Brickhouse et al v. Redstone et al

Filing 74

ORDER granting in part and denying in part 46 Motion for Attorney Fees; granting 48 Motion for Attorney Fees; granting 55 Motion in opposition to award of attorney fees to all defendants. Signed by Chief Judge David R. Herndon on 9/23/2013. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALEXANDER BRICKHOUSE, et al.,
Plaintiffs,
vs.

No.

3:12-cv-00593-DRH-PMF

JOHN REDSTONE, et al.,
Defendants.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
I.

INTRODUCTION

Pending now before the Court are Defendant City of Granite City’s (“Granite
City”) motion for attorney’s fees and costs (Doc. 48) and Defendants John Redstone
(“Redstone”) and Richard Dawes’ (“Dawes”) motion for attorney’s fees and costs
(Doc. 46). Plaintiff Avianne Khalil (“Khalil”) filed a response (Doc. 53). Khalil has
also filed a motion for consideration of her response as to all Defendants (Doc. 55).
As a preliminary matter, the Court GRANTS Khalil’s motion for consideration.
For the following reasons, the Court GRANTS Granite City’s motion for attorney’s
fees and costs and GRANTS IN PART AND DENIES IN PART Redstone and
Dawes’ motion for attorney’s fees and costs.

II.

BACKGROUND

Plaintiffs Khalil and her son, Alexander Brickhouse (“Brickhouse”) filed this
action on May 8, 2012 alleging claims under 42 U.S.C. § 1983 for violations of
Brickhouse’s Constitutional rights and various Illinois state law claims.

The

action arises out of an incident occurring on May 9, 2010 whereby Brickhouse was
allegedly removed from Khalil’s vehicle, taken into Defendants’ police station, and
beaten. Khalil brought one claim against Defendants, an Illinois state law claim for
negligent infliction of emotional distress (Count VIII).
On July 2, 2012, Redstone and Dawes filed a motion to dismiss and an
answer that were stricken by the Court for failure to follow the procedural rules for
filing. On July 5, 2012, Redstone and Dawes refiled their motions to dismiss
(Docs.15, 16). The motion did not include the affirmative defense that Plaintiffs’
state law claims were barred by the statute of limitations under the Local
Governmental and Governmental Employees Tort Immunity Act (the “Act”). The
Act limits claims against public entities and their employees to one year from the
date of occurrence. 745 ILCS 10/8-101. On August 9, 2012, Granite City filed a
motion to dismiss Count IV for failure to state a claim (Doc. 21). While Granite
City’s motion included a statute of limitations argument, it did not address Khalil’s
negligent infliction of emotional distress claim. Redstone and Dawes then filed a
second motion to dismiss on August 29, 2012 (Doc. 27). Redstone and Dawes’
second motion to dismiss, however, did assert a statute of limitations argument
against Khalil’s claim.
On October 2, 2012, the Court granted Granite City’s motion to dismiss (Doc.

21) and Redstone and Dawes’ second motion to dismiss (Doc. 27). The Plaintiffs
failed to respond to Defendants’ motions to dismiss and, pursuant to Local Rule
7.1(c), the Court considered the Plaintiffs failure to respond as an admission on the
merits.

Khalil therefore admitted that her state law claim was barred by the

statute of limitations. Thereafter the Court directed Khalil to file a brief regarding
her standing to pursue the remaining § 1983 claims.

On November 1, 2012,

Plaintiff was deposed as a party of the suit. On December 12, 2012, after failing to
brief the standing issue, the Court dismissed Khalil from the suit.
On December 28, 2012, Defendant Granite City and Defendants Redstone
and Dawes filed separate motions for attorney’s fees. Granite City provides the
Affidavit of its attorney, Ronald A. Roth (“Roth”) (Doc. 48-1) in support of its
motion. Roth attests that his office billed fees of “at least $2,500,” and that his
hourly rate is $135.00 and his associates’ hourly rate is $130.00. Redstone and
Dawes provide the affidavit of their attorney, Jane Unsell (“Unsell”) (Doc. 46-1) as
well as an invoice from Miles Reporting Company (the “Invoice”) (Doc. 46-2) in
support of their motion. Unsell attests that her office billed fees and costs also of
“at least $2,500” and that her hourly rate is $125.00 and her associates’ hourly rate
is $110.00. The Invoice provides that the total cost for the November 1, 2012
deposition of Khalil was $826.50 which includes $60.00 for the attendance of the
reporter, $760.50 for an original transcript, and $6.00 for shipping and handling.
Both attorneys argue that their request is “fair and reasonable” considering their
hourly rate and the amount of time they spent defending the frivolous claim against

the Defendants (Doc. 46 at 6-7; Doc. 48 at 5).
In response, Khalil argues that Defendants Redstone and Dawes failed to
raise the statute of limitations affirmative defense in their initial responsive
pleadings and have therefore waived it under Fed. R. Civ. P. 8(b)(6).

In the

alternative, Khalil asserts that if the state law claims were filed after the statute of
limitations and Defendants properly responded, that “filing after the statute of
limitations does not make a case frivolous or without merit or even bad faith” (Doc.
53 at 6). Khalil also argues that Khalil did not continue to litigate her claim but
that Defendants Redstone and Dawes’ subjected Khalil to the deposition at issue
and that she was likely going to be deposed as a witness even if she was not a party
to litigation.
III.

ANALYSIS

Defendants have moved pursuant to Fed. R. Civ. P. 54(d) and the Civil Rights
Attorney’s Fees Awards Acts, 42 U.S.C. § 1988 for attorney’s fees as to the claim of
Khalil of at least $2,500 for each firm and $826.50 in costs and expenses.
Attorney’s fees may be assessed when the Plaintiff’s claim is frivolous,
unreasonable, or without foundation, even if the claim was not brought in bad faith.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).

The Plaintiff’s

claim “must be groundless or without foundation, but the fact that a plaintiff may
ultimately lose his case is not in itself a sufficient justification for the assessment of
fees.” Cooney v. Casady, ___ F.3d ___, 2013 WL 4406668, at *7 (7th Cir. Aug. 19,
2013) (internal quotations omitted). Even if the allegations initially reasonably

state a claim, the Plaintiff may be subject to a fee award if the Plaintiff continues to
litigate after it becomes clear that his action lacks factual substance. Hughes v.
Rowe, 449 U.S. 5, 15 (1980); Coates v. Bechtel, 811 F.2d 1045, 1053 (7th Cir.
1987). “When a civil rights suit is lacking in any legal or factual basis, an award of
fees to the defendant is clearly appropriate to deter frivolous filing and to ensure
that the ability of the courts to remedy civil rights violations is not restricted by
dockets crowded with baseless litigation.” Munson v. Milwaukee Bd. of School
Directors, 969 F.2d 266, 269 (7th Cir. 1992).
The Court finds that Khalil’s claim was frivolous at the time of filing. The
alleged violations occurred on May 9, 2010 and the Plaintiffs filed this action on
May 8, 2012. Khalil therefore filed her claim well beyond the Illinois state statute
of limitations period had run. Although Khalil argues that the Defendants did not
plead the statute of limitations affirmative defense in their first responsive
pleadings and therefore waived it, the Court notes that Khalil did not respond to
Redstone and Dawes’ second motion to dismiss, where Plaintiffs did raise the
statute of limitations defense, and therefore admitted to it,

Furthermore,

Plaintiffs’ counsel should be aware of the Illinois state statute of limitations and, if
not, could have easily discovered the limitation before filing Plaintiffs’ state law
claims.
Plaintiffs’ counsel each requests “at least $2,500.” The Court finds this fair
and reasonable because Plaintiffs’ attorneys indicate that, given their hourly rates
and time spent on this case, they billed their clients more than $2,500.

However, the Court finds that Khalil did not continue to litigate the claim
after its dismissal. While Khalil did submit to a deposition on November 1, 2012,
the Court notes that Khalil would have likely been deposed as a witness to the
incident for the remaining § 1983 claims and that Defense counsel had the option to
cancel its own deposition.
IV.

CONCLUSION

Accordingly, the Court GRANTS Defendant City Granite City’s motion for
attorney’s fees (Doc. 48) and GRANTS IN PART AND DENIES IN PART
Defendants John Redstone and Richard Dawes’ motion for attorney’s fees and costs
(Doc. 46) as follows:
1) The law firm of Roth Law Offices, LLC is awarded $2,500.00 in attorney’s
fees.
2) The law firm of Unsell & Schattnik is awarded $2,500.00 in attorney’s fees.

IT IS SO ORDERED.
Signed this 23rd day of September, 2013.

Digitally signed by
David R. Herndon
Date: 2013.09.23
12:24:00 -05'00'

Chief Judge
United States District Court