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
- 7 -

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 -