United States District Court, C.D. Illinois
May 14, 2004.
TERRY LEE GARNER, Plaintiff
TROOPER KEITH WHITMAN; SAMUEL NOLEN, Director; TROOPER KEN CARTER; TROOPER CARLO JIANNONI Defendants
The opinion of the court was delivered by: RICHARD MILLS, Senior District Judge
We now address Plaintiff's Petition for Attorney's Fees and Costs.
On August 28, 2001, Garner filed a fourteen count complaint against the
Illinois State Police, its Director Samuel Nolan, and Troopers Keith
Whitman, Ken Carter, and Carlo Jiannoni, for injuries he sustained during
a traffic stop.
Garner alleged that the Defendants violated the First, Fourth, Fifth,
and Eighth Amendments and that their conduct gave rise to state law
claims of false arrest, false imprisonment, assault, battery, malicious
prosecution, abuse of process, prima facie tort, conspiracy tort, negligence,
and gross negligence. To remedy his woes, Garner sought $1,000,000 in
compensatory damages and $1,000,000 in punitive damages.
Virtually all of Garner's claims were dismissed, withdrawn, or denied
after a two-day bench trial. The only claim on which Garner prevailed was
his Fourth Amendment unreasonable seizure claim against Trooper Whitman.
The Court narrowly ruled in Garner's favor on that claim and awarded him
$405.41 for medical expenses and $500.00 for pain and suffering.
Since Garner stated throughout the proceedings that his only aim was to
have the Defendants explain why they did what they did, the small
monetary award did not appear to impact his ultimate satisfaction.
Garner's attorney, however, has greater financial ambitions for this
case. To this end, counsel filed a Petition for Attorney's Fees and Costs
in which he asks the Court to award him $19,945.50 under
42 U.S.C. § 1988 because his client was the prevailing party. Counsel
also seeks $1,871 in costs pursuant to 28 U.S.C. § 1920. ANALYSIS
In Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566,
121 L.Ed.2d 494 (1992), the Supreme Court
set forth the determination of whether a party is entitled to attorney's
fees in two distinct steps: 1) whether the party has prevailed, and 2)
the degree of success obtained. There is no doubt that Garner prevailed
here when he proved that Trooper Whitman violated his Fourth Amendment
right to be free from unreasonable seizure.
It is on the second step of Farrar where Garner stumbles.
Justice O'Connor's concurrence in Farrar suggests a three-part
analysis for determining a reasonable fee: (1) the difference between the
amount recovered and the damages sought, (2) the significance of the
legal issues on which the plaintiff has prevailed, and (3) the public
purpose of the litigation. Id. at 121-22, 113 S.Ct. 566:
see also Monticello Sch. Dist. No. 25 v. George L.,
102 F.3d 895, 907 (7th Cir. 1996). Of these three factors, the first is the
most crucial. Thus, in a case involving distinct claims, time spent on
an unsuccessful claim should not be compensated. Id. at 440.
Garner filed a fourteen-count complaint against five Defendants and sought $2,000,000 in damages. He prevailed on one count against one
Defendant and received an award of $905.41. The one count on which Garner
prevailed a Fourth Amendment unreasonable seizure claim
is by counsel's own admission neither novel nor difficult. Moreover,
Garner never intended the litigation to have any public purpose. It was
strictly for his satisfaction that he haled the Defendants into court.
Despite these things, Plaintiff's counsel asks the Court to award him
about $20,000 in attorney's fees. Plaintiff's counsel arrives at this
figure by applying the lodestar method. Under the lodestar method, a
court determines what fees are recoverable by multiplying the number of
hours reasonably expended on a case by a reasonable hourly rate. A court
can adjust the resulting figure upwards or downwards based on 12 factors,
such as novelty, skill, etc. See Hensley, 461 U.S. at 430 n.3.
However, "when recovery is low enough in relation to the demand
. . . the judge may jettison the lodestar apparatus and choose an
appropriate fee using other means." See Cole v. Wodziak,
169 F.3d 486, 488 (7th Cir. 1999). Jettisoning the lodestar method is
appropriate in this case. The primary reason why the lodestar method is inapplicable here is that
Garner's $905.41 recovery is minuscule in relation to the $2,000,000 he
sought. Garner lost on so many claims against so many Defendants, one can
say that he just barely succeeded here. If the Court were to subtract out
these failures and deduct money for counsel's inadequate
preparation*fn1, Garner may not have recovered anything. Nevertheless,
because Garner narrowly prevailed on one count, a small amount of
attorney's fees is warranted. Thus, the Court awards Garner's counsel
$452.71 in attorney's fees an amount slightly more than one half
of Plaintiff's recovery.
Plaintiff's counsel is also entitled to costs under
28 U.S.C. § 1920*fn2. However, not all of the $1,871.00 counsel seeks is recoverable
under this statute. To begin with, the 25-cent per page photocopying
expense counsel lists is excessive. The Seventh Circuit has held that
"charges for in-house reproduction may not exceed the charges of an
outside print shop." See Martin v. United States,
931 F.2d 453, 455 (7th Cir. 1991); Haroco, Inc. v. American Nat. Bank
and Trust Co. of Chicago, 38 F.3d 1429, 1441 (7th Cir. 1994). The
Defendant has produced evidence showing that outside print shop charges
in Springfield are 8-cents per page. Accordingly, the $398.75 in claimed
copy expenses is reduced to $127.60.
An additional $204.30 in claimed Westlaw, parking, court of claims
filing fee, and investigation expenses must be deducted because §
1920 does not permit recovery for these costs. Furthermore, the plaintiff
cannot recover for service of summonses connected to all five of the
Defendants since his claims against four of those Defendants failed
completely. For this reason, counsel's costs for service is reduced from
$100 to $20.
Ergo, Plaintiff Terry Lee Garner's Petition for Attorney's
Fees and Costs (d/e 67) is ALLOWED. For the reasons stated herein, the Court
awards $452.71 for attorney's fees and $1,315.55 for costs.
IT IS SO ORDERED.