STUMM et al v. TOWN OF PITTSBORO

Filing 100

ORDER - The Court GRANTS IN PART and DENIES IN PART Matt Stumm's Bill of Costs, 91 . The Court also GRANTS IN PART and DENIES IN PART Matt Stumm's Petition for Attorneys' Fees, 93 , as discussed in the Order. Therefore, costs in the total amount of $1,249.27 are taxed against Christi Patterson and the Town of Pittsboro, and Matt Stumm is awarded $69,043.50 in attorneys' fees from those Defendants, consisting of $64,770 to counsel Jeff McQuary and $4,273.50 to counsel Alexander Van Gorp, in addition to the previously-entered judgment for $15,000 in damages. (See Order). Signed by Judge Jane Magnus-Stinson on 9/17/2019. (JDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MATTHEW W. STUMM,

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Plaintiff,
vs.
TOWN OF PITTSBORO, and
CHRISTI PATTERSON,
Defendants.

No. 1:17-cv-4296-JMS-MJD

ORDER
This case involves a civil rights action brought by three current or former Pittsboro, Indiana
police officers—Matthew (“Matt”) Stumm, Jason Stumm, and Brian Helmer—against the Town
of Pittsboro (“Town”), the Chief of Police, the Assistant Chief of Police, and a Captain with the
neighboring Plainfield Police Department. The Plaintiffs asserted that the Defendants violated the
Fourth Amendment to the United States Constitution and the Federal Wiretap Act, 18 U.S.C.
§ 2510, et seq., by recording their conversations inside the police station, without their knowledge
or a court order, and reviewing or using those recordings. After some claims were disposed of on
summary judgment, Matt and Jason Stumm proceeded to trial, where the jury found in favor of
Matt Stumm against the Town and the Chief of Police. Judgment was entered, [Filing No. 90],
and presently pending before the Court are Matt Stumm’s Bill of Costs, [Filing No. 91], and
Petition for Attorneys’ Fees, [Filing No. 93]. These matters are now ripe for the Court’s review.
I.
STANDARDS OF REVIEW
Federal Rule of Civil Procedure 54(d)(1) states that, unless a statute, rule, or court order
provides otherwise, costs should generally be awarded to the “prevailing party.” Fed. R. Civ. P.

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54(d)(1). “The process for awarding court costs is intended to be summary.” Extra Equipamentos
E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 727 (7th Cir. 2008). The district court should
not resolve arguments regarding the winning party’s strategy in litigating the case, id., but
nonetheless must discern whether the claimed costs were “reasonable and necessary,” Northbrook
Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991). The losing
party “bears the burden of an affirmative showing that the taxed costs are not appropriate.”
Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005).
In addition, a court may award reasonable attorney’s fees to the prevailing party in a civil
rights action. 42 U.S.C. § 1988. Determining what fees are reasonable is a “contextual and factspecific” inquiry. Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014). The party seeking fees
must submit appropriate documentation to meet the burden of establishing entitlement to a fee
award. Fox v. Vice, 563 U.S. 826, 838 (2011). However, the determination of fees “should not
result in a second major litigation,” as the essential goal in shifting fees is “to do rough justice, not
to achieve auditing perfection.” Id. (internal quotations and citations omitted). “[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.” Id.
II.
BACKGROUND
In the Amended Complaint, each of the three Plaintiffs asserted that each of the four
Defendants violated their rights under the Fourth Amendment and the Wiretap Act. [Filing No.
28.] Plaintiffs alleged that Chief of Police Christi Patterson directed Assistant Chief of Police
Major Scott King to install a video camera with audio recording capabilities in the lobby of the
Pittsboro Police Department. [Filing No. 28 at 3.] They alleged that this camera recorded their
private conversations without their knowledge, Chief Patterson and Major King had been listening
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to the recordings, and the Town thereby maintained an unconstitutional policy of intercepting,
recording, and disclosing personal conversations. [Filing No. 28 at 5-6.] They also alleged that
the recordings were improperly used in an investigation concerning Matt Stumm—conducted by
Captain Carrie Weber of the Plainfield Police Department—for allegedly criticizing Chief
Patterson and Major King and allowing an unauthorized civilian rider in his patrol vehicle. [Filing
No. 28 at 3-5.]
Defendants moved for summary judgment, [Filing No. 41], which the Court granted in part
and denied in part, [Filing No. 50]. Specifically, the Court granted the motion as to Mr. Helmer’s
claims against all Defendants, concluding that he had not produced sufficient evidence that his
conversations had been recorded. [Filing No. 50 at 15-17.] The Court also granted the motion as
to all of the Plaintiffs’ claims against Captain Weber, because there was no evidence showing that
she knew that the recordings she reviewed were illegally obtained. [Filing No. 50 at 17-18.]
However, the Court denied the motion as to Matt Stumm’s and Jason Stumm’s claims against
Chief Patterson, Major King, and the Town, concluding that genuine issues of material fact existed.
[Filing No. 50 at 10-15; Filing No. 50 at 19-22.]
The remaining claims proceeded to trial, and the jury returned a verdict in favor of Matt
Stumm against Chief Patterson and the Town on the Fourth Amendment and Wiretap Act claims,
awarding him $15,000 in damages. [Filing No. 84 at 4-5; Filing No. 84 at 8-9.] However, the jury
concluded that Matt Stumm had not proved either of his claims against Major King, and Jason
Stumm had not proved any of his claims against any Defendant. [Filing No. 84 at 2-6.] After
judgment was entered, [Filing No. 90], Matt Stumm filed a Bill of Costs, [Filing No. 91], and
Motion for Attorney Fees, [Filing No. 93]. The Court addresses each in turn.

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III.
DISCUSSION
A. Costs
Matt Stumm seeks a total of $1,277.27 in costs, consisting of $400 for the filing fee, $28
for fees for service of summonses and subpoenas, and $849.27 for transcripts. [Filing No. 91 at
1.] He attaches an invoice sent to his counsel by Russell Schiener, reflecting a total cost of $624.27
for transcript preparation, as well as a copy of a check written to Mr. Schiener in the amount of
$225. [Filing No. 91 at 3-4.]
Defendants object to the Bill of Costs, first arguing that Matt Stumm is not a “prevailing
party” for purposes of Rule 54(d) because he obtained a favorable judgment on only four of the
seven claims he asserted and recovered only 21 to 30% of the amount of damages he sought.
[Filing No. 94 at 94 at 1-3.] Defendants further argue that, even if Matt Stumm is a prevailing
party, he is not entitled to recover the costs he requests because: (1) there is no itemization or
documentation to support the $28 in costs for the service of summonses or subpoenas; and (2) the
submitted invoice only demonstrates $624.27 in costs for transcripts, while he requests $849.27.
[Filing No. 94 at 3-4.] Finally, Defendants argue that, because Matt Stumm was one of three
plaintiffs, if costs are awarded, they should be reduced by a third. [Filing No. 94 at 4.]
Matt Stumm responds that he is a prevailing party and there is no bar against receiving
costs related to time spent on rejected claims where, as here, those claims were intertwined with
successful claims. [Filing No. 95 at 2.] While he concedes that the $28 charge was incorrect, he
maintains that $849.27 is the correct amount for transcripts and attaches another invoice showing
the additional $225 in charges. [Filing No. 95 at 2]. He argues that, even if he alone had pursued
only his successful claims, he would have incurred the same costs by paying the filing fee and
deposing the other Plaintiffs and Defendants as witnesses. [Filing No. 95 at 2-3.]
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Under Rule 54(d), “prevailing party” means “a party who has obtained some relief in an
action, even if that party has not sustained all of his or her claims.” First Commodity Traders, Inc.
v. Heinold Commodities, Inc., 766 F.2d 1007, 1015 (7th Cir. 1985) (citation omitted). The party
must have been successful “as to the substantial part of the litigation.” Id. (internal quotations and
citation omitted); see also Northbrook, 924 F.2d at 641-42 (concluding that the party who
“prevailed on the resolution of th[e] central issue” was the “prevailing party”).
Here, the Court determines that Matt Stumm is a “prevailing party” within the meaning of
Rule 54(d). Although he obtained a favorable verdict against only two of the four named
Defendants, he was asserting the same claims against each, and the jury agreed with him on the
central issue of the case—whether the recording and use of his conversations without his
knowledge violated the Constitution and the Wiretap Act. See Northbrook, 924 F.2d at 641-42.
Because the parties agree that the $28 cost for service of summonses and subpoenas is erroneous,
the Court will not award it. However, the Court will award Matt Stumm the remainder of the
requested costs, in the amount of $1,249.27.
B. Attorneys’ Fees
Matt Stumm filed a Petition for Attorneys’ Fees, seeking a total of $88,200 for his counsel
Jeffrey McQuary and $7,887 for his counsel Alexander Van Gorp. [Filing No. 93.] These fees
were calculated by multiplying Mr. McQuary’s proposed hourly rate of $400 by the 220.5 hours
he worked on the case, and multiplying Mr. Van Gorp’s proposed hourly rate of $185 by the 42.7
hours he worked. [Filing No. 93 at 5-7.] In support of the Petition, Matt Stumm attached affidavits
and activity logs from each of his attorneys. [Filing No. 93-1; Filing No. 93-3.]
Defendants do not dispute that Matt Stumm is the prevailing party for purposes of
attorneys’ fees, or that $400 and $185 are reasonable hourly rates Mr. McQuary and Mr. Van Gorp,

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respectively. [Filing No. 96 at 1; Filing No. 96 at 12.] Nevertheless, Defendants argue that the
proper amount to be awarded to Mr. McQuary is between $11,470 and $17,220, while the proper
amount for Mr. Van Gorp is $647.50. [Filing No. 96 at 1.] Specifically, Defendants assert that
Matt Stumm’s proposed fees: (1) do not account for his limited success; (2) erroneously include
time that Mr. McQuary spent on administrative or clerical tasks; (3) are not properly discounted
for the time expended on unsuccessful claims; and (4) seek compensation for Mr. Van Gorp that
is duplicative of the compensation sought by Mr. McQuary. [Filing No. 96 at 2-11.] Accordingly,
Defendants propose that the hours expended by each attorney be calculated as follows:
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6.9 hours should be subtracted from Mr. McQuary’s requested hours for time he
spent on administrative or clerical tasks;

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Mr. McQuary’s reported 125.1 hours spent litigating claims through summary
judgment (not including the 6.9 hours for administrative tasks) should be reduced
by 40% to correspond to the time he spent on unsuccessful claims;

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Mr. McQuary’s reported 97.9 hours spent pursuing Matt Stumm’s and Jason
Stumm’s claims from summary judgment through trial should be reduced by 30%
to account for unsuccessful claims; and

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39.2 of Mr. Van Gorp’s reported 42.7 hours, which represent trial preparation and
attendance, should be disallowed as duplicative of Mr. McQuary’s hours spent
performing the same tasks.

[Filing No. 96 at 11.] Applying these limits would yield a total of 143.5 compensable hours for
Mr. McQuary, multiplied by his hourly rate of $400, resulting in a fee of $57,400, and 3.5
compensable hours for Mr. Van Gorp, multiplied by his hourly rate of $185, resulting in a fee of
$647.50. [Filing No. 96 at 12.] Defendants argue that because Matt Stumm recovered only 21 to
30% of the damages he demanded, Mr. McQuary’s fee should be reduced by 70 to 80% for this
limited success, yielding a recoverable amount of $11,480 to $17,220. [Filing No. 96 at 12-13.]
In reply, Matt Stumm asserts that his requested fee is reasonable, and the 70 to 80%
reduction proposed by Defendants is excessive. [Filing No. 99 at 2.] Specifically, he notes that,
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while his recovery was limited to $15,000, the hours expended were reasonable in relation to that
award because they were necessary to achieve a verdict in his favor, and the unsuccessful claims
cannot be separated from his successful claims, as they were all based on the same facts and legal
theory. [Filing No. 99 at 2-5.] If a reduction is required, he believes that it should not be more
than 10%. [Filing No. 5 at 11.] He further argues that the 6.9 hours the Defendants identified as
clerical tasks were not, but instead required legal judgment such as reviewing documents for errors,
reading the Court’s orders to be able to comply with them, and selecting the documents necessary
for the pretrial conference and trial. [Filing No. 99 at 6-7.] Finally, he argues that Mr. Van Gorp
meaningfully contributed to the trial preparation. [Filing No. 99 at 7-8.]
The Court begins the fee calculation by computing the “lodestar” figure, which is the
product of the number of hours the attorney reasonably spent on the case multiplied by a reasonable
hourly rate. Montanez, 755 F.3d at 553. Here, the parties do not dispute the attorneys’ hourly
rates, but the Court must determine the number of hours reasonably expended.
1. Mr. McQuary
Defendants raise two central objections to Mr. McQuary’s reported hours: (1) some of them
are not compensable because they represent purely administrative or clerical work; and (2) they
include work performed in relation to unsuccessful claims. The Court will address each in turn.
a. Administrative and Clerical Tasks
Defendants identify the following items from Mr. McQuary’s activity log, totaling 6.9
hours, and argue that they are administrative or clerical in nature:
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11/16/17: E-file Complaint and other initiating documents; transmit to clients
with cover letter (1.4 hours)

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11/21/17: Prepare and send Waivers of Service of Summons (0.8 hours)

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12/4/17: Review & calendar scheduling order (0.2 hours)
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1/3/18: File executed Waiver of Service (0.2 hours)

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1/23/18: File CMP [Case Management Plan] (0.2 hours)

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1/30/18: CMP approved. Calendar dates as ordered (0.5 hours)

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8/10/18: Mag. Judge sets hearing on Mot. to Continue settlement conf. Calendar
(0.5 hours)

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8/17/18: Trial setting issued. Calendar (0.1 hours)

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2/11/19: Court orders settlement conference and status conference. Calendar
(0.2 hours)

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2/13/19: File notice of availability for settlement conference (0.1 hours)

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4/23/19: File Mot. to Cont. Final P-T-C; granted same day (0.4 hours)

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6/4/19: Organize docs needed for final P-T-C in folders (0.8 hours)

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6/15/19: Organize folders to bring to trial (1.8 hours)

[Filing No. 96 at 4.] Matt Stumm argues that these tasks were not merely clerical, noting that:
(1) review of the initiating documents and drafting a cover letter required legal judgment; (2) the
entries referencing something being calendared “mean that the attorney is reading the Court’s
orders so he can be aware of and comply with them;” (3) the entries regarding motions filed on
February 13, 2019, and April 23, 2019, included time for drafting the motions; and (4) the entries
concerning organizing documents included selecting and ordering relevant documents, which
required legal skill and familiarity with the case. [Filing No. 99 at 6-7.]
Hours that were not reasonably expended, including those that are excessive, redundant, or
otherwise unnecessary, must be excluded from the fee calculation. Hensley v. Eckerhart, 461 U.S.
424, 434 (1983). In addition, the Court should also ordinarily disallow “hours expended by
counsel on tasks that are easily delegable to non-professional assistance.” Spegon v. Catholic
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Bishop of Chi., 175 F.3d 544, 553 (7th Cir. 1999) (internal quotations and citations omitted).
However, reasonable, market-rate fees for work performed by paralegals are recoverable.
Missouri v. Jenkins, 491 U.S. 274, 287 (1989). A court can award paralegal fees if it determines
that the tasks performed were sufficiently complex to justify the efforts of a paralegal, as opposed
to a clerical employee “at the next rung lower on the pay-scale ladder.” People Who Care v.
Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1315 (7th Cir. 1996).
The Court agrees that the tasks listed above are not compensable at Mr. McQuary’s market
rate. However, they are not merely clerical in nature, as they included document preparation,
review, and organization suited for a paralegal. Accordingly, the Court declines to completely
strike these hours from the fee calculation, and instead will reduce the hourly rate for these hours
to $100, which it believes to be a reasonable market rate for paralegal services. Accordingly, the
fee for these tasks will be 6.9 hours multiplied by $100 per hour, for a total of $690.
b. Time Spent on Unsuccessful Claims
Defendants argue that Mr. McQuary’s reported hours should be reduced by 40% for work
leading up to summary judgment, and 30% for work from summary judgment through trial, to
account for time spent on unsuccessful claims. [Filing No. 96 at 10-11.] Matt Stumm argues that
all of the claims were so closely related that no reduction is warranted, but, if a reduction is
necessary, it should not be more than 10%. [Filing No. 99 at 5.]
“[L]osing claims seeking different or additional relief, or damages against different
defendants, usually add some marginal expenses to the litigation.” Richardson v. City of Chi., Ill.,
740 F.3d 1099, 1103 (7th Cir. 2014). If a district court is able to discern which hours were spent
on the unsuccessful claims, it can strike them from the lodestar calculation. Montanez, 755 F.3d
at 553. However, where a court is unable to estimate how much time would reasonably have been

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devoted to the winning claims, had the losing claims not been presented, “there is nothing to do
but make an across-the-board reduction that seems appropriate in light of the ratio between
winning and losing claims.” Richardson, 740 F.3d at 1103.
The Court agrees that some reduction in Mr. McQuary’s reported hours is necessary to
account for unsuccessful claims. Specifically, in addition to his services to Matt Stumm, Mr.
McQuary’s work included the pursuit of: (1) Mr. Helmer’s claims against all four Defendants,
which were disposed of at summary judgment; (2) all three Plaintiffs’ claims against Captain
Weber, which were disposed of at summary judgment; and (3) Jason Stumm’s claims against the
Town, Captain Weber, and Major King, which were unsuccessful at trial. Because Mr. McQuary’s
records are not sufficiently detailed to allow the Court to discern how much time was spent on
each of those three sets of claims—as opposed to on Matt Stumm’s successful claims—an acrossthe-board reduction in the reported hours is warranted. See Richardson, 740 F.3d at 1103.
Mr. McQuary sought fees for 220.5 hours of work. The 6.9 hours compensated at the
paralegal rate must be subtracted, leaving 213.6 hours. This total will be reduced by 25%,
corresponding to the Court’s estimate of the time Mr. McQuary spent on the three identified groups
of unsuccessful claims. Accordingly, Mr. McQuary will be compensated for 160.2 hours of time,
at his undisputed hourly rate of $400 per hour, resulting in a fee of $64,080. This amount must
be added to the $690 fee for the paralegal tasks discussed above, yielding a total fee of $64,770.
2. Mr. Van Gorp
Defendants do not dispute the reported 3.5 hours Mr. Van Gorp spent preparing a post-trial
brief, but argue that the remaining 39.2 hours, spent preparing for and attending trial, are not
compensable because they are duplicative of Mr. McQuary’s efforts and represent time that Mr.
Van Gorp spent gaining courtroom experience for his own benefit. [Filing No. 96 at 8-10.]

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Matt Stumm argues that Mr. Van Gorp’s hours were necessary and not duplicative. [Filing
No. 99 at 7-8.] He attaches a supplemental affidavit from Mr. Van Gorp, in which Mr. Van Gorp
states that the tasks he performed in preparation for trial were “necessary and individually
contributive.” [Filing No. 99-1 at 1.] His tasks included: (1) reviewing depositions from each
witness, cross-checking the witnesses’ statements, and developing strategies concerning which
statements may be used at trial; (2) preparing witnesses to discuss potentially relevant facts,
providing basic legal education on relevant concepts, creating an effective narrative, and building
rapport; (3) working closely with Jason Stumm to prepare him for his testimony; (4) crafting a list
of questions and developing a strategy for Jason Stumm’s direct examination; (5) analyzing juror
questionnaires and investigating potential jurors; and (6) communicating with Matt and Jason
Stumm and observing the jury during trial. [Filing No. 99-1 at 1-2.]
While the Court rejects Defendants’ contention that none of Mr. Van Gorp’s pre-trial or
trial work is compensable, a reduction in his reported hours is nonetheless warranted. First, the
Court notes that Mr. Van Gorp’s participation in the trial presentation was limited to the relatively
short examination of only one witness. In addition, the Court acknowledges that he began working
on the case shortly before the trial, and much of his role in the trial was that of an observer. Hours
spent training or gaining experience are generally not billed to private clients and should not be
included in a fee award. See Hensley, 461 U.S. at 434 (“Hours that are not properly billed to one’s
client also are not properly billed to one’s adversary.” (citations omitted) (emphasis removed)).
To that end, and because Mr. Van Gorp spent some of his time working on Matt and Jason Stumm’s
ultimately unsuccessful claims, the Court finds that it is appropriate to reduce Mr. Van Gorp’s
disputed hours by 50%. Accordingly, the Court will first subtract from the reported 42.7 hours the
3.5 hours not disputed by Defendants, leaving 39.2 hours. This number will be reduced by 50%,

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yielding 19.6 hours. Adding back in the undisputed 3.5 hours makes 23.1 hours, which will be
multiplied by the undisputed rate of $185 per hour, resulting in a total fee of $4,273.50.
3. Reduction for Limited Success
There is a strong presumption that the lodestar figure is reasonable, but such presumption
may be overcome where the figure does not adequately account for a factor that may be properly
considered in determining a reasonable fee. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552,
554 (2010). One relevant factor is the result obtained by the plaintiff, which is a “particularly
crucial” consideration where the plaintiff has succeeded on only some of his claims for relief.
Hensley, 461 U.S. at 434. In cases where a plaintiff’s claims involve a common core of facts or
are based on related legal theories, “[m]uch of counsel’s time will be devoted generally to the
litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.”
Id. at 435. In those cases, the lawsuit cannot be viewed as a series of discrete claims, and the Court
instead “should focus on the significance of the overall relief obtained by the plaintiff in relation
to the hours reasonably expended on the litigation.” Id.
The Court finds that the lodestar figures, as calculated above, are reasonable. Because the
reduction in hours accounts for the unsuccessful aspects of the lawsuit, no further reduction in the
fee is necessary. See Perdue, 559 U.S. at 553 (noting that the lodestar amount generally “includes
most, if not all, of the relevant factors constituting a reasonable attorney’s fee” (internal quotations
and citation omitted)). Matt Stumm, individually, did not achieve “limited success” in the way
Defendants suggest. The jury agreed that his rights were violated by the recording and use of his
personal conversations, even if only two of the four named Defendants were the proper parties
against whom such rights could be vindicated. Furthermore, although he received damages in an
amount that was lower than what he demanded, his $15,000 reward nonetheless was substantial

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given the absence of specific compensatory damages. The hours spent on pursuit of this claim, as
reduced in the manner discussed above, were reasonable in relation to the relief obtained. See
Hensley, 461 U.S. at 434.
IV.
CONCLUSION
Based on the foregoing, the Court GRANTS IN PART and DENIES IN PART Matt
Stumm’s Bill of Costs, [91]. The Court also GRANTS IN PART and DENIES IN PART Matt
Stumm’s Petition for Attorneys’ Fees, [93], as discussed above. Therefore, costs in the total
amount of $1,249.27 are taxed against Christi Patterson and the Town of Pittsboro, and Matt
Stumm is awarded $69,043.50 in attorneys’ fees from those Defendants, consisting of $64,770 to
counsel Jeff McQuary and $4,273.50 to counsel Alexander Van Gorp, in addition to the
previously-entered judgment for $15,000 in damages.

Date: 9/17/2019

Distribution via CM/ECF only to all counsel of record

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