Brzowski v. Illinois Department of Corrections et al
Filing
205
MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 9/21/2021: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court grants Brzowski's petition for attorneys' fees [dkt. no. 190] and the motion for bill of costs [dkt. no. 173]. The Court awards Brzowski $206,994 in attorneys' fees and $4,487.30 in costs. (mk)
Case: 1:17-cv-09339 Document #: 205 Filed: 09/21/21 Page 1 of 21 PageID #:3955
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WALTER BRZOWSKI,
Plaintiff,
vs.
BRENDA SIGLER,
Defendant.
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Case No. 17 C 9339
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
In 2017, Walter Brzowski, who was formerly incarcerated at Illinois's Pontiac
Correctional Center, sued Brenda Sigler, the records office supervisor at Pontiac.
Brzowski alleged that he was wrongfully held in custody for 902 days because Sigler
repeatedly dismissed his complaints that he was being held beyond his sentence.
Under 42 U.S.C. § 1983, Brzowski sought to hold Sigler accountable for violations of his
rights under the Eighth and Fourteenth Amendments.
A trial was held, and the jury returned a verdict in Brzowski's favor. The jury
awarded Brzowski $721,000 in compensatory damages and $10,000 in punitive
damages. After trial, Sigler renewed her motion for judgment as a matter of law and
moved for a new trial under Federal Rule of Civil Procedure 59. The Court denied both
motions. See Brzowski v. Sigler, No. 17 C 9339, 2021 WL 2529569, at *1 (N.D. Ill. June
21, 2021).
Brzowski has petitioned the Court for attorneys' fees and expenses under 42
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U.S.C. § 1988 and for costs under 28 U.S.C. § 1920. Brzowski seeks $246,292.50 in
fees and expenses and $4,487.30 in costs. 1 The total award requested is $250,779.80.
Sigler objects to the propose fees and expenses and would have the Court award only
$75,000 in attorneys' fees. Sigler does not object to the requested costs and expenses.
For the reasons set forth below, the Court reduces Brzowski's request fees but
not the sizeable extent proposed by Sigler. The total amount of attorneys' fees awarded
by the Court is $ 206,994. The Court grants Brzowski's requested and unobjected-to
costs in full.
Discussion 2
The Court will consider Brzowski's petition for attorneys' fees first and his bill of
costs second.
A.
Attorneys' fees
"The starting point for determination of a reasonable attorney's fee in a section
1983 case is the number of hours reasonably expended on the litigation, multiplied by a
reasonable hourly rate." Fields v. City of Chicago, No. 10 C 1168, 2018 WL 253716, at
*2 (N.D. Ill. 2018) (Kennelly, J.). The result of this arithmetic is referred to as the
"lodestar." Id. Courts may adjust the lodestar based on the twelve factors described in
Though Brzowski has submitted an itemized list of his attorneys' time entries, see dkt.
no. 191-1, none of his submissions include a totaling of his attorneys' hours or his
attorneys' total billings. In other words, though Brzowski's proposed fee appears to be
derived from his proposed billing rates for each attorney multiplied by each attorneys'
respective total time, Brzowski has not shown his work.
1
The Court assumes familiarity with the facts of this case and refers those interested in
the background to its prior opinions. See Brzowski, 2021 WL 2529569, at *1–3;
Brzowski v. Sigler, No. 17 C 9339, 2020 WL 3489484, at *1–3 (N.D. Ill. June 26, 2020);
Brzowski v. Baldwin, No. 17 C 9339, 2018 WL 4917084, at *1 (N.D. Ill. Oct. 9, 2018).
2
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Hensley v. Eckerhart, 461 U.S. 424, 430 (1983). See Anderson v. AB Painting &
Sandblasting Inc., 578 F.3d 542, 544 (7th Cir. 2009). Those factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal service properly; (4) the preclusion
of employment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of the attorneys;
(10) the "undesirability" of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430 nn.3, 9. Though these factors are instructive, many of them
are typically "subsumed within the initial calculation of hours reasonably expended at a
reasonable hourly rate." Anderson, 578 F.3d at 544.
The adjudication of attorneys' fees "should not result in a second major litigation."
Hensley, 461 U.S. at 437. The party petitioning for fees "bears the burden of
establishing entitlement to an award and documenting the appropriate hours expended
and hourly rates." Id. Should the fee applicant meet his burden, the burden shifts to the
opposing party "to offer evidence that sets forth 'a good reason why a lower rate is
essential.'" Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011).
Courts are obliged to exclude from the petitioning party's calculation any hours "that
were not reasonably expended on litigation." Pouncy v. City of Chicago, No. 15-CV1840, 2017 WL 8205488, at *3 (N.D. Ill. Dec. 11, 2017) (internal quotation marks
omitted).
Once a lodestar amount is determined, the Court may determine whether it is
appropriate to adjust it either upward or downward. See id. Though "a plaintiff who
achieves excellent results should receive the entire lodestar," that same sum might be
"excessive for one who has achieved only partial or limited success." Sommerfield v.
3
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City of Chicago, 863 F.3d 645, 650 (7th Cir. 2017) (internal quotation marks omitted).
Court may adjust the lodestar upward if the party obtained "[e]xtraordinarily good
results." Id. When a court chooses to reduce a fee award, it must offer "a concise but
clear explanation of its reasons." Small v. Richard Wolf Med. Instruments Corp., 264
F.3d 702, 708 (7th Cir. 2001) (internal quotation marks omitted). Said differently, a
court may not "simply "eyeball the fee request and cut it down by an arbitrary
percentage because it seemed excessive to the court." Id. (internal quotation marks
omitted).
1.
Prevailing party
Sigler questions whether Brzowski is even a prevailing party entitled to an award
of attorney's fees. Sigler's Resp. Br. at 2–3; see also 42 U.S.C. § 1988(b) ("In any
action or proceeding to enforce a provision of . . . [section] 1983 . . . the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs."). Because only one of out of six defendants and one
out of four claims preceded to trial, Sigler contends that Brzowski is not a prevailing
party for purposes of section 1988. Sigler's Resp. Br. at 3.
There are two elements to a fee award under section 1988: "the party seeking
fees must qualify as a 'prevailing party' and "the fee must be 'reasonable.'" Simpson v.
Sheahan, 104 F.3d 998, 1001 (7th Cir. 1997). "A plaintiff prevails when actual relief on
the merits of his claim materially alters the legal relationship between the parties by
modifying the defendant's behavior in a way that directly benefits the plaintiff." Id.
(alterations accepted and internal quotation marks omitted). "A judgment for damages
in any amount, whether compensatory or nominal, confers prevailing-party status on a
4
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plaintiff." Id. In this, the jury ruled in Brzowski's favor and awarded him substantial
damages. Thus, he is entitled to attorney's fees. See Capps v. Drake, 894 F.3d 802,
804 (7th Cir. 2018) (holding that because plaintiff was awarded substantial damages, he
should have been awarded attorney's fees).
If Brzowski had "received only a technical, nominal, or de minimis damage
award," Sigler's argument might have some weight. See id.; see also Perlman v. Zell,
185 F.3d 850, 859 (7th Cir. 1999) ("We have held in a series of recent cases that a
litigant who wins less than 10% of his initial demand either is not a prevailing party for
purposes of fee-shifting statutes or should be treated as if he had not prevailed."). But
that is not Sigler's argument. Instead her argument is that because Brzowski's suit was
pared down to just one claim against one defendant, he is not a prevailing party.
Sigler's Resp. Br. at 2–3. Yet, none of the cases Sigler cites support this theory. See
Simpson v. Sheahan, 104 F.3d at 101; Perlman v. Zell, 185 F.3d at 859; Fletcher v. City
of Fort Wayne, 162 F.3d 975, 977–78 (7th Cir. 1998) (holding that a party's acceptance
of an offer of judgment does not, per se, establish that the plaintiff is a prevailing party
entitled to attorney's fees); Cole v. Wodziak, 169 F.3d 486, 488 (7th Cir. 1999)
(determining that plaintiffs in a race discrimination suit were prevailing parties entitled to
reasonable attorney's fees). And the Court has not uncovered any precedent in line
with Sigler's theory.
The Court can safely conclude that because Brzowski prevailed at trial on a claim
for relief that covered the entirety of his injury and was awarded substantial damages,
he is a prevailing party entitled to attorney's fees. See Capps, 894 F.3d at 804.
5
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2.
Reasonable hourly rates
The Court next considers the reasonableness of Brzowski's requested fees. See
Simpson, 104 F.3d at 1001. Reasonable hourly rates must be "based on the local
market rate for the attorney's services." Montanez v. Simon, 755 F.3d 547, 553 (7th Cir.
2014). "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.
Brzowski's proposes the following rates for his trial team: $550 per hour for
attorney Victor Henderson; $450 per hour for attorneys Devlin Schoop and Christopher
Carmichael; $325 per hour for attorney Alexandra Hunstein; and at $275 per hour for
attorney Kelsey Van Overloop. Brzowski's Fee Pet. at 4. In support of these rates,
Brzowski has included affidavits from Henderson, Schoop, and Carmichael that he says
support their respective billing rates. See dkt. no. 191-3; dkt. no. 191-4; and dkt. no.
191-6. Brzowski has also supplied comparator cases that he contends support the
reasonableness of his attorneys' respective rates. See Brzowski's Fee Pet. at 6–7.
Sigler argues that these none of the requested rates are justified. See Sigler's
Resp. Br. at 12–13. She notes that the attorneys have not provided evidence of what
they billed for similar work and says they have cited to cases that are distinguishable.
Id. at 13. Sigler also argues that Henderson's, Schoop's, and Carmichael's affidavits
are self-serving and cannot justify their requested rates. Id. She further notes that
Brzowski has not offered any evidence to support the requested rates for Van Overloop
and Hunstein. Id. n.2. As a result, Sigler suggests a rate of $385 per hour for
6
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Henderson, Schoop, and Carmichael. 3 See id. at 14 (citing Montanez, 755 F.3d at 554
(affirming a $385 per hour rate for "experienced attorneys" who did not adequately
support their proposed rates)).
In his reply, Brzowski concedes that he has not provided any evidence to support
either Van Overloop's or Hunstein's rates and asks the Court to instead award these
attorneys only $150 per hour. Brzowski's Reply Br. at 8 n.2, 13 (citing Cooper v. City of
Chicago, No. 16 C 3519, 2018 WL 3970141, at *16 (N.D. Ill. Aug. 20, 2018) (Kennelly,
J.) (assigning a rate of $150 per hour to an attorney who failed to meet her burden of
proving her rate)). Regarding Henderson, Schoop, and Carmichael, Brzowski asserts
that the requested rates are reasonable and contends that the declarations and
comparator cases are enough to support them. Brzowski's Reply Br. at 9.
The Court concludes that Brzowski has not adequately supported his proposed
rates. Sigler is right to argue the attorneys' affidavits—at least these particular
affidavits—are not enough. See Harper v. City of Chicago Heights, 223 F.3d 593, 604
(7th Cir. 2000) ("[A]n attorney's self-serving affidavit alone cannot establish the market
rate for that attorney's services."). Instead, such affidavits are sufficient to satisfy a fee
petitioner's burden when submitted "in conjunction with other evidence of the rates
charged by comparable lawyers." Id.
Brzowski has also cited cases in this district that he believes support the
requested rates. See Brzowski's Fee Pet. at 6–7 (citing cases). The cited cases
certainly support his argument that the proposed rates are within the range of rates
Though she does not say, the Court assumes Sigler is not proposing a $385 per hour
rate for Van Overloop and Hunstein, as this rate would be above Brzowski's requested
rate for those attorneys.
3
7
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awarded in this district, but that is not enough. The comparator cases are meant to be
"evidence of rates similarly experienced attorneys in the community charge paying
clients for similar work." Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th
Cir. 2011). Because Brzowski has not drawn the link between his attorneys' experience
and that of the attorneys in the cited cases, these cases do not move the needle.
With insufficient evidence to support the requested rates, the Court must
independently determine the attorneys' appropriate rates. Alicea v. All Our Children's
Advoc. Ctr., No. 15 C 7795, 2017 WL 6513164, at *3 (N.D. Ill. Sept. 6, 2017) (quoting
Montanez, 755 F.3d at 553) ("If the fee applicant does not satisfy its evidentiary burden,
then 'the district court can independently determine the appropriate rate.'"); Pouncy,
2017 WL 8205488, at *4. To do this, the Court must consider the rates "awarded to
similarly experienced Chicago attorneys in other civil-rights cases in the district."
Montanez, 755 F.3d at 554.
a.
Henderson
Henderson has the most legal experience of Brzowski's attorneys. According to
his affidavit, Henderson has been a member of the Illinois bar since 1990, was formerly
a partner at a large law firm, and is a past president of the Chicago Bar
Association. Dkt. 191–3 at ECF pp. 1–2. He has tried civil rights cases and has civil
rights argued appeals, but he does not say how long or how many. See id.
Citing Montanez, Sigler proposes a rate for Henderson of $385 per hour, but that
sets the bar too low. The two lead attorneys in Montanez had nine and thirteen years of
experience, respectively. See Montanez, 755 F.3d at 551. Henderson has at least the
thirty-one years of experience, and his hourly rate should reflect that lengthy
8
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experience. Thus, he is entitled to more than $385 per hour. But not as much more as
Brzowski proposes. Henderson has not provided "concrete examples of the hourly
rates of similarly experienced attorneys performing similar work," see In re Subpoenas
Issued to Danze, Inc., No. 05 C 4538, 2006 WL 211942, at *3 (N.D. Ill. Jan. 18, 2006),
and he has not established any particular expertise in civil rights cases, see Montanez,
755 F.3d at 554.
Balancing these considerations, the Court concludes that reasonable hourly rate
for Henderson's work is $465 per hour. This is between the two sides' proposed rates,
and more importantly it is comparable to the rates of similarly situated attorneys. See,
e.g., Danze, Inc., 2006 WL 211942, at *2–3 (determining, in 2006, that an attorney with
thirty-eight years' experience was entitled to only $425 per hour because the case did
not involve his area of expertise); Cooper, 2018 WL 3970141, at *15 (concluding that an
attorney with twenty-two years' experience, who was also admitted into the federal bar
and had relevant experience, deserved a $475.00 per hour rate).
b.
Schoop and Carmichael
Schoop has twenty-four years of experience, having been licensed to practice
since 1997. See dkt. no. 191–4 at ECF p. 2. According to his affidavit, Schoop has
experience in civil rights litigation (particularly with section 1983) because he was
Senior Counsel in the City of Chicago Law Department's Federal Civil Rights Litigation
Division. Id. at 2. Schoop has tried a number of civil rights cases and has argued a
number of appeals. Id. at 2–3 (citing cases). As a former Illinois Circuit Judge, Schoop
has also presided over nearly 100 bench trials. Id. at 2.
Carmichael has been licensed to practice for nineteen years. See dkt. no. 191–6
9
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at ECF p. 1. Before joining his current firm, Carmichael was a partner at a large law
firm. Id. at ECF p. 3. Since joining his current firm, he has represented plaintiffs in state
and federal civil rights cases and has argued more than fifty appeals before state and
federal appellate courts. Id.
For Schoop and Carmichael, Sigler proposes a rate of $385 per hour in place of
Brzowski's proposed rate of $450. The Court disagrees with Sigler and instead
concludes that Brzowski's proposed rate for both attorneys is reasonable given their
experience and the rates charged by similar lawyers with similar experience. See
Degorski v. Wilson, No. 04 C 3367, 2014 WL 6704561, at *6 (N.D. Ill. Nov. 26, 2014)
(concluding that an Illinois based attorney with twenty-four years or experience with
extensive federal and state trial practice and relevant experience was entitled to a $450
rate).
c.
Van Overloop and Hunstein
Brzowski has conceded that he has failed to offer any evidence to support either
Van Overloop's or Hunstein's rates. Brzowski's Reply Br. at 8 n.2, 13 As such, the
Court agrees with Brzowski's revised proposal and concludes that these attorneys'
hourly rate should be $150 per hour. See Cooper, 2018 WL 3970141, at *16.
2.
Lodestar
In sum, the Court finds that the appropriate hourly rates for Brzowski's counsel
are as follows: Henderson at $465 per hour; Schoop and Carmichael at $450 per hour;
and Van Overloop and Hunstein at $150 per hour. With those modifications, Brzowski's
proposed lodestar has to be reduced. Considering the modified rates above and the
itemized entries Brzowski has supplied, the lodestar is $224,028.00. The following table
10
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summarizes the Court's calculations 4 5:
Attorney
Victor Henderson
Devlin Schoop
Christopher Carmichael
Alexandra Hunstein
Kelsey Van Overloop
Total
2.
Total Hours
68.2
338.1
58.6
89.1
2.9
Billed Rate
$465
$450
$450
$150
$150
Lodestar
$31,713.00
$152,145.00
$26,370.00
$13,365.00
$435.00
$224,028.00
Sigler's objections
Sigler objects to several time entries in Brzowski's billing records on the basis
that they are either vague, duplicative, excessive, secretarial tasks, or unrelated. The
Court addresses each objection in turn.
a.
Entries unrelated to the prevailing claim
In tandem with her prevailing-party argument, Sigler argues that Brzowski's
attorneys have improperly charged for time spent on activity that was not related to the
Eighth Amendment claim that he prevailed upon at trial. 6 See Sigler's Resp. Br. at 3.
In conjunction with the parties' Joint Statement of Facts, the Court has subtracted time
spent preparing responses to cross-motions for summary judgment from both
Henderson's and Schoop's total hours. See dkt. no. 194-1 at ECF p. 47; Local Rule
54.3 Joint Statement of Facts at 10.
4
Several of the attorneys' billing entries do not identify which attorney completed the
reported task. See Sigler's Resp. Br. at 9; see generally dkt. no. 191-1. In his reply,
Brzowski provided the billing attorney for some of these entries but neglected to do the
same for others. See Brzowski's Reply Br. at 12–13. Hence, the Court excludes from
its calculation the unclaimed entries from 6/26/2019, 6/28/2019, 7/12/2019, 10/11/2019,
11/19/2019, 1/3/2019, 1/4/2020, 1/10/2020, 1/22/2020, 1/24/2020, 1/28/2020, 7/9/2020,
and 7/20/2020.
5
Sigler's citation to 42 U.S.C. § 1997e(d)(1)(A) is unavailing. See id. (emphasis added)
("In any action brought by a prisoner who is confined to any jail, prison, or other
correctional facility, in which attorney's fees are authorized under section 1988 of this
title, such fees shall not be awarded, except to the extent that . . . the fee was directly
and reasonably incurred in proving an actual violation of the plaintiff's rights protected
6
11
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But "when claims are interrelated, as is often the case in civil rights litigation, time spent
pursuing an unsuccessful claim may be compensable if it also contributed to the
success of other claims." Bellamy v. City of Chicago, No. 15 C 02678, 2017 WL
3675729, at *13 (N.D. Ill. Aug. 25, 2017) (citing Jaffee v. Redmond, 142 F.3d 409, 413
(7th Cir. 1998)); see also C.W. v. Bd. of Educ. of City of Chicago, Dist. 299, No. 11-CV2349, 2012 WL 355360, at *8 (N.D. Ill. Feb. 1, 2012) (alterations accepted) ("It is
appropriate to consider the litigation as a whole, rather than viewing the specific claims
atomistically, if 'the plaintiff's claims of relief involve a common core of facts or are
based on related legal theories.'").
As such, federal courts have allowed the recovery of fees for unsuccessful claims
where those claims involved "'a common core of facts or related legal theories.'"
Bellamy, 2017 WL 3675729, at *13; see Hensley, 461 U.S. at 440 ("Where a lawsuit
consists of related claims, a plaintiff who has won substantial relief should not have his
attorney's fee reduced simply because the district court did not adopt each contention
raised."). That some theories and arguments asserted and pursued by Brzowski's
counsel were unsuccessful does not mean that those same theories and arguments
were also unreasonable. See Bellamy, 2017 WL 3675729, at *13. Brzowski's earlier
complaints and claims (as well as related work) were "factually related" to the claim on
which he prevailed at trial and thus were "reasonably calculated to result in relief." See
Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 661–62 (7th Cir. 2007). Moreover,
Brzowski has explained the strategic purpose behind many of the purportedly
by a statute."). Brzowski's suit was brought under section 1983 and he was no longer a
prisoner at the time his suit was filed.
12
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"unrelated" tasks. See Brzowski's Reply Br. at 2–7; see also Jaffee, 142 F.3d at 414
(stating that "the touchstone" in cases where fees awarded for unsuccessful claims are
or argument is not whether they were successful, but whether they were reasonable).
Thus, this Court may award attorneys' fees for this work. See id.
Sigler's other objections on this basis are also unavailing. The fact Sigler was
not initially a defendant is of no matter. See Sigler's Resp. Br at 7. The claims against
her were arose from the same common core of facts as the claims that Brzowski
pursued before she was added. Brzowski's May 12, 2020 status report may have been
unneeded, but it was certainly related to this case and therefore reasonable. See id. at
8. And last, of course Brzowski is entitled to attorneys' fees for additional summary
judgment briefing ordered by the Court. See id. It does not matter that Sigler's second
motion for summary judgment would have been unnecessary if the Court had not
permitted Brzowski to amend his complaint. The fact of the matter is that Brzowski was
permitted to amend his complaint and did so. The third amended complaint involved
the same common core of facts as the earlier versions, and thus it was undoubtedly
related to the earlier complaints. Moreover, after the complaint was filed, Sigler moved
for summary judgment, so it was obviously necessary for Brzowski to respond to that
motion.
In short, the Court will not exclude from the fee award reasonable hours spent on
related efforts. Brzowski is entitled to an award that takes account of the fact that his
counsel went down seemingly promising roads even though they turned out to be dead
ends. See Montanez, 755 F.3d at 555.
13
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b.
Excessive time
Sigler next argues that many (in fact almost all) of the attorneys' billed time is
excessive. See Sigler's Resp. Br. at 6, 11. "[T]he line between ample preparation and
excessive preparation is, at the margin, a fine one." Charles v. Daley, 846 F.2d 1057,
1076 (7th Cir. 1988). Sigler "offers only a bare list of entries that [she] deems
excessive" and little rationale for supporting her conclusion. See O'Sullivan v. City of
Chicago, 484 F. Supp. 2d 829, 837 (N.D. Ill. 2007). She "has offered no objective
standard, no 'reasonable' number of hours to spend on a given activity, with which to
compare." Id. As such, the Court "will not engage in an arbitrary determination of how
long a 'reasonable' attorney would spend on" a given matter and instead will include the
allegedly excessive entries in the lodestar. See id.
c.
Secretarial tasks
Sigler also asserts that Brzowski has impermissibly billed for secretarial work. "In
calculating the number of hours reasonably expended on a case, courts should disallow
time spent on what are essentially clerical or secretarial tasks." Cloutier v. GoJet
Airlines, LLC, No. 16 C 1146, 2019 WL 5260756, at *4 (N.D. Ill. Oct. 17, 2019)
(Kennelly, J.) (internal quotation marks omitted); Spegon v. Catholic Bishop of Chicago,
175 F.3d 544, 553 (7th Cir. 1999) (concluding that "organizing file folders, document
preparation, and copying documents" were clerical or secretarial tasks). In determining
whether an entry includes a clerical or secretarial task, the Court must consider whether
the task was sufficiently complex enough to justify the use of non-clerical staff. See
People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1315 (7th
Cir. 1996)
14
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The Court agrees with Sigler that several of the attorneys' time entries involve
clearly secretarial tasks. Some of these entries are poorly documented and therefore
make it difficult for the Court to assess the work's complexity. See Cloutier, 2019 WL
5260756, at *4. The Court will disallow entries that are too vague to permit a finding
that the work required an attorney's skill. The Court will also exclude entries for time
spent "organizing files . . . or copying, formatting, processing, or preparing documents."
Id. On those bases the following entries will be excluded from the final award:
Date
Attorney
Description
Time Billed
12/28/17
Hunstein
.60
2/5/18
Hunstein
5/23/18
Hunstein
Complete civil cover sheet and provide
summons information for filing (.40);
Prepare appearances (.20)
Review waivers of service of summons and
prepare for issuance.
Finalize and file First Amended Complaint
7/23/18
Hunstein
8/23/18
Carmichael
9/14/18
Hunstein
6/28/19
Carmichael
6/28/19
Schoop
4/17/19
Schoop
6/28/19
Carmichael
.40
1.20
Finalize and file the Second Amended
Complaint
Review and approve appearance in the
case
Prepare Notice of Motion for Motion for
Leave to Submit Additional Authority
created, then edited
1.80
Obtain copies of decisions involving client
.70
Drafting and filing attorney appearance for
Devlin Joseph Schoop in the Brzowski v.
Baldwin matter
Document2 created, then reviewed (.20);
Scanned from a Xerox Multifunction Device
created (.10); Creating summary of
Brzowski complaints (1)
Obtain copies of decisions involving client,
including Brzowski v Dept of Corrections 2018 IL App (4th) 170010-U; Laura
Brzowski v Walter Brzowski - 2018 IL App
(4th) 170010-U; Brzowski v IL Prisoner
Review Bd - 2018 ILApp (4th) 160601-U;
.50
15
.20
.30
1.30
.70
Case: 1:17-cv-09339 Document #: 205 Filed: 09/21/21 Page 16 of 21 PageID #:3970
10/30/19
Schoop
12/17/19
Schoop
7/9/20
Schoop
7/13/20
Schoop
7/20/20
Schoop
7/24/20
Schoop
7/28/20
Schoop
Brzowski v Tristano - 2019 IL App (1st) 172
558-U; People v Brzowski - 2015 IL App
(3d) 120376; and Brzowski v Brzowski 2014
IL App (3d) 130404
2019-10-30, dkt. #87, Defendants' Notice of
Motion for Extension of Time to File MSJ
Response created (.10); 2019-10-30, dkt.
#86 Defendants' Motion for Extension of
Time created (.10)
2019 -12-02-- _DE 100, Brzowski
Defendants' Later Filed Exhibits created
(.10)
Brzowski, Nicholas Lamb Deposition
Designations created (.10); Brzowski, Guy
Pierce Deposition Designations created
(.10)
Bellamy MILS created (.10); Hostile Witness
MIL created (.10); Alexander v Zinchuk MILs
created (.10); Wilson MILS created (.10);
Anderson Mils created (.10); Brzowski MIL
GroupX 1 created (.10); Cooper MILS 1
through 8 created (.10); Brzowski MIL X 2
created (.10)
People v. Brzowski, 10 CF 1923 Bill of
Indictment created (.10); Plaintiff's Proposed
Deposition Designations Main Document
created (0.10); Parties' Proposed Final PreTrial Order -- FINAL.7.20.2020 created
(.10); Plaintiff's Response to Defendant's
Motions in Limine Nos. 1 through 10 created
(.10); Plaintiff 's Response to Defendant's
Motions in Limine Nos. 1 through 10 Ex 4
created (.10); Brzowski -lDOC 000054000237 reviewed (.10); Plaintiff's Proposed
Deposition Designation Ex 1-Lamb created
(.10); Guy Pierce Deposition Designations
created (.10)
2020-07-23_--_DE 157 Sigler Brief in
Opposition to Deposition Designations in
Lieu of Live Testimony created (.10); 202007-23_ --_DE 155 Minute Order Setting
Video Conference for July 24, 2020 PreTrial Conference created (.10)
Amended Proposed Deposition
Designations in Lieu of Live Testimony and
Defendant's Objections created (.10)
16
.20
.10
.20
.80
.70
.20
.10
Case: 1:17-cv-09339 Document #: 205 Filed: 09/21/21 Page 17 of 21 PageID #:3971
7/29/20
Schoop
7/30/20
Schoop
9/4/20
Schoop
10/2/20
Schoop
2020-07-29_--_DE 162 Sigler's Objections
to Deposition Designations created (.10)
Revised PX 25 (reduced number of photos)
created (.10); Plaintiff's Response to
Defendant's Objections to Proposed
Deposition Designations created (.10)
2020-09-03_--_DE 176 Def's Memo in
Support of Combined Motion under Rules
50(b) & 59(a) created, then reviewed (.10)
2020-10-02 Memo in Opposition to Sigler's
Combined Motion Under Rules 50(b) and
59(a) created (.10); 2020-10-02 Transmittal
Ltr to Judge Kennelly re Memo of Law
created, (.10)
.10
.20
.10
.20
In sum, the Court will exclude 4.3 hours from Hunstein's total time, 1.6 hours
from Carmichael's total time, and 4.7 hours from Schoop's total time. The Court
overrules Sigler's remaining secretarial work objections.
e.
Inadequately documented entries
Next to consider is Sigler's contention that many of the entries are inadequately
documented, i.e. unduly vague. "[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). District courts have this "broad discretion to strike such
vague or unjustified billing entries" because it encourages "candor in fee requests and
relieves the burden on district courts faced with vague or poorly documented fee
claims." Id.
The Court agrees that some of the attorneys' billing entries are unduly vague and
will strike those entries it concludes do not provide enough information to judge whether
the entry involved time spent on Brzowski's claims or enough information to determine
17
Case: 1:17-cv-09339 Document #: 205 Filed: 09/21/21 Page 18 of 21 PageID #:3972
whether attorneys expended their time reasonably. See Cloutier, 2019 WL 5260756, at
*6. The following entries will be excluded from the award amount:
Date
Attorney
Description
Time Billed
11/1/18
Hunstein
1.60
1/14/19
Hunstein
1/22/19
Hunstein
4/15/19
Henderson
4/17/19
Schoop
Review available documents and create
summary of information
Review materials related to discovery to
provide update on discovery
Revise and edit Plaintiff's Response to
RFPs and Interrogatories; Prepare for client
review.
Attention to discovery; communicate with
client and opposing counsel regarding
prison visits.
2 emails sent/reviewed
4/19/19
Schoop
1 email sent/reviewed
.10
5/1/19
Schoop
4 emails sent/reviewed
.20
5/2/19
Schoop
1 email sent/reviewed
.10
5/3/19
Schoop
2 emails sent/reviewed
.20
5/6/19
Schoop
1 email sent/reviewed
.50
5/13/19
Schoop
4 emails sent/reviewed
1.3
5/14/19
Schoop
4 emails sent/reviewed
.20
6/3/19
Schoop
4 emails sent/reviewed
.20
9/26/19
Van Overloop Edited Devlin's draft
10/11/19
Schoop
10/15/19
Carmichael
10/15/19
Henderson
9/23/20
Schoop
.70
1.50
.50
.20
1
1 email sent/reviewed regarding FOR
YOUR REVIEW
Review List of Mr. B's Lawsuits, CM_ECF
entries, and related proceedings)
1 email sent/reviewed (.10)
.10
1 message sent/reviewed (.10); 2 internal
messages sent/reviewed (.10)
.20
18
.40
.10
Case: 1:17-cv-09339 Document #: 205 Filed: 09/21/21 Page 19 of 21 PageID #:3973
As a result of these exclusions, the Court will subtract 3.8 hours from Hunstein's
total time, 3.3 hours from Schoop's, 1 hour from Van Overloop's total time, 0.6 hours
from Henderson's total, and .40 from Carmichael's total time. The Court overrules the
remainder of Sigler's vagueness objections.
f.
Duplicative entries
Because "overstaffing cases inefficiently is common," district courts are
"encouraged to scrutinize fee petitions for duplicative billing when multiple lawyers seek
fees." Schlacher v. L. Offs. of Phillip J. Rotche & Assocs., P.C., 574 F.3d 852, 858 (7th
Cir. 2009). Sigler urges the Court to reduce the fee award further because she believes
Brzowski has included several duplicative entries. But almost all these entries are for
assignments that one attorney completed over a period of time, rather than one
attorney's work being duplicative of another's. See generally dkt. no. 194-1; see also
Bellamy, 2017 WL 3675729, at *7 (analyzing plaintiff's billing entries for "pervasive
overstaffing"). 7
Nevertheless, Brzowski has agreed to withdraw some of the contested entries.
Brzowski no longer seeks fees for Schoop's work on 4/11/2019 (3.0 hours), 3/4/20 (.30
hours), 3/5/20 (11.40 hours), and 3/6/20 (9.50 hours). Brzowski's Reply Br. at 12. In
total then, the Court will reduce Schoop's total by an additional 24.2 hours.
g.
Block billing
Block billing—the combination of several discrete tasks in a single billing entry
To the extent Sigler objects to Brzowski's attorneys billing for different times for similar
events (e.g., meeting with Brzowski or trial preparation meetings), it's unclear what
basis she has for that objection. It's not uncommon for persons attending a meeting to
arrive and leave at different times. And without more, it's certainly not evidence of
duplicative work.
7
19
Case: 1:17-cv-09339 Document #: 205 Filed: 09/21/21 Page 20 of 21 PageID #:3974
without specifying the amount of time spent on each task—"is not a prohibited practice"
in this circuit. Gibson v. City of Chicago, 873 F. Supp. 2d 975, 986 (N.D. Ill. 2012).
Sigler contends that Brzowski's attorneys have block-billed both compensable and noncompensable work, but her objections do not identify what she contends the noncompensable work is. In any event, the Court has already considered Sigler's other
objections for non-compensable work and has excluded the impermissible entries either
entirely or partially. The Court is not also "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). These objections are therefore overruled.
3.
Modified lodestar
Taking into the above-stated exclusions, the attorneys' total hours are reduced as
follows: Henderson's by .60 hours, Schoop's by 32.2 hours, Carmichael's by 2 hours,
Hunstein by 8.1 hours, and Van Overloop by 1.9 hours. The following table summarizes
the Court's resulting calculations:
Attorney
Victor Henderson
Devlin Schoop
Christopher Carmichael
Alexandra Hunstein
Kelsey Van Overloop
Total
Total Hours
67.6
305.9
56.6
81.0
1.9
Billed Rate
$465
$450
$450
$150
$150
Lodestar
$31,434.00
$137,655.00
$25,470.00
$12,150.00
$285.00
$206,994.00
The modified lodestar amount is $206,994, which the Court finds is reasonable.
B.
Costs
Brzowski seeks costs of $4,487.30. "There 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 Tr. Co., 411 F.3d
20
Case: 1:17-cv-09339 Document #: 205 Filed: 09/21/21 Page 21 of 21 PageID #:3975
854, 864 (7th Cir. 2005). Sigler does not object to Brzowski's costs. The Court awards
his requested costs in full.
Conclusion
For the reasons stated above, the Court grants Brzowski's petition for attorneys'
fees [dkt. no. 190] and the motion for bill of costs [dkt. no. 173]. The Court awards
Brzowski $206,994 in attorneys' fees and $4,487.30 in costs.
________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: September 21, 2021
21
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