The opinion of the court was delivered by: Elaine E. Bucklo, U.S. District Judge.
MEMORANDUM OPINION AND ORDER
Linda Mohr won a race discrimination lawsuit against the Chicago Board
of Education (the "Board"), Alfred Clark, and Marie Jernigan; Lynn St.
James was exonerated. Clark and Jernigan were found liable and assessed
punitive damages. The Board also was found liable, and I granted a
permanent injunction against race discrimination or retaliation against
Mohr by the Board. 155 F. Supp.2d 923, 932 (N.D. Ill. 2001). The matter
of attorneys' fees now comes before me. As the prevailing party in a
civil rights case, Mohr is entitled to reasonable attorneys' fees as part
of costs under 42 U.S.C. § 1988(b). She asks for $556, 850.95. The
defendants offer various objections, asking me to reduce her attorneys'
fees to $124, 200, plus agreed costs of $12, 075. Mohr asks me to treat
the defendants' objections as waived because, she says, the defendants
defied my order of May 4, 2001, requiring production of various materials
by a specific date. I decline to do this here, but the Board is warned
that if it engages in similar conduct again,
I will consider such a
sanction. Undoubtedly the Board's actions contributed to more time
required by Mohr to prepare this fee petition and respond to the Board's
objections. It also appears to be typical of much of the Board's response
in this case, which explains in part the amount of time Mohr's counsel
spent on the case. I grant Mohr's motion for fees in part and deny it in
The first issue is whether Edward Theobald's billing rate of $350 an
hour was reasonable. The reasonable hourly rate (or "market rate") is
"the rate that lawyers of similar ability and experience in their
community normally charge their paying clients for the type of work in
question." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th
Cir. 1999). While an attorney's self-serving affidavit alone cannot
establish the market rate for his services, such affidavits in
conjunction with other evidence of the rates charged by comparable
lawyers is sufficient to satisfy the plaintiff's burden. Id. The
defendants say Mr. Theobald should be paid no more than $225 an hour.
They say that he is really a criminal lawyer and not an employment
discrimination lawyer; but this is untrue, as they admit in another
context, when they wish to argue that he should have been able to work
faster; in fact, Mr. Theobald has shown that he has extensive employment
discrimination experience. The defendants also offer some cases from no
more recently than a dozen years ago about lower rates that were
authorized for Mr. Theobald's fees. Attorneys' compensation has increased
in the interim, and Mr. Theobald is at least 12 years more experienced
than he was then. Almost certainly, the Board's attorneys are being paid
more than they were twelve years ago.
However, Mr. Theobald admits that he billed Ms. Mohr $275 an hour since
1995, see Def. Ex. 1, p. 2, and "[t]he attorney's actual billing rate for
comparable work is `presumptively appropriate' to use as the market
rate." People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th
Cir. 1996). A presumption can be rebutted, but Mr. Theobald offers no
reason why he should be paid more than that, so his compensation is set
at that rate.
The defendants object to Mohr's request for 1, 556.5 billable hours.
Most of the specific objections to particular billing charges are so
without merit as not to require detailed discussion, but I will
illustrate with a few examples.
(1) The defendants object that Mr. Theobald should have been able to
draft the complaint in 19 hours instead of what it says was the 51 hours
he spent, particularly because the research and writing was the same as
that with Mohr's EEOC complaint. However, Mr. Theobald says that he spent
45.5 hours doing further investigation, research and preparation of the
complaint, and further investigation is a good idea in view of Fed. JR.
Civ. P. 11. A full week of work is not excessive. I do not see the basis
for reducing his time by half.
(2) The defendants assert that an attorney of Mr. Theobald's level of
experience could have drafted a response to their motion to dismiss in
10.75 hours — one long day — instead of the 37.75 hours
billed. I have reviewed the memorandum filed in response to the
defendants' motion to dismiss, and conclude that the amount of time
claimed is reasonable.
I have reviewed the other objections to specific billing times and
found them to be no more credible than these. In general, the losing
counsel's testimony that he could have done the winning counsel's work in
less time, while relevant, is not worth much standing by itself. If the
winning counsel had taken less time, he might not be a position to ask
for attorneys' fees as the prevailing party's representative. That does
not mean that just any billings by the prevailing party's counsel are
ipso facto reasonable, but it does mean that more is required to overcome
the inference which is created by the winning counsel's victory that the
work billed was reasonable and necessary.
The defendants argue that Mohr is not entitled to any of the
266.5 hours billed after December 6, 2000, when the defendants offered to
settle the case for $300, 000. They cite Moriarty v. Svec, 233 F.3d 955
(7th Cir. 2000):
Substantial settlement offers should be considered
by the district court as a factor in determining an
award of reasonable attorney's tees, even where Rule
68 does not apply. Attorney's fees accumulated after
a party rejects a substantial offer provide minimal
benefit to the prevailing party, and thus a
reasonable attorney's fee may be less than the
lodestar calculation. . . . [A]n offer is
substantial if, as in this case, the offered amount
appears to be roughly equal to or more than the
total damages recovered by the prevailing party. In
such circumstances, a district court should reflect
on whether to award only a percentage (including
zero percent) of the attorney's fees that were
incurred after the date of the settlement offer.
Id. at 967. The defendants say that Mohr won only $135, 000. of course
the offer included fees and costs, so (they say) the question is whether
Mohr had roughly $165, 000 in reasonable attorney's fees by December 6,
2000. The defendants say that the 552 hours that they claim her counsel
reasonably billed on or before that date, calculated at the rate of $275
an hour, comes to only $151, 800, which (plus the recovery) is $13, 200
less than the total amount of the December settlement offer. However, I
have rejected defendants' arguments to reduce counsel's hours and Mohr's
counsel's claimed hours are 1, 035.5 x $275, or $284, 762.50, as of the
December date. That plus $135, 000 equals $419, 762.50, which is
substantially more than defendants' settlement offers. Moriarity is
therefore inapplicable. I have also granted Mohr's request for an
injunction, something she would not have gotten in the settlement, and an
aspect of relief that was not at issue in Moriarty.*fn1
Mohr's motion for attorneys' fees is GRANTED in part and DENIED in part.
I allow Mr. Theobald to bill 1, 556.50 hours at the rate of $275 an
hour, for a total fee award of $428, ...