The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
While the case was on appeal, the Illinois General Assembly
passed Public Law 82-984, which restricted searches previously
allowed by the Code. Consequently our Court of Appeals vacated
most aspects of the injunction. It did however uphold the
injunction as to Rule 5-401A ¶ 1.G in its application to sole
proprietorships.*fn2 721 F.2d 1072 (7th Cir. 1983).
On March 7, 1984 plaintiffs filed their 42 U.S.C. § 1988
("Section 1988") petition for attorneys' fees and expenses,
covering work done both here and in the Court of Appeals.
Defendants resisted any such award, contending:
1. Plaintiffs and defendants had jointly agreed to
waive all attorneys' fees and expenses.
2. Plaintiffs were not "prevailing parties."
After a hearing on the first issue, this Court found no
agreement had been entered into. It then asked the parties to
address the timeliness of plaintiffs' petition.*fn3 For the reasons
stated in this memorandum opinion and order, this Court finds
plaintiffs' petition timely.
White v. New Hampshire Department of Employment Security,
455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) held the
stringent ten-day timetable of Fed.R.Civ.P. ("Rule") 59(e) did
not govern Section 1988 fee applications. It then went on to say
(id. at 454, 102 S.Ct. at 1167, footnotes omitted):
Section 1988 authorizes the award of attorney's fees
"in [the] discretion" of the court. We believe that
this discretion will support a denial of fees in
cases in which a postjudgment motion unfairly
surprises or prejudices the affected party. Moreover,
the district courts remain free to adopt local rules
establishing timeliness standards for the filing of
claims for attorney's fees. And of course the
district courts generally can avoid piecemeal appeals
by promptly hearing and deciding claims to attorney's
fees. Such practice normally will permit appeals from
fee awards to be considered together with any appeal
from a final judgment on the merits.
And shortly after White our Court of Appeals put the matter this
way in Gautreaux v. CHA, 690 F.2d 601, 612 (7th Cir. 1982)
Absent a fixed time limitation, the only constraint
on when the plaintiffs file for attorneys' fees under
Rule 54(d) of the Federal Rules is laches. . . . A
laches claim must demonstrate both undue delay
and prejudice to the non-delaying party.
Here Superintendent claims "unfair  surprise  or prejudice
" (the language in White) because plaintiffs' late filing:
(a) makes it more difficult to challenge
plaintiffs' billing hours for work ...