Zemko v. Muntz Indus., Inc., 1995 U.S. Dist. LEXIS 10055, No. 94 C 761, 1995 WL 431168 (N.D. Ill. July 18, 1995), for the proposition that a prevailing party may not recover attorney's fees against one defendant for work that involved another defendant later dismissed from the case. In Zemko, the plaintiff proceeded against each defendant on "substantially different" theories of law, seeking recovery against one defendant based on state law and against another defendant based on ERISA. 1995 WL 431168, at *2. The court found that "because the claims against the two defendants [were] distinct, Plaintiff's failure to prevail against [Defendant A] meant that Plaintiff may not recover attorney's fees against [Defendant B] for work performed on the claim against [Defendant A]." Id.
The Supreme Court has noted that the first question that must be asked in determining whether legal fees are appropriate in this circumstance is whether "the plaintiff failed to prevail on claims that were unrelated to the claims on which he succeeded?" Hensley v. Eckerhart, 461 U.S. 424, 434, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983). The Supreme Court also noted that "[a] request for attorney's fees should not result in a second major litigation." Id. at 437. Unlike the plaintiff in Zemko, the Fund brought the same claim against both defendants in this case. Ultimately, one of the defendants was dismissed. Still, while both defendants remained in the case, they continually filed joint papers. Cartage has not objected to specific portions of the Fund's request for fees or pointed to any portion of the Fund's billing that indicates work done solely on the claim against Central Transport, Inc. Under these circumstances, I find that Cartage's request for attorney's fees is proper.
Cartage next contends that an award of attorney's fees of nearly $ 50,000 to the Health and Welfare Fund is unreasonable because the Fund only recovered $ 987. The request of $ 50,000 by the Health and Welfare Fund is pure happenstance, as it was the plaintiffs who decided how to allocate attorney's fees. The total amount requested, close to $ 100,000, is reasonable given this litigation. Additionally, the Seventh Circuit has found that fees need not be calculated proportionally to damages. Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187 (7th Cir. 1994)(citations omitted).
F. Computer Assisted Legal Research and Travel Expenses
Cartage also objects to the Fund's cost request for Westlaw charges and "in-town travel." Computerized legal research is a task generally performed by attorneys, paralegals and law clerks. It is a cost incident to attorneys' fees. E.E.O.C. v. Sears Roebuck & Co., 111 F.R.D. 385, 394 (N.D. Ill.1986). Because it is a tool to make more efficient use of an attorney's time, charges for it are really expenses associated with attorneys' fees. Haroco, Inc., 38 F.3d at 1441. Consequently, while the Fund's request is not allowable as a cost, it is allowable as part of the attorney's fees. Accordingly, the costs must be reduced by $ 2411.33 and the attorney's fees increased by the same amount.
As noted in Zemko, travel time is compensable as part of a reasonable fee. 1995 WL at *3. The Fund, however, has requested $ 176.51 in travel expenses but does not specifically state what the "in-town travel" was for or how it was related to this case. Due to the lack of explanation or justification for these costs, they will be disallowed.
G. Market Rate
Finally, Cartage argues that the Fund's legal fees should not be calculated at market rate. The Seventh Circuit has determined in an appeal between these same parties that market rate is the appropriate rate for determining legal fees under the circumstances presented in this case. Central States, Southeast & Southwest Areas Pension Fund v. Central Cartage Co., 76 F.3d 114, 116-17 (7th Cir. 1996).
I have reviewed the time records of the Fund's counsel and find them to be sufficiently detailed. They include the amount and type of work performed. My May 1, 1997 order is amended to indicate the proper contribution award of $ 947,332. The Fund is granted additional amounts of $ 388,995.67 for interest, $ 388,995.67 for additional interest, $ 101,156.83 for attorney's fees (amount requested plus Westlaw charges), $ 10,048.50 for audit costs, and $ 1,128.10 for costs (amount requested less Westlaw charges, travel expenses, and printing costs). The total amount awarded is $ 1,837,656.77.
The Fund moves to substitute CenTra, Inc., as a defendant in place of Cartage. The Fund asserts that Cartage has been split into two corporations, Old Cartage and New Cartage.
The Fund claims that Old Cartage, the defendant in the present action, has merged into CenTra. CenTra claims there is no "New" or "Old" Cartage. Instead, CenTra claims that, in a simultaneous transaction, it merged with Cartage and then reincorporated Cartage's trucking assets as a wholly-owned subsidiary of CenTra. Subsequently, this wholly-owned subsidiary (referred to by the Fund as New Cartage) was sold to another corporation, U.S. Truck Company, Inc. Not long after the Fund's motion for substitution, New Cartage appealed this court's May 1, 1997 ruling granting summary judgment to the Fund. The case is presently before the Seventh Circuit Court of Appeals. The Fund claims this is a frivolous appeal because Old Cartage was really the defendant in the lower court case and thus, the appeal is taken by a non-party to this action. The Fund has moved to dismiss the appeal on this ground. CenTra now moves to dismiss the motion for substitution, claiming this court lacks jurisdiction while the case is pending appeal.
"'[A] federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously. The filing of a notice of appeal is an event of jurisdictional significance--it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.'" Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995)(quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 74 L. Ed. 2d 225, 103 S. Ct. 400 (1982)). A district court may still address ancillary matters, such as costs, while a case is pending appeal. 62 F.3d at 194. A motion for substitution of defendants is not an ancillary matter. Indeed, a determination of who the parties to a dispute are lies at the very heart of a case. If I grant the motion to substitute defendants at this time, this court would, in essence, have made a decision that the Seventh Circuit is currently hearing an appeal with improper parties. Whether the proper parties are before the Seventh Circuit is a decision for that court unless it mandates otherwise.
To date, it has not.
For the above reasons, judgment is entered in the amount of $ 1,837,656.77 for the Fund. The Fund's motion to substitute defendants is denied.
Elaine E. Bucklo
United States District Judge
Dated: January 27, 1998