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Vincent E. Blackwell and v. andrew Kalinowski

February 13, 2012


The opinion of the court was delivered by: Magistrate Judge Michael T. Mason

Memorandum Opinion and Order

Michael T. Mason, United States Magistrate Judge:

Before the Court is plaintiff Vincent E. Blackwell's ("plaintiff" or "Blackwell") Petition and Memorandum In Support of Petition for Attorneys' Fees and Non-Taxable Costs [140], to which the City of Chicago (the "City") and the individual defendants object [156]. Plaintiff is seeking to recover attorney's fees as the "prevailing party" pursuant to the Civil Rights Attorney's Fees Act, 42 U.S.C. § 1988. Also pending is Plaintiff's Motion For An Order Adding to the Attorney's Fee Petition Additional Time Spent on Researching, Preparing and Defending the Fee Petition and Bill of Costs [172]. For the reasons set forth below, we grant Blackwell's petition and motion in part.

I. Background

At approximately 3:00 a.m. on October 17, 2007, Blackwell was sitting in a vehicle that belonged to plaintiff Angela Ford ("Ford"), while Ford ran into a relative's home to use the restroom. According to the complaint, defendants Andrew Kalinowski and Pawel Ryszka, both officers with the Chicago Police Department, approached the vehicle and ordered Blackwell out of the car. The officers then proceeded to search Blackwell and search Ford's vehicle without permission or probable cause. Blackwell was handcuffed and arrested and Ford's vehicle was seized. Blackwell alleges that after he was taken to the police station, defendants wrongfully charged him with felony drug charges and traffic charges. Blackwell spent two months incarcerated before the charges against him were dropped.

Blackwell and Ford subsequently filed this lawsuit, asserting claims against the City, as well as the individual officers who were involved in the traffic stop and Blackwell's arrest. In their six count complaint, Blackwell and Ford asserted claims for false arrest, malicious prosecution, unconstitutional search of a vehicle, unconstitutional seizure of a vehicle, due process violations and conversion. The District Court granted defendants' motion to dismiss in part, dismissing three of the six claims. Blackwell's claims for false arrest and malicious prosecution and Ford's claim for unlawful search of a vehicle proceeded to a jury trial. After a four day trial, a jury found in favor of Blackwell on both of his claims and against Ford on her unlawful search claim. The jury awarded Blackwell $5,000 in compensatory damages on his false arrest claim, and $0 in damages on his malicious prosecution claim.

After receiving a favorable verdict, Blackwell filed his petition for fees on September 17, 2011, requesting $224,319 in attorney's fees as the "prevailing party" pursuant to the Civil Rights Attorney's Fees Act, 42 U.S.C. § 1988. On December 23, 2011, Blackwell filed a motion to add to his fee petition additional attorney's fees incurred in preparing the fee petition. That motion seeks an additional $50,931.40 in attorney's fees, bringing the total amount sought to $275,250.40. For the reasons set forth below, we grant plaintiff's fee petition and motion in part, and award him $107,911,13 in attorney's fees.

II. Discussion

Generally, under the American Rule, a party must pay its own attorney's fees and expenses unless there is express statutory authorization to the contrary. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975); see also Perdue v. Kenny, --- U.S. ----, 130 S.Ct. 1662, 1671 (2010) (citing Hensley v. Eckerkart, 461 U.S. 424, 429 (1983)). Pursuant to 42 U.S.C. § 1988, the Court may award the "prevailing party" in certain civil rights actions "a reasonable attorney's fee as part of the costs." The purpose of § 1988 is to "ensure effective access to the judicial process for persons with civil rights grievances." Hensley, 461 U.S. at 429 (quoting H.R. Rep. No. 94-558, p. 1 (1976)). A "reasonable fee" is determined by the facts of the case, using the following factors: the time and labor required; the novelty and difficulty of the questions; the skill required to perform the legal service properly; the preclusion of employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the "undesirability" of the case; the nature and length of the professional relationship with the client; and awards in similar cases. Hensley, 461 U.S. at 430 n.4.

In his petition, Blackwell seeks to recover fees for two attorneys, Irene Dymkar and Jim Bowers, and one paralegal, Chantelle Hill. He asserts that he is entitled to $494 per hour for Ms. Dymkar's time (which amounted to 383.8 hours for litigating the merits of the case and 103.1 hours for the preparation of the fee petition), $494 per hour for Mr. Bowers'time (58.7 hours), and $125 per hour for Ms. Hill's time (42.4 hours). Defendants agree that Blackwell is entitled to fees as a "prevailing party" under § 1988, but they object to the amount sought. In particular, defendants dispute the reasonableness of the hourly rates listed in the fee petition, as well as the number of hours expended on the case. We address each of defendants' arguments below.

A. Reasonable Hourly Rate for Attorneys Ms. Dymkar and Mr. Bowers

In order to determine a reasonable fee, we use the lodestar method, "multiplying the number of hours reasonably expended on the a reasonable hourly rate." Pickett v. Sheridan Health Care Ctr, 664 F.3d 632, 639 (7th Cir. 2011) (citing Hensley, 461 U.S. at 433). The party requesting fees bears the burden of establishing its entitlement to an award and documenting the appropriate hours expended and hourly rates. Hensley, 461 F.3d at 433. "There is a strong presumption that the lodestar calculation yields a reasonable attorneys' fee award." Pickett, 664 F.3d at 639. Once the court has established the lodestar, "the court may adjust it to account for factors not subsumed by the lodestar calculation." Id. at 640.

Defendants first argue that plaintiff is not entitled to recover an hourly rate of $494 for each of his attorneys because this rate is not reasonable given Ms. Dymkar and Mr. Bowers' experience, skill and reputation. In order to determine a reasonable hourly rate, we look at "the market rate for the services rendered." Id. The market rate is the "rate that lawyers of similar ability and experience in their community normally charge their paying clients for the type of work in question." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999); Williams v. Z.D. Masonry, Corp., No. 07 C 6207, 2009 WL 383614, at *1 (N.D. Ill. Feb. 17, 2009). The attorney's actual billing rate for comparable work is "presumptively appropriate" to use as the market rate. Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003). The next best evidence of an attorney's market rate is "evidence of rates similarly experienced attorneys in the community charge paying clients for similar work and evidence of fee awards the attorney has received in similar cases." Spegon, 175 F.3d at 555. Of these two alternatives, the Seventh Circuit has indicated "a preference for third party affidavits that attest to the billing rates of comparable attorneys." Pickett, 664 F.3d at 640.

Here, Blackwell is seeking an hourly rate of $494 for his attorneys, and in support of this rate, he submitted the affidavits of Ms. Dymkar and Mr. Bowers. In these affidavits, Ms. Dymkar and Mr. Bowers explain their education, experience, and accomplishments, and attest that the rate sought is an appropriate billing rate for this civil rights case. (See Pl.'s Ex. 22-23.) Neither reports that they have received this hourly rate in prior civil rights matters. "An attorney's own self-serving affidavit attesting to a market rate... is simply inadequate." Edwards v. Rogowski, No. 06 C 3110, 2009 WL 742871, at *4 (N.D. Ill. Mar. 18, 2009). Accordingly, the Court gives very little weight to Ms. Dymkar and Mr. Bowers' attestations that $494 is a reasonable rate for them.

Blackwell has also submitted the affidavits of a number of other Chicago attorneys, explaining their own experience and accomplishments. In some cases, these attorneys also attest to their own hourly rate, or state their belief that $494 is a reasonable rate for Ms. Dymkar and Mr. Bowers' work on this case. We find, however, that the attestations contained in these affidavits are not persuasive because Ms. Dymkar and Mr. Bowers do not share the experience, skill, success or reputation as many of these attorneys.

For example, Blackwell submitted the affidavit of attorney Jon Loevy. According to this affidavit, Mr. Loevy graduated in the top 1% of his class at Columbia Law School. He serves as an instructor at the University of Chicago law school, and he has received recognition from a number of legal publications. The Honorable James Holderman praised Mr. Loevy's advocacy skills in a 2003 decision, noting that his "overall performance ranks among the finest displays of courtroom work by a plaintiffs' lead trial several years." In his affidavit, Mr. Loevy states that he has won more than $100 million in jury verdicts, which includes twelve separate jury verdicts of $1 million or more. He has won 13 out of the last 16 cases he has argued before the federal appellate courts. Notably, Mr. Loevy states that multiple courts have approved his billing rate at just $425 an hour in contested fee petitions.

In contrast, Ms. Dymkar and Mr. Bowers do not possess the experience, skill, success, or reputation that Mr. Loevy has attained in his career. Although Ms. Dymkar graduated from law school in 1977, it appears that at the time of this trial Ms. Dymkar had practiced civil rights litigation for, at the most, eight years. Similarly, Mr. Bowers graduated from law school in 1977, but has only concentrated on civil rights cases for the past six years. With respect to their success in this field, Ms. Dymkar and Mr. Bowers state that they recently settled a jail death case for $1 million and that they recently won three jury trials in federal court. In addition to the $5,000 verdict in this case, Ms. Dymkar and Mr. Bowers obtained a $53,500 verdict in one case (Ragland v. Ortiz, 08- 6157) and a $60,000 verdict in the other (Swanigan v. Trotter, 07-4749). Although they won three jury trials in 2011, the City points out that Ms. Dymkar and Mr. Bowers have been unsuccessful in at least seven civil rights jury trials in recent years. And although Ms. Dymkar boasts that she has argued a First Amendment case before the Seventh Circuit, that appeal was unsuccessful. Thus, comparing this experience with that of Jon Loevy, it is clear to us that an hourly rate of $494 (considerably higher than Mr. Loevy's rate of $425) is not appropriate here.

The affidavits of the other attorneys submitted by Blackwell also lack the substance necessary to support Blackwell's proposed rate. Ken Flaxman, who has been practicing civil rights litigation for 30 years and has argued five cases before the United States Supreme Court, states that he has received the rate of $650 an hour as part of a settlement. He does not attest that he has been awarded this hourly rate by a Court. In any event, Ms. Dymkar and Mr. Bowers' experience, success and reputation do not compare to Mr. Flaxman's.

Similarly, the affidavits of Janine Hoft and Matthew Robison add little value to our analysis. They merely summarize their own experience and state their belief that $494 is a reasonable rate for Ms. Dymkar and Mr. Bowers, without actually stating their own billing rates. See Edwards, 2009 WL 742871, at *4 (affidavits were "not very useful" when they simply asserted that a proposed rate was reasonable based on the affiants' experience, without attesting to any fee awards they had received or rates they charged paying clients). Blackwell has also attached the affidavit of Edward Fox, who has been practicing civil rights litigation since 1986 and whose current rate is $400 an hour, and the affidavit of David Cerda, who was recently awarded fees at a rate of $425 an hour.

Both of these attorneys have more civil rights litigation experience than Ms. Dymkar and Mr. Bowers and, more importantly, neither submits that they have received Blackwell's proposed rate. Blackwell also submitted the affidavit of Amanda Antholt. Ms. Antholt has been practicing civil rights litigation for 9 years and serves as an adjunct law professor. She was recently awarded $325 an hour for her work. It is our opinion that Ms. Antholt's experience is most ...

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