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Awalt v. Marketti

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

May 23, 2018

Elizabeth Awalt, as Administrator of the Estate of Robert Awalt, Plaintiff,
Rick Marketti, as Administrator of the Estate of Terry Marketti; Kevin Callahan, in his official capacity as Sheriff of Grundy County; Duane McComas, individually and in his official capacity as Superintendent of Grundy County Jail; Melanie Van Cleave; Patrick Sealock; Matthew Walker; Kim Lear; Roger Thorson; Robert Matteson; David Obrochta; County of Grundy; Correctional Health Companies, Inc.; Health Professionals, Ltd.; Dr. Stephen Cullinan; Marjorie Clauson; unknown employees of Correctional Healthcare Companies, Inc. and Health Professionals, LTD; unknown Grundy County Correctional Officers; unknown Medical Personnel, Defendants.



         Elizabth Awalt (“Plaintiff”), as administrator for the estate of her husband Robert Awalt (“Awalt”), brought this case seeking damages for Awalt's death while he was detained in the Grundy County Jail. Prior to any trial, Plaintiff reached settlements with the Grundy County Sheriff's Office and its employees who were named as defendants, and Nurse Marjorie Clausen who was employed by Correctional Health Companies, Inc. (“CHC”), and Health Professional, Ltd. (“HPL”) (together “CHC/HPL”), which the County contracted with to provide medical services in the Jail. A jury trial proceeded against CHC/HPL and its employee, Dr. Stephen Cullinan. Because evidence relevant to the claims against CHC/HPL was unduly prejudicial to Dr. Cullinan, the trial was bifurcated and claims against him were tried first, with the intent that the same jury would hear the additional evidence against CHC/HPL. The jury hung on the claims against Dr. Cullinan, and the entire bifurcated trial was rescheduled. Before the retrial commenced, Dr. Cullinan settled the claims against him. The trial was again rescheduled, but CHC/HPL settled the claims against it before trial.

         The settlements with the County Defendants, Nurse Clausen, and Dr. Cullinan provided for Plaintiff's attorney's fees and expenses. The settlement with CHC/HPL provided that Plaintiff and CHC/HPL would submit a fee petition for resolution by this Court. For the following reasons, the Court awards Plaintiff's counsel $3, 279, 127.72 in fees and expenses.

         Legal Standard

         The Civil Rights Attorney's Fees Awards Act of 1976 provides that a district court, “in its discretion, may allow the prevailing party . . . a reasonable attorney's fee” in suits brought under certain federal civil rights statutes, including 42 U.S.C. §§ 1983, 1985, and 1986. 42 U.S.C. § 1988(b). “[A] prevailing plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotation marks omitted). CHC/HPL has stipulated that Plaintiff is a prevailing party in this case.

         “[I]n view of [its] superior understanding of the litigation, ” this Court has considerable “discretion in determining the amount of a fee award.” Hensley, 461 U.S. at 437. The Court must “‘provide a reasonably specific explanation for all aspects of a fee determination, '” but its explanation “need not be lengthy.” Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 651 (7th Cir. 2011) (quoting Perdue v. Kenny A., 559 U.S. 542, 558 (2010)).

         The “starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. This calculation is commonly known as the “lodestar.” E.g., Pickett, 664 F.3d at 639. “The party seeking an award of fees” has the burden to “submit evidence supporting the hours worked and rates claimed.” Hensley, 461 U.S. at 433.

         The hours worked component of the lodestar excludes hours “not reasonably expended, ” including “excessive, redundant, or otherwise unnecessary” hours. Id. at 434 (quotation marks omitted). “[T]he court should disallow not only hours spent on tasks that would normally not be billed to a paying client, but also those hours expended by counsel on tasks that are easily delegable to non-professional assistance.” Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir. 1999) (quotation marks omitted). The Court also may reduce the hours calculation “[w]here the documentation of hours is inadequate.” Hensley, 461 U.S. at 433.

         The hourly rate component of the lodestar “must be based on the market rate for the attorney's work.” Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 659 (7th Cir. 2007). “The market rate is the rate that lawyers of similar ability and experience in the community normally charge their paying clients for the type of work in question.” Id. (quotation marks omitted). “The attorney's actual billing rate for comparable work is presumptively appropriate to use as the market rate.” Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003) (quotation marks omitted). “[O]nce an attorney provides evidence establishing [the] market rate, the opposing party has the burden of demonstrating why a lower rate should be awarded.” Gautreaux, 491 F.3d at 659-60 (quotation marks omitted). In the absence of “evidence of the attorneys' actual market rates, ” the Court properly considers as “next-best evidence” the “rates awarded to similarly experienced . . . attorneys [from the same city] in other civil-rights cases in the district.” Montanez v. Simon, 755 F.3d 547, 554 (7th Cir. 2014) (quotation marks omitted). “[T]here is a strong presumption that the lodestar figure is reasonable.” Perdue, 559 U.S. at 554. That presumption can be overcome only “in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a fee.” Id.



         A. Rates

         The parties' positions on the appropriate rates for Plaintiff's counsel and paralegals are as follows:


         In a case that CHC/HPL concedes “addressed similar issues [and] was of similar complexity, ” Judge Holderman found that attorneys from Plaintiff's counsel's firm (including several of the attorneys in this case) met their burden of establishing the market rate for their services, based on evidence substantially similar to the evidence submitted in support of Plaintiff's petition in this case.

         Judge Holderman reasoned as follows:

         A court should consider the following factors when setting a reasonable hourly rate:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Hensley, 461 U.S. at 430 n. 3. “The burden of proving the ‘market rate' is on the fee applicant; however, once the attorney provides evidence establishing his market rate, the burden shifts to the defendant to demonstrate why a lower rate should be awarded.” Spegon v. Catholic Bishop of Chi., 175 F.3d 544, 554-55 (7th Cir.1999). Here [the plaintiff] ha[s] submitted affidavits from each of the attorneys regarding their billing rates, billing records, an expert report by Bruce Meckler surveying prevailing hourly rates in the Chicago area, the Laffey Matrix, and citations to other cases with comparable hourly rate awards to the attorneys in question and other comparable that Fox has amply met his burden of demonstrating that the requested hourly rates are appropriate.

Fox v. Barnes, 2013 WL 4401802, at *2-3 (N.D. Ill. Aug. 15, 2013).[1] With one exception, Judge Holderman's reasoning applies equally to this case, such that Plaintiff has met her burden to establish the market rate for her counsel's services.

         The exception is Plaintiff's request for an hourly rate of $600 for Arthur Loevy. This rate is $50 an hour greater than that for Jon Loevy and Michael Kanovitz, who are considered to be in the “top tier of civil rights trial attorneys in the Chicago area.” Jimenez v. City of Chicago, 2012 WL 5512266, at *2 (N.D. Ill. Nov. 14, 2012). Arthur Loevy's additional years of experience as compared to Jon Loevy and Kanovitz appear to be the sole basis for requesting an additional $50 per hour. However, at this level of expertise, an attorney's number of years of experience is largely irrelevant. The Court will limit the “top tier” rate to $550 per hour.

         CHC/HPL makes several arguments in attempt to rebut Plaintiff's evidence supporting the hourly rates sought. First, CHC/HPL argues lower rates should be awarded based on a number of other fee awards in similar cases in this jurisdiction. See R. 625 at 9-10 (citing Weyker v. Quiles, 2015 WL 5177970 (E.D. Wis. Sept. 4, 2015) ($500 per hour); Smith v. Altman, 2015 WL 5675376 (N.D. Ill. Sept. 21, 2015) (counsel with 24 years of experience awarded $425 per hour); id. (counsel with 17 years of experience awarded $350 per hour); Golden v. World Sec Agency Inc., 2014 WL 37829 (N.D. Ill. Jan. 6, 2014) (counsel with 20 years of experience awarded $425 per hour); Degorski v. Wilson, 2014 WL6704561 (N.D. Ill. Nov. 26, 2014) (counsel with 15 years of experience awarded $450 per hour); Jimenez, 2012 WL 5512266 (Jon Loevy awarded $495 per hour; Michael Kanovitz awarded $450 per hour; Arthur Loevy awarded $425 per hour; Joel Feldman awarded $325 per hour; Steve Art awarded $225 per hour)). But CHC/HPL concedes that attorneys from Plaintiff's counsel's firm have been awarded higher hourly rates. See R. 625 at 9. And Plaintiff cites a number of civil rights cases from this district which awarded higher fees. See R. 614-1 at 10 (citing Delgado v. Mak, 2009 WL 211862 (N.D. Ill. Jan. 29, 2009) ($525 per hour); Foltin v. Ugarte, 09 C 5237, Dkt. Nos. 144 & 165 (N.D. Ill. 2012) ($535 per hour); Flanagan v. Cook County, 2009 WL 3156716, *9 (N.D. Ill. Sep. 28, 2009) ($500 per hour)). Taken as a whole, these past awards do not serve to rebut Plaintiff's requested hourly rates. CHC/HPL also cites ALM Legal Intelligence's Survey of Law Firm Economics in support of the lower rates they suggest. This survey collected data in 2013 and does not break out data for civil ...

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