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Jackson v. City of Peoria

United States District Court, C.D. Illinois, Peoria Division

October 11, 2019

CITY OF PEORIA, Defendant.



         This 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 part.


         Plaintiff 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.[1] Plaintiff paid $300.00 for the consultation but did not hire Ms. Herman because he could not afford her rates.

         On 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).

         Subsequently, 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 complaint.

         After 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 basis.”

         On June 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.

         Plaintiff 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.

         Sometime 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.

         Ms. 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.

         During 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.

         Thereafter, 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.

         The 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.


         Section 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.


         I. Reasonableness of the Number of Hours Expended

         What 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 ...

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