Baker et al v. Ghidotti et al
MEMORANDUM OPINION AND ORDER. For the reasons stated in the Court's 4/3/18 memorandum opinion and order, Plaintiff's Petition for Fees (ECF No. 287) is granted in part in the amount of $30,129.25. Defendants' Motion to Strike is denied. Signed by the Honorable Harry D. Leinenweber on 4/3/2018:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
KENNETH BAKER, BARBARA
BAKER, CAMDEN BAKER, and
A.B., Minor, by Parent
TIMOTHY M. GHIDOTTI, BORIS
JURKOVIC, RELIABLE RECOVERY
SERVICES, INC., JEAN M.
LINDGREN, JESUS VERA, STEVEN
MARTIN, JUAN M. CABRALES,
DENNIS P. WALSH, MICHAEL A.
FLORESE, UNKNOWN OFFICERS OF
THE CHICAGO POLICE
DEPARTMENT, and THE CITY
11 C 4197
Judge Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Baker (“Baker”) has filed a Petition to
Recover Attorneys’ Fees against Defendants Timothy M. Ghidotti,
Lindgren, Jesus Vera, Steven Martin, Juan M. Cabrales, Dennis P.
Walsh, Michael A. Flores, the City of Chicago, and several Doe
Chicago police officers. (ECF No. 287.)
For the reasons stated
herein, Plaintiff’s Petition for Fees is granted in part and
denied in part, and Defendants’ Motion to Strike Plaintiff’s
arguments regarding settlement negotiations is denied.
In 2014, Baker sued Defendants on § 1983 grounds and won a
jury verdict on two of the six claims he pursued at trial.
jury awarded Baker $25,000 in damages on his false arrest claim
awarded Baker attorneys’ fees pursuant to 42 U.S.C. § 1988 in an
opinion that the Seventh Circuit affirmed in part and vacated
and remanded in part.
See, Baker v. Ghidotti, No. 11 C 4197,
2015 WL 1888004, at *8 (N.D. Ill. Apr. 24, 2015), aff’d in part,
vacated in part sub nom. Baker v. Lindgren, 856 F.3d 498 (7th
Both parties then agreed to a joint stipulation
§ 1988, allows the award of “reasonable attorney’s fee[s] to the
including suits brought under § 1983.”
Fox v. Vice, 563 U.S.
826, 832-33 (2011) (internal quotations omitted). The statute
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violators of federal law. See, id.
However, a defendant “need
Krajewski, 848 F.2d 767, 776-77 (7th Cir. 1988).
In awarding fees under § 1988, a court’s first step is to
“prevailing party” status.
Under one formulation approved by
Gibson v. City of Chi., 873 F. Supp.
2d 975, 982 (N.D. Ill. 2012).
Lindgren, 856 F.3d at 503 (citing Hensley v. Eckerhart,
461 U.S. 424, 433 (1983)).
Although in limited form, Baker was a prevailing party on
Defendants point out that he raised eleven arguments on
appeal but succeeded on only one of them, namely that this Court
made an arithmetic error when it double-discounted some 77.9
hours of billable work.
Defendants assert that such a win is
(See, Defs.’ Resp. at 6, ECF No. 288.)
But while his
appellate victory amounted to a technical correction, its effect
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additional $17,866.46 in attorneys’ fees from Defendants, which
is about 10% of the $184,033.25 total he has received in fees in
this case so far.
(See, Joint Stipulation at 2, ECF No. 279).
Under Hensley’s “generous formulation,” Baker is a prevailing
461 U.S. at 433.
what fee is reasonable.
Still, the Court must determine
attorneys’ reasonable hourly rates by the number of hours they
People Who Care v. Rockford Bd. of Educ.,
Sch. Dist. No. 205, 90 F.3d 1307, 1310 (7th Cir. 1996) (citing
Hensley, 461 U.S. at 433).
The party requesting fees carries
the burden of establishing their reasonableness.
Chi. Transit Auth., 10 F.3d 501, 518 (7th Cir. 1993).
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.
People Who Care, 90 F.3d at 1310 (citing Hensley, 461 U.S. at
These factors include “the complexity of the legal
issues involved, the degree of success obtained, and the public
interest advanced by the litigation.”
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Schlacher v. Law Offices
of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 856-57 (7th
Plaintiff seeks a total of $130,501.50 in appellate and
post-trial attorneys’ fees, calculated as follows:
Irene K. Dymkar
Regenscheit (prebar admission)
In determining a reasonable hourly rate, attorneys’ fees
awarded under Section 1988 “are to be based on market rates for
Missouri v. Jenkins by Agyei, 491 U.S. 274,
“The attorney’s actual billing rate for comparable
work is ‘presumptively appropriate’ to use as the market rate.”
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Corp., 986 F.2d 1146, 1150 (7th Cir. 1993)).
The next best
evidence of a reasonable fee is the rate charged by lawyers in
the community of comparable skill, experience, and reputation.
Workers’ Comp. Programs, 553 F.3d 487, 491 (7th Cir. 2009).
In consideration of Baker’s last petition for fees, this
Court reasoned through Dymkar and Hamilton’s respective degrees
other civil rights attorneys.
Baker, 2015 WL 1888004, at *3.
The Court concluded that Dymkar’s fees should be awarded at a
The Court adopts those findings again in this
Baker’s previous petition did not ask the Court to consider
appropriate rates for attorneys Regenscheit and DasGupta, so the
Court must do so now for the first time in this case.
the Court agrees with Baker that Regenscheit should be limited
to the paralegal rate of $125/hour for work done before his
admission to the bar.
(Baker’s Fee Pet. at 6, ECF No. 287;
Baker, 2015 WL 1888004, at *4 (finding an hourly rate of $125 to
be reasonable for paralegal work).)
But for Regenscheit’s post-
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courts in this District that $230/hour is a reasonable rate of
Nelson v. Lis, (March 28, 2017) (No. 09 C 883), ECF No. 244;
Order, Wilson v. Baptiste, (July 13, 2017) (No. 13 C 7845), ECF
The Court next turns its attention to the number of hours
Hensley, 461 U.S. at 434.
Defendants objected on
specific grounds to Baker’s last fees petition, but they raise
no such objections now.
The Court has reviewed the time sheets
submitted by Baker’s counsel and does not see the same problems
Baker, 2015 WL 1888004, at *5).
Court will not strike any specific time entries.
Based on the corrected hourly rates, Plaintiff’s lodestar
is recalculated as $120,517.00:
Irene K. Dymkar
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Regenscheit (prebar admission)
determine whether a lodestar adjustment is appropriate based on
complexity of the case, and the public interest.
Schlacher, 574 F.3d at 856-57).
The most important factor is
the “results obtained,” which becomes particularly significant
in cases where a prevailing party succeeds on only some claims
Jaffee v. Redmond, 142 F.3d 409, 413 (7th Cir.
Montanez v. Simon, 755 F.3d 547, 556 (7th Cir. 2014) (citations
and internal quotations omitted).
Baker’s appeal was neither complex nor likely to have much
impact on public policy.
Cf. Baker, 2015 WL 1888004, at *5
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results Baker obtained in the court of appeals.
Baker’s first fee petition, the Court reduced Baker’s lodestar
by 50% because he succeeded on only two of the six claims he
pursued at trial.
Baker, 2015 WL 1888004, at *6.
the Court must determine what reduction is appropriate given
that Baker advanced eleven arguments on appeal but won just one
Baker objects to any lodestar reduction because counsels’
energies spent on the other ten.
Baker suggests that because
the appeal required some work, it might as well have required
attorneys’ fees would have been researched and explored whether
all issues were ultimately argued or not.
whether all issues were addressed or not.”
ECF No. 289.)
A brief with all its
(Baker’s Reply at 9,
But controlling case law disagrees.
Montanez, 755 F.3d at 556.
Writing an appellate brief arguing
eleven issues surely takes more time (though precisely how much
more is difficult to say) than writing the same brief on one of
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those issues only.
The Seventh Circuit has explained that in
cases such as this, “there is nothing to do but make an acrossthe-board reduction that seems appropriate in light of the ratio
between winning and losing claims.”
Richardson v. City of Chi.,
740 F.3d 1099, 1103 (7th Cir. 2014).
Baker’s counsel broken down their time by legal issue in focus
simply “Draft Brief”).)
Defendants undisputedly asked for “the
number of hours [plaintiff’s counsel] has worked on [their] one
prevailing appellate issue,” (Email from Defs.’ Counsel to Pl.’s
Counsel, Ex. A to Defs.’ Resp., ECF No. 288-1), but Plaintiff’s
Here, counsels’ records “do not provide a proper basis
for determining how much time was spent on particular claims.”
Hensley v. Eckerhart, 461 U.S. 424, 437 n.12 (1983) (citation
inference it can from the circumstances.
deserve approximately 8% of the lodestar (reflecting roughly one
victorious claim out of thirteen).
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However, the Court is not
appropriate and reasonable.
While Baker’s assertions as to the
indivisibility of his counsels’ efforts are overblown, they are
not entirely without merit.
Not all efforts in preparing for
litigation can be pigeonholed into neat categories.
categorization there could have been was cut off at the knees
when Baker’s counsel recorded their time by translucent methods.
Considering this and from its review of the time records, the
justifies a 75% reduction of Plaintiff’s $120,517.00 lodestar.
Plaintiff’s Petition for Fees is granted in the amount of
Defendants’ Motion to Strike
Defendants bury within their response a motion to strike
Plaintiff’s argument for greater fees stemming from the parties’
complained-of argument, Plaintiff asserts that Defendant refused
to offer more than $15,000 to settle the dispute over appellate
counsel fees, even after Plaintiff dropped his ask from $100,000
to $85,000 and suggested he might drop even further.
denies the Motion to Strike because a party’s abject refusal to
negotiate can be a factor in determining the appropriate fee
See, e.g., Gilfand v. Planey, No. 07 C 2566, 2012 WL
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5845530, at *16 (N.D. Ill. Nov. 19, 2012) (citing Moriarty v.
accumulated after a party rejects a substantial offer provide
minimal benefit to the prevailing party, and thus a reasonable
attorney’s fee may be less than the lodestar calculation.”)).
persuaded by the alleged refusal here.
First of all, Baker
apparently did not provide any post-trial billing records to
(explaining without contradiction from Baker that Defendants saw
these records for the first time when Baker filed the instant
petition in September 2017); cf. Pl.’s Reply at 5 (describing
that Plaintiff did provide Defendants with a “rough estimate of
interested in the total number of hours,” but only in the hours
spent on the one winning issue).)
This perhaps marks Baker’s
second failure in this case to comply with Local Rule 54.3,
which requires each party to produce upon request “the time and
work records on which the motion will be based [and also] the
(describing the Rule and Baker’s prior disregard for it).
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Without this information in hand, Defendants’ settlement figures
Defendants’ settlement numbers were lower than he would have
$30,129.25 is an appropriate fee award, which is about double
Defendants’ final settlement offer.
This number is reasonable
and avoids foisting additional costs stemming from Defendants’
negotiating behavior upon Baker who, again, won only one of his
eleven arguments on appeal.
Defendants’ Motion to Strike is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
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