United States District Court, Northern District of Illinois, E.D
April 30, 1985
SAMUEL COLEMAN, PLAINTIFF,
GORDON FRIERSON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Samuel Coleman ("Coleman") prevailed against each of the
remaining three defendants in this 42 U.S.C. § 1983 ("Section
1983") action, brought to challenge Coleman's firing as Special
Investigator for the Village of Robbins ("Robbins") and his
later arrest on charges of impersonating a police officer.
After entry of a default judgment as to liability against
defendants, a jury trial was held solely to determine Coleman's
damages. Verdicts were returned in the following amounts:
1. against former Robbins Mayor Marion Smith ("Smith"),
$250,000 in compensatory damages for physical, mental and
emotional injury and $100,000 in punitive damages;
2. against former Robbins Police Chief Gordon Frierson
("Frierson"), $125,000 in compensatory damages for physical,
mental and emotional injury and $100,000 in punitive damages;
3. against Robbins, $34,000 in lost wages and $14,842 in
4. against Frierson and Smith jointly and severally, $3,000
in compensatory damages for legal and medical
Coleman has now petitioned for an award of attorneys' fees
under 42 U.S.C. § 1988 ("Section 1988"). His petition is
granted, subject to the limitations stated in this opinion.
Reasonable Fee Award
Parties are "prevailing" for Section 1988 purposes "if they
succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit."
Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933,
1939, 76 L.Ed.2d 40 (1983), quoting Nadeau v. Helgemoe,
581 F.2d 275, 278-79 (1st Cir. 1978). Because Coleman certainly
qualifies as a prevailing party in those terms, it remains only
to calculate a "reasonable" fee in the circumstances of the
case. For that purpose this Court must look first to "the
number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate," Hensley, 461 U.S. at
433, 103 S.Ct. at 1939, an inquiry that entails consideration
of such factors as the novelty and difficulty of the questions
involved, the amount involved and the results obtained, the
customary fee and the experience and ability of the attorney.
Id. at 430 n. 4, 103 S.Ct. at 1938 n. 4, citing Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
Affidavits filed by Coleman's attorneys, Abraham Goldman
("Goldman") and Steven Ackerman ("Ackerman"), set out in
scrupulous detail the time spent on this lawsuit from March
1982 through November 1984. They have taken special care to
deduct (1) time for duplicate effort and (2) time that has
already been compensated by sanctions under Fed.R.Civ.P.
("Rule") 37. After careful review of those affidavits, this
Court finds Goldman's 303.25 hours and Ackerman's 537.75 hours
over a two-year period represent a reasonable investment of
time — especially given the nature of the case and the
substantial problems created by defendants' and their counsel's
conduct of the litigation.*fn2
Coleman had a difficult factual case to prove. Because his
claim turned in part on Smith's and Frierson's intent — why
they acted as they did — Coleman's lawyers were confronted by
the always troublesome task of building on inferences.
Similarly, every effort to pierce the veil of governmental
action is likely to be hard, and that was doubly complicated
here because the events underlying Coleman's claim occurred in
the context of apparent conflict between the Robbins Board of
Trustees and various Robbins officials over the locus of
municipal authority and power. Goldman and Ackerman also had
the job of dealing with complicated questions about the
allocation of municipal power under state law. And all their
work called for piecing the facts together out of a welter of
deposition testimony. As already said, there can be no quarrel
with the reasonableness of the time spent.
As for the applicable hourly rate, Goldman seeks an award at
$150 per hour, while Ackerman has asked $100. Fair market value
is the standard for appraising those requests, Strama v.
Peterson, 561 F. Supp. 997, 999 (N.D.Ill. 1983), and that
standard is plainly met here:
1. Goldman has had extensive experience trying Section 1983
cases. In fact he was trial counsel for plaintiffs in
Winfield v. Murcia, 78 C 1792 (N.D.Ill. Oct. 30, 1981), the
first case prosecuted to a verdict against the City of
Chicago under the doctrine of Monell v. Department of Social
Services of the City of New York, 436 U.S. 658, 692-93, 98
S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978). Goldman has
submitted recent statements issued to other civil rights
clients reflecting the $150 hourly rate.
2. Ackerman, like Goldman, has had substantial federal court
trial experience in civil rights cases. For example, he was
co-trial counsel with Goldman in Winfield. As of March 1983
(in connection with a then-pending motion for assessment
of fees as Rule 37 sanction) this Court calculated the value
of Ackerman's services at $85 an hour. Increasing that rate
to $100 is reasonable in terms of today's market rates.
Robbins urges not all the time expended by Goldman and
Ackerman should be billed at their current hourly rates. On
that score the case law in this Circuit is clearly otherwise.
Gautreaux v. Chicago Housing Authority, 690 F.2d 601
(7th Cir. 1982), specifically holds awards at current hourly
rates rather than historic rates are appropriate (and have been
widely approved elsewhere). And Chapliiwy v. Uniroyal, Inc.,
670 F.2d 760
, 764 & n. 6 (7th Cir. 1982) points out that
treatment is justified in part to account for inflationary
losses due to delay in payment.
Frierson complains in another respect, objecting to application
of an across-the-board hourly rate without regard to the nature
of the services performed. That contention too was recently
rejected by our Court of Appeals, this time in Berberena v.
Coler, 753 F.2d 629, 632-33 (7th Cir. 1985).
On a straight hours-times-rates basis, then, the- total comes
to $99,262.50, of which $45,487.50 is allocable to Goldman's
work and $53,775.00 to Ackerman's. It remains to consider
whether any of the other relevant factors points to a different
result, either up or down.
Coleman has asked for application of a 1.5 multiplier to each
lawyer's time charges. He argues Goldman and Ackerman achieved
excellent results on a novel and difficult theory of recovery,
exhibiting tenaciousness in the face of considerable
recalcitrance on the part of defendants and their counsel.
Supreme Court decisions have given somewhat mixed signals in
that area. Hensley, 461 U.S. at 435, 103 S.Ct. at 1940 said:
Where a plaintiff has obtained excellent results, his attorney
should recover a fully compensatory fee. Normally this will
encompass all hours reasonably expended on the litigation, and
indeed in some cases of exceptional success an enhancement
award may be justified.
On the other hand Blum v. Stenson, ___ U.S.___, 104 S.Ct.
1541, 1549, 79 L.Ed.2d 891 (1984) (footnote omitted), while
reaffirming Hensley, said:
Because acknowledgement of the "results obtained" generally
will be subsumed within other factors used to calculate a
reasonable fee, it normally should not provide an independent
basis for increasing the fee award.
Blum, id. at 1550 placed the burden on the party seeking the
award to produce evidence that enhancement is necessary to make
the award fully compensatory.
In Hensley-Blum terms, Coleman is not entitled to an enhanced
award. He has come forward with no specific evidence as to the
need for enhancement to make the fee award fair. Indeed,
payment in full on a straight hourly basis encompasses a
substantial amount of time expended in researching substantive
issues foreclosed by the default judgment.*fn3
Thus the nearly six-figure award calculated earlier not only
meshes with the multiple factors identified in Hensley and
other cases, but also provides a proper balance between
competing factors. It neither prejudices Goldman and Ackerman
because a default judgment was entered nor penalizes defendants
because of their careless prosecution of the case. This Court
accordingly denies Coleman's request for application of a
Fee Allowable Against Specific Defendants
Coleman has also urged joint and several imposition of the fee
award against all defendants. In Strama, 561 F. Supp. at
1000-01 this Court addressed the possible allocation of fee
awards in the context of a
substantial disparity in the damages awards against multiple
Ordinarily tortfeasors are jointly and severally liable, with
the plaintiff having the free choice of whom to pursue (subject
to possible contribution among the tortfeasors at the behest of
the defendant required to pay in the first instance). But the
situation here seems to call for different treatment:
1. Where each defendant is liable for a discrete amount of
damages (instead of joint and several liability for a
single figure), joint and several liability for the entire
fee award appears inappropriate. See Dean v. Gladney,
621 F.2d 1331, 1340 (5th Cir. 1980), cert. denied,
450 U.S. 983 [101 S.Ct. 1521, 67 L.Ed.2d 819] . . . (1981).
2. Where the disparity between the liability amounts is as
great as here, the added principle that "usually attorneys'
fees should not be granted `greatly in excess of a client's
recovery'" (Strama [v. Peterson], 689 F.2d [661,] 665
[(7th Cir. 1982)]) reinforces that conclusion.
Of the jury's $627,142 award to Coleman, $351,650 was assessed
against Smith, $226,650 against Frierson and $48,842 against
Robbins.*fn4 Calculated as percentages of the total verdict,
Smith is liable for 56.07%, Frierson 36.14% and Robbins 7.79%.
Were this Court to apply only the concept discussed in
Strama, the fee award would be apportioned among defendants
in the ratio of those percentages.
Even on that assumption, though, matters would be rendered more
complicated by the fact that after the trial defendants parted
company, using different counsel. Coleman's counsel have
meticulously broken out the post-trial time separately
chargeable to individual defendants on issues relating to
collection (R.Mem. ):
If the remaining $94,087.50 were allocated on the percentages
stated earlier ($52,756.58 to Smith, $34,003.36 to Frierson and
$7,327.56 to Robbins), the aggregate allocation using the
Strama-suggested approach would come to this:
There would however be an important element of unfairness in
imposing only several (and not joint) liability on the
individual defendants in that manner. It would place on Coleman
all the risk of insolvency of, or uncollectibility against, any
One final and important factor enters the equation at this
point. Robbins' own counsel has acknowledged the propriety of
assessing the entire fees award against the Village (Mem. 6):
We do not agree that any fee award should be made but in the
event fees are awarded, the cases relied on by plaintiff
clearly show that the award should properly be against the
Village of Robbins.
That makes it unanimous (albeit for radically different
reasons) among the parties: Coleman argues all three defendants
should be jointly and severally liable (so the full amount
could be collected from Robbins), while each of Smith and
Frierson seeks to shunt sole responsibility to Robbins. In the
face of such unanimity, this Court accepts the invitation to
impose potentially full liability on Robbins, which leaves open
the question of any joint liability of the individual
Two reasons compel an affirmative answer to that question. For
one thing, the
vast majority of the total damages (over 92%) was assessed
against the individuals, and on grounds not attributable to
Robbins at all. And for another, the post-judgment proceedings
have demonstrated Robbins may not be good even for the damages
against it, let alone the fees award (nearly double those
damages). Accordingly this Court is called on to determine the
proper extent of any assessment against Smith and Frierson — a
kind of variant on the considerations identified in Strama.
This is an issue this Court has not seen confronted in any
case, and it has sought to shape an equitable approach to the
problem — avoiding the extremes of wholly joint liability on
the one hand and of mere several liability (unfair to Coleman
if collection proves difficult) on the other. Consequently this
Court assesses each individual defendant's maximum liability
for fees at 150% of his straight pro rata share:
Smith $84,441.12 (rather than $56,294.08)
Frierson 52,298.79 (rather than 34,865.86)
Robbins 99,262.50 (the full amount, as
Coleman has the right to pursue any defendant up to that
maximum amount — subject of course to the limitation that his
total recovery of fees shall not exceed the aggregate award of
Liability of Defense Counsel for Fee Award
Coleman finally urges defense counsel Aldus Mitchell
("Mitchell") should be held jointly liable for the $94,087.50
element of the fee award incurred before defendants split off
from each other. Coleman argues Mitchell vexatiously and
unreasonably increased the cost of the litigation by his
careless and negligent handling of the case, bringing into play
28 U.S.C. § 1927 ("Section 1927"). If that section does not
control, Coleman contends Mitchell at least violated Rules 11,
16 and 37, for which violation liability for the other side's
fees is a suitable sanction.
Of course Rules 11, 16 and 37 were never intended to have the
broad reach Coleman now claims for them. They certainly provide
no basis for holding Mitchell liable for substantially the
entire fee award. By the same token Section 1927 creates
liability only for excess costs, expenses and attorney's fees
triggered by an attorney's vexatious behavior, not an award for
the total expenses of litigation. United States v. Blodgett,
709 F.2d 608, 610-11 (9th Cir. 1983).
Coleman has made no attempt to identify portions of the award
directly attributable to Mitchell's misconduct, nor has he
identified any other legal basis for holding Mitchell liable
for the entire fee award. Absent any rational predicate for a
partial attribution of the award against Mitchell, Coleman's
petition is denied in that respect.
This Court awards the sum of $99,262.50 to Coleman as and for
attorneys' fees and expenses. Coleman's right to collection of
part of that amount from any one defendant shall not exceed the
following respective sums:
Accordingly judgment is entered against defendants in those
respective sums (subject of course to the limitation that
Coleman may not recover more than $99,262.50 in total).