Martinez v. Bitzer Prods. Co.
| Decision Date | 14 November 2012 |
| Docket Number | Case No.: 11-cv-6811 |
| Parties | JAIME MARTINEZ, Plaintiff, v. BITZER PRODUCTS CO., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT
NOW COMES the Plaintiff, JAIME MARTINEZ ("Plaintiff"), by and through his attorneys, ED FOX & ASSOCIATES, and for his Motion for Entry of Judgment hereby states as follows:
BACKGROUND
1. On September 28, 2011, Plaintiff filed his complaint alleging claims under the Americans with Disabilities Act ("ADA") for discrimination and failure to provide a reasonable accommodation. See D.E. #1. Plaintiff's complaint arose from the Defendant's termination of his employment on or about February 26, 2010.
2. On July 10, 2012, the parties conducted a settlement conference with Magistrate Judge Jeffrey Cole that resulted in a confidential settlement agreement. See D.E. #30. Both parties agreed to the terms of the settlement agreement on the record in open court and both parties subsequently signed a document titled "Confidential Separation Document and General Release" (hereinafter the "Settlement Agreement"). On July 25, 2012, the Court dismissed Plaintiff's claims without prejudice with leave to reinstate by December 17, 2012. See D.E. #34.
3. The terms of the Settlement Agreement between the parties allowed for the Defendant to provide certain payments to the Plaintiff over a period of six months. The Defendant agreed to make payments on July 17, 2012 and the 10th of every month thereafter with the Defendant's last payment due on December 10, 2012. The amount of each payment is contained in the Settlement Agreement, which is being tendered to this Court under seal as Exhibit A because of certain confidentiality provisions.
4. The Defendant made payments to the Plaintiff according to the terms of the Settlement Agreement in July, August and September 2012.
5. On October 10, 2012, the Defendant failed to make the October, 2012 payment as required in the Settlement Agreement. The Defendant further failed to make the November, 2012 payment on November 10, 2012. As of today's date, the Defendant has failed to make the October and November payments.
6. The Defendant has breached the terms of the Settlement Agreement by failing to make payments to the Plaintiff.
7. After the Defendant failed to make payments in October and November, on November 12, 2012 Plaintiff filed a Motion to Reinstate the Case and to Enforce the Settlement Agreement ("Plaintiff's Motion to Reinstate"). See D.E. #35. This Court granted the Plaintiff's Motion to Reinstate on November 19, 2012. See D.E. #37.
8. Based upon representations from counsel for the Defendant that the Defendant is out of money and has been placed in receivership, Plaintiff anticipates that Defendant will not make any of the remaining payments agreed to in the Settlement Agreement.
9. On or about October 17, 2012, the Honorable Judge Moshe Jacobius of the Chancery Division of the Circuit Court of Cook County entered an Agreed Order Appointing Receiver and Granting Other Relief in Case No. 2012 CH 38246. The October 17, 2012 Order, attached hereto as Exhibit B, appointed a receiver for Bitzer Products and bestowed him with the authority to, amongst other things, conduct all business operations and manage all funds of Bitzer Products. Plaintiff first became aware of the Chancery Division action on November 19, 2012.
10. The settlement of a federal claim is "enforced "just like any other contract' . . . ." Dillard v. Starcon Int'l, Inc., 483 F.3d 502, 506 (7th Cir. 2007) (quoting Lynch, Inc. v. SamataMason Inc., 279 F.3d 487, 489 (7th Cir. 2002)). "Whether a settlement agreement is binding is an issue governed by the law of the state in which the parties executed the agreement." Lewis v. Sch. Dist. # 70, 648 F.3d 484, 486 n.l (7th Cir. 2011); see also Zilherstein v. College, 286 F. App'x 938, 940 (7th Cir. 2008); Sims-Madison v. Inland Paperboard and Packaging, Inc., 379 F.3d 445, 448 (7th Cir. 2004); Pohl v. United Airlines, Inc., 213 F.3d 336, 338 (7th Cir. 2000) ().
11. Illinois law governs the validity of a settlement agreement because the parties executed the alleged agreement in Illinois. Lynch, Inc., 279 F.3d at 489. The material terms of the settlement agreement must be "definite and certain," so the Court can determine when a breach occurs. Dillard v. Starcon Intern., Inc., 483 F.3d 502, 508-09 (7th Cir. 2007).
12. For a settlement agreement to be enforceable under Illinois contract law there must be an offer, acceptance, and a "meeting of the minds" as to the material terms of the agreement. Feirich v. MCY Music World, Inc., 371 Ill.App.3d 332, 345, 308 Ill.Dec. 968, 862 N.E.2d 1171 (1st Dist.2007); Magee v. Garreau, 332 Ill.App.3d 1070, 1076, 266 Ill.Dec. 335, 774 N.E.2d 441 (2nd Dist.2002).
13. On or about July 10, 2012, the Plaintiff and Defendant entered into an enforceable contract under Illinois law when they settled the instant case. Plaintiff and Defendant met each of the requirements to form a contract under Illinois law when they entered into the Settlement Agreement attached hereto as Exhibit A.
14. The Defendant breached the Settlement Agreement on October 10, 2012 and November 10, 2012 when it failed to make payment to the Plaintiff on or before those dates. The Defendant does not dispute that it breached the Settlement Agreement when it failed to make certain payments to the Plaintiff.
15. Plaintiff seeks entry of Judgment pursuant to Federal Rule of Civil Procedure 54(b) in favor of the Plaintiff and against the Defendant for breach of the terms of the Settlement Agreement entered into on or about July 10, 2012.
16. Title 29, United States Code, Section 794a(b), states that "the court, in its discretion, may allow the prevailing party, ... a reasonable attorney's fee." 29 U.S.C. § 794a(b). Section 794a(b) is patterned on the language contained in 42 U.S.C. § 1988, a statute typically used in civil rights cases for recovery of attorney's fees. Jones v. Illinois Dep't of Rehab. Serv., 689 F.2d 724, 730 n. 8 (7th Cir. 1982).
17. A litigant can be considered a prevailing party when he has "prevailed on the merits of at least some of his claims" or "obtained a judgment on the merits, a settlement agreement enforced through a consent decree, of some other judicially sanctioned change in the legal relationship of the parties." Buckhannon Bd. of Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 532 U.S. 598, 605, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); Dupuy v. Samuels, 423 F.3d 714, 719 (7th Cir.2005); Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Palmetto Properties, Inc. v. County of DuPage, 375 F.3d 542, 548 (7th Cir.2004)).
18. The Seventh Circuit has held that "some settlement agreements, even though not explicitly labeled as a 'consent decree' may confer 'prevailing party' status, if they are sufficiently analogous to a consent decree." T.D. v. LaGrange School Dist. No. 102, 349 F.3d 469, 478 (7th Cir.2003) ).
19. A settlement short of a consent decree may qualify for "prevailing party" status if the terms of the settlement were incorporated into the dismissal order which was signed by the court or the order provided that the court would retain jurisdiction to enforce the terms of the settlement. See Petersen v. Gibson, 372 F.3d 862, 866-87 (7th Cir.2004) (citing T.D., 349 F.3d at 478-78; Smalbein v. City of Dayton Beach, 353 F.3d 901, 905 (11th Cir.2003).
20. In this case, this Court placed the material terms of the settlement on the record and retained jurisdiction to enforce the parties' Settlement Agreement on July 10, 2012. See D.E. #30.
21. "Attorneys' fees are assigned a 'lodestar' amount, [a figure which is] calculated by multiplying the number of hours the attorney reasonably expended on the litigation times a reasonable hourly rate." Mathur v. Board of Tr. of Southern Illinois Univ., 317 F.3d 738, 742(7th Cir.2003) ). "The party seeking the fee award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir.1999).
22. "'The reasonable hourly rate (or 'market rate') for lodestar purpose is 'the rate that lawyers of similar ability and experience in their community normally charge their paying clients for the type of work in question.'" Garcia v. City of Chicago, No. 01 C 8945, 2003 WL 22175620, at *2 (N.D.Ill. Sept.19, 2003) (citing Hensley, 461 U.S. at 434). "Evidence of 'market rate' includes rates other attorneys in the area charge paying clients for similar work, fee awards from prior cases, the attorney's credentials, and the attorney's actual billing rate." Id. (citing People Who Care v. Rochford Bd. of Educ, Sch. Dist. No. 205, 90 F.3d 1307, 1311-13 (7th Cir. 1996)). "In addition, an attorney's affidavit alone cannot establish ... her market rate; however, such affidavit 'in conjunction with other evidence of the rates charged by comparable lawyers is sufficient to satisfy the plaintiff's burden." ' Id. (quoting Harper, 223 F.3d at 604).
23. Plaintiff seeks attorney's fees in the amount of $3,643.75 based upon the lodestar method outlined above. Attached hereto as...
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