Olinyk et al v. Fleming et al
Filing
100
MEMORANDUM OPINION Signed by the Honorable John F. Grady on January 16, 2013. Mailed notice(cdh, )
10-5148.121-RSK
January 16, 2013
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH OLINYK and PAULINE A.
APPLEGATE,
)
)
)
Plaintiffs,
)
)
v.
)
)
JEFFREY D. FLEMMING, JAMES GAINER, )
MIKE WAHL, THOMAS J. WESTLEY, and )
KEITH RINGHAM,
)
)
Defendants.
)
No. 10 C 5148
MEMORANDUM OPINION
Before the court are (1) defendant Keith Ringham’s motions to
deny attorneys’ fees and to stay briefing on the plaintiff’s motion
for fees and costs; and (2) plaintiff Joseph Olinyk’s motion for
attorneys’ fees.
For the reasons explained below, we grant
Ringham’s motion to deny fees, deny his motion to stay briefing as
moot, and deny the plaintiff’s motion for attorneys’ fees.
BACKGROUND
Olinyk and Paulina Applegate filed a six-count complaint
against
five
defendants
stemming
Applegate’s residence in 2008.
from
Olinyk’s
arrest
at
The complaint alleged that four
Island Lake police officers — Jeffery Flemming, James Gainer, Mike
Wahl, and Thomas Westley — illegally entered Applegate’s home and
used excessive force to arrest Olinyk, injuring Applegate in the
process.
According to the plaintiffs, the Island Lake police
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officers beat Olinyk and sprayed him with pepper spray without
provocation.
Ringham, a Wauconda police officer, was named as a
defendant to Olinyk’s excessive-force claim for his conduct after
the Island Lake police officers removed Olinyk from the house.
As
developed at trial, Ringham and Gainer dragged Olinyk from outside
Applegate’s home to an ambulance, causing bruises and abrasions
along the way.
In December 2010, Ringham made a $2,500 Rule 68 offer of
judgment, which Olinyk rejected.
Shortly thereafter, Olinyk and
Applegate accepted Rule 68 offers of judgment from the four Island
Lake police officers. (See Judgment in Favor of Olinyk, dated Jan.
28, 2011, Dkt. 28 ($30,000); Judgment in Favor of Applegate, dated
Jan. 28, 2011, Dkt. 32 ($20,000).)1
Olinyk and Ringham conducted
discovery and unsuccesfully attempted to settle their dispute
during a settlement conference with Magistrate Judge Cox.
After a
four-day trial, we instructed the jury that they could find for
Olinyk
on
his
excessive-force
claim
under
two
theories:
(1)
Ringham’s personal use of excessive force; and/or (2) Ringham’s
failure to intervene to prevent Gainer’s use of excessive force.
The jury found for Olinyk, and against Ringham, on the second
theory.
During closing arguments, Olinyk had asked the jury to
award him $15,000 in compensatory damages and $45,000 in punitive
1/
The plaintiffs and the Island Lake defendants later settled the
plaintiffs’ claims for attorneys fees and costs.
- 3 -
damages.
(See Def.’s Mot. at 4; Pl.’s Resp. at 3.)
The jury
awarded him $100 in compensatory damages and awarded no punitive
damages.
DISCUSSION
A.
Whether it is Necessary to Calculate a Lodestar Fee Amount in
This Case
Olinyk was a prevailing party for purposes of 42 U.S.C. § 1988
even though his recovery was de minimis.
See Farrar v. Hobby, 506
U.S. 103, 112 (1992) (a plaintiff who recovers even nominal damages
is a prevailing party under § 1988).
But Ringham argues that the
award was so small in relation to Olinyk’s demands that we should
deny his request for attorneys’ fees outright.
In Farrar, the
plaintiff sought $17 million in compensatory damages, but received
only nominal damages of $1.
See Farrar, 506 U.S. at 106-07.
The
Supreme Court held that this disparity permitted the district court
to
award
“no
fees
or
low
fees”
without
conducting
the
reasonableness inquiry that the Court established in Hensley v.
Eckerhart, 461 U.S. 424 (1983).
See Farrar, 506 U.S. at 115; see
also id. at 117-18 (O’Connor, J., concurring) (“As a matter of
common
sense
and
sound
judicial
administration,
it
would
be
wasteful indeed to require that courts laboriously and mechanically
go through [the procedure established in Hensley] when the de
minimis nature of the victory makes the proper fee immediately
obvious.”); cf. Hensley, 461 U.S. at 433 (requiring courts to
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calculate a “lodestar” fee amount that the court may adjusted using
a multi-factor test for reasonableness).
There is some tension in controlling Seventh Circuit authority
about when it is appropriate to “jettison” the lodestar method of
determining fees.
1999).
Cole v. Wodziak, 169 F.3d 486, 488 (7th Cir.
Cole held that district courts may apply Farrar when the
plaintiff
recovers
more
than
nominal
substantially less than he demanded.
damages,
but
still
See id. (“When recovery is
low enough in relation to the demand, however, the judge may
jettison the lodestar apparatus and choose an appropriate fee using
other means.”) (citing Farrar, 506 U.S. at 114-15).
Cole suggests
that a recovery of less than 10% of the plaintiff’s demand would be
sufficient.
See id. at 489; Perlman v. Zell, 185 F.3d 850, 859
(7th Cir. 1999) (“We have held in a series of recent cases that a
litigant who wins less than 10% of his initial demand either is not
a prevailing party for purposes of fee-shifting statutes or should
be treated as if he had not prevailed.”); but see Tuf Racing
Prods., Inc. v. American Suzuki Motor Corp., 223 F.3d 585, 592 (7th
Cir. 2000) (clarifying that there is no per se rule against
awarding attorney’s fees when the plaintiff has recovered less than
10% of his demand). But there is langauge in other Seventh Circuit
cases suggesting that Farrar is limited to cases involving nominal
damages.
See Estate of Enoch v. Tienor, 570 F.3d 821, 822-23 (7th
Cir. 2009) (“In cases which involve more than a nominal award, we
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have rejected the notion that the fee award should be reduced
because the damages were smaller than a plaintiff originally sought
or that the fee award might, in fact, be more than the plaintiff’s
recovery.”); see also Sheehan v. Donlen Corp., 173 F.3d 1039, 1048
(7th Cir. 1999) (“This court has repeatedly rejected the notion
that the fees must be calculated proportionally to damages . . . .
The principle applies equally to purported disproportionality
between
the
omitted).
relief
requested
and
that
received.”)
(citations
And the Court recently stated in dicta that Cole’s
approach “seems to be losing favor.”
Anderson v. AB Painting and
Sandblasting Inc., 578 F.3d 542, 545 (7th Cir. 2009) (citing Estate
of Enoch v. Tienor, 570 F.3d at 822-23).
Despite the tension among these authorities, we think it is
appropriate to evaluate Olinyk’s fee request without incurring the
time
and
expense
of
a
full-blown
Hensley
analysis.
Olinyk
recovered substantially less than the plaintiff in Cole, both as a
total recovery ($100 versus $4,500) and as a percentage of his
demand (less than one percent versus 9%).
recovery was not “nominal,”2
Estate of Enoch and Donlen are easily
distinguishable on their facts.
2/
And although his
The plaintiffs in Estate of Enoch
During deliberations the jury asked whether it could find for the
plaintiff on his excessive-force claim but award no damages. We instructed the
jury that it was required to award at least nominal damages of $1 if it found for
the plaintiff. The $100 award indicates that the jury ultimately found that
Olinyk had shown a compensable injury. Cf. Farrar, 506 U.S. at 115 ("In a civil
rights suit for damages . . . the awarding of nominal damages . . . highlights
the plaintiff's failure to prove actual, compensable injury.").
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settled their civil rights lawsuit for $635,000, exclusive of
attorneys’ fees.
See Estate of Enoch, 570 F.3d at 822.
This
substantial recovery only seemed small when compared to the $10
million that the plaintiffs sought in their complaint.
Id.
The
district court relied on the disparity to reduce the plaintiffs’
requested attorneys’ fees by two-thirds. Id. Our Court of Appeals
reversed the district court’s order and remanded the case “for a
proper calculation of the award.” Id. at 823. Sheehan is similar:
the plaintiff made what appears to have been an exorbitant demand
($700,000 for pregnancy discrimination) and received $30,000 in
back pay, much less than she had sought but still a significant
victory.
Sheehan, 173 F.3d at 1043; see also Tuf Racing, 223 F.3d
at 588, 592 (Cole distinguishable where the plaintiff demanded $1.2
million but recovered “only” $137,000). We cannot say the same for
the $100 jury verdict in this case.3
Olinyk argues that we should
be guided by Hyde v. Small, 123 F.3d 583, 584-85 (7th Cir. 1997),
which held that civil-rights plaintiffs should not be penalized for
pursuing small claims. See id. at 585 (“There is no minimum amount
in controversy required in civil rights cases and no federal small
claims court, so it is no abuse of the federal district courts to
bring the kind of suit that Hyde did, and therefore he should not
3/
Estate of Enoch and Sheehan would have been highly relevant if the
Island Lake defendants challenged the plaintiffs’ fee requests. (Cf. infra note
1.)
Olinyk and Applegate recovered a signficant amount of money from those
defendants, ($30,000 and $20,000, respectively), even though it was only a small
percentage of the money that they had requested in their complaint.
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be disqualified from an award of attorneys’ fees without which such
a case would never be brought.”).
But unlike the plaintiff in
Hyde, Olinyk was seeking “big bucks.”
Cf. id.; see also Cole, 169
F.3d at 489 (“Hyde holds that a plaintiff who suffers a slight
injury
and
does
not
over-claim
in
court
is
entitled
to
a
compensatory fee even if that fee exceeds the damages. It did not
hold that a person who suffers a slight injury and makes an
exaggerated
claim
should
be
treated
similarly.”).
In
his
complaint, Olinyk sought $1.5 million against Ringham and the other
defendants for excessive force.
And while he did scale back his
demand over time, he still asked the jury for substantial damages
— $60,000 of combined compensatory and punitive damages, twice the
amount he had accepted to settle his claims against the other
defendants — and received only a tiny fraction of that request.
Under the circumstances, we think it is appropriate to “jettison
the lodestar apparatus . . . .”
B.
Cole, 169 F.3d at 487.
Whether the Plaintiff is Entitled to Any Fees
A de minimis damages award does not always tell the whole
story.
Our Court of Appeals has adopted a three-part test in cases
involving “nominal” or “minimal” damages “to determine whether a
prevailing party achieved enough success in the underlying suit to
be entitled to an award of attorney’s fees.”
104 F.3d 998, 1001 (7th Cir. 1997).
Simpson v. Sheahan,
“The ‘relevant indicia of
success’ in such cases are: (1) the difference between the judgment
- 8 -
recovered and the recovery sought; (2) the significance of the legal
issue on which the plaintiff prevailed; and (3) the public purpose
of the litigation.”
Id. (quoting Farrar, 506 U.S. at 122). The
“indicia of success” in this case warrant “no fees or low fees.”
Farrar, 506 U.S. at 115.
As we have just discussed, Olinyk
recovered less than 1% of his demand.
This is the most important
factor in cases governed by Farrar, see Maul v. Constan, 23 F.3d
143,
145
(7th
Cir.
attorneys’ fees.
1994),
and
it
strongly
supports
denying
The second factor is the “least important” and
concerns the “legal import” of the plaintiff’s constitutional claim.
Id.
This factor is sometimes described as requiring the court to
consider “the extent the plaintiffs succeeded on their theory of
liability.” Cartwright v. Stamper, 7 F.3d 106, 110 (7th Cir. 1993);
but see Maul, 23 F.3d at 145 (suggesting that the relevant question
is instead whether the plaintiff sought to vindicate an important
or
“significant”
right).
Olinyk’s
claim
against
Ringham
was
originally based upon his alleged personal use of excessive force.
(See Compl. ¶ 341 (“[T]he physical force used by the Defendants
[including Ringham] against Plaintiff Olinyk before and after
Plaintiff Olinyk was handcuffed was unreasoanble, including kicking,
striking, deploying oleoresin capsicum, and dragging and dropping
Plaintiff Olinyk.”).)
The jury did not find for Olinyk and against
Ringham on that theory.
Instead, it awarded Olinyk $100 based upon
Ringham’s failure to intervene, a theory that was added late in the
case. See Cartwright, 7 F.3d at 110 (“We can infer from the verdict
- 9 -
here that the jury rejected the plaintiffs’ broad allegations of a
conspiracy to obtain documentary evidence of Cartwright’s harassment
claim.”).
So, Olinyk was only partially successful against Ringham
on his theory of liability.
We conclude that this factor weighs in
Olinyk’s favor, but it “only minimally advances [his] claim that he
Maul, 23 F.3d at 146.4
is entitled to attorneys’ fees.”
Finally,
this lawsuit did not serve any public purpose beyond the parties’
individual interests.
No injunctive relief was sought, and no
punitive damages were awarded.
See Maul, 23 F.3d at 146-47.
We
conclude that Olinyk’s success in this case was so minimial that the
appropriate attorneys’ fee is no fee at all.
CONCLUSION
The
granted.
defendant’s
motion
to
deny
attorneys’
fees
[91]
is
His motion to stay briefing on the plaintiff’s fee motion
[97] is denied as moot.
The plaintiff’s motion for fees [95] is
denied.
DATE:
January 16, 2013
ENTER:
___________________________________________
4/
The outcome is essentially the same if we instead ask whether the
plaintiff sought to vindicate an important right. See Maul, 23 F.3d at 145. A
citizen's right to be free from excessive force is unquestionably important, as
was the right at issue in Maul. See id. at 145-46 (“The question of whether
plaintiff is entitled to a hearing before antipsychotic drugs are administered
against his wishes is clearly a significant constitutional question . . . .”).
Nevertheless, as in Maul, this factor “only minimally advances” Olinyk’s claim.
Id.
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John F. Grady, United States District Judge
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