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PALMER v. CITY OF CHICAGO

November 7, 1984

REUBEN PALMER, ET AL., SUBCLASS A PLAINTIFFS, AND EDWARD NEGRON, ET AL., SUBCLASS B PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

On November 18, 1983 (in the "Opinion," 576 F. Supp. 252) this Court determined plaintiffs were entitled under 42 U.S.C. § 1988 ("Section 1988") to interim attorneys' fees of $116,980.20, an amount later reduced (by a December 28 oral bench ruling) to $112,606.20.*fn1 In response to this Court's invitation for the parties' submissions as to the proper time for payment, the City of Chicago ("City") opposes immediate payment, claiming:

    1. Interim fee payments may be ordered only
  where a defendant's liability on the merits is
  clearly established after full litigation. Here
  the case has reached only the stage of a
  preliminary injunction (ordered by this Court at
  562 F. Supp. 1067), now on appeal.
    2. If plaintiffs lose that pending appeal, they
  will no longer be prevailing parties and thus no
  longer entitled to attorneys' fees.
    3. Immediate payment is barred by the consent
  decree in Evans v. City of Chicago, No. 77 C 4119
  and Baylark v. City of Chicago, No. 79 C 1939
  (N.D.Ill. May 31, 1984) ("Evans-Baylark").
    4. Plaintiffs' fees award is unenforceable
  absent a determination under Fed.R.Civ.P.
  ("Rule") 54(b), and no such determination should
  be made under the circumstances of this case.

For the reasons stated in this memorandum opinion and order, this Court finds none of City's objections persuasive and therefore orders immediate payment.

Proper Grounds for Objection

City's first two objections are really a back-door effort to obtain reconsideration of the Opinion. Each was disposed of when this Court expressly determined (576 F. Supp. at 253-54) plaintiffs were prevailing parties and were entitled to attorneys' fees regardless of the outcome of the current appeal or the rest of the litigation. There is no need to repeat that analysis. This opinion therefore restricts its discussion to:

    1. whether immediate payment is barred by
  Evans-Baylark; and
    2. whether a determination under Rule 54(b) is
  a prerequisite to an order for immediate payment.

Nonapplicability of Evans-Baylark

Evans-Baylark has determined the sequence to be followed in payment of tort judgments against City. It contains a provision for attorneys' fees to be paid along with the judgments themselves, but Judge Grady has specified that provision applies only to attorneys' fees awarded in conjunction with damage awards, adding (Decree I.2 n. *):

  However, in cases which do not involve claims for
  money damages, such as cases where only
  injunctive or declaratory relief is sought,
  payment of a fee award out of sequence would not
  result in a preference of the attorney over the
  client. While this court assumes that for
  purposes of simplicity and uniformity attorneys
  fees awards in cases not involving money damages
  will ordinarily be paid in the same sequential
  order established in this decree for tort
  judgments, we nonetheless recognize that another
  court ...

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