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ROBINSON v. CITY OF HARVEY

August 12, 2004.

ARCHIE ROBINSON, Plaintiff,
v.
CITY OF HARVEY and OFFICER MANUEL ESCALANTE, Defendant.



The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge

MEMORANDUM OPINION AND ORDER

This case, recently transferred from Judge Lefkow, is before the Court on plaintiff's motion to recover fees to pursuant to 42 U.S.C. § 1988.*fn1 For the reasons set forth below, the motion is granted in part and denied in part.

Discussion

  In civil rights cases, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. There is no dispute that plaintiff prevailed in this suit. Our task, then, is to determine what "a reasonable attorney's fee" is in this case. "The most useful starting point for determining the amount of a reasonable fee," the Supreme Court tells us, "is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "The party seeking the fee award bears the burden of proving the reasonableness of the hours worked and the hourly rates claimed." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999). Plaintiff seeks to recover $671,677.50 for 2372.3 hours of work performed by seven lawyers: Arthur Loevy, Jon Loevy, Danielle Loevy, Michael Kanovitz, Jon Rosenblatt, Russel Barnett and MFZ. (See Pl.'s Exs. Supp. Fee Pet., Ex. A.)*fn2 The City contends that both the number of hours the lawyers billed and the hourly rates they seek are too high.*fn3

  Number of Hours Expended

  Before turning to the City's specific objections, we must address its contention that section 1988 does not authorize the recovery of fees for the first trial. In the City's view, the verdict in its favor on the section 1983 claim in the first trial divests plaintiff of prevailing party status for that proceeding.

  The Court disagrees. Though plaintiff lost on the federal claim in the first trial, the results of that trial had to be set aside. (See 2/22/02 Min. Order (granting plaintiff's motion for a new trial because jury returned inconsistent verdicts).) There is nothing in the record to indicate that the conduct of plaintiff's counsel caused the mistrial; the jury simply erred. At the second trial, of course, plaintiff prevailed on his section 1983 claim. Because the first trial was an unavoidable hurdle on plaintiff's path to success, he can recover reasonable fees spent on it. Shott v. Rush-Presbyterian-St. Luke's Med. Ctr., 338 F.3d 736, 739 (7th Cir. 2003) ("[W]hen two trials are required to achieve the ultimate result, a plaintiff should be compensated for both trials, as long as the time spent at both was reasonably expended.") (internal quotation marks and citation omitted).

  The City also contends that plaintiff cannot recover fees for his counsel's work in connection with the state-law claim during the second trial. Because the malicious prosecution claim was wholly unrelated to the section 1983 claim, the City says, plaintiff can recover fees only for the latter.

  Usually, excessive force and malicious prosecution claims are quite distinct. The former requires proof that an arrest was made with unreasonable force; the latter that there was no probable cause for the ensuing prosecution. This was not the usual case, however. Here, the defense to both claims was that plaintiff pulled a gun on defendant Escalante. If the jury believed plaintiff had a gun, Escalante's use of force, shooting plaintiff, was reasonable and there was probable cause for the weapons charge leveled against plaintiff. If the jury did not believe plaintiff had a gun, the use of force was excessive and the weapons charge was baseless. Given their common factual core, it would be difficult, if not impossible, to identify the time plaintiff's counsel devoted solely to either claim. Because plaintiff's state and federal claims are interrelated, he may recover reasonable fees expended litigating both. Cf. Hensley, 461 U.S. at 435 (stating that plaintiff may recover fees spent on unsuccessful claims if they are related to claims on which plaintiff prevailed). We turn now to the City's objections to counsel's billing records. The City lodges specific objections to approximately sixty of plaintiff's counsel's time entries.*fn4 (See City's Resp. Fee Pet., Ex. J.) The City says those entries reflect duplicative work, work that should have been performed by clerical staff, or describe the work too vaguely to determine if the time spent was reasonable.

  The Court agrees that Jon Loevy and Russel Barnett unreasonably duplicated their efforts in a number of instances. The billing records indicate, for example, that both men billed for preparing and attending depositions taken in the case, though only one of them actually took or defended each deposition. The records also show that both men billed for attending the same court hearings.

  Certain hearings, those in which numerous motions are argued, for example, may require the presence of more than one lawyer. But plaintiff's counsel does not argue that such was the case here. Rather, they contend that they should be compensated for sending multiple lawyers to various proceedings because that is what defense counsel did.

  But the two sets of counsel were not situated similarly in this case. As is common in police misconduct cases, the police officer defendant and the municipality were represented by different lawyers. Thus, it is not surprising that more than one defense lawyer appeared at each proceeding. Moreover, even if defendants had had the same lawyers, their practice would not be "an immutable yardstick of reasonableness." Shaw v. AAA Eng'g & Drafting, Inc., 213 F.3d 538, 543 (10th Cir. 2000) (internal quotation marks and citation omitted). Conduct that is objectively unreasonable — sending a dozen lawyers to every hearing, for example — would not become reasonable simply because defense counsel did it. Thus, plaintiff's bare retort that "defendants did it" does not do much to advance the reasonableness determination.

  In short, unless more than one lawyer was needed at any proceeding, and plaintiff has not demonstrated that they were, plaintiff cannot recover for one attorney's observation of another's work.*fn5 Moreover, to the extent compensable and non-compensable work are block-billed together, the entire entry will be deleted.*fn6

  The City also argues that plaintiff cannot recover for Jon Rosenblatt's work on March 21, 23, 25-30, April 4, 5, 2001 and July 15, 16, 18, 2002 because it is duplicative of other lawyers' work. The Court agrees that the time is not compensable, but for a different reason. It may well be that the work Rosenblatt performed on those days was unique to him, but his time descriptions — "witness/exhibit/trial assist" — are too vague ...


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