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)

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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 - 2 - 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 - 3 - 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.” - 4 - 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 - 5 - (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 - 6 - 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 - 7 - 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 - 13 -

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