United States District Court, N.D. Illinois
February 11, 2004.
RICHARD FRANZEN, Plaintiff
ELLIS CORPORATION, Defendant
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Presently pending before the Court are Defendant's two petitions for
reasonable costs and attorneys' fees. Previously, Defendant was granted
reasonable costs and attorneys fees incurred by Defendant for Plaintiff s
deposition and in bringing a previous motion for sanctions. Defendant was
granted additional costs and attorneys' fees incurred by Defendant as a
result of Plaintiff's failure to appear for two depositions on December
The party seeking attorney's fees bears the burden of proving the
reasonableness of the hours worked and the claimed hourly rates. Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983) (Hensley). The amount of
reasonable fees is the number of hours reasonably expended on the case
multiplied by a reasonable hourly rate. Hensley, 461 U.S. at 433.
After determining the reasonably expended hours, a court must determine
a reasonable hourly rate. Hensley, 46 1 U.S. at 433. The reasonable
hourly rate is based on the "market rate" for the services rendered. See
People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir.
1996). Counsel seeking fees has the burden of proving the market
rate. Once counsel establishes this rate, the burden shifts to the
opposing party to demonstrate why the: rate should be lower. Spegon
v. Catholic Bishop of Chicago, 175 F.3d 544, 554 (7th Cir. 1999)
An attorney's market rate is the rate that lawyers of similar
experience and ability in the community normally charge their paying
clients for the same type of work. Spegon, 175 F.3d at 555. Counsel's
actual billing rate for comparable work is presumptively appropriate for
use as the market rate.
Costs and attorneys' Fees Related to Plaintiff Initial Depositions
and Motion for Sanctions
Defendant seeks a total of $13,975.32 in costs and fees relating to
Plaintiffs first two depositions and the Motion for Sanctions. This
amount includes a total of 57.25 hours of work performed by Attorney
Alysa Barancik at the rate of $195.00 per hour and 2.50 hours of work
performed by Attorney Thomas Piskorski at the rate of $415.00 per hour.
Defendant has provided a detailed itemization that includes the
description of the work completed by the specific attorney and the time
needed to complete such work. A review of the itemized list demonstrates
that some of the fees sought are not properly recoverable. Defendant was
awarded the reasonable fees related to Plaintiffs first two depositions
and the Motion for Sanctions based on Defendant's inability to complete
the deposition because of Plaintiff's counsel's improper conduct during
the depositions. However, fees that Defendant would have incurred
regardless of Plaintiffs counsel's conduct are not recoverable. The five
hours spent by Barancik preparing and traveling to the depositions are
not recoverable because these costs would have been incurred by the
Defendant irregardless of any sanctionable conduct. Furthermore, the 19.5
hours spent on drafting the Motion for Sanctions and the 13.25 hours
spent on drafting the eight-page reply brief are not
reasonable in light of the lack of complexity of both filings. Based on
the complexity, or lack thereof, of the filings, a reasonable amount of
time spent on drafting the motion is found to be five hours (based on the
need to read and analyze the two deposition transcripts) and two hours
for the reply brief. The remaining times sought by Barancik are
reasonable. Accordingly, Barancik is awarded fees for a total of 26.5
hours of work. Furthermore, Piskorski's fees of 2.5 hours of work are
reasonable and are awarded.
Barancik supports her request of the hourly rate of $195.00 per hour
through an affidavit in which she avers that the $195.00 per hour rate is
the rate customarily charged by her firm for similar work performed by
attorneys with similar skills and experience. She also provides the
affidavit of the finance manager of her employer who avers that
Barancik's regular hourly rate is $195.00 per hour and that this rate is
comparable to the hourly rate charged by lawyers within the firm of
similar years of experience and labor and employment law expertise.
Piskorski supports his request of the hourly rate of $415.00 per hour
through an affidavit in which he avers that the $415.00 per hour rate is
his billable hourly rate. He also provides the finance manager's
affidavit in which the finance manager avers that Piskorski is a partner
at Seyfarth Shaw whose regularly rate is $415.00 per hour and that this
rate is comparable to the hourly rate charged by attorneys at the firm of
similar years of experience and expertise in labor and employment law.
Defendant argues that the requested rates are above the prevailing
market rates but provides nothing to support his argument and to
contradict the materials provided by Defendant's counsel that establishes
their respective market rates of $195.00 and $415.00 per hour.
Accordingly, the hourly rate of $195.00 and $415.00 are found to be
Based on the above, Plaintiff is awarded $6,205.00
($5,167.50$1,037.50) in attorneys' fees
for taking Plaintiffs first two depositions and for the Motion for
Defendant also seeks costs related to the taking of Plaintiff's first
two depositions and the Motion for Sanctions. This includes $258.60 in
copy costs. However, Defendant has failed to indicate what was copied,
how many copies were made, and the rate per page for copying.
Accordingly, the reasonableness of these costs cannot be determined and
are denied. See American Automotive Accessories v. Fishman,
991 F. Supp. 995, 997 (N.D. Ill. 1998) (copying charges that are not
discernable from the supporting documentation are not allowed).
Defendant also seeks $1,444,39 in court reporter fees. These fees
include 146 pages transcribed at the rate of $3.25 per page and an
expedited surcharge of $2.78 per page for the first day of Plaintiff s
deposition transcript and 131 pages transcribed at the rate of $3.25 per
page and an expedited surcharge of $1.34 per page for the second day of
Plaintiff's deposition transcript. The Judicial Conference has
established $3.30 as the rate per page for an original transcript, $4.00
per page for each expedited copy, $0.75 per page for the first copy of a
transcript, and $0.55 per page for each additional copy to the same
party. Defendant does not indicate why expedited copies of the transcripts
were required. Accordingly, Defendant is awarded the transcription costs
of $900.25 (277 pages X $3.25 per page). The deposition transcript fees
also include an appearance fee of $87.50 for 3.5 hours. Such appearance
fee is reasonable and is awarded. Lastly, as to the deposition
transcripts, Defendant seeks costs related to shipping and handling and
an "administrative fee". Such costs are not recoverable and will not be
awarded. Based on the above, Defendant is awarded a total of $975.75 in
Lastly, Defendant seeks costs in the amount of $71.08 for online
research. Such costs are not recoverable and are not awarded. See
Haroco v. American Nat'l Bank & Trust of Chicago,
38 F.3d 1429, 1440-41 (7th Cir. 1994).
Based on the above, Defendant is awarded a total of $7,180.75
($6,205.30 $975.75) related to Plaintiffs first two depositions and the
Motion for Sanctions.
Costs and Attorneys' Fees Related to Plaintiffs Failure to Appear
For Two Subsequent Depositions
Defendant seeks a total of $1,388.75 in costs and fees relating to
Plaintiff's failure to appear for his 9:00 a.m. or 1:00 p.m. deposition,
as ordered by this Court, on December 3, 2003. This amount includes a
total of 6.25 hours of work at the rate of $195.00 per hour and $170.00
in court reporter fees.
A review of the hours of work performed by Barancik related to
Plaintiffs failure to appear at his December 3, 2003 depositions
demonstrate that the 6.25 hours is reasonable. Furthermore, as discussed
above, Barancik's hourly rate of $195.00 is reasonable. The $85.00
no-show charge by the court reporter for each of the Plaintiffs ordered
depositions is reasonable. Accordingly, Defendant is awarded $1,388.75 in
costs and fees related to Plaintiffs failure to appear for his
depositions on December 3, 2003.
For the reasons stated above, Defendant's Petitions for Costs and
Attorneys' Fees are granted in part and denied in part. Defendant is
granted a total of $8,569.50 in costs and fees.
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