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Pouncy v. City of Chicago

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

December 11, 2017

CITY OF CHICAGO, et al., Defendants. Date Description Time 5.0 Date Description Time Total 1.1 Date Description Time Total 4.6 Date Description Time Total 2.9 Attorney/Paralegal Total Adjusted Hours Adjusted Rate Adjusted Fees Total $64, 462.50


          Robert M. Dow, Jr. United States District Judge.

         Before 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 [68]. 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.

         I. Background

         Plaintiff 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.

         Plaintiff 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] [1.] On May 14, 2015, the Court recruited counsel to represent Plaintiff in this matter. [9.] Recruited counsel filed an amended complaint [8] and a motion to conduct expedited discovery to identify the unnamed defendant before the expiration of the two-year statute of limitations [13], which the Court granted. [17.]

         Plaintiff 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.” [72-22.]

         Because 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.]

         On 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 [40] 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 [39].

         The 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.

         On June 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).

         With 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 [72] currently pending before this court.

         Plaintiff 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.

         II. Analysis

         The 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 [92] 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.

         A. Attorneys' Fees Pursuant to the Offer of Judgment

         Turning 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.]

         The starting point for determining Plaintiff's “reasonable attorney's fees” is the lodestar, [2]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.

         Once 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. 1996)).

         Here, 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 attorneys' fees.

         1. Hourly Rates

         The 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 rate.” Id.

         Here, 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 hour, respectively.[3]

         i. Brendan Shiller's Hourly Rate

         Plaintiff 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.

         To 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.”).

         With 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.

         Plaintiff 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).

         Furthermore, 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.

         Plaintiff 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 case.

         Plaintiff 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.[4]

         Plaintiff 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.

         Because 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 ...

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