Peterson v. City of Chicago et al

Filing 64

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 10/4/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SIDNEY PETERSON,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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No. 09 C 1839

MEMORANDUM ORDER
This Court’s judicial role does not of course extend to
passing judgment on the current policy of the City of Chicago
(“City”) as to the non-settlement of 42 U.S.C. §19831 claims--a
policy that in at least some instances is reminiscent of the
aphorism famously attributed (though perhaps inaccurately) to our
late 18th century Minister to the French Republic, Charles
Cotesworth Pinckney:
Millions for defense, but not one cent for tribute.
This small potatoes Section 1983 action,2 after some 2-1/2 years
of preparation by counsel, has been reported by both sides’
counsel as having generated a settlement demand of $1500, which

1

Further citations to Title 42 provisions will take the
form “Section --.”
2

No view is expressed here as to the merit or lack of
merit in the constitutional claim advanced by plaintiff Sidney
Peterson (“Peterson”)--instead “small potatoes” simply refers to
the demand that Peterson’s experienced Section 1983 practitioner
Kenneth Flaxman has made as the basis for possible settlement.
What this Court can say is that Peterson’s Complaint satisfies
the Fed. R. Civ. P. (“Rule”) 12(b)(6) “plausibility” test
prescribed by the Twombly-Iqbal canon.

has been flatly rejected by outside counsel for the City, coupled
with an insistence that the case go to trial.
As such, this case could well serve as the poster child for
those who oppose the current position of City’s lawyers as unduly
inflexible.

This Court will not enter that debate other than to

say that the vaunted advantages ascribed to the non-settlement
policy in the way of heading off frivolous lawsuits (of which
this action is not one--see n.2) have not, to this Court’s
knowledge, ever been contrasted with an empirical study of the
financial impact of cases that, with settlement having been
rejected, have gone to trial and have resulted in damage awards
greater than (and sometimes much greater than) a monetary level
at which settlement would have been available.
In any event, obviously frustrated by what he viewed as
intransigence on the part of City’s counsel, Peterson’s lawyer
most recently announced that he was reducing Peterson’s ad damnum
to $20 and has thus, as he contends, eliminated the right to a
jury trial under the Seventh Amendment.

Nothing daunted, City’s

lawyers have filed a document captioned Defendants’ Statement in
Support of Their Right to Trial by Jury (“Statement”).

Advancing

a kind of “gotcha!” argument, they point to the potential for an
award of costs and fees if Peterson is successful at trial, thus
assertedly pushing the lawsuit over the line into Seventh
Amendment jury trial territory.

2

That argument is downright disingenuous, for any potential
award of attorney’s fees in Section 1983 actions is expressly
made under Section 1988(b) “as part of the costs”--and costs are
of course awarded by the court and play no part in a jury’s
determination of damages.
Indeed, defense counsel’s disingenuousness is exemplified by
the Statement’s citation to, and quotation from, GardynskiLeschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998):
Legal fees may count toward the amount in controversy
when the prevailing party is entitled to recovery them
as part of damages.
Cutting that quotation short in that manner is totally deceptive,
for the very next sentence of the opinion (id.) goes on to say:
Things are dicier when a statute calls for a award of
fees as part of costs, for then the rule that
“interests and costs” do not count toward the
jurisdictional minimum would take over.
Gardynski-Leschuck was speaking of the amount-in-controversy
concept in the context of diversity of citizenship cases, but the
language of the Seventh Amendment embraces the same concept of
differentiating between the roles of judge and jury.
It is really a shame to have been compelled to spend time
and effort (judicial as well as lawyers’) on an issue that could
so readily be made to vanish by a reasonable approach, rather
than one that can fairly be viewed as calling 28 U.S.C. §1927
into play.

In sum, this Court rejects defense counsel’s

concluding prayer:
3

Defendants request the Court preserve their jury trial
demand.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

October 4, 2011