United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge.
the Court are Plaintiff's petition for attorneys'
fees and costs, and in the alternative, for sanctions [72-1]
and Plaintiff's bill of costs . For the reasons
stated below, the Court awards Plaintiff $64, 462.50 in
attorneys' fees, plus prejudgment interest from August 6,
2016. The Court further awards Plaintiff $981.70 in taxable
costs and $986.70 in nontaxable costs. The Court denies
Plaintiff's request for sanctions. The parties are
directed to confer regarding the appropriate calculation of
prejudgment interest and submit a proposed order
incorporating that calculation along with the other amounts
stated above no later than December 20, 2017.
seeks $91, 225.00 in attorneys' fees and $2, 202.40 in
taxable and nontaxable costs pursuant to an accepted Rule 68
offer of judgment, which allowed judgment to be taken against
Defendants in favor of Plaintiff in the amount of $15, 001
plus reasonable attorneys' fees and costs. In the
alternative, Plaintiff also seeks to recover his
attorneys' fees as a sanction for Defendants' failure
to produce a relevant Tactical Response Report
(“TRR”) prior to June 2, 2016. Finally, Plaintiff
requests over $22, 000 in “fees on fees”-that is,
attorney time expended to litigate this fee dispute.
initially filed this § 1983 lawsuit pro se on
February 1, 2015 against Detective John Doe, Detective
Timothy O'Brien, and the City of Chicago. Plaintiff
alleged that on August 27, 2013-after Plaintiff was arrested
and charged with harassing a witness [74, at 4]-Detective
John Doe used excessive force on Plaintiff by slamming him
head-first into a wall. [1.] Plaintiff further alleged that
Detective Timothy O'Brien failed to
intervene. [1.] On May 14, 2015, the Court recruited
counsel to represent Plaintiff in this matter. [9.] Recruited
counsel filed an amended complaint  and a motion to
conduct expedited discovery to identify the unnamed defendant
before the expiration of the two-year statute of limitations
, which the Court granted. [17.]
then sought documents aimed at identifying the unnamed
detective. Specifically, Plaintiff requested files with the
event identification number RD HW368940/CB18731820, which was
the event identification number associated with the
harassment charges against Plaintiff. Plaintiff also
requested any “Tactical Response Reports and/or Officer
Battery Reports” regarding Plaintiff between August 26,
2013 to August 28, 2013, among other documents. [72-4.]
Defendants emailed Plaintiff on July 22, 2015, indicating
that they were able to locate the area file, but that
“the request for any TRRs came back negative.”
Plaintiff was not able to identify the unnamed defendant from
the documents produced by Defendants before the statute of
limitation expired, Plaintiff filed a second amended
complaint on August 26, 2015, naming 45 Chicago detectives
who were present and on-duty when the alleged incident
occurred. [31, at ¶1; 35.]
September 23, 2015, nearly a month after Plaintiff filed his
second amended complaint, the city produced a case incident
report that identified Detective Patrick Ford as the
detective involved in the incident with Plaintiff. Plaintiff
filed a third amended complaint on October 14, 2015
identifying Patrick Ford as the detective who allegedly used
excessive force against Plaintiff  and voluntarily
dismissed the other detectives named solely for the purpose
of preventing the statute of limitations from expiring while
Plaintiff continued to search for the detective involved in
the incident with Plaintiff .
parties continued discovery. Plaintiff served requests for
production on Ford, in which Plaintiff requested, among other
documents, “[a]ll documents created as a result of the
August 27, 2013 arrest of and use of force against Plaintiff,
including but not limited to arrest reports, general case
reports, Tactical Response Reports, Officer Battery Reports,
Injured on Duty Reports, use of force reports, lock-up
reports, case incident reports or any other documents.”
[72-20, at 5.] Defense counsel served its response to this
request on February 11, 2016, but did not produce the TRR
from the incident involving Ford until June 2, 2016.
Defendants' briefing indicates that the failure to
earlier produce the relevant TRR was due to a
misunderstanding regarding the event number assigned to the
TRR. Specifically, Defendants used the event number from the
assault charges against Plaintiff when they initially
searched for a TRR. Defendants attach a copy of the search
record from this initial search to their response brief.
[90-6.] When Plaintiff served additional discovery requests
in May of 2016, Defendants conducted a broader TRR search
that produced the TRR relating to the incident between Ford
and Plaintiff, which had a different event identifier.
[90-11.] Defendants produced the TRR on June 2, 2016.
7, 2016, Defendants sent Plaintiff a Rule 68 offer of
judgment-which Plaintiff accepted that day-“in the
amount of [$15, 001] plus reasonable attorney's fees and
costs as to Plaintiff accrued as of * * * June 7, 2016, in
amount to be determined by the Court.” [62-1, at
¶1.] On June 15, 2016, a little over a week after
Plaintiff accepted Defendants' offer of judgment,
Plaintiff's counsel wrote a letter to defense counsel
requesting $91, 225.00 in attorneys' fees and $2, 202.40
in costs. [72-23.] In that letter, Plaintiff asserted for the
first time that “the City knew that * * * Ford beat up
[Plaintiff] * * * but did everything in its power to keep
Ford's identity a secret, ” and indicating that
such conduct was sanctionable. [72-23, at 1.] The parties
exchanged further correspondence discussing Plaintiff's
allegation that Defendants engaged in sanctionable conduct
and also seeking to reach an agreement regarding the amount
of attorneys' fees and costs that should be awarded to
Plaintiff, as required by Local Rule 54.3(d).
respect to the attorneys' fees dispute, the parties were
unable to reach an agreement regarding (1) the applicability
of the Prison Litigation Reform Act, (2) the reasonable
hourly rate for Plaintiff's counsel, and (3) whether the
time and nature of Plaintiff's counsel's billing was
subject to objection. The parties also disagreed about the
amount of costs Plaintiff was entitled to recover pursuant to
the offer of judgment. As a result of these disputes,
Plaintiff filed the petition for attorneys' fees and
costs, and in the alternative, for sanctions  currently
pending before this court.
seeks $91, 225.00 in attorneys' fees and $2, 202.40 in
taxable and nontaxable costs. In the alternative, Plaintiff
asks that the Court award its attorneys' fees as a
sanction for Defendants' failure to produce the TRR
before June 2, 2016, claiming that “a large portion of
the attorney's fees accumulated would not have been
accumulated had Defendants produced [the] easily attainable
routine police report that they claimed for nearly a year did
not exist.” [72-1, at 1.] Plaintiff also requests over
$22, 000 in fees on fees.
Court begins by noting that a “request for
attorney's fees should not result in a second major
litigation.” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983). This is especially true in the context of
Rule 68 offers of judgment, which are designed “to
encourage settlement and avoid litigation.” Webb v.
James, 147 F.3d 617, 620 (7th Cir. 1998) (citing
Marek v. Chesny, 473 U.S. 1, 5 (1985)). In this
case, however, the parties filed nearly 50 exhibits and
submitted nearly 500 pages of documents in connection with
the fee petition pending before the Court. Despite these
extensive submissions, the Court found that the parties left
many issues undeveloped or underdeveloped  and requested
supplemental briefing on certain issues. [See 94.] The Court
recognizes that the fee petition pending before the Court
involves more complicated legal issues than the typical fee
petition. Still, many of the fee disputes in this case could
have been avoided had the parties not simply left it to the
Court to determine the amount of attorneys' fees and
costs Plaintiff is entitled to receive.
Attorneys' Fees Pursuant to the Offer of
to the merits of Plaintiff's fee petition, pursuant to
the offer of judgment, Plaintiff is entitled to
“reasonable attorney's fees and costs accrued as of
June 7, 2016, in an amount to be determined
by the Court.” [63, at 1.] Initially Defendants argued
that the Prison Reform Litigation Act (“PLRA”)
capped the amount of attorneys' fees Plaintiff could
recover in conjunction with the accepted offer of judgment.
[90, at 9-10.] After the Court requested supplemental
briefing, however, Defendants abandoned their argument that
the PLRA limits the amount of attorneys' fees Plaintiff
can recover. [95, at 2.]
starting point for determining Plaintiff's
“reasonable attorney's fees” is the lodestar,
which is the “the hours reasonably
expended multiplied by the reasonable hourly rate.”
Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir.
2012). The Court has an obligation to “exclude from
this initial fee calculation hours that were not
‘reasonably expended'” on the litigation.
Hensley, 461 U.S. at 434. However, the Court is
“not obligated to conduct a line-by-line review of the
bills to assess the charges for reasonableness.”
Rexam Beverage Can Co. v. Bolger, 620 F.3d 718, 738
(7th Cir. 2010). The party seeking the fee award bears the
burden of proving the reasonableness of the hours worked and
the hourly rates claimed. Id. at 433.
the lodestar is determined, the Court must determine whether
it is appropriate to adjust the lodestar. Sommerfield v.
City of Chicago, 863 F.3d 645, 650 (7th Cir. 2017). A
downward adjustment may be appropriate where a plaintiff
achieves “only partial or limited success.”
Montanez v. Simon, 755 F.3d 547, 556 (7th Cir. 2014)
(quoting Hensley, 461 U.S. at 434). On the other
hand, an upward adjustment may be appropriate where the
Plaintiff achieves “[e]xtraordinarily good
results.” Sommerfield, 863 F.3d at 650 (citing
Baker v. Lindgren, 856 F.3d 498, 503 (7th Cir.
2017)). If a district court elects to reduce a fee award, it
must “provide a ‘concise but clear explanation of
its reasons.'” Small v. Richard Wolf Med.
Instruments Corp., 264 F.3d 702, 708 (7th Cir. 2001)
(quoting Uphoff v. Elegant Bath, Ltd., 176 F.3d 399,
409 (7th Cir. 1999)). “In other words, the court cannot
simply ‘eyeball the fee request and cut it down by an
arbitrary percentage because it seemed excessive to the
court.'” Id. (quoting People Who Care
v. Rockford Bd. of Educ., 90 F.3d 1307, 1314 (7th Cir.
the Court determines that the lodestar is $64, 462.50. This
figure is presumptively reasonable, and the Court does not
find any basis for either an upward or downward adjustment.
Indeed, in their supplemental briefs, both parties agree that
an adjustment to the lodestar would be inappropriate. [95, at
7-8; 96, at 13.] Because Plaintiff is not entitled to fees on
fees, the Court awards Plaintiff $64, 462.50 in reasonable
first step in determining the lodestar is to assess the
reasonableness of the attorneys' hourly rates. “A
reasonable hourly rate is based on the local market rate for
the attorney's services.” Montanez, 755
F.3d at 553 (citing Pickett v. Sheridan Health Care
Ctr., 664 F.3d 632, 640 (7th Cir. 2011)). “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.” Id. (citing Johnson v.
GDF, Inc., 668 F.3d at 933). “The party seeking a
fee award bears the burden of establishing the market rate
for the work; if the lawyers fail to carry that burden, the
district court can independently determine the appropriate
Plaintiff seeks rates of $75 per hour for paralegals who
assisted on the matter, $550 per hour for attorney Brendan
Shiller, and $350 per hour for attorney Mary Grieb.
Defendants do not dispute the reasonableness of the $75 per
hour paralegal rate. However, Defendants do contest the $550
hourly rate for Mr. Shiller and the $350 hourly rate for Ms.
Grieb, arguing that the recoverable hourly rate for Mr.
Shiller and Ms. Grieb should be $385 per hour and $175 per
Brendan Shiller's Hourly Rate
fails to establish that $550 per hour is the market rate for
the work Mr. Shiller performed in this case. Plaintiff does
not submit an affidavit from Mr. Shiller discussing his
qualifications or the rate he charges for work on civil
rights cases. Other evidence submitted by Plaintiff does not
support Mr. Shiller claimed rate of $550 per hour.
begin, Plaintiff offers a collection of retainer agreements
involving markets other than civil rights cases. For example,
Plaintiff submits retainer agreements for matters involving
environmental law issues [72-17, at 84], contractual issues
[72-17, at 84], political campaigns [76-1, at 21], and
business license violations [72-17, at 64], among other
markets. Plaintiff has not offered any evidence establishing
that these markets are relevant for determining the
appropriate market rate for Mr. Shiller's work in this
case. The Court will therefore disregard these retainer
agreements. Montanez, 755 F.3d at 554 (holding that
the district court was free to disregard fee agreements
involving different markets); see also Moriarty v.
Svec, 233 F.3d 955, 966 (7th Cir. 2000) (“The
district courts discretion in determining what is a
reasonable attorney's fee applies to its determination of
what constitutes a market.”).
respect to the criminal retainer agreements submitted by
Plaintiff, Plaintiff offers the affidavit of Jared S.
Kosoglad, which represents that “attorneys' billing
rates in criminal defense and civil rights work are
similar” because “[t]he fields themselves often
overlap.” [72-16, at 4, ¶15.] The Court does not
find this conclusory representation persuasive evidence that
the market rate for criminal work is the same as the market
rate for civil rights work. The Court will therefore
disregard the criminal retainer agreements as well.
also submits a number of retainer agreements relating to
§ 1983 cases. But these agreements are structured as
contingency agreements, which are of little help in
determining the reasonableness of hourly rates charged by an
attorney. Pickett, 664 F.3d at 640 (recognizing
“the difficulty of determining the hourly rate of an
attorney who uses contingent fee agreements”);
Montanez, 755 F.3d at 554 (“The judge did not
abuse her discretion by giving little weight to [contingency]
agreements as evidence of market hourly rates for the
attorneys' services.”). Plaintiff asserts that
these agreements are not “strictly speaking,
contingency agreements.” [96, at 7.] Plaintiff admits,
however, that these agreements “have a functional
contingency element to them” and that “counsel
are not usually paid” under these agreements
“unless or until there is a settlement or
judgment.” [96, at 7.] Although the § 1983
retainer agreements submitted by Plaintiff are not labeled
contingency agreements, the agreements state that if
“no recovery of any type is had, then Shiller Preyar
Law Offices agrees to forego any active collection of fees
and costs.” [See, e.g., 72-17, at 1,
§2.3.] The agreements also provide that “Shiller
Preyar [may] take (entirely at their option) 40% (percent) of
the entire recovery the client obtains [if] that number is
higher than the lodestar.” Id. at 2,
§2.4. Because Shiller Preyar agrees to forego the
collection of fees until plaintiffs recover, the § 1983
retainer agreements are functionally contingency agreements.
City of Burlington v. Dague, 505 U.S. 557, 561
(1992) (recognizing that fees are contingent when “the
obligation to pay depends on a particular result's being
obtained”). Indeed, a court looking at a similar
retainer agreement submitted by Shiller Preyar in another fee
dispute concluded that such agreements constitute contingency
agreements. Montanez v. Chicago Police Officers Fico
(Star No. 6284), Simon (Star No. 16497), 931 F.Supp.2d
869, 876 n. 3 (N.D. Ill. 2013).
the § 1983 retainer agreements provided contain
contradictory language regarding the rates to be charged to
the clients. For example, Section 2.1 of the § 1983
retainer agreement for Melanie Rocha states:
The CLIENT agrees to pay the hourly rates as detailed in
Addendum A to this contract. The Client acknowledges that the
partners in Shiller Preyar generally charge $500 an hour as
their normal market rate for litigation. However, because
this particular case involves issues of public interest, the
partners have agreed to reduce their hourly rate.
[72-17, at 1.] Addendum A to the contract lists the rates for
the partners at $500. It is therefore unclear whether the
client agreed to pay the rates listed in the addendum or some
reduced rate not identified in the retainer agreement. The
§ 1983 retainer agreements are therefore of little help
in establishing the market rate for the services provided by
Mr. Shiller in similar cases.
also submits invoices from a § 1983 lawsuit McCadd
v. Village of Bolingbrook, et al., Case No.
1:14-cv-08496 (N.D. Ill. filed Oct. 28, 2014), which indicate
that Shiller Preyar charged plaintiff in that matter $500 an
hour for the work Mr. Shiller performed from July 2014
through June 2016. [72-17, at 17-63.] However, the invoiced
attorneys' fees continuously accumulated without any
payment from the client reflected on the invoices. [72-17, at
15-63.] And the retainer agreement from that case was
structured as a contingency agreement, as discussed above.
Thus, these invoices are not helpful in determining the
appropriate market rate for Mr. Shiller's work in this
also submits the Expert Report of Bruce M. Meckler, Esq. (the
“Meckler Report”) offered by the law firm Loevy
& Loevy to justify attorneys' fees sought in
Young v. County of Cook, Case No. 1:06-cv-00552
(N.D. Ill. filed Jan. 30, 2006). The Meckler Report, however,
does little to justify the reasonableness of the
attorneys' fees sought in this case. The report was
submitted in connection with a complex class action involving
a different law firm before a different court in this
district. [72-15.] Furthermore, the portion of the Meckler
Report relied upon by Plaintiff discusses
“projected rates for
attorneys specializing in complex commercial
litigation for 2011, ” [72-15, at 9
(emphasis added)], not actual rates for attorneys in civil
rights cases. The Meckler report therefore has no bearing on
the reasonableness of the rates Plaintiff's counsel seeks
in this case and therefore is disregarded.
also submits the affidavits of two attorneys, but these
affidavits also fail to establish Mr. Shiller's claimed
hourly rate. [72-16.] The affidavit of Anthony Burch does not
identify the hourly rate the affiant charges for civil rights
work, but instead identifies his hourly rates for criminal
defense work and family law work, which are irrelevant here.
Id. at 2, ¶4. The affidavit of Jared S.
Kosoglad indicates that he was awarded $225 per hour for his
work on a civil rights case, which was his first case as a
licensed attorney. Id. at 3-4, ¶6. Mr.
Kosoglad's affidavit also cites to a November 17, 2014
decision concluding that Mr. Kosoglad sufficiently
demonstrated that his hourly rate for civil rights work was
$400 per hour. Id. at 4, ¶10. Nothing in either
affidavit indicates that the affiants ever received $550 per
hour for work on civil rights matters. To the extent these
attorneys merely opine on the reasonableness of the rates
claimed by Plaintiff's counsel, the Court finds these
affidavits unpersuasive. Montanez, 755 F.3d at 554
(holding that district court properly disregarded
“affidavits from other Chicago attorneys, which only
attested that [plaintiff's] lawyers were well qualified
and that their fees were reasonable”). These affidavits
therefore fail to establish Mr. Shiller's claimed rate of
$550 per hour for civil rights cases.
Plaintiff fails to meet his burden of proving Mr.
Shiller's market rate of $550 per hour for work on civil
rights cases, it is up to the Court to make its own
determination of a reasonable hourly rate. Uphoff v.
Elegant Bath, Ltd., 176 F.3d 399, 409 (7th Cir. 1999).
The Court notes that there is not a high evidentiary bar for
establishing the market rate for an attorney's work.
People Who Care v. Rockford Bd. of Educ., Sch. Dist. No.
205, 90 ...