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Sidell v. Maram

April 7, 2010

JULIE SIDELL, GUARDIAN OF GRETCHEN SIDELL, PLAINTIFF,
v.
BARRY S. MARAM, DEFENDANT.



The opinion of the court was delivered by: Joe Billy Mcdade Senior United States District Judge

OPINION and ORDER

Before the Court are the Report and Recommendation (Doc. 85) on the Motion for Attorney Fees filed by Plaintiffs' attorneys, Equip for Equality (Doc. 80),*fn1 the Objection thereto (Doc. 87) and the response (Doc. 90). For the reasons set forth below, the Report and Recommendation is ACCEPTED and the Motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND

On February 24, 2009, judgment was entered in favor of Plaintiff and against Defendant on Plaintiff's Americans with Disabilities Act and Rehabilitation Act clams. Plaintiff's attorneys, Prairie State Legal Service, who litigated Plaintiff's claims, filed a Motion for Bill of Costs and Litigation Expenses which sought to recover costs and expenses but not attorney fees (Doc. 79). Plaintiff's other attorneys, Equip for Equality, who provided legal advice, filed a Motion for Attorney Fees and costs, seeking $34,020 in attorney fees and $345.70 in expenses (Doc. 80).

The matters were referred to Magistrate Judge Cudmore who issued a Report and Recommendation that recommended that Prairie State Legal Services' Motion be granted and that Equip for Equality's Motion be granted in part. No objection was filed with respect to the recommendation regarding Prairie State Legal Services' Motion. On December 10, 2009, this Court entered an agreed Order awarding Prairie State Legal Services $25,374.46 in costs and expenses.

Equip for Equality, however, objected to Judge Cudmore's recommendation. In their Motion, Equip for Equality sought $34,020.00 in attorney fees that represented 103 hours for two of its attorneys, Laura J. Miller at $350.00 per hour and Janet M. Cartwright at $325.00 per hour. Judge Cudmore held that the hourly rates should be reduced to $250.00 per hour and that the hours billed be reduced by 19.6 hours. Judge Cudmore recommended that attorney Miller's total compensable fee would be $4,075.00 (which represented 16.3 hours time $250.00) and that attorney Cartwright's total compensable fee would be $17,125.00 (which represented 68.5 hours times $250.00). The total amount that Judge Cudmore recommended awarding is $21,200.00.

Plaintiff's attorneys object not to the reduction in hours, but to the reduction in the hourly rate. In reducing the hourly rate, Judge Cudmore noted that there was no evidence of the amount these attorneys would actually bill clients, whether they actually have recovered this amount in cases they have litigated, the amount they have been awarded in other cases, or evidence regarding the community used to provide their hourly rate. Judge Cudmore then found that an hourly rate of $250.00 is reasonable in light of allowable rates allowed in this District in other cases.

STANDARD

A district court reviews de novo any portion of a Magistrate Judge's Report and Recommendation to which "specific written objection has been made." FED.R.CIV.PRO. 72(b). "The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Id. However, the Court emphasizes that Rule 72(b) contemplates "specific, written objections to the proposed findings and recommendations [of the magistrate judge]." Id. (emphasis added).

DISCUSSION

The only objection is with respect to the recommended reduction in hourly rates from $350.00 and $325.00 to $250.00.

The "touchstone" for calculating attorney fees is the lodestar method of multiplying a reasonable hourly rate by the number of hours reasonably expanded. Gastineau v. Wright, 592 F.3d 747, 748 (7th Cir. 2010). That figure can then be adjusted, if necessary, based on a variety of factors including the complexity of the case, degree of success, the public interest advanced by the case, and the experience of the attorney. Id.; Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983).*fn2 A reasonable hourly rate can be the amount an attorney actually charges a paying client for comparable work, the amount a similarly experienced attorney would charge in this community, or the reasonable rate that an attorney in the same field would charge. See Jeffboat, LLC v. Director, Office of Workers' Compensation Programs, 553 F.3d 487, 490 (7th Cir. 2009);*fn3 Gautreaux v. Chicago Housing Authority, 491 F3d 649, 649 (7th Cir. 2007). The burden is on Plaintiff to "produce satisfactory evidence -- in addition to the attorney's own affidavits -- that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). If an attorney has no paying clients, then the next best evidence includes "the rates other attorneys in the area charge paying clients for similar work and evidence of fee awards the attorney has received in similar cases." Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir. 1999).

As an initial matter, Defendant argues that this Court should not consider the new evidence attached to Plaintiff's objection because on de novo review, this Court is not required to hold a de novo evidentiary hearing. See Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995). Rule 72(b)(3) contemplates receipt of further evidence in making a de novo review of a Magistrate Judge's recommendation. The purpose of review is not to determine whether the Magistrate Judge erred, but rather to take a fresh look at the record and reach an independent judgment. As such, and because Defendant has had an opportunity to respond, the Court does not find any prejudice to Defendant in allowing Plaintiff to fully present their claim with additional evidence. See e.g. Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999) (noting, without disapproval, that the district court considered new evidence upon de novo review).

Attorney Miller represents in her affidavit that her billing rate is $350.00 per hour, that she handles a variety of federal cases, and that she has been a practicing attorney since 1982. Attorney Cartwright represents that her hourly rate is "set" by Equip for Equality at $325.00 per hour, that she has litigated a number of civil rights cases, and that she has been a practicing attorney since 1990. The Court notes that Equip for Equality is a not-for-profit entity and that because neither attorney has indicated that they actually have paying clients (or provide evidence of what actual clients have paid), the Court assumes that it does not charge its clients for legal services rendered. Therefore, this Court looks to evidence of what fee awards these attorneys have received in similar cases and what other attorneys with similar experience in the area charge for ...


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