The opinion of the court was delivered by: ARLANDER KEYS, Magistrate Judge
REPORT AND RECOMMENDATION
This matter comes before the court for a recommendation on defendants'
motion for sanctions pursuant to Rule 37(b). For the reasons set forth
below, the court recommends that defendants' motion be granted and that
$15,202.00 enter against plaintiff's counsel, Christopher Langone.
Plaintiff, Angelia M. Whitehead, through her counsel, Mr. Langone,
filed this RICO action against defendants Gateway Chevrolet, Oldsmobile,
Inc., Craig Andrea, Lee Dryzbek, and Thomas Okimoto (collectively
"Gateway"). On February 2, 2004, Judge Conlon granted Gateway's motion to
dismiss Ms. Whitehead's amended complaint, and also found that Ms.
Whitehead's counsel, Mr. Langone, had incorporated confidential
information into the amended complaint in flagrant violation of a
protective order entered between Gateway and Mr. Langone in a prior and unrelated
litigation, Beene v. Gateway Chevrolet, Inc., 02 C 830 (the Protective
Order). Judge Conlon further decided that Mr. Langone's deliberate
violation subjected him to sanctions under Rule 37(b), and asked this
court to determine the appropriate amount.
Pursuant to Judge Conlon's referral, this court ordered Gateway to
provide an itemization of expenses incurred responding to Mr. Langone's
violation. Gateway's counsel, Burke, Warren, MacKay & Serritella, has
submitted a detailed statement, which requests $21,523.27 in attorney's
fees and costs.
Before calculating the appropriate sanction, the court must address a
preliminary matter. Mr. Langone has gone to considerable lengths to argue
that the district court does not have the authority to impose Rule 37(b)
sanctions for his particular misconduct. Mr. Langone's efforts are in
vain. That ship has already sailed. Judge Conlon has determined that the
court has such authority, and this court will not revisit her decision.
Further, Judge Conlon's referral order is limited to the issue of what
should be the appropriate sanction, not whether there should be
sanctions. And if there was any doubt regarding the scope of the
referral, such doubt was dispelled when Judge Conlon denied Mr. Langone's
motion for clarification of her referral order on April 14, 2004. Thus,
many of Mr. Langone's arguments in opposition to Gateway's motion are rejected as irrelevant.
Under Rule 37(b), the appropriate sanction is for Mr. Langone to pay
Gateway's reasonable expenses, including attorney's fees, caused by his
violation. Fed.R.Civ.P. 37(b)(2). A determination of attorney's fee
requires calculation of the lodestar. Mathur v. Board of Trustees of
Southern Illinois University, 317 F.3d 738, 742 (7th Cir. 2003). The
lodestar is the product of an attorney's reasonable hourly rate and the
number of hours reasonably expended. Hensley v. Eckerhart, 461 U.S. 424,
434 (1983). The party seeking the fee award bears the burden of proving
the reasonableness of the hours worked and the hourly rate claimed. Id.
Gateway submits the hours of two attorneys, Ira Levin and Kimberly
Smith. Mr. Levin billed 38.6 hours, and Ms. Smith billed 64.1 hours.
These hours represent three general categories of work. First, Gateway
requests reimbursement for hours spent reviewing Ms. Whitehead's RICO
case statement.*fn1 Next, Gateway describes hours spent preparing its
motion to strike and dismiss Ms. Whitehead's amended complaint. Lastly, Gateway includes time devoted to drafting the present motion for
sanctions. Mr. Langone argues that the first category of work should be
excluded entirely, and the second category should be significantly
Before considering these objections, the court must briefly address
Mr. Langone's argument that none of Ms. Smith's hours are appropriate.
Mr. Langone argues that Gateway should not recover for any of Ms. Smith's
work, because she also violated the Protective Order. Ms. Smith is
Gateway's counsel. Gateway is certainly free to share its confidential
information with its own counsel. Further, the Protective Order expressly
provided "[a]ny party may freely disclose . . . its own confidential
documents . . . without impairing the obligations imposed by this Order
upon others." See Protective Order, par. 11. Thus, Mr. Langone's request
is both illogical and directly contrary to the Protective Order, and is,
Turning to Mr. Langone's specific objections, he first argues that
Gateway cannot recoup fees for hours spent reviewing the RICO case
statement, because this work occurred prior to his misconduct. But, as
Gateway correctly recounts, the confidential information first appeared
in the RICO case statement, and was later incorporated into the amended
complaint. Thus, Mr. Langone's violation occurred when he filed the RICO
case statement, and this temporal event marks the beginning of Hr. Langone's
misconduct. Thus, Mr. Langone's first objection is overruled.
Next, Mr. Langone objects to any hours spent reviewing the amended
complaint. He claims that, regardless of any violation, Gateway still
would have had to review the amended complaint. While this reasoning is
incorrect, the objection is not wholly without merit. As discussed
above, Gateway first reviewed the confidential information when it
appeared in the RICO case statement. It then appears that Gateway reviewed
the same information a second time when it surfaced in the amended
complaint. The court cannot reimburse Gateway for this duplicative
effort, and will, therefore, subtract three hours from Gateway's ...