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Montanez v. Chicago Police officers

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

March 18, 2013

ANDY MONTANEZ, Plaintiff,
v.
CHICAGO POLICE OFFICERS Fico (Star #6284), Simon (Star #16497), and THE CITY OF CHICAGO, Defendants

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[Copyrighted Material Omitted]

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For Andy Montanez, Plaintiff: Mary Johanna Grieb, LEAD ATTORNEY, April Dominique Preyar, Brendan Shiller, Shiller Preyar Law Offices, Chicago, IL; Barbara C. Long, Randall Vogt, P.C., Portland, OR.

For Fico, Star #6284, Simon, Star #16497, Chicago Police Officers, City of Chicago, Defendants: Scott J. Jebson, LEAD ATTORNEY, City of Chicago (30 N LS), Chicago, IL; Gail Lynne Reich, City of Chicago, Department of Law, Chicago, IL; Jordan E. Marsh, City of Chicago Office of the Corporation Counsel, Chicago, IL.

OPINION

SHEILA FINNEGAN, United States Magistrate Judge.

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MEMORANDUM OPINION AND ORDER

Plaintiff Andy Montanez filed suit under 42 U.S.C. § 1983 alleging that Officer Vincent Fico used excessive force against him in connection with an arrest on March 20, 2009, and that Officer Joseph Simon failed to intervene to prevent the use of excessive force. Following a 3 1/2-day trial, on June 15, 2012, the jury found in favor of Plaintiff on his excessive force claim and awarded him a total of $2,000 ($1,000 in compensatory damages and $1,000 in punitive damages). The jury found in favor of Defendant Simon on the failure to intervene claim.

Plaintiff now seeks to recover $426,379.69 in attorneys' fees and $1,824.99 in expenses under 42 U.S.C. § 1988, and $4,696.84 in costs pursuant to Fed.R.Civ.P. 54(d)(1) and 28 U.S.C. § 1920. Plaintiff also seeks an award of prejudgment interest on the attorneys' fees. Defendants, in turn, seek $19,936.34 in costs on behalf of Officer Simon. For the reasons set forth here, Plaintiff is awarded $109,503.86 in fees and expenses, plus prejudgment interest, and $3,055.04 in costs. Defendants' request for costs is denied.

DISCUSSION

In Section 1983 cases, a court has discretion to award " the prevailing party . . . a reasonable attorney's fee as part of the costs" pursuant to 42 U.S.C. § 1988. Walker v. Calumet City, Illinois, 565 F.3d 1031, 1033 (7th Cir. 2009). In addition, Federal Rule of Civil Procedure 54(d)(1)

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provides that " costs -- other than attorney's fees -- should be allowed to the prevailing party" unless " a court order provides otherwise." Defendants argue that Plaintiff's request for fees must be substantially reduced in this case because the attorney rates are too high, the hours expended are unreasonable, and Plaintiff achieved only limited success. Defendants also maintain that Plaintiff's cost award must be modified to exclude excessive deposition transcript charges and other improper expenses. Plaintiff defends his attorneys' hours and rates, and insists that his level of success was so unexpected as to warrant a 25% increase in his fee award. Plaintiff further argues that Defendants are not entitled to any costs in this case. The Court considers each argument below.

A. Reasonable Attorneys' Fees

In determining a reasonable attorneys' fee amount, the Court uses the lodestar method, which entails " multiplying the 'number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.'" Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). The lodestar amount may then be adjusted based on factors set forth in Hensley, but " [t]here is a strong presumption that the lodestar calculation yields a reasonable attorneys' fee award." Id.

1. Lodestar Amount

In his petition for fees, Plaintiff claims that his lodestar amount is $341,103.75. (Doc. 123, at 8). According to the attached time records, however, the lodestar amount calculates to $341,985, a difference of $881.25. Specifically, Plaintiff's attorneys, Brendan Shiller, April Preyar, Mary Grieb, Barbara Long, Laura Bautista, Jon Erickson and Michael Oppenheimer worked a total of 1,021.55 hours on the case, and paralegals " DM" (full name unknown) and Roberto Lopez (" RL" ) worked another 30 hours. (Doc. 123-1; Doc. 123-5). At the requested rates, the total fees break down as follows:

Attorney

Hours

Rate

Total

Shiller (2009-2010)

58

$400

$23,200

Shiller (2011)

61.75

$425

$26,243.75

Shiller (2012 through trial)

69.6

$450

$31,320.00

Shiller (2012 post trial)

22.2

$450

$9,990

211.55

$90,753.75

Preyar (2009-2010)

8.75

$400

$3,500

Preyar (2011)

11.75

$425

$4,993.75

Preyar (2012)

169.5

$450

$76,275

190

$84,768.75

Grieb (2010)

52.25

$225

$11,756.25

Grieb (2011)

192.75

$250

$48,187.50

Grieb (2012 through trial)

230.25

$275

$63,318.75

Grieb (2012 post trial)

56.75

$275

$15,606.25

532

$138,868.75

Long (2010)

70.5

$275

$19,387.50

Long (2011)

8.75

$300

$2,625

Long (2012)

0.25

$300

$75.00

79.5

$22,087.50

Bautista (2009)

3.25

$275

$893.75

Erickson (2009-2010)

1.5

$450

$675

Oppenheimer (2009-2010)

3.75

$450

$1,687.50

Total Attorney Time:

1,021.55

$339,735

Paralegal

DM

8.5

$75

$637.50

RL

21.5

$75

$1,612.50

Total Paralegal Time:

30

$2,250

Totals:

1,051.55

$341,985

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Defendants believe the lodestar amount is much lower because Plaintiff's attorneys are seeking excessive hourly rates and have expended an excessive number of hours in what they characterize as a simple Section 1983 case. According to Defendants, once the rates and hours are properly reduced, the lodestar totals only $93,999.75. (Doc. 144, at 11). The Court considers these objections below to determine an appropriate lodestar in this case. Since the Court cannot discern what accounts for the $881.25 difference in Plaintiff's stated lodestar calculation and the calculation reflected in the billing records, the resulting lodestar amount will then be reduced by an additional $881.25.

a. Hourly Rate

Defendants argue that Mr. Shiller, Ms. Preyar, Ms. Grieb and Ms. Long are all seeking excessive hourly rates for their time in this case. An attorneys' reasonable hourly rate is " derived from the market rate for the services rendered." Pickett, 664 F.3d at 640 (quoting Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003)). The court presumes that an attorney's " actual billing rate for similar litigation is appropriate to use as the market rate." Id. The " next best evidence" of a reasonable 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." Id. (quoting Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 555 (7th Cir. 1999)). The party seeking fees 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)). Once the fee applicant satisfies this burden, the other party must provide " a good reason why a lower rate is essential." Id. (quoting People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1313 (7th Cir. 1996)).

i. Brendan Shiller

Mr. Shiller is claiming an hourly rate of $400 for work done in 2009 and 2010, with $25 annual increases in 2011 (to $425) and 2012 (to $450). Plaintiff justifies these rates by noting that Mr. Shiller has practiced law for 9 years; he has been the lead attorney or second chair for " 21 jury trials, including six section 1983 jury trials in the Northern District of Illinois, including victories in three cases" ; he has conducted more than 200 bench trials or motion hearings; he has " at least one Section 1983 client that has paid an upfront retainer,

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agreeing to pay $450 an hour for initial services on [the] case" ; and he is currently being paid $500 an hour to negotiate an employment contract. (Doc. 123, at 18; Doc. 123-8, at 46).

Relying on similar evidence, the court in Richardson v. City of Chicago, No. 08 C 4824, 2012 WL 6185867 (N.D. Ill. Nov. 20, 2012), recently recommended that Mr. Shiller receive an hourly rate of $400. [WL] at *12. Plaintiff urges this Court to adjust that rate upward to account for the fact that in Richardson, Mr. Shiller only requested $400 per hour because he " was the third chair at trial in a case led by two very senior attorneys" -- Torreya Hamilton and D'Anthony Thedford. (Doc. 157 ¶ 4). Here, of course, Mr. Shiller did none of the trial work at all, so it is not clear why he should receive an even higher rate. In addition, the Richardson court based its fee recommendation in part on Mr. Shiller's representation that the City had agreed in December 2010 to " a fee total that incorporated an hourly rate of $400 an hour for Mr. Shiller." 2012 WL 6185867, at *12 (citing Rodriguez v. City of Chicago, No. 09 C 1913. In fact, it appears that the parties in Rodriguez merely agreed on a total monetary amount without considering specific hourly rates. (Doc. 161, at 2; Doc. 161-1). The settlement is thus not compelling evidence of Mr. Shiller's reasonable hourly rate. [1]

Plaintiff has augmented his submissions in this case with an affidavit from Anthony Burch of Burch and Associates, who " has been practicing federal civil rights law since 2010." (Doc. 123-12, Burch Aff., ¶ ¶ 1, 3). Mr. Burch attests that he has known Mr. Shiller since 2009, and that his requested hourly rates are reasonable given that Mr. Shiller is " among the best trial lawyers that [Mr. Burch] has witnessed." [2] ( Id. ¶ ¶ 4, 6, 8). Though Mr. Burch has first-hand knowledge of Mr. Shiller's skills, he fails to identify any civil rights cases that he has personally handled, or indicate what rate he received for them. Nor does he provide the specific rates awarded to other civil rights attorneys within the relevant community. See Pickett, 664 F.3d at 647 (criticizing third party affidavits that " merely opine on [the attorney's] market rate" without providing " evidence as to what the comparable attorneys charge for similar services." ). This is likely because Mr. Burch's law firm concentrates in criminal defense, personal injury, and family law as opposed to Section 1983 cases, and he thus refers " all possible police misconduct cases to Shiller Preyar." ( Id. ¶ ¶ 1, 7). On these facts, Mr. Burch's conclusory assertion regarding the reasonableness of Mr. Shiller's stated hourly rate is not instructive.

Plaintiff next attempts to justify paying Mr. Shiller $450 per hour by pointing to the Laffey Matrix, which is " a chart of hourly rates for attorneys and paralegals in the Washington, D.C. area that was prepared by the United States Attorney's Office for the District of Columbia to be used in fee-shifting cases." Pickett, 664 F.3d at 649. According to the Laffey Matrix, the market rate for attorneys who have been practicing as long as Mr. Shiller is more than $500 per hour. ( See http://www.laffeymatrix.com/see.html, last viewed on March 7, 2013). As the Pickett court noted, however, district courts in this Circuit have reached " divergent opinions"

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regarding the usefulness of the Laffey Matrix. 664 F.3d at 650 (citing cases). This Court, moreover, recently concluded that " the Laffey Matrix's use of years of practice as a proxy for experience and skill (and thus the market rate that is commanded by an attorney) becomes increasingly crude -- and decreasingly helpful -- in the 8 to 10 year, 11 to 19 year, and 20-plus year brackets." Sughayyer v. City of Chicago, No. 09 C 4350, 2012 WL 2359065, at *9 (N.D. Ill. June 20, 2012) (quoting Ragland v. Ortiz, No. 08 C 6157, *12 (N.D. Ill. Feb. 17, 2012)).

Here, though Mr. Shiller is only in his ninth year of practice, the Laffey Matrix reflects that he should be paid more than the rate received by the most highly experienced Section 1983 attorneys in this jurisdiction. In that regard, Jon Loevy, who has practiced law for 19 years and " leads what is fairly considered one of the premier Chicago-area law firms concentrating in plaintiffs section 1983 litigation," was recently awarded a rate of only $495 per hour. Jimenez v. City of Chicago, No. 09 C 8081, 2012 WL 5512266, at *2 (N.D. Ill. Nov. 14, 2012). On these facts, the Laffey Matrix is not a fair indicator of Mr. Shiller's reasonable hourly rate. See Elusta v. City of Chicago, 760 F.Supp.2d 792, 798 (N.D. Ill. 2010) (noting that the Laffey Matrix " has not been formally adopted in the Seventh Circuit, and its rates appear significantly higher than those typically awarded in this district." ).

As Defendants note, just a few years ago, Mr. Shiller claimed and received an hourly rate of $225. Edwards v. Rogowski, No. 06 C 3110, 2009 WL 742871, at *5 (N.D. Ill. Mar. 18, 2009). Plaintiff insists that this was " a compromise rate that was ultimately agreed to by both sides" in a case where Mr. Shiller served as " fourth-chair." (Doc. 149, at 11). The opinion, however, reflects only that the defendants did not challenge Mr. Shiller's " claimed hourly rate," 2009 WL 742871, at *5, and the billing records he submitted set his rate at $225 per hour. (Doc. 151-1). Mr. Shiller may now regret requesting such a low rate, but it is certainly relevant in assessing the reasonableness of his current petition.

Recognizing that some three or four years have passed since the Edwards decision, Defendants propose that Mr. Shiller now receive $235 per hour. (Doc. 144, at 6, 7). They derive this number from Sughayyer, a case where this Court was tasked with setting an appropriate hourly rate for attorneys Mark Parts and Joseph Lopez, both of whom had more than 20 years of experience. Another district court had awarded them each an hourly rate of $375 for work they performed in 2008, and this Court determined that they should receive $385 per hour for their work in 2011. 2012 WL 2359065, at *9, 11. The Court explained that even according to the Laffey Matrix, " billing rates largely stagnated between 2008 and 2010." [WL] at *9 n.7. Mr. Shiller has not been in practice nearly as long as the attorneys in Sughayyer, so the experience he has gained over the past three or four years is arguably more significant in his overall career. At the time of the Edwards decision, for example, Mr. Shiller had only tried one civil rights case, whereas now he has tried six. In the Court's view, $235 does not fairly reflect this increase in Mr. Shiller's experience.

The Court also declines to adopt Plaintiff's position that since Mr. Shiller " has been paid as much $450 an hour," this constitutes conclusive evidence of his appropriate rate. (Doc. 123, at 18; Doc. 123-8; Doc. 149, at 7-8). Most of the cases Plaintiff points to involved criminal defense and contract negotiation, not civil rights work. There is one case involving Section 1983 work, but the client there signed a contingency agreement. (Doc. 123, at 21; Doc. 123-8, at 46). [3] The Seventh

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Circuit has recognized " the difficulty of determining the hourly rate of an attorney who uses contingent fee agreements," and has thus advised district courts to rely instead on the " next best evidence" of an attorney's market rate, i.e., the rates charged by similarly experienced attorneys in the community for similar work. Pickett, 664 F.3d at 640.

As noted, Jon Loevy now commands $495 per hour for his work in Section 1983 cases, Jimenez, 2012 WL 5512266, at *2, but as recently as December 2011, he submitted an affidavit to this Court affirming that he was receiving just $425 per hour. Sughayyer, 2012 WL 2359065, at *9. Plaintiff claims that Mr. Shiller and his colleagues have been very successful, losing only 5 of their 133 Section 1983 jury trials (the firm also lost 8 cases on summary judgment motions or motions to dismiss, won 5 trials, and settled 63 cases). (Doc. 123, at 22-23). This level of success is not comparable to that of Mr. Loevy, nor does Mr. Shiller (or his co-counsel) have the same reputation or level of recognition within the legal community. Compare Wells v. City of Chicago, 925 F.Supp.2d 1036, 2013 WL 622942, at *4 (N.D. Ill. Feb. 20, 2013) (describing Jon Loevy as " 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." ); Blackwell v. Kalinowski, No. 08 C 7257, 2012 WL 469962, at *3 (N.D. Ill. Feb. 13, 2012) (describing Mr. Loevy's education, noting that he has been recognized by a number of legal publications, and discussing his significant trial successes including 12 separate jury verdicts of $1 million or more); Duran v. Town of Cicero, No. 01 C 6858, 2012 WL 1279903, at *20 n.14 (N.D. Ill. Apr. 16, 2012) (noting that Mr. Loevy's " success continues to the present day; he recently obtained a $25 million jury verdict in a § 1983 wrongful-conviction case." ). Yet Plaintiff claims that Mr. Shiller commands a rate that is only $45 lower than Mr. Loevy's current rate, and $25 higher than the maximum rate Mr. Loevy received well into 2012. See, e.g., Sandra T.E. v. Sperlik, No. 05 C 473, 2012 WL 1107845, at *2 (N.D. Ill. Apr. 1, 2012) (" Recently, Loevy has reported fees at an hourly rate of $395--$425." ). There is no support for such a finding.

Rather, this Court finds Mr. Shiller's experience more comparable to that of Mr. Parts. As set forth in Sughayyer, Mr. Parts was entitled to an hourly rate of $385 where he had only 10 years of civil rights experience and had conducted three Section 1983 trials. 2012 WL 2359065, at *9-11. Based on Mr. Shiller's level of experience, the $225 hourly rate he received in Edwards, and the rates awarded to comparable attorneys in Section 1983 cases, the Court finds a rate of $385 per hour reasonable for Mr. Shiller's legal work in this case.

ii. April Preyar

Like Mr. Shiller, Ms. Preyar is claiming an hourly rate of $400 for work done in 2009 and 2010, with $25 annual increases in 2011 (to $425) and 2012 (to $450). Ms. Preyar has been practicing law for 13 years, including 6 years as an Assistant Public Defender in Cook County, and 7 years in private practice. In the past 18 months or so, she has conducted 7 federal civil rights jury trials and 4 criminal jury trials. All told, she estimates she has had over one ...


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