Pouncy v. Doe et al
Filing
99
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 12/11/2017. For the foregoing reasons, the Court awards Plaintiff $64,462.50 in attorneys' fees, plus prejudgment interest from Augu st 6, 2016. The Court further awards Plaintiff $981.70 in taxable costs and $986.70 in nontaxable costs. The Court denies Plaintiff's request for sanctions. The parties are directed to c onfer regarding the appropriate calculation of prejudgment interest and submit a proposed order incorporating that calculation along with the other amounts stated above no later than December 20, 2017. For further details see the Statement below. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEMETRIUS POUNCY, JR.,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.
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Case No. 15-cv-1840
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff’s petition for attorneys’ fees and costs, and in the alternative,
for sanctions [72-1] and Plaintiff’s bill of costs [68]. For the reasons stated below, the Court
awards Plaintiff $64,462.50 in attorneys’ fees, plus prejudgment interest from August 6, 2016.
The Court further awards Plaintiff $981.70 in taxable costs and $986.70 in nontaxable costs. The
Court denies Plaintiff’s request for sanctions. The parties are directed to confer regarding the
appropriate calculation of prejudgment interest and submit a proposed order incorporating that
calculation along with the other amounts stated above no later than December 20, 2017.
I.
Background
Plaintiff seeks $91,225.00 in attorneys’ fees and $2,202.40 in taxable and nontaxable costs
pursuant to an accepted Rule 68 offer of judgment, which allowed judgment to be taken against
Defendants in favor of Plaintiff in the amount of $15,001 plus reasonable attorneys’ fees and costs.
In the alternative, Plaintiff also seeks to recover his attorneys’ fees as a sanction for Defendants’
failure to produce a relevant Tactical Response Report (“TRR”) prior to June 2, 2016. Finally,
Plaintiff requests over $22,000 in “fees on fees”—that is, attorney time expended to litigate this fee
dispute.
Plaintiff initially filed this § 1983 lawsuit pro se on February 1, 2015 against Detective
John Doe, Detective Timothy O’Brien, and the City of Chicago. Plaintiff alleged that on August
27, 2013—after Plaintiff was arrested and charged with harassing a witness [74, at 4]—Detective
John Doe used excessive force on Plaintiff by slamming him head-first into a wall. [1.] Plaintiff
further alleged that Detective Timothy O’Brien failed to intervene.1 [1.] On May 14, 2015, the
Court recruited counsel to represent Plaintiff in this matter. [9.] Recruited counsel filed an
amended complaint [8] and a motion to conduct expedited discovery to identify the unnamed
defendant before the expiration of the two-year statute of limitations [13], which the Court
granted. [17.]
Plaintiff then sought documents aimed at identifying the unnamed detective. Specifically,
Plaintiff requested files with the event identification number RD HW368940/CB18731820, which
was the event identification number associated with the harassment charges against Plaintiff.
Plaintiff also requested any “Tactical Response Reports and/or Officer Battery Reports” regarding
Plaintiff between August 26, 2013 to August 28, 2013, among other documents.
[72-4.]
Defendants emailed Plaintiff on July 22, 2015, indicating that they were able to locate the area file,
but that “the request for any TRRs came back negative.” [72-22.]
Because Plaintiff was not able to identify the unnamed defendant from the documents
produced by Defendants before the statute of limitation expired, Plaintiff filed a second amended
complaint on August 26, 2015, naming 45 Chicago detectives who were present and on-duty when
the alleged incident occurred. [31, at ¶1; 35.]
On September 23, 2015, nearly a month after Plaintiff filed his second amended complaint,
the city produced a case incident report that identified Detective Patrick Ford as the detective
1
Plaintiff’s original complaint named “Detective O Bryant” as a defendant [1], but his first amended
complaint identified Detective Timothy O’Brian as the detective who allegedly failed to intervene. [18.]
2
involved in the incident with Plaintiff. Plaintiff filed a third amended complaint on October 14,
2015 identifying Patrick Ford as the detective who allegedly used excessive force against Plaintiff
[40] and voluntarily dismissed the other detectives named solely for the purpose of preventing the
statute of limitations from expiring while Plaintiff continued to search for the detective involved in
the incident with Plaintiff [39].
The parties continued discovery. Plaintiff served requests for production on Ford, in
which Plaintiff requested, among other documents, “[a]ll documents created as a result of the
August 27, 2013 arrest of and use of force against Plaintiff, including but not limited to arrest
reports, general case reports, Tactical Response Reports, Officer Battery Reports, Injured on Duty
Reports, use of force reports, lock-up reports, case incident reports or any other documents.”
[72-20, at 5.] Defense counsel served its response to this request on February 11, 2016, but did
not produce the TRR from the incident involving Ford until June 2, 2016. Defendants’ briefing
indicates that the failure to earlier produce the relevant TRR was due to a misunderstanding
regarding the event number assigned to the TRR. Specifically, Defendants used the event number
from the assault charges against Plaintiff when they initially searched for a TRR. Defendants
attach a copy of the search record from this initial search to their response brief. [90-6.] When
Plaintiff served additional discovery requests in May of 2016, Defendants conducted a broader
TRR search that produced the TRR relating to the incident between Ford and Plaintiff, which had a
different event identifier. [90-11.] Defendants produced the TRR on June 2, 2016.
On June 7, 2016, Defendants sent Plaintiff a Rule 68 offer of judgment—which Plaintiff
accepted that day—“in the amount of [$15,001] plus reasonable attorney’s fees and costs as to
Plaintiff accrued as of * * * June 7, 2016, in amount to be determined by the Court.” [62-1, at ¶1.]
3
On June 15, 2016, a little over a week after Plaintiff accepted Defendants’ offer of judgment,
Plaintiff’s counsel wrote a letter to defense counsel requesting $91,225.00 in attorneys’ fees and
$2,202.40 in costs. [72-23.] In that letter, Plaintiff asserted for the first time that “the City knew
that * * * Ford beat up [Plaintiff] * * * but did everything in its power to keep Ford’s identity a
secret,” and indicating that such conduct was sanctionable. [72-23, at 1.] The parties exchanged
further correspondence discussing Plaintiff’s allegation that Defendants engaged in sanctionable
conduct and also seeking to reach an agreement regarding the amount of attorneys’ fees and costs
that should be awarded to Plaintiff, as required by Local Rule 54.3(d).
With respect to the attorneys’ fees dispute, the parties were unable to reach an agreement
regarding (1) the applicability of the Prison Litigation Reform Act, (2) the reasonable hourly rate
for Plaintiff’s counsel, and (3) whether the time and nature of Plaintiff’s counsel’s billing was
subject to objection. The parties also disagreed about the amount of costs Plaintiff was entitled to
recover pursuant to the offer of judgment. As a result of these disputes, Plaintiff filed the petition
for attorneys’ fees and costs, and in the alternative, for sanctions [72] currently pending before this
court.
Plaintiff seeks $91,225.00 in attorneys’ fees and $2,202.40 in taxable and nontaxable costs.
In the alternative, Plaintiff asks that the Court award its attorneys’ fees as a sanction for
Defendants’ failure to produce the TRR before June 2, 2016, claiming that “a large portion of the
attorney’s fees accumulated would not have been accumulated had Defendants produced [the]
easily attainable routine police report that they claimed for nearly a year did not exist.” [72-1, at
1.] Plaintiff also requests over $22,000 in fees on fees.
4
II.
Analysis
The Court begins by noting that a “request for attorney’s fees should not result in a second
major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). This is especially true in the
context of Rule 68 offers of judgment, which are designed “to encourage settlement and avoid
litigation.” Webb v. James, 147 F.3d 617, 620 (7th Cir. 1998) (citing Marek v. Chesny, 473 U.S.
1, 5 (1985)). In this case, however, the parties filed nearly 50 exhibits and submitted nearly 500
pages of documents in connection with the fee petition pending before the Court. Despite these
extensive submissions, the Court found that the parties left many issues undeveloped or
underdeveloped [92] and requested supplemental briefing on certain issues. [See 94.] The Court
recognizes that the fee petition pending before the Court involves more complicated legal issues
than the typical fee petition. Still, many of the fee disputes in this case could have been avoided
had the parties not simply left it to the Court to determine the amount of attorneys’ fees and costs
Plaintiff is entitled to receive.
A.
Attorneys’ Fees Pursuant to the Offer of Judgment
Turning to the merits of Plaintiff’s fee petition, pursuant to the offer of judgment, Plaintiff
is entitled to “reasonable attorney’s fees and costs accrued as of June 7, 2016, in an amount to be
determined by the Court.” [63, at 1.] Initially Defendants argued that the Prison Reform
Litigation Act (“PLRA”) capped the amount of attorneys’ fees Plaintiff could recover in
conjunction with the accepted offer of judgment. [90, at 9-10.] After the Court requested
supplemental briefing, however, Defendants abandoned their argument that the PLRA limits the
amount of attorneys’ fees Plaintiff can recover. [95, at 2.]
5
The starting point for determining Plaintiff’s “reasonable attorney’s fees” is the lodestar,2
which is the “the hours reasonably expended multiplied by the reasonable hourly rate.” Johnson
v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012). The Court has an obligation to “exclude from
this initial fee calculation hours that were not ‘reasonably expended’” on the litigation. Hensley,
461 U.S. at 434. However, the Court is “not obligated to conduct a line-by-line review of the bills
to assess the charges for reasonableness.” Rexam Beverage Can Co. v. Bolger, 620 F.3d 718, 738
(7th Cir. 2010). The party seeking the fee award bears the burden of proving the reasonableness
of the hours worked and the hourly rates claimed. Id. at 433.
Once the lodestar is determined, the Court must determine whether it is appropriate to
adjust the lodestar. Sommerfield v. City of Chicago, 863 F.3d 645, 650 (7th Cir. 2017). A
downward adjustment may be appropriate where a plaintiff achieves “only partial or limited
success.” Montanez v. Simon, 755 F.3d 547, 556 (7th Cir. 2014) (quoting Hensley, 461 U.S. at
434). On the other hand, an upward adjustment may be appropriate where the Plaintiff achieves
“[e]xtraordinarily good results.” Sommerfield, 863 F.3d at 650 (citing Baker v. Lindgren, 856
F.3d 498, 503 (7th Cir. 2017)). If a district court elects to reduce a fee award, it must “provide a
‘concise but clear explanation of its reasons.’” Small v. Richard Wolf Med. Instruments Corp.,
264 F.3d 702, 708 (7th Cir. 2001) (quoting Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 409 (7th
Cir. 1999)). “In other words, the court cannot simply ‘eyeball the fee request and cut it down by
2
Plaintiff requests reasonable attorneys’ fees pursuant to Rule 68 and general contract law. In the
alternative, Plaintiff requests reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988. To the extent the
plain terms of the accepted offer of judgement differ from the analysis for determining reasonable
attorneys’ fees pursuant to 42 U.S.C. § 1988, the Court follows the plain terms of the accepted offer of
judgment. Webb v. James, 147 F.3d 617, 620 (7th Cir. 1998) (“[C]ourts use contract principles to interpret
offers of judgment.” (citations omitted)). Regardless, the parties agree that the lodestar method is the
correct method for calculating the amount of reasonable attorneys’ fees Plaintiff can recover in this case.
6
an arbitrary percentage because it seemed excessive to the court.’” Id. (quoting People Who Care
v. Rockford Bd. of Educ., 90 F.3d 1307, 1314 (7th Cir. 1996)).
Here, the Court determines that the lodestar is $64,462.50. This figure is presumptively
reasonable, and the Court does not find any basis for either an upward or downward adjustment.
Indeed, in their supplemental briefs, both parties agree that an adjustment to the lodestar would be
inappropriate. [95, at 7-8; 96, at 13.] Because Plaintiff is not entitled to fees on fees, the Court
awards Plaintiff $64,462.50 in reasonable attorneys’ fees.
1.
Hourly Rates
The first step in determining the lodestar is to assess the reasonableness of the attorneys’
hourly rates. “A reasonable hourly rate is based on the local market rate for the attorney’s
services.” Montanez, 755 F.3d at 553 (citing Pickett v. Sheridan Health Care Ctr., 664 F.3d 632,
640 (7th Cir. 2011)). “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. (citing Johnson v. GDF, Inc., 668 F.3d at 933).
“The party seeking a fee award bears the burden of establishing the market rate for the work; if the
lawyers fail to carry that burden, the district court can independently determine the appropriate
rate.” Id.
Here, Plaintiff seeks rates of $75 per hour for paralegals who assisted on the matter, $550
per hour for attorney Brendan Shiller, and $350 per hour for attorney Mary Grieb. Defendants do
not dispute the reasonableness of the $75 per hour paralegal rate. However, Defendants do
contest the $550 hourly rate for Mr. Shiller and the $350 hourly rate for Ms. Grieb, arguing that the
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recoverable hourly rate for Mr. Shiller and Ms. Grieb should be $385 per hour and $175 per hour,
respectively.3
i.
Brendan Shiller’s Hourly Rate
Plaintiff fails to establish that $550 per hour is the market rate for the work Mr. Shiller
performed in this case. Plaintiff does not submit an affidavit from Mr. Shiller discussing his
qualifications or the rate he charges for work on civil rights cases. Other evidence submitted by
Plaintiff does not support Mr. Shiller claimed rate of $550 per hour.
To begin, Plaintiff offers a collection of retainer agreements involving markets other than
civil rights cases.
For example, Plaintiff submits retainer agreements for matters involving
environmental law issues [72-17, at 84], contractual issues [72-17, at 84], political campaigns
[76-1, at 21], and business license violations [72-17, at 64], among other markets. Plaintiff has
not offered any evidence establishing that these markets are relevant for determining the
appropriate market rate for Mr. Shiller’s work in this case. The Court will therefore disregard
these retainer agreements. Montanez, 755 F.3d at 554 (holding that the district court was free to
disregard fee agreements involving different markets); see also Moriarty v. Svec, 233 F.3d 955,
966 (7th Cir. 2000) (“The district courts discretion in determining what is a reasonable attorney’s
fee applies to its determination of what constitutes a market.”).
3
Defendants also contend that Plaintiff should not be able to recover any fees for work performed by
Mr. Shiller because he was not appointed as counsel by this Court. Defendants do not cite any authority
supporting their contention that Mr. Shiller’s fees are not recoverable, and it is commonplace for recruited
lawyers to be assisted by colleagues within the same firm as the circumstances of the case dictate. In many
instances, recruited counsel (from the Trial Bar) are more experienced lawyers who quite sensibly delegate
tasks to more junior lawyers in the interest of efficiency or so that the more junior lawyers get more
experience working on federal cases. Here, the opposite was true: recruited counsel (again sensibly)
sought assistance from more senior lawyers in her firm. In any event, Defendants agreed to pay Plaintiff’s
reasonable attorneys’ fees, not just fees for work performed by Ms. Grieb. Thus, Plaintiff is entitled to
recover all of his reasonable attorneys’ fees, including fees for work performed by Mr. Shiller.
8
With respect to the criminal retainer agreements submitted by Plaintiff, Plaintiff offers the
affidavit of Jared S. Kosoglad, which represents that “attorneys’ billing rates in criminal defense
and civil rights work are similar” because “[t]he fields themselves often overlap.” [72-16, at 4,
¶15.] The Court does not find this conclusory representation persuasive evidence that the market
rate for criminal work is the same as the market rate for civil rights work. The Court will
therefore disregard the criminal retainer agreements as well.
Plaintiff also submits a number of retainer agreements relating to § 1983 cases. But these
agreements are structured as contingency agreements, which are of little help in determining the
reasonableness of hourly rates charged by an attorney. Pickett, 664 F.3d at 640 (recognizing “the
difficulty of determining the hourly rate of an attorney who uses contingent fee agreements”);
Montanez, 755 F.3d at 554 (“The judge did not abuse her discretion by giving little weight to
[contingency] agreements as evidence of market hourly rates for the attorneys' services.”).
Plaintiff asserts that these agreements are not “strictly speaking, contingency agreements.” [96,
at 7.] Plaintiff admits, however, that these agreements “have a functional contingency element to
them” and that “counsel are not usually paid” under these agreements “unless or until there is a
settlement or judgment.” [96, at 7.] Although the § 1983 retainer agreements submitted by
Plaintiff are not labeled contingency agreements, the agreements state that if “no recovery of any
type is had, then Shiller Preyar Law Offices agrees to forego any active collection of fees and
costs.” [See, e.g., 72-17, at 1, §2.3.] The agreements also provide that “Shiller Preyar [may]
take (entirely at their option) 40% (percent) of the entire recovery the client obtains [if] that
number is higher than the lodestar.” Id. at 2, §2.4. Because Shiller Preyar agrees to forego the
collection of fees until plaintiffs recover, the § 1983 retainer agreements are functionally
contingency agreements. City of Burlington v. Dague, 505 U.S. 557, 561 (1992) (recognizing
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that fees are contingent when “the obligation to pay depends on a particular result's being
obtained”). Indeed, a court looking at a similar retainer agreement submitted by Shiller Preyar in
another fee dispute concluded that such agreements constitute contingency agreements.
Montanez v. Chicago Police Officers Fico (Star No. 6284), Simon (Star No. 16497), 931 F. Supp.
2d 869, 876 n. 3 (N.D. Ill. 2013).
Furthermore, the § 1983 retainer agreements provided contain contradictory language
regarding the rates to be charged to the clients. For example, Section 2.1 of the § 1983 retainer
agreement for Melanie Rocha states:
The CLIENT agrees to pay the hourly rates as detailed in Addendum A to this
contract. The Client acknowledges that the partners in Shiller Preyar generally
charge $500 an hour as their normal market rate for litigation. However, because
this particular case involves issues of public interest, the partners have agreed to
reduce their hourly rate.
[72-17, at 1.] Addendum A to the contract lists the rates for the partners at $500. It is therefore
unclear whether the client agreed to pay the rates listed in the addendum or some reduced rate not
identified in the retainer agreement. The § 1983 retainer agreements are therefore of little help in
establishing the market rate for the services provided by Mr. Shiller in similar cases.
Plaintiff also submits invoices from a § 1983 lawsuit McCadd v. Village of Bolingbrook, et
al., Case No. 1:14-cv-08496 (N.D. Ill. filed Oct. 28, 2014), which indicate that Shiller Preyar
charged plaintiff in that matter $500 an hour for the work Mr. Shiller performed from July 2014
through June 2016. [72-17, at 17-63.] However, the invoiced attorneys’ fees continuously
accumulated without any payment from the client reflected on the invoices. [72-17, at 15-63.]
And the retainer agreement from that case was structured as a contingency agreement, as discussed
above. Thus, these invoices are not helpful in determining the appropriate market rate for
Mr. Shiller’s work in this case.
10
Plaintiff also submits the Expert Report of Bruce M. Meckler, Esq. (the “Meckler Report”)
offered by the law firm Loevy & Loevy to justify attorneys’ fees sought in Young v. County of
Cook, Case No. 1:06-cv-00552 (N.D. Ill. filed Jan. 30, 2006). The Meckler Report, however,
does little to justify the reasonableness of the attorneys’ fees sought in this case. The report was
submitted in connection with a complex class action involving a different law firm before a
different court in this district. [72-15.] Furthermore, the portion of the Meckler Report relied
upon by Plaintiff discusses “projected rates for attorneys specializing in complex commercial
litigation for 2011,” [72-15, at 9 (emphasis added)], not actual rates for attorneys in civil rights
cases. The Meckler report therefore has no bearing on the reasonableness of the rates Plaintiff’s
counsel seeks in this case and therefore is disregarded.4
Plaintiff also submits the affidavits of two attorneys, but these affidavits also fail to
establish Mr. Shiller’s claimed hourly rate. [72-16.] The affidavit of Anthony Burch does not
identify the hourly rate the affiant charges for civil rights work, but instead identifies his hourly
rates for criminal defense work and family law work, which are irrelevant here. Id. at 2, ¶4. The
affidavit of Jared S. Kosoglad indicates that he was awarded $225 per hour for his work on a civil
rights case, which was his first case as a licensed attorney. Id. at 3-4, ¶6. Mr. Kosoglad’s
affidavit also cites to a November 17, 2014 decision concluding that Mr. Kosoglad sufficiently
demonstrated that his hourly rate for civil rights work was $400 per hour. Id. at 4, ¶10. Nothing
in either affidavit indicates that the affiants ever received $550 per hour for work on civil rights
matters. To the extent these attorneys merely opine on the reasonableness of the rates claimed by
4
Another court in this district has similarly disregarded this report when Plaintiff’s counsel sought to use
the report to justify Shiller Preyar’s attorneys’ fees in another case. Cavada, 2014 WL 4124273, at *3
(“The context for the rate analysis is specific to that case—namely, the complex nature of the litigation, the
representation of the class plaintiffs, the litigation strategy, and the high quality of work product submitted
by the * * * attorneys in litigating that matter.”).
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Plaintiff’s counsel, the Court finds these affidavits unpersuasive. Montanez, 755 F.3d at 554
(holding that district court properly disregarded “affidavits from other Chicago attorneys, which
only attested that [plaintiff’s] lawyers were well qualified and that their fees were reasonable”).
These affidavits therefore fail to establish Mr. Shiller’s claimed rate of $550 per hour for civil
rights cases.
Because Plaintiff fails to meet his burden of proving Mr. Shiller’s market rate of $550 per
hour for work on civil rights cases, it is up to the Court to make its own determination of a
reasonable hourly rate. Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 409 (7th Cir. 1999). The
Court notes that there is not a high evidentiary bar for establishing the market rate for an attorney’s
work. People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1311 (7th
Cir. 1996). Still, Plaintiff here has not submitted sufficient evidence to overcome even this low
hurdle.
Defendants argue that the market rate for the work Mr. Shiller performed in this case
should be $385, the rate set in a case affirmed by the Seventh Circuit for work performed by
Mr. Shiller from 2009 through 2011. [90, at 28 (citing Montanez, 931 F. Supp. 2d at 878).]
Defendants further cite to Cavada v. City of Chicago, in which a court again awarded Mr. Shiller a
rate of $385 per hour based on the Seventh Circuit’s affirmance of this rate a year earlier. 2014
WL 4124273, at *3 (N.D. Ill. Aug. 18, 2014).
Defendants would have the Court find that Mr. Shiller’s hourly rate has not increased at all
since 2009. This position is untenable. “[H]ourly fees often increase over time, both because of
inflation and because of the increasing skill and reputation of the attorney.” Fox ex rel., 2013 WL
4401802, at *3. Still, $550 per hour for the work Mr. Shiller performed in this case seems
excessive, especially in light of fees awarded to other attorneys in the civil rights field. A recent
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decision from another court in this district awarded an attorney who had worked on civil rights
cases for approximately the same amount of time as Mr. Shiller $465 per hour for her work on a
§ 1983 case.5 Bellamy v. City of Chicago, 2017 WL 3675729, at *3 (N.D. Ill. Aug. 25, 2017)
(awarding attorney with 14 years of experience working on civil rights cases $465 per hour). A
2013 decision from another court in this district awarded a more experienced attorney Jon Loevy
$505 per hour. Fox ex rel. Fox, 2013 WL 4401802, at *2; see also Wells v. City of Chicago, 925
F.Supp.2d 1036, 1041, 2013 WL 622942, at *4 (N.D. Ill. Feb. 20, 2013) (describing Jon Loevy as
“an attorney whose experience, skill, and record of success in representing plaintiffs in police
misconduct cases place him at the apex of attorneys who practice in that field”); Blackwell v.
Kalinowski, 2012 WL 469962, at *3 (N.D .Ill. Feb. 13, 2012) (describing Mr. Loevy's education,
recognitions, and years of successful trial work, including 12 separate jury verdicts of $1 million or
more).
Taking into account the prior fee awards, which were years ago, and the hourly rate
awarded to other civil rights attorneys, the Court finds that the market rate for Mr. Shiller’s work in
this case is $465 per hour.
ii.
Mary Grieb’s Hourly Rate
The Court finds that Plaintiff also fails to establish that $350 per hour is the market rate for
the work Ms. Grieb performed in this case. To the extent Plaintiff relies on the same evidence
submitted in support of Mr. Shiller’s hourly rate to establish Ms. Grieb’s hourly rate, the Court
finds the evidence insufficient for the reasons discussed above.
5
Although Plaintiff did not submit an affidavit from Mr. Shiller discussing his qualifications, Mr. Shiller’s
qualifications were discussed in other cases involving fee awards for work performed by Mr. Shiller.
Defendants have cited these cases throughout their briefing and have had the opportunity to discuss
Mr. Shiller’s qualifications, as set forth in those cases.
13
In support of the $350 hourly rate for the work Ms. Grieb performed in this case, however,
Plaintiff did submit the affidavit of Ms. Grieb outlining her qualifications and her extensive work
on § 1983 cases. [72-15.] Ms. Grieb’s affidavit avers that “there was an agreed upon fee petition
for $68,485 that was derived from applying a $300 rate for work” Ms. Grieb performed in 2014 in
the case of Liera v. City of Chicago, et al.. [72-15, at 3 ¶ 9.] Her affidavit further avers that
“there was an agreed upon fee petition for $49,998.55 that was derived from applying a $350 rate
for” work Ms. Grieb performed in 2015 and 2016 in the case of McCadd v. Village of Bolingbrook.
[72-15, at 3 ¶ 10.] Although “a previous attorneys' fee award is useful for establishing a
reasonable market rate for similar work whether it is disputed or not,” Pickett, 664 F.3d at 647
(quoting Jeffboat, LLC, v. Dir., Office of Workers' Comp. Programs, 553 F.3d 487, 491 (7th Cir.
2009)), Plaintiff does not provide any evidence—other than Ms. Grieb’s affidavit—of these prior
fee awards. Because Plaintiff fails to attach documents supporting counsel’s assertions regarding
these agreed upon fee petitions, the Court is unable to determine whether these fee petitions
specifically addressed Ms. Grieb’s hourly rate, as opposed to agreeing generally to an overall fee
amount. Thus, the Court finds that Ms. Grieb’s general statements regarding prior fee awards do
not establish the $350 per hour rate for the work she performed in this case. Montanez, 931 F.
Supp. 2d at 878 (concluding that prior fee settlements failed to support hourly rate requested by
Ms. Grieb, where there was no evidence that the defendant “agreed to Ms. Grieb’s rate, as opposed
to agreeing generally to an overall fee amount”).
Citing to the Montanez and Cavada cases discussed above, Defendants argue that the
market rate for the services provided by Ms. Grieb in this case should be $175 per hour. Again,
the Court finds Defendant’s contention that Ms. Grieb’s hourly rate has not increased at all since
2011—one year after she graduated law school—untenable. Furthermore, the affidavit of Jared
14
S. Kosoglad indicates that he was awarded $400 per hour for his work on a civil rights case when
Mr. Kosoglad was slightly more experienced than Ms. Grieb, supporting Plaintiff’s contention that
Ms. Grieb should be awarded more than $185 per hour. [72-15, at 4 ¶ 10.] Another court in this
district has recently concluded that the hourly rate for a similarly experienced attorney would be at
least $250. Bellamy, 2017 WL 3675729, at *5 (awarding the requested $250 per hour rate for
work performed by a civil rights attorney practicing since 2010, but recognizing that the
reasonable hourly rate for the attorney’s work might be even higher).
Considering the prior fee awards and the hourly rates awarded to other attorneys, the Court
finds that the market rate for Ms. Grieb’s work in this case is $300 per hour.
2.
Number of Hours
Once a reasonable hourly rate is determined, the Court must then analyze the number of
hours reasonably expended. Hensley, 461 U.S. at 433. Here, Defendants argue that the court
should reduce the number of recoverable hours for time entries that are (1) vague or insufficiently
documented, (2) excessive, redundant, or unnecessary, (3) administrative or better suited for
support staff, and/or (4) internal or duplicative. As discussed below, the Court finds that some of
Defendants’ objections to the hours claimed by Plaintiff’s attorneys are meritorious.
i.
Vague or Insufficient Documentation
Defendants contend that certain entries are too vague to merit an award of attorneys’ fees.
“[W]hen a fee petition is vague or inadequately documented, a district court may either strike the
problematic entries or (in recognition of the impracticalities of requiring courts to do an
item-by-item accounting) reduce the proposed fee by a reasonable percentage.” Harper v. City of
Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000); see also Ohio–Sealy Mattress Mfg. Co. v.
Sealy Inc., 776 F.2d 646, 651, 657–58 (7th Cir. 1985). “The district court has broad discretion to
15
strike * * * vague or unjustified billing entries.” Montanez, 755 F.3d at 555–56. The relevant
inquiry is “whether the time entries are ‘sufficiently detailed to permit the Court to determine
whether the hours expended were reasonable and necessary to the conduct of the litigation.’”
Gibson v. City of Chicago, 873 F. Supp. 2d 975, 986 (N.D. Ill. 2012) (quoting Crispin R., Jr. v. Bd.
of Educ. of the City of Chi., Dist. 299, 2010 WL 3701328, at *6 (N.D. Ill. Sept. 10, 2010)). After
reviewing Defendants’ objections chart, the Court finds that Ms. Grieb billed for 5 hours of work
and paralegals billed for 1.1 hours of work without adequately describing the work billed.
Descriptions such as “draft LTR to client,” without more, do not adequately describe the work
performed. With such vague descriptions, the Court is unable to determine whether the time
spent on these tasks was reasonable and necessary to the conduct of the litigation. Montanez, 755
F.3d at 555–56 (affirming district court decision rejecting vague billing entries, such as “call to
client”). The Court will therefore deduct 5 hours from Ms. Grieb’s recoverable hours and 1.1
hours from the paralegals’ recoverable hours, as shown in the charts below.
Vague Entries for Mary Grieb
Date
5/21/2015
6/04/2015
6/09/2015
6/10/2015
6/19/2015
6/19/2015
6/22/2015
6/24/2015
8/12/2015
8/14/2015
8/20/2015
8/20/2015
8/20/2015
8/20/2015
8/25/2015
8/25/2015
Description
draft LTR to client
draft LTR to client
read Ltr from client
draft LTR to Law Dept
read LTR from client
read letter from Pltft
read LTR from Tom Platt
draft LTR to client
read LTR from client
read Ltr from client
attempt to contact porter
attempt to contact carter
attempt to contact huddleston
attempt to contact baker
draft LTR to client
spoke to Pltf grandma
Time
0.3
0.3
0.8
0.3
0.3
0.1
0.2
0.3
0.3
0.2
0.3
0.2
0.2
0.2
0.2
0.2
16
12/18/2015
3/28/2016
4/29/2016
draft LTR to client
draft LTR to J. Dow
drafted email to Moore
0.3
0.1
0.2
Total 5.0
Vague Entries for Paralegals
Date
5/20/2015
6/10/2015
6/18/2015
6/26/2015
8/24/2015
8/27/2015
10/15/2015
11/03/2015
11/03/2015
Description
draft LTR to J. Dow
draft LTR to J. Dow
draft LTR to J. Dow
draft LTR to J. Dow
draft LTR to J. Dow
draft LTR to J. Dow
draft LTR to J. Dow
draft LTR to J. Dow
draft LTR to J. Dow
ii.
Time
0.1
0.1
0.1
0.1
0.2
0.1
0.1
0.1
0.2
Total 1.1
Excessive, Redundant, or Unnecessary
Defendants also argue that billing entries that are excessive, redundant, or unnecessary
should be deducted. “In determining the reasonable number of hours, [a] court should exclude
hours that are ‘excessive, redundant or otherwise unnecessary.’” Small, 264 F.3d at 708 (quoting
Hensley, 461 U.S. at 434). “In exercising this discretion, the court may properly rely on its own
experience to estimate the time reasonably required for the work claimed.” Vocca v. Playboy
Hotel of Chicago, Inc., 686 F.2d 605, 607 (7th Cir. 1982) (citing Boe v. Colello, 447 F. Supp. 607,
610 (S.D.N.Y. 1978)).
In this case, the Court agrees that hours should be deducted from Plaintiff’s attorneys’ fees
claim for work that was excessive, redundant, and/or unnecessary. First, Ms. Grieb spent 15.2
hours reviewing A&A sheets and compiling a list of possible wrongdoers. Ms. Grieb spent an
additional 12.6 hours conducting Google searches of on-duty detectives. Plaintiff’s reply brief
indicates that Ms. Grieb was only able to eliminate one detective as being the unnamed defendant
17
from this search process. [91, at 7 n. 3.] The Court recognizes that Plaintiff needed to take steps
to identify the correct defendant to name in the lawsuit, but finds that there were more efficient
ways of doing so. For example, instead of spending 12.6 hours conducting Google searches of
on-duty detectives, Plaintiff could have requested photographs of the detectives identified from the
A&A sheets. Indeed, in plaintiff’s motion to conduct expedited discovery, Plaintiff indicated that
he would “seek photographs of certain individual officers or detectives, based on his review of the
reports and review of attendance and assignment sheets.” [13, at 3, §11.] But it appears Plaintiff
never did so. Given that it was both inefficient and ineffective to spend 12.6 hours conducting
Google searches of detectives, these hours should be deducted from the hours claimed for
Ms. Grieb. Although it was appropriate for Plaintiff to review A&A sheets to compile a list of
possible wrongdoers, spending 15.2 hours doing so was also excessive. The court therefore will
deduct an additional 10.2 hours from the time claimed by Ms. Grieb.
Second, Ms. Grieb also claimed 1.5 hours for attending court on 5 occasions. Defendants
challenges these entries, representing that these hearings only lasted for approximately 0.5 hours.
Plaintiff did not respond to Defendants’ arguments with respect to these entries. And the Court
finds that 1.5 hours for a status hearing seems excessive. Accordingly, the Court will adjust these
entries to limit the time recovered for these court appearances to 1.0 hour, accounting for time
appearing at the status hearing as well as time traveling to and from the status hearing. This
results in deducting 2.5 hours from the time claimed by Ms. Grieb.
Third, Ms. Grieb spent 3.8 hours reading arrest reports and clerk files for possible
witnesses.
She also spent 0.9 hours attempting to contact these individuals.
Defendants
challenged these entries as excessive, redundant, or unnecessary. The Court recognizes that it is
prudent for attorneys to contact potential witnesses. The large amount of time spent reviewing
18
arrest reports and clerk files for three witnesses that have not even been contacted yet, however,
seems excessive. Accordingly, the Court will deduct 1.8 hours from the time claimed by Ms.
Grieb.
Fourth, Ms. Grieb spent 0.8 hours reading a 2-page offer of judgment. Again, this is
excessive, and the Court will deduct 0.5 hours from the time claimed by Ms. Grieb.
Finally, Defendants generally challenges Plaintiff’s use of billing increments of 0.1 of an
hour (six minutes) for emailing. [90, at 23.] For example, Ms. Grieb logged 0.1 hours for
writing a two-line email.6 These kinds of entries result in excessive billing. Taylor v. Law
Offices of Vincent Peter Cignarale, LLC, 2011 WL 6102020, at *2 (N.D. Ill. Dec. 5, 2011)
(reducing by two-thirds fees billed in 0.1–hour increments for email review).
The Court
estimates that Ms. Grieb seeks to recover attorney’s fees for approximately 6 hours for short email
correspondence billed in 0.1 hour increments.7 The Court will reduce by two-thirds the time
Ms. Grieb billed for email review in 0.1 hour increments, and will therefore deduct 4 hours from
the time claimed by Ms. Grieb.
In sum, the Court is deducting a total of 31.6 hours for
excessive, redundant, or unnecessary work performed by Ms. Grieb.
iii.
Administrative or Better Suited for Support Staff
Defendants also ask the Court to deduct entries that are administrative in nature or better
suited for support staff. Parties cannot recover attorneys’ fees or paralegals’ fees for tasks that
6
Ms. Grieb also logged 0.8 hours in 0.1 hour increments for reading minute entries or other short
documents on the docket. And she logged 0.5 hours in 0.1 hour increments for reading one page attorney
appearances. These entries also seem excessive. Smith v. Altman, 2015 WL 5675376, at *9 (N.D. Ill.
Sept. 21, 2015) (“The Court agrees review of orders is compensable; however, billing in six minute
increments for the review of a single minute order is excessive.”). Because Defendants have not
challenged these entries, however, the Court will not strike or adjust the time allowed for these entries.
7
The Court did not include email communications that were billed at 0.2 hours or more, as there is less risk
that time entries of 0.2 hours or more will lead to excessive billing.
19
can be delegated to a non-professional. Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553
(7th Cir. 1999); Delgado v. Vill. of Rosemont, 2006 WL 3147695, at *2 (N.D. Ill. Oct.31, 2006);
Morjal v. City of Chicago, Ill., 2013 WL 2368062, at *2 (N.D. Ill. May 29, 2013) ("[T]ime spent
organizing file folders, preparing document[s], assembling filings, electronically filing
documents, sending materials, docketing or logging case events into an internal case tracking
system, and telephoning court reporters is noncompensable." (internal quotations omitted)).
Here, Plaintiff seeks to recover 4.6 hours in attorney's fees for time Ms. Grieb spent
producing records and organizing and compiling documents and exhibits. Plaintiff also seek to
recover 2.9 hours in paralegals’ fees for downloading documents, scanning documents, filing
documents, and labeling files. Because these tasks are administrative in nature and could be
assigned to a nonprofessional, the Court will deduct 4.6 hours from Ms. Grieb’s recoverable hours
and 2.9 hours from the paralegals recoverable hours.
Administrative Tasks Performed by Mary Grieb
Date
9/10/21015
9/17/2015
5/8/2016
5/17/2016
Description
compile 26as documents
sent Moore demand ltr
organized exhibits for O’Brien deposition
produce Cermak records
Time
3.4
0.1
0.8
0.3
Total 4.6
Administrative Tasks Performed by Paralegals
Date
5/15/2015
6/25/2015
8/14/2015
6/2/2016
Description
download PACER filings
scan executed summons
scan and label Clerks file
scan and file supp production
Time
1.0
0.2
1.2
0.5
Total 2.9
Although Defendants identified additional entries as administrative in nature, the Court
finds that it was reasonable not to delegate these tasks to a non-professional. For example, it is
20
appropriate for a paralegal to handle filing documents instead of a non-professional. See, e.g.,
Williams v. Z.D. Masonry, Corp., 2009 WL 383614, at *5 (N.D. Ill. Feb. 17, 2009) (“In light of the
problems that can result from a botched electronic filing, the court will not second-guess the firm's
decision that such filing must be overseen by a paralegal.”).
iv.
Internal or Duplicative
Defendants also object to duplicative entries by both Ms. Grieb and Mr. Shiller for various
meetings and discussions involving both attorneys. In challenging these entries, Defendants cite
to a case that held it was excessive for two partners to perform the same tasks throughout the
course of a lawsuit. Montanez, 931 F. Supp. 2d at 880. Here, however, Defendants challenge
entries involving one associate and one partner. It was not unreasonable or inappropriate for an
associate to consult a partner regarding important matters in the case. Mostly Memories, Inc. v.
For Your Ease Only, Inc., 594 F. Supp. 2d 931, 935 (N.D. Ill. 2009) (“[T]ime spent discussing
issues with other attorneys is a basic element of the practice of law and is compensable, if
reasonable, in a fee petition.” (citing Berberena v. Coler, 753 F.2d 629, 633 (7th Cir. 1985))).
Defendants also object to 2.3 hours Mr. Shiller spent reading Detective Ford’s deposition.
Given Mr. Shiller’s advisory role on the case, and given the fact that Ms. Grieb spent 2.2 hours that
same day abstracting Detective Ford’s deposition, the Court agrees that this duplicative entry is
unreasonable. Accordingly, 2.3 hours will be deducted from Mr. Shiller’s recoverable hours.
Based on the hourly rates and total hours after making the adjustments discussed above, the
lodestar is $64,462.50.
Attorney/Paralegal
Mary J. Grieb
Brendan Shiller
Paralegals
Total Adjusted Hours
193.2
12.5
9.2
Adjusted Rate
$300
$465
$75/hour
21
Adjusted Fees
$57,960.00
$5,812.50
$690.00
Total $64,462.50
iv. Fees on Fees
Plaintiff recognizes “that the language of the offer of judgment does not explicitly allow
for fees on fees.” [96, at 11.] Specifically, the offer of judgment provides that Plaintiff is
entitled to “reasonable attorney’s fees and costs accrued as of June 7, 2016, in an amount to be
determined by the Court.” [63, at 1.] A plaintiff who accepts an offer of judgment cutting off
attorneys’ fees incurred after a certain date cannot recover fees on fees occurring after the agreed
upon date, unless the fees on fees are incurred “responding to frivolous arguments.” World
Outreach Conference Ctr. v. City of Chicago, 234 F. Supp. 3d 904, 917–18 (N.D. Ill. 2017) (citing
Morjal v. City of Chi., 774 F.3d 419, 422–23 (7th Cir. 2014)); see also Stephens v. Cirrincione,
2012 WL 2872448, at *3 (N.D. Ill. July 11, 2012) (“When an offer of judgment unambiguously
limits recovery of attorney's fees, courts should honor that limitation.” (citing Decker v.
Transworld Sys., Inc., 2009 WL 2916819, at *2 (N.D. Ill. Sept.1, 2009))). Nonetheless, Plaintiff
argues that he is entitled to fees on fees because (1) Defendants raised frivolous arguments
necessitating litigation on the amount of recoverable fees, and (2) fee shifting statutes allow the
prevailing party to recover fees on fees.
With respect to the first argument, Defendants’ arguments were not frivolous. In their
opening supplemental brief, Defendants abandon their argument that the PLRA fee cap should
limit the amount of attorneys’ fees Plaintiff can recover, not wishing to maintain the position that
the PLRA fee cap and hourly rate apply where—as here—the claim does not involve “prison
conditions” because the plaintiff was an arrestee as opposed to a prisoner. Plaintiff contends that
Defendants decision to abandon its argument that PLRA applies demonstrates that Defendants’
arguments were frivolous. However, Plaintiff’s opening supplemental brief recognizes that there
22
is a circuit split regarding whether the PLRA fee cap and hourly rate cap apply where the claim
does not involve “prison conditions.” [96 at 1 (“Whether the PLRA fee cap and hourly rate apply
where the claim does not involve “prison conditions” appears to be an open question in this district
and circuit.”).] Even though Defendants abandoned this argument, Plaintiff’s own briefing
demonstrates this argument was not frivolous.
Plaintiff also contends that Defendants’ frivolously argued that the PLRA fee cap is not an
affirmative defense that can be waived. But Plaintiff has not cited—and this Court has not
found—any case supporting the proposition that the PLRA fee cap is itself an affirmative defense
that must be plead or is waived. Instead, Plaintiff cites cases recognizing that the PLRA’s
exhaustion requirement is an affirmative defense that must be plead or waived. Although an
argument can be considered frivolous even when there is no case directly on point, the Court finds
that Defendants’ contention that the PLRA fee cap is not itself an affirmative defense was made in
good faith and was not frivolous.8
With respect to the second argument, Plaintiff is bound by the express terms of the offer of
judgment, regardless of whether an otherwise applicable fee shifting statute generally allows for
the recovery of fees on fees.
Cavada, 2014 WL 4124273, at *5 (“By accepting [the]
unambiguous Rule 68 offer, Plaintiffs waived any attorneys' fees incurred after August 30, 2013,
including the fees incurred in litigating their fee petition.”). As Plaintiff himself repeatedly has
argued, the parties are bound by the express terms of the offer of judgment. Having agreed to
limit attorneys’ fees and costs to those “accrued as of June 7, 2016,” Plaintiff cannot now claim
8
Indeed, the Seventh Circuit has recognized that it is unsettled whether a damages cap constitutes an
affirmative defense. Carter v. United States, 333 F.3d 791, 796 (7th Cir. 2003). It is no clearer whether
the PLRA’s hourly rate cap and fee cap constitute affirmative defenses.
23
that he is nonetheless entitled to the benefit of a fee shifting statute that would allow him to recover
fees accrued after that date. Thus, the Court denies Plaintiff’s request for fees on fees.
B.
Costs
Plaintiff’s bill of costs seeks $1,215.70 in taxable costs. [68.] Defendants agree that
Plaintiff is entitled to recover $931.70 in taxable costs for two deposition transcripts and $50.00 in
taxable costs for a service of summons. [70, at 1.] Defendants contend, however, that Plaintiff is
not entitled to recover the remaining $234 in taxable costs Plaintiff seeks for exemplification and
copying of 2,340 pages at a rate of $0.10 per page, arguing that Plaintiff fails to provide any
supporting invoices or sufficient descriptions of these costs.
Under 28 U.S.C. § 1920(4), a court may tax as costs “the costs of making copies of any
materials where the copies are necessarily obtained for use in the case.” Even when costs are
permitted by statute, the “cost must be both reasonable and necessary to the litigation.” Little v.
Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008); see also Warfield v. City of
Chicago, 733 F. Supp. 2d 950, 955 (N.D. Ill. 2010) (requiring costs under § 1988 to be both
“reasonable and necessary”). Courts interpret this section to mean that photocopying charges for
discovery and court copies are recoverable, but charges for copies made for attorney convenience
are not. See Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000);
McIlveen v. Stone Container Corp., 910 F.2d 1581, 1584 (7th Cir. 1990). The party seeking
reimbursement “[m]ust provide the best breakdown obtainable from retained records * * * and
certainly enough information to allow the court to make a determination that the costs sought are,
in fact, authorized by § 1920.” Autozone, Inc. v. Strick, 2010 WL 2365523, at *2 (N.D. Ill. June 9,
2010) (internal quotations omitted). “The court cannot award [the prevailing party's] copying
costs without some confidence that the costs are properly recoverable.” Fait v. Hummel, 2002
24
WL 31433424, at *5 (N.D. Ill. Oct.30, 2002). However, it is not necessary “to submit a bill of
costs containing a description so detailed as to make it impossible economically to recover
photocopying costs.” Northbrook Excess & Surplus Ins. Co. v. Proctor & Gamble, 924 F.2d 633,
643 (7th Cir. 1991).
Here, Plaintiff has not provided sufficient detail for the Court to determine with any
confidence that the exemplification and copying costs he seeks are properly recoverable. It is not
enough to identify the copies as “file copies” or “research copies” as Plaintiff has done. See, e.g.,
Lally v. City of Chicago, 2013 WL 1984422, at *12 (N.D. Ill. May 13, 2013) (holding party could
not recover exemplification and copying costs identified only as “[c]opies and printing for trial
prep”). Thus, the Court finds Plaintiff only is entitled to recover $981.70 in taxable costs.
Plaintiff seeks an additional $986.70 in nontaxable litigation expenses under § 1988.9 [72,
at 18-19.] “[E]xpenses of litigation that are distinct from either statutory costs or the costs of the
lawyer's time reflected in his hourly billing rates—expenses for such things as postage,
long-distance calls, xeroxing, travel, paralegals, and expert witnesses—are part of the reasonable
attorney's fee allowed by the Civil Rights Attorney's Fees Awards Act.” Downes v. Volkswagen
of Am., Inc., 41 F.3d 1132, 1144 (7th Cir. 1994) (quoting Heiar v. Crawford Cty., Wis., 746 F.2d
1190, 1203 (7th Cir. 1984)). Defendants do not challenge any of these claimed litigation
expenses, but object generally to any expenses not listed on Plaintiff’s bill of costs. [90, at 31.]
Rule 54 provides, however, that a “claim for attorney’s fees and related nontaxable expenses must
be made by motion.” Fed. R. Civ. P. 54(d)(2)(A). Plaintiff therefore properly excluded these
expenses from his bill of costs and sought to recover these expenses in a separate motion for
9
Plaintiff’s brief indicates that he is seeking an additional $988.70 in litigation expenses pursuant to §
1988. [72-1, at 19.] The supporting documents, however, show that Plaintiff is seeking $986.70 in
additional costs. [72-3, at 1-2.] Because the Plaintiff’s supporting documents only show an additional
$986.70 in claimed litigation expenses, the Court is using that number.
25
attorneys’ fee. Thornton v. St. Anne Home of the Diocese of Fort Wayne-S. Bend Inc., 2011 WL
4732848, at *3 (N.D. Ind. Oct. 3, 2011) (holding that it was improper to include nontaxable costs
in bill of costs, as such costs must be sought through a separate motion).
Here, Plaintiff is requesting compensation for expenses such as postage and travel, which
are recoverable nontaxable costs. Furthermore, Plaintiff has provided documentation for his
claimed nontaxable costs. [72-3.] Other than objecting generally to Plaintiff’s request for costs
other than those included in Plaintiff’s bill of costs, Defendants have not objected to any of
Plaintiff’s claimed nontaxable expenses. Accordingly, the Court awards Plaintiff $986.70 in
non-taxable litigation expenses.
C.
Sanctions
In the alternative to Plaintiff’s request for attorneys’ fees pursuant to Rule 68 and § 1988,
Plaintiff argues that he is entitled to his attorneys’ fees as a sanction for “Defendants’ failure to
produce the TRR until June 2, 2016.”
[72-1, at 19.]
Specifically, Plaintiff argues that
“[s]anctions are appropriate under Rule[s] 26 and 37, as well as under 28 U.S.C. §1927 and the
Court’s inherent authority.” [72-1, at 23.]
i. Rule 26(g)
To the extent Plaintiff seeks sanctions under Rule 26(g), Plaintiff has not shown that
defense counsel knowingly certified inaccurate or incomplete discovery responses.
Rule 26(g)(3) mandates “the imposition of sanctions where a party knowingly certifies inaccurate
or incomplete discovery responses without substantial justification.” Pennsylvania Chiropractic
Ass'n v. Blue Cross Blue Shield Ass'n, 188 F. Supp. 3d 776, 789 (N.D. Ill. 2016) (citing Fed. R.
Civ. P. 26(g)(3)).
Rule 26(g)(3) sanctions are not appropriate where the attorney made a
reasonably inquiry and reasonably relied on information provided to the attorney. See, e.g.,
26
Davis v. Lakeside Motor Co., 2014 WL 3341033, at *5 (N.D. Ind. July 7, 2014) (holding Rule
26(g) sanctions were inappropriate where attorney relied on representation of client); Fed. R. Civ.
P. 26 advisory committee notes (1983) (“In making the inquiry, the attorney may rely on assertions
by the client * * * as long as that reliance is appropriate under the circumstances.”).
Here, Defendants’ briefing explains that the TRR was not produced as a result of a
misunderstanding regarding the correct event identification number associated with the incident
between Plaintiff and Ford. [90, at 5.] Furthermore, Defendants’ response brief attaches a
record of the initial TRR search that came back negative, showing that Defendants in fact
conducted a search for the TRR on July 6, 2015. [90-6.] Given the facts before the Court, there
is no indication that defense counsel knowingly certified inaccurate or incomplete discovery
responses. Indeed, in Plaintiff’s reply brief, he makes clear that he is attributing the failure to
produce the TRR before June 2, 2016 to the City of Chicago, not defense counsel. Plaintiff
recognizes that “[i]t is possible, even likely, that the ACCs assigned to this case did nothing wrong
at all, and simply took the word of either their point of contact at the [Office of Legal Affairs] or
one of the defendant officers.” [91, at 12.] The Court therefore finds no basis for imposing
sanctions under Rule 26(g)(3).
ii.
Section 1927
Nor does the Court find any basis for imposing sanctions under §1927.10 “Section 1927
authorizes sanctions against lawyers who needlessly multiply the proceedings.” Rojas v. Town of
Cicero, 775 F.3d 906, 908 (7th Cir. 2015). “Section 1927 clearly is punitive and thus must be
construed strictly.” Knorr Brake Corp. v. Harbil, Inc., 738 F.2d 223, 226 (7th Cir. 1984) (citing
10
The Court notes that Plaintiff fails to develop his argument that sanctions are appropriate under §1927.
Although Plaintiff references §1927 twice in his brief, [72-1, at 1, 23], but Plaintiff does no more. He does
not discuss the appropriate legal standard for imposing sanctions under §1927. Nor does he apply that
legal standard to the facts of this case.
27
Badillo v. Central Steel & Wire Co., 717 F.2d 1160, 1166 (7th Cir. 1983)). It is within the
discretion of the Court to order sanctions under §1927. Id. Here, Plaintiff has not established
that defense counsel needlessly multiplied the proceedings. To the contrary, as discussed above,
Plaintiff recognizes that it is possible or even likely that defense counsel “did nothing wrong at
all.” The Court therefore finds no basis for imposing sanctions under §1927.
iii.
Court’s Inherent Authority
Similarly, the Court finds no basis for imposing sanctions pursuant to the court’s inherent
authority. “Any sanctions imposed pursuant to the court's inherent authority must be premised on
a finding that the culpable party willfully abused the judicial process or otherwise conducted the
litigation in bad faith.” Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 776 (7th Cir. 2016)
(citations omitted). Thus, in order to sanction a party for failing to produce a document pursuant
to the court’s inherent authority, the court must find that the party willfully withheld the document.
Maynard v. Nygren, 332 F.3d 462, 471 (7th Cir. 2003), overruled on other grounds by Ramirez v.
T&H Lemont, Inc., 845 F.3d 772 (7th Cir. 2016). Even negligent mishandling of a document is
not enough. Id. (“There is no authority under the Rules or under the inherent powers of the court
to sanction attorneys for mere negligence.”).
Here, there is no indication that Defendants
willfully withheld the TRR. Thus, the Court does not find that Defendants willfully abused the
judicial process or otherwise acted in bad faith and will not sanction Defendants pursuant to the
inherent authority of the court.
iv.
Rules 26(e) and 37(c)
Finally, to the extent Plaintiff seeks attorneys’ fees as a sanction under Rules 26(e) and
37(c),11 the Court finds that Plaintiff’s request is moot in light of the fact that the Court is already
11
Again, the Court notes that Plaintiff fails to develop any argument that sanctions are appropriate under
28
awarding Plaintiff his reasonable attorneys’ fees pursuant to the terms of the offer of judgment.
Trustees of Teamsters Union Local 142 Pension Tr. Fund v. JGM Enterprises, Inc., 2007 WL
489226, at *6 (N.D. Ind. Feb. 8, 2007) (denying motion for sanctions under Rule 37(c) and (d)
where the relief requested in the motion for sanctions was rendered moot as a result of the court’s
summary judgment ruling); see also United States v. Alacran Contracting, LLC, 2015 WL
5829710, at *3 (N.D. Ill. Oct. 5, 2015) (recognizing that motion for sanctions under Rule 37(c) was
rendered moot where court found an alternative ground for granting the relief requested).
Furthermore, because Plaintiff moved for sanctions nearly two months after the Court entered
judgment in this case, the Court finds that Plaintiff’s request for sanctions under Rules 26(e) and
37(c) is untimely. Rule 26(e) provides:
A party * * * who has responded to [a] * * * request for production * * * must
supplement or correct its * * * response in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been made known to the
other parties during the discovery process or in writing.
Fed. R. Civ. P. 26(e). Under Rule 26(e) an attorney is obligated to supplement its disclosures and
discover responses as soon as the party “or its counsel knew or should have known that its
disclosures were incomplete.” Reddick v. Bloomingdale Police Officers, 2003 WL 1733560, at
*10 (N.D. Ill. Apr. 1, 2003). If a court finds that a party violated rule 26(e), the court may impose
appropriate sanctions under Rule 37(c)(1). “Rule 37(c) expenses and fees must be timely sought
prior to judgment and appeal, and that if the judgment is silent in regard thereto, they are deemed
Rules 26(e) and 37(c). In fact, Plaintiff never even references Rule 26(e) or Rule 37(c). Instead, Plaintiff
generally asserts that “[s]anctions are appropriate under Rules 26 and 37.” [72-1, at 23.] Plaintiff’s only
reference to specific provision of Rule 26 is his reference to Rule 26(g), which has its own sanctions
provision. Fed. R. Civ. P. 26(g)(3). Although Plaintiff goes on to reference severe sanctions under Rule
37, Plaintiff does not specify which provision of Rule 37 his argument relies upon. The Court is left to
speculate regarding the legal authority Plaintiff is relying upon in his request for sanctions. However, it is
not the duty of the court to make parties' arguments for them. Tyler v. Runyon, 70 F.3d 458, 466 (7th Cir.
1995).
29
waived or denied.” Popeil Bros. v. Schick Elec., Inc., 516 F.2d 772, 778 (7th Cir. 1975); see also
Centagon, Inc. v. Bd. of Dirs. of 1212 Lake Shore Drive Condo. Ass'n, 2002 WL 356483, at *5
(N.D. Ill. Mar. 5, 2002) (“[W]e agree with plaintiffs that a Rule 37 motion for sanctions must be
brought, if at all, prior to judgment, and that as a result, defendants' motion must be denied as
untimely.”).
Here, Defendants produced the TRR on June 2, 2016.
Plaintiff accepted
Defendants’ offer of judgment on June 7, 2016 [62], and the Court entered a judgment in
Plaintiff’s favor on June 15, 2016. [66.] But Plaintiff did not move for sanctions until he filed
his petition for attorneys’ fees on September 13, 2016. [72-1.] Because Plaintiff moved for
sanctions nearly two months after the Court entered judgment in this case, the Court finds that
Plaintiff’s request for sanctions under Rules 26(e) and 37(c) is untimely.
D.
Prejudgment Interest on Attorneys’ Fees
Plaintiff also requests prejudgment interest from August 6, 2016 until the payment of
Plaintiff’s attorneys’ fees. 12
Prejudgment interest is “presumptively available” because
“[w]ithout it, compensation is incomplete and the defendant has an incentive to delay.” U.S. v.
Bd. of Educ. of Consol. High Sch. Dist. 230, Palos Hills, Ill., 983 F.2d 790, 799 (7th Cir. 1993); see
also Ragland v. Ortiz, 2012 WL 4060310, at *7 (N.D. Ill. Sept. 14, 2012) (awarding prejudgment
interest on attorneys’ fees); Cavada, 2014 WL 4124273, at *6 (same). Here, Defendants do not
dispute that Plaintiff is entitled to prejudgment interest on his attorneys’ fees. Nor does the Court
find any reason to deviate from the presumption that prejudgment interest should be awarded.
12
In the section header on prejudgment interest, Plaintiff also indicates that he is seeking prejudgment
interest on costs. Within this section of the brief, however, Plaintiff does not mention costs at all. Nor
does Plaintiff cite to any authority discussing the appropriateness of awarding prejudgment interest on
costs. Because it is not the duty of the court to make the parties' arguments for them, Tyler v. Runyon, 70
F.3d 458, 466 (7th Cir. 1995), the Court will not address whether Plaintiff could recover prejudgment
interest on costs. Hicks v. Henman, 927 F.2d 607 (7th Cir. 1991) (declining to address issue mentioned in
argument heading without any argument on the point or any citation to relevant case law).
30
Here, the accepted offer of judgment provides that “[i]t is an express condition of this offer
that any prejudgment interest awarded to Plaintiff by the Court does not begin to accrue until the
60th day following the acceptance of this offer.” [62-1, at 2, ¶5.] Plaintiff accepted the offer of
judgment on June 7, 2016. Accordingly, the Court awards Plaintiff prejudgment interest on his
attorneys’ fees from August 6, 2016—60 days after Plaintiff accepted the offer of judgment. The
parties are directed to confer on the appropriate calculations and submit a proposed order
incorporating those calculations by the deadline set below.
*****
In closing, the Court cannot help but observe that the attorney’s fee dispute in this
case—which ended on the merits with an accepted Rule 68 offer of judgment—has ironically run
contrary to the purposes of the rule, which was promulgated “to encourage settlements and avoid
protracted litigation.” See Advisory Committee Notes to 1946 Amendment to Federal Rule of
Civil Procedure 68; see also Fed. R. Civ. P. 1 (stressing that the Federal Rules of Civil Procedure
“should be construed, administered, and employed by the court and the parties to secure the just,
speedy, and inexpensive determination of every action and proceeding”). In hindsight, it is hard to
imagine that the parties could not have reached a less expensive and more satisfying result by
attempting to negotiate their fee dispute, rather than leaving it to the litigation process by agreeing
amorphously to a payment of “reasonable attorney’s fees and costs * * * in an amount to be
determined by the Court.” As noted above, judges do not have the option of “eyeballing” to reach
a reasonable result. Instead, judges are obligated to reach the result consistent with the law and
will do what they deem necessary—including (however reluctantly) ordering supplemental
briefing—to accomplish that objective.
31
III.
Conclusion
For the foregoing reasons, the Court awards Plaintiff $64,462.50 in attorneys’ fees, plus
prejudgment interest from August 6, 2016. The Court further awards Plaintiff $981.70 in taxable
costs and $986.70 in nontaxable costs. The Court denies Plaintiff’s request for sanctions. The
parties are directed to confer regarding the appropriate calculation of prejudgment interest and
submit a proposed order incorporating that calculation along with the other amounts stated above
no later than December 20, 2017.
Dated: December 11, 2017
______________________________
Robert M. Dow, Jr.
United States District Judge
32
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