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WOLF v. PLANNED PROP. MGMT.

April 26, 1990

CARYL WOLF, Plaintiff,
v.
PLANNED PROPERTY MANAGEMENT, Defendant



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Caryl Wolf has petitioned this court for costs pursuant to Rule 54(d), Fed.R.Civ.Pro., and attorneys fees pursuant to 42 U.S.C. § 1988 (1982). Wolf makes these requests since she prevailed on some aspects of her dispute with Planned Property Management. See Wolf v. Planned Property Management, 1990 U.S. Dist. LEXIS 1947 (N.D.Ill. Feb. 23, 1990). The court will address her bill of costs first.

 Bill of Costs

 Wolf requests $ 5,601.28 in costs. Planned Property objects to a few of the items for which Wolf seeks reimbursement. Wolf first seeks $ 378.00 for daily transcripts of the trial testimony of two adverse witnesses, Scott Meyers and Robert Burford. As this court noted in Easter House v. State of Ill. Dept. of Children, 663 F. Supp. 456, 461 (N.D.Ill. 1987), "reimbursement for daily copy is discretionary, and whether the court should allow it depends on such factors as the length and complexity of the trial, and the need for transcripts to resolve disputes about testimony or to prepare proposed findings of fact." Like the trial in Easter House, the trial in this case was not a difficult one. The issues were not complex, and an attorney could have gleaned the important points from Meyers and Burford's testimony by taking careful notes. Daily copy was a convenience in this case, not a necessity. The court will deny Wolf's request for these costs.

 Planned Property's second objection is to $ 143.50 in payments made 11/12/86 and 7/6/88 to a reporting service for deposition transcripts. Under 28 U.S.C. § 1920(2) (1982), the court may tax as costs "fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in a case." Wolf does not name the deponents who were covered in the two bills mentioned above. For all that the court knows, Wolf deposed her best friend about the Chicago Cubs' chances of winning the World Series -- an important topic, assuredly, but one not vital to the outcome of Wolf's dispute with Planned Property. The court will reject Wolf's claims for these services.

 Planned Property next objects to $ 14.98 in long-distance telephone charges. Section 1920 does not list long-distance telephone charges as costs which the court may tax. The legal presumption is that if Congress did not list the item in § 1920, the court may not tax it. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 440-42, 96 L. Ed. 2d 385, 107 S. Ct. 2494 (1987); Wahl v. Carrier Manufacturing Co., Inc., 511 F.2d 209, 216-17 (7th Cir. 1975). Wolf offers no arguments why the court should give special treatment to her request for long-distance charges, and so the court will not impose those charges on Planned Property. *

 Planned Property's last objection is to two plane tickets for one of Wolf's witnesses, Peter Soteropoulos. "Objection" is perhaps the wrong word; Planned Property expresses disgust at Wolf's request, without saying why the request is improper. Section 1920(3) allows the court to tax the fees and disbursements for witnesses; section 1821(c)(1) states that "[a] witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness's residence. . . ." Planned Property has not suggested why the court should not allow Mr. Soteropoulos's plane tickets, and they appear to be reasonable expenses. The court will allow them. All told, Wolf is entitled to $ 5,064.80 in taxable costs.

 Attorneys Fees

 The attorneys fee issues in this case are more difficult than the cost issues. Then again, more is at stake. The parties agree that the proper way for the court to approach the calculation of attorneys fees is outlined in Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Hensley directs the court to begin its calculation by taking "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433. Wolf and Planned Property disagree on both parts of the Hensley equation, namely, the reasonable number of hours expended on this case and a reasonable hourly rate for Wolf's attorneys.

 The least complex part of this analysis for this dispute may be deciding what is a reasonable hourly rate for Wolf's attorneys. Wolf employed two attorneys, James Fennerty and Russell Green. Each suggests that a reasonable hourly rate for him is $ 180.00 per hour, and each has supported his suggestion with an affidavit explaining his background. Together they have submitted affidavits from Chicago attorneys who submit their thoughts about reasonable hourly rates for attorneys in the Chicago market.

 One missing element is evidence that Fennerty and Green charge their paying customers $ 180.00 per hour. Green has admitted to the court that he bills his corporate clients between $ 150.00-175.00 per hour. This court noted in Easter House the importance of an attorney's actual rates in judging the reasonable rate for that attorney. See 663 F. Supp. at 459. Market rates are not a perfect estimate, of course. Markets have been known to fail, overvaluing the services of some lawyers while (in rare instances, in the court's experience) undervaluing the services of others. Still, losing parties should not have to pay premium hourly rates merely because their opponents prevailed under the civil rights laws. The court will thus treat Green and Fennerty's market rates as a starting point for their reasonable rate in this case.

 Wolf suggests that Green and Fennerty deserve higher than their usual hourly rate in this case, for three reasons. She first argues that Green and Fennerty exposed themselves to a risk of not being paid. Wolf makes this same argument below in urging the court to multiply the Hensley "lodestar" to account for risk; the court thinks the discussion of the risk of no payment is better left until later. Her second argument is that Green and Fennerty had to wait to be paid, unlike their corporate clients who pay as they go. This argument is a perplexing one in light of Wolf's third argument, which is that this court's tight schedule for litigating this case forced Green and Fennerty to give up other opportunities. Wolf may not have it both ways. As a matter of fact, the delay in payment in this case has not been lengthy. Wolf first contacted Green and Fennerty in early 1989; the case ended in February 1990, and her attorneys will be paid today. The delay is not so extraordinary as to require an adjustment for intervening inflation or lost interest on the fee award. As for Wolf's argument about lost opportunities, Green and Fennerty have not suggested that they missed out on uniquely lucrative projects to meet the court's calendar. They complain merely of something which inhibits not only lawyers, but most human beings: the inability to do two things at once.

 Based on Green and Fennerty's performance in this case, the court's review of their resumes, the court's experience with going rates in the Chicago market, and the affidavits of other Chicago area attorneys, the court believes that $ 165.00 per hour is a reasonable hourly rate for attorneys of similar competence ...


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