Lasalvia v. City of Evanston

• Decision Date: 28 June 2012
• Docket Number: CASE NUMBER 10 C 3076
• Parties: LaSalvia v. City of Evanston et al
• Court: U.S. District Court — Northern District of Illinois

LaSalvia

v.City of Evanston et al

CASE NUMBER 10 C 3076

United States District Court, Northern District of Illinois

Dated: June 28, 2012

Name of Assigned Judge

or Magistrate Judge

Amy J. St. Eve

Sitting Judge if Other

than Assigned Judge

DOCKET ENTRY TEXT

Plaintiff's petition for attorney's fees [100] is granted in the amount of $45,396.88.

[×] [ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT

Before the Court is Plaintiff's petition for attorney's fees pursuant to 42 U.S.C. § 1988(b). For the following reasons, the Court grants the petition in the amount of $45,396.88.

BACKGROUND

On May 18, 2010, Plaintiff Kevin LaSalvia, through his attorney Basileios Foutris, filed this action against Defendant Police Officers Thomas Giese and Joseph Panek, and Police Sergeant Ryan Glew, alleging violations of his constitutional rights.¹ See 42 U.S.C. § 1983. The case proceeded to trial, at which Mr. Fourtris and another attorney, Scott Dolezel, represented Plaintiff. On January 5, 2012, following a three-day trial, the jury returned a verdict for Plaintiff on his excessive force claim against Defendant Giese and awarded $2,300 in compensatory damages. The jury returned verdicts for the defense on each of the remaining claims: failure to intervene against Defendant Panek, and failure to provide medical care against Defendants Giese, Panek, and Glew. (R. 83, 88.) The Court entered judgment in accordance with the jury verdict. (Id.) On March 29, 2012, Plaintiff filed the present petition for attorney's fees. (R. 100.)

LEGAL STANDARD

The prevailing party in a § 1983 action may recover reasonable attorney's fees. See 42 U.S.C. § 1988. To determine a reasonable fee, the Seventh Circuit instructs district courts to use the lodestar method, namely to multiply the "number of hours reasonably expended on the litigation . . . by a reasonable hourly rate." Pickett v. Sheridan Health Care Cent., 664 F.3d 632, 639 (7th Cir. 2011) (quoting Hensley, v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 40 (1983)). This method "applies even in cases where the attorney represents the prevailing party pursuant to a contingent fee agreement." Pickett, 664 F.3d at 639. After arriving at the lodestar figure, "other considerations . . . may lead the district court to adjust the fee upward or downward, including the important factor of the 'results obtained.'" Hensley, 461 U.S. at 434. If a "plaintiff prevails on only some of his interrelated claims, . . . . the 'district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.'" Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir. 2010) (quoting Hensley, 461 U.S. at 436-37); see also DeCola v. Keel, No. 09 C 3799, 2010 WL 5232972, at *1 (N.D. Ill. Dec. 16, 2010) (reducing lodestar by 50% "based on counsel's limited success").

ANALYSIS

Here, Plaintiff seeks $128,437.50 in attorney's fees as a prevailing party under § 1988(b). (R. 100, Pl.'s Pet. at 15.) Defendant does not challenge Plaintiff's status as a prevailing party, but argues that $17,700 in attorney's fees would better reflect the results of the trial.² (R. 102, Def.'s Resp. at 1.) In approaching Plaintiff's fee petition, the Court first calculates the lodestar amount, with reference to Defendant's specific objections, and then determines whether that figure is appropriate given the circumstances of this case. See Hensley, 461 U.S. at 434; Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012).

I. Calculation of Lodestar

A. Number of Hours

The first question is whether the number of hours that Plaintiff seeks to recover is reasonable. The Court addresses Defendant's objections as to each of Plaintiff's attorneys.

1. Attorney Dolezel

Plaintiff seeks to recover 56.25 hours for Attorney Dolezel, reflecting counsel's work from December 20, 2011 until January 5, 2012.³ (R. 100, Pl.'s Pet., Ex. 5.) Defendant objects, reasoning that the addition ofAttorney Dolezal, shortly before trial, resulted in the unreasonable duplication of attorney efforts. (See R. 102, Def.'s Resp. at 11-12.) The Court agrees. See Schlacher v. Law Offices of Phillip J. Rotche & Assocs., 574 F.3d 852, 859 (7th Cir. 2009) ("[courts should] scrutinize . . . for duplicative billing when multiple lawyers seek fees").

Even if this case was not "easy . . . to win" (R. 100, Pl.'s Pet., Ex. 1, 2 7), Plaintiff makes no suggestion that the case was unusually complex. See Jardien v. Winston Net., Inc., 888 F.2d 1151, 1160 (7th Cir. 1989) (observing that the fee applicant must demonstrate why the work of a second attorney is "fully justified"). Plaintiff's constitutional and state law claims rested on a well-developed body of law, and the factual issues at trial were far from exceptional. Compare Schlacher, 574 F.3d at 858 (affirming fee reduction when "one competent attorney would have sufficed"), with DuPuy v. McEwan, 648 F. Supp. 2d 1007, 1021 (N.D. Ill. 2009) (declining to reduce fee award when four lawyers did complementary work on single complex case). In attempting to justify the addition of a second attorney for trial, Plaintiff argues primarily that since the defense used multiple attorneys, it was reasonable for Plaintiff to do so as well. (R. 103, Pl.'s Rep. at 13.) That argument is not persuasive. Not only was defense counsel responsible for representing three individuals, but the defense attorneys were in-house staff who Defendant does not seek to bill to opposing counsel. (R. 100, Ex. 7 at 1.)

Under these circumstances, Plaintiff has failed to establish that it was reasonable for Mr. Dolezel to bill 56.25 hours in this case. See Johnson, 668 F.3d at 932 (time must be "reasonably required to see the case through to trial"); Schlacher, 574 F.3d at 858; Jardien, 888 F.2d at 1160 (disallowing award for a second attorney when work "was not fully justified"). Rather than disallowing all of these hours, the Court exercises its discretion and reduces Mr. Dolezel's compensable time to 9 hours, the figure that Defendant suggests in his Rule 56.3 Joint Statement. (R. 100, Ex. 1.)

2. Attorney Foutris

a. Failed Claims

Defendant seeks to exclude any time that counsel spent on unsuccessful claims. (R. 102.) Def.'s Resp. at 12); see also Hensley, 461 U.S. at 435 (stating that "work on an unsuccessful claim [is not] expended in pursuit of the ultimate result achieved"). Defendant does not, however, object to any specific time entries, nor is it practical or possible in this case, like many civil rights cases, to isolate the time that counsel devoted to the unsuccessful claims.⁴ See Jaffe v. Radmond, 142 F.3d 409, 413 (7th Cir. 1998) ("[W]hen 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."). To the extent a fee reduction is warranted based on Plaintiff's limited success, the Court will consider that question after calculating the lodestar. See Hensley, 461 U.S. at 434 ("other considerations . . . may lead the district court to adjust the fee upward or downward, including the important factor of the 'results obtained'").

b. Non-Compensable Activities

Defendant objects generally that Plaintiff seeks to recover time spent on "clerical tasks or other non-allowable charges." (R. 102, Def.'s Resp. at 11); see also Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 553 (7th Cir. 1999) (stating that courts "should disallow" recovery for clerical work that is not "sufficiently complex" to warrant an attorney's time) (internal citation omitted); Mattenson v. Baxter Healthcare Corp., No. 02 C 3283, 2005 WL 1204616, at *3 (N.D. Ill. Feb. 11, 2005). Although Defendant's argument is somewhat vague, the Court disallows two entries that appear to constitute clerical-type work: .25 hours on 12/14/11 for verification of trial date, and .25 hours on 12/22/11 for "email[ing] witness list to court." (R. 100, Ex. 3 at 10-11.)

c. Block billing

Defendant objects to Plaintiff's counsel's purported use of "block billing." (R. 102, Def.'s Resp. at 11); see also DuPuy, 648 F. Supp. 2d at 1029 (describing block billing as "lumping several different activities into one line item"). Although block billing "is not [] prohibited" Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 569 (7th Cir. 2006), the court may "reduce the award accordingly" if the documention is "inadequate." Hensley, 461 U.S. at 433; see also Duran v. Town of Cicero, No. 01 C 6858, at *15 (N.D. Ill. Apr. 16, 2012).

Here, Defendant argues that counsel's use of block billing renders it "impossible to discern whether the total hours that are block billed include clerical tasks or other non-allowable charges." (R. 102, Def.'s Resp. at 11.) Having reviewed the record, the Court finds Plaintiff's request for 7.50 hours for Mr. Foutris, reflected in a single January 5, 2012 entry, to be problematic. The billing description reads: "Finalize closing argument; attend trial; await jury verdict." (R. 100, Ex. 3 at 11.) Not only does this description somewhat obfuscate the specific tasks that counsel performed over that 7.5 hour period, but counsel's time appears to include time awaiting the jury's verdict, which courts have held is not compensable. See Warfield v. City of Chi., 733 F. Supp. 2d 950, 960 (N.D. Ill. 2010) (finding hours spent awaiting jury verdict "not reasonably expended"). Accordingly, the Court sustains Defendant's objection, and exercises its discretion to reduce the January 5, 2012 entry from 7.5 hours to 4 hours.

d. Quarter-Hour Billing

Defendant challenges Plaintiff's counsel's use of quarter-hour billing, arguing that use of quarter-hour rather than tenth-hour increments unreasonably inflates attorney time. (R. 102, Def.'s Resp. at 11.) Plaintiff's counsel replies that he routinely bills by the quarter-hour. (R. 103, Pl.'s Rep. at 12.) Quarter-hour billing is not per se...