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Morad Elusta, et al v. City of Chicago

December 13, 2010


The opinion of the court was delivered by: Honorable David H. Coar


Before the court are plaintiffs' current attorneys' petition for their fees, and his former attorneys' motion to adjudicate a lien for their own fees. For the reasons stated below, the petition for attorneys' fees is GRANTED in part, costs are taxed against defendants, and the motion to adjudicate the lien is GRANTED in part and DENIED in part.


Plaintiffs sued defendants under 42 U.S.C. § 1983. Plaintiff Morad Elusta asserted that on August 5, 2005, he was falsely arrested and then beaten by defendant police officers Brian Josephs and Raymond McCann. Elusta allegedly suffered both physical and psychological injuries, as well as emotional distress. Elusta claims that he was falsely arrested based on accusations made by his neighbor, former police officer Robert Rubio. The assault charge was eventually dismissed for want of prosecution. After Elusta filed a complaint in state court based on the arrest incident, on August 22, 2006 a search warrant was executed at his home. Elusta's children and their mother, Christine Lopez, asserted that the officer who performed the search, Aaron Cunningham, destroyed their home and detained them for the duration of the lengthy search (Morad Elusta outside the home and the rest of the plaintiffs inside). Plaintiffs contend that the search warrant was executed based on false accusations made by defendant Rubio, and that the entire incident caused them emotional distress. Defendants denied any wrongdoing.

The defendants (except for Rubio) offered the plaintiffs $100,000 to settle the case against them. Plaintiffs' attorneys thought they had reached a deal, but plaintiffs disagreed. The attorneys withdrew and plaintiffs retained new counsel, who moved to vacate the purported settlement. The magistrate judge determined there had not actually been a settlement because Morad's daughter, plaintiff Crystal Elusta, was legally an adult but had not given her authorization to settle the case. This court adopted the magistrate judge's report and recommendation, and eventually the case proceeded to an eight-day trial. Before submitting the case to the jury, the court granted a directed verdict for Rubio on the claims of malicious prosecution and battery, and the claim under the Illinois Hate Crime Act. The jury found for Morad Elusta on his excessive force and intentional infliction of emotional distress claims, awarding compensatory damages of $20,000 for each claim. The jury found for the defendants on the remaining claims, including all of the other plaintiffs' claims. The parties filed two separate appeals.

While the appeals were pending, plaintiffs' current attorneys filed this petition for attorneys fees based on the victory on the excessive force claim.*fn1 Just after one appeal was resolved, the plaintiffs' former attorneys filed a motion to adjudicate a lien for their attorneys' fees. The other appeal is still pending.


I. Petition for Attorneys' Fees

In an action brought under 42 U.S.C. §1983, the district court has discretion to award the prevailing party reasonable attorneys fees. 42 U.S.C. § 1988(b); Sottoriva v. Claps, 617 F.3d 971, 974 (7th Cir. 2010). Generally, the court begins by calculating a "lodestar" amount, that is, a reasonable hourly rate multiplied by the number of hours reasonably spent on the litigation. Id. at 975. Plaintiffs propose that their attorneys should be awarded $252,702.50. Defendants take issue with all aspects of plaintiffs' petition, responding that the appropriate lodestar is $131,415, and contending that the lodestar amount should be reduced to $26,300.

A. Prevailing Party

Defendants do not dispute that Morad Elusta is a prevailing party, given that the jury awarded him $20,000 for his excessive force claim. They point out, however, that the other plaintiffs-Christine Lopez, Crystal Elusta, and Moriah Elusta-did not prevail on their claims, which were premised on the August 2006 search of their home. It is not clear that plaintiffs are contending that anyone other than Morad is a prevailing party, but to the extent they are, the court agrees with defendants that Morad is the only prevailing plaintiff. Given that the other plaintiffs' claims about the 2006 search were based on the same facts as Morad's claim, however, whether the rest of the plaintiffs are considered "prevailing parties" or not does not affect what fees would be appropriate.

B. Rate

A "reasonable" rate is the prevailing market rate: the rate that "is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1672 (2010). "[A]n attorney's actual billing rate for comparable work is presumptively appropriate for use as a market rate." Jeffboat, LLC v. Director, Off. of Workers' Comp. Progs., 553 F.3d 487, 490 (7th Cir. 2009). But the party seeking fees must produce evidence supporting their billing rate. Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). If it is not possible to determine the attorney's actual hourly billing rate, then the court looks "'to the next best evidence-the rate charged by lawyers in the community of reasonably comparable skill, experience, and reputation.'" Muzikowski v. Paramount Pictures Corp., 477 F.3d 899, 909 (7th Cir. 2007) (quoting People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1310 (7th Cir. 1996)). The party seeking fees must "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, 895, 104 (1984). Plaintiffs argue that they should receive a premium on the usual hourly rate because the case was taken on a contingency basis, but the Supreme Court has rejected such a premium. City of Burlington v. Dague, 505 U.S. 557, 562 (1992); see also Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010).

Plaintiffs ask for a rate of $425 per hour for attorney Zane Smith and $300-$350 an hour for Sheila Genson. The primary evidence plaintiffs have submitted of the attorneys' billing rates are the attorneys' own affidavits. Attorney Zane Smith avers that his "customary and usual" rate for a matter like this one ranges from $325 per hour to $450 per hour, and attorney Sheila Genson states that her customary billing rate was $300 per hour in 2007 and $350 per hour in 2008. Smith has been admitted to the Illinois bar since 1983, and Genson since 1992. Both attorneys focus their practice on litigation, but they do not specialize in civil rights suits like this one. Neither attorney has attached billing invoices in which they have charged their stated rates or directed the court's attention to other cases in which they have been awarded similar rates. They do attempt to show that their rates are in line with those of the community by submitting (in their reply) an affidavit from a civil rights lawyer who deems their rate reasonable. Saying that the rate is "reasonable" without providing any concrete examples, however, is of limited use. Edwards v. Rogowski, No. 06 C 3110, 2009 WL 742871, at * 4 (N.D. Ill. Mar. 18, 2009); see Blum v. Stenson, 465 U.S. 886, 895 n.1 (1984). Plaintiffs also compare their rates to the Laffey Matrix, a guideline that the U.S. Attorney's Office in Washington, D.C. has come up with to avoid litigating appropriate rates. See United States Attorney's Office for the District of Columbia, Laffey Matrix 2003-2010, available at The Laffey Matrix rates for the 2007-2008 period are $440 for a lawyer of Smith's experience and $390 for a lawyer of Genson's experience. However, the Laffey Matrix has not been formally adopted in the Seventh Circuit, and its rates appear significantly higher than those typically awarded in this district, as demonstrated by the following case law. In addition, though plaintiffs claim that the matrix is routinely followed in this district, the cases they cite do not appear to rely on it.

Plaintiffs compare their rate to those approved for other lawyers in other cases. Their first comparison is to a suit under 42 U.S.C. § 1983 involving fairly complex questions of First Amendment law, in which a judge approved higher rates for attorneys from Jenner & Block. Entm't Software Ass'n v. Blagojevich, No. 05 C 4265, 2006 WL 3694851 (N.D. Ill. Aug. 9, 2006). It is not clear which attorneys the plaintiffs consider most comparable, but partners who graduated law school in 1974 and 1996 were compensated at rates of $495 and $425 per hour. Id. at *2, 5. However, in that case the plaintiffs provided invoices that enabled the court to conclude both that the attorneys normally charged the proffered rates and that the plaintiffs had paid counsel at those rates. Id. at *3. The issues involved fell within the attorneys' area of expertise. Id. at *4. And significantly, the court recognized that those attorneys' market rates were "above average for attorneys with the same number of years of experience." Id. at *5.

Plaintiffs also note another § 1983 case, this one concerning an excessive force claim, in which experienced attorneys who specialized in civil rights litigation were awarded $375 per hour. Delgado v. Vill. of Rosemont, No. 03 C 7050, 2006 WL 3147695, at *4-5 (N.D. Ill. Oct. 31, 2006.) A third attorney with extensive courtroom experience was compensated at a rate of $425 per hour. Id. at *5. In that case, though, the attorneys presented evidence that they were customarily paid at those rates. Plaintiffs further point to a Title VII case in which the plaintiffs secured a jury award of $2.8 million, where an experienced attorney was awarded $415 per hour in light of her "impeccable" strategic decisions and a closing argument that the court deemed "a masterpiece of courtroom advocacy." Pawell v. Metro. Pier & Exposition Auth., No. 03 C 3158, 2005 WL 1902116, *3-4 (N.D. Ill. Mar. 4, 2005). A less experienced attorney was also awarded $230 per hour in view of her exceptional credentials and courtroom skills. Id. at *5.

The defendants respond that the appropriate rate for attorney Zane Smith is $300 per hour, and for Sheila Genson $225 per hour, citing cases they deem more analogous. One is a civil rights case in which an attorney with 12 years' experience, but only academic experience with civil rights law, was awarded a rate of $285 an hour. Schultz v. City of Burbank, No. o6 C 5646, 2007 WL 1099479, at *3-4 (N.D. Ill. Apr. 10, 2007). That amount was based on the rates courts had awarded the same attorney in other cases and on affidavits submitted by both parties. The defendants also point out another civil rights case in which attorneys from a prominent civil rights firm were granted an hourly rate of $300 instead of their requested rates of $350, $400, and $450, based on the court's determination that $300 was comparable to the court's previous awards in civil rights cases. The defendants also argue that Genson's "secondary role" commands a lower rate, and Genson's asking rate was indeed significantly less than ...

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