Bronzino v. Sheldon et al

Filing 218

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 4/17/2013:Mailed notice(kef, )

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

)
)
Plaintiff,
)
)
v.
)
)
OFFICER DAVID SHELDON, OFFICER )
BRIAN SHIELDS, and the CITY OF
)
AURORA,
)
)
Defendants.
)

Case No. 09 C 1048

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:
On September 10, 2012, a jury returned a verdict in favor of Plaintiff Timothy Bronzino
against Defendant Brian Shields as to Plaintiff’s Fourth Amendment Excessive Force claim. The
jury, however, returned a verdict in favor Defendants on the remainder of Plaintiff’s claims,
which included failure to intervene, false arrest, and malicious prosecution claims, as well as an
excessive force claim against Defendant David Sheldon. The jury awarded Plaintiff $9,000.00 in
compensatory damages for Defendant Shields’ excessive force violation. Before the Court is
Plaintiff’s fee petition pursuant to 42 U.S.C. § 1988(b). The Court, in its discretion, awards
Plaintiff’s counsel $66,860.63. 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). The United
States Supreme Court has “made clear that plaintiffs may receive fees under § 1988 even if they
are not victorious on every claim.” Fox v. Vice, ___ U.S. ___, 131 S.Ct. 2205, 180 L.Ed.2d 45

(2011).
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”). Furthermore, “[o]nce 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).
District courts can adjust fee awards “upward” or “downward” based on the “results
obtained” in the litigation. See Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76
L.Ed.2d 40 (1983); Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir. 2010). “[A]lthough a district
court has significant discretion in determining the lodestar, it cannot base its [adjustment] on an
irrelevant consideration or reach an unreasonable conclusion.” Johnson, 668 F.3d at 929. 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).

2

ANALYSIS
I.

Untimely
First, Defendants argue that the Court should deny Plaintiff’s petition for attorney’s fees

in its entirety because it is untimely under Northern District of Illinois Local Rule 54.3, which
requires that fee motions shall be filed no later than 91 days after entry of judgment. Although
the Court originally entered judgment on September 10, 2012, the Court entered an amended
judgment on November 28, 2012. Therefore, Plaintiff’s fee petition filed on January 23, 2013 is
timely under Local Rule 54.3. Accordingly, Defendants’ first argument is without merit.
II.

Medical Claims
Next, Defendants assert that the Court should exclude the hours Plaintiff’s counsel

expended in pursuing Plaintiff’s “medical claims” because counsel had no good faith basis to
pursue any such claims. Although Plaintiff originally brought claims based on his psychological
symptoms and conditions, he dropped these claims well before trial and limited his damages to
“garden variety” emotional damages, such as pain and suffering. After Plaintiff dropped his
psychological symptoms and conditions claims in 2010, Defendants nevertheless pursued these
claims during discovery arguing that all of Plaintiff’s medical records and psychological history
“are fair game on the issue of emotional distress causation.” (R. 213-1, 7/22/10, e-mail.)
Because Defendants pursued Plaintiff’s medical claims in the context of compensatory
damages after Plaintiff dropped these claims from this lawsuit, Defendants’ argument that the
Court should deduct the hours Plaintiff’s counsel expended relating to these medical claims is
unavailing. See Catalan v. RBC Mortgage Co., 05 CV 6920, 2009 WL 2986122, at *5 (N.D. Ill.
Sept. 16, 2009) (“When parties that do not bear the burden of proof at trial mount a spirited

3

defense of the case, they can hardly complain when their adversaries spend at least as much time
and effort to surmount the defense.”).
III.

Trial Hours
Defendants also argue that the Court should exclude the hours Plaintiff’s counsel Dan

Dorfman spent at trial in their entirety because Mr. Dorfman was a second chair and this matter
was not complicated. Defendants rely on the Court’s fee petition order in another Section 1983
lawsuit, LaSalvia v. City of Evanston, in which the Court concluded that the second chair in that
lawsuit duplicated the first chair’s efforts in the context of a case involving uncomplicated
theories of liability. See LaSalvia v. City of Evanston, No. 10 C 3076, 2012 WL 2502703, at *2
(N.D. Ill. June 28, 2012).
Here, Mr. Dorfman conducted direct and cross-examinations of certain trial witnesses,
and thus the hours spent preparing witnesses for trial are clearly recoverable. Moreover, as Mr.
Dorfman’s billing entries reflect, he was Plaintiff’s co-counsel from the beginning of this
lawsuit, unlike the second chair in LaSalvia. Therefore, Mr. Dorfman’s presence during trial
added value to the first chair’s understanding of the case, including the hours spent discussing
trial strategy and jury selection. Indeed, at the August 7, 2012 final pre-trial and jury instruction
conference, as well as at trial, Mr. Dorfman displayed an extensive understanding of the facts
and law involved in this lawsuit. Therefore, LaSalvia is factually distinguishable from this
lawsuit. Hence, the Court denies Defendants’ request to exclude Mr. Dorfman’s trial hours in
their entirety.
IV.

Proportionality
Throughout their legal memorandum, Defendants’ arguments suggest that the Court

4

should deny or reduce Plaintiff’s fee request because Plaintiff only received $9,000.00 in
compensatory damages. The Seventh Circuit, however, has “rejected the notion that the fees
must be calculated proportionally to damages.” Anderson v. AB Painting & Sandblasting Inc.,
578 F.3d 542, 545 (7th Cir. 2009) (quoting Alexander v. Gerhardt Enter., Inc., 40 F.3d 187, 194
(7th Cir. 1994)). As the Supreme Court teaches:
A rule of proportionality would make it difficult, if not impossible, for
individuals with meritorious civil rights claims but relatively small potential
damages to obtain redress from the courts. This is totally inconsistent with
Congress’ purpose in enacting § 1988. Congress recognized that private-sector
fee arrangements were inadequate to ensure sufficiently vigorous enforcement of
civil rights. In order to ensure that lawyers would be willing to represent persons
with legitimate civil rights grievances, Congress determined that it would be
necessary to compensate lawyers for all time reasonably expended on a case.
City of Riverside v. Rivera, 477 U.S. 561, 578, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986).
Nevertheless, because the “amount of damages a plaintiff recovers is certainly relevant to the
amount of attorney’s fees to be awarded under § 1988,” see id. at 574, the Court will determine
reasonable attorney’s fees in the context of the facts and circumstances in this lawsuit below.
See Hensley, 461 U.S. at 434; Sottoriva, 617 F.3d at 975.
V.

Lodestar Analysis
A.

Hours Reasonably Expended

Defendants object to specific entries of both Mr. Dorfman and co-counsel Blake Horwitz.
Most of Defendants’ objections contain little or no explanation — other than the disputed entries
are unreasonable, excessive, or vague. In response, Plaintiff’s counsel has provided more
complete explanations to the challenged entries and has adjusted some of time billed for clericaltype work. (See 216, Ex. F, Revised Timesheets.) After carefully reviewing the revised
timesheets, the Court accepts counsel’s time adjustments and revised explanations as accurate
5

and reasonable.
B.

Reasonable Hourly Rate

Defendants do not object to first chair Mr. Horwitz’s hourly rate of $425.00. Instead,
they challenge Mr. Dorfman’s hourly rate of $310.00 arguing that the Court should reduce his
rate to $250.00 an hour. In particular, Defendants contend that although Mr. Dorfman is a
seasoned attorney, he did not start litigating Section 1983 cases until 2009 when he joined Mr.
Horwitz’s law firm. Indeed, prior to working with Mr. Horwitz, Mr. Dorfman, a 1998 law
school graduate, practiced tort litigation and appeals in California and complex commercial
litigation in both California and Illinois. From 1998 until 2009, Mr. Dorfman’s practiced
involved all aspects of civil litigation and his complex commercial litigation practice was
primarily in federal court. (R. 207-3, Ex. C, Dorfman Aff. ¶¶ 1-14.)
The Seventh Circuit has defined a 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. “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)). Also, “[t]he reasonableness of an attorney’s billing rate depends
on the experience and qualifications of the professional.” Trustees of Chicago Plastering Inst.
Pension Trust v. Cork Plastering Co., 570 F.3d 890, 905 (7th Cir. 2009). “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.’” Pickett, 664 F.3d at 640 (quotation omitted); see also

6

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).
In Mr. Dorfman’s affidavit, he avers that he has served as first or second chair in five
federal civil rights trials in the Northern District of Illinois. (Dorfman Aff. ¶¶ 14-16.) As lead
counsel in one case, Mr. Dorfman obtained a judgment in favor of his clients on their excessive
force claims against two Chicago police officers. (Id. ¶ 15.) Also, he avers that he has appeared
in over 36 cases in the Northern District of Illinois, most of which have been police misconduct
cases, although he has also worked on employment discrimination and First Amendment
retaliation cases. (Id. ¶ 13.) Plaintiff’s counsel further sets forth affidavits of individuals with
similar experience, including an attorney who has focused on civil rights cases since 2007 and
bills $355.00 an hour and a civil rights attorney with six years of experience who bills $300.00
an hour. (R. 214, Exs. A, B.) Equally important, courts have awarded both attorneys these rates.
In addition, courts in this district have approved the range of $285.00 to $310.00 an hour for trial
attorneys with similar civil rights and overall litigation experience as Mr. Dorfman. See
McDonough v. Briatta, No. 06 C 2732, 2013 WL 1303800, at *4 (N.D. Ill. Mar. 27, 2013);
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); Smith v. City of Chicago, No. 09 C 4745 (N.D. Ill. Jan. 12, 2012). The Court also notes
that although Mr. Dorfman has practiced civil rights law for approximately four years, during
that four-year time period he has been first or second chair five times and has appeared in
numerous civil rights lawsuits, including preparing those lawsuits for trial. Accordingly, Mr.

7

Dorfman has accumulated a considerable amount of civil rights litigation experience in a short
amount of time. Based on the submitted affidavits, similar hourly rates awarded, Mr. Dorfman’s
experience, and his work on this matter, the Court reduces Mr. Dorfman’s hourly rate to $290.00
an hour as appropriate under the circumstances.
Meanwhile, Defendants reliance on Wells v. City of Chicago is not persuasive, especially
because counsel in Wells failed to offer sufficient support for their hourly rates, unlike counsel in
this lawsuit. See Wells v. City of Chicago, ___ F.Supp.2d ___, 2013 WL 622942, at *3 (N.D. Ill.
Feb. 20, 2013). Further, LaSalvia is distinguishable, as discussed above, and also because
counsel failed to provide the Court with sufficient evidence of the requested rate of $350.00 for
the second chair. See id. at 4. As counsel well know, no two cases are exactly alike. Indeed, as
the Seventh Circuit recognizes in the context of fee awards, a “district judge’s substantial
discretion, which implies deferential appellate review of fee awards, ensures inconsistency.”
Johnson v. Daley, 339 F.3d 582, 593-94 (7th Cir. 2003) (internal citation omitted). Defendants
do not offer any further substantiation for their requested rate of $250.00, and therefore, have
failed in their burden of presenting evidence why this lower rate is appropriate. See Pickett, 664
F.3d at 640.
VI.

Downward Adjustment
Defendants maintain that the Court should adjust the lodestar amount due to the limited

degree of success obtained, namely, that Plaintiff only succeeded on one claim against Defendant
Officer Shields and that the other claims — failure to intervene, false arrest, malicious
prosecution, and an excessive force claim against Defendant Officer Sheldon — were
unsuccessful. See Hensley, 461 U.S. at 436 (“the most critical factor” in determining the

8

reasonableness of a fee award “is the degree of success obtained”); Sottoriva, 617 F.3d at 975
(same). The Court agrees. Because Plaintiff’s constitutional and state law claims involved a
common core of facts based on related legal theories, the Court focuses on the “significance of
the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the
litigation.” See Hensley, 461 U.S. at 435. As the Seventh Circuit reasons, “[p]recision is
impossible in such calculations, and the district court is entitled to considerable discretion in
arriving at an award that it deems reasonable.” Sottoriva, 617 F.3d at 976.
Although Plaintiff succeeded on only one of his claims and the jury awarded him
$9,000.00 in compensatory damages, taking into account the purposes behind the fee-shifting
statute, the Court exercises its discretion and reduces the lodestar amount by 50 percent. See
Rivera, 477 U.S. at 575 (“[b]ecause damages awards do not reflect fully the public benefit
advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike
most private law cases, to depend on obtaining substantial monetary relief.”); see, e.g., DeCola
v. Keel, No. 09 C 3799, 2010 WL 5232972, at *2 (reducing lodestar by 50 percent based on
mixed result); Garcia v. Oasis Legal Fin. Oper. Co., 608 F.Supp.2d 975, 980 (N.D. Ill. 2009)
(reducing lodestar by 50 percent because degree of success obtained, “while not entirely
insignificant, is partial at best”); Tauber v. City of Chicago, 35 F.Supp.2d 699, 702 (N.D. Ill.
1999) (reducing lodestar by 40 percent based on lack of success of total claims).
Applying a 50 percent reduction to the lodestar amount of $133,721.25, the Court arrives
at an attorney’s fee award of $66,860.63, which is reasonable under the particular circumstances
of this case. See Perdue, 130 S.Ct. at 1676 (“Determining a ‘reasonable attorney’s fee’ is a
matter that is committed to the sound discretion of a trial judge.”) (quoting 42 U.S.C. § 1988)).

9

CONCLUSION
For the these reasons, the Court grants Plaintiff’s attorney’s fees petition in the amount of
$66,860.63.
Date: April 17, 2013
ENTERED

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

10