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Paving, Inc. v. County of Peoria

United States District Court, Seventh Circuit

June 3, 2013

CONSOLIDATED PAVING, INC., an Illinois Corporation, Plaintiff,


JOE BILLY McDADE, Senior District Judge.

This matter is before the Court on Plaintiff's Motion for Fees and Costs (Doc. 45). In response to this Court's Order dated March 7, 2013 (Doc. 48), Defendant filed a brief stating its objections to the fee request (Doc. 49). Plaintiff then filed a brief in response (Doc. 50). For the reasons stated below, Plaintiff is awarded $73, 011.10 in attorneys' fees and costs.

The background of this case is laid out fully in the Order taking the present Motion under advisement. (Doc. 48 at 1-3). In that Order, the Court held that Plaintiff's Motion was timely, that Plaintiff was the prevailing party, and that it was therefore entitled to recover attorneys' fees. However, further briefing was necessary to determine the amount it would receive. As the Motion is now fully briefed, it is ready for determination.


Plaintiff seeks attorneys' fees and costs pursuant to 42 U.S.C. ยง 1988. Plaintiff originally requested fees in the amount of $88, 917.35, based on 246.5 hours of attorney work and 19.75 hours of legal assistant work. (Doc. 45-1 at 1-2). In the previous Order, the Court explained that fees for certain work performed would not be awarded: work preparing Plaintiff's briefs related to the Motion for Judgment on the Pleadings and work preparing the Petition for Fees. (Doc. 48 at 10-13). Plaintiff's counsel helpfully itemized this work in its Response brief, which indicates this already disallowed work totals 38.25 hours of attorney work and 3.25 hours of legal assistant work. Thus, Plaintiff's modified request, in light of the previous Order, is for an award of $75, 286.10, which is calculated based on 208.25 hours of attorney work, 16.5 hours of legal assistant work, and $1, 161.10 in costs. Defendant raises challenges to Plaintiff's attorneys' fees request, both to the hourly rate and to the number of hours. It also seeks a reduction based on the limited success it claims Plaintiff achieved.

In calculating an appropriate attorneys' fee award, a district court first determines the lodestar amount, which is the "number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A court then can adjust that amount based on a number of factors, including the results obtained by the prevailing party. Id. at 434.

I. Reasonable Rate

Plaintiff requests fees at the rate of $350 per hour for its attorneys, Mr. Zabek and Mr. Leiter, and $75 per hour for their legal assistant, Ms. Sutherland. Defendant argues that the hourly rates Plaintiff requests are unreasonably high, and that they should be reduced accordingly. It argues that $350 per hour is much higher than attorneys in the area charge for similar services.

The Seventh Circuit has repeatedly held that the presumptive market rate, which the court uses as equivalent to a reasonable rate, is the rate the party's attorneys actually charge for comparable work. See, e.g., Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir. 1999). Further, "the best evidence of whether attorney's fees are reasonable is whether a party has paid them." Cintas Corp. v. Perry, 517 F.3d 459, 469 (7th Cir. 2008). Once the moving party provides evidence showing the billing rate, "the burden is upon the defendant to present evidence establishing a good reason why a lower rate is essential.'" People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1313 (7th Cir. 1996) (quoting Gusman v. Unisys Corp., 986 F.2d 1146, 1151 (7th Cir. 1993)). For example, a court may deviate from the presumptive rate based on the attorney's experience. Id. at 1315.

Here, Plaintiff submits a copy of the fee agreement between it and its counsel, showing that it was billed by its attorneys at the rates it requests from the Court. (Doc. 50-1 at 1). Further, Plaintiff has already paid the attorneys' fees at those rates. (Doc. 50-1 at 3). Defendant, in opposing the submitted rates, provides exhibits showing lower rates it has paid to attorneys in the area, presumably for similar cases, though that is not stated. (Docs. 49-1, 49-2). It also points to the Court's previous findings that Plaintiff's counsel's work has been subpar.

The Court finds Plaintiff adequately showed the presumptive market rate by demonstrating it had actually paid the requested rate. Defendant did not meet its burden of showing a good reason why a lower rate is essential. Defendant may have paid a lower rate in other cases than Plaintiff has paid its attorneys in this case, but there could be many reasons for that. Further, problems with inadequate work were addressed by the Court's previous determination that certain work would be uncompensated in its entirety. Thus, the rate of $350 per hour for attorneys and $75 for the legal assistant, as the rate paid, is a reasonable rate in this case.

II. Reasonable Hours

To reach a reasonable number of hours expended on litigation, 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). Hours that would not be properly billed to a client are not appropriate for fee awards. Hensley, 461 U.S. at 434. Simply asserting that the hours were necessary and reasonable is insufficient to meet the moving party's burden of showing the hours were reasonable. Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 553 (7th Cir. 1999).

As noted above, Plaintiff requests attorneys' fees for 208.25 hours of attorney work and 16.5 hours of legal assistant work. It provides affidavits and various other documents detailing the tasks performed and time spent on those tasks. (Doc. 45-1 at 4-15). ...

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