United States District Court, C.D. Illinois, Peoria Division
MEMORANDUM ORDER AND OPINION
MICHAEL M. MIHM UNITED STATES DISTRICT JUDGE.
matter is now before the Court on Plaintiff's Petition
for Attorney's Fees and Costs under 42 U.S.C. §
1988. (ECF No. 37). For the reasons stated below,
Plaintiff's Petition is GRANTED in part and DENIED in
had an initial consultation with attorney Athena M. Herman on
September 15, 2016, regarding a case he believed he had
against Defendant for unlawful termination. Plaintiff paid
$300.00 for the consultation but did not hire Ms. Herman
because he could not afford her rates.
March 27, 2017, after being issued a dismissal and notice of
right to sue by the U.S. Equal Employment Opportunity
Commission, Plaintiff filed a pro se complaint alleging
unlawful termination of employment in violation of Title VII
of the Civil Rights Act of 1964, 41 U.S.C § 1981. (ECF
No. 1). Plaintiff also filed a motion to proceed in forma
pauperis and a motion requesting appointment of counsel.
(ECF No. 2 - 4). This Court granted Plaintiff's motion to
proceed in forma pauperis, but denied appointment of
counsel. (ECF No. 5).
Plaintiff met with Ms. Herman and requested that she
represent him, but she declined because Plaintiff was still
unable to afford her rates; however, Ms. Herman did advise
Plaintiff that he should file a motion for default judgment
because Defendant had not filed a timely response to his
being provided notice of default, Defendant filed a motion to
dismiss Plaintiff's complaint on September 19, 2017. (ECF
No. 14). Thereafter, Plaintiff contacted Ms. Herman and
requested that she review Defendant's motion to dismiss,
to which she agreed. Ms. Herman provided legal advice and
told Plaintiff that Defendant wrongly requested his complaint
be dismissed with prejudice when Federal Rule of Civil
Procedure 4(m) requires that such dismissal be without
prejudice. During this meeting, Ms. Herman continued to
decline to represent Plaintiff, but allegedly stated that he
would be charged for the advice if he won his case. At this
meeting, Ms. Herman also told Plaintiff that he could contact
her in the future for limited legal advice and she might be
willing to provide it on an “ad hoc
29, 2018, Plaintiff reached out to Ms. Herman seeking advice
regarding discovery. Ms. Herman provided Plaintiff with
sample interrogatories and requests to produce documents and
made recommendations about how Plaintiff could adapt them to
fit his case. On July 24, 2018, Plaintiff sent Ms. Herman his
draft discovery requests, and Ms. Herman revised them. When
Defendant failed to respond to Plaintiff's discovery
requests, Ms. Herman provided him with a sample motion to
compel and told him how to adapt it to his case.
met Ms. Herman on October 25, 2018, to review Defendant's
responses to Plaintiff's discovery requests. They met
again on November 27, 2018, to discuss what information was
missing from Defendant's responses. Ms. Herman provided
Plaintiff guidance regarding a second motion to compel.
Plaintiff returned the next day with a draft of the motion,
and Ms. Herman edited it.
thereafter, Plaintiff made a “good-faith payment”
of $75.00 to Ms. Herman and bought a fruit tray for the time
she had provided. Ms. Herman also spoke with Plaintiff
concerning the arguments he should make at a motion hearing
in December 18, 2018.
Herman did not hear from Plaintiff again until March 2019,
when he received a deposition notice. Ms. Herman continued to
decline representation but agreed to prepare him for the
deposition and to represent him solely at the deposition. She
told him that she would consider future representation based
on what would occur at the deposition.
Plaintiff's deposition on March 14, 2019, Ms. Herman made
the decision to represent him and entered an appearance in
the case. (ECF No. 33). The same day, Defendant served
Plaintiff with a Rule 68 Offer of Judgment
(“Offer”). The Offer stated:
[Defendant] offers to allow judgment to be taken against it
in the amount of $5, 001 (FIVE Thousand and One Dollars),
exclusive of costs and attorneys' fees which may be taxed
as costs by the Court pursuant to 42 U.S.C. § 1988. The
Defendant will pay this amount to the Plaintiff and will pay
in addition such attorneys' fees and costs as the Court
may award in full satisfaction of the judgment. The Plaintiff
shall be entitled to no other relief.
(ECF No. 34). Plaintiff accepted the Offer.
Ms. Herman provided Defendant with a letter requesting fees
and costs in the amount of $12, 676.00, reflective of 27.8
billable hours at a rate of $425/hour, the $300.00
consultation fee Plaintiff paid, and $561.00 in costs. (ECF
No. 37-4). On May 20, 2019, Defendant countered with
$6861.00, reflective of $6000.00 for attorney's fees,
$300.00 consultation fee, and $561.00 for the costs Ms.
Herman identified. (ECF No. 37-5). Defendant reached their
calculation by lowering Ms. Herman's rate to $300/hour,
which was the rate the Central District set in
Norton v. City of Springfield, 2018 WL
6601083 (C.D. Ill.Dec. 17, 2018). Id.
Parties attempted to resolve the issue of attorney's fees
without the Court's involvement. Because those efforts
were unsuccessful, Plaintiff's attorney now seeks an
award of attorney's fees of $18, 487.50 and costs of
$535.00 under 42 U.S.C. § 1988. This Opinion follows.
1988 provides district courts with discretion to award
reasonable attorney's fees to the prevailing party in
section 1981 actions. 42 U.S.C. § 1988(b). A plaintiff
who accepts an Offer of Judgment is the prevailing party for
purposes of an award of attorney's fees. See Spegon
v. Catholic Bishop of Chicago, 175 F.3d 544 (7th Cir.
1999). Moreover, a plaintiff is determined to be a prevailing
party if he succeeds on any significant issue which achieves
some of the benefit he sought in pursuing litigation.
Hensleyv.Eckerhart, 461 U.S. 424, 433 (1983). While
a party who receives even nominal damages is a prevailing
party under § 1988, “a reasonable attorney's
fee for a nominal victor is usually zero.” Aponte
v. City of Chicago, 728 F.3d 724, 726-27 (7th Cir. 2013)
(citing Farrar v. Hobby, 506 U.S. 103, 115 (1992)).
If more than nominal damages have been awarded, courts follow
the alternative path set forth in Hensley, which
starts by determining the lodestar amount, i.e., “the
number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.”
Hensley, 461 U.S. at 433. The court may then adjust
the lodestar amount upward or downward depending on a variety
of factors, such as the degree of success, the novelty and
difficulty of the issues, and awards in similar cases.
Id. at 434.
Reasonableness of the Number of Hours Expended
qualifies as a “reasonable” use of a lawyer's
time “is a highly contextual and fact-specific
enterprise.” Sottoriva v. Claps, 617 F.3d 971,
975 (7th Cir. 2010). As such, the court has “wide
latitude” in awarding attorney's fees. Id.
The court considers whether hours are “excessive,
redundant, or otherwise unnecessary” and may reduce the
lodestar calculation, for example, for hours spent on
unrelated and unsuccessful claims, hours that attorneys would
not bill their clients, and hours for which the prevailing
party has failed to adequately support. Hensley, 461
U.S. at 433-34. Because of its familiarity with the