Gracia v. Sigmatron International, Inc.
Filing
296
MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang on 11/23/2016: For the reasons stated in the Opinion, the attorney's fees and expenses motion 280 is granted in part and denied in part, and the defense motion to maintain se al 281 is denied. As explained in the Opinion, Plaintiff's recalculation filing (using the approved hourly rates) is due by 12/07/2016, and the defense objections (if there are any new ones specific to the recalculation, with prior objections being preserved) is due by 12/19/2016. Now that the fee petition has been decided, the parties might want to use this final opportunity to try settling all issues. Emailed notice(Chang, Edmond)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARIA N. GRACIA,
Plaintiff,
v.
SIGMATRON INTERNATIONAL, INC.,
Defendant.
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No. 11 C 07604
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Maria Gracia filed this lawsuit against her former employer, SigmaTron
International, Inc., alleging workplace harassment and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1 See R. 1, Compl.2
On December 18, 2014, after a three-day trial, a jury returned a verdict for Gracia
on her retaliation claim. R. 184, 12/18/14 Minute Entry. Gracia now moves under
Federal Rule of Civil Procedure 54(d) for reasonable attorneys’ fees and costs as
permitted by Title VII and 28 U.S.C. § 1920. See R. 280, Pl.’s Fee Mot.; see also 42
U.S.C. § 2000e-5(k). SigmaTron in turn seeks to keep specified portions of Gracia’s
motion under seal. See R. 281, Def.’s Mot. to Seal. For the reasons stated below,
Gracia’s motion for attorneys’ fees and costs is granted in part and denied in part,
and SigmaTron’s motion to maintain the seal is denied.
1This
Court has subject matter jurisdiction over the case under 28 U.S.C. § 1331.
The judgment is on appeal, but this Court still has jurisdiction to decide collateral nonmerits issues, such as attorney’s fees and costs.
2Citations to the record are noted as “R.” followed by the docket number and, when
necessary, the page or paragraph number.
I. Background
The Court has previously detailed the facts of this case in its summary
judgment opinion, R. 87, 10/25/13 Opinion, and its post-trial opinions, R. 204,
4/21/15 Opinion; R. 222, 9/17/15 Opinion, so only the most pertinent facts are set
forth here.
Gracia worked for SigmaTron from 1999 to 2008. In late 2008, Gracia told
SigmaTron and the Equal Employment Opportunity Commission that she was
being harassed by her immediate supervisor. Shortly after she complained,
SigmaTron fired Gracia, and in October 2011, Gracia filed this lawsuit, alleging
workplace discrimination and hostile work environment on the basis of gender and
national origin (Count One) and retaliation (Count Two) in violation of Title VII.
See Compl.
Following three years of litigation and a three-day trial, a jury returned a
verdict for Gracia on her retaliation claim.3 12/18/14 Minute Entry. The jury
awarded Gracia $57,000 in compensatory damages and $250,000 in punitive
damages. Id. SigmaTron thereafter moved for a new trial, judgment as a matter of
law, and remittitur of the damages award. See R. 196. The Court denied
SigmaTron’s motions for judgment as a matter of law and a new trial, but granted
SigmaTron’s motion for remittitur only to lower the compensatory damages award
to $50,000 so that the overall damages award would not exceed the statutory cap of
3The
jury returned a verdict for SigmaTron on Gracia’s sexual-harassment claim.
12/18/14 Minute Entry. Before the jury trial, the Court dismissed Gracia’s national-origin
harassment claim on summary judgment, so that claim was not tried to the jury. See
10/25/13 Opinion.
2
$300,000, see 42 U.S.C. § 1981a(b)(3)(D). See 4/21/15 Opinion. The Court later
determined that Gracia was also entitled to $74,478.14 in equitable damages. See
9/17/15 Opinion. Final judgment—in the amount of $374,478.14—was entered on
September 17, 2015, see R. 223, and SigmaTron timely appealed to the Seventh
Circuit,4 R. 228.
Gracia has since filed a bill of costs and a motion for attorneys’ fees and costs
pursuant to Federal Rule of Civil Procedure 54(d), 28 U.S.C. § 1920, and 42 U.S.C.
§ 2000e-5(k). See Pl.’s Fee Mot.; R. 233, Bill of Costs; R. 286-2, Am. Bill of Costs.
Gracia seeks $262,500.00 in attorneys’ fees, $5,574.97 in non-taxable expenses, and
$7,216.245 in taxable costs. See Pl.’s Fee Mot. at 1; Am. Bill of Costs. SigmaTron in
turn has objected to the bulk of the costs that Gracia seeks, as well as to the hourly
rate requested for Gracia’s attorneys, see R. 266, Def.’s Obj. to Bill of Costs; R. 285,
Def.’s Fee Mot. Resp., and has filed a motion to keep certain information in Gracia’s
fee motion under seal, Def.’s Mot. to Seal.
II. Legal Standard
Under 42 U.S.C. § 2000e-5(k), “the court, in its discretion, may allow the
prevailing party [in a Title VII action] . . . a reasonable attorney’s fee (including
expert fees) as part of the costs.” Federal Rule of Civil Procedure 54(d)(1) allows a
4As
noted earlier, the appeal is on the merits of the judgment, so this Court has
jurisdiction to decide the fee petition. See Ray Haluch Gravel Co. v. Cent. Pension Fund of
Int’l Union of Operating Eng’rs, 134 S. Ct. 773, 780 (2014).
5Gracia’s original bill of costs sought $7,276.24. Bill of Costs at 1. Gracia, however,
filed an amended bill of costs in conjunction with her reply brief, R. 286, which reduced the
total by $60.00 to eliminate witness fees that had been charged for two witnesses who had
not testified at trial. R. 286, Pl.’s Reply Br. at 9 n.10; Am. Bill of Costs.
3
prevailing party to recover costs other than attorneys’ fees unless a federal statute,
federal rule, or court order states otherwise.
III. Analysis
Gracia seeks to recover $262,500.00 in attorneys’ fees, $5,574.97 in nontaxable costs, and $7,216.24 in taxable costs from SigmaTron.6 See Pl.’s Fee Mot. at
1; Am. Bill of Costs. With regard to attorneys’ fees, SigmaTron agrees that the
hours billed by Gracia’s attorneys, Kathryn Korn and Hall Adams, were reasonable.
See R.280-1, 12/4/15 Letter from SigmaTron at 1 (“In the spirit of Local Rule 54.3,
SigmaTron will not object to the number of hours Plaintiff is seeking for Hall
Adams’s time . . . or to the number of hours Plaintiff is seeking for Kathryn Korn’s
time . . . .”). SigmaTron objects, however, to the hourly rate that Gracia seeks for
both Korn and Adams. See Def.’s Fee Mot. Resp. With regard to costs, SigmaTron
claims that (1) the taxable expenses sought via the bill of costs cannot be recovered
because the bill of costs was not accompanied by an affidavit or any substantiating
documentation, see Def.’s Obj. to Bill of Costs; Def.’s Fee Mot. Resp. at 14-15, and (2)
the majority of the non-taxable expenses sought cannot be recovered because they
should have been included in the bill of costs or were not reasonable or necessary,
see Def.’s Fee Mot. Resp. at 12-14. SigmaTron also seeks to keep portions of Gracia’s
6These
fees and costs represent Gracia’s attorneys’ work through September 30,
2015. See Pl.’s Fee Mot. at 8. Gracia’s motion indicates that she would also like to pursue
the recovery of fees and costs incurred after that date. See id. Gracia should abide by Local
Rule 54.3 and confer with SigmaTron. The parties should attempt in good faith to agree
upon the fees and expenses that should be awarded. See L.R. 54.3(d). If the parties are
unable to reach an agreement, Gracia may then file a motion for additional fees and costs.
Any new motion should include an estimate for all future attorneys’ fees and costs so as to
avoid needlessly prolonging this litigation.
4
fee motion sealed—in particular, all references to the number of Howard & Howard
attorneys that represented SigmaTron, the Howard & Howard attorneys’ hourly
rates, and the total amount of attorneys’ fees SigmaTron paid Howard & Howard
for its defense. See Def.’s Mot. to Seal at 2-3. The Court addresses each of
SigmaTron’s objections, as well as SigmaTron’s motion to maintain the seal, in turn.
A. Hourly Rate
To determine a reasonable attorney’s fee, district courts use the lodestar
method, “multiplying the ‘number of hours reasonably expended on the litigation
. . . by a reasonable hourly rate.’” Pickett v. Sheridan Health Care Ctr., 664 F.3d
632, 639 (7th Cir. 2011) (Pickett II) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). Here, SigmaTron does not object to the time billed by Gracia’s attorneys, see
12/4/15 Letter from SigmaTron at 1, so the Court need only determine what
constitutes a reasonable hourly rate for both Korn and Adams. “A reasonable hourly
rate is based on the local market rate for the attorney’s services.” Montanez v.
Simon, 755 F.3d 547, 553 (7th Cir. 2014). To figure out the market rate, there is
ideal evidence and (absent the ideal evidence) next-best evidence:
The best evidence of the market rate is the amount the attorney actually bills
for similar work, but if that rate can’t be determined, then the district court
may rely on evidence of rates charged by similarly experienced attorneys in
the community and evidence of rates set for the attorney in similar cases.
Id. As between the two “next-best” alternatives, the Seventh Circuit has “indicated
a preference for third party affidavits that attest to the billing rates of comparable
attorneys.” Pickett II, 664 F.3d at 640. That said, “conclusory affidavits from
attorneys ‘merely opin[ing]’ on the reasonableness of another attorney’s fee—unlike
5
affidavits describing what ‘comparable attorneys charge for similar services’—have
little probative value.” Montanez, 755 F.3d at 554 (quoting Pickett II, 664 F.3d at
647).
The party seeking the fee award bears the burden of establishing the market
rate for their attorneys’ services. Montanez, 755 F.3d at 553. Should the party fail to
carry that burden, the Court can independently determine the appropriate hourly
rate. Id. Once the party seeking the award has met their burden, however, the
opposing party has the burden of demonstrating why a lower rate should be
awarded. People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d
1307, 1313 (7th Cir. 1996). That said, if the Court “decides that [a] proffered rate
overstates the value of an attorney’s services, it may lower [the rate] accordingly.”
Mathur v. Bd. of Trs. of S. Ill. Univ., 317 F.3d 738, 743 (7th Cir. 2003); see
Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 767 (7th Cir. 1982) (“A judge may well
approach high rates with skepticism, and he may exercise some discretion in
lowering such rates.”).
1. Hall Adams
Gracia asks the Court to award Adams a billing rate of $500 per hour in this
matter. See Pl.’s Fee Mot. at 3. In support of this request, Gracia has supplied
billing records from another case in which Adams billed a different client $500 per
hour. R. 280-5 at Exh. A, Hall Adams’s Invoices. Although it is true that the
invoices do not explicitly say what type of case these bills are for, see Def.’s Fee Mot.
Resp. at 10-11, the descriptions of the services rendered prove that it is a civil
6
litigation matter and that Adams billed this client for his services as a litigator. See
R. 280-5 at Exh. A, Hall Adams’s Invoices at 6, 8, 12, 14, 16, 18, 20 (referencing
work preparing a complaint and a motion for summary judgment, responding to a
motion for summary judgment, reviewing a Seventh Circuit employment-law case,
and attending status hearings). What’s more, some of the billing entries show that
the subject matter is employment related: Adams billed time to the client to review
a Seventh Circuit employment-law case, Hess v. Bresney, 784 F.3d 1154 (7th Cir.
2015), and to hold a telephone conference and correspond about resignation
agreements. R. 280-5 at Exh. A, Hall Adams’s Invoices at 18, 27 (“[t]elecom/corresp .
. . re Resignation Agreements”). These records show that the other civil case for
which Adams actually billed $500 per hour is similar enough legal work—
employment litigation—to be helpful in supporting Adams’s proposed market rate
for the instant case.
Gracia has also supplied declarations from three experienced attorneys in
practice in the Chicago legal community: Robert Cummins, Myron Cherry, and
Lawrence Kipperman. See R. 280-3 at Exh. F, Cummins Dec.; R. 280-3 at Exh. H,
Kipperman Dec.; R. 287-1, Cherry Dec. The strength of these declarations vary. The
Cummins Declaration has little probative value; it states in a conclusory fashion
that a rate of $500 per hour is reasonable and consistent with market rates for
similarly experienced attorneys performing comparable work, see R. 280-3 at Exh.
F, Cummins Dec. ¶ 6, but does not substantiate this opinion with any information—
such as an hourly rate charged by Cummins for similar work—that would make his
7
opinion on the matter particularly helpful. The Cherry and Kipperman
Declarations, however, are probative “next-best” evidence. Both Cherry and
Kipperman are experienced employment lawyers. See Cherry Dec. ¶ 2; Kipperman
Dec. ¶ 3. They each set forth their own rates as evidence of what similarly
experienced attorneys charge for comparable work, and they each provide enough
information about their professional backgrounds such that they can be expected to
have informed opinions on (1) the rates sought within the district for similar work
and (2) the reasonableness of the specific rate sought for Adams’s services. See
Cherry Dec. ¶¶ 2, 4-7, 9; Kipperman Dec. ¶¶ 3-8. Both declarations aver that a rate
of $500 per hour is within the range of rates currently charged by attorneys in
Chicago with similar experience for similar services. See Cherry Dec. ¶ 9;
Kipperman Dec. ¶ 8.
Together, the billing records of an actually paying client and the declarations
satisfy Gracia’s burden: here, there is best evidence and next-best evidence
establishing that the market rate for Adams’s services is $500 per hour. SigmaTron
has not supplied any evidence that undermines the proposed hourly rate, so the
Court awards Adams a billing rate of $500 per hour. Because Adams billed Gracia
for 121.4 hours of work, R. 284-2, Pl.’s Local Rule 54.3(e) Statement at 2, Gracia is
awarded $60,700.00 for Adams’s attorney’s fees.
2. Kathryn Korn
Gracia also asks that the Court award Korn a billing rate of $500 per hour.
See Pl.’s Fee Mot. at 3. Here Gracia, however, has not met her burden. Gracia did
8
not supply “best” evidence proving that Korn has ever billed at or near a rate of
$500 per hour for other similar work. In fact, the only invoices on record—Korn’s
invoices for this very case—undermine Gracia’s assertion that $500 per hour is a
reasonable hourly rate for Korn: Korn billed Gracia at $250 per hour in 2008-2009,
then $300 per hour in 2011, and lastly raised her rate to $500 per hour (a jump of
$200) in 2012. See R. 280-3 at Exh. D, Kathryn Korn’s Invoices. Gracia does not
dispute that Korn’s general billing rate was much lower than $500 per hour in
2008-2011. See Pl.’s Fee Mot. at 7; R. 280-3, 10/22/15 Letter to SigmaTron at 3.
Indeed, a letter authored by Korn and attached to the fee motion shows that Korn
charged at least one other client $250 per hour in 2008, and then raised her rate
“across the board” to $300 per hour in 2011. See 10/22/15 Letter to SigmaTron at 3.
Thus, the best evidence indicates that Korn’s market rate was $250 per hour in
2008-2009, and $300 per hour in 2011. And there is no evidence that a client
actually was charged (and paid) a rate for Korn of $500 per hour in 2012 to 2015.
To be sure, the Cherry and Kipperman Declarations are probative of Korn’s
proposed market rate (as they were for Adams’s proposal). That said, their
evidentiary value is undermined by Korn’s actual past rates. It is not reasonable to
think that the market rate for Korn’s services rose by $200 per hour between 2011
and 2012. Instead, the past history of fee increases (or lack thereof) really supports
a finding that reasonable rate increases would follow the same pattern of historical
increases. Specifically, after 2011, Korn’s hourly rate rose at a pace and in an
amount similar to previous years: given the shift from $250 per hour in 2009 to
9
$300 per hour in 2011, a raise of $50 per hour every two years is reasonable. So, the
Court finds that $350 per hour is a reasonable hourly rate for Korn’s work from
2012-2013, and $400 per hour is a reasonable hourly rate for Korn’s work from
2014-2015.
It is true that this finding means that Korn will receive $100 per hour less
than Adams for services she provided during the same span of time (2014-2015).
The Court notes, however, that—in addition to being consistent with the evidence
discussed above—attributing a lower market rate to Korn is justified by the
attorneys’ disparate litigation and trial experience. Yes, Korn has been a practicing
attorney for longer than Adams, but her résumé demonstrates that she has
considerably less litigation experience than Adams: she has worked on three major
trials, one matter seeking a writ of prohibition, one Seventh Circuit appeal, and
approximately 90 to 180 administrative claims. See R. 280-3 at Exh. B, Korn
Résumé at 16-18 (estimating that a new charge was filed with the EEOC or a state
agency against Korn’s corporate client by an aggrieved employee once a month for
fifteen years); 10/22/15 Letter to SigmaTron (estimating that a new charge was filed
with the EEOC or other agency against Korn’s corporate client by an aggrieved
employee every eight weeks for fifteen years). Adams, on the other hand, has tried
cases to verdict over 100 times, and secured at least 18 settlements. See R. 280-3 at
Exh. A, Adams CV at 10-12. What’s more, a rate of $400 per hour is consistent with
the rates charged by several attorneys from SigmaTron’s Howard & Howard team
who have been practicing law for similarly lengthy periods of time. For example,
10
Tim Riordan—a practicing attorney for 51 years who “has tried scores of bench and
jury trials in state and federal courts in Illinois”—billed $370 to $410 per hour from
2011 to 2015, and Scott Levin—a practicing attorney for 33 years who has
“substantial litigation experience”—billed $405 per hour in 2014. See R. 280-1,
12/14/15 Letter to Gracia at 3; R. 280-1 at Exh. A, Howard & Howard Bios at 10, 14.
Accordingly, awarding Korn a billing rate of $400 for 2014-2015 is reasonable, even
though it is lower than the rate awarded to Adams for the same time period.
To summarize, the Court awards Korn $250 per hour for the work she did in
2008-2009, $300 per hour for the work she did in 2011, $350 per hour for the work
she did in 2012-2013, and $400 per hour for the work she did in 2014-2015, plus
prejudgment interest for fees accrued in 2008-2009 and 2011-2013.7 Gracia is
instructed to calculate the total amount in fees that she is owed for Korn’s
services—using these hourly rates and factoring in prejudgment interest—and to
provide that total to the defense and to the Court. That calculation is due by
December 7, 2016. SigmaTron may respond with any objections to Gracia’s
calculations by December 19, 2016.
7Gracia
asks the Court to award the current market billing rate for the entirety of
Korn’s representation to compensate for the delay in receiving attorneys’ fees. See Pl.’s Fee
Mot. at 7-8. Gracia acknowledges, though, that a court can compensate for delay in
payment by (1) calculating a fee award using the lawyer’s current billing rate for the entire
period of representation or (2) by calculating a fee award using the lawyer’s rate(s) at the
time(s) the lawyer represented the client and adding interest to that amount. See id. at 7;
see also Pickett v. Sheridan Health Care Ctr., 813 F.3d 640, 647 (7th Cir. 2016) (Pickett III).
The Court thinks it more appropriate here—where Gracia has not satisfied her burden of
establishing the current market rate for Korn’s work—to calculate the fee award using
Korn’s historical rates and adding prejudgment interest.
11
B. Taxable Costs
Under 28 U.S.C. § 1920, a federal court may tax as costs: (1) fees of the clerk
and marshal; (2) fees for printed or electronically recorded transcripts necessarily
obtained for use in the case; (3) fees and disbursements for printing and witnesses;
(4) fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case; (5) docket fees under 28
U.S.C. § 1923; and (6) compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special interpretation services
under 28 U.S.C. § 1828. The procedure for seeking costs starts with an under-oath
declaration:
Before any bill of costs is taxed, the party claiming any item of cost or
disbursement shall attach thereto an affidavit, made by himself or his duly
authorized attorney or agent having knowledge of the facts, that such item is
correct and has been necessarily incurred in the case and that the services for
which fees have been charged were actually and necessarily performed.
28 U.S.C. § 1924. The standard form for presenting a bill of costs form is AO 133,
which further instructs those filling out the form to “[a]ttach to [the] bill an
itemization and documentation for requested costs in all categories.” See, e.g., Bill of
Costs; Am. Bill of Costs.
“Taxing costs against a losing party requires two inquiries: (1) whether the
cost imposed on the losing party is recoverable and (2) if so, whether the amount
assessed for that item was reasonable.” Majeske v. City of Chi., 218 F.3d 816, 824
(7th Cir. 2000). “[D]istrict courts enjoy wide discretion in determining and awarding
reasonable costs,” Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co.,
12
924 F.2d 633, 642 (7th Cir. 1991), but “[t]here is a presumption that the prevailing
party will recover costs, and the losing party bears the burden of an affirmative
showing that taxed costs are not appropriate.” Beamon v. Marshall & Ilsley Trust
Co., 411 F.3d 854, 864 (7th Cir. 2005). That said, if the prevailing party does not
adequately provide an itemization or documentation for certain costs, those costs
may be denied. See Montanez, 755 F.3d at 559.
Gracia seeks $350.00 for fees of the clerk, $720.00 for fees for service of
summons and subpoena, $4,251.30 for fees for transcripts, $110.00 for fees for
witnesses, and $1,784.94 for fees for copies. Am. Bill of Costs at 1. SigmaTron
claims that these costs cannot be recovered because Gracia did not attach an
affidavit to the bill of costs or supply any substantiating documentation. See Def.’s
Obj. to Bill of Costs at 2-3; Def.’s Fee Mot. Resp. at 14-15. But the bill-of-costs form
itself—signed and submitted by Korn on behalf of Gracia—certifies that the
requested costs were correct, necessary, and reasonable: “I declare under penalty of
perjury that the foregoing costs are correct and were necessarily incurred in this
action and that the services for which fees have been charged were actually and
necessarily performed.” Am. Bill of Costs at 1. This certification meets the
requirements for an affidavit under 28 U.S.C. § 1924. See Kristofek v. Vill. of Orland
Hills, 2014 WL 7145543, at *2 (N.D. Ill. Dec. 15, 2014); Hecny Transp., Inc. v. Chu,
2005 WL 2347228, at *2 (N.D. Ill. Sept. 23, 2005). Nevertheless, the Court must
determine for itself whether the costs sought are allowable, reasonable, and
necessary.
13
Gracia is awarded the full $350.00 for the filing fee and $110.00 for witness
fees. These costs are statutorily allowable, 28 U.S.C. § 1920(1) and (3), reasonable,
and necessary. Under 28 U.S.C. § 1914(a), parties bringing civil suit are required to
pay a filing fee of $350.00; Gracia paid this fee, R. 4. Under 28 U.S.C. § 1821, a
witness attending federal court is entitled to a fee of $40.00 per day of attendance.
The witnesses for whom Gracia seeks fees each attended one day of trial, see R. 191,
12/17/14 Trial Tr. at 3, and the fees sought do not exceed $40.00 per witness, Am.
Bill of Costs at 2.
Gracia is also awarded $3,967.70 in transcript fees. Money spent to obtain a
copy of a transcript is recoverable, 28 U.S.C. § 1920(2), so long as the transcript was
“necessarily obtained” and the cost of the transcript did not exceed the “regular copy
rate as established by the Judicial Conference of the United States and in effect at
the time the transcript . . . was filed.” L.R. 54.1(b). The current regular copy rate, in
effect since January 26, 2012, is $3.65 per page for original transcripts and $0.90
per page for copies. A prevailing party may also recover fees paid to the court
reporter for his or her attendance, L.R. 54.1(b), but these fees cannot exceed $110.00
for a half day (four hours or less) and $220.00 for a full day. Here, Gracia produced
eight invoices and one check to substantiate her claim for transcript costs. See R.
280-12 at Exh. B, Transcript Invoices. Review of the eight invoices reveals that
Gracia did not pay more than the regular copy rate. She did, however, pay more
than is allowed in attendance fees on three occasions. See R. 280-12 at Exh. B,
Transcript Invoices at 12 (charging $280.00 for a full-day appearance); id. at 13
14
(charging $120.00 for a half-day appearance); id. at 14 (charging $140.00 for a halfday appearance). So Gracia’s award must be reduced by the amount she was
charged in excess of the cap on attendance fees ($100.00 in total). Costs also must
be reduced by what is listed as a $183.60 check payment because the check does not
specify what transcript Gracia paid for or what rates she was charged, see id. at 9,
which leaves the Court unable to determine whether the transcript was reasonably
or necessarily obtained.
Gracia’s request for $720.00 for fees for service of summons and subpoena is
denied. Although those types of costs are ordinarily recoverable, they cannot “exceed
the marshal’s fees, no matter who actually effected service.” Collins v. Gorman, 96
F.3d 1057, 1060 (7th Cir. 1996). A letter attached to Gracia’s fee motion explains
that Gracia’s attorneys spent $620.00 for the service of trial subpoenas and $100.00
for the service of a deposition subpoena. See R. 280-12, 1/5/16 Letter to SigmaTron
at 2. Attached to this letter is an illegible check for $620.00, see R. 280-12 at Exh. A,
Subpoena Check; there is no documentation for the $100.00 expenditure, see 1/15/16
Letter to SigmaTron at 2. The Court cannot determine from the information
provided what rates Gracia was charged for service of any these subpoenas, so
Gracia may not recover any of the $720.00.
Gracia’s request for $1,784.94 in copying fees is also denied. Copying costs
are recoverable so long as the copies were necessarily obtained. 28 U.S.C. § 1920(4).
To prove that copies were necessarily obtained, a party is “not required to submit a
bill of costs containing a description so detailed as to make it impossible
15
economically to recover photocopying costs.” Northbrook Excess, 924 F.2d at 643. A
party is, however, “required to provide the best breakdown obtainable from retained
records.” Id. Here, Gracia has provided invoices, see R. 280-12 at Exh. C,
Photocopying Invoices, but the invoices do not say, even generally, what was copied
or who the copies were provided to, and most do not say what rate was charged. The
Court is thus unable to verify that any of these copy costs were reasonable and
necessary.
All told, then, Gracia is awarded $4,427.70 in taxable costs, as summarized in
this chart:
Expense
Requested
Granted
Fees of the Clerk
$350.00
$350.00
Fees for Witnesses
$110.00
$110.00
($40.00 + $30.00 + $40.00)
Fees for Transcripts
$4,251.30
$3,967.70
($476.20 + $72.90 + $183.60 +
($476.20 + $72.90 + $754.20 +
$754.20 + $655.25 + $903.70 +
$655.25 + [$903.70 - $60.00] +
$373.00 + $574.05 + $258.40)
[$373.00 - $10.00] + [$574.05 $30.00] + $258.40)
Fees for Service of $720.00
Summons and Subpoena ($620.00 + $100.00)
$0
Fees for Copies
$0
$1,784.94
Total Award:
$4,427.70
16
C. Non-Taxable Costs
“‘[E]xpenses of litigation that are distinct from either statutory costs or the
costs of the lawyer’s time reflected in hourly billing rates—expenses for such things
as postage, long distance phone calls, xeroxing, travel, paralegals and expert
witnesses—are part of the reasonable attorney’s fee allowed” to a prevailing party.
See Downes v. Volkswagen of Am., Inc., 41 F.3d 1132, 1144 (7th Cir. 1994) (quoting
Heiar v. Crawford Cnty., 746 F.2d 1190, 1203 (7th Cir. 1984)); see also Henry v.
Webermeier, 738 F.2d 188, 192-93 (7th Cir. 1984).
Separate from the bill of costs, Gracia seeks $4,800.00 for fees paid to Legal
Visual Services for a courtroom technology consultant, $200.00 for cash advanced to
trial witness David Niemi, $167.00 for money spent retrieving records of
SigmaTron’s prior sexual harassment history, $317.95 for fees paid to Marshall
Investigative Services to locate a potential trial witness, $6.70 for Adams’s postage
costs, $6.20 for Adams’s photocopying costs, $6.00 for Adams’s parking costs, and
$71.12 for Korn’s and Adams’s mileage costs. See Pl.’s Fee Mot. at 9-10; R. 280-11,
Non-Taxable Cost Documentation. SigmaTron claims that the majority of these
expenses cannot be recovered because they should have been included in the bill of
costs, and in any event, they were not reasonable or necessary. See Def.’s Fee Mot.
Resp. at 12-14. The Court will discuss each item in turn.
Gracia is awarded $4,800.00 for the services of the courtroom technology
consultant from Legal Visual Services. SigmaTron concedes that this is a
recoverable expense, but argues that $3,500.00 would “be a more appropriate
17
amount.” Def.’s Fee Mot. Resp. at 14. SigmaTron does not, however, explain why it
believes $4,800.00 is too much or why $3,500.00 would be more reasonable. See id.
Korn and Adams did reasonably take advantage of the courtroom’s litigation display
technology, which showed witnesses and jurors the exhibits on monitors (including
touch-screen monitors for the lawyers and witnesses, and monitors for the jurors in
the jury box). Hiring someone to become familiar with how to digitally display the
exhibits is a reasonable expense, although one that should eventually go down in
cost as the bar becomes more familiar with the display technology (and many firms
will be able to do this in-house with a paralegal or another member of the trial
team). In any event, absent further adversarial presentation, the Court cannot say
that $4,800.00 is an unreasonable amount of money for the service provided.
The Court additionally awards Gracia $71.12 in mileage costs. An attorney’s
travel expenses can be recoverable. See Downes, 41 F.3d at 1144. Here, Korn and
Adams supplied billing records and sworn declarations providing explanations for
the mileage charges: (1) on December 12, 2014, Korn drove 54 miles round trip to
meet with Eduardo Trujillo at his home to prepare for his trial testimony, R. 280-4,
Korn Dec. ¶ 3.c.; (2) on December 14, 2014, Korn drove 43 miles round trip to meet
with Michael Murphy at a rest stop to prepare for his trial testimony, id. ¶ 3.d; (3)
on March 19, 2014, Adams drove 30 miles round trip to Korn’s office for his
introductory meeting with Gracia,8 R. 280-5, Adams Dec. ¶ 3.b.; see R. 280-3 at Exh.
8The
March 19, 2014 date appears to be erroneous. Adams’s billing records indicate
that a meeting occurred between him, Gracia, and Korn on March 20, 2014, not March 19,
2014. See R. 280-3 at Exh. C, Adams Invoices at 20. Moreover, the Court’s own notes (the
Court takes contemporaneous notes on a laptop during status hearings) show that Korn
18
C, Adams Invoices at 22. As described, these three trips, as well as the rate charged
($0.56 per mile), were reasonable and necessary.
Gracia’s request to recover the $200.00 that Adams advanced to Niemi is
denied. As previously discussed, under 28 U.S.C. § 1821, a witness attending federal
court is entitled to a fee of $40.00 per day of attendance. Gracia has already
sought—and been granted—$40.00 for Niemi’s trial attendance. See Am. Bill of
Costs at 2; supra Section III.C. Gracia claims that an additional $200.00 advance
was needed to compensate Niemi and his wife for the time they took off work to
attend trial, but does not cite any authority indicating that lost wages—in excess of
the $40.00 statutory fee—are recoverable. Even if that authority existed, Gracia has
not provided enough detail for the Court to figure out whether the $200.00 advance
was necessary and reasonable. For example, Gracia does not say where Niemi and
his wife were employed, what they made per day, or how many hours they were
scheduled to work on the day that Niemi testified.
Gracia’s request to recover the $167.00 paid to retrieve the records of prior
sexual harassment claims against SigmaTron is also denied. Discovery in this case
closed on December 31, 2012, R. 32, though specified and limited document
production was allowed through February 8, 2013, R. 33. The sexual harassment
records were not retrieved until February 26, 2014. See Non-Taxable Cost
Documentation at 4. Although it might very well have been reasonable for Gracia to
search out other employment discrimination claims against SigmaTron during the
informed the Court at a status hearing on March 20, 2014 that she was bringing another
attorney onto the case. Thus, Adams is seeking mileage to and from a meeting that
probably occurred on March 20, not March 19.
19
discovery period, it was not reasonable to do so 14 months after the close of
discovery, when the Court was almost certain to exclude those records from trial as
untimely produced.
In addition, Gracia’s request to recover the $317.95 paid to Marshall
Investigative Services to locate a potential trial witness is denied. Even if Gracia
were justified in keeping the potential witness’s identity secret from SigmaTron at
this stage of the litigation, she was not justified in keeping the witness’s identity
secret from the Court. Gracia could have provided this information ex parte and
under seal. Because she failed to do this, the Court does not have the information it
needs to determine whether this was a necessary or reasonable expense.
Finally, Gracia’s request to recover what Adams paid for postage,
photocopying, and parking is also denied. Gracia has not provided any information
about what Adams mailed or photocopied, or why he billed Gracia for parking, so
the Court cannot determine whether any of these costs were necessary or
reasonable.
Altogether, Gracia is awarded $4,871.12 in non-taxable costs, as summarized
in this chart:
20
Expense
Requested
Granted
Legal
Visual
Services $4,800.00
Technology Consultant
$4,800.00
Attorneys’ Mileage Costs
$71.12
$71.12
($16.80 + $30.24 + $24.08)
Niemi Advance
$200.00
$0
Retrieval of Prior Sexual $167.00
Harassment Records
$0
Marshall
Investigative $317.95
Services’
Location
of
Potential Witness
$0
Adams’s Postage Costs
$6.70
$0
Adams’s Photocopy Costs
$6.20
$0
Adams’s Parking Cost
$6.00
$0
Total Award:
$4,871.12
D. Motion to Maintain the Seal
The last issue to decide is SigmaTron’s request to keep specified portions of
Gracia’s fee motion sealed—in particular, page 4, page 8, Exhibit A, and Exhibit 1
to Exhibit A. According to SigmaTron, this information is “highly sensitive” to both
Howard & Howard and SigmaTron. See Def.’s Mot. to Seal at 2. This information
includes (1) the number of Howard & Howard attorneys that represented
SigmaTron; (2) the Howard & Howard attorneys’ hourly rates; and (3) the fees
SigmaTron has paid Howard & Howard for its defense. See id. at 2-3. The Seventh
Circuit, however, has emphasized “that litigation [should] be conducted in public to
21
the maximum extent consistent with respecting trade secrets, the identities of
undercover agents, and other facts that should be held in confidence,” Hicklin
Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006), abrogated on other grounds
by Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012 (2016); cf. Baxter
Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002), and SigmaTron has not
cited any authority that supports keeping the information it identifies under seal.
For this reason, and because all of those facts do bear on the propriety of Gracia’s
fee request, SigmaTron’s motion to maintain the seal is denied.
IV. Conclusion
For the reasons stated above, Gracia’s motion for fees, R. 280, is granted in
part and denied in part. Gracia is awarded $4,427.70 in taxable costs and $4,871.12
in non-taxable costs. Gracia is awarded attorneys’ fees at a rate of $500 per hour for
Hall Adams, and at rates of $250, $300, $350, and $400 per hour for Kathryn Korn.
Gracia is directed to calculate Korn’s fees—using the hourly rates set out in this
Opinion, and including prejudgment interest for fees earned in 2008-2009 and 20112013—and to file the total with the Court by December 7, 2016. SigmaTron should
respond with any objections to Gracia’s calculations by December 19, 2016.
SigmaTron’s motion to maintain the seal, R. 281, is denied.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: November 23, 2016
22
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