United States District Court, N.D. Illinois, Eastern Division
February 4, 2014
RONALD ANIBALLI, Plaintiff,
KANE COUNTY SHERIFF'S DEPARTMENT, GEORGE MICHAEL MARTIN, VILLAGE OF GILBERTS, and JIM DUDA, Defendants.
William B. Oberts, Esq., TRIBLER ORPET & MEYER, P.C., Chicago, Illinois.
DEFENDANTS, VILLAGE OF GILBERTS and JIM DUDA's MOTION FOR JUDGMENT
EDMOND E. CHANG, District Judge.
NOW COME Defendants, Village of Gilberts and Jim Duda, by their attorneys Tribler Orpett & Meyer, P.C., and seek judgment to be entered in the amount of $4, 005.51 in accordance with this Court's September 27, 2013 court order, and pursuant to Federal Rules of Civil Procedure 54 and 58. In support thereof, Defendants state as follows:
1. On September 27, 2013, this Court granted the Village of Gilberts and Jim Duda's Motion for Attorney's Fees and Costs. The Court ordered Plaintiff to pay $2, 360.00 in attorney's fees and $1, 645.51 in costs, for a total of $4, 005.51 ( See September 27, 2013 order attached as Exhibit A.)
2. In accordance with Local Rule 37.2, defense counsel has contacted Plaintiff's counsel on numerous occasions seeking payment by Plaintiff. ( See Group Exhibit B, which includes correspondence and/or e-mail communications with Plaintiff's counsel.)
3. Plaintiff previously testified that he was gainfully employed. Despite employment, Plaintiff has failed to pay any sum whatsoever in accordance with this Court's order.
4. Plaintiff also advised that he previously reached a monetary settlement with the Kane County Defendants and would pay Duda and the Village of Gilberts from those funds.
5. Despite repeated efforts to secure payment without court intervention, Plaintiff has not paid pursuant to this Court's September 27, 2013 order.
6. Defendants seek judgment in the amount of $4, 005.51 in accordance with this Court's September 27, 2013 order pursuant to Rules 54 and 58 of the Federal Rules of Civil Procedure.
7. Defendants also seek entry of an order by this Court seeking Plaintiff to show cause why he should not be held in contempt of court for failing to pay the amount awarded pursuant to this Court's order.
8. Defendants also seek reasonable attorney's fees and costs incurred based upon their repeated efforts to secure payment and/or compliance by Plaintiff with this Court's order.
WHEREFORE, Defendants, Village of Gilberts and Jim Duda, respectfully request this Honorable Court enter an order granting the following relief:
1. Judgment in the amount of $4, 005.51 against Plaintiff, Ronald Aniballi;
2. Entry of rule to show cause against Plaintiff;
3. Reasonable attorney's fees and costs incurred in repeated efforts to secure compliance with this court's September 27, 2013 order; and
4. Any further relief this Court deems fair and just.
In this civil-rights case, the Court previously granted in part and denied in part the Village of Gilberts and Jim Duda's motion for attorney's fees. R. 107. It takes a showing of bad faith to justify awarding fees to a prevailing defendant in a 42 U.S.C. § 1983 case, and the Court found that bad faith was proven as to three of the four claims brought by Plaintiff Ronald Aniballi. Id. Specifically, although Aniballi litigated the failure-to-intervene claim against Duda in good faith, the claim against Duda for deliberate indifference to medical needs was not litigated in good faith, nor was there a good-faith basis to litigate those two claims against the Village on a Monell -policy theory. Id. Aniballi did not even both to respond to the defendants' summary judgment motion on those three claims. Id. at 2-3.
A dispute remains over the amount of the fees that ought to be shifted. The Village and Duda totaled-up their fees and asked for two-thirds of the total, arguing that two-thirds was an appropriate proportion of bad-faith versus good-faith expenditure of fees. To Defendants' way of thinking, they could have asked for three-fourths of the total, because three out of the four claims were pursued in bad faith. The two-thirds figure is $21, 392.66.
There are two problems with this way of calculating the bottom-line. First, if it is possible to apportion the work done on a case between those claims that were sanctionable (or, here, the basis for fee shifting), then the court must try to do that. See Divance v. Krull Elec. Co., 319 F.3d 307, 315 (7th Cir. 2003). It is not always easy to do so, especially if the claims arise out of a common set of alleged facts. Defendants' attempt at apportionment here is to weigh each claim equally (or nearly equally) in terms of time expenditure. But that is not a sound estimate here. The Monell claims against the Village could not have taken equal time to defend as the non-frivolous failure-to-intervene claim against Duda. Indeed, the record evidence does not support a finding that the Monell claims took much time at all. The irony is that the claims were so frivolous that the Village did not labor hard to defend against them. This is not to excuse Aniballi's fruitless pursuit of the claims, but it does go to show that equal apportionment does not fit here. The deliberate indifference claim against Duda similarly could not reasonably have consumed equal time as the non-frivolous failure-to-intervene claim. On balance, the Court finds that a more fitting ratio (this is not an exact science, see Divane, 319 F.3d at 315; Golden v. Helen Sigman & Assocs., 611 F.3d 356, 366 (7th Cir. 2010)), is to premise the apportionment on half of the attorney's time on the non-frivolous claim, and half on the bad-faith claims.
The second problem with Defendants' calculation is that it asks for fees from the very start of the case's filing. But the Court noted in its prior order, R. 107, that Aniballi might have been able to cut-off the fees award if he had only heeded Defendants' warning letter, the letter sent right before Defendants embarked on summary judgment briefing. Before that, the parties were engaged in discovery, and it was possible that some evidence could be uncovered to support the claims (though, really, it is not clear if Plaintiff even tried to uncover anything on the Monell claims). In light of that possibility, the Court finds that the proper time period from which to award fees is the preparation of the warning letter, on March 1, 2011. The table below shows the entries (the descriptions are the Court's paraphrase from the fee invoices) for which fees will be awarded. The total number of hours is 29.5 hours, multiplied by the reasonable per-hour rate of $160, which is $4, 720. Half of that, based on the apportionment described above, is $2, 360.
As previously ordered, the entirety of the costs amount is shifted under Federal Rule of Civil Procedure 54(d), specifically, $1, 645.51.
Date Description Hours 03/01/11 letter to Plaintiff's counsel on why summary judgment will 0.90 be granted 03/05/11 prepare brief in support 3.40 prepare motion 1.30 03/07/11 examine 3 depositions for motion 4.20 03/08/11 more drafting of Argument section 1.40 03/13/11 more drafting of motion and brief 3.30
03/14/11 prepare 56.1 statement of facts 2.80 03/15/11 finish motion, brief, statement 2.60 prepare exhibits and exhibit list 0.60 05/20/11 examine Plaintiff's response to statement 0.50 examine Plaintiff's statement of facts 0.10 examine Plaintiff's response to motion 0.60 05/27/11 prepare response to statement of facts 2.60 prepare reply brief 3.40 05/30/11 continue preparing reply 1.30 continue preparing response to statement 0.50