United States District Court, Northern District of Illinois, E.D
January 6, 1982
THOMAS J. STRAMA, PLAINTIFF,
PAUL Q. PETERSON, M.D., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Thomas J. Strama ("Strama") originally sued former Director
of Illinois Department of Public Health ("IDPH") Paul
Peterson; Coordinator of IDPH's Mobile Intensive Care Program
("MICP") Karen Swanson; Chief of MICP at Billings Hospital
Frank Baker; and former City of Chicago Fire Commissioner
Richard Albrecht ("Albrecht") because of their involvement in
the allegedly unlawful suspension of Strama's paramedic
license and his consequent loss of employment. Strama and
Albrecht were able to reach a settlement under which Strama
was reinstated as a Fire Department paramedic with full back
pay. As a "prevailing party" Strama now seeks attorneys' fees
and expenses from Albrecht under 42 U.S.C. § 1988 ("Section
1988"). For the reasons stated in this memorandum opinion and
order Albrecht is ordered to pay Strama $45,551.56 in fees and
"Lodestar" and the Multiplier
As is so often the case under Section 1988, the real
question is not whether but how much in fees should be
awarded. Albrecht cannot seriously contest Strama's right, at
a minimum, to recover the "lodestar" figure*fn2 of attorneys'
fees generated by the suit against Albrecht. Strama's counsel
provided high quality legal work that resulted (by settlement)
in complete vindication of Strama's rights.
Fees are clearly awardable under the standards approved in
Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir. 1981).
This action triggered the settlement. There is no evidence that
any time spent was wasted or unnecessary. Nor was Strama's
complaint frivolous: It withstood motions of various defendants
(three by Albrecht himself) for dismissal and summary judgment,
and Strama has obtained reinstatement and full backpay with the
litigation not yet over. Cf. Bonner v. Coughlin, 657 F.2d 931,
934 (7th Cir. 1981) (plaintiff recovered only nominal damages,
yet was entitled to a reasonable fee award).
Strama poses a more difficult question by his request for a
multiplier of 1.5. Cases seldom discuss the appropriateness of
a multiplier and the standards for its determination. In
Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598, 604
(7th Cir. 1979), cert. denied, ___ U.S. ___, 102 S.Ct. 612, 70
L.Ed.2d 599 (1981), our Court of Appeals approved the use of a
1.25 multiplier. Although Kamberos was a Title VII case, the
same court has implicitly approved the use of multipliers and
the Kamberos standards in Section 1983 cases. Bonner
v. Coughlin, 657 F.2d 931, 936-37 (7th Cir. 1981).
As a starting point Kamberos looked to Code of Professional
Responsibility DR 2-106:
Factors to be considered as guides in determining
the reasonableness of a fee include the
(1) The time and labor required, the novelty
and difficulty of the questions involved, and the
skill requisite to perform the legal service
(2) The likelihood, if apparent to the client,
that the acceptance of the particular employment
will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality
for similar legal services.
(4) The amount involved and the results
(5) The time limitations imposed by the client
or by the circumstances.
(6) The nature and length of the professional
relationship with the client.
(7) The experience, reputation, and ability of
the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
This Court will follow that lead.
As to the first factor, the action has already generated a
great deal of constructive time and effort by Strama's
counsel. But the Court does not perceive it as involving
unusually complex or novel legal issues. Even though the
parties often treat it in these terms, the case is not about
whether a paramedic can be fired for performing an episiotomy.
It rather poses the question whether the procedures followed
in terminating Strama comported with due process. Though due
process questions are rarely simple, the case law on public
employees' due process rights is well-developed.
Factor (1) then would not support use of a multiplier.
Strama's counsel has also not borne out his contention that
the case precluded Strama's counsel from accepting other
employment (factor (2)). As Albrecht points out, Strama's
counsel spent the equivalent of about three weeks per year on
But several factors weigh strongly in favor of a multiplier.
On balance they support a substantial premium over the
First of course is the major victory won by Strama's counsel
even at this interim stage (part of factor (4)). And over and
above backpay, reemployment involves a benefit that may well
exceed a one-shot recovery of damages. As for factor (6),
settlement was reached only after three years of litigation,
and Strama was represented most capably.
Various matters relating to lead counsel Stephen Seliger
point in the same direction. Seliger is a highly
qualified*fn3 and experienced lawyer who has spent much of
his time doing civil rights litigation. For the last three
years he has been in practice for himself specializing in
employment civil rights and discrimination litigation. That
practice necessarily involves a substantial dependency on fee
awards in successful cases.
Indeed this action exemplifies problems incurred in
discrimination litigation. Strama was unable to bear his own
legal costs, so Seliger took the case on a contingency fee
basis. Two law firms had refused to represent Strama on such
terms. All these facts provide major support for a significant
multiplier. In re Cenco, Inc. Securities Litigation,
519 F. Supp. 322, 327 (N.D.Ill. 1981).
Seliger requests a lodestar rate of $80 per hour. That
figure is modest indeed. Even without application of a
multiplier, the Court's own experience is that his
contemporaries with comparable credentials command hourly rates
in the $100-135 range.
Were all the factors on the plus side, a multiplier of 2 to 3
would be entirely appropriate. But weighing the various
elements in the total mix, this Court finds a $125 hourly rate
for Seliger (just over a 1.5 multiplier) is a reasonable fee.
No multiplier will be applied to the other lawyers' time.
Neither Ms. Weiner nor Mr. Johnson spent a great deal of time
on the case; both are less experienced than Seliger; and there
is no showing that the other plus factors should be applied to
Albrecht contends that certain time charged by Strama's
counsel should be excluded on two grounds:
(1) Strama originally sued the City of Chicago
and Michael Bilandic, both of whom were dismissed
early in the litigation.
(2) Much of the time recorded by Seliger does
not specify whether it was spent pursuing
Strama's claim against all defendants or Albrecht
That argument is without merit.
In Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149
(7th Cir. 1981) the plaintiff had prevailed on an age
discrimination claim but failed to prove the violation wilful.
For that reason the district court had reduced plaintiff's fee
recovery. In rejecting that result the Court of Appeals
contrasted the case with Busche v. Burkee, 649 F.2d 509 (7th
Cir. 1981), saying:
Plaintiff Syvock has presented one claim of age
discrimination. He has `essentially succeeded.'
His failure to persuade the court that he
mitigated his damages or that the defendant acted
wilfully indeed decreased his damage award.
Syvock's failure to prevail on these elements of
his claim, however, did not alter the finding of
liability against the defendant. Busche, on the
other hand, contended that his due process rights
were violated by three different actions by
defendant at the time of his termination. The two
on which he failed to prevail were not mere
aspects of a larger claim that affected the amount
of damages he was due for the claim on which he did
succeed. They were independent claims. . . .
Strama too had one claim: He was unlawfully terminated. Before
discovery it was impossible for Strama to determine who was
responsible, so he had to sue all possible defendants.
Defendants have at times enmeshed Strama in a Catch-22: He
could not be rehired because he was de-certified, and he was
de-certified because he was fired. Because Strama has
carefully excluded time spent exclusively on his claims against
other defendants, this Court will permit recovery for all
Other Defendants' Participation
Strama may hereafter succeed in imposing liability on one or
more other defendants. If so Section 1988 will come into play
again, and time spent to date will of course be relevant to
the fee award against them.
But that fact does not mitigate Albrecht's current liability
for fees. By settling Albrecht avoids liability for all fees
incurred after the settlement. But at this time Albrecht has
nothing more than a potential right to have other defendants
share the pre-settlement burden.
As to Albrecht Strama is already a prevailing party entitled
to all fees incurred in bringing an action based on his
termination. It would be unfair to require Strama to abide the
result of possible recovery against other defendants down the
road.*fn5 Albrecht must pay the entire amount now and pursue
his right to contribution if and when other defendants are
Paralegal Fees; Expenses
Albrecht argues that paralegal time should not be part of a
proper Section 1988
award. This Court disagrees. If a law firm chooses to bill for
paralegal services on a time basis rather than viewing them as
overhead charges and calculating higher hourly rates for
lawyers, that economic decision generates an equally
appropriate award figure. Several courts have honored such
requests without even discussing the issue. In re Cenco, Inc.
Securities Litigation, 519 F. Supp. 322, 326-27 (N.D.Ill. 1981);
Veterans Education Project v. Secretary of Air Force,
515 F. Supp. 993, 996 n. 4 (D.D.C. 1981); Lamphere v. Brown
University, 610 F.2d 46, 48 (1st Cir. 1979); Eubanks v.
Pickens-Bond Construction Co., 24 FEP Cases 892, 896 (E.D.Ark.
1979), aff'd, 635 F.2d 1341 (8th Cir. 1980).
Any other approach would either make no economic difference
or skew the awards for no good reason (in fact, Albrecht's
position could be counterproductive by creating an incentive
for lawyers to do work themselves that paralegals can perform
at a much lower rate). Seliger's $25 per hour request for
paralegal time is eminently reasonable, consistent with the
market and allowable.
Finally Albrecht challenges the inclusion of expenses
incurred in traveling to a deposition. Seliger went to
Springfield, Illinois to attend the deposition of Karen
Swanson, a co-defendant and central figure in this action.
That requested expense is entirely reasonable and proper.
Strama's motion is granted in the following amount, which
Albrecht is ordered to pay to Strama:
Seliger: 300.75 hours X
Johnson: 60 hours X $50 3,000.00
Weiner: 23.5 hours X $75 1,762.50
Johnson (student) 25 hours
X $25 625.00
Sieler (paralegal) 25 hours
X $25 625.00
This order disposes of the last matter in controversy between
Strama and Albrecht.
This Court is continuously mindful of the admonitions of our
Court of Appeals in cases such as Great American Trading Corp.
v. I.C.P. Cocoa, Inc., 629 F.2d 1282, 1286 (7th Cir. 1980) that
Fed.R.Civ.P. ("Rule") 54(b) determinations "are not to be made
routinely or as an accommodation to counsel." But the situation
here satisfies all the considerations that should make the
current order against Albrecht appealable though the litigation
itself still pends against other defendants. Albrecht is no
longer a party, and the enforceability (and appealability) of
the order as a final judgment will not derogate from the
progress of Strama's substantive claims against the other
defendants. This order poses discrete issues wholly separate
from those involved in the substantive claims.*fn6 And there
is no reason this order should remain subject to review and
reconsideration by this Court, rather than permitting Strama to
execute on it as a final judgment. Accordingly, as contemplated
by Rule 54(b) this Court determines expressly that there is no
just reason for delay and expressly directs the entry of final
judgment in favor of Strama and against Albrecht in the sum of