United States District Court, Northern District of Illinois, E.D
January 11, 1982
CHICAGO REGIONAL PORT DISTRICT, PLAINTIFF,
FERROSLAG, INC., DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Ferroslag*fn1 has moved for an award of attorney's fees against
Chicago Regional Port District ("District"), essentially because this
Court's June 4, 1981 memorandum opinion and order (the "Opinion") found
District's Complaint so thoroughly devoid of merit.*fn2 For the reasons
stated in this memorandum opinion and order, Ferroslag's motion is
This Court need not pause long on the issues, for Ferroslag has
incorrectly approached the matter as though the Court were free to
exercise its "inherent power" to tax a party with fees on the basis most
recently described in Roadway Express, Inc. v. Piper, 447 U.S. 752,
765-66, 100 S.Ct. 2455, 2463-64, 65 L.Ed.2d 488 (1980):
Of course, the general rule in federal courts is
that a litigant cannot recover his counsel fees. See
Alyeska Pipeline Co. v. Wilderness Society, 421
U.S., at 257, 95 S.Ct. at 1621. But that rule does
not apply when the opposing party has acted in bad
faith. In Alyeska, we acknowledged the "inherent
power" of courts to
"assess attorneys' fees for the `willful
disobedience of a court order . . . as part of the
fine to be levied on the defendant[,] Toledo Scale
Co. v. Computing Scale Co., 261 U.S. 399, 426-28
[48 S.Ct. 458, 465-66, 67 L.Ed. 719] (1923),'
Fleischmann Distilling Corp. v. Maier Brewing
Co., supra, [386 U.S. 714] at 718 [87 S.Ct. 1404
at 1407, 18 L.Ed.2d 475] or when the losing party
has "acted in bad faith, vexatiously, wantonly, or
for oppressive reasons. . . .' F. D. Rich Co. [v.
United States ex rel. Industrial Lumber Co.],
417 U.S. , at 129 [94 S.Ct. 2157, at 2165, 40
L.Ed.2d 703] [(1974)] (citing Vaughan v.
Atkinson, 369 U.S. 527 [82 S.Ct. 997, 8 L.Ed.2d
88] (1962))." Id. 421 U.S. at 258-259, 95 S.Ct. at
The bad-faith exception for the award of attorney's
fees is not restricted to cases where the action is
filed in bad faith. "`[B]ad faith' may be found, not
only in the actions that led to the lawsuit, but
also in the conduct of the litigation." Hall v.
Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36
L.Ed.2d 702 (1973).
But this is a diversity case, and our Court of Appeals is among those
that have made it plain (following Alyeska, 421 U.S. at 259 n.31, 95
S.Ct. at 1622 n.31) that Illinois not federal law provides the rule of
As the Court said in Tryforos v. Icarian Development Co.,
518 F.2d 1258
, 1265 (7th Cir. 1975):
On the other hand, the Supreme Court's recent
decision in Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44
L.Ed.2d 141 n.31 (1975), requires us to reject
appellees' position that we should look to federal
law as authority for the award. Since this is a
diversity case, the question of plaintiffs'
liability for defendants' fees must be determined by
the law of Illinois. Trust Co. of Chicago v.
National Surety Corp., 177 F.2d 816, 818 (7th Cir.
Illinois law strictly limits the recoverability of attorneys' fees. As
the Illinois Appellate Court put it in Qazi v. Ismail, 50 Ill. App.3d 271,
272-73, 7 Ill.Dec. 434, 364 N.E.2d 595
, 596 (1st Dist. 1977):
The well-established principle in this State is that
attorney's fees and other costs of litigation are
ordinarily not recoverable by the prevailing party
unless specifically authorized by statute or
contract [citing cases]. There is no common law
principle allowing attorney's fees either as costs
or damages [citing cases].
See also St. Joseph Hospital v. Corbetta Construction Co., Inc.,
21 Ill. App.3d 925, 961, 316 N.E.2d 51, 76-77 (1st Dist. 1974), for a
laundry list of cases so holding.
Accordingly this Court is without power to grant the relief sought by
Ferroslag. Under the circumstances no view is expressed as to the manner
in which the Court would have dealt with the issue were it exercising its
inherent power in a federal question case. Ferroslag's motion must be and