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WZOREK v. CITY OF CHICAGO

May 18, 1990

EUGENE WZOREK, Petitioner,
v.
CITY OF CHICAGO, a municipal corporation, Respondent



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Eugene Wzorek has moved for attorneys fees and costs in his successful civil contempt action against the City of Chicago. *fn1" The City did not oppose petitions for fees for two of Wzorek's attorneys, Mary Stowell and Linda Friedman, and thus this court granted those petitions. The City's "benevolence" apparently does not extend, however, to Wzorek's principal attorney, John L. Gubbins. The City has chosen to fight the petition for his fees, sometimes in a dirty fashion.

 There are some points of agreement. The parties concur that 42 U.S.C. § 1988 (1982) governs Wzorek's request for attorneys fees. Second, they agree that the court should approach this request in the manner set forth in Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). Third, they agree that until the court of appeals rules differently, Wzorek was the "prevailing party" for purposes of § 1988 in this court.

 Now to the fight. Hensley counsels the now-famous "lodestar" approach to calculating reasonable attorneys fees, where the court determines a reasonable hourly rate, decides the amount of time which the case reasonably deserved, and multiplies the two. The court then can augment the award for special factors, not relevant here. The parties agree that it was reasonable for Mr. Gubbins to charge Wzorek $ 175.00 per hour for his time. The City presses Mr. Gubbins to justify a premium rate of $ 200.00 per hour for trial time, but Mr. Gubbins need not do so: the City never objected to similar rates for Gubbins's co-counsel, Ms. Stowell, and Mr. Gubbins's qualifications are superior to hers. In any event, the court believes that $ 200.00 per hour of trial time is a reasonable rate in this market for a person of Mr. Gubbins's abilities and expertise, particularly in this area of the law. The court will thus allow compensation of Mr. Gubbins's trial time at that rate.

 The court now turns to the hours which Mr. Gubbins spent on this matter. Mr. Gubbins claims that he worked 92.5 hours outside of trial and five hours on trial. *fn2" The City first objects to the lack of documentation behind Mr. Gubbins's statement. This lack of documentation is so bad, the City argues, this court should allow the City to depose Mr. Gubbins about his hours or else discount his claims. *fn3" The City's position had merit at one point in this row over fees. For example, Wzorek withdrew his petition for fees on appeal, but because Mr. Gubbins's billing statement commingled hours, no one except Mr. Gubbins could say what the appeal fees were. His statement also did not identify some of the witnesses and experts whom he consulted. The City and the court were thus unable to say whether this time was compensable or reasonable.

 The court ordered Wzorek to provide more information, and he has done so. While Mr. Gubbins's billing statement does commingle tasks and describes them in brief terms, the court does not find them to be so deficient (except for the matters which Wzorek has since clarified) so as to deprive the City of a chance to argue their reasonableness, or to prevent the court from passing on them. Indeed, notwithstanding the brevity of Mr. Gubbins's statement, the City has made several worthwhile observations about it. A more prolix written description or oral recount of Mr. Gubbins's work is unnecessary.

 Now to the City's specific objections. The City first faults Mr. Gubbins for not exercising "billing judgment" -- that is, billing the City for things for which Mr. Gubbins probably would not have the stomach to bill his own client. See Hensley, 461 U.S. at 434 (counsel should exclude such hours from requests for fees under § 1988). There are noticeable overcharges in Mr. Gubbins's statement. For example, he billed a discussion of his retainer agreement with Wzorek and his relatives (July 15, 1988) and conferences over the availability of witnesses (July 26 and 29, August 1, 1988). The court will reduce Wzorek's request by 2.5 hours for these matters.

 The City suggests that the court also should not award fees for hours which Mr. Gubbins spent consulting with associates -- that this request too is an example of lack of billing judgment. Initially, the court wonders why the City chose to complain about Mr. Gubbins's consultations with his associates while it did not challenge his associates' consultations with Mr. Gubbins. The City's unequal treatment of the petitions strikes the court as unfair in the least, and spiteful (perhaps sanctionable) at worst.

 The City's second objection is to Mr. Gubbins's charges for 2.25 hours of consultation with Wzorek's treating physician, Dr. Borden. Mr. Gubbins spent one hour with Dr. Borden totalling the costs of Wzorek's treatment and obtaining documents supporting these costs. He spent the remaining time, spread over two days, preparing Dr. Borden to testify about damages. Wzorek ultimately did not call Dr. Borden, however, as Wzorek and the City stipulated to the costs of his treatment by Dr. Borden.

 The City argues that Mr. Gubbins spent too much time on both tasks with Dr. Borden. The court agrees. The matters on which Dr. Borden would have spoken were fairly simple, and whatever preparation Dr. Borden would have required could have been done at the same time he helped Mr. Gubbins prepare his summary of costs. The court will reduce Wzorek's request for this time by one hour.

 The City's third objection is to Mr. Gubbins's charges for 6.25 hours of work with a mathematician, Dr. Jerry Goldman. Prior to a damages hearing in this matter, Mr. Gubbins consulted with Dr. Goldman for 2.75 hours on calculations for lost wages and benefits. Part of this time was spent reviewing the City's figures on these amounts and preparing Dr. Goldman to testify at the hearing. Like Dr. Borden, however, Dr. Goldman did not testify at the hearing, as the parties stipulated to the City's figures. Prior to a later hearing on other damages issues, Mr. Gubbins talked for one hour with Dr. Goldman about the City's attempts to bar Dr. Goldman from testifying at that hearing. Mr. Gubbins spent another 2.75 hours preparing Dr. Goldman for a deposition, then attending that deposition.

 The City's objection to Mr. Gubbins's discussions with Dr. Goldman over the City's motion to bar his testimony is well-taken. Wzorek has not explained why it was necessary for Mr. Gubbins to talk with Dr. Goldman about this matter. If Mr. Gubbins merely had a discussion with him about the law of evidence, the City should not have to pay. Until Wzorek describes this hour in better detail, the City will not be charged for it. The City's other objections to Mr. Gubbins's consultations with Dr. Goldman do not fare as well, however. While Dr. Goldman's work was not the source of the parties' ultimate stipulations on damages, it was necessary for Mr. Gubbins to seek Dr. Goldman's advice so that ...


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