Winston v. Daley et al
Filing
188
Enter MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 10/7/2015. Mailed notice (jdh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT L. WINSTON,
Plaintiff,
v.
OFFICER O’BRIEN, Chicago
Police Dept Star #10634,
OFFICER YATES, Star #11586
Defendants.
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No. 10 C 8218
MEMORANDUM OPINION AND ORDER
Despite the Supreme Court’s decades old admonishment that
“[a] request for attorney’s fees should not result in a second
major litigation,” Hensley v. Ecker, 461 U.S. 424, 437 (1983),
the attorneys in this straightforward excessive force case are
before me again for another chapter in their seemingly endless
post-judgment fees dispute, the value of which has long since
dwarfed the jury’s $7,501 damages award.
A synopsis of the
proceedings follows.
In April of 2012, I appointed trial counsel for plaintiff,
who had until then represented himself in this matter.
Counsel
first appeared in June of 2012, and, after conducting limited
additional discovery, tried the case to a jury over two days in
November of 2012.
The jury found in favor of plaintiff and
against defendant O’Brien and awarded compensatory damages in
the
amount
$7,500. 1
of
$1.00
punitive
damages
in
the
amount
of
Petitioner then sought attorneys’ fees pursuant to 42
U.S.C. ' 1988.
13,
and
2013,
I granted the fees petition in part.
Mem.
plaintiff
was
Op.
and
indeed
Order
the
(DN
117).
prevailing
June
concluded
that
I
See
party
and
explicitly
rejected O’Brien’s argument that the jury’s relatively modest
award did
' 1988.
not
bring
Id. at 3.
plaintiff’s
plaintiff’s
victory
within
the
scope
of
I also found that that the amount of time
attorneys
had
spent
representing
him
in
the
six
months leading up to his trial was appropriate (indeed, that
issue was not disputed), but I slashed his fee request by about
forty-five
percent
(from
$336,918
to
$187,467)
because
I
concluded that the hourly rates plaintiff proposed for the three
attorneys and one paralegal involved in his case were out of
line with prevailing market rates for similar services in this
district.
Id. at 6-10.
O’Brien did not appeal that decision, nor did he pay (or
make any overtures suggesting he intended to pay) either the
attorneys’ fees or the underlying damages.
both
awards,
testimony
assets.
and
plaintiff
moved
to
documents
pursuant
compel
to
a
Seeking to enforce
O’Brien
citation
to
to
provide
discovery
Plaintiff also moved for an order requiring the City of
1
The jury further found against plaintiff and for defendant
Yates.
2
Chicago to indemnify O’Brien for the attorneys’ fees.
I granted
both motions, holding, with respect to the latter, that because
the City was “at the helm” of O’Brien’s defense, and because its
defense
strategy
was
largely
responsible
for
driving
up
plaintiff’s legal fees, 745 ILCS 10/9-102 supported holding the
City liable for plaintiffs’ attorneys’ fees.
The City appealed
that decision.
While
the
appeal
was
pending,
petitioner
requested
an
additional $90,777 in attorneys’ fees to compensate them for the
efforts they expended in seeking to enforce my previous award.
I granted this petition, too, on January 29, 2014, noting that
O’Brien’s aggressive post-trial strategy and ongoing failure to
pay either the damage award or the attorneys’ fees I awarded on
June 13, 2013, had necessitated “significant additional work” by
petitioner’s
counsel,
incurring
fees
that
I
found
to
be
adequately justified and explained in counsel’s billing records
and affidavit. 2
1/29/2014 Order (DN 150).
After three months
passed with no indication that payment of either the attorneys’
fees or the underlying damages was forthcoming, I entered an
order granting plaintiff’s motion to garnish Officer O’Brien’s
wages.
4/3/2014 Order (DN 165).
2
In each petition subsequent to its first, plaintiff’s counsel
has calculated its fees using the hourly rates I held were
appropriate in my June 13, 2013 Order.
3
In
a
decision
issued
on
November
14,
2014,
the
Seventh
Circuit disagreed with my conclusion that the City was liable
for indemnification of plaintiff’s attorneys’ fees, but it did
not disturb the amounts I had awarded, leaving O’Brien solely
responsible for attorneys’ fees that by then totaled $278,244.
Meanwhile, the Fraternal Order of Police (O’Brien’s union, the
“FOP”)
moved
to
intervene
in
this
action
and
to
stay
the
garnishment of O’Brien’s wages once the punitive damages award
to plaintiff has been satisfied (i.e., before paying off any
portion of the attorneys’ fees awarded).
Plaintiff opposed this
motion, which I agreed had no merit, noting, “[t]here is no
conceivable
reason
why
counsel’s
attempt
awarded should be delayed further.”
of this year.
to
DN 177.
collect
the
fee
That was in June
In July—with the attorneys’ fees still unpaid,
but the damages award nearly satisfied with O’Brien’s garnished
wages—plaintiff
filed
his
now
pending
second
supplemental
petition for attorneys’ fees.
In his most recent petition, plaintiff seeks fees incurred
in
connection
with:
1)
collection
efforts
against
O’Brien,
including taking his deposition in conjunction with a citation
to discover asserts, and ultimately obtaining and effectuating a
wage deduction order; 2) negotiations with the FOP and the City
in ultimately unfruitful efforts to resolve the fees dispute;
and
3)
motion
practice
relating
4
to
attorneys’
fees,
wage
garnishment,
and
argues
plaintiff
that
the
FOP’s
is
motion
not
to
entitled
intervene.
to
any
of
Defendant
these
fees
because his attorneys have already been compensated for their
work through trial; because their hourly rates are unwarranted
in view of the type of work they performed; and because their
bills were too vague and reflect items not appropriate for feeshifting.
On the whole, plaintiff has the better of these arguments.
For one, attorneys’ fees for time spent in recovering fees, such
as in plaintiff’s collection proceedings against O’Brien, are
eligible for recovery under fee shifting statutes such as ' 1988.
See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 162 (“denying
attorneys’ fees for time spent in obtaining them would dilute
the value of a fees award by forcing attorneys into extensive,
uncompensated litigation in order to gain any fees”) (quoting
Gagne v. Maher, 594 F.2d 336, 344 (2d Cir. 1979)) (alterations
and internal quotation marks omitted)).
The only case defendant
cites for his suggestion that post-verdict legal services are
not recoverable under ' 1988, Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542 (2010), is not to the contrary.
The issue in
Perdue was whether “the quality of an attorney’s performance or
the results obtained are factors that may properly provide a
basis for an enhancement” to the lodestar calculation.
at 554.
559 U.S.
Nothing in Perdue undermines the Court’s observation in
5
Jean that fees incurred in litigating fees are recoverable under
fee-shifting statutes such as ' 1988.
Defendant cites no authority at all for the argument that
attorneys’ fees for post-judgment proceedings should be based on
a
lower
hourly
rate
phase of litigation.
than
fees
incurred
during
the
pre-trial
The cases he points to—Pickett v. Sheridan
Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011), Spegon v.
Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999),
and Buffington v. Baltimore Cnty., 913 F.2d 113, 130 (4th Cir.
1990), plainly hold nothing of the sort, as they merely reaffirm
that a “reasonable rate” is derived from the market rate for
similar litigation.
Nothing in these cases remotely suggests
that litigation should be parsed into various phases for the
purpose of determining reasonable hourly rates based on the type
of
legal
observation
work
in
performed
Jean
that
in
each.
fee-shifting
Indeed,
the
statutes
like
Court’s
' 1988
“favor[] treating a case as an inclusive whole, rather than as
atomized line-items” counsels against such a methodology.
496
U.S. at 161-62.
Finally, I have reviewed the billing records plaintiff’s
counsel have submitted in conjunction with their fee request,
and I find that they are, on the whole, amply detailed and
describe legal work that is appropriate for recovery.
6
All of this suggests that plaintiff’s latest request for
attorneys’ fees is on solid legal ground.
What the foregoing
analysis fails to capture, however, is the real-world effect of
successive fee awards on the only party currently responsible
for paying them: Officer O’Brien. 3
Plaintiff acknowledges that
O’Brien’s wages are currently being garnished by $522.60 each
bi-monthly pay period, and that all compensatory and punitive
damages assessed against him were paid off as of July of this
year, that is, after roughly fifteen months of wage garnishment.
See DN 176 at 3.
At the current rate, even if no additional
fees are awarded, it will take Officer O’Brien more than another
twenty years to pay off the attorneys’ fees already awarded in
this case.
While ' 1988 undoubtedly serves the important purpose of
ensuring that civil rights plaintiffs with bona fide claims can
find lawyers to represent them, see Hensley, 461 U.S. at 444
(Brennan, J., dissenting), its “essential goal...is to do rough
justice,” and “trial courts may take into account their overall
sense of a suit.”
2216 (2011).
Fox v. Vice, 563 U.S. 826, 131 S. Ct. 2205,
My overall sense of this suit is that while the
attorneys’ fees I have already awarded—which appear finally to
3
I understand from various pleadings in this case that the FOP
has grieved the City’s refusal to indemnify O’Brien for these
fees pursuant to those parties’ collective bargaining agreement.
For the moment, however,
7
be
on
the
road
to
for
satisfaction—do
plaintiff’s
counsel
the
plaintiff’s
representation,
not
“opportunity
they
are
fully
cost”
compensate
of
nevertheless
taking
on
adequate
to
fulfill ' 1988’s purpose of ensuring that civil rights violations
do
not
go
unredressed
because
their
victims
cannot
find
competent counsel.
It bears recalling, in this connection, that irrespective
of the availability of attorneys’ fees under ' 1988, attorneys in
this district have an “ethical obligation to volunteer their
time and skills pro bono publico,” Mallard v. U.S. Dist. Court
for
Southern
Dist.
of
Iowa,
490
U.S.
296,
310
(1989),
and
indeed, plaintiff’s counsel undertook his representation in the
discharge of that obligation.
It also bears recalling that the
verdict in this case reflects the jury’s assessment that $7,500
in punitive damages was adequate to punish Officer O’Brien for
his conduct.
I am skeptical that the jury considered that the
law would tack on an additional $270,000 and then some to his
bill.
Moreover, there has never been any dispute that although
it is Officer O’Brien’s paycheck on the line, it is the City
that has driven the defense of this case, up to and including
the response to plaintiff’s most recent fees petition. 4
While I
agree with plaintiff that defense counsel’s approach to these
4
Indeed, the City’s Corporation Counsel is named as O’Brien’s
attorney in the opening paragraph of his response, which is
signed by the City’s outside counsel.
8
proceedings has driven up his litigation costs, O’Brien himself
seems to have had little say in the matter. 5
In
short,
while
the
law
may
well
support
plaintiff’s
entitlement to the fees requested in his second supplemental
petition, I conclude that neither the policy underlying ' 1988
nor
the
equities
of
the
case
support
visiting
additional
financial hardship on Officer O’Brien, who already faces more
than two decades of wage garnishment to satisfy prior awards of
attorneys’ fees that far outsize the punitive judgment against
him.
Accordingly,
I
deny
plaintiff’s
second
supplemental
request for attorneys’ fees.
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: October 7, 2015
5
While O’Brien and the City plainly share an interest in
defeating plaintiff’s claims for attorneys’ fees, only O’Brien
is exposed to the negative consequences of the City’s costly
defense strategy, as the City has refused to indemnify O’Brien
for attorneys’ fees.
And while attorneys whose vexatious
conduct unnecessarily prolongs the litigation may be subject to
Rule 11 sanctions, see Morjal v. City of Chicago, 774 F.3d 419,
422 (7th Cir. 2014), plaintiff has not invoked Rule 11 to
recover his attorneys’ fees, nor could I order such a sanction
without affording prior notice and an opportunity to be heard.
Id.
9
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