The opinion of the court was delivered by: Magistrate Judge Maria Valdez
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Supplemental Attorney's Fees and Costs [Doc. No. 121]. The parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, Defendant's Motion is granted.
Previously this Court awarded fees to Defendant based on the work its attorneys performed in the case up until August 23, 2010 and explained that there was "no doubt that the Defendant achieved 'some degree of success on the merits'*fn1 as [summary judgment was decided] in the Defendant's favor on all of the Plaintiff's claims." Mem. Op. & Order [Doc. No. 90, p. 2]. Additionally, this Court determined that an award of attorney's fees was warranted because Plaintiff's lawsuit was not substantially justified.*fn2 [Id. pp. 7-10]. This analysis remains sound. Defendant's instant motion seeks fees based upon work performed in the case after August 23, 2010. The work includes time spent complying with Local Rule 54.3, compelling the production of various settlement agreements, preparing the initial fee petition and corresponding memoranda, preparing a revised billing statement, moving to amend the Court's April 18, 2011 order, enforcing the initial fee award, responding to Plaintiff's motion to quash, responding to Plaintiff's motion to bar the instant motion, and preparing the instant motion.
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). The fee applicant has the burden to demonstrate to the Court that their attorneys' hourly rates and time expenditures are reasonable. See Hensley,461 U.S. at 437. "In determining the reasonable number of hours, [a] court should exclude hours that are 'excessive, redundant or otherwise unnecessary.'" Small v. Richard Wolf Med. Instruments Corp., 264 F.3d 702, 708 (7th Cir. 2001) (quoting Hensley, 461 U.S. at 434) quoted in Brown v. Patelco Credit Union, No. 09 C 5393, 2011 WL 4375865, at *2 (N.D. Ill. Sept. 20, 2011). A court "may adjust the fee award upward or downward, depending on a variety of factors," Brown, 2011 WL 4375865, at *2, including the time and labor required, the novelty and difficulty of the issues, the legal skill required, reputation of the attorneys, and awards in similar cases. See Hensley, 461 U.S. at 430 n.3.
"A request for attorney's fees should not result in a second major litigation." Id. at 437. However, in awarding fees, courts will not exclude fees incurred by a party in negotiating and litigating their claim to attorney's fees. Holmstrom v. Metropolitan Life Ins. Co., No. 07 C 6044, 2011 WL 2149353, at *8 (N.D. Ill. May 31, 2011). "The basic public policy underlying § 1132(g) of the Act, as expressed by the Senate Labor Committee, is to 'discourage delinquencies and simplify delinquency collection' with the intent of 'promoting the prompt payment of contributions and assisting plans in recovering the costs incurred in connection with delinquencies.' Iron Workers Mid-America Pension Fund v. Imperial Glass Structures, Inc., No. 92 C 6380, 1993 WL 372203, at *3 (N.D. Ill. Sept. 21, 1993) (quoting Staff of Senate Committee on Labor and Human Resources, 96th Cong. 2d Sess. S. 1076, the Multi-employer Pension Plan Amendments of 1980, Summary and Analysis of Consideration (Comm. Print 1980) at pp. 43-44). Thus, "an award of attorney's fees incurred in litigating fees would only promote the underlying public policy and intent of § 1132(g) of the Act." Id. In non-ERISA actions, fees incurred in time spent litigating claims to fees have commonly been granted as well. See, e.g., Bond v. Stanton, 630 F.2d 1231, 1235 (7th Cir. 1980) (awarding fees incurred in time spent litigating fees in an action arising under 42 U.S.C. § 1988).
Here, Plaintiff does not contest Defendant's hourly rates, and therefore the Court is primarily concerned with the amount of time that Defendant claims it spent on each billable task to determine the reasonableness of the hours reported. Defendant maintains that the supplemental fees sought are reasonable and fully compensable; Plaintiff argues that the hours submitted by Defendant are untimely sought, based on claims upon which Defendant did not prevail, based upon activity upon which Plaintiff had no control, and/or excessive.
Plaintiff argues that a substantial portion of the fees that Defendant is currently seeking--including the hours Defendant spent preparing its initial fee petition (and accompanying memoranda), and complying with Local Rule 54.3--could have been, but was not, sought in Defendant's initial fee petition filed on December 27, 2010 or Defendant's revised billing statement filed on April 8, 2011. Plaintiff claims that Defendant's failure to include the hours in the initial fee petition or revised billing statement yields the conclusion that fees for those hours should be denied.
Local Rule 54.3 defines "fee motion" as "a motion, complaint or any other pleading seeking only an award of attorney's fees and related nontaxable expenses."
L.R. 54.3(a)(1). In terms of timing, the rule states that "[u]nless the court's order includes a different schedule for such filing, the [fee] motion shall be filed in accordance with the provisions of this rule and shall be filed and served no later than 91 days after the entry of the judgment or settlement agreement on which the motion is founded." L.R. 54.3(b). Additionally, the rule provides that "[t]he movant shall provide the respondent with [time and work records] within 21 days of the judgment or settlement agreement upon which the motion is based." L.R. 54.3(d)(4). In its first motion for attorney's fees [Doc. No. 73], Defendant treated the Court's entry of summary judgment as the triggering event or the "entry of the judgment . . . on which the motion is founded." This is understandable, but it required that the motion establishing that Defendant was entitled to fees and the motion explaining precisely what fees were due be one and the same.
Ideally, in cases like this one where the "judgment" does not automatically entitle one party to fees, the party seeking such fees should move to establish that it is entitled to them after the entry of the relevant judgment. Then, the order granting that motion serves as the triggering event upon which the "fee motion" contemplated by Local Rule 54.3 is based. Had Defendant taken this approach, the content of its fee motion would have been more clerical than substantive, the length of its memoranda quite short and the work taken to prepare it quite limited. Furthermore, it would have been simple for Defendant to include the hours spent on the motion establishing that it was entitled to fees (and the motion's accompanying memoranda) in the materials Defendant provided to Plaintiff during the negotiations required by Local Rule 54.3(d). As it happened, however, Defendant's conflation of the two motions resulted in a rather lengthy and substantive motion that required a significant number of hours of work and Defendant's arguably hypertechnical compliance with Local Rule 54.3(d) kept Defendant from submitting hours that it had incurred after August 23, 2010.*fn3
Defendant's approach, followed to its logical end, all but guarantees that "litigation will be like a nest of Chinese boxes." Muscare v. Quinn, 680 F.2d 42, 44 (7th Cir. 1982). "The outside box is the litigation of the [merits]. Within it is the litigation over the fees incurred in the litigation over the merits. . . . Within the initial fee litigation will be another litigation . . . over the attorneys' fees incurred by [the party] in the initial fee litigation. And so on without necessary end." Id. That being said, the Muscare court did not hold that requests such as Defendant's are per se improper; the court merely explained that "the district court had discretion to deny the plaintiff's second fee request." Id. at 45. In these situations, the court's attention should be directed "to the question of the reasonableness of a second award in light of all the circumstances of the case." Id. at 44. Plaintiff provides no compelling reason as to why Defendant's approach was especially harmful in this case, and Defendant was forthright about its approach from the time it filed its first motion for fees: "Defendant also seeks an additional award of attorney's fees and ...