The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
We, of course, recognize that Plaintiff did not lose
the appeal. If that had happened, Plaintiff would not
have been entitled to any fees. We are not
contesting Plaintiffs' entitlement for work due up
to September 5, 2000.
Instead the only question put into issue by Local 705 is whether
work done after the appeal from the preliminary injunction was
filed by codefendant Gerald Zero ("Zero") (hence the September 5
date) should be compensable.
In much the same vein that has marked his conduct both before
and during the litigation — it was his own malfeasance that
triggered the lawsuit and spawned the need for the extensive
(and hence expensive) legal services to begin with — Zero has
filed a less forthright response. Although his Statement on
Attorneys' Fees begins by stating that he "believes a fair and
equitable resolution of this matter would be to limit an award
of fees and costs to the amount expended in the District Court
only," he goes on to hedge that on the next page:
While Defendant Zero believes that Plaintiffs'
entitlement to attorneys' fees may not survive
because the case is moot, nevertheless Defendant Zero
is willing to agree to an award of fees for the
District Court proceedings.
There is simply no legitimate predicate for any suggestion
that the dismissal of the appeal on the mootness grounds that
operated here — plaintiffs' having recovered full relief until
they were no longer Local 705 officers, so that nothing then
remained in controversy (see our Court of Appeals' unpublished
March 2, 2001 order in its Case No. 00-3263) — somehow defeats
plaintiffs' previously obtained prevailing party status, as
would have been the case if such status had been predicated on
obtaining preliminary injunctive relief that was then reversed
on appeal. Although it was not Zero's efforts that created the
mootness condition (a scenario that understandably does not
defeat an opponent's entitlement to fees under Young v. City of
Chicago, 202 F.3d 1000 (7th Cir. 2000) (per curiam) and the
numerous cases cited there), the sequence of events here clearly
calls for the same result. That is the plain teaching of the
cases from other circuits that were cited and relied upon in
This opinion therefore turns to the remaining questions:
whether plaintiffs' attorneys' fees and expenses incurred (1) in
connection with the appeal (a subject that the Court of Appeals
could not address because it lacked jurisdiction over the appeal
on Article III case-or-controversy grounds — see pages 3-4 of
its unpublished March 2 order) and (2) for their services that
led to the now-pending criminal contempt proceedings against
Zero are also recoverable. On that score the caselaw does not
parse a prevailing party's fees incurred on an issue-by-issue
basis, as Local 705's and Zero's opposition to plaintiffs'
request suggests. Instead the underlying principle as to
prevailing party status is that expressed succinctly in the
opinion in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.
1933, 76 L.Ed.2d 40 (1983) (internal quotation marks omitted):
The standard for making this threshold determination
has been framed in various ways. A typical
formulation is that plaintiffs may be considered
prevailing parties for attorney's fees purposes if
they succeed on any significant issue in litigation
which achieves some of the benefit the parties sought
in bringing suit.
And as plaintiffs' counsel have correctly pointed out, Jaffee
v. Redmond, 142 F.3d 409, 414 (7th Cir. 1998) provides a
graphic example of the full recoverability of a prevailing
party's fees even though a substantial part of the litigation
resulted in an outright setback to that party (as was not true
As for Zero's appeal from the preliminary injunction, this is
not at all a matter of attempting to read the tea leaves to
determine which side might have prevailed on the appeal. No one
was at fault because the time for any possible further
recovery by plaintiffs ran out before the fully briefed and
argued appeal had reached the point of decision. Instead there
is no reason to depart from the type of prevailing party
determination that controlled in Hensley and Jaffee and like
cases. In that respect the analysis in such cases as Bagby v.
Beal, 606 F.2d 411, 41415 (3d Cir. 1979) squarely supports
plaintiffs' entitlement here — and though District Court
decisions do not carry precedential force, Doe v. Terhune,
121 F. Supp.2d 773, 778-80 (N.J. 2000) sets out a comprehensive
analysis that might well have been written for this case,
awarding fees to a plaintiff in an identical situation.
That Hensley-Jaffee type of analysis applies as well to the
time spent by plaintiffs' counsel in conjunction with the
proceeding that ended with referral to the United States
Attorney's Office for a determination as to the institution of
criminal contempt charges against Zero (as the Assistant United
States Attorney in charge of the matter has most recently
reported, the matter is now actively pending, and the
confidentiality of grand jury proceedings naturally makes any
further inquiry inappropriate). All that plaintiffs could do as
private litigants was to provide input on the subject, seeking
the institution of such proceedings. They did that, and they
were successful in the only way that they could be: This Court
referred the matter to the United States Attorney's Office.
Again no carving out of the lawyer's time spent on that matter,
to await the ultimate outcome of a procedure that plaintiffs
cannot control (or indeed cannot participate in as
protagonists), would be appropriate.
In summary, plaintiffs are entitled to an award in the full
amount requested — $185,513.50 in attorneys' fees, $5,919.46 in
litigation expenses over and above taxable costs and $1,763.60
in taxable costs, or a total of $193,196.50. This Court orders
that judgment be entered in favor of plaintiffs and against
defendants Gerald Zero and Local 705 jointly and severally. That
joint and several award is made to provide the maximum assurance
of collectibility by plaintiffs, and it is made expressly
without prejudice to Local 705's right ...