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Smith v. Altman

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

July 15, 2015

JOSEPH P. SMITH Plaintiff,
v.
CAPTAIN MARK ALTMAN, Defendant.

OPINION AND ORDER

SARA L. ELLIS, District Judge.

After a trial in October 2014, the jury returned a verdict in favor of Plaintiff Joseph P. Smith and against Defendant Captain Mark Altman on Smith's claim of excessive force under 42 U.S.C. § 1983. Judgment was entered for Smith on October 29, 2014. On November 25, 2014, Smith filed a Bill of Costs, seeking $29, 721.18 in costs, with that amount mainly comprised of printing, transcript, and expert witness fees. On February 27, 2015, Smith filed a Petition for Attorneys' Fees and Costs, requesting $581, 250.00 in attorneys' fees for pre-trial and trial work, and an additional amount of fees and costs for post-trial work [225]. Altman and the City of Chicago ("Defendants") filed objections to Smith's Petition on March 20, 2015, arguing that the total requested fees and costs should be reduced to $332, 314.20. Defendants also moved to strike certain exhibits to Smith's reply in support of his Petition [245], which is granted. For the reasons set forth below, the Court awards Smith $466, 682.10 in attorneys' fees and $12, 651.93 in costs.

LEGAL STANDARD

The Court may, in its discretion, award reasonable attorneys' fees as part of the costs to a prevailing party in a 42 U.S.C. § 1983 action. 42 U.S.C. § 1988(b). Expert witness fees may be included, at the Court's discretion, in the award of attorneys' fees. Id. § 1988(c). In deciding a reasonable award of attorneys' fees, the Court begins by calculating the lodestar amount. Johnson v. GDF, Inc., 668 F.3d 927, 929-30 (7th Cir. 2012). The lodestar amount is calculated by multiplying the hours reasonably expended by the plaintiff's attorneys by their reasonable hourly rates. Id. The Court may then adjust the lodestar amount depending on a variety of factors, including the degree of success, the novelty and difficulty of the issues, awards in similar cases, and the relationship between the lodestar amount and the damages awarded. Hensley v. Eckerhart, 461 U.S. 424, 430 n.3, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Moriarty v. Svec, 233 F.3d 955, 967-68 (7th Cir. 2000). "A plaintiff who achieves excellent results' should receive the entire lodestar, but where a plaintiff has achieved only partial or limited success, ' the lodestar may be an excessive amount.'" Montanez v. Simon, 755 F.3d 547, 556 (7th Cir. 2014) (quoting Hensley, 461 U.S. at 435-36).

Federal Rule of Civil Procedure 54(d) states that unless a federal statute, the Federal Rules, or the Court provide otherwise, costs should be allowed to the prevailing party. Pursuant to 28 U.S.C. § 1920, the Court may tax as costs certain fees, including fees for service of summons and subpoenas, fees for "transcripts necessarily obtained for use in the case, " and fees for "exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case." The prevailing party is presumptively entitled to costs. Beamon v. Marshall & Ilsley Trust Co., 411 F.3d 854, 864 (7th Cir. 2005). The prevailing party maintains the burden of establishing that the potentially recoverable costs incurred were reasonable and necessary. Trs. of Chi. Plastering Inst. Pension Trust v. Cork Plastering Co., 570 F.3d 890, 906 (7th Cir. 2009). If that burden is satisfied, the losing party bears the burden of showing that the costs are inappropriate. Beamon, 411 F.3d at 864. The Court enjoys "wide discretion in determining and awarding reasonable costs." Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 642 (7th Cir. 1991).

ANALYSIS

I. Attorneys' Fees

A. Defendants' Motion to Strike Certain Exhibits Attached to Smith's Reply

As an initial matter, Defendants move to strike Exhibits D and I attached to Smith's Reply to Defendants' Response to Plaintiff's Petition for Attorneys' Fees and Costs [244]. Because Smith's reply attaches evidence to which Defendants have not had an opportunity to respond and was not tendered during the Local Rule 54.3 process, that Motion is granted.

Smith filed his initial reply on March 27, 2015, along with a Motion for Leave to File Brief in Excess of Fifteen Pages because his reply was thirty-one pages long [240, 242]. That request was granted, but the Court limited the reply to twenty-five pages. Exhibit I of the initial reply consisted of two affidavits. Smith then filed his shortened reply on April 1, 2015 [244], and with that filing added an additional affidavit to Exhibit I. Exhibit D is titled "Revenue Detail Report from Adult & Pediatric Orthopedics S.C. for the Service Dates 01/01/2011-03/25/2015." Amended Exhibit I is comprised of three affidavits from Mr. Horwitz's clients, each of whom states: "I have paid Mr. Horwitz for representing me [/my son] in this matter. His billing rate was $500 per hour." Doc. 244-1.

Altman argues that Smith did not tender these documents during the Local Rule 54.3 meet and confer process and did not provide them before filing the reply and amended reply, and therefore, the Court should strike them. This district's rules require that the party moving for fees shall, if requested, provide the time and work records on which the motion will be based and provide representative business records to support their claimed hourly rates, in order to streamline the attorneys' fee process before the Court. N.D.Ill. L. R. 54.3(d). Smith's response to the motion offers no explanation why these documents were not produced to Altman per the Local Rules. See Doc. 254.

Similarly, Smith offers no excuse why these documents were included in the second reply but not attached to his initial submission of March 27, 2014.[1] Exhibit D is captioned a Revenue Detail Report with service dates of January 1, 2011 through March 25, 2015, but the last itemized entry is dated October 10, 2014. Doc. 242-4. The documents attached as Exhibit I were signed on March 26, 2015 (the day before Smith filed his original reply) and March 27, 2015 (the day he filed the original reply).

Smith argues that his reply does not raise any new arguments or new facts and therefore this late evidence should be considered. However, the billing records contained in Exhibit D and the client attestations in Exhibit I are new facts that Smith wishes the Court to consider when determining hourly rates and allowable costs. New arguments, facts, and exhibits offered in a party's reply do not allow the other side a fair opportunity to respond and therefore the Court must disregard them. See Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1295 n.7 (7th Cir. 1989) (refusing to consider argument made first in reply); Gold v. Wolpert, 876 F.2d 1327, 1331 n.6 (7th Cir. 1989) ("It is well-settled that new arguments cannot be made in reply. This goes for new facts too." (citation omitted)); Louisma v. Automated Fin., LLC, No. 11 CV 2104, 2011 WL 5105377, at *3 n.1 (N.D. Ill. Oct. 27, 2011) ("This practice of raising arguments and offering exhibits for the first time in a reply brief must be avoided so as to provide the non-moving party a fair opportunity to file a comprehensive response."). Smith cites an unpublished Southern District of Illinois case to argue the new affidavits may be considered, but in that case the magistrate judge denied that motion to strike while specifically noting that the other party would have a chance to object to the newly attached evidence after the Report and Recommendation was filed. See United States ex rel. Liotine v. CDW-Gov't, Inc., No. 3:05-cv-00033-DRH-PMF, 2013 WL 2156567, at *1 n.2 (S.D. Ill. May 17, 2013). No such opportunity is available to Defendants here.

Exhibits D and I to Smith's Reply (Doc. 242-4 and Doc. 244-1) are stricken and will not be considered by the Court in its decision on Smith's Petition for Attorneys' Fees and Costs.

B. Calculating the Reasonable Hourly Rate

For pre-trial and trial work, Smith seeks $581, 250.00 in attorneys' fees, as follows:

Attorneys & Paralegal Hours Rate Total Blake Horwitz 290.65 $500.00 $145, 325.00 Uma Bansal 870.10 $350.00 $304, 535.00 Amanda Yarusso 194.80 $400.00 $77, 920.00 Jonathan Levy 145.45 $200.00 $29, 090.00 Jeff Grossich 109.80 $100.00 $10, 980.00 Sergio Moreno 134.00 $100.00 $13, 400.00 Total 17444.80 $581.250.00

An attorney's reasonable hourly rate is "derived from the market rate for the services rendered." Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011) (quoting Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003)). The Court will "presume that an attorney's actual billing rate for similar litigation is appropriate to use as the market rate." Id. "The best evidence of the market rate is the amount the attorney actually bills for similar work, but if that rate can't be determined, then the district court may rely on evidence of rates charged by similarly experienced attorneys in the community and evidence of rates set for the attorney in similar cases." Montanez, 755 F.3d at 553. Smith bears the burden of producing "satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community." Pickett, 664 F.3d at 640 (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). If Smith does not meet his initial burden, the Court may make its own determination of a reasonable rate. Id. If Smith meets his burden, the burden then shifts to Defendants to offer evidence to show "a good reason why a lower rate is essential." Id. (quoting People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1313 (7th Cir. 1996)). Once the Court has determined the lodestar amount, it may adjust that amount based on factors "not subsumed by the lodestar calculation." Id.

1. Blake Horwitz

Mr. Horwitz requests a fee of $500.00 an hour, citing his experience and success in civil rights litigation. Mr. Horwitz supports this rate by citing to: itemized billing records from state and federal cases from 2013-2015 (Doc. 262); his own affidavit stating that he currently bills clients at $500.00 an hour and was awarded $400 an hour in 2006 and 2008 and $425.00 an hour in 2012, 2013, and 2014 (Doc. 225-1 at 27-28); the affidavits of two civil rights litigators attesting to the reasonableness of the requested rate (Doc. 225-1 at 31, 34); and the fees award by Judge Shah in Ferguson v. George, No. 13 C 6609, Doc. 84 (N.D. Ill. Nov. 17, 2014). Defendants respond that Mr. Horwitz's awarded rate should be $425.00 per hour.

Considering the affidavits first, Mr. Horwitz's statement standing alone is not enough to establish the market rate. See Harper v. City of Chi. Heights, 223 F.3d 593, 604 (7th Cir. 2000) ("[A]n attorney's self-serving affidavit alone cannot establish the market rate for that attorney's services...."). Similarly, Mr. Lipschultz and Mr. Kulis' affidavits, to the extent that they state that Mr. Horwitz's requested rate is reasonable, are of little help to the Court, because affidavits that "merely opine" on another attorney's market rate rather than "provide evidence as to what the comparable attorneys charge for similar services" have little probative value. Pickett, 664 F.3d at 647. However, these affidavits, particularly Mr. Kulis', show what attorneys with comparable civil rights experience charge for similar cases. Mr. Horwitz has been practicing law for twenty-seven years and has specialized in civil rights litigation for twenty-four years. Mr. Lipschultz bills $335.00 per hour for civil rights cases after fourteen years of practice. Mr. Kulis has been practicing law seven years longer than Mr. Horwitz and had a $475.00 per hour rate approved in 2011. These affidavits point to a market rate between $335.00 and $475.00 per hour for civil rights litigators with between fourteen and thirty-four years' experience.

Mr. Horwitz also relies on the Laffey Matrix, adjusted upward for the Chicago market, to justify his requested $500.00 rate. The Seventh Circuit has "expressed some skepticism about applying the Laffey Matrix outside Washington, D.C." and leaves it to the trial court's discretion whether the matrix is useful for a particular case. Montanez, 755 F.3d at 554. The adjusted Laffey Matrix rates for attorneys with eleven to nineteen years' experience ($478.00/hour) and twenty-plus years' experience ($541.00/hour) are well above the rates established by the affidavits submitted by Mr. Horwitz ($335.00/hour for fourteen years' experience and $475.00/hour for thirty-four years' experience). The Court, already hesitant to use as a comparator something for which the Seventh Circuit has expressed skepticism, finds that the Matrix is not a useful measure where it is so out of sync with the market rate shown in the third-party affidavits. See Pickett, 664 F.3d at 640 (calling third-party affidavits "that attest to the billing rates of comparable attorneys" the "next best evidence" of an attorney's market rate when the attorney uses contingent fee agreements and the hourly rate cannot be easily determined).

Mr. Horwitz also attaches billing records from several cases, including state criminal cases, state tort cases, one federal civil rights case, and one matter that involved both a federal civil rights case (that had proceeded to the amended complaint stage) and a state tort case. Doc. 262. Defendants object to these bills as unsubstantiated and not proof that Mr. Horwitz charged his clients the amounts listed or that his clients actually paid that amount. Defendants also complain that one-third of the billing records were not produced during the meet and confer process. Defendants do not identify which specific records were not disclosed and do not move to strike any particular parts of this exhibit, therefore the Court will consider the billing records.

The Seventh Circuit has directed district courts to "presume that an attorney's actual billing rate for similar litigation is appropriate to use as the market rate, " however the applicant bears the burden to produce satisfactory evidence to show the requested rate is in line with prevailing market rates. Pickett, 664 F.3d at 640. Of the six bills submitted by Mr. Horwitz in support of his requested $500.00/hour rate, only two of the matters are federal civil rights cases, and of those, one is a bill that blends a false arrest claim filed in state court and a civil rights claim filed in federal court. The closest comparator to this case is the federal civil rights case that has progressed to the second amended complaint stage. That case has involved discovery, including discovery motion practice, investigation, response to a motion to dismiss, hearing attendance, client communication, communication with opposing counsel, drafting an answer to a counterclaim, and drafting of pleadings. In that case, on-going for almost two years, Mr. Horwitz claims approximately 20 hours of work. It well may be that Mr. Horwitz would bill an additional approximately 270 hours of work to take that matter to trial, bringing this case in line with the almost 291 hours he claims for this case. With this bill, Mr. Horwitz has shown some evidence that his market rate for similar litigation is $500 per hour and with the collection of bills, he has shown that he has billed $500.00 per hour for his recent state and federal work.

However, Mr. Horwitz has not convinced the Court that $500.00 per hour is in line with market rates for federal civil rights litigation. See id. Mr. Horwitz's own affidavit attests that he has been awarded $400.00 per hour in 2006 and 2008, and $425.00 per hour in 2012, 2013, and 2014. The last award of $425 per hour was in November 2014 by Judge Shah in the Ferguson case, a § 1983 case that Mr. Horwitz uses to argue that because an attorney with nine years' experience was awarded $400.00 per hour, and although he himself was awarded only $425.00 per hour in that case, he should receive $500.00 per hour in this case. The Seventh Circuit has explained that "rates awarded in similar cases are clearly evidence of an attorney's market rate." People Who Care, 90 F.3d at 1312. That Mr. Horwitz was awarded $425.00 per hour in a civil rights case less than one year ago is strong evidence of his market rate. Indeed, that rate was for work done in 2013, and a significant amount of the work in this case was also performed in 2013. It would not be appropriate for this Court to award Mr. Horwitz a higher rate for similar work done in the same year. This rate has also been recently approved for Mr. Horwitz by other courts in this district. See Bronzino v. Sheldon, No. 09 C 1048, 2013 WL 1667911, at *3 (N.D. Ill. Apr. 17, 2013) ($425.00/hour requested) and Smith v. City of Chicago, No. 09 CV 4754, Doc. 229 (N.D. Ill. Jan. 12, 2012) ($425.00/hour requested). Likewise, the third-party attorney affidavits from other practitioners, as discussed above, point to a market rate of between $335.00 per hour and $475.00 per hour for civil rights litigators with between fourteen and thirty-four years' experience. Mr. Kulis had a rate of $475.00 approved by another Northern District court in 2011, but he also has an additional decade of civil rights practice experience. Although Mr. Lipschultz attests that his rate of $335.00 per hour was approved by a Northern District of Illinois court "several years ago and is likely higher today, " Doc. 225-1, p. 32 ¶ 11, that does not require a bump in Mr. Horwitz's rate by $75.00 per hour when his rate was so recently approved at $425.00 per hour.

The Court agrees with Defendants that Mr. Horwitz's market rate is shown to be $425.00 per hour.

2. Uma Bansal

Ms. Bansal requests an hourly rate of $350.00 per hour. In support of this rate, Ms. Bansal argues that she has eight years of experience, including bringing five cases to trial, and that she was the attorney who primarily prepared this case for trial. She cites a 2012 $285.00 per hour award in a police misconduct matter in this district and requests an increase to $350.00 per hour, citing generally her experience since that time working on complex litigation. In support she submits her own affidavit and the affidavit of Deidre Baumann, who attests that, having worked with Ms. Bansal, a rate of $350.00 per hour is fair and comparable to rates charged by similarly experienced civil rights attorneys. Mr. Lipschultz's affidavit also states that Ms. Bansal's requested $350.00 per hour rate is reasonable. Ms. Bansal's affidavit states that she bills her time at $350.00 in her own law practice and that the Horwitz Law Firm bills her time at $350.00 per hour. Ms. Bansal has not submitted any bills or documentation to verify this amount. She also cites the approved rate of $400.00 per hour in the Ferguson matter to another attorney with nine years' experience and the awards of $340.00 per hour to two attorneys with six years' experience in Entertainment Software Association v. Blagojevich, No. 05 C 4265, 2006 WL 3694851, at *2 (N.D. Ill. Aug. 9, 2006). Again, Ms. Bansal's own attestations and those of other attorneys to the reasonableness of her requested rate, without more, are of limited use to the Court. See Harper, 223 F.3d at 604; Pickett, 664 F.3d at 647.

Defendants argue that Ms. Bansal has only five years' experience in civil rights litigation, as her first years of practice were primarily in intellectual property law and as a litigation associate with an unspecified focus. The Court does look to the 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); Jimenez v. City of Chicago, No. 09 C 8081, 2012 WL 5512266, at *3 (N.D. Ill. Nov. 14, 2012) (looking to civil rights versus general litigation experience in determining fee rates). Reviewing Ms. Bansal's affidavit, it appears that she has five years of civil rights experience. As discussed above, the market rate as established by the affidavits submitted in support of Mr. Horwitz's requested rate is between $335.00 per hour and $475.00 per hour for civil rights litigators with between fourteen and thirty-four years' experience. Ms. Bansal was recently awarded a rate of $285.00 per hour. The Court finds this amount to be proportionally within the established market rate and reasonable for an attorney of her experience. See Golden v. World Sec. Agency, Inc., No. 10 CV 7673, 2014 WL 37829, at *3 (N.D. Ill. Jan. 6, 2014) (approving ...


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