Shepard et al v. Madigan et al
Filing
124
MEMORANDUM & ORDER. For the reasons explained in the attached Memorandum & Order, (1) Plaintiffs are held to be prevailing parties; (2) Plaintiffs' Motion to Cite Supplemental Authority (Doc. 121 ) is GRANTED; and (3) Plai ntiffs' Motion Seeking Fees, Expenses, and Costs (Doc. 106 ) is GRANTED IN PART. Defendants shall compensate Plaintiffs in the amount of $533,603.80, as detailed herein. Briefing regarding fees for work on the fee petition shall commence according to the schedule and page limitations found on page 23. See attached for details. Signed by Judge Michael J. Reagan on 9/29/2014. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARY SHEPARD, and
ILL. STATE RIFLE ASS’N,
Plaintiffs,
vs.
LISA M. MADIGAN,
GOVERNOR PATRICK J. QUINN,
TYLER R. EDMONDS, and
SHERIFF DAVID LIVESAY,
Defendants.
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Case No. 11–cv–0405–MJR–PMF
MEMORANDUM & ORDER
REAGAN, District Judge:
Courts in the United States generally follow the “American Rule,” 1 which
prevents an award of attorneys’ fees to any party in a case. Congress carved out an
exception to the American Rule in 42 U.S.C. § 1988, which permits the award of
“reasonable” attorneys’ fees to a “prevailing party” in § 1983 civil rights litigation.
42 U.S.C. § 1988(b).
This § 1983 case comes before the Court on Plaintiffs’ Motion for Attorney
Fees. Defendants dispute (1) whether Plaintiffs are “prevailing parties” and (2)
whether the fees sought are “reasonable.”
After the necessary procedural
background, the Court will take those issues in turn.
So-named in juxtaposition to the British, “loser-pays” rule. See Johnson v. Daley, 339 F.3d 582,
591 (7th Cir. 2003).
1
1
BACKGROUND
In May 2011, pursuant to 42 U.S.C. §1983, Plaintiffs (one private citizen and
a gun rights advocacy organization) brought suit to challenge the constitutionality
of three Illinois gun law provisions. The now-retired Senior Judge William D. Stiehl
granted Defendants’ motions to dismiss in March 2012.
(Doc. 57).
Plaintiffs
appealed, and the Seventh Circuit (in a consolidated appeal) reversed and
remanded, holding the statutes violated the Second Amendment.
Moore v.
Madigan, 702 F.3d 933 (7th Cir. 2012). Though the Court of Appeals’ opinion was
published on December 11, 2012, its mandate was twice stayed (for 210 total days)
“to allow the Illinois legislature to craft a new gun law that will impose reasonable
limitations, consistent with the public safety and the Second Amendment.” Id. at
942; Shepard v. Madigan, 734 F.3d 748, 749 (7th Cir. 2013).
On July 9, 2013, the Court of Appeals issued its mandate, invalidating the
challenged statutes.
(Doc. 72).
Later that day (Defendants do not dispute the
timing), the Illinois legislature enacted a new gun law to replace the old ones. See
Shepard, 734 F.3d at 749. 2
Now before the Court is Plaintiffs’ Motion for Attorneys’ Fees, Expenses, and
Taxable Costs, bolstered by a supporting brief and over 260 pages of affidavits,
declarations, and billing information (Doc. 106, Doc. 107). Plaintiffs seek an award
of fees and costs for three teams of lawyers and staff who worked on their case: (1)
A second round of briefing and appeals ensued. Plaintiffs moved for an injunction asking, in
essence, that any Illinoisan with a Firearm Owner’s Identification (“FOID”) Card be allowed to carry
a gun outside the home. Judge Stiehl denied that motion (Doc. 89), then Plaintiffs appealed and lost
(Doc. 104). See also Shepard v. Madigan, 734 F.3d 748 (7th Cir. 2013). Plaintiffs, in the instant
motion, do not seek remuneration for any services incurred during that second round of litigation.
2
2
attorney William N. Howard and his squads of Chicago-based attorneys at Freeborn
& Peters and at Locke Lord (he moved firms mid-litigation); (2) attorneys and staff
at Cooper & Kirk, a Washington, D.C.-based firm with extensive appellate
experience; and (3) attorney Stephen P. Halbrook, a Second Amendment expert who
worked on the case. The motion, which drew an objection (Doc. 119) (which in turn
drew a reply brief (Doc. 120)), is ripe for ruling. Though Plaintiffs originally sought
$641,091.65 in aggregate fees, expenses and costs, their reply cedes several points,
and their request demand is $618,606.30.
For the reasons explained below, the Court GRANTS IN PART Plaintiffs’
Motion (Doc. 106) and ORDERS Defendants to pay $533,603.80 to Plaintiffs.
1. Plaintiffs are Prevailing Parties for Purposes of 42 U.S.C. § 1988
The American Rule normally prevents federal courts from awarding
attorneys’ fees to any party absent express statutory authorization.
Gaffney v.
Riverboat Servs. of Indiana, Inc., 451 F.3d 424, 467 (7th Cir. 2006). Congress
authorized such an exception in 42 U.S.C. § 1988(b), which provides in pertinent
part that a court may “allow the prevailing party” in § 1983 civil rights litigation a
“reasonable attorney’s fee and costs.” 42 U.S.C. § 1988(b).
Fees and costs, however, “do not follow moral victories.” Richardson v. City
of Chi., 740 F.3d 1099, 1102 (7th Cir. 2014). They depend on concrete judgments
that alter legal relations. Id. A plaintiff who achieves a desired result because its
lawsuit brought about a defendant’s voluntary change is not, without the “necessary
judicial imprimatur on the change,” a § 1988 “prevailing party.” Buckhannon Bd. &
3
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 601–02;
605 (2001). Defendants assert that, because no final judgment was entered in this
Court, Plaintiffs cannot be “prevailing parties” within the meaning of §1988.
In National Rifle Association v. Chicago, the Seventh Circuit addressed a
§ 1988 fee award similar to the one here. Nat’l Rifle Ass’n of Am., Inc. v. City of
Chi., 646 F.3d 992 (7th Cir. 2011). In the wake the Supreme Court striking down a
federal ban on handguns as violative of the Second Amendment, 3 the NRA (and a
citizen named Otis McDonald) sued Chicago and the Village of Oak Park over
functionally similar ban. The plaintiffs won at the district and appellate levels, but
the Supreme Court, incorporating a Bill of Rights amendment against the States for
the first time in almost four decades, ruled in plaintiffs’ favor. McDonald v. City of
Chi., 130 S. Ct. 3020 (2010). 4 The Supreme Court entered its judgment in June
2010, and the municipalities repealed their ordinances in July 2010. In August
2010, the Seventh Circuit directed the district court to dismiss the suits for want of
a case or controversy. See 393 F.App’x 390 (7th Cir. 2010). The plaintiffs requested
attorneys’ fees under § 1988, but the defendants argued that, because the district
court did not enter a final judgment before the statutes were repealed, no prevailing
party status had attached.
Judge Easterbrook distinguished NRA from two cases, Buckhannon and
Zessar. Buckhannon held that a suit’s role as a “catalyst” in sparking a defendant’s
District of Columbia v. Heller, 554 U.S. 570 (2008).
Footnote 12 of the McDonald opinion identifies the nineteen other rights (most recently the Eighth
Amendment’s protection against excessive bail, Schilb v. Kuebel, 404 U.S. 357 (1971)), that have
been incorporated as to the States via the Fourteenth Amendment’s Due Process Clause. McDonald,
130 S.Ct. at 3035 n. 12. Only five enumerated rights have not been incorporated. Id. at n. 13
3
4
4
change in policies did not support a fee award, because only obtaining a judicial
order altering the parties’ relative legal status counts as “prevailing.” NRA, 646
F.3d at 993 (explaining Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598 (2001)). Zessar applied Buckhannon’s rule to a
case that became moot in between a district court’s opinion and the (vacated on
appeal) entry of judgment. Id. (explaining Zessar v. Keith, 536 F.3d 788 (7th Cir.
2008)).
NRA differed because the plaintiffs did obtain a judgment—from the
Supreme Court—that altered the parties’ legal relationship. Id. The defendants’
surrender of their legal position after the Supreme Court’s judgment did not entitle
them to vacatur. Id. at 994. The Second Amendment question was the issue at the
heart of the litigation, and after the Supreme Court’s decision, the “defendants’
position was untenable.” Id. The Supreme Court’s favorable judgment sufficed as
“the necessary judicial imprimatur” to establish prevailing party status for the
plaintiffs, and the Court of Appeals ordered § 1988 fees awarded. Id.
Here, Defendants’ attempt to hew to Zessar and Buckhannon rather than
NRA is unpersuasive. At the heart of the argument is the assertion that Plaintiffs
received a judicial pronouncement (i.e. a favorable opinion), but not judicial relief
(i.e. an order). But unlike Zessar, where vacatur left the case without a judgment
on any level, 536 F.3d at 790, here the Seventh Circuit issued both its opinion and a
mandate. Unlike Buckhannon, where a district court ruled the case moot before
any substantive legal questions were addressed (or final judgments issued), here
the Court of Appeals addressed “the issue in this litigation” and filed a final order in
5
Plaintiffs favor. See NRA, 646 F.3d at 994 (emphasis there). So while no final
order issued in the district court, a higher court (as in NRA 5) rendered Defendants’
position untenable and entered its final order.
Then state actors changed an
unconstitutional ordinance: the Seventh Circuit issued its mandate on July 9, 2013,
and Illinois amended its unconstitutional firearms laws later that day. “When the
[higher court] rendered its decision, the controversy was live.” NRA, 646 F.3d at
993. See also Palmetto Props., Inc. v. Cnty. of DuPage, 375 F.3d 542, 551 (7th Cir.
2004) (“It would fly in the face of legal intuit” to conclude a delay in entering a final
order would strip summary judgment victor of “prevailing party” status).
Plaintiffs are prevailing parties under 42 U.S.C. § 1988. Before addressing
the reasonableness of the fees, expenses and costs sought by Plaintiffs, the Court
briefly discusses two preliminary matters.
2. Plaintiffs’ Motion to Cite Supplemental Authority (Doc. 121) — GRANTED
Plaintiffs have provided a Northern District of Illinois order in which Cooper
& Kirk attorneys (who represented another pro-firearm organization in that case)
were awarded § 1988 attorneys’ fees based on rates ranging from $975 to $300 per
hour. (Doc. 121-1). The Court GRANTS (Doc. 121) Plaintiffs’ Motion to Cite to that
supplemental authority, but with several qualifications. The Court will consider
those fees as evidence of Cooper & Kirk’s rates (it would be error not to, see Pickett
v. Sheridan Health Care Ctr., 664 F.3d 632, 646 (7th Cir. 2011)), but not as
precedential authority, see Travelers Prop. Cas. v. Good, 689 F.3d 714, 723 (7th Cir.
NRA did not turn on which higher court had made the defendants’ legal position untenable, simply
that a Supreme Court judgment counted as “’the necessary judicial imprimatur’ on the plaintiffs’
position.” NRA, 646 F.3d at 994 (quoting Buckhannon, 532 U.S. at 605).
5
6
2012) (district court case not binding). The Court further notes those rates resulted
from a negotiated settlement between the City of Chicago and the Firearms
Retailers, not (as here) a hotly-contested fee dispute.
The distinction makes a
difference. For example, there is no record of whether the prevailing parties in the
Northern District sacrificed the number of hours in their lodestar estimate for a
higher rate. In Plaintiffs’ favor, though (as discussed in greater length below), the
Court finds Defendants’ attempt to base fee calculations strictly on the geographical
distinction between Chicago and downstate Illinois borders on the disingenuous.
3. Attorney Halbrook not per se Barred from §1988 Fees
Defendants’ broad challenge to the award of any fees to Stephen P. Halbrook
is unavailing.
Halbrook is an attorney and Second Amendment expert whom
Attorney William N. Howard (initially of Freeborn & Peters, then of Locke Lord)
enlisted for work in this litigation. Defendants assert the lack of contract between
Halbrook and Plaintiffs (or Halbrook and Howard’s firms) makes Halbrook some
sort of roving contractor who deserves no recompense.
The Court, noting that many of the hours claimed by Halbrook relate directly
to filings in this case, is generally satisfied that Halbrook worked on Plaintiffs’
behalf.
(His specific rate and hours worked will be discussed below).
Further,
attorneys in § 1983 litigation are permitted to enlist the help of other attorneys, and
the Court’s analysis of whether Halbrook’s hours are duplicative of other attorneys’
work (or otherwise unreasonable or vague) serves to lessen any concern that
consulting attorneys could simply pile on hours after a party has prevailed in § 1983
7
litigation. See Pickett, 664 F.3d at 653–54 (plaintiffs’ lawyers hired outside counsel
to litigate fees to which plaintiff was entitled); Shadis v. Beal, 692 F.2d 924, 926 (3d
Cir. 1982) (approving fee award to contracted attorney where court was satisfied
plaintiffs were not double-billed). Outside help from a third-party attorney like
Halbrook was clearly contemplated in Plaintiffs’ contract with Howard (see Doc.
119-1, 10), and Plaintiffs could have terminated their relationship with Howard
(and therefore their relationship with anyone he consulted) at any time. See Kay v.
Ehrler, 499 U.S. 432, 435–36 (1991) (“attorney” as used in § 1988 assumes an
agency relationship).
The fact that Halbrook did not enter an appearance for
Plaintiffs cannot bar him from receiving fees under § 1988.
4. Defendants’ Challenges to Reasonableness of Lodestar
After lowering their request for fees, costs, and expenses following
Defendants’
response
briefing,
Plaintiffs’
request
stands
at
$618,606.30.
Defendants assert that Plaintiffs’ request is based on excessive hours, and that
some categories of proposed remuneration are non-compensable.
The centerpiece of attorneys’ fee determinations is the “lodestar” approach,
whereby the district court multiplies the number of hours reasonably expended on
the litigation by a reasonable hourly rate. Pickett v. Sheridan Health Care Ctr.,
664 F.3d 632, 639 (7th Cir. 2011).
The district court, which can make the
contextual and fact-specific assessment of what fees are reasonable, has wide—
though not boundless—discretion in its task. Perdue v. Kenny A., 559 U.S. 542, 558
(2010); Montanez v. Simon, 755 F.3d 547, 552–53 (7th Cir. 2014). The presumption
8
that the lodestar calculation yields a reasonable award is a strong one, Pickett, 664
F.3d at 639, and the essential goal in shifting fees is “to do rough justice, not to
achieve auditing perfection,” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011); Montanez,
755 F.3d at 555. Courts should be wary when teams of lawyers (as here) performing
overlapping tasks can lead to recompense for “unreasonable indulgence[s],” NRA v.
Vill. of Oak Park, 871 F. Supp. 2d 781, 792 (N.D. Ill. 2012), but the lodestar
calculation should not result in a second (or in this case, a third, see supra, FN 2)
major litigation, Montanez, 755 F.3d at 555. Courts have broad discretion to strike
vague or unjustified billing entries. Id. at 556 (citing Harper v. City of Chi. Heights,
223 F.3d 593, 605 (7th Cir. 2000)).
So the Court turns to the lodestar calculation: the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate. As
mentioned above, three sets of lawyers were involved in Plaintiffs’ case: William
Howard’s teams at Freeborn & Peters and Locke Lord; attorneys and staff at
Cooper & Kirk; and Stephen P. Halbrook. The number of hours they collectively
claim approaches 1,400. The Court has exhaustively considered the record and,
with some exceptions discussed below, finds both the rates and hours advanced by
Plaintiffs to be reasonable. The Court will therefore use the $618,606.30 sought by
Plaintiffs as a baseline, and reduce that amount for rates and/or hours it finds
unreasonable.
9
A. Hourly Rates
An awarded attorneys’ fee must be reasonable within the “community.”
Jeffboat, LLC v. Director, Office of Workers’ Comp. Programs, 553 F.3d 487, 491
(7th Cir. 2009). Though Defendants would have the Court cabin the discussion to
East St. Louis or St. Louis-area lawyers, the scope of the inquiry is not so
geographically limned. The test refers to a community of practitioners, particularly
when “the subject matter of the litigation is one where the attorneys practicing it
are highly specialized and the market for legal services in that area is a national
market.” Jeffboat, 553 F.3d at 491. In other words, Defendants wrongly argue that
the Court should base the decision on local market rates for an attorney, not the
local market rate for “the” attorney’s services. Montanez, 755 F.3d at 547. See also
Jeffboat, 553 F.3d at 490–91 (judges may adjust out-of-town attorney’s rate
downward when calculating lodestar if local counsel could have provided
comparably effective legal services).
The burden to establish market rate (with evidence that goes beyond the
attorney’s own affidavits) is on the fee applicant, Johnson v. GDF, Inc., 668 F.3d
927, 933 (7th Cir. 2012), and the “best evidence” of market rate is the amount the
attorney actually bills for similar work, Montanez, 755 F.3d at 547. If that rate
cannot be determined, the district court must 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.; Johnson, 668 F.3d at 933. Evidence of fee awards in
10
prior similar cases “must” be considered as evidence of an attorney’s market rate,
but it is not the sine que non of that rate. Pickett, 664 F.3d at 646.
Here, Plaintiffs submit declarations from managing attorneys, billing
statements from each firm that worked on their case, plus a wide 2009 sampling of
associate and partner rates collated by the National Law Journal. (Doc. 106-1, 89–
99). It bears noting that Plaintiffs’ attorneys (all of them practitioners based in
either Chicago or Washington, D.C.) have extensive experience in Second
Amendment litigation, to include appearances before the Supreme Court in the
watershed Heller and McDonald cases.
While the undersigned would have
discretion to reduce Plaintiffs’ attorneys’ rates to in-town rates “if local counsel
could have provided comparably effective” representation, Jeffboat, 553 F.3d at 490
(emphasis here), it is unlikely (and unasserted by Defendants) that any counsel,
local or otherwise, would have come to this case with credentials comparable to
Plaintiffs’ counsel. See NRA v. City of Chi., 871 F. Supp. 2d 781, 786–87 (N.D. Ill.
2012) (quoting Gusman v. Unisys Corp., 986 F.2d 1146, 1150 (7th Cir. 1993)
(“Lawyers do not come from cookie cutters. … Clients are willing to pay more, per
hour, for these better lawyers. … Markets recognize these truths; judges must
too.”).
Also worth noting is Defendants’ failure to make specific objections to
counsel’s claimed hourly rates. See G&S Holdings LLC v. Cont’l Cas. Co., 697 F.3d
534, 538 (7th Cir. 2012) (collecting cases) (“[A] party waives an argument by failing
to make it”).
Effectively, their response brief only targets the time Plaintiffs’
11
counsel claim to have worked on the case. See RK Co. v. See, 622 F.3d 846, 854 (7th
Cir. 2010) (objecting party “must detail his objections to the fee petition such that
the court can determine” reasonableness). The Court (ensuring there is sufficient
evidence for Plaintiffs’ to carry their burden of showing market rates) will
accordingly use the rates outlined below. See Sottoriva v. Claps, 617 F.3d 971, 975
(7th Cir. 2010) (“district court … bears responsibility of justifying its conclusions”).
i.
Freeborn & Peters / Locke Lord — Rates
Attorney William N. Howard, now a partner at Locke Lord in Chicago, was a
partner at Freeborn & Peters (also in Chicago) when this case began. (Doc. 106-2,
1).
He charged Plaintiffs $475 per hour during the first 22 months of his
representation, and $450 per hour thereafter. (Id. at 3). At Freeborn & Peters,
Howard was assisted by Attorney Garry Wills, who billed (during various spans)
$340, $375, and $395 per hour. (Id. at 4). At Locke Lorde, Howard was assisted by
John Costello ($440 per hour) and Keith Gibson ($425 per hour). (Id.).
Howard’s asserted rates are supported by ample evidence in the form of
affidavits, billing statements, and the National Law Journal grid containing the
relative hourly rates charged by large law firms. (See Doc. 106-1, 89–99; Doc. 1062) 6. Further, the reasonableness of Freeborn & Peters’ rates was upheld by the
district court in assessing fees after the NRA v. Chicago case. NRA v. City of Chi.,
871 F. Supp. 2d 781, 788 (N.D. Ill. 2012). The rates advanced by Howard will be
used when calculating the lodestar amount.
Indeed, it seems Howard’s requested rates are less than his normal billing rate of $545 / hour.
(Doc. 106-2, 102–03).
6
12
ii.
Cooper & Kirk — Rates
Cooper & Kirk, a Washington-based firm, first appeared for Plaintiffs on
their initial appeal to the Seventh Circuit.
Though Defendants spill much ink
regarding the hours Cooper & Kirk attorneys logged, they make no specific
challenge to the Cooper & Kirk rates, which range from $925 to $355 per hour for
Cooper & Kirk attorneys, and from $95 to $165 / hour for various legal staff. 7 The
record contains evidence of comparable rates charged by Washington, D.C. firms,
and by Cooper & Kirk in similar litigation. Cooper & Kirk’s hourly rates drew no
objection in the wake of NRA v. Chicago, see 871 F. Supp. 2d at 786–89, (Doc.106-1,
53–56), and the firm has charged the same rates in over ten recent Second
Amendment cases (Doc. 120-1, 7–8). The rates claimed here by Cooper & Kirk
(though they reflect older billing rates) are less than the rates they recently settled
for in the Northern District of Illinois. Considering the evidence Cooper & Kirk
present, and especially given the lack of any specific objection by Defendants, the
Court finds their rates reasonable.
iii.
Stephen P. Halbrook — Rates
Of greater concern to the Court is the dearth of evidence of the rates Stephen
Halbrook charged for his services. Halbrook declares: “From the commencement of
this litigation through the present, my hourly rates have been between $475 and
$540 per hour, except that I performed services for one non-profit client at $400 per
hour.” (Doc. 106-3, 4). While Halbrook supplies a log of hours spent on the case, he
As a general matter, expenses generated by legal staff are part of an attorneys’ fee award because
they are the “sort of things that a lawyer includes with a bill for professional services.” Calderon v.
Witvoet, 112 F.3d 275, 276 (7th Cir. 1997) (citing Missouri v. Jenkins, 491 U.S. 274, 285–89 (1989)).
7
13
does not support his asserted rate with any bills, invoices, or contemporaneous
correspondence showing precisely what his clients paid him. To carry their burden
as fee applicants, Plaintiffs are required to introduce evidence beyond Halbrook’s
sworn statements. Johnson, 668 F.3d at 933. They have not. The “best evidence”
of Halbrook’s market rate is the amount he actually bills. Montanez, 755 F.3d at
547. No such evidence has been introduced.
The Court, then, is in its discretion to rely on a fee award from a prior similar
case to establish Halbrook’s market rate. Pickett, 664 F.3d at 646. In the wake of
the Supreme Court’s McDonald decision and the Seventh Circuit’s NRA ruling, the
district court in Northern Illinois had occasion to assess Halbrook’s market rate.
NRA v. City of Chi., 871 F. Supp. 781, 786–88 (N.D. Ill. 2012). Halbrook was lead
counsel in the trial court and at the Seventh Circuit, prepared the petition for a writ
of certiorari, “and participated to some extent in the preparation at the Supreme
Court level.” Id. at 786. After a careful examination of various options (the $225
per hour Halbrook charged the NRA, the $800 per hour the NRA said he was worth,
and the “between $400 and $500 per hour” Halbrook charged other clients), the
court reasoned:
Halbrook says that he could charge $800 per hour if he really
demanded it from his clients, but neither he nor NRA provided
any evidence to support that purely speculative contention. For
Halbrook to prove that the $400–500 range represented a
discounted rate, he needed to present some evidence—ideally
evidence that an actual paying client accepted such a rate in
those terms. … Based on the evidence actually submitted by
NRA (and the absence of other evidence), then, Halbrook’s
market rate will be placed at the midpoint of that range: $450
per hour…
14
Id. at 787–88.
Here, as in NRA, nothing supports Halbrook’s asserted rate other than
speculation contained in his own declaration.
Effectively he claims he “could”
charge $540 per hour, but provides no evidence of doing so.
The undersigned
accordingly (and accounting for an increase in rates over the last two years) follows
the Northern District’s lead, uses the midpoint in the range of rates Halbrook says
he charges, and finds that a reasonable rate for Halbrook is $507.50 per hour.
B. Number of Hours Reasonably Expended
Attorneys’ fees should reflect the hours reasonably required to “see the case
through trial, to appeal, and for the collection of fees.” Johnson v. GDF, Inc., 668
F.3d 927, 933 (7th Cir. 2012).
A party may not collect fees for hours that are
excessive, redundant, or otherwise unnecessary. Id. at 931 (quoting Hensley, 461
U.S. at 434).
A district court may strike vague or unjustified billing entries.
Montanez, 755 F.3d at 556 (citing Harper v. City of Chi. Heights, 223 F.3d 593, 605
(7th Cir. 2000)).
While some seemingly-helpful legal research should be expected to turn into
dead ends, district courts have denied fees when lawyers’ projects “were needlessly
esoteric” in the context of a simple case, Montanez, 755 F.3d at 555 (citing Kurowski
v. Krajewski, 848 F.2d 767, 776 (7th Cir. 1988)).
The various roles played by
counsel at different stages of this litigation warrant mention of two more legal
principles. While the Federal rules do not require every attorney working on a case
to enter an appearance before the court, see Smith v. Atlanta Postal Credit Union,
15
350 F. App’x 347, 350 (11th Cir. 2009), amici curiae are generally not entitled to
attorney’s fees.
See Vought v. Bank of Am., N.A., No. 10–CV–2052, 2013 WL
3336883, at *2 (C.D. Ill. July 2, 2013) (explaining the Fifth Circuit approach of only
granting fees to appointed amici); Miller-Wohl Co., Inc. v. Comm’r of Labor & Indus.
State of Mont., 694 F.2d 203, 205 (9th Cir. 1982) (“Admirably fulfilling the role of
amicus does not … entitle [attorneys] to compensation.”).
Before turning to the minutiae of the hours claimed by attorneys in the case,
the Court notes a few general propositions that guide its analysis. Defendants level
many objections—niggling ones, in the Court’s eyes 8—based on Plaintiffs’ counsel’s
attention to the relevance of contemporaneous gun rights cases, the lack of
specificity in Plaintiffs’ asserted hours, and hours spent in strategic planning. See
Fox v. Vice, 131 S. Ct. 2205, 2216 (2011) (“[T]rial courts may take into account their
overall sense of a suit, and may use estimates in calculating and allocating an
attorney’s time.”). The instant case is one of many filed shortly after the watershed
Heller and McDonald decisions, which left in their wake considerable uncertainty as
to the scope of the citizenry’s Second Amendment rights, and the tests courts should
use to measure those rights. See Woodard v. Gallagher, 712 F.3d 865, 874 (4th Cir.
2013). Those tests are complicated, often requiring significant historical analysis,
see Ezell v. City of Chi., 651 F.3d 684, 702–05 (7th Cir. 2011), and the evolving state
of the law necessitates that counsel constantly monitor developments in other cases.
The Court would be far more concerned with the contours of Plaintiffs’ counsel’s
See Fox v. Vice, 131 S. Ct. 2205, 2216 (2011) (Trial courts “should not … become green-eyeshade
accountants. The essential goal in shifting fees … is to do rough justice, not to achieve auditing
perfection.”).
8
16
work had the record not reflected attention to the rapidly changing landscape of
Second Amendment law.
Further, the Court generally finds (after a line-by-line examination of the
record, exceptions will be noted below) 9 that the level of detail in Plaintiffs’
descriptions of hours worked is adequate to reflect work on legal issues, both
tactical and strategic, relevant to this complex case. As an example, the bulk of
Plaintiffs’ hours spent on communication and research center on dates leading up to
(or immediately after) the filing of motions in this case or publication of orders in
other cases.
The Court will not punish Plaintiffs by (as Defendants do) de-
contextualizing every description of the work their attorneys performed.
See
Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643
(7th Cir. 1991) (in a costs analysis, prevailing party not required to submit records
“containing a description so detailed as to make it impossible economically” to
recover their expenditures; rather, they should provide “the best breakdown
obtainable from retained records.”).
i.
Freeborn & Peters / Locke Lord — Hours
At Freeborn & Peters, attorney William Howard (assisted by Gary Wills)
began work on this case in May 2011.
(See Doc. 119-1, 14).
The Court has
examined the 182 Freeborn & Peters time entries in the record (and the scores of
objections to those time entries) and finds only two of Defendants’ objections
The same general reasonableness standards apply to Plaintiffs’ sought fees and costs. The Court
has scoured the record of those items, and finds the approximately $12,300 sought to be eminently
reasonable in light of the length and breadth of this litigation. See Lopez v. San Francisco Unified
Sch. Dist., 385 F. Supp.2d 981, 1003 (N.D. Cal. 2005) (in a six-year ADA litigation, almost $1 million
in costs awarded). No costs or expenses will be deducted.
9
17
meritorious.
A May 13, 2011 entry (5.8 hours billed by Howard) reflects the
performance of myriad tasks, but fails to delineate Plaintiffs’ omitting certain pressrelated activities from those hours. (Doc. 120-3, 6). The entry is therefore too vague
for the Court to determine whether the hours spent are reasonable, and is stricken.
Likewise, a June 7, 2011 entry (1.5 hours billed by Howard) leaves the Court
without sufficient information to discern whether time spent on a report to the
National Rifle Association is compensable or whether the rest of those 1.5 hours
were reasonably spent. (See Doc. 120-3, 9). 10
At Locke Lord, Howard and other attorneys (as noted in over forty billing
entries) worked on the case from March 2013 to August 2013.
The Court has
examined the billing entries and finds Defendants’ objections wanting. Plaintiffs’
records indicate a reasonable amount of time spent on the case, especially given its
posture in the Seventh Circuit, the delay between the appellate court’s decision and
its mandate, and the evolution of legislation meant to comport with the Seventh
Circuit’s opinion. Preparing for a return to the district court can hardly be seen as
an unreasonable use of time, and the Court finds the hours billed are not excessive.
Accordingly, the Court will subtract $2,755.00 (5.8 hours at $475 / hour) from
the amount requested by Plaintiffs for work done by attorneys at Freeborn & Peters
and Locke Lord.
Plaintiffs have also agreed to omit 3.8 hours billed by Attorney Wills in February 2013 and many
hours billed by Attorney Howard from May 2011 to February 2013. Those amounts are accounted
for in the $20,000-plus reduction between Plaintiffs’ motion and their reply brief.
10
18
ii.
Cooper & Kirk — Hours
It is beyond dispute that attorneys at Cooper & Kirk have extensive Second
Amendment expertise, and have relied on that expertise in this and other recent
cases. After submitting an amicus brief in Heller, the firm “assisted in representing
the NRA in McDonald,” (Doc. 106-1, 9) and, ever since, “has been active in
representing both parties and amici in cases involving the Second Amendment, (id.
at 10). Unfortunately for Plaintiffs, the record is muddled as to when Cooper &
Kirk stopped acting on behalf of amicus in this case, and started serving as
attorneys for the “prevailing party.”
At the outset of this case, Cooper & Kirk’s primary (if not only) role was that
as attorney for amicus curiae National Rifle Association. The firm filed an 18-page
amicus brief in November 2011 (Doc. 54) and made no appearance on behalf of
Plaintiffs until the appeal. (As a reminder: the case was filed in May 2011, Judge
Stiehl granted Defendants’ 12(b)(6) motion in March 2012, and Plaintiffs appeal
was filed in April 2012). Until Judge Stiehl granted Defendants’ motion to dismiss,
the descriptions of all the work done by Cooper & Kirk attorneys could apply to
work done for the NRA, work done for Plaintiffs, or to both.
The lack of specificity dooms the fee request for the pre-appeal period.
Though there is no controlling Seventh Circuit precedent, the Court finds
persuasive and adopts the approach of the Fifth, Ninth, and D.C. Circuits and
declines to award fees to counsel for (what looks to be—and it is Plaintiffs’ burden to
show otherwise) unappointed amicus curiae. See Morales v. Turman, 820 F.2d 728,
19
731 (5th Cir. 1987); Miller-Wohl Co., Inc. v. Comm’r of Labur & Indus. State of
Mont., 694 F.2d 203, 205 (9th Cir. 1982); Schneider v. Lockheed Aircraft Corp., 658
F.2d 835, 853 (D.C. Cir. 1981). The Court is unconvinced that Cooper & Kirk were
acting as Plaintiffs’ attorneys before this case was dismissed, and is unable to parse
the hours it invested on behalf of Plaintiffs from the hours it spent working for the
NRA. 11 Accordingly, the Court exercises its discretion to strike the problematic
entries as vague and inadequately documented. See Harper v. City of Chi. Hts., 223
F.3d 593, 605 (7th Cir. 2000). Plaintiffs will collect no fees for Cooper & Kirk work
that predates March 30, 2012.
Otherwise the Court, while noting that the hours expended on this litigation
are substantial, nevertheless finds those hours reasonable.
Once Judge Stiehl
dismissed the case, Cooper & Kirk was pursuing an appeal—clearly activity
performed on behalf of Plaintiffs, since an amicus cannot file an appeal. This case
was a high stakes affair, and hundreds of hours 12 spent in research, draft-writing,
and preparation for oral argument are well within reason when compared to other
lengthy, complex federal litigation. See Lopez v. San Francisco Unified Sch. Dist.,
385 F. Supp.2d 981 (N.D. Cal. 2005) (six-year ADA case; over 17,000 hours); Tenafly
Eruv Ass’n, Inc. v. Borough of Tenafly, 195 F. App’x 93 (3d Cir. 2006) (over 500
hours preparing briefs and 86 hours preparing for oral argument were not
excessive. Complicated case raising important constitutional claims “often mandate
Plaintiffs were squarely presented with the Cooper & Kirk / amicus issue in Defendants’ response
brief, and sidestepped the issue in their reply. As Judge Posner said in another context, the “silence
is deafening.” Muhammed v. Oliver, 547 F.3d 874, 877 (7th Cir. 2008).
12 Cooper & Kirk attorneys spent over 800 hours on the appeal between 2012 and 2013.
11
20
the help of numerous attorneys for both parties”) (internal citation and quotation
marks omitted).
The appeal also involved a 210-day stay of the mandate and
assessment (by both sides) of how evolving legislation would (or would not) comport
with the Seventh Circuit’s opinion. Continued work on the case after the Seventh
Circuit issued its opinion, then, was reasonable. Other than reducing Plaintiffs’
fees to reflect Cooper & Kirk’s preliminary status as amicus (rather than prevailing
party) attorneys, the Court will not reduce the firm’s hours.
Accordingly, Plaintiffs fees will be reduced to reflect Cooper & Kirk’s status
as amicus, rather than party, attorneys. For work done by Cooper & Kirk attorneys
prior to March 30, 2012, the Court deducts a total of $74,473.50 (comprising
$71,952.50 in 2011 fees (Doc. 106-1, 17) plus $2,521.00 13 in pre-dismissal 2012 fees).
iii.
Stephen P. Halbrook — Hours
Stephen Halbrook is an attorney with extensive knowledge of the historical
underpinnings of the Second Amendment and practical knowledge of litigating in
this rapidly evolving area of law. His writings include topics as diverse as Gun
Control in the Third Reich and The Founders’ Second Amendment, and he was
heavily involved in Heller and McDonald. (See Doc. 106-3, 7–14).
After Defendants’ responded to his request for 131.8 hours, Halbrook lowered
his request to 117.4 hours. As discussed above, the Court will begin by reducing
Halbrook’s asserted rate from $540 per hour to $507.50 per hour (117.4 hours times
a $32.50 / hour reduction) for a $3,815.50 reduction.
The 2012 fees were billed by Peter Patterson (0.6 hours at $395/hr), David Thompson (2.6 hours at
$585/hr), and Howard Nielson (1.4 hours at $545/hr). (Doc. 106-1, 21).
13
21
The Court lowers the total by a further 7.8 hours. Halbrook’s entry from May
15, 2011, simply indicates a “Plaintiff issue,” not enough information for the Court
to assess the reasonableness of the 0.3 hours billed. (See Doc. 120-3, 141). And the
7.5 hours he spent to prepare the instant fee application is entirely excessive. (See
Doc. 120-3, 149, entries from December 12 to December 16, 2013). So the Court will
reduce Plaintiffs’ fee award by a further (7.8 hours x $507.50 / hour) $3,958.50.
CONCLUSION
The lodestar calculation is not always the end of a fee dispute.
See
Richardson v. City of Chi., 740 F.3d 1099, 1103 (7th Cir. 2014) (percentage increase
may be added to reflect exceptionally good results; percentage decrease may be
applied to reflect poor results); Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir. 2010)
(outlining the application of factors used to increase or decrease a fee award). But it
is here. Defendants have not asked for a decreased lodestar, and in any event (as
discussed in Section 1 above) Plaintiffs’ victory was comprehensive. See Montanez,
755 F.3d at 553 (most important factor in lodestar adjustment is degree of success
on the merits).
Accordingly, for the reasons explained above, the Court GRANTS (Doc. 121)
Plaintiffs’ Motion to Cite Supplemental Authority, and GRANTS IN PART (Doc.
106) Plaintiffs’ Motion for Attorneys’ Fees, Expenses, and Taxable Costs.
Defendants shall compensate Plaintiffs $533,603.80, as summarized here:
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Fees, Costs &
Expenses Sought
Reductions
F & P / Locke Lord
Cooper & Kirk
S.P. Halbrook
Total Reductions
$ 618,606.30
5.8 hours @ $475 / hour
2011 fees
pre-dismissal 2012 fees
rate reduction of $32.50 / hr
7.8 hours @ $507.50 / hr
Total Fee Award
$ (2,755.00)
$ (71,952.50)
$ (2,521.00)
$ (3,815.50)
$ (3,958.50)
$ (85,002.50)
$ 533,603.80
Though Attorney Halbrook’s fees for seeking this fee award are part of the
calculations above, Plaintiffs are still entitled to recover fees reflecting Cooper &
Kirk and Locke Lord attorneys’ work on the instant fee petition. See Johnson v.
GDF, Inc., 668 F.3d 927, 933 (7th Cir. 2012). Plaintiffs are accordingly given until
October 17, 2014, to submit a supplemental request for attorneys’ fees.
Any
response from Defendants shall be limited to four pages and due on or before
October 24, 2014; Plaintiffs’ reply (not to exceed two pages) shall be due on or before
October 31, 2014.
IT IS SO ORDERED.
DATE: September 29, 2014
s/ Michael J. Reagan
MICHAEL J. REAGAN
United States District Judge
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