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Brogato v. Proviso Township Mental Health Commission

March 31, 2008


The opinion of the court was delivered by: Magistrate Judge Maria Valdez


This matter is before the Court on "Plaintiff's Motion for Costs and Fees as Prevailing Party Against Defendants Commission and Abruzino" [Doc. No. 109]. The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, Plaintiff's motion is GRANTED, in part, and DENIED, in part.


On November 18, 2004, Plaintiff Nancy Brogato filed this action pursuant to 42 U.S.C. § 1983 for alleged sexual harassment she endured during her tenure with her former employer. Plaintiff sued her former employer, Proviso Township Mental Health Commission (the "Commission"); the person who allegedly sexually harassed her, Joseph Abruzino, former Executive Director of the Commission; and the municipality, Proviso Township. Shortly after Plaintiff filed this action, Defendants Abruzino and Defendant Commission unsuccessfully moved to dismiss her complaint [Doc. Nos. 6, 19], and the parties proceeded with discovery. During discovery, the parties engaged in limited motion practice, participated in an unsuccessful settlement conference [Doc. Nos. 27, 28], and the Plaintiff accepted a $150,000 Rule 68 offer of judgment made by Defendant Abruzino and Defendant Commission (collectively, the "Defendants")*fn1 nine months after the settlement conference [Doc. No. 76]. Defendants' offer of judgment did not exclude costs or attorney's fees [Doc. No. 76-2]. Accordingly, Plaintiff has moved to recover the costs and attorney's fees she has incurred in this action. Defendants do not object to the $7,247.23 in costs*fn2 requested by the Plaintiff, but they do object to the $219,035.50 in attorney's fees*fn3 requested by her. (Defs.' Resp., at 2.) Plaintiff is seeking compensation for 1,171.7 attorney and legal assistant hours billed in this case (Pl.'s Mot. at 2; Pl.'s Reply, at Ex. 10), while Defendants' counsel billed only 439 hours. (Defs.' Resp., at 5.) Defendants believe Plaintiff's counsel expended too much time on a single-plaintiff sexual harassment case that involved no novel issues of law. Id. at 1, 5. As such, Defendants believe that Plaintiff's hours should be reduced by approximately 40% to $134,471.60. Id. at 2.


A. Attorney's Fees

Plaintiff Nancy Brogato has moved to recover the costs, including attorney's fees, she has incurred in this litigation. In federal civil rights actions, a "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.On November 16, 2006, this Court determined that Plaintiff is a prevailing party in this litigation [Doc. Nos. 89, 90].

The district court has considerable discretion in determining the appropriate amount of a fee award. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 551 (7th Cir. 1999). Plaintiff has the burden to demonstrate to the Court that her attorneys' time expenditures and hourly rates are reasonable. See Hensley, 461 U.S. at 437. In her fee petition, therefore, Plaintiff's attorneys are required to exercise billing judgment, which means they must "'exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.'" Spegon, 175 F.3d at 552 (quoting Hensley, 461 U.S. at 434). Billing judgment is an important component of such calculations requiring the prevailing party to make a good faith effort to exclude hours that are excessive, redundant, or unnecessary. Henley, 461 U.S. at 434; see also Spegon, 175 F.3d at 552 (good faith effort requires the prevailing party to exercise billing judgment-"winnowing the hours actually expended down to the hours reasonably expended.").

As an initial step, Plaintiff, as the movant bears the burden of documenting its fees to the satisfaction of the Court. Tomazzoli v. Sheedy, 804 F.2d 93, 96 (7th Cir.1986); Hensley, 461 U.S. at 437. Once this burden is met, the fees are presumptively appropriate unless challenged by the opposing party. Tomazzoli, 804 F.2d at 96. Plaintiff failed to meet this burden by not attaching any of her attorneys' time records to her fee petition. She contends that her decision not to include any of her time records is based on Defendant's Local Rule 54.3 position which "has made it impossible to ascertain which time entries are disputed and which are not." (Pl.'s Mot. at 2.) Even so, this Court would not be able to undertake a thorough review of the time records if it does not have them. And since the initial burden rests with the party seeking fees, failure to include the time records provides no support for this Court to award any fees. On this basis alone, the Court could deny fees. Hensley, 461 U.S. at 433(if plaintiff fails to document hours adequately, court may reduce award accordingly).

Defendants, however, did attach Plaintiff's billing records in their response to Plaintiff's fee petition. (Defs.' Resp., at Ex. A.) Although this Court is within its discretion to deny all fees based on Plaintiff's omission, this Court does have all records before it and will undertake a review based on the information provided by all parties.

Under the § 1988 fee shifting statute, Brogato may recover only those hours that her attorneys would bill in the private sector. Hensley, 461 U.S. at 434. Brogato's petition for fees should set forth a sufficient description of the type of work performed. Kotsilieris v. Chalmers, 966 F.2d 1181, 1187 (7th Cir.1992). In Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000), the Seventh Circuit explained that "[a]s to the reasonableness of the hours expended, when a fee petition is vague or inadequately documented, a district court may either strike the problematic entries or (in recognition of the impracticalities of requiring courts to do an item-by-item accounting) reduce the proposed fee by a reasonable percentage." A court only requires that level of detail a paying client finds satisfactory. In the Matter of Synthroid Mktg. Litig., 264 F.3d 712, 722 (7th Cir.2001).

In this case, the Defendants do not object to the hourly rates requested by Plaintiff's counsel. (Defs.' Resp., at 2.) Accordingly, the primary issue before this Court is whether the 1,171.7 hours billed by Plaintiff's three attorneys (as opposed to the 439 hours billed by defense counsel) and their legal assistants are reasonable. Defendants argue that Plaintiff's counsel has failed to use billing judgment and has "spent too much time on a simple sexual harassment lawsuit that was settled before a trial date was set." (Defs.' Resp., at 5.)

Specifically, Defendants argue that Plaintiff's counsel's billing records reveal an improper attorney staffing model; inefficient case management-including time devoted to depositions, settlement conferences, and routine discovery-and charges for non-compensable administrative tasks. Id. at 5-8. In support of their position, Defendants have attached the affidavit of Jane M. McFetridge, an employment law attorney they retained to review Plaintiff's billing records. Id. at Ex. C. Plaintiff asserts that Ms. McFetridge's affidavit fails to meet the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. This Court need not address Plaintiff's objections because a district court can independently review the number of hours requested in a fee petition and determine their reasonableness. Spellan v. Board of Educ. for Dist 111, 59 F.3d 642, 646 (7th Cir. 1995) (citation omitted). If this independent review leads the court to question issues that had not been previously addressed by the parties, the court shall provide the fee petitioner an opportunity to respond to the court's concerns. Id. (citation omitted). Such an opportunity is not necessary in this case because this Court has conducted an independent review of Plaintiff's 80 pages of billing records and shares many of the concerns raised by the Defendants. The number of hours requested by the Plaintiff is not reasonable and shall be reduced as outlined below.

Plaintiff retained the Law Offices of Fern Trevino to pursue her claims in this matter. (Affidavit of Fern N. Trevino, at ¶ 8, attached to Pl.'s Mot. as Ex. G.) Ms. Trevino, who has "practiced law exclusively in the field of employment law" since 1983, served as lead counsel. Id. at ¶¶ 3, 12. Ms. Trevino additionally staffed the case with a senior associate-Alenna Bolin, a 1990 law school graduate who has "spent the bulk of [her] practice in litigation with a concentration in the area of litigating employment law cases"-and a junior associate-Antoinette Choate, a 2004 law school graduate who has "practiced solely plaintiff- side employment law." (Id. at ...

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