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Rashad Swanigan v. Robert Trotter

September 14, 2012


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Rashad Swanigan ("Plaintiff") sued various members of the Chicago Police Department (collectively, "Defendants") for various claims pursuant to 42 U.S.C. § 1983 and Illinois state law. Plaintiff asserted nine claims in his amended complaint: federal claims asserting false arrest (Count I), unlawful detention (Count II), unlawful search and seizure (Count III), violation of due process (Count IV), and denial of access to counsel (Count V); and, four claims under Illinois law: intentional infliction of emotional distress (Count VI), malicious prosecution (Count VII-VIII), and conversion (Count IV).

On August 4, 2009, this Court granted summary judgment on liability in favor of Plaintiff against Defendants Michael F. Lynch, Kevin T. Mullane, Max J. Guarjardo and Joseph J. Porebski on the unlawful detention claim but denied Plaintiff summary judgment as to Defendant Frazier. This Court also granted summary judgment to the Defendants on all state law claims (Counts VI-IX) and on federal claims for search and seizure, violation of due process, and denial of access to counsel (Counts III-IV) and on the federal claim for false arrest (Count I). This Court amended the summary judgment ruling to allow the false arrest claim to proceed to trial only against Defendants Trotter, Muehlfelder, Montalvo and Kaupert.

On August 29, 2011, a jury trial began against Defendants Robert Trotter, Thomas Muehlfelder, and William Kaupert on the false arrest claim (the claim against Defendant Montalvo having been dismissed at the start of trial) and against Defendants William Woitowych, Janice Dillon, Kevin Anderson (none of whom moved for summary judgment) and Defendant Frazier on the unlawful detention claim. On August 30, 2011, the jury found against Plaintiff and in favor of Defendants Trotter, Muehlfelder and Kaupert on the false arrest claim. The jury found in favor of Plaintiff on the unlawful detention claim as to Defendants Woitowych, Dillon and Andersen, but not as to Defendant Frazier. Against the seven defendants found liable for unlawful detention, the jury awarded Plaintiff $60,000 in compensatory damages. The jury did not award any punitive damages.

Presently pending before the Court is Plaintiff's petition for attorneys' fees. Plaintiff seeks $841,765.68 in fees. This Court referred the present motion to Magistrate Judge Sidney I. Schenkier who issued a Report & Recommendation ("R&R"). Judge Schenkier recommended that the Plaintiff be awarded $332,755.15 in attorneys' fees, awarded prejudgment interest on the attorneys' fee award, with interest beginning on October 30, 2011, and denied an interim fee award. Plaintiff objects to the Report and Recommendation on four main grounds.

It bears noting before commencing analysis of the objections before this Court that the Court has already approved a Report and Recommendation of the same magistrate judge, Judge Schenkier, concerning the same Plaintiff's counsel and the same type of case (§1983 allegations against the City of Chicago), tried before this Court a few weeks before the trial of this case. Judge Schenkier wrote an incredibly thorough Report and Recommendation in the Ragland case ("Ragland R&R") that this Court adopted in its entirety by separate opinion. See Ragland v. Ortiz, 08-615 (R&R at Docket No. 187, Opinion adopting R&R at Docket No. 213) As the issues in this matter are nearly identical -indeed, the objections filed by Plaintiff's counsel are largely a verbatim copy of the objections filed in the Ragland case - this Court assumes familiarity with both Judge Schenkier's R&R in this case and the Ragland R&R, as well as with this Court's opinion adopting the Ragland recommendation.


Where a plaintiff prevails on a claim brought under 42 U.S.C. § 1983, that plaintiff is entitled to recover reasonable attorney's fees pursuant to 42 U.S.C. § 1988. See Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 632-3 (7th Cir. 2011). Plaintiff succeeded on one of his two Section 1983 claims. On his successful claim, Plaintiff succeeded against three of four defendants and received a compensatory damage award of $60,000.00. The jury declined to award punitive damages. Defendants do not dispute that Plaintiff prevailed or that Plaintiff is entitled to recover reasonable attorney's fees. The dispute lies in the determination of what constitutes that reasonable amount.

When calculating a reasonable attorney's fee award for a Section 1988 fee petition, the starting point is the "lodestar analysis." Pickett,664 F.3d at 639. This lodestar analysis requires a court to multiply the number of hours reasonably expended by plaintiff's attorneys by their reasonable hourly rates. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1999). In determining the appropriateness of this lodestar amount, the court may consider many factors, including the results obtained, the complexity of the legal issues and the experience and success of the attorneys. See Hensley, 461 U.S. at 433 (1983); Jaffe v. Richmond, 142 F.3d 409, 412-3. The party requesting the fee has the burden of proving its reasonableness, including the hourly rate and appropriate hours expended. See Hensley, 461 U.S. at 437. Once the lodestar calculation has been made, the party seeking a reduction in the lodestar bears the burden of demonstrating that the reduction is warranted. See Robinson v. City of Chicago, 489 F.3d 864 (7th Cir. 2007).

I. The Rate Determination

A reasonable hourly rate, as defined by the Seventh Circuit, is one that is "derived from the market rate for services rendered." Pickett, 664 F.3d at 640 (quoting Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003)). Where an attorney "maintains a contingent fee or public interest practice," and therefore does not have an established billing rate, plaintiff must provide contextual evidence for their requested rate in the form of the rates charged by lawyers in the community of "reasonably comparable skill, experience and reputation." People Who Care, 90 F.3d at 1310.

In Ragland v. Ortiz, Judge Schenkier recommended that the hourly rates for Mr. Dymkar, Mr. Bowers, and Ms. Hill be set at $330/hour, $310/hour, and $100/hour respectively. See Ragland R&R at 17, 19, 21. Judge Schenkier's analysis in Ragland was thorough, detailed and well-reasoned, and reached an appropriate conclusion that this Court adopted in its entirety. In the matter now before the Court, Plaintiff's counsel submitted nearly identical arguments and supporting materials, supporting the same proposed hourly rates, and Judge Schenkier recommended the same reduced hourly rates here as he did in Ragland. Plaintiff's counsel has now submitted nearly verbatim objections to Judge Schenkier's opinion in this matter as she did in Ragland.

With three opinions on the subject of Plaintiff's counsel's hourly rate now of record, this Court will not rehash the reasoning contained in those opinions a fourth time. For the reasons set forth in Judge Schenkier's opinion in Ragland, this Court's opinion in Ragland, and Judge Schenkier's opinion in this matter, the Court adopts Judge Schenkier's recommendation that Ms. ...

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