Baker et al v. Ghidotti et al

Filing 287

MOTION by Plaintiff Kenneth Baker for judgment of appellate and post-trial attorneys' fees (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Dymkar, Irene)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KENNETH BAKER, BARBARA BAKER,
CAMDEN BAKER, and A. B., Minor, by Parent
BARBARA BAKER,
Plaintiff,
v.
TIMOTHY M. GHIDOTTI, BORIS JURKOVIC,
RELIABLE RECOVERY SERVICES, INC.,
JEAN M. LINDGREN, JESUS VERA,
STEVEN MARTIN, JUAN M. CABRALES,
DENNIS P. WALSH, MICHAEL A. FLORES,
UNKNOWN OFFICERS OF THE CHICAGO
POLICE DEPARTMENT, and CITY OF
CHICAGO,
Defendants.

)
)
)
)
)
) Case No. 11 C 4197
)
) Judge Harry D. Leinenweber
)
)
)
)
)
)
)
)
)

PLAINTIFF’S FEE PETITION FOR JUDGMENT OF APPELLATE AND POST-TRIAL
ATTORNEY FEES
Plaintiff, Kenneth Baker, by and through his attorneys, Irene K. Dymkar, Torreya L.
Hamilton, Daniel H. Regenscheit, and Shamoyita M. DasGupta, hereby petitions the Court for an
order granting appellate and post-trial attorneys’ fees in the amount of $130,501.50, and submits
the following memorandum in support thereof:
I. Introduction
This matter proceeded to jury trial and judgment was entered on October 24, 2014.
Doc. 216. Plaintiffs filed a petition for attorneys’ fees and costs, and the Court rendered its
memorandum opinion and order on April 24, 2015. Doc. 250. Plaintiffs appealed said decision
on attorneys’ fees and costs in a case entitled Baker v. Ghidotti, Seventh Circuit 15-2203, and the

Seventh Circuit rendered its decision on June 1, 2017, remanding the case back to the district
court for further proceedings. Doc. 275 (certified copy of opinion).
II. Agreed judgment for trial attorney fees
Plaintiffs made all the necessary calculations and negotiated with defense counsel an
agreed judgment that includes the district court’s original fee judgment, the additional fees
awarded by the Seventh Circuit, and interest. The parties filed a joint stipulation (Doc. 279), and
the Court signed the parties’ proposed agreed order of judgment for trial attorney fees in the
amount of $184,033.25. Doc. 283.
III. Fee petition for appellate and post-trial attorney fees
The law in this Circuit is very clear that when a party prevails in a civil rights appeal
as plaintiff did here, the prevailing attorneys are entitled to recover their reasonable lodestar
for the services they provided. Plaintiff therefore asks the Court to award the lodestar of
$130,501.50, as computed herein.
A. Legal standard for adjudicating plaintiff’s’ fee petition for appellate and posttrial legal work
Courts in this district have acknowledged that “[a]s tempting as it may be to say, ‘enough
already’” to fee petitions, a plaintiffs’ successful appeal encourages attorneys to pursue valid
civil rights cases. Pickett v Sheridan, 07 C 17222, Doc. 240 at 6 (N.D. Ill. Nov. 13, 2014)
(Shah, J.).
Even in cases of mixed judgment “plaintiffs may be considered prevailing parties for
attorney’s fees purposes if they succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit.” Thorncreek Apartments I, LLC v. Vill. of
Park Forest, 123 F. Supp. 3d 1012, 1017 (N.D. Ill. 2015) (Feinerman, J.), quoting Family PAC
2

v. Ferguson, 745 F.3d 1261, 1268 (9th Cir. 2014); see Wells v. City of Chicago, 925 F. Supp. 2d
1036, 1050 (N.D. Ill. 2013) (Kennelly, J.) (awarding plaintiff attorneys’ fees in “mixed result”
appellate decision).
The amount of the fee award is calculated by multiplying reasonable hours times hourly
rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar is presumptively an
appropriate measure of the fee award. Blum v. Stenson, 465 U.S. 886, 897 (1984). As the
Supreme Court has clarified, this "strong presumption that the lodestar figure. . . represents a
reasonable fee is wholly consistent with the rationale behind [§1988]." Blanchard v. Bergeron,
489 U.S. 87, 95 (1989).
B. Negotiations about appellate and post-trial attorneys’ fees have not been
successful
Plaintiff presented a demand of $113,000 based on an initial cursory estimate of appellate
and post-trial attorneys’ fees for attorneys Irene K. Dymkar, Torreya L. Hamilton, Shamoyita M.
DasGupta, and Daniel H. Regenscheit. In a good faith effort to settle this matter, plaintiff
reduced the demand to $100,000, and then to $85,000, and said they would consider a further
reduction, just to settle the matter. Defendants nevertheless offered only a minimal $9,040.00,
which they increased to $15,000,00, before they refused to negotiate any further. Defendants
unreasonably maintain that plaintiff’s attorney fees should be reduced by 92% of the original
demand..
On appeal, defendants hotly contested every calculation, even the mistake made by the
Court in the double deduction of fees attributable to work with regard to the Reliable Recovery
claims. At oral argument, Justice Rovner, who appeared by video conferencing, was exasperated.
See http://media.ca7.uscourts.gov/sound/2016/gw.15-2203.15-2203_12_05_2016.mp3. At 11:23
3

on the video, Justice Rovner asked the City appellate attorney point blank whether he would
concede that a mistake had been made in the double deduction of hours. The City appellate
attorney danced around the issue, saying that maybe the district court had some other reason to
take off the hours. At 12:35 on the video, Justice Rovner once again asked the City appellate
attorney point blank whether he would concede that a mistake was made in the double deduction
of hours. When he had no choice but to admit to the miscalculation, the City attorney finally did
so, and Justice Rovner audibly gasped in frustration. The audio then cuts out as she is saying
"Then why did you . . ." and when the attorney told Justice Rovner that the audio had cut out, she
said, "It's probably good that I cut out because I'm just so . . .[audio cuts out again]." At 14:27,
the City attorney apologized to Justice Rovner for sounding like he was "trying to equivocate."
Justice Rovner likewise at 14:44 expressed frustration at the City’s position regarding the
bill of costs. “I am troubled that defendants recovered all of their costs, given that you did lose
some of the claims.” The Court ultimately ruled that the district court did not abuse its discretion
in awarding defendants their entire bill of costs and denying plaintiffs their entire bill of costs.
Regardless of the final decision of the Court, when one listens to the entire oral argument, many
of the court’s questions were favorable to plaintiff. This was not a frivolous appeal by any
means, but one which the Court took seriously.
Unfortunately, the parties cannot disclose the substance of the protracted negotiations with
the mandatory Seventh Circuit Rule 33 settlement conference mediator prior to the filing of the
briefs on appeal. Pursuant to the Court’s rules:
The Court requires all participants to keep what is said in these conferences strictly
confidential. Communications, oral and written, which take place in the course of
Rule 33 proceedings may not be disclosed to anyone other than the litigants, their
counsel, and the conference attorney.

4

Suffice it to say that the settlement conference was a missed opportunity to settle this case
without having to brief and argue the appeal.
This Court noted in its 2012 decision in Gilfand v. Planey, 2012 WL 5845530 *16-17
(N.D.Ill. Nov. 19, 2012) that the willingness to engage in reasonable settlement negotiations is an
important factor, in that an early settlement keeps litigation from being unduly prolonged and
saves court and attorney resources. See Heder v. City of Two Rivers, 255 F.Supp.2d 947, 956
(E.D.Wis.2003) (awarding full lodestar because plaintiff offered to settle on reasonable terms;
court concluded: “the City has only itself to blame for the disproportionality between the
attorneys’ fees incurred and the amount Heder recovered . . . and [plaintiffs should not] be forced
to swallow expenses incurred largely as a result of the City’s approach to this litigation.”);
Negotiations about appellate and post-trial attorneys’ fees have not been successful
Defendants are being unreasonable in asking plaintiff to settle the attorneys’ fees for 8% of the
original fee demand. Plaintiff should be granted the lodestar.
C. Plaintiff’s lodestar is justified and should be granted
Plaintiff is requesting fees calculated as follows:
Irene K. Dymkar
Torreya L. Hamilton
Daniel H. Regenscheit

240.2 hours
25.1 hours
16.8 hours
6.7 hours

Shamoyita M. DasGupta

15.2 hours

$465/hour
$ 111,693.00
$465/hour
$ 11,671.50
$125/hour
$ 2,100.00
(Prior to bar admission)
$230/hour
$ 1,541.00
(Post bar admission)
$230/hour
$ 3,496.00
TOTAL FEES $ 130,501.50

The lodestar is computed by multiplying reasonable attorneys’ rates per hour by the
reasonable number of hours expended.

5

i. Plaintiff’s attorney’s reasonable rates have been set by Court decision
This Court set Irene K. Dymkar’s hourly rate at $425. Doc. 250. Since that time, two
Courts have set her hourly rate at $465. See Nelson v. Lis, 09 C 883 (Doc. 244 - Opinion
March 28, 2017), Pallmeyer, J..; Wilson v. Baptiste, 13 C 7845 (Doc 286 - Order issued July 13,
2017), Shah, J. Of note, the Nelson case involved a case plaintiff lost at trial, but won on appeal.
The attorneys’ fees award included both trial work commencing in 2009 and appellate work
concluding in 2016. Ms. Dymkar asks the Court to apply the $465 hourly rate for work from
January 27, 2015, to the present.
This Court set Torreya L. Hamilton’s hourly rate at $450. Doc. 250. Since that time, a
Court has set her hourly rate at $465. See Bellamy v. Watkins, 15 C 2678 (Doc. 192 - Opinion
August 25, 2017), Chang, J. Ms. Hamilton asks the Court to apply the $465 hourly rate.
Two Courts have set Daniel H. Regenscheit and Shamoyita DasGupta’s hourly rate at
$230. See Nelson (Doc 244), Wilson (Doc 286). Their biographical affidavits are attached as
Exhibits A and B respectively. Mr. Regenscheit and Ms DasGupta ask the Court to award them
the $230 hourly rate for their attorney time. It must be noted that some of the work performed by
Mr. Regenscheit took place prior to his admission to the bar, so for that clearly delineated time,
plaintiff is asking for the paralegal rate previously set by the Court, that is, $125/hour.
ii. The hours expended in this case are reasonable and should be approved
Attached are the time and work records for Irene K. Dymkar, totaling 240.2 hours
(Exhibit C), for attorney Torreya L. Hamilton, totaling 25.1 hours (Exhibit D), for attorney
Daniel H. Regenscheit, totaling 23.5 hours (Exhibit E), and for attorney Shamoyita M. DasGupta,
totaling 15.2 hours (Exhibit F).

6

Ms. Dymkar’s hours encompass all post-trial work, including protracted settlement
negotiations with the Seventh Circuit, drafting the opening and reply briefs, oral argument, and
fee petition issues.
Plaintiff’s attorneys’ practice is to keep track of time spent on legal work
contemporaneously with the work performed. Thus, the time sheets submitted are not
reconstructions of what the time might have been for the work performed; it is the actual time. It
is also the practice of plaintiff’s attorneys to keep track of time spent on legal work in 1/10's of an
hour, that is, in 6-minute increments, even though it appears to be the standard practice in this
community for attorneys to keep track of time in 1/4 hours. The practice of using 1/10-hour
increments enhances the accuracy of the time reporting and eliminates the “rounding-up”
that inevitably occurs when the lowest increment of time is 1/4 hour, or 15 minutes.
The hours expended in this case by plaintiff’s counsel are reasonable and should be
approved by the Court.
VIII. Conclusion
Plaintiff, Kenneth Baker, respectfully requests that the Court grant his attorneys’ fees
petition and award in full the lodestar of $130,501.50, as set forth herein.

Dated: September 5, 2017

/s/

Attorneys for Plaintiff:
Irene K. Dymkar
Daniel H. Regenscheit
Shamoyita M. DasGupta
Law Offices of Irene K. Dymkar
53 W. Jackson Street, Suite 562
Chicago, IL 60604-3420
[phone]

Irene K. Dymkar
Irene K. Dymkar

Torreya L. Hamilton
The Hamilton Law Office, LLC
53 W. Jackson, Suite 452
Chicago, IL 60603
[phone]

7

CERTIFICATE OF SERVICE
I, Irene K. Dymkar, an attorney, certify that on the 5th day of September, 2017, a copy of
this notice, as well as the motion of which it gives notice, were served upon the attorneys for
defendants named above through the Court’s electronic filing system.
Caroline Fronczak
City of Chicago Department of Law
30 N. LaSalle St., Suite 900
Chicago, IL 60602
Dated: September 5, 2017

/s/

8

Irene K. Dymkar
Irene K. Dymkar