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October 7, 1985


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


Before the Court are defendants' motion to enforce the settlement agreement reached in this case, and plaintiffs' motion to amend their third verified complaint purportedly to conform the pleadings to the evidence adduced at trial. Plaintiffs seek to amend their complaint, pursuant to Fed.R.Civ.P. 15(b), by adding claims under 42 U.S.C. § 1983 and 1988. For the reasons stated below, we grant defendants' motion to enforce the settlement agreement, and deny plaintiffs' motion to amend the complaint.

The Settlement

In their third verified complaint, plaintiffs sought a finding that the defendants were in contempt of this Court for violating the terms of the consent decree of May 5, 1982, entered in Shakman v. Democratic Organization of Cook County, 69 C 2145. The complaint alleged that three individual defendants, Porche, Miller, and Esteban, were promoted to supervisory positions instead of any of the plaintiffs, due to political considerations. At the close of trial, after a conference in chambers, the Court decided to issue a memorandum opinion holding that the Shakman consent decree prohibited patronage promotions, but that individual city employees seeking a promotion did not violate the decree by soliciting or receiving the help and recommendations of political or other sponsors. Thus, we dismissed the case against the three individual defendants who received promotions which were allegedly based on patronage considerations. See Herron v. City of Chicago, Mem. op. (N.D.Ill. October 3, 1985). The remaining parties and the Court then had extended settlement discussions at the conclusion of which a settlement was reached. The Court then summarized, for the record, the terms of the settlement agreement which had been reached by the remaining parties. Tr. at 429-34.

The terms of that settlement are as follows. The City agreed to pay $70,000 to plaintiffs "in the near future." That amount explicitly included attorneys' fees, and any costs or other expenses. Other than the $70,000 payment, each party was to bear its own costs and expenses, including attorneys' fees. The City also agreed that the next three promotions from Water Rate Taker to Supervisor of Water Rate Takers would be made from the current eligibility list of qualified applicants which includes the six plaintiffs and one other individual. The parties understood that the Court was to enter an opinion making it clear that patronage promotions are prohibited by the Shakman consent decree, that individual employees do not violate the decree by seeking and receiving help in attaining promotions, and that, accordingly, defendants Miller, Esteban, and Porche were dismissed as defendants. Plaintiffs agreed not to appeal the dismissal of those three defendants.

All six plaintiffs were in court when the terms of the settlement were summarized by the Court, and none objected when their attorney, O'Laughlin, agreed to the settlement. Nor did plaintiffs' co-counsel, MacArthur, object to the settlement. In fact, she thanked the Court for its careful consideration of the case. Now, some of plaintiffs' attorneys seek to repudiate the settlement. Attorneys Joyce and MacArthur evidently seek an additional $23,000 in fees. Because the City of Chicago refused to acceed to the demand for more money, plaintiffs seek to amend the complaint allegedly to conform the pleadings to the evidence adduced at trial by adding section 1983 and 1988 claims so that they can attempt to recover statutory attorney fees. The relief in the case would not be altered by adding section 1983 and 1988 claims.

Amending the Complaint

Plaintiffs' attorneys argue that (1) during the course of the trial the nature of the suit changed from one vindicating the rights of the individual plaintiffs to one vindicating the rights of all city employees; (2) the settlement agreement included fees only for the work done on behalf of the individual plaintiffs, and did not encompass fees for the work allegedly done on behalf of all city employees; (3) evidence was adduced at trial proving a violation of sections 1983 and 1988, and that those claims were tried by implicit agreement of the parties so that plaintiffs have a right to amend their complaint under Fed.R.Civ.P. 15(b) to conform the pleadings to the evidence. Finally, attorneys for plaintiffs argue that (4) they should be compensated as private attorneys general due to the alleged benefit they bestowed on all city employees by getting the Court to clarify that patronage promotions are covered by the Shakman decree.

Plaintiffs' attorneys are wrong on all four counts. First, what became clear during the course of trial was that at most two defendants were promoted based on political considerations, and that at best only two of the six plaintiffs could get any relief if the case were decided by the Court. Furthermore, since the promoted defendants did not violate the decree, they would not be removed from the supervisor jobs and the plaintiffs would get no immediate promotions. Finally, it appeared that the defendants had a potentially strong legal defense to a finding of contempt, i.e., ambiguity in the decree. For these reasons, plaintiffs' expectations changed, but the nature of the suit did not.

This case would not have been settled if open-ended liability for attorneys' fees under section 1988 had been contemplated. It was not contemplated, and plaintiffs' attorneys' attempt to extract more money from the City by amending the complaint to add a claim that neither the parties, nor the Court, thought was being tried during the trial is a transparent effort to get around the valid and final settlement entered on behalf of their clients.

Third, plaintiffs did not try section 1983 and 1988 claims at all, much less by agreement, explicit or implicit. All of the evidence introduced at trial went to the issues raised in the complaint. Plaintiffs claim that Commissioner Corey's testimony proves a violation of section 1983. Corey testified that calls from the Mayor's Office were the motivating factor in his decision to promote the two defendants, Miller and Esteban, rather than any of the plaintiffs or other eligible candidates.

This evidence was essential to proving one element of a Shakman decree violation. Plaintiffs had to show that political considerations were a substantial or motivating factor in the decision to promote. Whether Corey's testimony also goes to prove a violation of section 1983 is irrelevant under Fed.R.Civ.P. 15(b). The situation we are presented with here is summed up very succinctly in 3 Moore's Federal Practice ¶ 15.13[2] at 15-171:

  The purpose of an amendment to conform to proof is to
  bring the pleadings in line with the actual issues
  upon which the case was tried; therefore, an
  amendment after judgment is not permissible which
  brings in some entirely extrinsic issue or changes
  the theory on which the case was actually tried, even
  though there is evidence in the record — introduced
  as relevant to some other issue — which would support
  the amendment. This principle is sound since it
  cannot be fairly ...

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