United States District Court, N.D. Illinois, Eastern Division
JONATHAN MARTINEZ and RAQUEL SAUCEDO, individually and on behalf of all other similarly situated, Plaintiffs,
T-MOBILE LIMITED, A/KA WIRELESS VISION, ST. LOUIS, LLC; WIRELESS VISIONS HOLDINGS, LLC; MARK DENHA; OMAR AMMORI and SABER AMMORI, Defendants.
Charles P. Kocoras Judge
MEMORANDUM OPINION AND ORDER
E. COX, U.S. MAGISTRATE JUDGE
before the Court is Plaintiffs' petition for
attorneys' fees  pursuant to this Court's award
of sanctions against Defendants. Plaintiffs' counsel
seeks $12, 457.50 for fees associated with drafting the
Motion for Sanctions  that was granted by the Court.
Defendants have objected to the amount of fees that
Plaintiffs seek. For the reasons discussed herein, the
petition for attorneys' fees  is granted in part and
denied in part; the Court awards Mr. Glenn Dunn $5, 600.00 in
attorneys' fees, and Mr. Jeffrey Brown $2, 327.50 in
25, 2017, the Court held a discovery hearing, after which the
Court ordered the Defendants to perform searches using
certain terms and begin producing emails returned by those
searches. [Dkt. 54.] As of July 13, 2017, Defendants had
still not produced a single email, and Plaintiffs filed a
motion for sanctions  on that basis (among others).
Defendants contended that the search terms had returned too
many emails, and that it would be overly burdensome to review
them for production. The Court rejected Defendants'
arguments, noting that they had failed to raise the burden
argument at the May 25 conference, despite the fact that the
number of hits from the Plaintiffs' proposed search terms
was knowable at that time, and ruled that “the
defendants' failure to produce any e-mail from the search
terms that this Court ratified in its May 25, 2017 order is a
violation of the Court's discovery order, and sanctions
are appropriate.” (Dkt. 95 at 25:11-14.) The Court
ruled that the “appropriate sanctions” were to
pay Plaintiffs' attorneys' fees in preparing their
motion for sanctions. The Plaintiffs provided a fee petition
in connection with that order, seeking $12, 457.50 in fees
that are itemized as follows: 1) 16 hours at $550.00/hour for
attorney Glenn Dunn, and 2) $3, 657, 50 at $550.00/hour for
attorney Jeffrey Grant Brown. (Dkt. 92.)
contend that Plaintiffs' fee petition is not reasonable,
because: 1) Plaintiffs' motion for sanctions was only
partially successful; 2) Plaintiffs' counsel's
billing rate was not supported by a third-party affidavit;
and 3) much of the billing was for duplicative work,
consisting of “ping-ponging” the motion between
Messrs. Dunn and Brown. For the reasons discussed herein, the
Court rejects those arguments, but adjusts the billable
hourly rate downward for Messrs. Dunn and Brown to $350 per
as here, a party “fails to obey an order to provide or
permit discovery . . . the court must order the disobedient
party . . . to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
failure was substantially justified or other circumstances
make an award of expenses unjust.” Fed.R.Civ.P.
37(b)(2)(C). District courts have discretion to determine fee
awards, and certain guidelines aid courts in calculating
those fees, such as: (1) time and labor expended; (2) the
difficulty of the legal question; (3) the skill required by
the attorney; and (4) the experience of the
attorney. See People Who Care v. Rockford Bd. of
Educ., School Dist. No. 205, 90 F.3d 1307, 1310-11 (7th
Cir. 1996)(outlining twelve factors for determining
attorneys' fees). These guidelines are also applicable
here, where a court has awarded sanctions. See Hall v.
Forest River, Inc., 2008 WL 1774216, *1 (N.D. Ind. April
15, 2008)(citing People Who Care, 90 F.3d at
1310-11). The party applying for the fees bears the burden of
showing the appropriate hours expended and the hourly rate,
and “should exercise ‘billing judgment' with
respect to hours worked.” Hall, 2008 WL
1774216, *1 (citing Hensley, 461 U.S. at 437).
Counsel requesting fees should exclude hours that are
“excessive, redundant, or otherwise unnecessary, just
as a lawyer in private practice is obligated to exclude such
hours from his fee submission.” Hensley, 461
U.S. 424 at 434.
Partially Successful Motion for Sanctions.
have no persuaded the Court that the fee petition should be
adjusted because Plaintiffs only succeeded on a portion of
the issues raised in their motion for sanctions.
Defendants' response to the fee petition contains a long
string of citations, many of which are from districts and
circuits that are not binding on this Court, with very little
analysis of the cases or how they apply to this lawsuit.
Notably missing from this often redundant recitation of case
law was any discussion of a case where a court adjusted a fee
petition downwards because the movant's motion for
sanctions was not successful on all counts. Moreover,
Defendants' characterization of the Court's ruling is
incorrect. The vast majority of Plaintiffs' Motion for
Sanctions focused on Defendants' failure to produce any
email communications, and that is the basis on which the
Court based its ruling. Although Plaintiffs' motion
sought sanctions that were not proportionate to the
Defendants' conduct - such as dismissal of the case - the
Court ultimately agreed with the primary argument posited by
the Plaintiffs. In short, the Court does not believe that
Plaintiffs' fee petition should be discounted because
their motion for sanctions was only partially successful.
Lack of Third Party Affidavits in Support on Fee
the Court reduces the Plaintiffs' attorneys' billable
rate as discussed below, third party affidavits are not
required to prove an attorney's billable rate. When
determining an attorney's billable rate, the best
evidence is the actual billing rate that the attorney uses
for comparable work. Uphoff v. Elegant Bath, Ltd.,
176 F.3d 399, 407 (7th Cir. 1999). However, where
the court cannot determine the actual billing rate
(e.g., when the attorney works on a contingent fee
basis), the district court should look to the “next
best evidence, ” including evidence of rates other
attorneys in the relevant market charge for similar work and
“evidence of fee awards the attorney has received in
similar cases.” Id. Although the Seventh
Circuit has expressed a preference for third party
affidavits, it is by no means a requirement. See Pickett
v. Sheridan Health Center, 664 F.3d 632, 640
(7th Cir. 2011). The fee applicant bears the
burden of showing that the requested rates are reasonable;
however, “[i]f a fee applicant does not satisfy its
burden, the district court has the authority to make its own
determination of a reasonable rate.” Id.
(citing Uphoff, 76 F.3d at 409).
of Plaintiffs' attorneys in this case has provided
sufficient evidence to support their requested billable
rates. Glenn Dunn seeks a rate of $550 per hour. He has not
provided any evidence that suggests that this is the amount
he receives when he bills his clients on an hourly basis. He
has not provided any third party affidavits that support his
hourly rate. He claims that he was awarded a billable
rate of $500 in Las v. ABM Industries, Inc., No.
11-cv-5644 (N.D. Ill.). However, the Court has reviewed the
filings in that case and does not believe that it supports
any such rate. The order cited by Mr. Dunn makes no mention
of billable rates whatsoever, and the affidavit that Mr. Dunn
submitted in that case only states that Mr. Dunn
“executed a fee arrangement with Named Plaintiffs that
entitled Plaintiffs' Counsel to a reasonable percentage
of any recovery based on their good faith and reasonable
estimation of the value of that part of the recovery.”
(Las, Case No. 11-cv-5644, Dkt. 85-4 at ¶ 19.)
It is unclear to the Court how this case supports Mr.
Dunn's purported billable rate at all. As for Mr. Brown,
his attempts are even more threadbare. Mr. Brown also claims
his billing rate is $550. Like Mr. Dunn, Mr. Brown fails to
provide any evidence that he has ever billed this amount to a
client, and does not provide any third party affidavits. He
also fails to cite any case where the rate he seeks was
ratified by any court, in this district or otherwise.
such, it is up to the Court to determine the appropriate
billable rate. Unfortunately for the Court, the Defendants
have made no attempt to provide any evidence of what a
reasonable rate would be. Left with virtually no guidance
from the parties, the Court must turn to other cases in this
district to determine the reasonable rate for Plaintiffs'
attorneys. The Court has reviewed several cases in which
plaintiff's counsel sought attorneys' fees in FLSA
suits. The most recent and most similar example to this case
is Franks v. Mkm Oil, Inc., 2016 WL 861182, at *3-4
(N.D. Ill. March 7, 2016). In that case, an attorney who had
been practicing law since 2004 and who primarily worked on a
contingent basis in FLSA and other wage cases sought $350 per
hour. After a reasoned analysis, the court determined that
$330 per hour was the appropriate rate for the attorney.
Id. at *5. In this case, Mr. Dunn has slightly more
experience than the attorney in Franks (Mr. Dunn
graduated law school in 2001), and a year has elapsed since
that decision was rendered. As such, the Court believes that
a rate of $350 is reasonable for Mr. Dunn in this matter. Mr.
Brown has less experience in the Chicago market, but more
experience in the “contingent-fee class action ...