Baker et al v. Ghidotti et al
Filing
250
MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 4/24/2015:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KENNETH BAKER, et al.,
Plaintiffs,
Case No. 11 C 4197
v.
Judge Harry D. Leinenweber
TIMOTHY M. GHIDOTTI, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff
Kenneth
Baker
(the
“Plaintiff”)
has
filed
a
Petition to recover attorneys’ fees against Defendants the City
of Chicago (the “City”), Jean M. Lindgren, Jesus Vera, Steven
Martin, and Dennis P. Walsh (collectively, “Defendants”) [ECF
No.
231].
Plaintiff
prevailing
party
also
against
seeks
the
to
recover
above-mentioned
costs
as
the
Defendants
and
Defendants Timothy M. Ghidotti and Reliable Recovery Services,
Inc. (“Reliable”) [ECF No. 223].
Defendants seek costs as the
prevailing party against two other Plaintiffs, Barbara Baker and
Camden
Baker
[ECF
No.
220].
Defendants
have
also
moved
to
strike Plaintiff’s attorneys’ fees petition [ECF No. 236].
For
Fees
is
the
reasons
granted
Application
for
stated
herein,
in
part
and
Costs
is
denied;
Plaintiff’s
denied
in
part;
Defendants’
Petition
for
Plaintiff’s
Application
for
Costs is granted in part and denied in part; and Defendants’
Motion to Strike the Fee Petition is denied.
I.
In
the
(“Dymkar”),
Turkcan
underlying
Torreya
Plaintiffs
litigation,
L.
(“Turkcan”)
Kenneth,
BACKGROUND
Hamilton
attorneys
(“Hamilton”),
(collectively,
Barbara,
Irene
Camden,
and
“Counsel”)
and
Ashley
K.
Dymkar
Kevin
T.
represented
Baker.
The
factual basis for Plaintiffs’ claims is detailed in the Court’s
March 28, 2014 Order granting in part and denying in part the
parties’ Cross-Motions for Summary Judgment [ECF No. 178].
In
that Order, the Court granted Plaintiffs’ Motion for Summary
Judgment on one claim only — Kenneth Baker’s claim for false
arrest against Defendants Martin, Lindgren, and Vera.
Plaintiffs’ remaining claims for trespass, illegal entry,
illegal
search,
illegal
detention,
conspiracy,
and
malicious
prosecution went to trial, along with the issue of damages on
the
false
arrest
claim
determined liability.
for
which
the
Court
had
already
On October 24, 2014, the jury returned a
verdict in favor of Kenneth Baker on his malicious prosecution
claim, awarding him $5,000.00 in damages.
The jury also awarded
Kenneth Baker $25,000.00 in damages on his false arrest claim.
For all remaining claims, the jury found in favor of Defendants.
On January 21, 2015, Plaintiff petitioned for attorneys’
fees pursuant to 42 U.S.C. § 1988.
- 2 -
II. ANALYSIS
A. Attorneys’ Fees
The
Civil
Rights
Attorney’s
Fees
Award
Act,
42.
U.S.C.
§ 1988, allows the award of “a reasonable attorney’s fee to the
prevailing
party
in
various
kinds
of
including suits brought under § 1983.”
civil
rights
Fox v. Vice, 131 S.Ct.
2205, 2213 (2011) (internal quotations omitted).
serves
the
vindicating
dual
purpose
important
civil
violators of federal law.
only
compensate
succeeds;
reimbursing
rights
See, id.
plaintiff
losing
of
claims
for
are
and
The statute
plaintiffs
holding
for
accountable
However, a defendant “need
fees
not
cases,
to
the
extent
compensable.”
plaintiff
Kurowski
v.
Krajewski, 848 F.2d 767, 776-77 (7th Cir. 1988).
In awarding fees under § 1988, a court’s first step is to
determine
whether
“prevailing
party”
the
party
status.
seeking
Gibson
fees
City
v.
F.Supp.2d 975, 982 (N.D. Ill. 2012).
is
of
entitled
to
Chicago,
873
Because Defendants do not
dispute that Plaintiff prevailed on his § 1983 claim for false
arrest,
the
Court
moves
immediately
to
the
second
step
–
determining whether the claimed fees are reasonable under the
circumstances.
To
courts
Id.
calculate
apply
the
reasonable
“lodestar
attorneys’
method,”
fees
which
under
§
multiplies
1988,
the
attorneys’ reasonable hourly rates by the number of hours they
- 3 -
reasonably expended.
People Who Care v. Rockford Bd. of Educ.,
Sch. Dist. No. 205, 90 F.3d 1307, 1310 (7th Cir. 1996) (citing
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
requesting
fees
reasonableness.
carries
the
burden
of
The party
establishing
their
McNabola v. Chi. Transit Auth., 10 F.3d 501,
518 (7th Cir. 1993).
Once the Court has arrived at a base
lodestar figure, it may adjust the award in light of the factors
identified in Hensley that are not already subsumed into the
initial lodestar calculation.
1310
(citing
Hensley,
461
See, People Who Care, 90 F.3d at
U.S.
at
434
n.9).
These
factors
include “the complexity of the legal issues involved, the degree
of success obtained, and the public interest advanced by the
litigation.”
Schlacher v. Law Offices of Phillip J. Rotche &
Assocs., P.C., 574 F.3d 852, 856–57 (7th Cir. 2009).
Defendants have moved to strike Plaintiff’s Petition in its
entirety because of Plaintiff’s failure to comply with Local
Rule 54.3, which requires the parties to confer and attempt in
good faith to reach an agreement on the amount of fees and costs
to be awarded prior to filing a fee petition.
two important functions:
Rule 54.3 serves
(1) providing the parties with the
time and information necessary to resolve fee disputes without
court
intervention,
and
(2)
helping
them
ensure
that
any
disputes are crystalized in the event a fee petition is filed.
Jones
v.
Ameriquest
Mortgage
Co.,
- 4 -
No.
05
C
0432,
2008
WL
4686152, at *3 (N.D. Ill. May 19, 2008).
Plaintiff’s failure to
comply with Local Rule 54.3 has resulted in a missed opportunity
to resolve the issue of fees without unnecessarily burdening the
Court.
Although this failure has resulted in inconvenience, and
shows disregard for court rules, the parties, by now, have had
full opportunity to exchange and review the information that
Rule 54.3 requires.
For this reason, Court denies Defendants’
Motion to Strike Plaintiff’s fee petition.
1. Lodestar Calculation
Plaintiff seeks a total of $450,268.00 in attorneys’ fees,
calculated as follows:
Attorney
Hourly Rate
Hours
Total per Attorney
Irene K. Dymkar
Torreya L. Hamilton
Kevin Turkcan
Paralegals
$495
$450
$230
$125
699.9
156.2
30.5
212.1
$346,450.50
$70,290.00
$7,015.00
$26,512.50
TOTAL
$450,268.00
Dymkar has excluded from her records 84.2 additional hours that
were
dedicated
to
the
unsuccessful
conspiracy
claims
against
claimed
hourly
Defendant Ghidotti.
a.
The
rates.
Court
begins
Hourly Rates
by
examining
Counsel’s
In determining a reasonable hourly rate, attorneys’ fees
awarded under Section 1988 “are to be based on market rates for
services rendered.”
Missouri v. Jenkins by Agyei, 491 U.S. 274,
- 5 -
283 (1989).
“The attorney’s actual billing rate for comparable
work is ‘presumptively appropriate’ to use as the market rate.”
People
Who
Care,
90
F.3d
at
1310
(quoting
Gusman
Corp., 986 F.2d 1146, 1150 (7th Cir. 1993)).
v.
Unisys
The next best
evidence of a reasonable fee is the rate charged by lawyers in
the community of comparable skill, experience, and reputation.
Id.
Previous fee awards are also “useful for establishing a
reasonable
market
rate.”
Jeffboat,
LLC
v.
Dir.,
Office
of
Workers’ Comp. Programs, 553 F.3d 487, 491 (7th Cir. 2009).
In support of their claimed hourly rates, each attorney has
submitted
a
declaration
detailing
his
or
her
experience
litigating civil rights cases, as well as affidavits from other
civil rights attorneys supporting the proposed rates.
and
Hamilton
have
respectively.
been
Both
are
practicing
seasoned
for
38
attorneys
experience litigating civil rights cases.
his
second
year
of
practice,
but
has
and
with
20
Dymkar
years
substantial
Turkcan is only in
already
number of plaintiffs in civil rights cases.
represented
a
Plaintiff argues
that the hourly billing rates he proposes are consistent with
the
rates
awarded
to
attorneys
in
other
civil
rights
cases
within this district, the rates the City of Chicago has agreed
to in other cases, and the Laffey Matrix.
The Laffey Matrix is
“a chart of hourly rates for attorneys and paralegals in the
Washington, D.C. area that was prepared by the United States
- 6 -
Attorney's Office for the District of Columbia to be used in
fee-shifting cases.”
Pickett v. Sheridan Health Care Ctr., 664
F.3d 632, 649 (7th Cir. 2011).
The
Court’s
first
task
is
to
determine
market rate for the legal services provided.
the
prevailing
The party seeking
fees bears the burden of showing that the hourly rates sought
are in line with the prevailing rate in the community.
640.
Id. at
If the applicant satisfies this burden, the burden then
shifts to the opposing party to demonstrate why a lower rate
should be awarded.
initial
has
reasonable rate on its own.
Id.
Court
declarations
the
If a fee applicant fails to meet its
Court
The
burden,
Id.
notes
Counsel
at
have
the
the
outset
submitted
determining the market rate.
authority
are
that
of
to
determine
the
limited
a
personal
value
in
See, Spegon v. Catholic Bishop of
Chi., 175 F.3d 544, 556 (7th Cir. 1999).
Instead, the Court
must focus on the other evidence Counsel have provided, such as
affidavits from similarly experienced attorneys and evidence of
the fee awards that each attorney has received in similar cases.
Id.
Dymkar seeks a rate of $495 per hour.
In support of her
rate, she notes that in 2012, Judge Elaine E. Bucklo awarded her
a rate of $425 per hour in another civil rights case, Nelson v.
Salgado, 9 C 5357.
Dymkar also states that Judge Susan E. Cox
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recently “suggested” $460 per hour as a compromise in the case
of Edwards v. Joliff-Blake, 13 C 4558, but it is not clear that
that rate was ever agreed to or awarded.
Dymkar has also submitted affidavits from three other civil
rights
attorneys,
Jon
Loevy
(“Loevy”),
Jeffrey
(“Neslund”), and Janine H. Hoft (“Hoft”).
J.
Neslund
Loevy and Neslund,
who have each been practicing for approximately 20 years, claim
rates ranging from $425 to $505 per hour.
Loevy cites three
civil rights cases in which attorneys were awarded even higher
rates of up to $535 per hour.
Hoft notes that partners in her
firm were recently awarded rates ranging from $325 per hour for
a 1997 law graduate to $525 per hour for a 1972 law graduate.
As
points
further
to
the
support
Laffey
for
the
Matrix.
hourly
Under
rates
the
sought,
Laffey
Dymkar
Matrix,
the
appropriate rate for an attorney of Dymkar’s experiences is $520
per hour.
The Seventh Circuit has never formally adopted the
Laffey Matrix, however, and the rates charged within the matrix
are “significantly higher than those charged in this district.”
Gibson v. City of Chicago, 873 F.Supp.2d 975, 984 (N.D. Ill.
2012).
For this reason, the Court finds that the Laffey Matrix
is not, on its own, persuasive evidence of the actual market
rate for Dymkar’s services.
The
affidavits
Dymkar
has
submitted
to
the
attesting attorneys’ experience than they do to Dymkar’s.
As
- 8 -
speak
more
many courts have noted, Loevy is “an attorney whose experience,
skill,
and
record
of
success
in
representing
plaintiffs
in
police misconduct cases place him at the apex of attorneys who
practice
in
that
field.”
Wells
v.
City
of
Chicago,
925
F.Supp.2d 1036, 1041 (N.D. Ill. 2013).
Dymkar has not presented
sufficient
rates
Loevy’s,
evidence
even
to
though
show
she
that
has
her
practiced
are
on
longer.
par
As
with
Judge
Virginia M. Kendall noted in 2012, when she adopted Magistrate
Judge Sidney I. Shenkier’s recommendation of an hourly rate of
$330 for Dymkar, “Ms. Dymkar’s record, while extended in time,
lacks
the
experience
and
jury
verdicts
in
police
misconduct
cases to warrant such an excessive hourly rate.”
Ragland v.
Ortiz,
(N.D.
No.
08
Sept. 14, 2012).
C
6157,
2012
WL
4060310,
at
*3
Ill.
Indeed, Dymkar only began to focus exclusively
on civil rights cases in 2006.
Mem., ECF No. 231-5, ¶ 12.)
(Dymkar Aff., Ex. E to Pl.’s
Based on the hourly rates Dymkar
has been awarded in the past, which range from $330–$425 per
hour, and the affidavits she has submitted, which suggest fees
ranging from $425–$535 per hour, the Court finds $425 per hour
to be a reasonable rate placed firmly within the middle of the
spectrum.
Given that Dymkar was awarded rates as low as $330 in
2012, the Court finds that this award adequately reflects the
increased experience Dymkar has gained since then.
- 9 -
Hamilton seeks a rate of $450 per hour.
In support of her
rate, she notes that she has consistently been awarded rates of
$395–$425 within this district from 2010 to 2014.
also
submitted
affidavits
from
three
civil
Hamilton has
rights
attorneys,
Christopher R. Smith (“Smith”), Neslund, and Lawrence Jackowiak
(“Jackowiak”), who have been awarded fees ranging from $395–$450
per hour.
Although Smith, Neslund, and Jackowiak have worked
closely with Hamilton in the past, and comment briefly on her
skill as an attorney, the Court finds most persuasive Hamilton’s
previously awarded hourly rates of $395 to $425.
Based on this
evidence, the Court finds that the requested fee award of $450
per hour — a $25–$55 increase over previous rates — reasonable.
Turkcan seeks a rate of $230 per hour.
experience
predates
his
admission
to
the
Half of Turkcan’s
bar.
During
law
school, Turkcan worked as a law clerk for Hamilton and also
represented clients under a 711 license.
Turkcan states that,
to date, he has represented plaintiffs in 43 civil rights cases.
Turkcan has submitted two affidavits from more experienced civil
rights attorneys attesting to his qualifications.
finds
these
affidavits
to
be
of
limited
value,
The Court
however.
Although both attorneys are familiar with Turkcan’s work, their
affidavits
largely
billing rates.
chronicle
their
own
experience
and
prior
One attorney, Jared Kosoglad (“Kosoglad”), urges
this Court to adopt the Meckler Report’s recommendation of $230
- 10 -
per hour as the average rate for attorneys with two to three
years experience.
report
was
As Judge Charles P. Norgle has noted, “that
prepared
for
and
submitted
in
conjunction
with
a
complex civil rights class action lawsuit challenging the use of
unjustified and sexually-intrusive search procedures on men and
women at the Cook County Jail” and is specific to that case.
Cavada v. City of Chicago, No. 13 CV 1916, 2014 WL 4124273, at
*3 (N.D. Ill. Aug. 18, 2014).
Reliance on the Meckler Report is
not appropriate here.
Turkcan
was
admitted
to
the
practicing for less than two years.
bar
in
2013
and
has
been
Courts within this district
have found a rate of $200 to be in the middle of the range for
similarly experienced attorneys in civil rights cases.
See,
Wells, 925 F.Supp.2d at 1042. Accordingly, the Court reduces
Turkcan’s requested hourly rate to $200 per hour.
Defendants do not object to the claimed paralegal and law
clerk
rates
of
$125
per
hour,
which
the
Court
finds
to
be
reasonable.
b.
Hours Billed
The Court next turns its attention to the number of hours
billed,
which
unnecessary.”
cannot
be
“excessive,
redundant,
Hensley, 461 U.S. at 434.
or
otherwise
Defendants object to
the hours Counsel — specifically Dymkar — have billed on four
grounds.
- 11 -
First, Defendants argue that the hours billed still include
128.5 hours of attorney time attributed exclusively to Ghidotti,
an employee of Reliable, that were entered prior to the date of
the Court’s summary judgment ruling.
Counsel has already agreed
not to bill litigation hours attributable to Ghidotti, and for
this reason, Dymkar has already reduced her initial calculation
by 84.2 hours.
Dymkar argues that she has excluded time “when
it was clear that only the Reliable Recover [sic] defendants
were involved.”
however,
have
(Pl.’s Reply, ECF No. 245, at 8.)
combed
through
Plaintiff’s
billing
Defendants,
records
and
singled out individual entries that pertain only to Reliable.
Many are clearly labeled “RRS.”
The Court agrees that these
entries should have been eliminated along with the other 84.2
hours.
The Court finds that a reduction of Dymkar’s hours by
128.5 to be appropriate.
Second,
Defendants
argue
that
certain
lower
level
tasks
included in the billing must be compensated at paralegal rates.
Plaintiff counters that even when a paralegal performs work, an
attorney must still spend time reviewing it.
As the Seventh
Circuit
award
has
made
clear,
“the
court
cannot
fees
at
attorneys’ rates for work that does not require that level of
skill.”
O’Brien v. Panino’s, Inc., No. 10 C 2991, 2011 WL
3610076, at *2 (N.D. Ill. Aug. 16, 2011) (citing Spegon, 175
F.3d at 553.
Such tasks are “absorbed as overhead into the
- 12 -
attorneys’ billing rate.”
Id.
Accordingly, the Court finds
that it is appropriate to reduce Dymkar’s hours by 9.9 for tasks
such as setting up a file, reviewing social media, and preparing
exhibits,
based
on
her
contention
that
she
was
reviewing
paralegal work.
Third, Defendants argue that some entries should be removed
because they are unnecessary to the litigation or too vague to
evaluate.
Defendants cite multiple instances of “unnecessary”
billing, such as “1.4 hours for a motion hearing when nothing
appears on the docket.”
(Defs.’ Opp., ECF No. 244, at 9.)
Defendants have also indicated multiple entries it deems to be
vague, such as “review order,” “review deposition transcripts,”
and “review file.”
Finally,
(See, Ex. B. to Defs.’ Resp, ECF No 244-2.)
Defendants
argue
that
argue
that
Plaintiff
billed
excessively for reviewing emails and minute orders, billing at
least .1 hours each time an email was sent or received, and each
time a minute order was read.
“[W]hen a fee petition is vague or inadequately documented,
a district court may either strike the problematic entries or
(in recognition of the impracticalities of requiring courts to
do
an
item-by-item
accounting)
reasonable percentage.”
F.3d
593,
605
(7th
reduce
the
proposed
fee
by
a
Harper v. City of Chicago Heights, 223
Cir.
2000).
- 13 -
Based
on
these
last
two
objections, the Court reduces Dymkar’s time by an additional 30
hours (approximately 4% of the original 699.9 hours billed).
Based
on
the
corrected
hourly
rates
and
hours
billed,
Plaintiff’s lodestar is recalculated as $328,790.00.
Attorney
Hourly Rate
Hours
Total per Attorney
Irene K. Dymkar
Torreya L. Hamilton
Kevin Turkcan
Paralegals
$425
$450
$200
$125
531.5
156.2
30.5
212.1
$225,887.50
$70,290.00
$6,100.00
$26,512.50
TOTAL
$328,790.00
2. Lodestar Adjustment
Having determined Plaintiff’s initial lodestar, the Court
must now determine whether an adjustment is appropriate based on
the
Hensley
complexity
factors,
of
the
including
case,
and
Schlacher, 574 F.3d at 856–57.
“results
obtained,”
which
the
the
results
public
obtained,
interest.
the
See,
The most important factor is the
becomes
particularly
significant
in
cases where a prevailing party succeeds on only some claims for
relief.
Jaffee v. Redmond, 142 F.3d 409, 413 (7th Cir. 1998).
A plaintiff is not entitled to fees for time expended in pursuit
of unsuccessful, unrelated claims.
U.S. at 434–35).
Id. (citing Hensley, 461
However, “when claims are interrelated, as is
often the case in civil rights litigation, time spent pursuing
an unsuccessful claim may be compensable if it also contributed
- 14 -
to the success of other claims.”
Id. (citing Hensley, 461 U.S.
at 435).
Because Plaintiff did not actually prevail on any of his
federal claims at trial, “Defendants propose excluding all of
Irene Dymkar’s attorney fees after October 4, 2013 and reducing
her fees up to that point by 50%.”
at 13.)
(Defs.’ Opp., ECF No. 244,
It is unclear why Defendants have chosen October 4,
2013 as the cutoff date, as Plaintiffs did not file their Reply
in
support
No. 153],
of
summary
and
the
judgment
Court
did
until
not
November
enter
its
ruling until March 28, 2014 [ECF No. 178].
22,
2013
summary
[ECF
judgment
Defendants further
state that Hamilton’s time should be reduced by 90% because she
did not join this case until after the Court granted summary
judgment
and,
if
damages at trial.
anything,
only
helped
secure
Turkcan likewise did not join the trial until
after the Court’s ruling on summary judgment.
that
his
time
Plaintiff’s
should
be
stricken
in
its
Defendants argue
entirety
because
Defendants fail to see “what value, if any, Mr. Turckan added to
this case.”
(Defs.’ Opp., ECF No. 244, at 7.)
Plaintiff argues that he was forced to trial because of the
City’s
refusal
to
settle
the
case.
Plaintiff
notes
that
although the Court initially awarded him summary judgment on his
false
arrest
claim
(see,
ECF
No.
178,
at
10–14),
the
City
refused to engage in settlement talks, pushing resolution of
- 15 -
damages to trial.
According to Plaintiff, “[t]he City seemed to
be oblivious to the fact that if the jury awarded plaintiff
damages on the claim for which liability . . . was established
at
summary
judgment,
plaintiff
entitled to attorneys’ fees.”
would
be
a
prevailing
party,
(Pls.’ Mem., ECF No. 231, at 5.)
The City contends it did engage in settlement negotiations, and
that
its
October
6,
2014
settlement
offer
of
$100,000.00
is
actually a reason to reduce Plaintiff’s lodestar because it was
a substantial offer that greatly exceeded the amount ultimately
recovered at trial.
Here, reduction of the lodestar is appropriate in light of
Plaintiff’s
limited
success.
“A
plaintiff
who
achieves
excellent results should receive the entire lodestar, but where
a plaintiff has achieved only partial or limited success, the
lodestar may be an excessive amount.”
Montanez v. Simon, 755
F.3d 547, 556 (7th Cir. 2014) (citations and internal quotations
omitted),
cert.
denied
sub
nom.,
Officers FICO, 135 S.Ct. 459 (2014).
Montanez
v.
Chi.
Police
Plaintiff did not receive
an “excellent result” when he lost four of the six claims that
went to trial and took home a judgment of $30,000.00.
Moreover,
central
or
it
most
is
not
important
clear
that
claims
at
these
claims
issue
in
the
were
the
lawsuit.
Counsel did not prevail on any of the core claims shared among
all four Plaintiffs:
illegal entry, illegal search, conspiracy,
- 16 -
and
trespass.
Rather,
Counsel
only
succeeded
on
two
claims
specific to Kenneth Baker, which seek unique relief for false
arrest and subsequent police misconduct.
In addition, the Court notes that this case did not present
any
particularly
complex
legal
issues,
nor
is
it
likely
to
result in any broad social impact that will affect persons other
than
Kenneth
Baker.
These
adjustment of the lodestar.
factors
also
support
a
downward
See, Schlacher, 574 F.3d at 856–57.
Although the Seventh Circuit has cautioned against the use
of the so-called “meat-axe” approach in reducing the lodestar,
it has also noted that there is no precise formula for reducing
a lodestar to reflect partial or limited success.
F.3d at 556.
Montanez, 755
In such cases, “there is nothing to do but make an
across-the-board reduction that seems appropriate in light of
the ratio between winning and losing claims.”
Richardson v.
City of Chicago, 740 F.3d 1099, 1103 (7th Cir. 2014).
into
account
reduced
Ghidotti
limited
as
to
and
fact
the
the
justifies
lodestar.
why
that
Dymkar’s
conspiracy
Reliable,
success
$328,790.00
establish
the
Dymkar’s
and
Court
a
fees
have
trespass
concludes
50%
Because
hours
should
be
cut
already
claims
been
against
that
Plaintiff’s
of
Plaintiff’s
reduction
Defendants
Taking
have
by
50%
failed
to
prior
to
October 4, 2013, and cut entirely after that point — and why
- 17 -
Turkcan’s fees should be eliminated altogether — the Court finds
a 50% overall reduction more appropriate.
Plaintiff’s Petition for Fees is granted in part and denied
in part in the amount of $164,395.00.
3.
Plaintiff
seeks
Prejudgment Interest
prejudgment
interest
on
any
fee
award,
assessed from November 3, 2014, at the prevailing prime rate of
3.25%.
Defendants
argue
the
prejudgment
interest
is
not
appropriate here because Plaintiff failed to comply with Local
Rule 54.3, which requires the parties to confer and attempt in
good faith to reach an agreement on the amount of fees and costs
to be awarded prior to the filing of a fee petition.
Plaintiff
made no effort to confer with Defendant before filing his fee
petition
on
January
21,
2015,
one
day
short
of
the
90-day
deadline imposed under Local Rule 54.3(b).
Although prejudgment interest is “presumptively available
to
the
victims
ultimately
of
awarded
district court.
federal
rests
law
within
violations,”
the
sound
whether
discretion
it
of
is
the
United States v. Bd. of Educ. of Consol. High
Sch. Dist. 230, Palos Hills, Ill., 983 F.2d 790, 799 (7th Cir.
1993).
“[P]rejudgment interest typically accrues from the date
of the loss or from the date on which the claim accrued.”
Am.
Nat. Fire Ins. Co. ex rel. Tabacalera Contreras Cigar Co. v.
Yellow Freight Sys., Inc., 325 F.3d 924, 935 (7th Cir. 2003).
- 18 -
However, courts within this district have routinely held that it
is reasonable for the party opposing a fee petition to have time
to
review
it
without
being
charged
interest.
Blackwell
v.
Kalinowski, No. 08 C 7257, 2012 WL 469962, at *12 (N.D. Ill.
Feb. 13, 2012).
Consistent with these rulings, courts often do
not assess interest until 30 days after a fee petition has been
filed.
See, id.
Here,
because
January 21,
2015,
Plaintiff
filed
interest
will
B.
his
begin
fee
petition
to
accrue
on
from
Costs
February 21, 2015.
Federal Rule of Civil Procedure Rule 54(d)(1) provides that
a
prevailing
litigation
party
costs
may
at
obtain
the
reimbursement
conclusion
for
of
a
certain
lawsuit.
The rule establishes a “presumption that the prevailing party
will recover costs, and the losing party bears the burden of an
affirmative
showing
that
taxed
costs
are
not
appropriate.”
Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th
Cir. 2005).
Here, both parties seek to recover costs as a prevailing
party on separate claims against separate parties.
seeks
$7,574.43
in
costs
as
a
prevailing
Plaintiff
party
against
Defendants Lindgren, Vera, Martin, Walsh, the City, Ghidotti,
and
Reliable
on
the
false
arrest
- 19 -
and
malicious
prosecution
claims,
while
Defendants
seek
$6,714.60
in
costs
as
the
prevailing party against Plaintiffs Barbara and Camden Baker.
Under
Rule
54(d),
the
“prevailing
party”
is
the
party
prevails on a substantial part of the litigation.
who
Testa v.
Vill. of Mundelein, Ill., 89 F.3d 443, 447 (7th Cir. 1996).
However,
a
party
may
receive
substantial
doesn’t prevail on every claim.
relief
even
if
it
Slane v. Mariah Boats, Inc.,
164 F.3d 1065, 1068 (7th Cir. 1999).
District
courts
have
broad
discretion
in
awarding
reasonable costs, particularly in cases that result in a “mixed
outcome.”
Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th
Cir. 1999).
Where a verdict is split fairly evenly, a court may
decline to award costs to either party.
See, e.g., Testa, 89
F.3d at 447 (requiring each party to bear its own costs where
plaintiff had prevailed on one of two claims).
Here, the jury was asked to return a verdict on 22 claims
distributed among four Plaintiffs.
Kenneth Baker prevailed on
two of the six claims he asserted, recovering a judgment of
$30,000.00 — an award that is more than nominal, “but certainly
not substantial.”
Gonzalez v. City of Elgin, No. 06 C 5321,
2010 WL 4636638, at *2 (N.D. Ill. Nov. 8, 2010).
Defendants, on
the other hand, prevailed on all remaining claims.
this
is
a
“mixed
outcome”
case,
the
verdict
Although
indicates
that
Defendants — not Plaintiff — prevailed on a “substantial part”
- 20 -
of
the
litigation.
The
Court
therefore
denies
Plaintiff’s
application for costs.
Turning
to
Defendants’
application
for
costs,
the
Court
must assess whether the fees sought are both (1) recoverable,
and (2) reasonable.
Majeske v. City of Chicago, 218 F.3d 816,
824 (7th Cir. 2000).
Costs recoverable under Rule 54(d) are set
out in 28 U.S.C. § 1920.
Here, Defendants seek to recover the
following amounts: (1) $169.00 for fees incurred in serving two
subpoenas,
copying
(2)
fees,
obtaining
$5,444.64
and
(4)
Plaintiffs’
in
transcript
$485.00
in
employment
fees,
“other
and
(3)
costs”
education
$615.00
in
incurred
in
records.
The
Court addresses each category in turn.
First, Defendants seek $169.00 in subpoena fees.
Under
§ 1920, courts may award costs for “[f]ees of the clerk and
marshal.”
28
U.S.C.
§
1920(1).
This
provision
enables
a
prevailing party to recover costs for using a private process
server, “as long as those costs do not exceed the fees charged
by a marshal.”
Ill. 2012).
per
hour
Dishman v. Cleary, 279 F.R.D. 460, 466 (N.D.
The allowable fee charged by a marshal is $65.00
plus
travel
C.F.R. § 0.114(a)(3).
costs
and
out-of-pocket
expenses.
28
The invoice Defendants have provided do
not break down the $209.00 in “services rendered,” so the Court
cannot determine whether the subpoena fees exceed the standard
hourly
rate
of
$65.00.
The
Court
- 21 -
will
therefore
limit
the
subpoena
fees
sought
to
$65.00
per
witness,
for
a
total
of
$130.00.
Second, Defendants seek $5,444.64 in transcript fees.
The
costs of transcripts “necessarily obtained for use in the case”
are recoverable pursuant to § 1920 as long as they do not exceed
the regular per-page rate of $3.65 per page established by the
Judicial
Conference
of
the
§ 1920(2); L.R. 54.1(b).
seek
rises
above
this
United
States.
See,
28
U.S.C.
Only one of the transcripts Defendants
rate
—
a
233-page
trial
transcript,
requested while the trial was pending, and produced at a rate of
$4.25 per page.
Defendants do not explain why this transcript
was “obtained for use in the case,” although presumably it was
used to support their Motion for Judgment as a Matter of Law
(see, ECF No. 221).
transcript
to
The Court reduces the per-page cost of this
$3.65,
lowering
Defendants’
transcript
fees
by
$139.80, from $5,444.64 to $5,306.84.
Third,
Section 1920
Defendants
expressly
seek
$615.00
authorizes
“[f]ees
in
for
copying
fees.
exemplification
and the costs of making copies of any materials where the copies
are
necessarily
§ 1920(4).
obtained
for
use
in
the
case.”
28
U.S.C.
Extra copies of filed papers, produced for attorney
convenience, are not recoverable.
Young v. City of Chicago,
No. 00 C 4478, 2002 WL 31118328, at *2 (N.D. Ill. Sept. 24,
2002).
Defendants — not the district court — bear the burden of
- 22 -
showing that the copies for which they seek reimbursement were
“necessarily
obtained
for
use
in
the
case.”
See,
Rice
v.
Sunrise Express, Inc., 237 F.Supp.2d 962, 980 (N.D. Ind. 2002).
Defendants have not made this showing here.
Their tally of
photocopying charges reads much like the docket in this case,
and it is unclear when Defendants were photocopying papers for
their
own
convenience
when
Accordingly,
necessity.
and
the
they
were
Court
doing
so
reduces
out
of
Defendants’
photocopying costs by 20%, from $615.00 to $492.00.
Finally, Defendants seek $485.96 in “other costs,” namely,
the
costs
incurred
in
obtaining
the
employment
records
of
Kenneth and Barbara Baker, and the education records of Ashley
Baker.
These
records
were
relevant
to
defending
against
Plaintiffs’ intentional infliction of emotional distress claims,
although those claims did not ultimately proceed to trial.
costs of subpoenaing records is recoverable under § 1920.
The
See,
e.g., Falcon v. City of Chicago, No. 98 C 4028, 2000 WL 1231403,
at *2 (N.D. Ill. Aug. 28, 2000) (allowing defendant to recover
subpoena
fees
employment
their
incurred
records).
request
for
in
The
the
obtaining
Court
fees
plaintiff’s
therefore
related
to
medical
awards
the
and
Defendants
employment
and
education records in full.
Defendants’ Application for Costs is granted in part and
denied in part in the total amount of $6,414.80.
- 23 -
III.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Plaintiff’s Petition for Fees [ECF No. 231] is granted in
part and denied in part, in the total amount of $164,395.00, plus
interest assessed at a rate of 3.25% from February 21, 2015;
2.
Plaintiff’s Application for Costs [ECF No. 223] is denied;
3.
Defendants’ Application for Costs [ECF No. 220] is granted
in part and denied in part, in the total amount of $6,414.80; and
4.
Defendants’ Motion to Strike Plaintiff’s Fee Petition [ECF
No. 236] is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated:4/24/2015
- 24 -
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