a reasonable hourly rate. See Johnson, 668 F.3d at 929;
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011). “There is a strong
presumption that the lodestar calculation yields a reasonable attorney’s fee award.” Pickett, 664
F.3d at 639; see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1672, 176
L.Ed.2d 494 (2010) (“loadstar method is readily administrable” and “objective”). “Once the
petitioning party provides evidence of the proposed fees’ reasonableness, the burden shifts to the
other party to demonstrate the award’s unreasonableness.” Wachovia Sec., LLC v. Banco
Panamericano, Inc., 674 F.3d 743, 759 (7th Cir. 2012). The Seventh Circuit’s review of an
attorney’s fees award involves a highly deferential standard because “the district court has a
more complete picture of the case as a whole; the issues tend to be factual matters for which
appellate review is limited; the accuracy of the ultimate decision is not likely to be enhanced by
frequent and detailed appellate review; and it would be wasteful to engage in a ‘second major
litigation’ over attorneys’ fees.” Lock Realty Corp. IX v. U.S. Health, LP, 707 F.3d 764, 773
(7th Cir. 2013) (citing Pickett, 664 F.3d at 639).
ANALYSIS
I.

Reasonable Hourly Rate
The Seventh Circuit has defined reasonable hourly rate as one that is “derived from the

market rate for the services rendered.” Pickett, 664 F.3d at 640. Under this standard, courts
presume “that an attorney’s actual billing rate for similar litigation is appropriate to use as the
market rate.” Id.; see also Broaddus v. Shields, 665 F.3d 846, 859-60 (7th Cir. 2011).

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Nevertheless, as the Seventh Circuit teaches, “[r]ecognizing the difficulty of determining the
hourly rate of an attorney who uses contingent fee agreements, we have advised district courts to
rely on the ‘next best evidence’ of an attorney’s market rate, namely ‘evidence of rates similarly
experienced attorneys in the community charge paying clients for similar work and evidence of
fee awards the attorney has received in similar cases.’” Pickett, 664 F.3d at 640 (quoting Spegon
v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999)). “The fee applicant bears the
burden of ‘produc[ing] satisfactory evidence — in addition to the attorney’s own affidavits —
that the requested rates are in line with those prevailing in the community.” Id. (quoting Blum v.
Stenson, 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). “If the fee applicant
satisfies this burden, the burden shifts to the other party to offer evidence that sets forth ‘a good
reason why a lower rate is essential.’” Id. (quotation omitted); see also Gautreaux v. Chicago
Hous. Auth., 491 F.3d 649, 659-60 (7th Cir. 2007) (“once an attorney provides evidence
establishing his market rate, the opposing party has the burden of demonstrating why a lower
rate should be awarded.”) (citation omitted).
Here, Mr. Munoz maintains that his rate of $350.00 an hour is reasonable based on his
experience and qualifications. See Trustees of Chicago Plastering Inst. Pension Trust v. Cork
Plastering Co., 570 F.3d 890, 905 (7th Cir. 2009) (“reasonableness of an attorney’s billing rate
depends on the experience and qualifications of the professional.”). In support of this hourly
rate, Mr. Munoz attaches his affidavit in which he avers that he graduated from the University of
Illinois College of Law in 1984 and that from 1984 until 1991 he was an Assistant State’s
Attorney with the Cook County State’s Attorney’s Office where he tried approximately 34
felony cases to juries. (R. 740-1, Munoz Aff. ¶¶ 5, 6.) Mr. Munoz further avers that from

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January 1991 until April 1998, he was an attorney with a private law firm and that he represented
a large number of Chicago police officers before the Chicago Police Board. (Id. ¶ 7.) In
addition, while at the private firm, he represented police officers from various municipal and
suburban police departments who were charged with internal department rules violations and
charges of misconduct. (Id.) Many of these cases involved civil rights violations. (Id.)
In 1998, Mr. Munoz opened his own law firm. (Id. ¶ 8.) He avers that his private
practice typically consists of contingent fee matters such as personal injury, worker’s
compensation, medical malpractice, and flat fee criminal defense matters. (Id.) Due to the
nature of his work, he states that he does not charge his private clients an hourly rate. (Id.) Mr.
Munoz also maintains that since 1999, he has been the Village Attorney and Prosecutor for the
Village of Summit-Argo, Illinois and that in this position he frequently investigates allegations
of police misconduct, alleged use of excessive force, and alleged civil rights violations. (Id. ¶
11.) Also since he started his law firm 1998, Mr. Munoz has represented clients against
numerous municipalities, including police officers. (Id. ¶ 10.)
Thus, although Mr. Munoz has not focused on civil rights litigation during the entire 29
years he has practiced law, he has had some experience in civil rights work prior to his
representation of Karolina Obrycka in this matter. In his fee petition, Mr. Munoz maintains that
his rate of $350.00 is reasonable because courts in this district have awarded comparable hourly
rates for lawyers who have limited civil rights experience, but nonetheless have significant
litigation experience. See, e.g., Jimenez v. City of Chicago, No. 09 C 8081, 2012 WL 5512266,
at *3-5 (N.D. Ill. Nov. 14, 2012) ($325.00 an hour reasonable rate for 1993 school graduate with
nine years civil litigation experience, but limited civil rights experience); Wells v. City of

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Chicago, ___ F.Supp.2d ___, 2013 WL 622942, at *3-4 (N.D. Ill. Feb. 20, 2013) ($325.00 per
hour reasonable for attorneys with 15-20 years experience); Richardson v. City of Chicago, No.
08 C 4824, 2012 WL 6185867 (N.D. Ill. Nov. 20, 2012) (hourly rate of $400.00 reasonable for
attorney with 15 years of overall experience and seven years of extensive civil rights work). Mr.
Munoz, however, does not provide the Court with third-party affidavits showing comparable
attorneys’ billing rates. See Pickett, 664 F.3d at 640 (“we have indicated a preference for third
party affidavits that attest to the billing rates of comparable attorneys”).
In any event, the City argues that an hourly rate of $175.00 is reasonable because the City
estimates that the Village of Summit paid Mr. Munoz $150.00 per hour for his work as the
Village Attorney, and thus $150.00 is Mr. Munoz’s “actual billing rate.” Pickett, 664 F.3d at
640; Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003). The hourly rate of $175.00 is an
unreasonably low rate considering that Mr. Munoz has been a civil litigator and prosecutor for
many years and that he bills most of his clients on a contingent basis. See Pickett, 664 F.3d at
640; Jimenez, 2012 WL 5512266, at *3. The Court, however, also recognizes that Mr. Munoz’s
experience in civil rights litigation is not as extensive as the examples he provides above.
Indeed, courts in this district have approved the hourly rate range of $285.00 to $310.00 an hour
for trial attorneys with similar civil rights litigation experience as Mr. Munoz. See Blackwell v.
Kalinowski, No. 08 C 7257, 2012 WL 469962, at *5 (N.D. Ill. Feb. 13, 2012); Ragland v. Ortiz,
No. 08 C 6157, 2012 WL 4060310, at *3 (N.D. Ill. Sept. 14, 2012); Alcazar-Anselmo v. City of
Chicago, No. 07 C 5246, 2011 WL 3236024, at *8 (N.D. Ill. July 27, 2011); Bronzino v.
Sheldon, No. 09 C 1048 (N.D. Ill. Apr. 17, 2013). Based on these similar hourly rates, Mr.
Munoz’s overall qualifications and experience, and his work on this matter — as discussed in

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detail below — the Court, it its discretion, reduces Mr. Munoz’s hourly rate to $310.00 an hour
as appropriate under the circumstances. See Pickett, 664 F.3d at 640 (“If a fee applicant does not
satisfy its burden, the district court has the authority to make its own determination of a
reasonable rate.”).
Mr. Munoz also relies on the Laffey Matrix to support his hourly rate of $350.00. “The
Laffey Matrix is a chart of hourly rates for attorneys and paralegals in the Washington, D.C. area
that was prepared by the United States Attorney’s Office for the District of Columbia to be used
in fee-shifting cases.” Pickett, 664 F.3d at 649. Although some courts in this district have
referred to the Laffey Matrix when determining the reasonableness of hourly rates, the Seventh
Circuit has not adopted this approach. See id. at 649-50. Under the present circumstances, the
Laffey-Matrix does not provide guidance to the Court’s assessment of Mr. Munoz’s reasonable
hourly rate because the matrix only sets forth years of experience and not years of experience in
a specific legal expertise.2 In short, the Laffey Matrix does not take into account an individual
attorney’s ability, experience, or reputation, see id. at 641, and thus does not lend support under
the circumstances.
II.

Hours Reasonably Expended
Next, Mr. Munoz provides the Court with 1,344 separate entries of the various tasks and

time spent on this lawsuit starting in February 2007 and ending in December 2012. The City
maintains that Mr. Munoz not only bills compensable and non-compensable tasks together in
single entries, but many of his entries are vague and not clearly documented. Further, the City
maintains that many of Mr. Munoz’s hours duplicate the Ekl firm’s efforts. The Court agrees.

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http://www.justice.gov/usao/dc/divisions/Laffey_Matrix_2003-2013.pdf
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The Seventh Circuit lends guidance under such circumstances:
As to the reasonableness of the hours expended, when a fee petition is vague or
inadequately documented, a district court may either strike the problematic entries
or (in recognition of the impracticalities of requiring courts to do an item-by-item
accounting) reduce the proposed fee by a reasonable percentage. Whichever
option the district court chooses, it is required to “provide a concise but clear
explanation of its reasons for the fee award” that is sufficient to permit appellate
review.
Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000) (citation omitted); see also
Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) (“it is generally unrealistic to expect a trial
court to evaluate and rule on every entry in an application.”). Indeed, the Supreme Court has
cautioned that “[a] request for attorney’s fees should not result in a second major litigation.” See
Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Because of the
voluminous time records at issue in Mr. Munoz’s fee petition, the Court takes a hybrid approach,
namely, striking the entries that are clearly not recoverable and then reducing the hours by a
reasonable percentage due to the Ekl law firm’s lead role in this lawsuit. See, e.g., Young v.
Verizon’s Bell Atlantic Cash Balance Plan, 783 F.Supp.2d 1031, 1039-40 (N.D. Ill. 2011).
A.

Specific Entries

As to the specific hours Mr. Munoz’s billed in his fee petition, the Court reduces 142.5
hours for clerical tasks, including filing, printing, transporting witnesses, data entry, reading
newspaper articles, and scheduling. See Spegon,175 F.3d at 553 (“the court should disallow not
only hours spent on tasks that would normally not be billed to a paying client, but also those
hours expended by counsel ‘on tasks that are easily delegable to non-professional assistance.’”)
(citation omitted). The Court further excludes 46 hours that Mr. Munoz billed for representing
Obrycka as a witness in Anthony Abbate’s criminal trial because these hours were not

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reasonably expended in the present federal civil rights litigation. See Hensley, 461 U.S. at 433;
Wells, 2013 WL 622942, at * 9. The Court further reduces Mr. Munoz’s hours by 24.50 in
which he spent an excessive amount of time on simple tasks, such as billing 7.75 hours for travel
and attendance at two depositions that lasted 1.5 hours. See Hensley, 462 U.S. at 433. Mr.
Munoz’s billing records also include approximately 730 entries for the receipt of correspondence
from the parties or the district court, which is not only clerical work, but time that attorneys did
not normally bill paying clients. See Spegon, 175 F.3d at 553. The Court thus reduces an
additional 52.5 hours for receiving correspondence. Last, there are approximately 454 entries
that Mr. Munoz describes as communicating with the Ekl law firm either via phone, email, or in
person. Although Mr. Munoz was the liaison or “main attorney contact” to Karolina Obrycka,
communicating with the Ekl law firm 454 times over a five and a half year period is excessive,
and thus the Court reduces 18.5 hours in this regard. See Johnson, 668 F.3d at 931 (nonprevailing party “is not required to pay for hours that are ‘excessive, redundant, or otherwise
unnecessary’”) (quotation omitted.). Accordingly, the Court deducts 284 hours from the 1,245
hours that Mr. Munoz seeks leaving a total of 961 hours. The Court now turns to Mr. Munoz’s
role in this lawsuit and the hours he bills that duplicate the Ekl law firm’s efforts.
B.

Mr. Munoz’s Role in this Lawsuit

During this lawsuit, it was clear that Mr. Munoz was Karolina Obrycka’s “main attorney
contact” and that Mr. Munoz brought the Ekl law firm into this lawsuit as co-counsel. It is also
clear that the Ekl law firm did the heavy lifting in this matter, although Mr. Munoz contributed
to this lawsuit throughout the five and a half years he was co-counsel. Mr. Munoz, for example,
attended numerous status and motions hearings, but rarely made any substantive legal arguments

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to the Court. Instead, an Ekl lawyer, most often Patrick Provenzale, argued motions and issues
before the Court. Furthermore, the Ekl law firm drafted and filed the vast majority of motions
and legal memoranda in this case, which included motions in limine, responses to summary
judgment, motions to compel, and Daubert motions, among other filings. In sum, the Ekl
lawyers were far more involved in this litigation than Mr. Munoz.
The Court recognizes that Mr. Munoz prepared for and attended depositions and trial,
examined witnesses at trial and conducted four depositions, and attended client conferences.
Also, Mr. Munoz was always professional and a pleasure to have in court. That being said —
although there will always be an overlap of efforts when more than one law firm represents a
party — due to his level of participation, many of the hours in Mr. Munoz’s fee petition are
redundant to the Ekl law firm’s hours reasonably extended in this matter. See Hensley, 461 U.S.
at 434. The Court therefore reduces Mr. Munoz’s hours by 50 percent as a reasonable reduction
due to the Ekl law firm’s lead role in this lawsuit and the resultant redundancy of Mr. Munoz’s
hours. See, e.g., Young, 783 F.Supp.2d at 1031; Hackett v. Xerox Corp. Long-Term Disability
Income Plan, 355 F.Supp.2d 931, 937 (N.D. Ill. 2005). As such, the total amount of the hours
recoverable equals 480.5. At Mr. Munoz’s hourly rate of $310.00, the Court awards Mr. Munoz
$148,955.00 in attorney’s fees.
On a final note, the Court acknowledges that the Ekl law firm, Mr. Munoz, and Karolina
Obrycka entered into a joint contingent fee agreement in 2007. The parties’ breach of contract
dispute regarding this agreement is not before the Court, but is being litigated in the Circuit
Court of Cook County, Chancery Division. The state court litigation, however, in no way
interferes with the Court’s determination of Mr. Munoz’s Section 1988(b) fee petition.

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CONCLUSION
For these reasons, the Court awards Mr. Munoz $148,955.00 in attorney’s fees pursuant
to 42 U.S.C. § 1988(b).
Date: April 23, 2013
ENTERED

_______________________________
AMY J. ST. EVE
United States District Court Judge

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