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BETHUNE PLAZA, INC. v. LUMPKIN

January 28, 1991

BETHUNE PLAZA, INC., an Illinois Corporation, Plaintiff,
v.
JOHN LUMPKIN, Associate Director of the Illinois Department of Public Health, and BERNARD J. TURNOCK, Director of the Illinois Department of Public Health, Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 I. Introduction

 From beginning to end, this case has been a protracted struggle. As with the issues in the underlying suit, the issue of attorney's fees has been visited more than once. Plaintiff Bethune Plaza, Inc. requests attorney's fees pursuant to 42 U.S.C. § 1988, as the prevailing party in a 42 U.S.C. § 1983 suit. The debate now centers on the amount of attorney's fees. Judge McGarr originally awarded attorney's fees of $ 50,000. On appeal, the Seventh Circuit remanded the case for a "fresh award" since the court had not offered an explanation for that figure. Bethune Plaza, Inc. v. Lumpkin, 863 F.2d 525, 529 (7th Cir. 1988). Upon remand, the case was sent to a magistrate for a report and recommendation. The magistrate set his recommendation at $ 58,575.50 for attorney's fees, with costs of $ 541.92. The district court adopted this recommendation. Plaintiff has now filed a Motion to Alter or Amend Judgment. Essentially, plaintiff seeks reconsideration of the amount of attorney's fees it was awarded. (The cost award has not been contested.) The magistrate has issued a proposed order denying the motion. For the reasons stated below, the court declines to follow the magistrate's recommendation. The court has reconsidered the award and finds that plaintiff is entitled to $ 66,726 in attorney's fees.

 II. Lodestar

 A. Hourly Entries

 First, the court will calculate the lodestar. The lodestar figure is the product of the "hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). The court has reexamined plaintiff's original fee petition and supplemental submission. In the court's opinion, plaintiff counsel, at various times, "exercised neither the restraint that a cost-conscious monitor would induce nor the billing judgment that influences any submission to a paying client." In re Central Ice Cream Co., 841 F.2d 732, 734 (7th Cir. 1988). Therefore, certain of plaintiff's hourly entries have been adjusted based upon the court's finding of excessiveness. The court has also determined that the Seventh Circuit's mandate can be best fulfilled by reducing the final lodestar figure by a percentage in order to reflect plaintiff's partial success. Thus, the hours that counsel deleted from his fee petition, which correlate to state law issues, have been returned to plaintiff's submissions.

 For ease of calculation, the court has divided plaintiff's chargeable hour entries into subject matter categories. In the following paragraphs, the hours plaintiff requested for each category will be compared with the hours as adjusted by the court.

 1. Complaint/T.R.O./Motion for Preliminary Injunction

 By the court's calculations from the descriptions provided by plaintiff, the number of hours plaintiff seeks for work in this area totals 64.75 hours. The figure should more properly be 27 hours. This figure takes into account 12 hours for drafting of the complaint and T.R.O. In total, the complaint, an amendment to the complaint, and plaintiff's request for a T.R.O. only encompass 22 pages, excluding exhibits. Three additional hours are given for review of the complaint after defendants' answer. The remaining 12 hours are devoted to the preliminary injunction. Counsel devoted many hours to preparing himself and witnesses for the preliminary injunction hearing. In the end, however, a hearing was held in chambers without benefit of witnesses. The T.R.O. became a preliminary injunction by agreement of the parties. (Motion of Bethune Plaza, Inc. for Determination of Attorney's Fees at 15.) Thus, the court reduces the hours awarded for this area based on the similarities between the motions, as well as its determination that the recorded hours were excessive and, in some instances, unnecessary.

 2. Response to Defendants' Motion to Dismiss/Motion to Alter or Amend Judgment Dismissing Complaint/Reply

 Counsel requests a total of 271 hours for these motions. These hours should be decreased, though, to reflect the similarity of factual issues and legal arguments between these motions, the complaint, and the T.R.O. Accordingly, the court gives credit for 180 hours. This figure allocates 80 hours for the response to defendants' motion to dismiss (10 working days x 8 hour days); 40 hours for plaintiff's motion to alter or amend (5 working days x 8 hour days); 56 hours for the reply to its motion to alter or amend (7 working days x 8 hour days); and 4 hours for work opposing defendants' sur-reply.

 Counsel for plaintiff has represented that he is well-versed in nursing home regulatory law. (Motion of Bethune Plaza, Inc. for Determination of Attorney's Fees Insertion at 10.) Yet, he devoted an inordinate number of hours to researching the issues in these motions. Plaintiff's response to defendants' motion utilizes legal research, but it also makes extensive use of the complaint. Further, the legal research contained in the response is then used in plaintiff's motion to alter or amend. The magistrate found the nature of the research in the motion to alter or amend to be as follows: "The 16-page brief only cites 12 cases, one of which is the long-established Conley v. Gibson. Also included within this figure of 12 are the well-known cases of Board of Regents v. Roth and Parratt v. Taylor. It should have not taken long to find these oft-cited cases or any of the other cases cited." (Magistrate's Report and Recommendation at 20) (footnotes omitted.) New case law and arguments do arise in plaintiff's reply to its motion to alter or amend. The hours allocated to the reply reflect these additional hours of legal research. As for plaintiff's motion opposing defendants' filing of a surreply, the motion reiterates the arguments and research of the reply brief. For these reasons, the court finds that the hourly totals for the motions should be reduced as redundant.

 3. Settlement

 Plaintiff's fee petition only includes a request for 11 hours devoted to settlement. The court finds that plaintiff is entitled to ...


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