United States District Court, N.D. Illinois, Eastern Division
LARRY G. NELSON, Plaintiff,
RONALD LIS, ELIZABETH WILSON, RICHARD NOVOTNY, BRADLEY RUZAK, and CITY OF CHICAGO, Defendants.
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER United States District Judge.
Nelson, a Chicago resident and one-time candidate for a local
political office, was driving home from a campaign-related
meeting on February 11, 2008 when he was stopped by four
Chicago police officers in two squad cars. According to
Nelson, one officer pulled a gun out and pointed it at
Nelson, and another pulled Nelson out of the car and
handcuffed him. After the officers ran Nelson's plates
and name, they found the car was properly registered to him
and he had no warrants out for his arrest. Having found no
reason to hold Nelson, the officers released him. He filed
suit a year later against the officers and the City of
Chicago under 42 U.S.C § 1983 for violations of his
constitutional right to be free from unreasonable seizure, as
well as state-law theories of relief. A jury returned a
verdict for Defendants, but the Seventh Circuit reversed,
citing evidentiary errors. On remand, Defendants made an
offer of judgment in the amount of $40, 000, which Nelson
accepted. What remains is a dispute about attorneys'
fees. The Defendants agree that Nelson is entitled to an
award of fees, but have objected to the claimed hourly rates
and number of hours billed by Plaintiff's attorneys. As
explained here, the objections are sustained in part and
overruled in part.
noted, the parties agreed that Plaintiff's acceptance of
the offer of judgment makes him a “prevailing
party” for purpose of a fee award. In determining the
appropriate fee award, the court begins by calculating the
“lodestar, ” that is, the number of hours
reasonably expended on the case, multiplied by the reasonable
hourly rate for the attorney who spent them. Montanez v.
Simon, 755 F.3d 547, 553 (7th Cir. 2014) (citing
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639
(7th Cir. 2011)).
reasonable hourly rate is based on the local market rate for
the attorney's services.” Id. (citing
Pickett, 664 F.3d at 640). The reasonable hourly
rate for an attorney is the market rate for her services.
See Fogle v. William Chevrolet/Geo, Inc., 275 F.3d
613, 615 (7th Cir. 2001). “[A]n attorney's market
rate includes 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.” Spegon v. Catholic Bishop of
Chic., 175 F.3d 544, 555 (7th Cir. 1999) (citations
omitted). The Seventh Circuit has explained that an
attorney's actual billing rate is presumptively the best
measure of the market rate for her services. See People
Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310
(7th Cir. 1996) (citing Gusman v. Unisys Corp., 986
F.2d 1146, 1150 (7th Cir. 1993)). An attorney seeking fees
has the burden of proving her market rate, but once she does,
opposing counsel bears the burden of showing why the hourly
rate should be lower. Spegon, 175 F.3d at 554-55.
civil rights cases, where plaintiffs' attorneys are
primarily compensated through fee awards and in settlements,
there is rarely a market rate to reference other than the
rates of “similarly experienced attorneys in the
community and evidence of rates set for the attorney in
similar cases.” See id. The court considers
such evidence, but is free to discount the probative value of
rates that the attorney has secured as a result of compromise
rather than judicial decision. Id. at 554. If the
fee applicant fails to produce sufficient evidence to
establish a rate, the court may make its own determination of
a reasonable rate. Pickett, 664 F.3d at 640 (citing
Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 409 (7th
seeks compensation for the work of his three attorneys. For
Irene Dymkar, lead counsel, he seeks an award at a billing
rate of $495.00 per hour for 643.1 hours of work. James
Bowers, Ms. Dymkar's co-counsel, claims a rate of $495.00
per hour as well, for 115.3 hours. For Shamoyita DasGupta,
Ms. Dymkar's associate, Nelson seeks $230.00 per hour for
4.4 hours of work. Plaintiff also seeks $125.00 per hour for
the work of four paralegals who performed a total of 131
hours of work. Defendants challenge the claimed billing
rates, as well as the claimed number of hours worked. The
court addresses the hourly rates first, then turns to the
number of hours worked.
Dymkar, Plaintiff's primary trial and appellate counsel,
has been practicing law for 39 years. (Decl. of Irene Dymkar,
Ex. G. to Pl's Br. [238-7], at ¶ 1.) Since opening
her own practice in 2006, Ms. Dymkar has focused almost
exclusively on representing plaintiffs in civil rights cases
like this one. (Id. ¶ 12.) She has handled more
than 100 civil rights cases since 2003 (see Id.
¶ 13), and has substantial trial and appellate
experience. She began her career as an Assistant District
Attorney in Monroe County, New York, where she tried 25
felony cases to a jury, 75 misdemeanor cases to the bench or
to a jury (id. ¶ 6), and defended 30 appeals in
New York courts. (Id. ¶ 8.) She then opened a
private practice in New York, in which she provided criminal
defense and represented plaintiffs in civil litigation,
participating in “30-40 criminal jury trials and in
10-15 civil jury trials.” (Id. ¶¶
9-10.) Ms. Dymkar moved to Chicago in 2003 and has conducted
her own practice since 2006. (Id. ¶ 12.) She
reports that she has won six of her last nine trials, settled
two of the other three after hung juries, and is appealing
from a loss in the remaining case. (Id. ¶ 13.)
Ms. Dymkar requests a rate of $495 per hour, for 643.1 hours,
for a total of $318, 334.50.
Bowers, Ms. Dymkar's co-counsel at trial, has also been
practicing law for 39 years with varied experience. (Aff. of
James L. Bowers, Ex. K to Pl.'s Br. [238-11], at ¶
1.) Mr. Bowers began his career as counsel to a
freight-forwarding firm for two years, and then prosecuted
violations of the Occupational Health and Safety Act in
administrative hearings for five years. (Id.
¶¶ 4-5.) From 1984 until now, he has represented
plaintiffs in medical malpractice, products liability, and
personal injury cases, first with a small law firm
(id. ¶ 6), later as principal of his own firm
(id. ¶ 7), and, since 1999, as a solo
practitioner. (Id. ¶ 8.) In his solo practice,
he has added civil rights cases to his focus and, together
with Ms. Dymkar and with another attorney, James Fennerty, he
has tried eleven § 1983 cases to verdict since 2006.
(Id. ¶ 9). Mr. Bowers also claims a rate of
$495, for 115.3 hours on the case, for a total of $57,
Shamoyita DasGupta has worked with Ms. Dymkar and one other
attorney since being admitted to practice in November 2015.
(Decl. of Shamoyita DasGupta, Ex. M to Pl. Br [238-13], at
¶ 1, 4.) Ms. DasGupta does not yet have trial
experience, but has worked on more than twenty federal civil
rights cases and more than a dozen criminal cases in state
and federal courts. (Id. ¶¶ 5-6.)
Plaintiff requests a rate of $230 per hour for 4.4 hours of
the case, for a total of $1, 012.00.
four paralegals-Sarah Brandt, Chantelle Hill, Amy Kaliski,
and Daniel Regenscheit-collectively dedicated 131 hours to
the case at a claimed hourly rate of $125, for a total of
Billing Rates of Other Attorneys / Other Fee Awards
support of the rates claimed by his attorneys, Plaintiff has
submitted the affidavits of three other attorneys who
represent plaintiffs in civil rights litigation in Chicago:
Torreya Hamilton, Jeffrey Neslund, and Janine Hoft. Ms.
Hamilton is, like Ms. Dymkar, a sole proprietor with her own
civil rights practice that she has operated since 2006. (Aff.
of Torreya Hamilton [hereinafter “Hamilton
Aff.”], Ex. H to Pl.'s Br. [238-8], at ¶ 5.)
In her 12 years of practice experience, Ms. Hamilton has
handled 198 civil rights cases in state and federal court.
(See id. ¶ 6.) Ms. Hamilton who, like Ms.
Dymkar, began her practice as a state prosecutor
(id. ¶ 3), then worked briefly for the City of
Chicago Corporation Counsel, defending the City in §
1983 lawsuits. (Id. ¶ 4.) Ms. Hamilton asserts
that her own current hourly rate is $465.00. Judge
Leinenweber of this district awarded $450.00 per hour for Ms.
Hamilton's work in a civil rights case tried in 2014.
Baker v. Ghidotti, No. 11 C 4197, 2015 WL 1888004,
at *4 (N.D. Ill. Apr. 24, 2015). Ms. Hamilton works
frequently with Ms. Dymkar and believes Ms. Dymkar's
requested rate is reasonable. (Hamilton Aff. ¶ 11.)
Neslund has been practicing in personal injury, civil rights,
and criminal defense since late 2004. (Aff. of Jeffrey
Neslund, Ex. I to Pl.'s Br. [238-9], at 2.) Before
opening this practice, Mr. Neslund worked as Cook County
state's attorney for nearly ten years. (See Id.
at 1.) In his current practice, Mr. Neslund has tried at
least four cases to a verdict, and negotiated several
seven-figure settlements, including the suit brought by the
estate of Laquan McDonald against the City of Chicago.
(Id. at 2-3.) In 2014, Judge Marovich of this court
awarded fees for Mr. Neslund's work at the rate of $425
per hour. See Grayer v. Cerda, No. 12-cv-2665, slip
op. at 25  (N.D. Ill. Oct. 6, 2014). Mr. Neslund, too,
has worked with Ms. Dymkar and believes the rate she has
requested is reasonable. (Neslund Aff. at 4.)
Plaintiff has submitted an affidavit from Janine Hoft, an
attorney with the People's Law Office since 1985. (Decl.
of Janine L. H. Hoft, Ex. J to Pl.'s Br. [hereinafter
“Hoft Decl.”] [238-10], at ¶ 2.) Based on
her own experience, Ms. Hoft also believes Ms. Dymkar's
claimed hourly rate is reasonable. (Id. ¶ 9.)