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LATINO v. KAIZER

October 4, 1994

DANIEL LATINO, et al., Plaintiffs,
v.
EDWARD KAIZER, et al., Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Following this Court's grant of a new trial in this action brought by Daniel Latino ("Latino") and Robert Slawinski ("Slawinski") against City of Chicago ("City") and its police officers Edward Kaizer ("Kaizer") and William Gordon ("Gordon"), the retrial produced a jury verdict in both plaintiffs' favor against Kaizer and in Gordon's favor against both plaintiffs. There was no reference to City in the verdict form, because the parties had agreed and the jury was instructed that if its verdict were to run against either individual defendant that would automatically carry with it an identical verdict against City. *fn1" Accordingly each plaintiff was granted a judgment for damages against City identical in amount to the verdict awarded by the jury against Kaizer.

 Because plaintiffs' lawsuit sounded both (1) in terms of a 42 U.S.C. § 1983 ("Section 1983") claim--one asserting that plaintiffs were unconstitutionally seized without probable cause--and (2) in terms of a parallel (though of course not legally identical) state law false arrest claim, plaintiffs filed a timely post-judgment motion for the award of attorneys' fees and out-of-pocket expenses under 42 U.S.C. § 1988 ("Section 1988"). That motion, supplemented by an affidavit and detailed time records, asks for an award of $ 120,113.50 in fees and $ 1,019.34 in expenses other than taxable costs. City and Kaizer have responded by urging these objections:

 
1. City is not liable for such attorneys' fees and expenses at all, because this Court had earlier dismissed plaintiffs' Section 1983 claim against City and because no such fees are recoverable on the state law claim (the only one that gave rise to the judgment against City).
 
2. Because City did prevail on the Section 1983 claim brought against it, the time spent by plaintiffs' counsel in responding to City's motion to dismiss (estimated by City's counsel as aggregating $ 6,314 in fees) should be disallowed in all events. *fn2"
 
3. That just-mentioned time is not recoverable against Kaizer either, because it was not directly related to plaintiffs' claim against Kaizer.

 City's Liability

 There is no question that City has no direct responsibility for fees and expenses under Section 1988 alone: Latino and Slawinski were not "prevailing parties" against City on their Section 1983 claims, and the entry of their judgment against City could be viewed as having been based on its respondeat superior liability for Kaizer's tortious conduct. *fn4" But what City's counsel gloss over in that respect--or more accurately ignore entirely in their response to the current motion--is the unambiguous provision of 745 ILCS 10/9-102: *fn5"

 
§ 9-102. A local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article.

 There is of course no question that City is a "local public entity" within the meaning of that statute. It is equally unquestionable that the judgment against Kaizer is a "tort judgment." *fn6" And finally it is uncontroverted that Kaizer was "acting within the scope of his employment" in arresting plaintiffs (that is, in "seizing" them in Fourth Amendment terms *fn7" ).

 Hence City's overall liability based on the Illinois statute--and not directly based on Section 1983--is wholly beyond dispute. Indeed, Argento v. Village of Melrose Park, 838 F.2d 1483, 1489-90 (7th Cir. 1988) applied that very statute to permit recovery even against a municipality that was not a party to the original Section 1983 action against its police officers, applying the concept of supplementary jurisdiction to do so. City's responsibility in this case really applies a fortiori from the reasoning and the result in Argento (see also 838 F.2d at 1493-96).

 As for the partial disallowance of the fee request that is urged by defendants, they point to this language in Ustrak v. Fairman, 851 F.2d 983, 988 (7th Cir. 1988):

 
Factually unrelated claims are treated as separate lawsuits, and therefore if the plaintiff loses on such a claim he is not to be reimbursed for ...

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