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
- 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
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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).
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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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