Estate of James Franklin Perry v. Wenzel et al

Filing 186

ORDER signed by Judge Rudolph T. Randa on 7/7/2016 GRANTING 154 County Defendants' Motion for Attorney Fees and Costs. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ESTATE OF JAMES FRANKLIN PERRY, et al.,
Plaintiffs,
-vs-

Case No. 12-C-664

CHERYL WENZEL, et al.,
Defendants.
DECISION AND ORDER
This is a civil rights, wrongful death suit brought by the Estate of
James Franklin Perry against two groups of defendants, the City
Defendants and the County Defendants. On May 6, 2016, the Court issued
a Decision and Order granting summary judgment in favor of both groups
of defendants. In that Order, the Court granted a motion for sanctions filed
by the County Defendants, who now move for an award of attorney’s fees
and costs pursuant thereto. This motion is granted.
The Court granted the County Defendants’ motion for sanctions
under 28 U.S.C. § 1927, which provides that “[a]ny attorney or other
person admitted to conduct cases in any court of the United States or any
territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy

personally the excess costs, expenses, and attorneys’ fees reasonably
incurred because of such conduct.” The Court noted that the lack of a
constitutional duty owed to Perry by the County Defendants was “known at
the outset of discovery in this case, at the latest. Even so, plaintiffs’ counsel
persisted in years of litigation against the County Defendants with no hope
of success.” Estate of Perry v. Wenzel, --- F. Supp. 3d ----, 2016 WL 2772193,
at *10 (E.D. Wis. May 6, 2016).
The County Defendants request a total of $254,092.20 in fees and
$34,907.18 in costs incurred in defending against the claims advanced by
plaintiffs’ counsel. Plaintiffs devote a large portion of their response to
rearguing the merits of their case, thus attempting to “negate” the
imposition of sanctions. The Court already held that the conduct of
plaintiffs’ counsel was vexatious and unreasonable pursuant to Section
1927. The only issue left for the Court to decide is the amount of the
sanction.
The balance of plaintiffs’ arguments fare no better. For example,
plaintiffs object to the use of the lodestar method in calculating the amount
of fees. “Case law, however, reveals the fairly widespread use of the
lodestar method in calculating reasonably incurred attorneys’ fees in this
circuit” for purposes of Section 1927. Rey v. Vertrue Inc., No. 1:12 CV
-2-

10146, 2013 WL 4718764, at *8 (N.D. Ill. Sept. 3, 2013). The lodestar
method yields a presumptively reasonable fee, which is “the product of the
hours reasonably expended on the case multiplied by a reasonable hourly
rate.” Montanez v. Simon, 755 F.3d 547, 553 (7th Cir. 2014).
Plaintiffs’ only argument in support of a lower fee is that the County
Defendants failed to mitigate their damages. That is, the plaintiffs argue
that the County Defendants only have themselves to blame because they
could have pressed their position that Perry was never in their custody
much earlier in the proceedings instead of waiting through years of
discovery and then moving for summary judgment. This argument is so
wrong-headed the Court does not know where to start. First, the County
Defendants did press their position by repeatedly informing the plaintiffs
that their case was fatally flawed. Second, the County Defendants could
not have advanced this argument in Court with a motion based solely on
the pleadings. Third, plaintiffs’ counsel is cynically attempting to shift the
blame for his own misconduct to the County Defendants. Opposing counsel
does not have a duty to rescue an attorney from his or her own litigation
strategies.
Finally, plaintiffs’ attorneys argue that they are entitled to an
evidentiary hearing. They aren’t. “Fee awards … need not be preceded by
-3-

an evidentiary hearing if the record and supporting affidavits are
sufficiently detailed to provide an adequate basis for calculating an award,
and if the material facts necessary to calculate the award are not genuinely
in dispute.” Sablan v. Dep’t of Fin. of N. Mar. I., 856 F. 2d 1317, 1322 (9th
Cir. 1988) (internal citations omitted) (emphasis in original).
The County Defendants’ motion for fees and costs [ECF No. 154] is
GRANTED.
Dated at Milwaukee, Wisconsin, this 7th day of July, 2016.
SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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