Baker et al v. Ghidotti et al

Filing 291

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
EASTERN DIVISION

KENNETH BAKER, BARBARA
BAKER, CAMDEN BAKER, and
A.B., Minor, by Parent
BARBARA BAKER,
Plaintiffs,
v.
Case No.
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
OF CHICAGO,

11 C 4197

Judge Harry D. Leinenweber

Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Kenneth Baker (“Baker”) has filed a Petition to
Recover Attorneys’ Fees against Defendants 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, 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.

I.

BACKGROUND

In 2014, Baker sued Defendants on § 1983 grounds and won a
jury verdict on two of the six claims he pursued at trial.

The

jury awarded Baker $25,000 in damages on his false arrest claim
and

$5,000

on

his

malicious

prosecution

claim.

The

Court

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
Cir. 2017).
(ECF

No.

Both parties then agreed to a joint stipulation

279)

for

Circuit’s

ruling,

(See,

No.

ECF

Attorneys’

attorney’s
and

this

283.)

Fees

to

in

Court

Now,

related

fees

Baker
the

light

ordered
brings

2017

a

appeal

of

the

fees
new

Seventh

accordingly.
Petition

and

other

for

post-

judgment lawyering.
II.
The

Civil

Rights

DISCUSSION

Attorney’s

Fees

Award

Act,

42.

U.S.C.

§ 1988, allows the award of “reasonable attorney’s fee[s] to the
prevailing

party

in

various

kinds

including suits brought under § 1983.”

of

civil

rights

cases,

Fox v. Vice, 563 U.S.

826, 832-33 (2011) (internal quotations omitted). The statute
serves

the

dual

purpose

of
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reimbursing

plaintiffs

for

vindicating

important

civil

rights

violators of federal law. See, id.
only

compensate

succeeds;

plaintiff

losing

claims

for

are

and

accountable

However, a defendant “need

fees

not

holding

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

the

party

“prevailing party” status.

Supreme

Court,

for

the

purpose

succeed

on

any

significant

suit.”

some

of

the

is

entitled

to

Under one formulation approved by

“plaintiffs

parties

achieves

fees

Gibson v. City of Chi., 873 F. Supp.

2d 975, 982 (N.D. Ill. 2012).
the

seeking

of

may

awarding
issue

benefit

the

be

considered

attorneys’
in

the

parties

prevailing

fees

if

litigation

sought

in

they
which

bringing

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
appeal.

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

“trivial”

entitle

status.

and

does

not

Baker

to

“prevailing

(See, Defs.’ Resp. at 6, ECF No. 288.)

party”

But while his

appellate victory amounted to a technical correction, its effect
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on

Baker

was

significant.

After

his

appeal,

Baker

won

an

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
party

for

threshold.

the

purposes

courts

reaching

461 U.S. at 433.

what fee is reasonable.
To

of

calculate
apply

the

the

§ 1988

statutory

Still, the Court must determine

Id.

reasonable
“lodestar

attorneys’
method,”

fees

which

under

§ 1988,

multiplies

the

attorneys’ reasonable hourly rates by the number of hours they
reasonably expended.

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.

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.

See,

People Who Care, 90 F.3d at 1310 (citing Hensley, 461 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.”
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Schlacher v. Law Offices

of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 856-57 (7th
Cir. 2009).
A.

Lodestar Calculation

Plaintiff seeks a total of $130,501.50 in appellate and
post-trial attorneys’ fees, calculated as follows:
Attorney

Hourly Rate

Hours

Irene K. Dymkar

$465

240.2

Total per
Attorney
$111,693.00

Torreya L.
Hamilton

$465

25.1

$11,671.50

Daniel H.
Regenscheit (prebar admission)

$125

16.8

$2,100.00

Daniel H.
Regenscheit
(post-bar
admission)

$230

6.7

$1,541.00

Shamoyita M.
DasGupta

$230

15.2

$3,496.00

1.
The
rates.

Court

begins

Hourly Rates

by

examining

counsels’

claimed

hourly

In determining a reasonable hourly rate, attorneys’ fees

awarded under Section 1988 “are to be based on market rates for
services rendered.”
283 (1989).

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.”
People

Who

Care,

90

F.3d

at

1310

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(quoting

Gusman

v.

Unisys

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.
Id. Previous
reasonable

fee

awards

market

are

rate.”

also

“useful

Jeffboat,

LLC

for
v.

establishing

Dir.,

Office

a
of

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
of

experience,

previous

fee

awards,

other civil rights attorneys.

and

the

rates

earned

by

Baker, 2015 WL 1888004, at *3.

The Court concluded that Dymkar’s fees should be awarded at a
$425/hour

rate

$450/hour rate.

and

Hamilton’s

fees

should

be

awarded

at

a

The Court adopts those findings again in this

opinion.
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.

First,

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-

admission

work

work

and

for

DasGupta’s
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generally,

the

Court

agrees

with

the

recent

and

well-reasoned

findings

by

other

courts in this District that $230/hour is a reasonable rate of
compensation

for

these

attorneys.

See,

Mem.

Op.

and

Order,

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
No. 286.
2.

Hours Billed

The Court next turns its attention to the number of hours
billed,

which

cannot

unnecessary.”

be

“excessive,

redundant,

Hensley, 461 U.S. at 434.

or

otherwise

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
it

and

Defendants

noted

billing

for

paralegal

billing

for

“a

docket.”

motion

last
work

time
or

hearing

around,

such

“unnecessary”
when

nothing

Baker, 2015 WL 1888004, at *5).

as

attorneys

billing
appears

(e.g.,
on

the

Accordingly, the

Court will not strike any specific time entries.
3.

Lodestar Adjustment

Based on the corrected hourly rates, Plaintiff’s lodestar
is recalculated as $120,517.00:
Attorney
Irene K. Dymkar

Hourly Rate
$425

Hours
240.2

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Total per
Attorney
$102,085.00

Attorney
Torreya L.
Hamilton

$450

25.1

Total per
Attorney
$11,295.00

Daniel H.
Regenscheit (prebar admission)

$125

16.8

$2,100.00

Daniel H.
Regenscheit
(post-bar
admission)

$230

6.7

$1,541.00

Shamoyita M.
DasGupta

$230

15.2

$3,496.00

Having

Hourly Rate

determined

the

Hours

initial

lodestar,

the

Court

must

determine whether a lodestar adjustment is appropriate based on
the

Hensley

factors,

including

the

results

obtained,

complexity of the case, and the public interest.
Schlacher, 574 F.3d at 856-57).

the

Id. (citing

The most important factor is

the “results obtained,” which becomes particularly significant
in cases where a prevailing party succeeds on only some claims
for relief.
1998).
limited

Jaffee v. Redmond, 142 F.3d 409, 413 (7th Cir.

“[W]here
success,

a
the

plaintiff

has

achieved

lodestar

may

be

an

only

partial

excessive

or

amount.”

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
- 8 -

(citing

Schlacher,

factors).

The

574

F.3d

important

at

856-57)

(describing
then,

consideration,

Hensley
be

results Baker obtained in the court of appeals.

must

the

In considering

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.

This time,

the Court must determine what reduction is appropriate given
that Baker advanced eleven arguments on appeal but won just one
of them.
Baker objects to any lodestar reduction because counsels’
work

on

expended

his
on

appeal
the

one

is

“indivisible”—meaning

winning

issue

energies spent on the other ten.

cannot

be

their

effort

separated

from

Baker suggests that because

the appeal required some work, it might as well have required
all

the

work

counsel

actually

did:

“Legal

issues

regarding

attorneys’ fees would have been researched and explored whether
all issues were ultimately argued or not.
necessary

preparation

and

formality

would

whether all issues were addressed or not.”
ECF No. 289.)

A brief with all its
have

filed,

(Baker’s Reply at 9,

But controlling case law disagrees.

Montanez, 755 F.3d at 556.

been

See, e.g.,

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
- 9 -

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).
The

reduction

determination

would

be

much

simpler

had

Baker’s counsel broken down their time by legal issue in focus
rather

than

Entries

by

generic

6/17/2016,

activity.

6/18/2016,

simply “Draft Brief”).)

(See,

6/20/2016,

e.g.,
etc.

Dymkar
(all

Time

stating

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
counsel

cited

refused.

the

purported

impossibility

of

that

task

and

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
omitted).

The

Court

is

left

to

form

the

most

reasonable

inference it can from the circumstances.
Defendants
different

suggest

arguments,

that

not

Baker

merely

really

eleven,

advanced
on

appeal,

thirteen
and

so

deserve approximately 8% of the lodestar (reflecting roughly one
victorious claim out of thirteen).
- 10 -

However, the Court is not

convinced

that

so

thin

a

appropriate and reasonable.

slice

of

the

initial

lodestar

is

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.

But what

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
Court

concludes

that

Plaintiff’s

limited

success

on

appeal

justifies a 75% reduction of Plaintiff’s $120,517.00 lodestar.
Plaintiff’s Petition for Fees is granted in the amount of
$30,129.25.
B.

Defendants’ Motion to Strike

Defendants bury within their response a motion to strike
Plaintiff’s argument for greater fees stemming from the parties’
unsuccessful,

post-appeal

settlement

negotiations.

In

the

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.

The Court

denies the Motion to Strike because a party’s abject refusal to
negotiate can be a factor in determining the appropriate fee
award.

See, e.g., Gilfand v. Planey, No. 07 C 2566, 2012 WL
- 11 -

5845530, at *16 (N.D. Ill. Nov. 19, 2012) (citing Moriarty v.
Svec,

233

F.3d

955,

967

(7th

Cir.

2000)

(“Attorney’s

fees

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.”)).
Yet

while

refusals

can

be

relevant,

the

persuaded by the alleged refusal here.

Court

is

not

much

First of all, Baker

apparently did not provide any post-trial billing records to
Defendants

during

these

negotiations

(Defs.’

Resp.

at

10

(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
the

total

hours”

and

stating

that

Defendants

“were

not

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
hours

for

which

compensation

Local

R.

54.3(d)(1);

see,

will
Baker,

and

will

2015

WL

not

be

1888004,

sought.”
at

(describing the Rule and Baker’s prior disregard for it).
the

very

least,

Defendants

requested
- 12 -

the

latter;

as

*2
At

already

described,

however,

Plaintiff

never

provided

that

breakdown.

Without this information in hand, Defendants’ settlement figures
must

have

would

been

have

guided

been.

more

Baker

by

guesswork

can

hardly

than

they

complain,

otherwise

then,

that

Defendants’ settlement numbers were lower than he would have
preferred.

To

any

extent,

the

Court

has

determined

that

$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.
III.
For
Fees

the

(ECF

$30,129.25.

reasons

No.

287)

stated
is

CONCLUSION
herein,

granted

in

Plaintiff’s
part

in

Petition

the

amount

for
of

Defendants’ Motion to Strike is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated:

4/3/2018

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