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Chwarzynski v. Tebbens

September 10, 2008

JOHN CHWARZYNSKI, PLAINTIFF,
v.
LT. ROBERT TEBBENS, LT. THOMAS CODY, DANIEL FORTUNA, THOMAS RYAN, DAVID QUINTAVALLE, LT. JOEL BURNS, PETER O'SULLIVAN, LT. PAUL STAMPER, PETER HOULIHAN, AND MARC J. MCDERMOTT, INDIVIDUALLY AND IN THEIR CAPACITIES AS OFFICERS AND MEMBERS OF CHICAGO FIRE DEPARTMENT UNION LOCAL 2, AND INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, HAROLD A. SCHAITBERGER, LOUIE WRIGHT, JOSEPH CONWAY AND DANNY TODD, INDIVIDUALLY AND IN THEIR CAPACITIES AS OFFICERS AND MEMBERS OF THE INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

On May 12, 2008, the Court granted defendants' motions for sanctions against plaintiff Chwarzynski and his counsel, James Maher III, pursuant to Federal Rule of Civil Procedure ("Rule") 11 and 28 U.S.C. § 1927 because Maher had asserted a variety of baseless claims and legal contentions and he and Chwarzynski both unreasonably multiplied and increased the cost of these proceedings. (See Minute Order of 5/12/08); Fed. R. Civ. P. 11(b)(1), (2), (c)(1); 28 U.S.C. § 1927. The question that remains is exactly what sanction should be imposed.

"The purpose of both Rule 11 and section 1927 is to deter frivolous litigation and abusive practices by attorneys and to ensure that those who create unnecessary costs also bear them." Kapco Mfg. Co., Inc. v. C & O Enter., Inc., 886 F.2d 1485, 1491 (7th Cir. 1989) (per curiam) (citations omitted). An award of attorney's fees is a customary, but not mandatory, sanction. See Johnson v. A.W. Chesterton Co., 18 F.3d 1362, 1366 (7th Cir. 1994) ("[T]he deterrent purpose of the [Rule11] should be served by imposing a sanction that fits the inappropriate conduct." (quotation omitted)); Kotsilieris v. Chalmers, 966 F.2d 1181, 1187-88 (7th Cir. 1992) (stating that "a court may impose a penalty as light as a censure and as heavy as is justified" under section 1927 and Rule 11 (quotation omitted)).

Chwarzynski and Maher urge the Court to impose only a non-monetary sanction. Defendants urge the Court to award them all of the fees and costs they expended in defending this suit.

The Court declines to do either. Given the nature of their conduct, i.e., "vigorously pursu[ing] this case for . . . nine months" after being told "both by defense counsel and the Court, that [it] could not be maintained in the Union's name and most of the claims asserted in it were legally unfounded" (Minute Order of 5/12/08 at 3), a non-monetary sanction would be insufficient to redress the harm Chwarzynski and Maher caused or deter them and others from engaging in such conduct in the future. On the other hand, requiring Chwarzynski and Maher to pay all of defendants' fees and expenses would be excessive. Though most of the claims were clearly unfounded, the Court denied defendants' motion to dismiss the breach of fiduciary duty and fraud claims asserted against them in Counts VI and VII and gave plaintiffs leave to try to "salvage the RICO claims in Counts I-III." (Mem. Op. & Order of 9/28/07 at 8-10.)

Chwarzynski voluntarily dismissed the suit before those claims were decided on their merits. Because it is possible that those claims had merit and requiring Chwarzynski and Maher to pay all of defense counsels' fees and costs might chill their and others' pursuit of David-versus-Goliath claims, the Court will not require them to do so.

On balance, given: (1) the purpose of Rule 11 and section 1927 sanctions; (2) Chwarzynski and Maher's conduct; (3) Maher's status as a sole practitioner and his apparent inexperience in federal litigation; (4) the fact that the suit arose from disputes between the president and the board of a local union whose members have, in the last twenty years, engaged in an almost continual effort to remove whomever they elect as their president (see Fran Spielman, Chicago Firefighters, Union Leader Clash, FIREHOUSE.COM, Dec. 12, 2006, http://cms.firehouse.com/web/online/News/Chicago-Firefighters--Union-Leader-Clash-/46$52389); (5) the duplication of effort that defense counsel could have avoided had they made joint submissions; and (6) the amount of resources defendants devoted to this suit, which they knew was largely unfounded, this Court finds an award of one quarter of the fees defense counsel reasonably expended on the suit and none of the costs is an appropriate sanction. Brown v. Fed'n of State Med. Bds. of the U.S., 830 F.2d 1429, 1439 (7th Cir. 1987) (noting that courts "should reflect upon equitable considerations in determining the amount of the sanction," including the sanctioned person's ability to pay and his legal experience and the extent to which the party requesting sanctions could have mitigated its costs), abrogated in part on other grounds, Mars Steel Corp. v. Cont'l Bank N.A., 880 F.2d 928, 930 (7th Cir. 1989); see Leffler v. Meer, 936 F.2d 981, 987 (7th Cir. 1991) (noting, in the context of a section 1988 fee award, that "there should be some proportionality between the merits of the plaintiff's claim and the hours expended by defense").

The next question is how much did the defendants reasonably spend on this case? Reasonable attorneys fees are generally calculated by the lodestar method, which requires the Court to "multiply[] the hours reasonably expended on the litigation by a reasonable hourly rate." See Leffler, 936 F.2d at 985 (section 1988); S.A. Auto Lube, Inc. v. Jiffy Lube Int'l, Inc., 131 F.R.D. 547, 550 (N.D. Ill. 1990) (using lodestar method to determine sanctions).*fn1 The number of hours reasonably expended on the litigation does not include those "that are excessive, redundant, or otherwise unnecessary." Heriaud v. Ryder Transp. Servs., No. 03 C 289, 2006 WL 681041, at *3 (N.D. Ill. Mar. 14, 2006) (quotation and citations omitted). Moreover, if any time entry is too vague or otherwise inadequate to allow an assessment of reasonableness, the Court may disregard it. Harper v. City of Chi. Heights, 223 F.3d 593, 605 (7th Cir. 2000).

Defendants International Association of Fire Fighters, and its officers Harold A. Schaitberger, Joseph Conway, Danny Todd and Louie Wright (collectively, "International") say that Thomas Woodley, Kurt Rumsfeld, Baldwin Robertson and Eric Hallstrom, who are based in Washington D.C., and Librado Arreola and Marvin Gittler, who are Chicago lawyers, reasonably spent 510.2 hours, or $112,292.50, defending them in this suit. (Int'l Resp. Court's May 12, 2008 Order, Ex. 1, Woodley Decl. ¶ 16; id., Exs. A-E, Woodley, Rumsfeld, Robertson & Hallstrom Time Records; id., Ex. 2, Arreola Decl., Exs. A & B, Arreola & Gittler Time Records.)

The Court disagrees. First, all of the work done by attorney Hallstrom is duplicative of that done by other International lawyers. (Compare id., Ex. 1, Woodley Decl., Ex. D, Hallstrom Time Records with, id., Exs. A-C, Woodley, Rumsfeld & Robertson Time Records and, id., Ex. 2, Arreola Decl., Ex. A, Arreola Time Records.) Thus, the 21.6 hours Hallstrom billed were not reasonably expended on this case.

Moreover, virtually all of the time billed by Arreola and Gittler is: (1) duplicative of other lawyers' work; (2) for administrative work that should have been done by a non-lawyer; or (3) described so vaguely that the Court cannot assess its reasonableness. The Court, therefore, deems reasonable only 14.25 of the hours billed by Arreola and none of the time billed by Gittler. (See id., Ex. 2, Arreola Decl., Ex. A, Arreola Time Records (entries for 4/27/07, 5/17/07, 6/25/07, 7/26/07, 10/12/07, 10/15/07, 10/16/07, 12/11/07, 12/13/07, 1/3/08, 1/16/08, 2/26/08); id., Ex. B, Gittler Time Records.)

Woodley, Rumsfeld and Robertson's billings have similar problems. They contain entries: (1) for work done before the lawsuit was filed (id., Ex. 1, Woodley Decl., Ex. A, Woodley Time Records (entry for 4/10/07); id., Ex. B, Rumsfeld Time Records (entries of 4/12/07, 4/13/07, 4/15/07)); (2) that are too vague to assess whether they are reasonable (id., Ex. A, Woodley Time Records (entries of 4/17/07, 4/20/07, 4/24/07, 4/25/07, 5/3/07, 5/8/07, 5/18/07, 6/29/07, 7/26/07, 10/3/07, 10/16/07, 10/22/07, 11/21/07, 11/26/07, 12/31/07, 1/14/08, 1/15/08, 2/28/08, 5/14/08); id., Ex. C, Robertson Time Records (entries of 5/15/07, 6/22/07, 6/29/07, 7/2/07, 10/1/07, 10/12/07, 10/15/07, 12/4/07, 12/10/07, 12/31/07, 1/17/08, 1/18/08, 2/8/08)); or (3) duplicative of time billed by other attorneys for the same task or billed by the same attorney for the same task on previous days (id., Ex. A, Woodley Time Records (entries of 5/4/07, 5/11/07, 6/20/07, 6/25/07, 6/26/07, 7/18/07, 7/19/07, 10/30/07, 1/7/08, 2/20/08, 3/3/08); id., Ex. B, Rumsfeld Time Records (entry of 4/16/07 ); id., Ex. C, Robertson Time Records (entry of 9/27/07)). Consequently, these 71.1 attorney hours are not reasonable.

Even after the vague and redundant entries are deleted, however, the total number of hours International's lawyers devoted to certain tasks is still excessive. For example, preparation for and participation in the TRO hearing consumed a total of 68.95 attorney hours. (See id., Ex. 1, Woodley Decl., Ex. A, Woodley Time Records (entries of 4/16/07, 4/18/07, 4/26/07, 4/27/07, 4/30/07); id., Ex. B, Rumsfeld Time Records (entries of 4/17-20/07, 4/23-25/07, 4/27/07); id., Ex. 2, Arreola Decl., Ex. A, Arreola Time Records (entry of 4/27/07).) Work related to International's first motion to dismiss consumed 115.2 attorney hours. (See id., Ex. 1, Woodley Decl., Ex. A, Woodley Time Records (entries of 4/23/07, 5/7/07, 5/17/07, 7/5/07, 9/28/07, 10/1/07); id., Ex. B, Rumsfeld Time Records (entries of 5/7/07, 5/10-12/07, 5/14/07, 5/16/07, 5/17/07, 6/29/07, 6/30/07, 7/1/07, 7/3/07, 7/4/07); id., Ex. C, Robertson Time Records (entries of 5/1/07, 5/3/07, 5/4/07, 5/8-11/07, 5/14/07, 5/16-18/07, 6/26/07, 7/3-5/07).) Work related to its second motion to dismiss took 80.3 hours. (See id., Ex. A, Woodley Time Records (entries of 10/29/07, 11/16/07, 11/19/07, 11/2/07, 12/17/07); id., Ex. C, Robertson Time Records (entries of 10/22/07, 10/26/07, 10/30/07, 10/31/07, 11/1/07, 11/2/07, 11/5/07, 11/6/07, 11/7/07, 11/8/07, 11/9/07, 11/12/07, 11/13/07, 11/14/07, 11/15/07, 11/19/07, 11/20/07, 12/3/07, 12/18/07, 12/21/07).) Likewise, preparing the motion for sanctions and supporting materials took 125.9 attorney hours. (See id., Ex. A, Woodley Time Records (entries of 6/7/07, 6/27/07, 6/28/07, 7/6/07, 12/26/07, 12/27/07, 1/3/08, 1/10/08, 1/23/08, 1/25/08, 2/25/08, 2/26/08, 3/1/08, 4/1/08, 5/13/08, 5/15/08, 5/19/08, 5/20/08); id., Ex. C, Robertson Time Records (entries of 6/8/07, 6/11/07, 6/12/07, 6/25/07, 6/27/07, 6/28/07, 7/9-11/07, 7/16/07, 7/17/07, 7/19/07, 7/20/07, 7/23/07, 7/24/07, 8/7/07, 12/28/07, 1/1/08, 1/4/08, 1/6/08, 1/7/08, 1/9-11/08, 1/28/08, 2/7/08, 2/15/08, 2/19-26/08, 2/29/08, 3/3/08); id., Ex. 2, Arreola Decl., Ex. 2, Arreola Time Records (entries of 6/25/07, 7/26/07, 1/16/08, 2/26/08).)

The work related to the TRO hearing -- which lasted only a few hours and did not involve the presentation of any witnesses or evidence -- could reasonably have been completed in half the time. Likewise, the work related to International's first motion to dismiss -- the end result of which was two, fifteen-page briefs that fleshed out the likelihood of success arguments made in opposition to the TRO -- should reasonably have taken about 40 hours. Further, because their time records suggest that there was a significant overlap in the work on these briefs, the Court discounts all of the time Rumsfeld billed to the motion, reduces to 35 the hours Robertson billed to it and reduces to 5 the hours Woodley billed to it. Similarly, the work devoted to the motion to dismiss the amended complaint, which largely reiterated the original complaint, should reasonably have taken one-third, or about 27, of the 80.3 hours billed to it. Finally, the 124 hours the lawyers devoted ...


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