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Williamson v. Ortiz

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

July 31, 2019

CHICAGO POLICE OFFICER WILFREDO ORTIZ, Star no. 9748, and THE CITY OF CHICAGO, a municipal corporation, Defendants.



         The plaintiffs, Kierra Williamson, Princeton Williamson, and Michael Williamson, brought this action against Chicago Police Officer Wilfredo Ortiz and the City of Chicago, alleging that Officer Ortiz used excessive force against the defendants. After a lengthy trial, a jury found in favor of the plaintiffs, awarding a combined total of $4, 250, 000 in compensatory damages and $500, 000 in punitive damages. The plaintiffs' attorneys, along with Princeton and Kierra Williamson's former attorney Regan Ebert, now move this Court to recover their respective fees and costs. For the reasons set forth herein, their motions are granted in part and denied in part.

         Procedural Background

         The shooting at issue in this case happened on January 1, 2014. On January 6, 2014, Regan Ebert was retained by Kierra and Princeton Williamson's grandmother to represent Kierra and Princeton, each of whom signed a one-third contingency fee attorney-client agreement. Jeffrey Neslund and Michael Robbins subsequently filed appearances on January 8, 2015, and represented to the Court that they were the plaintiffs' sole counsel. On March 19, 2015, the Court terminated Ebert's appearance after the plaintiffs clarified that Neslund, Robbins, and Robert Robertson were representing them in this action. On March 28, 2017, the defendants filed a motion for partial summary judgment, which was denied. The plaintiffs subsequently sought to amend their complaint, but that motion was denied in light of the pending trial. The trial was bifurcated, so that the jury would first resolve Officer Ortiz's liability before then continuing to address the plaintiffs' Monell claims. The trial was held from September 7, 2017 until September 17, 2018. During the jury's deliberations, the defendants agreed that they would accept the entry of an adverse judgment on the plaintiff's Monell claims in the event that the jury found against the city on the excessive force claims. The jury subsequently returned a sizeable verdict in the plaintiffs' favor. The plaintiffs' lawyers now seek to recover $3, 626, 066.25 in fees for a total of 7, 263 attorney and paralegal hours spent working on the Williamsons' case. Ebert seeks to recover $40, 568.04 in attorney's fees and costs from Kierra Williamsons' proceeds and $24, 535.97 in attorney's fees and costs from Princeton Williamson's proceeds that she incurred while working on their cases under a contingent fee agreement.

         Legal Standard

         District courts have discretion to award reasonable attorneys' fees to the prevailing party in a section 1983 action. 42 U.S.C. § 1988(b). To determine what fees are reasonable, the Court begins by calculating the lodestar amount based on the hours reasonably expended by counsel and their reasonable hourly rates. Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012). The Court may then adjust the lodestar based on various factors including the degree of success, the novelty and difficulty of the issues, awards in similar cases, and the relationship between the lodestar amount and the damages awarded. Hensley v. Eckerhart, 461 U.S. 424, 430 n. 3, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983).

         Current Counsel's Fee Petition

         The defendants first contest the reasonableness of counsels' hourly rates. The reasonable rate for counsel's time is calculated based on the market rate that lawyers of similar experience and ability in the community normally charge their paying clients for the type of work in question. Gautreaux v. Chicago Housing Authority, 491 F.3d 649, 659 (7th Cir. 2007) (quoting McNabola v. Chicago Transit Authority, 10 F.3d 501, 519 (7th Cir. 1993)). Although the party seeking fees bears the initial burden of producing evidence establishing her market rate, once evidence is provided it becomes the opposing party's burden to demonstrate why a lower rate should be awarded. Gautreaux, 491 F.3d at 660 (quoting Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir. 1999)). The best evidence of the market rate for an attorney is the amount the attorney actually bills for similar work, but if that rate cannot be determined the court may rely on the rates charged by similarly situated attorneys or the rates charged by the attorney in similar cases. Johnson, 668 F.3d at 933.

         Here, counsel requested the following hourly rates:


Rate requested by plaintiffs

Jeffrey Neslund

$550 / hour

Robert Robertson

$525 / hour

Michael Robbins

$600 / hour

Courtney Smallwood

$225 / hour

Marko Duric

$325 / hour

Thomas Kougias

$400 / hour

Law Clerk / Paralegal

$100 / hour

         Counsel supported these rates with personal affidavits, as well as affidavits from other civil rights attorneys familiar with their work and experience. The defendants concede that the requested rates for Courtney Smallwood and for law clerk/paralegal time are reasonable but assert that the remaining lawyers have failed to meet their initial burden of establishing a reasonable rate for their work product. Generally speaking, the defendants contend that the plaintiffs have never billed a client at the rates that they now seek to recover, that there is no evidence establishing that their claimed rates are reasonable in the market at large, and that the proposed rates exceed those counsel have previously received in similar matters.

         As courts in this district have recognized, however, prior awards are of limited relevance given that hourly fees increase over time as a result of both inflation and the increasing skill and reputation of the billing attorney. Fox v. Barnes, No. 09 C 5453, 2013 WL 4401802, at *3 (N.D. Ill. Aug. 15, 2013) (Holderman, J.). Fees, moreover, are calculated at counsel's current billing rate to compensate for the inherent delay in payment in contingent-fee civil rights cases. Mathur v. Bd. of Trs. of S. Ill. Univ., 317 F.3d 738, 744-45 (7th Cir. 2003). Accordingly, the prior fee awards that the defendants rely on are generally unpersuasive to this Court.

         In this case, Neslund seeks to recover a rate of $550 per hour, Robbins seeks to recover a rate of $600 per hour, and Robertson seeks to recover a rate of $525 per hour. These proposed rates are supported by affidavits from peer attorneys averring that these sums are reasonable given counsels' skill and experience. These three attorneys truly acted as partners in this case and were equally skilled and competent in their representation of the plaintiffs. Differences in respective experience notwithstanding, the Court is therefore convinced that counsel are entitled to equal compensation for their time and effort in this case. After reviewing the affidavits and caselaw submitted, the Court concludes that it is appropriate to compensate Neslund, Robbins, and Robertson at a rate of $550 per hour in light of the respective experience that they brought to bear on this complicated case.

         The defendants also dispute the hourly rates requested by Marko Duric and Thomas Kougias. Duric, who was licensed in 2012, requests $325 an hour. Duric's supporting affidavit, however, does not disclose his hourly rates or other information regarding his rates or those of his peers to support his requested rate of $325 per hour. To the contrary, within the past year attorneys of comparable experience have received awards of $310 per hour and $275 per hour. See Adamik v. Motyka, No. 12 C 3810, 2018 WL 3574751, at *4 (N.D. Ill. July 25, 2018) (Durkin, J.) (awarding $310 to a civil rights attorney with five years of experience who served as trial counsel); First Midwest Bank v. City of Chicago, No. 14 C 9665, 2018 WL 4126570, at *23 (N.D. Ill. Aug. 29, 2018) (Leinenweber, J.). The defendants concede that $310 would be an appropriate award for Duric in this case. In light of the extenuating circumstances warranting an elevated fee award in Adamik, which awarded a similarly experienced attorney $310 per hour, the Court agrees that $310 per hour is an appropriate rate for Duric's services at the present time.

         Kougias expressly swears that he currently bills his time at $400 per hour, although most of his cases are taken on a flat-fee basis. The defendants nevertheless contend that this request is unreasonable because Kougias' work as a criminal defense attorney is not comparable to his work in this civil rights case. Here, however, Kougias' work occurred in his capacity as an experienced criminal lawer; he was retained to secure access to evidence impounded in the criminal case of People v. Michael Williamson. The defendants have offered no evidence to suggest that $400 per hour is an unreasonable rate for Kougias to bill for appearances in criminal court, and this Court therefore sustains the requested rate. Review of IPRA Files

         The defendants separately contend that counsels' rates should be discounted during the time spent reviewing the IPRA investigations of 219 officer-involved shootings in support of the plaintiffs' Monell claims. In total, this review required 1, 219.85 hours. The defendants contend that the review, billed at the attorneys' usual rates, should be compensated at a paralegal rate because it constitutes “first-level document review” and annotation. As other courts have previously found, however, review of files from other incidents relevant to a Monell claim requires legal analysis of their content and is therefore appropriately compensated at attorney rates. Fields v. City of Chicago, 10-CV-1168, Dkt. 1249 (N.D. Ill. Jan. 1, 2018) (Kennelly, J.). Here, the plaintiff's Monell theory turned on identifying proof of a pattern of inadequate investigations into deadly force incidents and therefore required detailed legal analysis of the adequacy of prior investigations. The ...

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