Gilfand et al v. Planey et al

Filing 551

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 11/19/2012:Mailed notice(wp, )

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

BARRY GILFAND, et al.,
Plaintiffs,
Case No. 07 C 2566
v.
Hon. Harry D. Leinenweber
SGT. JEFFREY PLANEY, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Before the Court are the parties’ Motions for Costs and Fees.
For the reasons set forth herein, the Court (1) denies Defendants
Barnes’ and Powers’ Motion for Fees and Costs [Dkt. 513 & 514]; (2)
denies

Defendants

Woosley’s

and

Kereakes’

Motion

for

Costs;

[Dkt. 508]; (3) denies Defendants’ City of Chicago’s Motion for
Costs [Dkt. 498]; and (4) grants in part and denies in part
Plaintiffs’ Motion for Fees and Costs [Dkt. 509-1.].
I.

BACKGROUND

This civil case stems from a December 2006 bar fight at the
Jefferson Tap bar in Chicago, Illinois. In the early morning hours
of December 15, 2006, an altercation between Plaintiffs and OffDuty

Chicago

Police

Officers

Jeffrey

Planey,

Gregory

Barnes,

Vincent Matthews, Paul Powers, Matias Padilla, Demetrios Kereakes,
and Erika Woosley (collectively, the “Off-Duty Officers”) ensued.
At some point after the fight escalated, someone at the bar called
911.

At various points in time, Responding Officers Kenneth

Carlyon, Frederick Collins, Nicole Mayoski, Ana Pina, Donald Lupo,
and Gregory Morabito (collectively, the “Responding Officers”)
arrived at the Jefferson Tap to survey the situation.

Allegedly,

when Responding Officers Lupo and Collins arrived at the scene,
Off-Duty Officer Planey informed them that he had the situation
under control and their assistance was not needed.
this, Officers Lupo and Collins left.

After hearing

Later, Responding Officers

Mayoski and Pina arrived, however, allegedly Off-Duty Officer
Barnes

informed

them

that

it

was

only

a

minor

bar

fight.

Subsequently, Mayoski and Pina left the scene.
The preceding events are what provided the grounds for this
lawsuit.

Plaintiffs filed a seven-count Second Amended Complaint

against Off-Duty Officers, Responding Officers, and the City of
Chicago.

Specifically Plaintiffs asserted excessive force claims

under 42 U.S.C. § 1983 against all Off-Duty Officers (except
Officer Woosley); and the City of Chicago; a § 1983 failure to
intervene claim against the Off-Duty Officers, Responding Officers,
and the City of Chicago; state law battery claims against the OffDuty Officers (except Woosley); and state law assault claims
against the Off-Duty Officers (except Woosley). Immediately before
trial, Plaintiffs voluntarily dismissed Responding Officers Carlyon
and Morabito.
On May 7, 2012, the case proceeded to trial.

After the

Plaintiffs’ case-in-chief, the Court granted a directed verdict in
favor of the five Responding Officer Defendants – Lupo, Collins,
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Pina, Mayoski, and Lieutenant Kinsley – as well as Off-Duty Officer
Woosely,

dismissing

them

from

the

case.

At

the

close

of

Plaintiffs’ evidence, the Court also found that the Plaintiffs
failed to present sufficient evidence that the remaining Off-Duty
Officers, (other than Defendant Planey) were acting under the color
of law at the time of the incident.

Ultimately, the case went to

the jury against the six remaining Off-Duty Officers (Planey,
Barnes, Padilla, Powers, Kereakes, and Matthews) and the City of
Chicago on Plaintiffs’ Fourth Amendment excessive force claims,
Fourth Amendment failure to intervene/investigate claims, state law
battery claims, state law assault claims, and state law respondeat
superior claims.
On May 18, 2012, the jury rendered its verdict.

In it, the

jury ruled as follows:
PLAINTIFF AARON
GILFAND’S CLAIMS:

DEFENDANTS CHARGED:

JURY VERDICT IN
FAVOR OF:

Fourth Amendment
Excessive Force

Defendant Planey

Defendant

Fourth Amendment
Failure to
Investigate and
Discipline

Defendant City of Chicago

Defendant

Battery

1)
2)
3)
4)
5)
1)
2)

1)
2)
3)
4)
5)
1)
2)

Assault
Defendant Planey
Acting within the
Scope of His
Employment

Defendant
Defendant
Defendant
Defendant
Defendant
Defendant
Defendant

Planey
Powers
Barnes
Padilla
Matthews
Barnes
Matthews

Defendant City of Chicago

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Plaintiff
Defendant
Defendant
Defendant
Defendant
Defendant
Plaintiff

Defendant

PLAINTIFF BARRY
GILFAND’S CLAIMS:

DEFENDANTS CHARGED:

JURY VERDICT IN
FAVOR OF:

Fourth Amendment
Excessive Force

Defendant Planey

Plaintiff

Fourth Amendment
Failure to
Investigate and
Discipline

Defendant City of Chicago

Defendant

Battery

1)
2)
3)
4)
5)

1)
2)
3)
4)
5)

Assault

1) Defendant Barnes
2) Defendant Matthews

1) Defendant
2) Plaintiff

Defendant Planey
Acting within the
Scope of His
Employment

Defendant City of Chicago

Defendant

PLAINTIFF ADAM
MASTRUCCI’S
CLAIMS:

Defendant
Defendant
Defendant
Defendant
Defendant

Planey
Powers
Barnes
Padilla
Matthews

DEFENDANTS CHARGED:

Plaintiff
Defendant
Defendant
Defendant
Defendant

JURY VERDICT IN
FAVOR OF:

Fourth Amendment
Excessive Force

Defendant Planey

Defendant

Fourth Amendment
Failure to
Investigate and
Discipline

Defendant City of Chicago

Defendant

Battery

1)
2)
3)
4)

1)
2)
3)
4)

Assault

Defendant Matthews

Defendant

Defendant Planey
Acting within the
Scope of His
Employment

Defendant City of Chicago

Defendant

Defendant
Defendant
Defendant
Defendant

Planey
Barnes
Padilla
Kereakes

- 4 -

Defendant
Plaintiff
Defendant
Defendant

PLAINTIFF SCOTT
LOWRANCE’S
CLAIMS:

DEFENDANTS CHARGED:

JURY VERDICT IN
FAVOR OF:

Fourth Amendment
Excessive Force

Defendant Planey

Plaintiff

Fourth Amendment
Failure to
Investigate and
Discipline

Defendant City of Chicago

Defendant

Battery

1) Defendant Planey
2) Defendant Padilla

1) Plaintiff
2) Plaintiff

Assault

Defendant Matthews

Defendant

Defendant Planey
Acting within the
Scope of His
Employment

Defendant City of Chicago

Defendant

II.
A.
Defendant

ANALYSIS

Defendant Powers’ and Barnes’ Motion
for Attorneys’ Fees and Costs
Off-Duty

Officers

Powers

and

Barnes

move

for

attorney’s fees and expenses pursuant to § 1988 and costs pursuant
to Federal Rule of Civil Procedure 54(d).

They argue they are

entitled to fees and costs because they are the prevailing parties
since Plaintiffs’ claims “overwhelmingly failed at trial.”

Defs.

Powers’ and Barnes’ Mot. for Attorneys’ Fees at 1.
1.

Defendants Powers’ and Barnes’ Motion
for Attorney Fees Under Section 1988

Section 1988 provides that in an action to enforce a provision
of Section 1983, “the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.”

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Leffler v. Meer, 936 F.2d

981, 984 (7th Cir. 1991).

“A prevailing defendant as well as a

prevailing plaintiff may be awarded attorney’s fees under section
1988.” Id. A prevailing defendant, however, must demonstrate that
“the plaintiff’s action was frivolous, unreasonable, or without
foundation . . .”

Unity Ventures v. County of Lake, 894 F.2d 250,

253 (7th Cir. 1990).

“The fact that a plaintiff may ultimately

lose his case is not in itself a sufficient justification for the
assessment of fees.”

Hughes v. Rowe, 449 U.S. 5, 14 (1980).

Instead, the plaintiff’s action must be meritless, in the sense
that it is groundless or without foundation in order for a court to
award fees to a defendant.
stringent

standard

for

Id.

prevailing

The policy underlying the
defendants

vigorous enforcement of civil rights laws.

is

the

courts’

See Christianburg

Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).
Defendants Powers and Barnes argue they are entitled to fees
pursuant to Section 1988 because Plaintiffs’ claims were frivolous.
They contend that “Plaintiffs tacked meritless federal claims on to
their already weak state law claims in order to force Powers and
Barnes into federal court.”
Attorney’s Fees at 7.

Defs. Powers’ and Barnes’ Mot. for

They allege that this Court’s decision in

Simmons v. Pryor and the Third Circuit’s decision in Brown v.
Chambersburg support an award of fees. Simmons v. Pryor, No. 91-C2686,

1992

WL

209283

(N.D.

Ill.

Aug.

18,

Chambersburg, 903 F.2d 274 (3d Cir. 1990).
agree.
- 6 -

1992);

Brown

v.

The Court does not

In Simmons, this Court granted summary judgment to defendants
in a Section 1983 false arrest and malicious prosecution case. Id.
at

*2.

Subsequently,

the

defendants

moved

for

fees

under

Section 1988, alleging plaintiff’s claims were frivolous.

Id.

This Court agreed with defendants, finding the named defendants’
“limited role” in the plaintiff’s arrest persuasive.

Id. at *3.

In Simmons, the plaintiff accused defendants of false arrest
despite the fact that the defendants did not make the probable
cause determination for the plaintiff’s arrest, did not testify at
the probable cause hearing, and did not even effectuate the arrest.
Id.

Because of this, the Court found all of the plaintiff’s

assertions regarding his warrantless arrest meritless as they
related to the named defendants.

Id.

In Chambersburg, the Third Circuit examined a district court’s
determination

that

a

plaintiff’s

excessive

force

claim

was

frivolous. In affirming the district court’s holding which awarded
the defendant fees, the Third Circuit relied on the lack of
evidence the plaintiff presented at trial, noting that “only
plaintiff’s testimony supported his version of the arrest and this
testimony

was

contradicted

disinterested witnesses.”

by

every

other

witness,

including

Chambersburg, 903 F.2d at 278.

The case presently before the Court is distinguishable from
Simmons and Chambersburg. Here, Plaintiffs’ claims survived two of
Defendants’

Motions

for

Summary

Judgment.

Additionally,

the

Plaintiffs’ excessive force and failure to intervene claims all
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concerned events that took place during a bar fight where all the
named Off-Duty Officer Defendants, including Barnes and Powers,
were located and seen on surveillance video.

Moreover, unlike

Chambersburg, at trial, Plaintiffs presented surveillance video
evidence, medical records, eyewitness testimony, as well as their
own testimony.

While the Court acknowledges that all Defendants,

other than Defendant Planey, were successful in their Motion for a
Directed Verdict regarding the Plaintiffs’ color of law claims and
failure to intervene claims, this success does not in it of itself
make Plaintiffs’ federal claims frivolous.
Cicero,

No.

01-C-6858,

2012

WL

1279903

See Duran v. Town of
at *24-25

(N.D.

Ill.

April 16, 2012) (denying a defendant’s motion for fees under
Section

1988

notwithstanding

the

court’s

prior

grant

of

the

defendants’ motion for a directed verdict with respect to the
plaintiff’s equal protection claims and prior grant of five of the
defendants’ motions for summary judgment).

Indeed, the Seventh

Circuit has noted, “[t]here is a significant difference between
making a weak argument with little chance of success . . . and
making a frivolous argument with no chance of success.

As the

courts have interpreted § 1988, it is only the latter that permits
defendants to recover attorney’s fees.”

Khan v. Gallitano, 180

F.3d 829, 837 (7th Cir. 1999).
The Court finds Plaintiffs in this case had a reasonable basis
for their claims and thus, refuses to grant Defendants Powers’ and
Barnes’ petition for attorney’s fees.
- 8 -

2.

Defendants Barnes’ and Powers’ Bill of Costs

Defendants Barnes and Powers have also submitted a bill of
costs in which they allege Plaintiffs should be liable to pay since
Defendants

Powers

and

Barnes

were

the

prevailing

parties.

Plaintiffs oppose this bill, arguing that the finding of liability
against Defendant Barnes precludes an award of costs.
Federal

Rule

of

Civil

Procedure

54(d)(1)

provides

that,

“[u]nless a federal statute, these rules, or a court order provides
otherwise, costs — other than attorney’s fees — should be allowed
to the prevailing party.”

FED . R. CIV . P. 54(d)(1).

“A party

prevails . . . when a final judgment awards it substantial relief.”
Smart v. Local 702 Int’l Bhd. Of Elec. Workers, 573 F.3d 523, 525
(7th Cir. 2009).

A party receives substantial relief even if it

doesn’t prevail on every claim.

Slane v. Mariah Boats, Inc., 164

F.3d 1065, 1068 (7th Cir. 1999).
Defendants

Powers

and

Barnes

contend

that

they

are

the

prevailing parties because the jury did not find Defendant Powers
liable for any of the claims Plaintiffs asserted against him and
Defendant Barnes was only found liable for one of Plaintiffs’
claims.
After the trial the jury found Defendant Barnes liable to
Plaintiff Adam Mastrucci for battery and awarded Adam Mastrucci
$3,000.00

in

damages.

Notwithstanding this finding, Barnes claims to be the

prevailing

compensatory

party.

Both

damages

Powers
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and

and

$1,000.00

Barnes

also

in

punitive

claim

that

Plaintiffs’ success with respect to other Defendants is irrelevant
when determining whether they should be considered the prevailing
party.
At the outset, the Court refuses to find Defendant Barnes to
be a prevailing party for the purposes of Rule 54. While the Court
recognizes that the jury’s verdict in this case was mixed, the
Court

reminds

Defendants

that

“courts

have

especially

broad

discretion to award or deny costs in mixed result cases, including
cases in which liability was established but recovery was nominal
relative to what was sought.”
F.3d

1071,

1075

(7th

understands

that

the

Cir.

Gavoni v. Dobbs House, Inc., 164

1999).

Plaintiffs

In

total

this
award

case,
of

the

Court

approximately

$34,000 was far below the amount the Plaintiffs initially sought.
However, the Court finds the jury’s award of punitive damages
against Defendant Barnes particularly persuasive in its finding
that Barnes is not the prevailing party.

See Warfield v. City of

Chicago, 733 F.Supp.2d 950, 954-55 (7th Cir. 2010) (finding a
plaintiff was the prevailing party for the purposes of costs
despite the defendants’ success on a number of plaintiffs’ claims
in

part

because

the

jury’s

award

of

punitive

damages

was

substantial); see also Thomas v. City of Tacoma, 410 F.3d 644, 648
(9th Cir. 2005) (“[t]he jury’s award of punitive damages alone is
sufficient to take it out of the nominal category.”).
Barnes and Powers further argue that since Plaintiff prevailed
on “only 7% of their claims against Barnes” Barnes should be
- 10 -

treated as the prevailing party.

Memo in Supp. of Defs. Powers’

and Barnes’ Bill of Costs at 3.

They claim that “[t]he Seventh

Circuit has held that a defendant who prevails on six (6) of seven
(7) claims is a “prevailing party” entitled to costs and fees.”
Id. citing First Commodity Traders, Inc. v. Heinold Commodities,
Inc., 766 F.2d 1007, 1015 (7th Cir. 1985). However, the underlying
issue in First Commodity was fees, not costs, and in that case the
court dismissed the plaintiff’s other six claims.

Id.

Here, the

Court has already denied Defendant Barnes’ and Powers’ Motion for
Fees and unlike First Commodity, in this case, Plaintiffs had five
claims against Barnes that went to the jury.

Thus, the Court does

not find First Commodity Traders analogous.

Instead, the Court is

persuaded by Ellis v. Country Club Hills.

Ellis v. Country Club

Hills, No. 06-C-1895, 2012 WL 4009701 (N.D. Ill. Sept. 12, 2012)
where the court denied a plaintiff’s motion for costs and fees, and
directed the parties to bear their own costs since the jury’s
verdict was mixed.

Id. at *1-2.

In Ellis, the jury returned a

verdict in favor of a plaintiff on only one of his excessive force
claims and awarded a mere $1 in compensatory damages.

There, the

court explained that the award of summary judgment to the City and
the not guilty finding as to the other officer constituted a
“split/mixed result verdict” and therefore caused neither party to
truly prevail.

Id. at *2.

Ellis is further supported by the Seventh Circuit decision in
Testa v. Mundelein, another case this Court finds relevant.
- 11 -

Testa

v. Mundelein, 89 F.3d 443 (7th Cir. 1996).

In Testa, the plaintiff

lost his § 1983 false arrest claim, but received $1,500 for his
state malicious prosecution claim.

Id. at 444.

In affirming the

district court’s orders for each party to bear its own costs, the
Seventh Circuit noted, “[c]onsidering the mixed outcome of the
civil

rights

and

malicious

prosecutions

claims,

the

decision

requiring each party to bear its own costs is within that [court’s]
discretion.”

Id. at 447.

Barnes and Powers also contend that even if the Court finds
Barnes not to be a prevailing party, Powers is still entitled to
costs.

However, Barnes and Powers fail to segregate the costs

required for each of their defenses.

This makes sense in light of

their assertions that “[a]ll costs itemized in Ex. A to Powers and
Barnes’ Bill of Costs were necessarily incurred in the defense of
both Powers and Barnes.”
Barnes’ Bill of Costs at 4.

Memo. In Supp. of Defs.’ Powers’ and
Because of this, and the nature of the

claims and the Off-Duty Officer Defendants in this case being
interrelated, the Court is unable to find that only Defendant
Powers is entitled to costs.

See Edwards, et al. v. Rogowski,

No. 06-C-3110, 2009 WL 742871 (N.D. Ill. March 18, 2009) (denying
a defendant’s bill of costs even though the defendant was not found
liable on any of plaintiff’s claims because the defendant failed to
show that “the defendants would not have incurred the same expenses
had Negron [the defendant found not liable] not been named as a

- 12 -

defendant”).

Thus, the Court denies in its entirety, Defendants

Barnes’ and Powers’ Bill of Costs.
B.

Defendants’ Woosley and Kereakes Bill of Costs

Defendant Off-Duty Officers Woosley and Kereakes also seek an
award of costs.

They argue that they are the prevailing parties

because the Court dismissed Officer Woosley after it entered its
directed verdict and the jury found in favor of Officer Kereakes on
all of Plaintiffs’ claims.
In addition to the aforementioned cases, in Shatner v. Cowan,
the court faced the issue of which party should be considered the
prevailing party for the purposes of costs where a plaintiff
prevailed

on

some

claims

defendants were dismissed.

against

some

defendants,

but

other

Shatner v. Cowan, No. 00-C-0251, 2009

WL 5210528 at *1-2 (S.D. Ill. Dec. 28, 2009).

In denying the

dismissed defendants’ motion for costs, the court agreed with the
plaintiff who stated, “the liable Defendants benefitted from the
use of all deposition transcripts and would have incurred these
costs whether or not Shatner [the plaintiff] prevailed against the
dismissed Defendants.” Id. The court in Shatner further supported
this finding noting that “[a]ll of the Defendants – dismissed or
liable – were jointly represented in this matter and they jointly
incurred expenses.”

Id.

The Court finds the analysis in this case similar to Shatner.
Here, all of Plaintiffs’ claims are related to the December 2006
bar fight. It is undisputed that all Off-Duty Officers were at the
- 13 -

Jefferson Tap during the fight, thereby making it more than likely
that their depositions would have been necessary “even if these
dismissed Defendants were simply fact witnesses.”

Id.

Moreover,

Defendants Woosley and Kereakes were jointly represented with
Defendants Planey, Matthews, and Padilla, all Defendants which the
jury found liable for some of Plaintiffs’ claims.
For these reasons and the reasons previously articulated in
regards to Defendants Barnes’ and Powers’ bill of costs, the Court
denies Defendants Woosley’s and Kereakes’ bill of costs in its
entirety.
C.

Defendant City of Chicago’s Bill of Costs

The Defendant City of Chicago also submits a bill of costs,
arguing that it is the prevailing party for the purposes of Rule 54
because the jury rejected Plaintiffs’ Monell claims.

For the

reasons previously mentioned in the other Defendants’ Motions for
Costs, the Court refuses to find the City to be the prevailing
party in this litigation.
As further support, the Court finds much of the City’s bill
unreasonable, and in fact, is appalled with some of the City’s
careless

submissions

to

the

Court.

In

its

bill

of

costs,

[Dkt. 498], the City initially alleged it was entitled to over
$90,000.00 in taxable costs from Plaintiffs.

Only those costs

expressly listed in 28 U.S.C. § 1920 are recoverable.

Perry v.

City of Chicago, No. 08-C-4730, 2011 WL 612342 (N.D. Ill. Feb. 15,
2011).

These costs include (1) fees of the clerk and marshal; (2)
- 14 -

fees for printed or electronically recorded transcripts; (3) fees
and

disbursements

for

printing

and

witnesses;

(4)

fees

for

exemplification and copies; (5) docket fees under Section 1923; and
(6) compensation of court appointed experts.

28 U.S.C. § 1920.

In their objections to the City’s costs, Plaintiffs point to
a number of excessive and erroneous invoices the City submitted.
The Court will address only those which it finds to be the most
egregious.
First, the City alleged it was entitled to expert witness
costs and costs for treating physicians, totaling $44,911.25.
Unless an expert witness is court appointed, the fees “are not
recoverable as costs because they are not among the taxable costs
itemized in 28 U.S.C. § 1920(6).”
279, 282 (N.D. Ill. 2007).

Portman v. Andrews, 249 F.R.D.

It was not until Plaintiffs objected to

these costs that the City withdrew the $44,911.25, (nearly half of
the

total

appreciates

amount

they

the

City’s

originally

sought).

willingness

to

While

revise

the

promptly

Court
this

unreasonable request, the Court is nonetheless perturbed by a
number of other submissions the City has included and not bothered
to withdraw or even address.
The most troubling submission is the City’s inclusion of two
invoices for records obtained in cases unrelated to the one at bar.
See Bill of Costs; Ex. 5 [Docket No. 498-5 at 5.] (a $53.00 medical
bill for the case Brown v. City of Chicago, et al., No. 04-C8134.); see also Bill of Costs; Ex. 7 [Docket No. 498-7 at 19] (a
- 15 -

$53.00 invoice for phone records incurred in Paine et al., v. City
of Chicago, No. 06-C-3137).
The

Court

understands

that

mistakes

happen.

This

is

particularly true given that this case is over four years old and
has multiple parties, claims, and a voluminous record. However, in
their objections to the City’s bill, Plaintiffs clearly notified
the City of its errors regarding the inclusion of these unrelated
invoices.

Despite this notification, the City failed to withdraw

these expenses and even failed to offer any explanation as why such
invoices were included in the first place.

The Court finds this

conduct simply inexcusable.
The Court next turns to the City’s alleged necessary and
reasonable copying costs.

In their bill of costs, the City avers

that it has incurred over $1,500.00 in exemplification and copy
fees.

After examining the City’s itemizations, however, it is

clear that the City simply included every item from the Court’s
electronic docket for its “copying costs.”

This itemization

includes attorney appearances, waivers of service, and even notices
by the parties for their motions.

The Court cannot fathom a valid

reason a party could find it reasonable and necessary to copy every
item on a docket.

Moreover, even if the City had valid reasons,

the City failed to provide any explanation why any of this copying
was reasonable and necessary. See Leggett & Platt, Inc. v. Hickory
Springs Mfg. Co., 149 F.Supp.2d 394, 397 (N.D. Ill. 2001) (denying
copying costs due to lack of information regarding “the purpose of
- 16 -

the copies”).
attorneys

“Rule 11 is violated when the parties or their

sign a

pleading, motion

or

other

paper

that

after

reasonable inquiry, they know not to be well grounded in fact or
not to be warranted by existing law. . . .”

Smith v. CB Commercial

Real Estate Group, Inc., 947 F.Supp. 1282, 1283-284 (7th Cir.
1996).
Since the Court does not find the City to be a prevailing
party for the purposes of Rule 54, the Court does not seek an
amended bill from the City or seek any explanation for their
careless submissions.

However, the Court cautions the City in its

future submissions with respect to costs, as the Court believes the
submissions here come close to a Rule 11 violation.
D.

Plaintiffs’ Fee Petition

Plaintiffs seek an award of attorneys’ fees pursuant to 42
U.S.C. § 1988.

Specifically, Plaintiffs request an award of

$893,072.14 for 2,401.85 hours.

Plaintiffs submit such an amount

is reasonable because Plaintiffs discounted and eliminated a number
of hours that were attributable to Plaintiffs’ unsuccessful claims.
Defendants argue Plaintiffs’ request is unreasonable and the Court
should only award $92,647.54 in fees.
“The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat.
2641, 42 U. S. C. § 1988, allows “the prevailing party” in certain
civil rights actions, including suits brought under § 1983, to
recover ‘a reasonable attorney’s fee.’”

Lefemine v. Wideman, No.

12-168, 2012 U.S. LEXIS 8566 at *4 (U.S. Nov. 5. 2012) citing
- 17 -

Farrar v. Hobby, 506 U.S. 103, 111-112 (1992).

Courts routinely

hold that a plaintiff “prevails . . . when actual relief on the
merits of his claim materially alters the legal relationship
between the parties by modifying the defendant’s behavior in a way
that directly benefits the plaintiff.”

Id.

Under Title VII, the Court has the discretion to award the
prevailing party reasonable attorney’s fees, and a prevailing
plaintiff should generally be permitted to recover such fees.

See

Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 872 (7th Cir.
1995).

A reasonable fee award is assessed by “multiplying the

number of hours reasonably expended on the litigation times a
reasonable hourly rate” - the “lodestar” figure.
Bergeron, 489 U.S. 87, 94 (1989).

Blanchard v.

“The Court must exclude from

this calculation hours that were not ‘reasonably expended’ on the
litigation . . . [because] they are excessive, redundant, or
otherwise unnecessary.”

See Stark III v. PPM Am., Inc., No. 01-C-

1494, 2003 WL 21223268, at *1 (N.D. Ill. May 23, 2003).
The Court first determines the amount of hours reasonably
expended, and then examines whether the requested hourly rate is
reasonable.

See id; see also Farfaras v. Citizens Bank & Trust Co.

of Chicago, No. 01-C-8720, 2005 WL 910739 at *1

(N.D. Ill.

Apr. 15, 2005).
Here, in light of the jury’s verdict in Plaintiffs’ favor on
nine claims and its award of compensatory and punitive damages, the
Court finds Plaintiffs are the prevailing parties for the purposes
- 18 -

of attorneys fees under § 1988.

See Elusta v. City of Chicago, 760

F.Supp.2d 792, 796 (N.D. Ill. 2010) (finding plaintiffs to be the
prevailing

party

for

the

purposes

of

attorneys

fees

where

4

plaintiffs asserted § 1983 claims against individual police officer
defendants, but only one plaintiff ultimately prevailed on his
§ 1983 claim, and the jury awarded $20,000 in damages).
Plaintiffs

request

fees

for

the

services

of

Plaintiffs’

attorneys, Mr. Christopher Smith (“Smith”), Mr. Robert Johnson
(“Johnson”), Ms. Amanda Antholt (“Antholt”), Mr. James Baranyk
(“Baranyk”),

Ms.

Emily

Stine

(“Stine”),

Ms.

Sally

Saltzberg

(“Saltzberg”), Mr. Steven Fine (“Fine”), and paralegal Ms. Kathleen
Johnson-Smith (“Johnson-Smith”).

The Court will address each

attorney’s hours and rate in turn.
1. Reasonableness of Plaintiffs’
Attorneys Hours and Hourly Rates
Defendants object to a number of hours each of the Plaintiffs’
attorneys included in their petition, arguing that the hours are
excessive, redundant, or otherwise unnecessary.
argue

the

requested

rate

for

Baranyk

Defendants also

and

Saltzberg

are

unreasonable.
“Counsel for the prevailing party should make a good faith
effort to exclude from a fee request hours that are excessive,
redundant or otherwise unnecessary.”
U.S. 424, 434.

Hensley v. Eckerhart, 461

“[T]he court may reduce the award where the

description of the work performed is inadequate.”

- 19 -

Sughayyer v.

City of Chicago, No. 09-C-4350, 2012 U.S. Dist. LEXIS 85384 at *15
(N.D. Ill. June 20, 2012).
Prior to addressing the reasonableness of each attorney’s
rates and requested hours for fees, the Court considers Defendants’
argument that it was unnecessary for four of the Plaintiffs’
attorneys – Smith, Johnson, Antholt, and Baranyk - to attend every
day of trial.

Defendants cite Sughayyer v. City of Chicago,

No. 09-C-4350, 2012 U.S. Dist. LEXIS 85384 (N.D. Ill. June 20,
2012) as support.

The Court finds Sughayyer distinguishable and

refuses to reduce Plaintiffs’ attorneys’ hours on this basis.

In

Sughayyer, a single plaintiff filed multiple claims against two
individual officers and the City of Chicago.

Id. at *1-2.

In

determining that it was unnecessary for the plaintiff to have three
attorneys at trial, the Court noted that the case was neither “so
complicated or large as to justify three trial attorneys.”
*19.

Id. at

In the case at the bar, there were four Plaintiffs who

originally

asserted

over

fourteen Defendants.

thirty

claims

against

approximately

In light of this, the Court finds the

presence of four attorneys throughout Plaintiffs’ trial reasonable.
a.

Christopher Smith

Smith requests fees for 507.25 hours at a rate of $400 per
hour.
portion

Defendants do not object to Smith’s rate, but contest a
of

Defendants’

his

requested

objections

hours.

regarding

The
Smith’s

Court
hours

finds
lack

many

of

merit.

Defendants’ argue that many of these hours should be reduced
- 20 -

because they relate to the claims against Powers and Barnes which
were ultimately unsuccessful at trial.

The Court finds these

claims were sufficiently related to the claims in which Plaintiffs
were successful.
The Seventh Circuit has stated, “[n]either the Supreme Court
nor this Court has required any correspondence between the degree
to which a plaintiff has financially prevailed and the attorney
fees awarded to him.”

Wallace v. Mulholland, 957 F.2d 333, 339

(7th Cir. 1992); accord, Estate of Borst v. O’Brien, 979 F.2d 511,
516–17 (7th Cir. 1992) (“We have repeatedly held [] that an
attorneys’ fee award need not be proportionate to the damage
award.”).
Here,

Plaintiffs

received

a

total

of

$19,700.00

in

compensatory damages and a total of $14,000.00 in punitive damages
against

four

separate

Defendant

Off-Duty

Officers.

True,

Plaintiffs did not succeed on their claims against the City of
Chicago and other Off-Duty Officers.

However, the unsuccessful

claims against the Defendant Off-Duty Officers were all related to
the claims on which Plaintiffs did prevail.

Thus, this is a case

in which Plaintiff’s “claims [against the Off-Duty Officers] for
relief . . . involve a common core of facts or [are] based on
related legal theories.”

Wallace v. Mulholland, 957 F.2d 333, 339

(7th Cir. 1992) quoting Hensley v. Eckerhart, 461 U.S. 424.
Therefore, the Court does not deem the fact that Plaintiffs were
only partially successful and equally unsuccessful—against several
- 21 -

Defendants as justification for reducing the Plaintiffs’ billable
hours.

See Gregory v. Weigler, 873 F.Supp. 1189, 1194 (C.D. Ill.

1995) (refusing to discount fees for plaintiffs’ unsuccessful
claims against various officers where the jury awarded $3,000.00 in
compensatory damages and $12,750.00 in punitive damages against
three officer defendants after the court entered a directed verdict
dismissing the City of Jacksonville and another individually named
Lieutenant.).
Defendants also object to the 7 hours Smith requests for time
spent waiting for the jury.

The Court agrees with Defendants’

objection with respect to these hours and accordingly reduces
Smith’s requested hours to 500.25 hours, thereby awarding Smith
$200,100.00 in fees (500.25 hours at $400 per hour).

See Warfield

v. City of Chicago, 733 F.Supp.2d 950, 959-60 (N.D. Ill. 2010)
(deducting time spent “waiting for the verdict . . . as these hours
were not “reasonably expended.”).
b.

Robert Johnson

Johnson requests fees for 334.8 hours at a rate of $400 per
hour.

Defendants agree to Johnson’s requested rate, but object to

107.5 of his requested hours.
Defendants argue Johnson’s time spent attending portions of
Defendants’ criminal trial and reviewing notes from the criminal
trial was unreasonable.

Defendants point out that Johnson billed

45 hours for attending the criminal trial and again billed 14 hours
for reviewing the transcripts and taking notes from the criminal
- 22 -

trial.

Defendants argue this is excessive particularly because

Baranyk only billed 5.25 hours for reviewing the same transcripts.
The

Court

finds

Johnson’s

attendance

at

the

criminal

trial

reasonable and as such denies Defendants’ objection to the 45 hours
spent attending the criminal trial.

However, the Court finds

Johnson’s additional 14 hours for reviewing transcripts and notes
excessive in light of his co-counsel reporting 5.25 hours for a
similar task.

As such, the Court reduces Johnson’s 14 hours for

reviewing transcripts to 5.25 hours.
Defendants also contest the 43 hours Johnson requests for
trial preparation. Defendants argue a portion of these entries are
unreasonable because the entries claim to be for trial preparation
“for the next day” and on a handful of the dates the next day was
a Saturday or Sunday.

The Court declines to get bogged down with

these semantics and finds it reasonable for Johnson to prepare on
a Saturday and Sunday for trial’s continuation the following
Monday.

The Court however, agrees with Defendants’ objections to

11 hours Johnson requested for trial preparation where the jury had
begun to deliberate.

See Warfield, 733 F.Supp.2d at 959-60.

Accordingly, the Court reduces 19.75 of Johnson’s hours and
awards Johnson $126,020.00 in fees (315.05 hours at $400 per hour).
c.

Amanda Antholt

Antholt requests fees for 652 hours at a rate of $350 per
hour.

Defendants object to 114.76 of Antholt’s hours, but do not

contest her requested rate.
- 23 -

Defendants object to approximately 71.25 hours of Antholt’s
hours which relate to her time spent regarding Plaintiffs’ claims
against Off-Duty Officers Powers and Barnes. Defendants argue such
fees are unnecessary because Plaintiffs did not prevail against
either Powers or Barnes for the purposes of § 1988.

For the

reasons previously articulated in Defendants’ objections to Smith’s
hours, the Court finds these hours reasonable.

See generally,

Wallace, 957 F.2d at 339.
Defendants also object to approximately 10.01 of Antholt’s
hours as unreasonable because the tasks involved were clerical in
nature

and

assistant.

could

have

been

delegated

to

a

non-professional

Examples of these tasks include making phone calls,

drafting emails, and creating spreadsheets.

The Court agrees with

Defendants with respect to these objections and reduces Antholt’s
hours by 10.01 hours.

See Spegon v. Catholic Bishop of Chicago,

175 F.3d 544, 553 (7th Cir. 1999) (stating the “district court
should disallow time spent on what are essentially “clerical” or
secretarial tasks.”).
Defendants next object to Antholt’s time spent with Aaron
Gilfand’s and Adam Mastrucci’s treating physicians.

Defendants

contend that because Adam Mastrucci and Aaron Gilfand did not
prevail on their § 1983 claims, they are not entitled to a fee
award under § 1988.

In Elusta v. City of Chicago, the court

addressed virtually an identical argument to the one Defendants
assert here.

Elusta v. City of Chicago, 760 F.Supp.2d 792 (N.D.
- 24 -

Ill. 2010).

In Elusta, four plaintiffs asserted various claims

under § 1983 and state law claims against the City of Chicago and
individual

police

officers.

Ultimately,

the

jury

in

Elusta

rendered a verdict in favor of one plaintiff on his excessive force
claim and one of his state law claims, but found in favor of
defendants on the remaining claims.
plaintiffs

in

Elusta

petitioned

for

Id. at 797.
fees

under

§

When the
1988,

the

defendants argued that the plaintiff who was successful in his
§ 1983 claim was the only plaintiff entitled to fees.
court

in

Elusta

agreed

with

the

premise

of

the

While the
defendants’

argument, it held, “[g]iven that the other plaintiffs’ claims about
the 2006 search were based on the same facts as Morad’s [the
successful plaintiff] claims . . . whether the rest of plaintiffs
are considered “prevailing parties” or not does not affect what
fees would be appropriate.”

Id.

The Court finds the analysis in Elusta analogous to this case.
The Court recognizes that for the purposes of § 1988, only Barry
Gilfand and Scott Lowrance can be considered to be “prevailing
plaintiffs.”

However, because all of the Plaintiffs’ claims were

based on the same facts as Barry’s and Scott’s claims, whether
Aaron and Adam are considered “prevailing parties” does not affect
what

fees

are

appropriate.

The

Court

therefore,

rejects

Defendants’ objections to Antholt’s fees for hours spent pertaining
to Adam’s and Aaron’s claims.

- 25 -

Finally, Defendants object to 7 hours Antholt requests for
waiting for the jury’s verdict and .5 hours spent waiting for a
cancelled deposition.

The Court agrees with Defendants that this

time is unreasonable and accordingly, reduces Antholt’s hours for
such tasks.

See Warfield, 733 F.Supp.2d at 959-60.

Thus, the Court reduces Antholt’s hours to 634.49 and awards
$222,071.50 in fees (634.49 hours at $350.00 per hour).
d.

James Baranyk

Baranyk seeks fees for 386.8 hours at a rate of $300 per hour.
Defendants argue that the appropriate rate for Baranyk is $275 per
hour and contest 112.25 of his hours.
Defendants

object

to

65.25

of

Baranyk’s

hours

because

Defendants claim these hours relate to unsuccessful claims or
unsuccessful Plaintiffs.

For the reasons previously articulated,

the Court disagrees and refuses to reduce Baranyk’s hours for these
reasons.

See Wallace, 957 F.2d at 339; see also, Elusta, 760

F.Supp.2d at 797.
Defendants also object to 17 of Baranyk’s hours because
Defendants claim these entries are impermissibly vague.

The Court

agrees

Baranyk’s

with

Defendants’

objections

with

respect

to

entries that merely state “review case related filings,” and
entries which include the descriptions “other pm work.” See Harper
v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000)
(“[W]hen a fee petition is vague or inadequately documented, a
district court may . . . strike the problematic entries . . . “);
- 26 -

see also, United Cent. Bank v. Kanan Fashions, Inc., No. 10-CV-331,
2012 WL 1409245 at *6 (N.D. Ill. Apr. 23, 2012) (reducing hours
where entries merely stated “prepared for hearing”).
Because of this, the Court reduces Baranyk’s requested hours
by 17 hours.

In addition to this reduction, the Court also strikes

Baranyk’s entry of 5 hours for jury deliberations. Thus, the Court
reduces Baranyk’s hours to 364.8 hours.
Defendants also object to Baranyk’s requested hourly rate of
$300.

Defendants argue this rate should be reduced to $275 per

hour in light of the amount of time that has passed since Baranyk’s
last civil rights case, Thompson v. City of Chicago, No. 07-C-1130,
2011 WL 2923694 (July 18, 2011), which he worked on with Antholt.
In Thompson, Antholt was awarded a rate of $325 an hour and Baranyk
was awarded a rate of $250 an hour.

Id.

Here, Plaintiffs seek a

rate of $350 an hour for Antholt, based on the time that has passed
and her additional experience since Thompson.

However, Plaintiffs

seek a rate of $300 an hour for Baranyk; a $50 per hour increase
from his awarded rate in Thompson.

Plaintiffs fail to provide an

explanation as to why Antholt deserves a $25 per hour increase and
Baranyk deserves a $50 per hour increase.

As such, the Court

reduces

and

Baranyk’s

rate

to

$275

per

hour

awards

Baranyk

$100,320.00 in fees, (364.8 hours at $275.00 per hour).
e.

Emily J. Stine

Stine seeks an award for 38.5 hours at a rate of $200 per
hour. Defendants do not object to Stine’s rate, but argue that the
- 27 -

Court should strike 3.5 of Stine’s requested hours.

Defendants

contend 2.5 of these hours involve clerical tasks such as composing
spreadsheets and investigating addresses.

The Court agrees and

reduces Stine’s hours to 36.5. The Court rejects Defendants’ other
objection concerning Stine’s time spent reading Aaron Gilfand’s
transcript.

Thus, the Court awards Stine $7,300.00 in fees (36.5

hours at $200 per hour).
f.

Sally Saltzberg

Saltzberg petitions the Court for fees for 237.4 hours at a
rate of $375.00 per hour.

Defendants object to both her rate and

hours, arguing that the appropriate rate for Saltzberg is $300 per
hour and 92.2 of her hours are unreasonable.
The Court agrees with Defendants’ objections regarding the
hours Saltzberg seeks for the time she spent dealing the press.
See Dupuy v. McEwen, 648 F.Supp.2d 1007, 1021 (N.D. Ill. 2009)
(subtracting 100.5 hours of plaintiff’s fee petition for hours
spent communicating with the press because “[g]enerally, attorneys
fees are awarded only for time spent on the litigation itself.”)
Accordingly, the Court reduces 15 hours from Saltzberg’s hours.
The majority of Defendants’ other objections are grounded on
the

basis

that

Saltzberg’s

entries

description of the tasks performed.

provide

an

insufficient

The Court disagrees with many

of these objections, but concedes that a few of Saltzberg’s entries
are

impermissibly

vague.

As

an

example,

the

Court

finds

Saltzberg’s entries which merely state “prepare for court” and
- 28 -

“deposition preparation” to be similar to the entries in Kanan
Fashions, Inc., where the court reduced hours for entries that
merely stated “prepared for hearing.” Kanan Fashions, Inc. No. 10CV-331, 2012 WL 1409245 at *6.

As such, the Court strikes an

additional 15.5 hours from Saltzberg’s requested hours.
Defendants next argue that Saltzberg requested rate of $375
should

be

reduced

to

$300

because

Saltzberg

has

only

been

practicing civil rights law since 1994 and her involvement in this
case was limited to the early stages of the litigation.

However,

Defendants fail to explain how a reduction to Saltzberg’s rate
makes sense in light of the fact that in 2007 Saltzberg obtained an
hourly rate of $350 in Klipfel v. Gonzalez, No. 94-C-6415, 2006 WL
1697009 (N.D. Ill. June 6, 2006).

Because of this, and because of

Defendants’ prior concessions that the Court should award Antholt
and Baranyk a $25 increase from the rate they were awarded for a
2011 case, the Court finds Saltzberg’s requested rate of $375
reasonable. Pursuant to these findings, the Court awards Saltzberg
$77,587.50 in fees (206.9 hours at $375 per hour).
g.

Steven Fine

Fine seeks an award of fees for 192.15 hours at a rate of $300
per hour.

Defendants do not object to Fine’s requested rate, but

object to 99.75 of his claimed hours.
The majority of Defendants’ objections surrounding Fine’s
hours

lie

in

Saltzberg’s.

the

fact

that

his

hours

are

duplicative

of

The Seventh Circuit has noted that duplicative time
- 29 -

in fee petitions is frequently inappropriate because such time
could not reasonably be billed to a client.

Jardien v. Winston

Network, Inc., 888 F.2d 1151, 1160 (7th Cir. 1989).

Thus, the

Seventh Circuit has instructed district courts to “scrutinize a fee
petition carefully for duplicative time.” Id.; see also, Schlacher
v. Law Offices of Philip J. Rotche & Assoc., P.C., 574 F.3d 852,
858 (7th Cir. 2009).

In the same breath, the Seventh Circuit

recognizes that merely because two lawyers bill for the same task
does not mean those hours must be deducted.

See Tchemkou v.

Mukasey, 517 F.3d 506, 511-12 (7th Cir. 2008).
With these concepts in mind, the Court strikes 34.9 hours of
Fine’s hours

as

duplicative.

The

Court finds

these entries

unreasonable mainly because the entries are for the exact same
dates and involve the exact same tasks as Saltzberg’s entries.

As

an example, on February 8, 2008, Fine claims he spent 4 hours
meeting with Adam Mastrucci and Scott Lowrance.

Yet, on this same

day, Saltzberg billed 4 hours for Adam’s and Scott’s deposition.
Defendants point out that given Saltzberg’s and Fine’s level of
experience, it is unreasonable for both attorneys to bill twice for
their attendance at all of the depositions.

See Gibson v. City of

Chicago, --- F.Supp. 2d ---, No. 10-C-5310, 2012 WL 2775025 at *9
(July 6, 2012) (striking as duplicative a portion of plaintiffs’
attorneys entries because plaintiffs failed to meet their burden of
proof regarding the reasonableness of such entries).

- 30 -

The Court also strikes Fine’s 2.5 hour entry for telephone
calls

with

the

media,

and

strikes

8.05

of

Fine’s

hours

as

impermissibly vague.

The Court finds descriptions such as “Re:

1983

with

cases,”

“Calls

client

&

file

re,”

and

“continued

complaint” insufficient in detail for the purposes of § 1988.

See

Kanan Fashions, Inc., No. 10-CV-331, 2012 WL 1409245 at *6.
The Court therefore awards Fine $44,010.00 in fees, (146.7
hours at $300.00 per hour).
h.

Kathleen Johnson-Silk

Johnson-Silk is Plaintiffs’ paralegal.
52.95 hours at a rate of $100 per hour.

She seeks fees for

Defendants do not object

to the requested rate, but argue that the Court should strike 48.8
of her requested hours as unreasonable.

Defendants argue these

hours were for clerical tasks that could have been delegated to a
non-professional assistant.
The relevant inquiry for requested paralegal fees is “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
pay-scale ladder.”

People Who Care v. Rockford Bd. of Educ., Sch.

Dist. No. 205, 90 F.3d 1307, 1315 (7th Cir. 1996).

The Seventh

Circuit instructs district courts to disallow time spent on what
are essentially “clerical” or secretarial tasks.
Spegon, 175 F.3d at 552.

Id.; see also

In this case, the tasks for which

Plaintiffs seeks paralegal fees include proofreading, document
preparation, organizing files, and copying and faxing documents.
- 31 -

The Court finds these tasks clerical in nature and therefore
strikes 41 of Johnson-Silk’s 52.95 hours.

Thus, the Court awards

Johnson-Silk $1,195.00 (11.95 hours at $100.00 per hour).
After examining the reasonableness of each of Plaintiffs’
attorneys’

hours

and

rates,

the

Court

finds

the

Plaintiffs’

modified lodestar to equal $778,604.00
2.

Increasing or Decreasing Based on Modified Lodestar

Upon reaching an amount using the lodestar determination, the
Court may then adjust that award in light of the plaintiff’s “level
of success.”

See Hensley, 461 U.S. at 436.

In Hensley, the

Supreme Court set forth the basic approach for district courts to
use in determining whether to adjust the modified lodestar amount
to account for a party’s limited success.

See id. at 434-38.

In

a case involving a single claim or related claims, the court is
directed to ask whether “the plaintiff achieve[d] a level of
success that makes the hours reasonably expended a satisfactory
basis for making a fee award.”

Id. at 434.

In so doing, the court

“should focus on the significance of the overall relief obtained by
the plaintiff in relation to the hours reasonably expended on the
litigation.”

Id. at 435; see also Jaffee v. Redmond, 142 F.3d 409,

414 (7th Cir. 1998). When a plaintiff obtains an excellent result,
his attorney should recover a fully compensable fee (i.e., the
modified lodestar amount), and the fee “should not be reduced
simply because the plaintiff failed to prevail on every contention
raised in the lawsuit.”

Hensley, 461 U.S. at 435.
- 32 -

However, “[i]f

. . . a plaintiff has achieved only partial or limited success, the
product of hours reasonably expended on the litigation as a whole
times a reasonable hourly rate may be an excessive amount.”
436.

Id. at

In such a case, the courts have discretion to reduce the

modified lodestar amount to reflect the degree of success obtained.
See id. at 436-37.

Notwithstanding this, the Seventh Circuit

instructs that, “[t]here is a strong presumption that the lodestar
calculation yields a reasonable attorneys’ fee award.”

Pickett v.

Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011).
Defendants contend that after the Court applies the Hensley
factors the Court should reduce Plaintiffs’ award by 85 percent.
Defendants argue that the Plaintiffs’ failure to accept a $100,000
settlement offer in 2008 and the fact that only two of the four
Plaintiffs

prevailed

on

their

§

1983

claims

reduction.

Plaintiffs disagree and claim that a reduction to this

extent would ignore the purpose of § 1988.

justifies

this

Plaintiffs further

explain that if the Court compares Plaintiffs’ requested fees with
the Defendants’ fees, a reduction would be inappropriate.
a.

The May 2008 Settlement Offer

Defendants argue the Plaintiffs’ rejection of the May 2008
settlement offer is indicative of the Plaintiffs’ limited success
at trial, and is evidence that supports a reduction in Plaintiffs’
fee

award.

Plaintiffs

assert

that

the

Defendants’

argument

concerning such a settlement offer is not relevant here because an
“informal offer is a far cry from a binding Rule 68 offer of
- 33 -

judgment and is not a relevant consideration . . .”

Pls.’ Reply in

Supp. of Pet. for Attorneys’ Fees, Costs, and Expenses at 6.
The

Court

agrees

with

Plaintiffs

insofar

as

Defendants’

settlement offer does not carry the same weight as a Rule 68 offer
of judgment.

See Cole v. Wodziak, 169 F.3d 486, 487-88 (7th Cir.

1999) (finding it was “clear error” when a judge cut more than
$26,000 from the lodestar because of a settlement offer because the
judge “gave oral negotiations the same effect as a written offer of
judgment under Federal Rule Civil Procedure 68.”).
Seventh Circuit

also

instructs

that

However, the

“[s]ubstantial

settlement

offers should be considered by the district court as a factor in
determining an award of reasonable attorney’s fees even where
Rule 68 does not apply.”
Cir. 2000).

Moriaty v. Svec, 233 F.3d 955, 967 (7th

“[A]n offer is substantial if . . . the offered amount

appears to be roughly equal to or more than the total damages
recovered by the prevailing party.”

Id.

Here, Defendants’ allegedly offered Plaintiffs $100,000 in
2008 to settle the case.

The jury’s total award for Plaintiffs was

approximately $34,000.

While the Court recognizes that this

settlement award is clearly greater than the jury’s compensatory
and punitive damage award, the Court does take into account that
$34,000 plus attorneys’ fees “could produce a higher total” than
$100,000 without attorneys’ fees.

See Carroll v. DeTella, No. 96-

CV-2371, 1999 U.S. Dist. LEXIS 9515 at *8 (N.D. Ill. June 21,
1999).

Nonetheless, pursuant to Seventh Circuit precedent, the
- 34 -

Court finds the Plaintiffs’ rejection of the 2008 settlement offer
evidence

that

Plaintiffs’

attorneys

unduly

prolonged

litigation and a reduced fee award is appropriate.

this

See id.

(incorporating the “prolongation-of-litigation factor into the
disallowance of trial-related fees incurred

. . . because a jury

awarded $3,000.00 to the plaintiff but the plaintiff rejected a
$5,000.00 settlement offer prior to trial.”).
b.

Plaintiffs’ Limited Success at Trial

Hensley instructs that where plaintiffs prevail on only some
of their interrelated claims, as is the case here, the court “may
simply reduce the award to account for the limited success.”
Hensley, 461 U.S. at 436-37.

First, the Court must decide whether

a downward adjustment of Plaintiffs’ lodestar is proper under the
circumstances.
2010).

Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir.

Second, if the Court deems a reduction appropriate, the

Court must determine the reasonable amount to reduce the fees given
the results actually obtained by Plaintiffs.

Id.

Regarding the first inquiry, the Court concludes that while
Plaintiffs

are

the

“prevailing

parties”

for

the

purposes

of

Section 1988, they only achieved partial success, thus warranting
a downward adjustment of attorneys’ fees.

Plaintiffs prevailed on

only 9 of the 34 claims which were submitted to the jury.
Additionally, the jury awarded Plaintiffs a total of approximately
$34,000 in both compensatory and punitive damages even though
Plaintiffs sought three-to-five times this award.
- 35 -

Moreover, the

Court finds it relevant that only two of the four Plaintiffs
prevailed on their Section 1983 claims.

These facts taken in

conjunction with Plaintiffs’ rejection of the 2008 settlement cause
the Court to conclude a reduction in the lodestar figure is
appropriate. See Gibson v. City of Chicago, --- F.Supp.2d ---, No.
10-C-5310, 2012 WL 2775025 at *12-13 (N.D. Ill. July 6, 2012)
(reducing the lodestar amount 35% where a plaintiff prevailed on
his false arrest claim, but failed to prevail on his excessive
force

and

malicious

prosecution

claims

and

was

only

awarded

$7,500).
The Court now turns to the difficult task of determining what
amount to reduce the lodestar due to Plaintiffs’ partial success.
The Seventh Circuit admits “[p]recision is impossible to reach in
such calculations[.]”
precision

is

largely

Sottoriva, 617 F.3d at 976.
due

to

the

Supreme

The lack of

Court’s

express

instructions discouraging the use of “a mathematical approach
comparing the total number of issues in the case with those
actually prevailed upon.”

Hensley, 461 U.S. at 435.

Defendants propose a reduction of 85% based on their argument
that the Plaintiffs rejected a substantial settlement offer and
only two of the four Plaintiffs prevailed in their § 1983 claims.
Plaintiffs’ argue that no reduction is appropriate.

The Court

finds both arguments unpersuasive and instead concludes a reduction
of 40% is appropriate.
considerations.

The conclusion is based on four main

First, the jury’s verdict, while certainly not
- 36 -

insubstantial, was not an “excellent” result for the Plaintiffs.
Id. Second, Plaintiffs’ rejection of the $100,000 settlement offer
in 2008 certainly would have had the effect of saving both the
parties and the Court time and resources.

Third, after comparing

the Defendants’ fees with the Plaintiffs’ fees, the Court finds
such an amount reasonable.
Ex. S.

See Pls.’ Fee Pet.; Ex. Q, Ex. R,

Finally, the Court considers the purpose behind fee

shifting statutes such as Section 1988 “which encourage private
enforcement of laws designed to advance civil rights.”
2012 WL 2775025 at *13.

Gibson,

Based on these considerations, the Court

reduces the lodestar amount by 40% ($311,441.60) to $467,162.40.
3.

Costs

Finally, in their initial petition Plaintiffs seek “taxable
costs” and “expenses.”

Yet, in their petition Plaintiffs fail to

articulate whether they are seeking costs under Federal Rule of
Civil Procedure 54 or merely expert fee expenses pursuant to
Section 1988.

It is clear Defendants’ were also confused as to

Plaintiffs’ costs requests.

In their response to Plaintiffs’ fee

petition Defendants stated,
Defendants request that this Court enter an order
providing that each party is to bear his own costs . . .
If Plaintiffs chose to pursue their bill of costs in
their Reply, rather than agreeing that each side should
bear their own costs, these Defendants would like to
reserve their right to file a Sur-reply, as many of the
costs requested by Plaintiffs in their Petition are
clearly objectionable . . .

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Certain Defs.’ Resp. to Pls.’ Pet. for Attorney Fees and Expenses
at 18.
In

their

reply,

Plaintiffs’

fail

to

address

Defendants’

request for each party to bear their own costs and in fact, fail to
even mention costs at all.

Instead, Plaintiffs merely added the

word “Costs” to the title of their reply.

See [Dkt. 546].

The

word “Costs” was however, not in Plaintiffs’ original petition for
fees.

See [Dkt. 509-1.].

In addition to this lack of clarity, the

Court agrees with Defendants with respect to their objections to
some

of

Rule 54.

Plaintiffs’

“costs”

being

unrecoverable

pursuant

to

As an example, Plaintiffs include airline tickets for

depositions, medical records, and records from various places of
Plaintiffs’ employment.

See [Dkt. 511-14, at 9-12].

are not recoverable under Rule 54 or Section 1988.
P. 54; 28 U.S.C. § 1920; 42 U.S.C. § 1988.
failed

to

supply

the

Court

a

Bill

of

These costs

See FED . R. CIV .

Moreover, Plaintiffs

Costs

with

sufficient

information for the Court to determine what costs are reasonable
and necessary.

Instead, Plaintiffs only attached a spreadsheet as

an exhibit to their fee petition.

See [Dkt. 511-14; Ex. N].

Accordingly, to the extent that Plaintiffs’ fee petition also
seeks an award of costs, the Court denies such costs.

See Se-Kure

Controls, Inc. v. Vanguard Prods. Group, No. 02-C-3767, 2012 U.S.
Dist. LEXIS 97136 at *17 (N.D. Ill. July 5, 2012) (“Simply pointing
the Court

to

an

exhibit

containing

numerous

invoices

is

not

sufficient documentation of costs and does not provide the Court
- 38 -

with the information necessary to determine whether the costs were
necessary or were made for the sake of convenience.”).
IV.

CONCLUSION

For the reasons stated herein, the Court rules as follows:
1.

Denies Defendants Barnes’ and Powers’ Fee Petition and

Bill of Costs.
2.

[Dkt. 513 & 514];

Denies Defendants Woosely’s and Kereakes’ Bill of Costs.

[Dkt. 508];
3.

Denies Defendant City of Chicago’s Bill of Costs.

[Dkt. 498]; and
4.

Grants

in

part

and

denies

in

part

Plaintiffs’

Fee

Petition and awards Plaintiffs the sum of $467,162.40 for fees and
costs. [Dkt. 509-1.]

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:

11/19/2012

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