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MOLINE v. TRANS UNION

July 14, 2004.

MICHAEL MOLINE, Plaintiff,
v.
TRANS UNION, L.L.C., and FORD MOTOR CREDIT CO., Defendants.



The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This case comes before this Court on a motion for sanctions and subsequent fee petition filed by Defendant Ford Motor Credit Co. ("Ford") against Plaintiff Michael Moline's counsel, Krohn & Moss ("Plaintiff's Counsel"). This Court previously held that Ford was entitled to sanctions against Plaintiff's Counsel because, in pursuing this litigation, "plaintiff's conduct unreasonably and vexatiously multiplied the proceedings." Moline v. Trans Union, L.L.C., No. 03 C 1376 (N.D. Ill. minute order Mar. 2, 2004). Because the parties have been unable to settle on an agreed sanctions award, Ford has submitted a petition for $15,064.50 in fees under Local Rule 54.3. Plaintiff's Counsel contests the fee petition, arguing that the fees are excessive and unreasonable. For the reasons set forth in this opinion, this Court awards Ford $8,250.00 in fees as sanctions pursuant to 28 U.S.C. § 1927. I. STATEMENT OF FACTS

A. UNDERLYING LITIGATION

  On February 25, 2003, Plaintiff Michael Moline ("Plaintiff") filed this action against Defendants Trans Union L.L.C. ("Trans Union") and Ford Motor Credit Co. and a separate action, 03 C 1375, against Defendant Experian Information Solutions, Inc. ("Experian") (collectively "Defendants"), alleging violations of the Federal Credit Reporting Act. The issue in both cases was whether Plaintiff's divorce decree precludes Defendants from reporting Plaintiff's ex-wife's delinquent car payments on Plaintiff's credit report where the divorce decree makes Plaintiff's ex-wife solely responsible for making the payments.

  In a May 2, 2003 phone call and in a May 28, 2003 letter, Ford reacted to Plaintiff's complaint by requesting that Plaintiff voluntarily dismiss the action because the complaint was legally groundless. On May 30, 2003, Plaintiff's Counsel responded, stating that there was no legal authority contrary to the complaint. Consequently, Ford filed a motion to dismiss the action and to stay discovery before Judge Plunkett on June 16, 2003. Following oral arguments on June 25, 2003, Judge Plunkett granted the motion to stay discovery pending Ford's motion to dismiss. On August 5, 2003, Plaintiff filed a motion to compel discovery.

  Judge Plunkett subsequently granted Ford's motion to dismiss on August 6, 2003. Moline v. Trans Union L.L.C., No. 03 C 1376, 2003 WL 21878728, at *2 (N.D. Ill. Aug. 7, 2003). In dismissing the action, Judge Plunkett declined to consider Ford's supporting documents or to convert the motion to one for summary judgment because Ford had stayed discovery. Id. Instead, he granted Plaintiff time to amend the complaint. Id.

  Plaintiff filed an amended complaint on August 21, 2003. On September 22, 2003, Ford filed a motion for an extension of time to answer Plaintiff's discovery requests. On September 24, Ford filed a motion for summary judgment and a motion to stay discovery pending the outcome of the motion for summary judgment. On October 1, 2003, Judge Plunkett continued the motion for summary judgment to October 29, 2003; he also stayed oral discovery, allowed written discovery to proceed, and required initial Rule 26(a)(1) disclosures to be made.

  On October 15, 2003, Ford moved for an extension of time to answer Plaintiff's interrogatories, document requests and requests to admit. On October 16, 2003, Judge Plunkett granted Ford an extension through November 13, 2003.

  Plaintiff voluntarily dismissed the complaint against Ford on October 29, 2003, after Judge Castillo ruled against Plaintiff in case 03 C 1375 ("the Experian case"). See Moline v. Experian Info. Solutions, Inc., 289 F. Supp.2d 956, 957 (N.D. Ill. 2003) (granting summary judgment for Experian). In granting summary judgment against Plaintiff, Judge Castillo cited a document, signed by Plaintiff years after his divorce, confirming Plaintiff's liability for the car loan. See id. B. PETITIONS FOR SANCTIONS AND FEES

  After being granted summary judgment, Experian petitioned Judge Castillo for sanctions against Plaintiff's Counsel under 28 U.S.C. § 1927. In the order granting sanctions, Judge Castillo ruled that Plaintiff's Counsel had acted in bad faith because Experian had advised Plaintiff's Counsel repeatedly that the complaint lacked merit, yet Plaintiff's Counsel persisted with the groundless claim. Moline v. Experian Info. Solutions, Inc., No. 03 C 1375 (N.D. Ill. minute order Jan. 13, 2004). At the urging of Judge Castillo, an agreed order was entered awarding Experian $12,000 in attorney's fees. Id.

  On November 14, 2003, Ford submitted a motion for sanctions in this action against Plaintiff's Counsel under 28 U.S.C. § 1927. The motion was referred to this Court by Judge Plunkett, and both parties signed a limited consent to the exercise of jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). On November 24, 2003, this Court held oral argument on Ford's motion for sanctions and took the matter under advisement pending Judge Castillo's ruling on sanctions against Plaintiff's Counsel for its actions in the Experian case. On January 13, 2004, Judge Castillo entered the order granting Experian's motion for sanctions. Moline v. Experian Info. Solutions, Inc., No. 03 C 1375 (N.D. Ill. minute order Jan. 13, 2004). Adopting Judge Castillo's opinion, this Court awarded sanctions against Plaintiff's Counsel and encouraged the parties to settle the fee award without further court intervention. Moline v. Trans Union, L.L.C., No. 03 C 1376 (N.D. Ill. minute order Mar. 2, 2004). Unable to settle the fee award with Plaintiff's Counsel, Ford submitted a fee petition to this Court requesting $15,064.50 in fees for 91.3 hours of work billed at $165 per hour. Ford's attached legal bill includes a detailed breakdown of the attorneys' daily activities on the case. Of the 91.3 hours billed, the largest blocks of time were spent on motions: over twenty hours were spent researching and preparing Ford's motion to dismiss and twenty-four hours were spent on its motion for summary judgment. Substantial time also was spent in communication with others: 5.5 hours were spent consulting with Experian's counsel, over two hours were spent on an affidavit in support of Experian's case, over four hours were spent in communication with Plaintiff's Counsel, and eight hours were spent in court. Approximately seven hours were spent on discovery during the life of the case and 14.8 hours were spent, mostly on Ford's fee petition, after the case was dismissed. Attached to the fee petition was Ford's letter dated April 26, 2004, in which Ford attempted to resolve the fee award directly with Plaintiff's Counsel. Ford claims that Plaintiff's Counsel never responded to the informal request for fees, instead waiting to contest the fee petition once this Court received it.

  II. LEGAL STANDARDS

  A court has discretion to award attorney's fees under 28 U.S.C. § 1927 after that court has found a violation of the statute. Kotsilieris v. Chalmers, 966 F.2d 1181, 1184 (7th Cir. 1992). 28 U.S.C. § 1927 provides that any attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys fees reasonably incurred because of such conduct." This Court already has found that Plaintiff's Counsel has violated § 1927 and now turns to determine the amount of fees to be awarded.

  The purposes of sanctions awarded 28 U.S.C. § 1927 are to "deter frivolous litigation" and to "ensure that those who create unnecessary costs also bear them," thus compensating the innocent party while punishing the offending party. Kapco Mfg. Co. Inc. v. C & O Enters., Inc., 886 F.2d 1485, 1491 (7th Cir. 1989). A sanctioning court "may impose a penalty as light as a censure and as heavy as is justified," thus affording district courts discretion in awarding sanctions. Frantz v. U.S. Powerlifting Fed., 836 F.2d 1063, 1066 (7th Cir. 1987) (awarding sanctions under Fed.R.Civ.P. 11); see also Kotsilieris, 966 F.2d at 1187-88 (using Rule 11 fee award reasoning to evaluate a fee award made under § 1927). Courts awarding sanctions under § 1927 have applied the ...


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