The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
Wednesday, 19 January, 2011 05:25:05 PM
Clerk, U.S. District Court, ILCD
This matter comes before the Court on Plaintiff Joseph A. Sottoriva's Plaintiff's Supplemental Motion for Attorney's Fees and Costs (hereinafter the Supplemental Fee Motion) (d/e 96). For the reasons stated below, the Supplemental Fee Motion is DENIED with leave to re-file.
On June 7, 2006, state employee Joseph A. Sottoriva filed a three-count Complaint against Defendants Rocco J. Claps (Director of the Illinois Department of Human Rights) and Daniel W. Hines (Comptroller of the State of Illinois). Sottoriva sought to prevent wages from being withheld until a pre-deprivation hearing occurred, damages for lost wages and to have Claps removed from office. See Complaint (d/e 1). The Defendants sought to withhold $24,105.03 from Sottoriva's pay because they claimed he had been overpaid by that amount. However, since the Defendants had not fully afforded Sottoriva due process when determining the amount he owed, the Court ruled that the Defendants could only recoup $17,982.47 of the $24,105.03 debt. See Opinion dated March 26, 2008. (Scott, J.) (d/e 52). The validity of the remaining $6,122.56 debt had to be proven. Id. Thus, the Court enjoined the Defendants from withholding the $6,122.56 until due process was satisfied. Id. The Court denied Sottoriva's attempt to remove Claps from office. Id.
The Court entered final judgment on May 28, 2008. See Judgment in a Civil Case (d/e 60). On June 11, 2008, Sottoriva's counsel filed a $47,878.55 fee petition with this Court pursuant to 42 U.S.C. § 1988. See Plaintiff's Motion for Attorneys Fees and Costs (d/e 61). The Court only awarded $14,114.27. See Amended Judgment in a Civil Case dated January 28, 2009 (d/e 79). Sottoriva appealed and the Seventh Circuit reversed and remanded for the Court to elaborate the basis for the $14,114.27 fee award. See Sottoriva v. Claps, 617 F.3d 971, 976-77 (7th Cir. 2010) (hereinafter Sottoriva I).
On remand, this Court applied the relevant factors for assessing a fee award and again determined that Sottoriva's counsel was entitled to $14,114.27. See Second Amended Judgment dated November 24, 2010 (d/e 94). The Court reasoned that the fee was appropriate given that Sottoriva only succeeded on one of the three counts alleged in his Complaint -- and he had limited success on that one count. Id. After the Court issued the new $14,114.27 fee award, Sottoriva's counsel moved for $34,718.75 in additional attorneys' fees. See Supplemental Fee Motion dated December 6, 2010 (d/e 96). The $34,718.75 represents the fees, costs and expenses incurred during Sottoriva I.
The Defendants have objected. See Objection to Supplemental Fee Petition (d/e 103). Among other things, the Defendants contend additional fees are improper since Sottoriva was the appealing party; he obtained only a remand in Sottoriva I and no additional fees were awarded once the remand was concluded. See Objection to Supplemental Fee Petition, at pp. 11-12.
Subsequent to moving for the additional fees, Sottoriva's counsel appealed the Second Amended Judgment. See Notice of Appeal dated December 22, 2010 (d/e 98). The case is docketed as Sottoriva v. Claps, et al., No. 10-3937 (7th Cir. 2010) (hereinafter Sottoriva II) (d/e 102).
Section 1988 allows a party to seek fees when the party prevailed on some portion of the merits of its civil rights claim and if the court has entered final judgment. See Farrar v. Hobby, 506 U.S. 103, 116-18, 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992); see also, Fisher v. Kelly, 105 F.3d 350, 353 (7th Cir. 1997). Time spent litigating a fee application is typically compensable. See Bond v. Stanton, 630 F.2d 1231, 1235 (7th Cir. 1980). However, a district court may deny requests for "second-round" attorneys' fees if doing circumstances so justify. See Muscare v. Quinn, 680 F.2d 42 (7th Cir.1982).
In Muscare, a public employee sued his employer under 42 U.S.C. § 1983. The district court dismissed the employee's complaint, but the Seventh Circuit reversed that decision. The district court subsequently granted plaintiff some relief and awarded attorneys' fees. Defendant appealed the fee award and the Seventh Circuit reversed with directions to reduce the award. Thereafter, plaintiff sought additional fees for the time spent litigating his first fee petition. The frustrated district court denied the additional fees and ...