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Wells v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

February 20, 2013

Ann Darlene WELLS, as representative of the estate of Donald L. Wells, deceased, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants.

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[Copyrighted Material Omitted]

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Donna Rizzuto, Scott C. Frost, David C. Van Dyke, Tiffany Leigh Carpenter, Howard and Howard Attorneys, PLLC, Robert Joseph Lane Robertson, Reyes and Bonoma, Chicago, IL, James R. Shinar, Howard & Howard Attorneys PLLC, Kalamazoo, MI, Mark William Peyser, Michael O. Fawaz, Michael Kell, Michael V. Kell, Howard and Howard Attorneys PLLC, Royal Oak, MI, for Plaintiff.

George John Yamin, Jr., Joseph M. Polick, Helen Catherine Gibbons, Liza Marie Franklin, Mary Anne V. Spillane, City of Chicago, Department of Law, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge.

Ann Darlene Wells (plaintiff), as representative of the estate of Donald L. Wells (Wells), sued the City of Chicago and a number of Chicago police officers and employees under 42 U.S.C. § 1983 for claims arising from his arrest, confinement, and death. In April 2012, a jury returned a verdict for plaintiff against the City and four of the defendant officers on plaintiff's unlawful detention claim. The jury awarded plaintiff $1 million in compensatory damages against all of the defendants found liable and a total of $150,500 in punitive damages against the four officers. The jury found for all defendants on plaintiff's claim relating to denial of medical care.

On September 16, 2012, following consideration of defendants' motions for judgment as a matter of law or for a new trial, the Court entered judgment as a matter of law in favor of the City on plaintiff's Monell claim concerning unlawful detention, finding the evidence insufficient to support that claim. The Court also vacated the punitive damage awards against the four officers, finding the evidence insufficient to support punitive damages. This left plaintiff's compensatory damage award of $1,000,000. The Court concluded that the award was excessive and ordered a remittitur, stating that it would grant a new trial on the issue of compensatory damages unless plaintiff accepted a reduced award of $250,000. See Wells v. City of Chicago, 896 F.Supp.2d 725 (N.D.Ill.2012).

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Plaintiff accepted the reduced award. The City then filed a statement that it would indemnify the four officers for the amount of the award. See docket entry 415 (Oct. 2, 2012). No appeal was filed following entry of the Court's revised judgment.

Plaintiff has petitioned for an award of attorney's fees and expenses pursuant to 42 U.S.C. § 1988. She requests attorney's fees of $4,037,367.85 and $475,119.80 in expenses. Plaintiff has also petitioned for costs pursuant to 28 U.S.C. § 1920. It is unclear to the Court the extent to which the costs that plaintiff seeks in her petition for costs overlap with the expenses sought in her fee petition.[1] In addition, the defendants who prevailed at trial have petitioned for costs pursuant to section 1920.

Plaintiff's fee petition and the original briefs supporting and opposing it were filed before the Court issued its September 16 decision on the post-trial motions. At the Court's request, the parties made supplemental submissions after the issuance of that decision.

Plaintiff's fee petition

The starting point for determination of a reasonable attorney's fee in a section 1983 case is the number of hours reasonably expended on the litigation, multiplied by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The fee applicant bears the burden of showing the reasonableness of the time requested as well as the hourly rates. Id. at 437, 103 S.Ct. 1933.

The figure derived from multiplying the hours reasonably expended by a reasonable hourly rate is referred to as the " lodestar." A court can adjust the lodestar based on twelve factors described in Hensley. Id. at 434 n. 9, 103 S.Ct. 1933. The twelve factors are:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the " undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.

Id. at 430 n. 3, 103 S.Ct. 1933. " However, ‘ many of these factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.’ " Anderson v. AB Painting and Sandblasting Inc., 578 F.3d 542, 544 (7th Cir.2009) (quoting Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. 1933).

1. Hourly rates

Three law firms were involved in representing plaintiff: Howard & Howard; Statman, Harris & Eyrich; and Robert Robertson. None of the attorneys has an established hourly rate that he or she charges to paying clients. Rather, all of them typically handle cases on a contingent fee basis, as they did in this case.

Plaintiff seeks hourly rates ranging from $242 to $499 for the twelve Howard attorneys; from $210 to $545 for the seven Statman attorneys; and $499 for Robertson.

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Defendants argue that these proposed rates are excessive. They contend that plaintiff has not supported a rate of more than $325 for any attorney, and they propose rates of $150 to $325.

A reasonable hourly rate is " one that is derived from the market rate for the services rendered." Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir.2011) (internal quotation marks omitted). The focus, as defendants argue, is " the prevailing market rate for lawyers engaged in the type of litigation in which the fee is being sought. " Cooper v. Casey, 97 F.3d 914, 920 (7th Cir.1996) (emphasis in original). See also Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir.1999).

If the attorney has an actual billing rate that he or she typically charges and obtains for similar litigation, that is presumptively his hourly rate. Pickett, 664 F.3d at 640. In some situations, however, the attorney does not have an established market rate, for example, because he or she typically uses contingent fee arrangements or relies on statutory fee awards. When (as here) that is the case, a court should rely on the " next best evidence" of the attorney's market rate, namely " 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." Id. (internal quotation marks omitted).

" The fee applicant bears the burden of ‘ produc[ing] satisfactory evidence— in addition to the attorney's own affidavits— that the requested rates are in line with those prevailing in the community.’ " Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). If the applicant satisfies this burden, then the opposing party has the burden to offer evidence " that sets forth a good reason why a lower rate is essential." Id. (internal quotation marks omitted).

Plaintiff derives her proposed rates largely from the so-called " Laffey Matrix." The Laffey Matrix is a framework used by the United States Attorney's Office for the District of Columbia to determine reasonable hourly rates in fee-shifting cases. See http:// www. justice. gov/ usao/ dc/ divisions/ Laffey Matrix 2003-2013.pdf (last visited Feb. 19, 2013). The Seventh Circuit has not directly addressed the viability of the Laffey Matrix as a measure of reasonable hourly rates. As that court recently noted, however, in a case in which a district court had relied on the Matrix,

[n]o circuit outside the D.C. Circuit has formally adopted the Laffey Matrix, and few have even commented on it. While some circuits have applied the Laffey Matrix, other circuits have expressed concerns about the Matrix's utility outside its circuit of origin.... The district courts [in this circuit] that have considered the Laffey Matrix have viewed it with differing levels of praise and skepticism.... The Laffey Matrix is not without its critics.... Even the D.C. Circuit has referred to the Matrix as " crude" and has recommended that plaintiffs provide affidavits, surveys, and past fee awards to enable the district court to refine the Matrix for the particular attorney.

Pickett, 664 F.3d at 649-50 (internal quotation marks and citations omitted). Given these concerns and the Seventh Circuit's expressed preference for other, more direct measures of reasonable hourly rates, the Court does not find it appropriate to rely on the Laffey Matrix as evidence supporting plaintiff's proposed hourly rates.

Beyond the Laffey Matrix and affidavits by two of the petitioning attorneys, plaintiff has offered only scant support for her claimed hourly rates. She has provided an affidavit from plaintiff's civil rights attorney Jeffrey Granich. Mr. Granich has

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over twenty years of litigation experience. His affidavit supporting plaintiff's proposed hourly rate is quite conclusory: it says that he is familiar with the hourly rates charged by other Chicago attorneys with similar training and experience and that " [t]o my knowledge, the rates that Plaintiff seeks ... are very reasonable rates as compared to other similarly experienced attorneys in Chicago, Illinois for similar services provided by attorneys and paralegals with similar levels of experience and handling matters of the size and complexity of this case." Pl.'s Mot., Ex. 4 ¶ 15. The Court finds that Mr. Granich's affidavit lacks support for his conclusion that the requested rates are reasonable and thus declines to give it any significant weight. See Gibson v. City of Chicago, 873 F.Supp.2d 975, 985 (N.D.Ill.2012) (reaching a similar conclusion regarding a similar affidavit from Mr. Granich).

Plaintiff has offered little else beyond Mr. Granich's insufficient affidavit. She has provided evidence that in 2007, attorney Frost obtained a fee award at a " blended" rate of $354 per hour in a consumer fraud lawsuit in federal court in New York City. (In that case, Frost sought rates from $350-495 for himself.) That certainly does not support the $450 per hour rate that plaintiff seeks for Frost in this case. Plaintiff has also offered some evidence regarding hourly rates awarded to attorneys for the City of Chicago as part of a sanctions order, but that evidence likewise does not support the much higher rates that plaintiff requests for her attorneys in this case.

Another significant factor is plaintiff's counsels' relative lack of experience litigating cases like this one. A number of the attorneys have a good deal of civil litigation and trial experience, but their experience in litigating civil rights or police misconduct cases was quite limited before their involvement in the present case. As the Court recently concluded in ruling on a fee petition in another police misconduct suit against the City of Chicago, an attorney's " work in non-civil rights litigation translates to something less than the equivalent amount of civil rights litigation experience; his learning curve on such cases likely is steeper than it would be for someone with greater experience handling them." Jimenez v. City of Chicago, No. 09 C 8081, 2012 WL 5512266, at *3 (N.D.Ill. Nov. 14, 2012).

In the Jimenez case, the Court approved an hourly rate of $495 for Jon Loevy, an attorney whose experience, skill, and record of success in representing plaintiffs in police misconduct cases place him at the apex of attorneys who practice in that field. With due respect to plaintiff's principal counsel in the present case, the Court does not believe that they merit hourly rates at or near the one the Court approved for Mr. Loevy. At a minimum, they have not supported such a contention.

In short, plaintiff has not shown that her attorneys' proposed hourly rates are in line with prevailing rates in the community for attorneys with similar experience performing similar work. She has not carried her burden in the way needed to shift to defendants the burden of showing plaintiff's requested rates are unreasonably high.

Given the paucity of the evidence that plaintiff has offered on this point, the Court has been left largely to its own devices in ascertaining reasonable hourly rates. The Court will use as a guidepost the analysis that it conducted in the Jimenez case. In Jimenez, the Court approved a rate of $425 per hour for a very skilled attorney who had about twenty-five years of litigation and trial experience, but little of it in civil rights ...


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