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Nelson v. Lis

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

March 28, 2017

LARRY G. NELSON, Plaintiff,


          REBECCA R. PALLMEYER United States District Judge.

         Larry 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.


         As 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)).

         “A 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.

         In 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 Cir. 1999)).

         Plaintiff 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.


         I. Rates

         A. Counsel's Experience

         Irene 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.

         James 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, 073.50.

         Attorney 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 her work[1]on the case, for a total of $1, 012.00.

         Finally, 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 $16, 412.50.

         B. Billing Rates of Other Attorneys / Other Fee Awards

         In 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.)

         Jeffrey 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 [69] (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.)

         Finally, 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. ΒΆ 9.) ...

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