Awalt v. Marketti et al
Filing
643
MEMORANDUM Opinion and Order. For the foregoing reasons, the Court awards Plaintiff's counsel a total of $3,172,650.00 in fees, and $106,477.72 in expenses, for a grand total award of $3,279,127.72. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 5/23/2018:Mailed notice(srn, )
Case: 1:11-cv-06142 Document #: 643 Filed: 05/23/18 Page 1 of 21 PageID #:31751
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELIZABETH AWALT, as Administrator of
the Estate of Robert Awalt,
Plaintiff,
No. 11 C 6142
v.
Judge Thomas M. Durkin
RICK MARKETTI, as Administrator of the
Estate of Terry Marketti; KEVIN
CALLAHAN, in his official capacity as
Sheriff of Grundy County; DUANE
MCCOMAS, individually and in his
official capacity as Superintendent of
Grundy County Jail; MELANIE VAN
CLEAVE; PATRICK SEALOCK; MATTHEW
WALKER; KIM LEAR; ROGER THORSON;
ROBERT MATTESON; DAVID OBROCHTA;
COUNTY OF GRUNDY; CORRECTIONAL
HEALTH COMPANIES, INC.; HEALTH
PROFESSIONALS, LTD.; DR. STEPHEN
CULLINAN; MARJORIE CLAUSON;
unknown employees of Correctional
Healthcare Companies, Inc. and Health
Professionals, LTD; unknown Grundy
County Correctional Officers; unknown
Medical Personnel,
Defendants.
MEMORANDUM OPINION AND ORDER
Elizabth Awalt (“Plaintiff”), as administrator for the estate of her husband
Robert Awalt (“Awalt”), brought this case seeking damages for Awalt’s death while
he was detained in the Grundy County Jail. Prior to any trial, Plaintiff reached
settlements with the Grundy County Sheriff’s Office and its employees who were
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named as defendants, and Nurse Marjorie Clausen who was employed by
Correctional Health Companies, Inc. (“CHC”), and Health Professional, Ltd.
(“HPL”) (together “CHC/HPL”), which the County contracted with to provide
medical services in the Jail. A jury trial proceeded against CHC/HPL and its
employee, Dr. Stephen Cullinan. Because evidence relevant to the claims against
CHC/HPL was unduly prejudicial to Dr. Cullinan, the trial was bifurcated and
claims against him were tried first, with the intent that the same jury would hear
the additional evidence against CHC/HPL. The jury hung on the claims against Dr.
Cullinan, and the entire bifurcated trial was rescheduled. Before the retrial
commenced, Dr. Cullinan settled the claims against him. The trial was again
rescheduled, but CHC/HPL settled the claims against it before trial.
The settlements with the County Defendants, Nurse Clausen, and Dr.
Cullinan provided for Plaintiff’s attorney’s fees and expenses. The settlement with
CHC/HPL provided that Plaintiff and CHC/HPL would submit a fee petition for
resolution by this Court. For the following reasons, the Court awards Plaintiff’s
counsel $3,279,127.72 in fees and expenses.
Legal Standard
The Civil Rights Attorney’s Fees Awards Act of 1976 provides that a district
court, “in its discretion, may allow the prevailing party . . . a reasonable attorney’s
fee” in suits brought under certain federal civil rights statutes, including 42 U.S.C.
§§ 1983, 1985, and 1986. 42 U.S.C. § 1988(b). “[A] prevailing plaintiff should
ordinarily recover an attorney’s fee unless special circumstances would render such
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an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotation marks
omitted). CHC/HPL has stipulated that Plaintiff is a prevailing party in this case.
“[I]n view of [its] superior understanding of the litigation,” this Court has
considerable “discretion in determining the amount of a fee award.” Hensley, 461
U.S. at 437. The Court must “‘provide a reasonably specific explanation for all
aspects of a fee determination,’” but its explanation “need not be lengthy.” Pickett v.
Sheridan Health Care Ctr., 664 F.3d 632, 651 (7th Cir. 2011) (quoting Perdue v.
Kenny A., 559 U.S. 542, 558 (2010)).
The “starting point for determining the amount of a reasonable fee is the
number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley, 461 U.S. at 433. This calculation is commonly known as the
“lodestar.” E.g., Pickett, 664 F.3d at 639. “The party seeking an award of fees” has
the burden to “submit evidence supporting the hours worked and rates claimed.”
Hensley, 461 U.S. at 433.
The hours worked component of the lodestar excludes hours “not reasonably
expended,” including “excessive, redundant, or otherwise unnecessary” hours. Id. at
434 (quotation marks omitted). “[T]he court should disallow not only hours spent on
tasks that would normally not be billed to a paying client, but also those hours
expended by counsel on tasks that are easily delegable to non-professional
assistance.” Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999)
(quotation marks omitted). The Court also may reduce the hours calculation
“[w]here the documentation of hours is inadequate.” Hensley, 461 U.S. at 433.
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The hourly rate component of the lodestar “must be based on the market rate
for the attorney’s work.” Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 659 (7th
Cir. 2007). “The market rate is the rate that lawyers of similar ability and
experience in the community normally charge their paying clients for the type of
work in question.” Id. (quotation marks omitted). “The attorney’s actual billing rate
for comparable work is presumptively appropriate to use as the market rate.”
Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003) (quotation marks omitted).
“[O]nce an attorney provides evidence establishing [the] market rate, the opposing
party has the burden of demonstrating why a lower rate should be awarded.”
Gautreaux, 491 F.3d at 659-60 (quotation marks omitted). In the absence of
“evidence of the attorneys’ actual market rates,” the Court properly considers as
“next-best evidence” the “rates awarded to similarly experienced . . . attorneys [from
the same city] in other civil-rights cases in the district.” Montanez v. Simon, 755
F.3d 547, 554 (7th Cir. 2014) (quotation marks omitted). “[T]here is a strong
presumption that the lodestar figure is reasonable.” Perdue, 559 U.S. at 554. That
presumption can be overcome only “in those rare circumstances in which the
lodestar does not adequately take into account a factor that may properly be
considered in determining a fee.” Id.
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Analysis
I.
Fees
A.
Rates
The parties’ positions on the appropriate rates for Plaintiff’s counsel and
paralegals are as follows:
Attorney Name
Arthur Loevy
Michael Kanovitz
Jon Loevy
Dan Twetten
Joel Feldman
Elizabeth Wang
Anand Swaminathan
Steven Art
Frank Newell
Cindy Tsai
Julie Goodwin
Sarah Grady
Tom Kayes
Sladjana Vuckovic
Sean Goodwin
Sam Heppell
Tim Eavenson
Paralegal Name
Mort Smith
Melinda Ek
Sarah Pfander
John Darrah
Tatiana Swancy
Kelsey Lutz
Blake Bunting
Andy Thayer
Melissa Stein
Anne Gottschalk
Caroline Hirst
Lisa Avila
Plaintiff’s
Claim
$600
$550
$550
$450
$415
$400
$400
$375
$375
$375
$375
$315
$300
$275
$275
$250
$250
CHC/HPL’s
Position
$425
$400
$450
$300
$300
$285
$285
$225
$225
$225
$220
$215
$215
$205
$205
$200
$200
$150
$150
$125
$125
$125
$125
$125
$125
$125
$125
$125
$125
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
$100
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See R. 605-1.
In a case that CHC/HPL concedes “addressed similar issues [and] was of
similar complexity,” Judge Holderman found that attorneys from Plaintiff’s
counsel’s firm (including several of the attorneys in this case) met their burden of
establishing the market rate for their services, based on evidence substantially
similar to the evidence submitted in support of Plaintiff’s petition in this case.
Judge Holderman reasoned as follows:
A court should consider the following factors when setting
a reasonable hourly rate:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to
perform the legal service properly; (4) the
preclusion of employment by the attorney due to
acceptance of the case; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the
circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the “undesirability” of
the case; (11) the nature and length of the
professional relationship with the client; and (12)
awards in similar cases.
Hensley, 461 U.S. at 430 n. 3. “The burden of proving the
‘market rate’ is on the fee applicant; however, once the
attorney provides evidence establishing his market rate,
the burden shifts to the defendant to demonstrate why a
lower rate should be awarded.” Spegon v. Catholic Bishop
of Chi., 175 F.3d 544, 554-55 (7th Cir.1999). Here [the
plaintiff] ha[s] submitted affidavits from each of the
attorneys regarding their billing rates, billing records, an
expert report by Bruce Meckler surveying prevailing
hourly rates in the Chicago area, the Laffey Matrix, and
citations to other cases with comparable hourly rate
awards to the attorneys in question and other comparable
attorneys. Considering the Hensley factors, the court finds
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that Fox has amply met his burden of demonstrating that
the requested hourly rates are appropriate.
Fox v. Barnes, 2013 WL 4401802, at *2-3 (N.D. Ill. Aug. 15, 2013). 1 With one
exception, Judge Holderman’s reasoning applies equally to this case, such that
Plaintiff has met her burden to establish the market rate for her counsel’s services.
The exception is Plaintiff’s request for an hourly rate of $600 for Arthur
Loevy. This rate is $50 an hour greater than that for Jon Loevy and Michael
Kanovitz, who are considered to be in the “top tier of civil rights trial attorneys in
the Chicago area.” Jimenez v. City of Chicago, 2012 WL 5512266, at *2 (N.D. Ill.
Nov. 14, 2012). Arthur Loevy’s additional years of experience as compared to Jon
Loevy and Kanovitz appear to be the sole basis for requesting an additional $50 per
hour. However, at this level of expertise, an attorney’s number of years of
experience is largely irrelevant. The Court will limit the “top tier” rate to $550 per
hour.
CHC/HPL makes several arguments in attempt to rebut Plaintiff’s evidence
supporting the hourly rates sought. First, CHC/HPL argues lower rates should be
The Laffey matrix is a table of hourly rates prepared by the United States
Attorney’s Office in the District of Columbia for attorneys in the Washington, D.C.
area. The Seventh Circuit has not explicitly endorsed the use of the Laffey matrix,
and has “expressed some skepticism about applying the Laffey Matrix outside of
Washington, D.C.” Montanez v. Simon, 755 F.3d 547, 554 (7th Cir. 2014).
Nevertheless, the Seventh Circuit has “left it to trial judges to exercise their
discretion in evaluating [the Laffey matrix’s] usefulness in any particular case,” id.,
and courts in this district have accepted it as evidence of a reasonable hourly rate.
See Hadnott v. City of Chicago, 2010 WL 1499473, at *7 (N.D. Ill. Apr. 12, 2010)
(citing cases and concluding “that the Laffey Matrix is ‘satisfactory evidence’ of the
prevailing rate, so that the burden shifts to opposing counsel to show why a lower
rate is essential”).
1
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awarded based on a number of other fee awards in similar cases in this jurisdiction.
See R. 625 at 9-10 (citing Weyker v. Quiles, 2015 WL 5177970 (E.D. Wis. Sept. 4,
2015) ($500 per hour); Smith v. Altman, 2015 WL 5675376 (N.D. Ill. Sept. 21, 2015)
(counsel with 24 years of experience awarded $425 per hour); id. (counsel with 17
years of experience awarded $350 per hour); Golden v. World Sec Agency Inc., 2014
WL 37829 (N.D. Ill. Jan. 6, 2014) (counsel with 20 years of experience awarded $425
per hour); Degorski v. Wilson, 2014 WL6704561 (N.D. Ill. Nov. 26, 2014) (counsel
with 15 years of experience awarded $450 per hour); Jimenez, 2012 WL 5512266
(Jon Loevy awarded $495 per hour; Michael Kanovitz awarded $450 per hour;
Arthur Loevy awarded $425 per hour; Joel Feldman awarded $325 per hour; Steve
Art awarded $225 per hour)). But CHC/HPL concedes that attorneys from Plaintiff’s
counsel’s firm have been awarded higher hourly rates. See R. 625 at 9. And Plaintiff
cites a number of civil rights cases from this district which awarded higher fees. See
R. 614-1 at 10 (citing Delgado v. Mak, 2009 WL 211862 (N.D. Ill. Jan. 29, 2009)
($525 per hour); Foltin v. Ugarte, 09 C 5237, Dkt. Nos. 144 & 165 (N.D. Ill. 2012)
($535 per hour); Flanagan v. Cook County, 2009 WL 3156716, *9 (N.D. Ill. Sep. 28,
2009) ($500 per hour)). Taken as a whole, these past awards do not serve to rebut
Plaintiff’s requested hourly rates.
CHC/HPL also cites ALM Legal Intelligence’s Survey of Law Firm Economics
in support of the lower rates they suggest. This survey collected data in 2013 and
does not break out data for civil rights attorneys in particular. The Court agrees
with Plaintiff that the data for employment law attorneys is the closest analogy.
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The survey shows a range of $355 to $481 per hour for attorneys at the partner
level, and $265 to $372 per hour for associates, in the area of employment law. See
R. 625-2 at 164. Taking into account inflation from 2013 when this survey was
conducted, this data does not serve to rebut Plaintiff’s requested hourly rates.
Lastly, CHC/HPL argues in passing that “attorney years of experience should
be considered as of 2012-2014, when the majority of activity occurred, rather than
presently in 2016 when only minimal fee petition work has occurred.” R. 625 at 10
n.6. Defendants cite no authority for this argument, and it is contrary to Seventh
Circuit law. See Mathur v. Bd. of Trustees of S. Ill. Univ., 317 F.3d 738, 744-45 (7th
Cir. 2003) (“We have allowed district courts to use either current rates or past rates
with interest when calculating the lodestar amount, because either method provides
an adjustment for delay in payment which is . . . an appropriate factor in the
determination of what constitutes a reasonable attorney’s fee[.]”); Pickett v.
Sheridan Health Care Ctr., 813 F.3d 640, 647 (7th Cir. 2016).
Plaintiff also seeks fees for the work of ten paralegals at $125 per hour, and
two at $150 per hour. CHC/HPL argues for a rate of $100 per hour. The case law
CHC/HPL cites, however, is somewhat outdated. Moreover, these cases hold that
rates lower than Plaintiff’s counsel’s requested rates are reasonable, not that higher
rates are unreasonable. See R. 625 at 14. Courts in this district have awarded a
$125 per hour rate to Plaintiff’s counsel’s paralegals. See Fields v. City of Chicago,
2018 WL 253716, at *5 (N.D. Ill. Jan. 1, 2018); Jimenez, 2012 WL 5512266, at *5.
The Court will do so here as well, thus decreasing the rate for two of the paralegals.
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For these reasons, the Court awards Plaintiff her requested fee rates, with
the exceptions noted above.
B.
Hours
In addition to arguing that Plaintiff’s counsel’s hourly rates should be
decreased, CHC/HPL make a number of arguments that the Court should decrease
the number of hours for which Plaintiff’s counsel should be awarded fees. For the
following reasons, the Court rejects these arguments.
1.
Work Related to Other Defendants
The parties agree that Plaintiff’s counsel should not be awarded fees for work
related solely to the claims against the County Defendants who settled earlier in
the case. Plaintiff identifies 80.35 hours that meet this description, but CHC/HPL
argues that this “allocation of 80.35 hours cannot possibly account for the years of
litigation of separate and distinct claims against the other Defendants.” R. 625 at
18. CHC/HPL challenges a number of line items as unrelated to the claims against
them. As Plaintiff points out, however, Plaintiff’s counsel have already excluded
many of those line items from their fee request. The Court has reviewed the
remaining line items and finds they are sufficiently related to claims against
CHC/HPL that their inclusion in Plaintiff’s fee award is justified.
CHC/HPL appears to seek exclusion of any line item that expressly mentions
the County or trial work. But express mention of the County does not make a task
any less related to the case as a whole than any other task identified in a line item
that CHC/HPL has not sought to exclude. The Supreme Court has held the hours
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spent pursuing an unsuccessful claim should be excluded from a fee award only if
the claim “is distinct in all respects from [the plaintiff’s] successful claims.” Hensley,
461 U.S. at 440. “[W]hen time is spent jointly preparing two distinct claims, the fact
that one claim produces no recovery will not deprive the plaintiff of every hour
spent in joint preparation.” Nanetti v. Univ. of Ill. at Chi., 944 F.2d 1416, 1419 (7th
Cir. 1991).
Contrary to CHC/HPL’s argument, the claims in this case against the County
and its employees, and CHC/HPL and its employees, are not distinct. Although
Plaintiff brought a number of claims against a number of defendants, all the claims
in this case arose out of actions by County and CHC/HPL employees regarding
Awalt’s detention, health, and death, in accordance with, or violation of, County and
CHC/HPL policies. Indeed, Plaintiff alleged that Awalt’s death was the result of
County employees following policies set by CHC/HPL. Due to the regular
interaction of all defendants in connection with Awalt’s death, it makes sense that
almost all of Plaintiff’s counsel’s work would have served to advance claims against
all defendants.
CHC/HPL’s request to exclude Plaintiff’s counsel’s time spent preparing for
Dr. Cullinen’s trial is a case in point. CHC/HPL apparently believes this time
should be excluded from the award because the claims against it were not at issue
during the trial. But the trial was of Dr. Cullinen, who was a CHC/HPL employee.
Moreover, as Plaintiff points out, the Court did not bifurcate the trial because the
claims were distinct. Rather, the trial was bifurcated so as not to prejudice Dr.
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Cullinen. All the evidence in Dr. Cullinen’s trial (and by extension the work to
present that evidence) would have been relevant to the trial of CHC/HPL, which
was to be heard and decided by the same jury. Thus, although the claims against
CHC/HPL were not to be decided during the first trial, the attorney work to present
the evidence in Dr. Cullinen’s trial is indisputably relevant to the claims against
CHC/HPL.
2.
Number of Counsel at Trial
CHC/HPL also argues that Plaintiff’s counsel over-staffed Dr. Cullinan’s
trial, in that that CHC/HPL “had three attorneys who conducted the [trial] against
Dr. Cullinan,” whereas Plaintiff had “six or more counsel and paralegals who
prepared and attended the trial.” R. 625 at 21. This is inaccurate. The trial
transcripts reflect that five attorneys attended trial for Plaintiff, while four
attended trial for CHC/HPL. One attorney is an immaterial difference and is not a
justification for decreasing the hours included in Plaintiff’s counsel’s award.
3.
Inadequate Billing Entries
CHC/HPL argues that hundreds of Plaintiff’s counsel’s billing entries are
either vague or constitute impermissible “block billing” of multiple activities,
“making it impossible to discern the time spent on any specific activity.” R. 625 at
17. CHC/HPL, however, does not explain how any particular billing entry is vague
or problematically imprecise.
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Regarding vagueness, CHC/HPL makes no argument about why it found any
particular billing entry to be unclear. The Court has reviewed the billing entries
CHC/HPL cites, and the Court does not find them to be vague.
Block billing can be problematic if it prevents a party or the Court from being
able to determine whether the amount of time spent on a particular task is
reasonable. CHC/HPL, however, does not argue that Plaintiff’s counsel spent an
unreasonable amount of time on any particular task or the case in general. Rather,
CHC/HPL argues that block billing prevents “[t]he Court [from being able to]
determine from those entries the time spent on activities related to claims against
other Defendants.” R. 625 at 17. But CHC/HPL has not articulated a clear principle
by which to distinguish work that applied only to the claims against it as opposed to
other defendants. And it has not identified any particular billing entry as including
work that should not be attributed to the claims against it. This is unsurprising
since, as discussed, the claims against CHC/HPL and the other defendants are so
intertwined that the vast majority of the litigation work was relevant to all
defendants. For that reason, block billing (to the extent Plaintiff’s counsel employed
it) does not pose the problem it might in a different case with more distinct claims.
The Court will not reduce Plaintiff’s counsel’s fee award on this basis.
4.
Relative Culpability
CHC/HPL also contends that the hours that are properly attributed to
CHC/HPL “should be reduced to a reasonable amount, based on a relative
culpability basis.” R. 625 at 20. CHC/HPL’s argument for a “relative culpability”
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reduction is not supported by the cases it cites. In Volling v. Antioch Rescue Squad,
the court made an assessment of relative culpability to assess fees against certain
defendants who had settled while claims against co-defendants continued. 2014
U.S. Dist. LEXIS 51363 (N.D. Ill. Dec. 4, 2012). The fee allocation was an interim
decision until the liability of all the defendants was determined.
In Harvey v. Mohammed, the court set-off a fee award based on prior
settlements. 951 F. Supp. 2d 47 (D.D.C. 2013). CHC/HPL, however, waived this
option in their settlement agreement. And CHC/HPL does not request a set-off on
this motion.
CHC/HPL also argues that “regardless of whether the [C]ounty Defendants
were jointly and severally liable [for Plaintiff’s claims], fees for time spent against
all of the Defendant collectively [should] be divided equally among them.” R. 625 at
24 (citing Halderman v. Pennhurst State Sch. & Hosp., 725 F. Supp. 861 (E.D. Pa.
1989)). Generally, co-defendants who are jointly and severally liable for a civil
rights violation are jointly and severally responsible for payment of attorney’s fees
under Section 1988. See Robinson v. City of Harvey, 617 F.3d 915, 917 (7th Cir.
2010) (“[W]hen multiple defendants are jointly and severally liable for an award of
damages, they are also jointly and severally liable for attorneys’ fees under §
1988.”). The Seventh Circuit has also held, however, that “it may be appropriate for
the district court to apportion fees between an active instigator of a wrong and more
passive codefendant who had a more peripheral or ministerial role in the wrong.”
Herbst v. Ryan, 90 F.3d 1300, 1305 (7th Cir. 1996) (citing Council for Periodical
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Distributors Assocs. v. Evans, 827 F.2d 1483, 1487 (11th Cir. 1987)). But CHC/HPL
makes no such argument. Rather, CHC/HPL merely divides liability equally among
all the defendants during the time periods preceding their settlements. See R. 625
at 20. This is not what the Seventh Circuit has contemplated, and it strikes the
Court as highly inequitable. Moreover, the Court does not perceive CHC/HPL as
having a “peripheral or ministerial role” in this case. To the contrary, the
procedures for providing medication and physician visits to inmates at the Jail were
central to Plaintiff’s allegations. Therefore, the Court rejects CHC/HPL’s request to
apportion fees.
5.
Relevance of Prior Settlements and
Representations to Probate Court
Lastly, CHC/HPL argues that Plaintiff’s counsel made representations
regarding fees in a settlement with the County, and to the probate court in seeking
approval of settlements with Dr. Cullinan and Nurse Clauson, that undermine their
contention that the fees they seek by this petition are reasonable. Defendants point
out that Plaintiff’s counsel agreed that $250,000 is attributable to fees and costs in
their settlement with the County, and that they represented that $720,000 in fees
and $334,740.31 in costs was “reasonable” in seeking approval of settlements from
the probate court. Of course, these representations were made in the context of the
particular agreements and proceedings at issue. More importantly, neither was a
representation that the amounts constituted the entirety of Plaintiff’s counsel’s fees
and costs. For these reasons, these representations are irrelevant to the instant
inquiry.
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C.
Fee Totals
Plaintiff’s counsel seeks fees in the amount of $3,187,175. The Court has
decreased the rate for attorney Arthur Loevy from $600 per hour to $550 per hour.
Arthur Loevy billed 178 hours in this case. Multiplying $550 per hour by 178 hours
results in a total of $97,900, which is $8,900 less than Plaintiff’s counsel’s request.
The Court also has decreased the rate for paralegals Mort Smith and Melinda
Ek from $150 to $125 per hour. Smith and Ek billed a combined total of 225 hours
in this case. Multiplying $125 per hour by 225 hours results in a total of $28,125,
which is $5,625 less than Plaintiff’s counsel’s request.
The Court’s order decreased Plaintiff’s counsel’s fee award by a total of
$14,525. Therefore, the Court awards Plaintiff’s counsel fees in the amount of
$3,172,650.
II.
Expenses
A.
Expert Witnesses
Plaintiff seeks an expense award including fees paid to expert witnesses. In
1991, the Supreme Court held that whether expert fees are recoverable in a case
brought pursuant to Section 1988 is covered by the statutory text, and at that time
the statute did not provide for recovery of such expenses. See W.V. Univ. Hosps.,
Inc. v. Casey, 499 U.S. 83, 86-87, 101 (1991). Shortly thereafter, Congress amended
the statute to provide for recovery of expert fees, but only in cases brought pursuant
to Section 1981 or 1981a, not cases brought pursuant to Section 1983. See 42 U.S.C.
§ 1988(c) (“In awarding an attorney’s fee under subsection (b) of this section in any
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action or proceeding to enforce a provision of section 1981 or 1981a of this title, the
court may include expert fees as part of the attorney’s fee.”). Other courts in this
district and around the country have recognized that the statute controls what
expenses are recoverable, and have held that expert fees are not recoverable in a
Section 1983 case. See Thorncreek Apartments I, LLC v. Village of Park Forest, 2016
WL 4503559, at *11 (N.D. Ill. Aug. 2016); Fields, 2018 WL 253716, at *11
(describing this as “an unfortunate gap”).
Plaintiff cites several cases in which courts in this district have awarded
expert fees as expenses under Section 1988. See R. 636-1 at 24. Those cases,
however, did not address Congress’s failure to include Section 1983 claims in the
scope of the statute. Plaintiff argues that “fundamental principles governing fee
shifting support reimbursement of expert witness fees.” Id. But any such principle
is superseded by the Supreme Court’s decision that the statute controls what
expenses are recoverable under Section 1988. The Court finds that Section 1988
does not permit recovery of expert fees in a Section 1983 case, and so will not award
them here. By the Court’s count, the expenses associated with experts to which
CHC/HPL has objected total $271,392.10. This amount is subtracted from the
award.
B.
Other Expenses
Plaintiff’s counsel has submitted a 20-page spreadsheet listing their expenses
and hundreds of page of receipts as justification. CHC/HPL makes both categorical
and particular objections to Plaintiff’s counsel’s expense requests. CHC/HPL also
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argues that Plaintiff’s counsel has failed to sufficiently justify many expenses such
that it is not possible to determine whether they were reasonably incurred. The
Court reviewed each objected to expense line item, and will address CHC/HPL’s
objections in turn.
1.
Copying
CHC/HPL objects to the inclusion of copying expenses in the award petition.
By the Court’s count this totals $17,661.71. This is a reasonable amount for copying
in a case spanning over five years, and there is no obligation to justify copying costs
on a document-by-document basis. See Nat’l Org. for Women, Inc. v. Schneidler, 750
F.3d 696, 698 (7th Cir. 2014) (“Having a lawyer devote the time necessary to
demonstrate the necessity of . . . every copy of a document would be far more costly
than the copying itself.”). Thus, the Court will not exclude this amount from the
award.
2.
Court Reporters
CHC/HPL also objects to expenses for canceled depositions on August 28 and
29, 2012, and March 25 and 27, 2013. These are reasonably incurred litigation
expenses, which the Court includes in the award. The Court, however, excludes the
expense for an expedited deposition transcript invoiced on May 20, 2013, as no
justification for the expense to expedite was provided.
3.
Mailing & Travel
CHC/HPL’s remaining objections are primarily to mailing and travel
expenses. CHC/HPL objects that Plaintiff’s counsel has failed to explain the purpose
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of many of the mailing charges. But mailing of documents and other materials is
inherently necessary for prosecution of a case. And like the Seventh Circuit held
with regard to copying, the Court finds it unreasonable to require counsel to record
the purpose of every package sent in the course of a litigation.
However, the Court notes that Plaintiff’s counsel’s petition includes many
charges for next day mail or delivery service, without justification for this additional
cost. Of course, the Local Rules for this district require next day delivery of courtesy
copies, so use of next day or messenger service is justified for such deliveries. 2 But
without an analogous justification for other instances of use of next day delivery
service, the Court will not award those expenses.
Contrary to CHC/HPL’s argument, the expense of local travel (including by
taxi) is recoverable when reasonable. See Fields, 2018 WL 253716, at *11. The cost
of gasoline, parking, and airfare is similarly compensable if sufficiently justified.
Some of Plaintiff’s counsel’s travel expenses were sufficiently justified to enable the
Court to determine that they were reasonable. For instance the cost of parking to
attend status hearings on April 4, 2012, and May 22, 2012; and the parking and car
rental expenses for defendant Robert Matteson’s deposition on January 30 and
February 1, 2013. There is a basis for the Court to find these expenses were
reasonably made because the documentation provided explains their purpose. Thus,
the Court has included such expenses in the award.
Review of this fee petition has led the Court to amend its case procedures (as
posted its website) to prohibit the expense of next day delivery or messenger
delivery of courtesy copies going forward.
2
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For many other claimed expenses, however, Plaintiff’s counsel failed to
provide similar information. For many expense items, the only information provided
is a date and a notation attributing the expense to the “Awalt” case. The notation
associating an expense with this case is not helpful to the Court in determining
whether the expense is reasonable. Clearly, Plaintiff’s counsel believes all these
expenses were necessary to prosecute the case, otherwise they would not have
included them in their petition. Similarly unhelpful is the date, because the Court
does not have a calendar of events—such as depositions and witness interviews—
that would allow the Court to verify that an expense is reasonable.
All that being said, it would be unreasonable and unjust to deny Plaintiff’s
counsel the entirety of their travel and other expenses for a case that lasted more
than five years. There is no doubt that in that time counsel traveled to numerous
events necessary to prosecute the case. The documentation submitted with the
petition, including affidavits from Plaintiff’s counsel and their staff, is sufficient to
justify some award of expenses.
By the Court’s count, the objected-to expenses for mailings, travel, and other
incidental expenses which the Court finds are insufficiently supported according to
the reasoning discussed above total $29,689.68. Because the Court finds that some
award of such expenses is reasonable and justified, the Court will award one third,
or $9,896.56 of this amount, subtracting the other two-thirds, or $19,793.12, from
the award..
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C.
Expense Totals
Plaintiff’s counsel seek an amended expense award of $397,662.94. The Court
has held that $271,392.10 in expert expenses are not compensable. The Court also
has held that $19,793.12 in other expenses are also not compensable. Therefore, the
Court awards Plaintiff’s counsel a total of $106,477.72 in expenses.
Conclusion
For the foregoing reasons, the Court awards Plaintiff’s counsel a total of
$3,172,650.00 in fees, and $106,477.72 in expenses, for a grand total award of
$3,279,127.72.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: May 23, 2018
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