ROBERT M. DOW, Jr., District Judge.
NOW COMES the Plaintiff, JAIME MARTINEZ ("Plaintiff"), by and through his attorneys, ED FOX & ASSOCIATES, and for his Motion for Entry of Judgment hereby states as follows:
WHEREFORE, Plaintiff requests that this Honorable Court enter Judgment in favor of the Plaintiff and against the Defendant in the amount of $9,043.75 and for such other and further relief as deemed just and necessary.
This matter coming to be heard on the Emergency Motion of the John Bitzer Trust (the "Bitzer Trust") and the William B. Sturgeon Living Trust (the "Sturgeon Trust"), and the Arthur Bitzer Family Limited Liability Limited Partnership dated August 25, 1995 (the "Arthur Bitzer Family LLLP") (collectively with the Bitzer Trust and the Sturgeon Trust, the "Plaintiffs"), for the appointment of Alex Moglia of Moglia Advisors as receiver ("Receiver") of Bitzer Products Company; the Court having considered the Verified Complaint herein; and the Court being fully advised in the premises of the agreement between the parties:
1. I know the facts set forth below to be true of my own personal knowledge. If called upon to testify to these facts, I could and would do so.
2. I am an attorney licensed to practice in Illinois since 2008. I have been an associate attorney at Ed Fox & Associates for over three years. I am admitted to both the general and trial bars of the Northern District of Illinois.
3. I have practiced in the area of civil rights litigation for over three years. Before practicing in this field, I practiced commercial litigation for approximately one year.
4. Prior to being employed as a lawyer, I studied Section 1983 litigation in law school at the University of Illinois. While in school, I was a member of the Civil Rights Clinic at the University of Illinois and tried a three-day long Federal Civil Rights case in the Central District of Illinois. I also was a member and coach of the Trial Team at the University Of Illinois College Of Law and coached the undergraduate Mock-Trial Team at the University of Illinois.
5. In my career, I have been first or second chair in twelve trials. I have been first or second chair in nine cases tried in Northern District of Illinois under Section 1983 against police or corrections officers, and in one employment discrimination case brought under Title VII in the Northern District of Illinois.
6. My most recent victory in trial was in October, 2011 when I won a civil rights police abuse trial in front of Judge Darrah, Case Number 08-cv-7007. In that case, the jury awarded $5,000 to my client.
7. The usual and customary rate for my services as a fourth year attorney is currently $275.00 per hour. This is the rate that I currently charge my hourly rate clients.
8. In a Memorandum Opinion and Order in Case Number 08-cv-7352, dated August 16, 2010, Judge Dow of the Northern District of Illinois awarded me attorney's fees at a rate of $215.00 for services that I performed in 2008-2009 when I practiced commercial litigation at a previous firm
9. In a Minute Order entered in Case Number 11-cv-610 dated November 7, 2011, Judge St. Eve of the Northern District of Illinois awarded me attorney's fees at a rate of $250.00 for services that I performed in-between September and November, 2011 in a civil rights case
10. In a recent decision from the Northern District of Illinois in the case of Jiminez v. City of Chicago, Case No. 09-cv-8081, Judge Kennelly awarded attorneys with experience similar to myself from the civil rights firm of Loevy & Loevy a rate of $275 an hour.
11. Attached hereto as Exhibit 4 is a summary of my time entries for the case of Martinez v. Bitzer Products, Co., Case No. 11-cv-6811, related to my preparation of the Motion to Reinstate the Case and to Enforce the Settlement Agreement, Motion for Entry of Judgment, preparation of the Fee Petition, and all court appearances related to those filings. In total, I have spent 13.25 hours working on matters related to reinstating the case and seeking judgment against the Defendant.
I declare under penalty of perjury that the foregoing is true and correct. Executed in Chicago, Illinois this 27
Currently pending before the Court is the Pride of San Juan ("PSJ") Plaintiffs'
The PSJ Plaintiffs sought reimbursement of attorneys' fees and costs under a common fund theory [150]. The Court denied the PSJ Plaintiffs' motion for reimbursement of costs and fees under a common fund theory in a memorandum opinion and order [171] issued on February 2, 2010.
In another February 2, 2010 order [173], this Court addressed the other PACA claimants' claims for contractual attorneys' fees, to which both the Sato Plaintiffs and Defendants had raised objections. First, the Court concluded that certain claimants' invoices created a contractual right to attorneys' fees. Second, the Court addressed the reasonableness of the claimed attorneys' fees. After considering the hourly rate and the documentation regarding the hours worked, the Court concluded that the fees requested by six claimants — Coosemans Chicago, Inc., Jab Produce, Inc., Tuchten, Sato, The Garlic Company, and Royal Rose — were reasonable. Therefore, as reflected in the Court's claim award chart set forth in the order [173], the Court awarded attorneys' fees to Coosemans, Jab, and Tuchten. However, the contract-based fees awarded to Sato, The Garlic Company, and Royal Rose inadvertently were omitted from the Court's claim award chart. The chart below remedies that error.
With respect to the PSJ Plaintiffs, in the February 2, 2010 order [173], the Court noted that seven of the PSJ Plaintiffs — Classic Salads, Dayoub Marketing, Inc., Ruby Robinson Co., Inc., Natural Forest, Inc., The Kinoko Company, The Mandolini Co., Inc., and Seashore West — would have been entitled to contract-based attorneys' fees had they submitted proper documentation demonstrating the reasonableness of the claimed the hourly rate and the number of hours worked.
As the Court noted in its April 14, 2010 minute order [200], it would be inequitable not to consider the documentation that the PSJ Plaintiffs submitted in support of its request for common fund fees as providing support for an alternative request for contract-based fees. Therefore, the Court will consider the reasonableness of the request for contract-based fees asserted by the seven PSJ Plaintiffs that are entitled to such fees. Those PSJ Plaintiffs seek $17,144.29 in attorneys' fees and costs billed by two attorneys.
On the basis of the circumstances as the Court understood them at the time of its February 2, 2010 order [173], the Court exercised its discretion to refuse to award statutory interest to Champ Produce. The Court reasoned that awarding such interest would be inequitable, given that each PACA claimant stands to recover only a pro rata share of its claims. Because Defendants objected only to Champ's claim for statutory interest, the Court erroneously believed that Champ was the only claimant seeking prejudgment interest at the Illinois statutory rate. The Court also noted that, if it were to award prejudgment interest, it would be inclined to do so at the federal statutory rate. It has since come to the Court's attention that its order was not consistent in regard to the award of interest. In particular, eight other claimants — Natural Selection, California Specialty Produce, California Citrus, Alamax, Alpine Foragers, PSJ, Lakeside, and Seashore — included prejudgment interest at the Illinois statutory rate in their total claims. The Court awarded that interest because no parties objected. The Court's order also awarded 17 claimants contractual interest at rates that far exceed the Illinois statutory rate of 5%. Finally, the Court did not award interest through the date of its order, as PSJ Plaintiffs argue it should have. The Court clarifies its order with respect to the award of prejudgment interest in Section II.B. below.
"When determining the reasonableness of attorneys' fees, a `lodestar' analysis, which multiplies the attorneys' reasonable hourly rates by the number of hours reasonably expended, is typically the starting point." A. Bauer Mechanical, Inc. v. Joint Arbitration Bd. of Plumbing Contractors' Ass'n and Chicago Journeymen Plumbers' Local Union 130, U.A., 562 F.3d 784, 793 (7th Cir. 2009). To determine an attorney's reasonable hourly rate, courts look to the "market rate" for the work performed, meaning "the rate that lawyers of similar ability and experience in the community normally charge their paying clients for the type of work in question." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 554-55 (7th Cir. 1999). The burden of proving the market rate is on the party seeking attorneys' fees. Id. at 554. "[O]nce the attorney provides evidence establishing his market rate, the burden shifts to the [opposing party] to demonstrate why a lower rate should be awarded." Id. at 554-55. Because "[t]he best evidence of the value of the lawyer's services is what the client agreed to pay him," an attorney's actual billing rate is "presumptively appropriate" for use as the market rate. Mostly Memories, Inc. v. For Your Ease Only, Inc., 594 F.Supp.2d 931, 934 (N.D.Ill. 2009) (citations omitted).
The party seeking attorney's fees also bears the burden of proving the reasonableness of the number of hours worked. McNabola v. Chicago Transit Authority, 10 F.3d 501, 518 (7th Cir. 1993). "Hours spent are not reasonably expended if they are excessive, redundant, or otherwise unnecessary." Stark v. PPM Am., Inc., 354 F.3d 666, 674 (7th Cir. 2004). The Court also must disallow "hours spent on tasks that would not normally be billed to a paying client, [and] those hours expended by counsel on tasks that are easily delegable to non-professional assistance." Spegon, 175 F.3d at 553 (internal citations omitted). This Court has broad discretion in setting the amount of the award, including reducing the claimed hours, so long as it explains deviations from the petitioner's claimed hours. McNabola, 10 F.3d at 519.
The PSJ Plaintiffs seek fees at a rate of $325 per hour for the partner on the case, Michael J. Keaton ("Keaton"), and $215 an hour for the associate on the case, Jonathan Ksiazek. In its February 2, 2010 order [173], this Court found hourly billing rates of $300 per hour and $350 per hour to be reasonable. For the reasons stated in that order, the Court finds that the hourly rates claimed by counsel for the PSJ Plaintiffs are reasonable.
Counsel for Defendants conceded in open court that, in assessing the PSJ Plaintiff's request for contract-based fees, the Court should apply a reasonableness review, which necessarily is a much less searching review than would have been required in the context of a common fund request.
Counsel for the PSJ Plaintiffs' fee petition includes hours expended by counsel on clerical and non-legal work "that [was] easily delegable to non-professional assistance." Spegon, 175 F.3d at 553. Seventh Circuit precedent requires this Court to disallow those hours. Id.
Specifically, on February 12, 2009, counsel for the PSJ Plaintiffs
Also on February 12, 2009, counsel for the PSJ Plaintiffs
Mr. Keaton billed .4 hour (at $325 per hour) for a conference with the process server on February 19, 2009. That task was easily delegable to non-professional assistance, and therefore the time is disallowed. See Williams v. Z.D. Masonry, Corp., 2009 WL 383614, at *3 (N.D. Ill. Feb. 17, 2009) (disallowing time spent working with process server as clerical).
In sum, a total of $759 in fees will be deducted from the fee award sought by counsel for the PSJ Plaintiffs on the grounds that certain entries are for uncompensable clerical work.
Although the Court overrules many of the objections lodged by Defendants, the Court agrees that some of the hours billed by counsel for the PSJ Plaintiffs are excessive.
In the March 13, 2009 invoice, Mr. Keaton charged 1.5 hours (at $325 per hour) for a conference with the Court Clerk "to advise of TRO package being filed and agenda for emergency hearing with judge." That time entry is manifestly excessive and thus unreasonable. Between March and April, counsel for the PSJ Plaintiffs billed another 1.5 hours and $454.50 to various conferences with the Court Clerk. For example, on March 2, 2009, Mr. Ksiazek spent 18 minutes discussing the supplemental order to the TRO with this Court's clerk. Again, the Court finds the amount of time billed to be excessive, particularly in light of the fact that communications with the Court's Clerk could be considered clerical. See Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir.1999) (upholding the district court's finding that tasks such as in conferences with a paralegal regarding the paralegal's communications with the court's minute clerk constituted unrecoverable administrative tasks). The Court reduces the number of hours spent conferencing with the Court Clerk to 1 hour, and charges that time at the lower rate of $215 per hour. Therefore, $727 is deducted from the fee request.
On February 24, 2009, Mr. Ksiazek billed 2.3 hours (at $215 per hour) preparing a one and a half page agreed supplemental order "to establish the manner of disposal or sale of Defendant's inventory of perishable agricultural commodities" and other assets and providing that Defendants could remove from the S&M location the company's books and records. In the Court's judgment, spending 2.3 hours drafting a short agreed order is too much. The amount of time billed to the initial drafting is reduced to 1.5 hours.
Mr. Keaton billed a total of 5.8 hours and $1,885 to conferences with pro se claimants. The Court concludes that a paying client should not be billed for such discussions with non-clients absent a showing that the client benefitted from the conversation, which has not been made. Therefore, the Court disallows that time, and deducts another $1,885 from the PSJ Plaintiffs' counsel's requested fees. See Pasternak v. Radek, 2008 WL 2788551, at *9 (N.D. Ill. April 3, 2008) (disallowing hours spent on non-clients).
Mr. Keaton billed a total of 13.3 hours and $4,322.50 for drafting, reviewing, and revising the claims procedure order. That does not include the additional time that PSJ's counsel spent conferencing with co-counsel regarding the claims procedure order in an effort to resolve disputes between the parties. While the Court appreciates the parties' efforts to reach a global agreement on the terms of a proposed Consent Injunction and PACA claims procedure, 13.3 hours spent simply on drafting and revising the document — wholly apart for the time spent negotiating with the other parties — is not reasonable. The amount of time billed for this task is particularly unreasonable in light of the fact that firms with a significant PACA practice — like Mr. Keaton's — have standard claims procedure documents. Therefore, the initial drafting of the claims procedure document should not have been time consuming. The number of hours billed to drafting, reviewing, and revising the claims procedure order is reduced to 8 hours, and another $1,722.50 in fees are deducted from the fee award.
Counsel for the PSJ Plaintiffs concede that they failed to redact several time entries for tasks that they agreed to undertake for a set fee. In particular, counsel for the PSJ Plaintiffs agreed to "notify all potential PACA trust claimants of the PACA trust claim procedure set forth" in Consent Injunction and Order for Establishing PACA Trust Claims Procedure [53] entered by the Court on March 17, 2009 for $500.00. See [53] at ¶ 15. According to the Claims Procedure, the parties agreed that $500 constituted "reasonable compensation for all costs, including without limitation, postage charges and attorneys' fees, incurred by Counsel for Pride of San Juan in connection with sending the notice." Id. However, the fee petition includes time entries related to the issuance of claims procedure notices. In particular, Mr. Ksiazek billed .3 hours (at $215 per hour) to preparing a list of PACA creditors requiring notice, and Mr. Keaton billed .4 hours (at $325 per hour) to revise and amend a cover letter to the potential claimants. Mr. Keaton also billed .4 hours to reviewing the results of all certified mailings for the claims chart. In view of the agreement set forth in paragraph 15 of the Claims Procedure, counsel for the PSJ Plaintiffs should not have billed their paying clients separately for these tasks. Therefore, the time entries discussed above are disallowed, and another $324.50 is deducted from the claimed fees.
Defendants contend that counsel for the PSJ Plaintiffs also have included time entries related to the collection of the Defendants' accounts receivable. In particular, on March 4, 2009, Mr. Ksiazek billed 1.5 hours (at $215 per hour) for reviewing Defendants' list of accounts receivable and locating phone numbers and addresses. On March 4th and 6th, Mr. Keaton billed.5 hours and 1.3 hours respectively to reviewing Defendants' accounts receivable. According to Defendants, these hours "ought to be included in the arrangements made for collection of the ARs on a contingent fee basis" and therefore "should have been omitted entirely because Keaton has agreed and obtained authority to collect the ARs under conditions he requested." [155, at 27]. Defendants are referring to the Court's June 12, 2009 order [146], which granted counsel for the PSJ Plaintiffs authority to recover 20 identified accounts receivable, and ordered that any and all recoveries on those 20 receivables be divided 33.3% to counsel for the PSJ Plaintiffs and 66.7% to the registry to fund pro-rata distributions to all PACA claimants. Plaintiffs state that they "are not seeking compensation for collecting the Defendants' accounts receivable." [159, 4] It appears to the Court that the time entries at issue, which predate the entry of the June 12th, 2009 order, are related to the identification, rather than the collection, of Defendants' accounts receivable. Therefore, the time entries are allowed.
In sum, for the reasons stated above, $5,590.00 in claimed attorneys' fees are disallowed.
The contractual provisions at issue provide that the "Buyer [Defendants] agrees to pay all costs of collection, including attorneys' fees." Therefore, counsel for the PSJ Plaintiffs are entitled to reasonable costs, in addition to attorneys fees. See Kaiser v. MEPC American Properties, Inc., 518 N.E.2d 424, 427 (Ill. App. Ct. 1st Dist.1987) (even where contract provides for attorney fees and costs, only reasonable fees will be allowed); Manufacturers Life Ins. Co. (U.S.A.) v. Mascon Information Technologies Ltd., 270 F.Supp.2d 1009 (N.D. Ill. 2003) (where contract provided for award of fees, postponing decision on reasonableness of attorneys' fees and costs until the party seeking those fees filed time records and other itemized costs). Parties seeking reimbursement "must present enough supporting documentation to allow the Court to determine whether specific costs are reasonable and necessary." Fischer v. Avanade, Inc., 2007 WL 3232494, at *1 (N.D. Ill. Oct. 31, 2007). The Court "may reduce or deny reimbursement for any expenses that are not properly documented." Fruit Belt Canning Co., Inc. v. Heinemann's Inc., 2006 WL 1430801, at *2 (N.D. Ill. May 17, 2006). The PSJ Plaintiffs request $3,195.89 in costs. Defendants object that the costs are not adequately documented. At the time that Defendants filed their objections they were correct — the costs were not sufficiently supported with documentary evidence. Indeed, counsel for the PSJ Plaintiffs had filed no supporting documentation at that time. However, in response to Defendants' objections, counsel for the PSJ Plaintiffs submitted supporting documentation. Therefore, many of the claimed costs now are adequately documented and, in the Court's judgment, are reasonable. Those claimed costs that are not reasonable are addressed below.
Counsel for the PSJ Plaintiffs request reimbursement for $242 in travel expenses incurred in connection with attending the February 13, 2009 TRO hearing, the February 19, 2009 preliminary injunction hearing, and the February 24, 2009 status hearing. In support of these costs, the PSJ Plaintiffs have submitted three expense reports and parking receipts for February 19, 2009 and February 24, 2009. For each court appearance, counsel for the PSJ Plaintiffs seek to recover for parking, mileage (at a rate of $1 per mile), and dry cleaning costs. Counsel for the PSJ Plaintiffs have not submitted dry cleaning receipts. Therefore, those expenses are not sufficiently documented. And, in any event, the Court does not consider counsel's dry cleaning to be a necessary expense. See FMS, Inc. v. Volvo Const. Equipment North America, Inc., 2009 WL 1851136, at *3 (N.D. Ill. June 29, 2009) (disallowing cost of dry cleaning service for witnesses on the ground that it is not "necessary to the litigation"). Therefore, $42 — the cost of the dry cleaning — is deducted from the claimed costs.
Counsel for the PSJ Plaintiffs also seek reimbursement for $691.20 in copy expenses. These expenses are not recoverable for a number of reasons. First, the PSJ Plaintiffs have submitted no invoice or bill for these charges, and therefore they are not adequately documented. Moreover, the billing statement does not indicate how much was charged per page. Therefore, the Court cannot determine whether the request is reasonable. See Bodum USA, Inc. v. La Cafetiere, Inc., 2009 WL 1702808, at *4 (N.D. Ill. June 17, 2009) ("Courts in this circuit have found rates up to 20¢ per page to be reasonable," and will reduce the per-page rate for copies where the claimed rate exceeds that charged by outside copy shops). Finally, the PSJ Plaintiffs fail to identify what documents were copied, making it impossible to discern whether these costs were reasonably necessary. See American Automotive Accessories v. Fishman, 991 F.Supp. 995, 997 (N.D. Ill. 1995) (denying request for copying costs where documentation submitted did not "describe what was copied * * * [or] the costs per page or the number of the copies"); Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co., 924 F.2d 633, 643 (7th Cir. 1991) (party seeking copying costs is "not required to submit a bill of costs containing a description so detailed as to make it impossible economically to recover photocopying costs," but must "provide the best breakdown obtainable from retained records"). Accordingly, the PSJ Plaintiffs' request for reimbursement of these copy expenses is denied.
Counsel for the PSJ Plaintiffs request $71 in expenses incurred traveling to the March 11, 2009 hearing on the PACA claims procedure. Again, counsel for PSJ Plaintiffs seeks to recover for the cost of his dry cleaning. For the reason stated above, that amount — $15 — is deducted from the claimed amount.
As referenced above, counsel for the PSJ Plaintiffs request reimbursement of $458.27 expended on postage. The documentation counsel for the PSJ Plaintiffs have submitted verifying these costs simply lists the names and addresses of various companies to which the PSJ Plaintiffs' attorneys apparently mailed documents, the date on which the documents were sent, and the cost of postage associated with each mailing. The date for each mailing is March 19, 2009. According to the billing statements, counsel for the PSJ Plaintiffs sent out claims packages to potential trust claimants on March 19, 2009. Thus, it appears that the PSJ Plaintiffs are seeking reimbursement for the postage costs incurred sending out those claims packages. However, pursuant to paragraph 15 of the Claims Procedure [53], counsel for the PSJ Plaintiffs was required to notify all potential PACA trust claimants of the PACA Trust claim procedure by registered or certified mail. And the parties expressly agreed that $500 was reasonable compensation for all costs incurred in connection with sending the notice, including postage charges. [53, ¶ 15]. Therefore, counsel for the PSJ Plaintiffs may not be reimbursed for these costs, and the request for postage is denied.
Counsel for the PSJ Plaintiffs also seek reimbursement for another $741.90 in copy expenses. Like the copying costs discussed above, these expenses are not recoverable because they are not adequately documented, and therefore the Court cannot determine whether these costs were reasonable or necessary.
Finally, counsel for the PSJ Plaintiffs request another $78.30 for copying. Again, the copying expenses are not recoverable because they are not adequately documented, and therefore the Court cannot determine whether these costs were reasonable or necessary.
In sum, the Court deducts $2,026.67 in costs from counsel for the PSJ Plaintiffs' claimed fees and costs, in addition to the $5,590.00 in fees disallowed above. Therefore, a total of $7,616.67 is deducted from the PSJ Plaintiffs' total amount of documented fees — $34,576.39. Put another way, the PSJ Plaintiffs have demonstrated that $26,959.72 of their total attorneys' fees and costs are reasonable. However, as discussed above, because only seven of the ten PSJ Plaintiffs are entitled to attorneys fees, their counsel can recover only a percentage of that $26,959.72. That percentage is either 49.58% or 56.49%, depending on which of the PSJ Plaintiffs' submissions is correct.
This is not the first time that disparities in submissions by the PSJ Plaintiffs have caused confusion regarding their requested fees, and the Court already has given PSJ Plaintiffs one opportunity to clarify their request for fees. See [200]. In response, the PSJ Plaintiffs filed a Supplemental Filing to Clarify Calculation of Claims [201]. It is that document that indicates that the PSJ Plaintiffs are entitled to 49.58% of the total allowed fees and costs. The Court will treat the latest submission, which the PSJ Plaintiffs filed in order to clarify their position, as the correct one. Therefore, the Court concludes that PSJ Plaintiffs are entitled to $13,366.63 in fees and costs.
In light of the developments discussed above, the Court revises its February 2nd order [173] to award Champ prejudgment interest. Contrary to the PSJ Plaintiffs' claims, the award of prejudgment interest in the PACA context is not mandatory, nor is the Court required to use the Illinois statutory rate. As the Court explained in its initial order, the question of whether to award prejudgment interest under PACA absent contractual right, as well as the proper rate of interest, is left to the discretion of the court. See Middle Mountain Land and Produce Inc. v. Sound Commodities Inc., 307 F.3d 1220, 1226 (9th Cir. 2002) (holding that "a district court may award reasonable prejudgment interest to PACA claimants if such an award is necessary to protect the interests of PACA claimants, and that such an award absent contract is discretionary"); see also Endico Potatoes, Inc. v. CIT Group/Factoring, Inc., 67 F.3d 1063, 1071-72 (2nd Cir. 1995) (holding that district court has broad discretion to fashion prejudgment interest award to PACA claimants, and holding that the district court did not abuse its discretion in awarding prejudgment interest at the federal statutory interest rate as opposed to the higher New York statutory rate); Fresh Kist Produce, LLC v. Choi Corp., Inc., 251 F.Supp.2d 138 (D. D.C. March 10, 2003); In re Southland + Keystone, 132 B.R. 632 (9th Cir. BAP 1991); Ger-Nis Intern., LLC v. FJB, Inc., 2008 WL 2704384, at *17 (S.D.N.Y. July 3, 2008); May Produce Co., Inc. v. East West Imports, Inc., 2009 WL 4884154, at *2 (N.D. Tex. Dec. 15, 2009). As noted above, when the Court issued its February 2, 2010 order [173], it was under the misapprehension that Champ was the only claimant seeking prejudgment interest. Based in large part on that misunderstanding, as well as on the fact that each PACA claimant stands to recover only a pro rata share of its claims, the Court concluded that it would be inequitable to award prejudgment interest to Champ alone. The Court also noted that, if it were to award prejudgment interest, it would be inclined to do so at the federal statutory rate.
However, upon reconsideration in light of the fact that most claimants are entitled to contractual interest, the Court concludes that the award of statutory interest would not be inequitable. Therefore, statutory prejudgment interest is awarded to all claimants seeking it.
With respect to the proper interest rate, the parties appear to have contemplated in their contracts the use of the state interest rate to calculate prejudgment interest. In order not to disrupt the parties' expectations, the Court concludes that use of the Illinois rate of 5% interest is appropriate. See 815 ILCS 205/2.
Finally, the Court must determine the date through which interest should be calculated. Generally, prejudgment interest is awarded through the date of judgment. See, e.g., Cement Division, Nat'l Gypsum Co. v. City of Milwaukee, 144 F.3d 1111, 1117 (7th Cir. 1998) ("the very name `prejudgment' interest strongly suggests that the relevant date is a judgment date"). The Court sees no reason to deviate from that general rule here. The complications that have arisen in unpacking all of the issues related to the parties' claims do not change the fact that the claimants have been without access to the funds for the duration of the litigation. In order to effectuate the purpose of prejudgment interest — that is, making the claimants whole — the Court awards prejudgment interest at the Illinois statutory rate through the date of judgment. The Court will enter judgment in this matter on September 17, 2010. Each claimant is directed to calculate the interest that it is due (at either the Illinois statutory rate of 5% or the proper contractual rate) through September 17, 2010, and to file a short document advising the Court (and counsel for Defendants) of the appropriate amount by September 1, 2010. Defendants are given until September 7, 2010 to lodge any objections to any of the proposed interest calculations.
For the foregoing reasons, the PSJ Plaintiffs are awarded $13,366.63 in attorneys' fees and costs. The claims are allowed as revised below. On September 17, 2010, the Court will issue a final chart setting forth the total allowable claim for each claimant, and will enter judgment on those amounts.
The Court grants Plaintiff's Fee Petition [27] in part and denies it in part. The Court awards attorney's fees to Plaintiff in the amount of $1975.00.
Before the Court is Plaintiff's Fee Petition, which Plaintiff filed pursuant to the Court's October 13, 2011 Order. For the following reasons, the Court grants Plaintiff's Petition in part and denies it in part.
On May 23, 2011, Plaintiff served all Defendants with a First Set of Interrogatories and a Request for Production of Documents (the "Discovery Requests"). (R. 27 at 1.) Defendants failed to provide responses to the Discovery Requests, despite Plaintiff asking for responses from the Defendant several times and agreeing to an extension of the time to respond. (Id. 1-2.) As of August 31, 2011, Plaintiff still had not received responses to the Discovery Requests, and he therefore filed a motion to compel. (R. 16.) At a status hearing held on September 7, 2011, the Court granted Plaintiff's motion to compel and ordered the Defendants to answer all outstanding discovery by no later than September 21, 2011. (R. 18.)
Defendants failed to comply with the Court's order. On September 23, 2011, Plaintiff filed a motion for sanctions against Defendants. (R. 19.) Plaintiff presented his motion to the Court on September 30, 2011, at which time the Court denied the motion without prejudice and gave leave to reinstate the motion if Defendants did not produce the requested materials by October 7, 2011. (R. 22.) At the parties' status hearing on October 13, 2011, Plaintiff renewed his motion for sanctions because the Defendants did not produce the requested materials by October 7, 2011. The Court granted Plaintiff's motion and directed Plaintiff to file a fee petition by October 27, 2011. (R. 24.)
Plaintiff seeks attorney's fees in the amount of $2,250.00, which represents the time Attorney Jonathan R. Ksiazek spent in 1) preparing and filing a motion to compel, a motion for sanctions, and the fee petition; and 2) appearing in Court on three separate occasions to obtain the necessary discovery responses. Defendants do not object to Plaintiff's Petition.
When determining whether attorney's fees are reasonable, the Court considers the lodestar figure, namely, "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Enoch v. Tienor, 570 F.3d 821, 823 (7th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The "lodestar figure is the `starting point'" and "[o]nce that figure is determined, the court may consider other factors set out in Hensley," which "include whether the documentation of the hours is adequate and whether `billing judgment' was used." Enoch, 570 F.3d at 823-34. Courts are mindful that a "request for attorney's fees should not result in a second major litigation." Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir. 2010) (quoting Hensley, 461 U.S. at 437). "In light of this concern, as well as the fact that determining what qualifies as a `reasonable' use of a lawyer's time is a highly contextual and fact-specific enterprise," district courts have wide latitude when awarding attorney's fees. Sottoriva, 617 F.3d at 975.
The party seeking an award of attorney's fees has the burden of proving the "reasonableness of the hours worked and the hourly rates claimed." Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999) (citing Hensley, 461 U.S. at 433). The court has "an obligation to exclude from this initial fee calculation hours that were not reasonably expended on the litigation." Id. (citations and internal quotation marks omitted); Stark v. PPM Am., Inc., 354 F.3d 666, 674 (7th Cir. 2004) (courts should exclude from the fee petition "excessive, redundant, or otherwise unnecessary" time spent).
In support of his Petition, Plaintiff submits an affidavit from Attorney Johnathan Ksiazek. Mr. Ksiazek is a third-year associate attorney with the law firm of Ed Fox & Associates. (R. 27, Affidavit ¶ 6.) Mr. Ksiazek has considerable experience litigating and trying civil rights cases given his relatively short career as a lawyer, and the usual and customary rate for his services is $250.00 per hour. (Id. ¶¶ 4-6.) Defendants do not challenge the propriety of Mr. Ksiazek's hourly rate. Because this is the rate Mr. Ksiazek charges his clients, and because the rate is consistent with Mr. Ksiazek's legal experience and quality of work performed in this case, the Court finds that it is a reasonable rate. See Mostly Memories, Inc. v. For Your Ease Only, Inc., 594 F.Supp.2d 931, 934 (N.D. Ill. 2009) ("[t]he best evidence of the value of the lawyer's services is what the client agreed to pay him" and therefore an attorney's actual billing rate is "presumptively appropriate" for use as the market rate).
Mr. Ksiazek avers that he spent a total of nine hours bringing the Defendants' discovery deficiencies to the attention of the Court and obtaining the Court's orders granting the motion to compel and motion for sanctions. (R. 27, Affidavit ¶ 8.) He attaches his time sheets evidencing the entries related to the motion to compel, motion for sanctions, discussions with Defendants' counsel regarding discovery deficiencies, and relevant court appearances. (Id. at Ex. 2.) A few of the time entries, however, do not appear to relate to his attempts to procure discovery from Defendants, but rather relate to producing discovery material to Defendants on behalf of his client. See, e.g., 9/14 entry for 54 minutes for "Meeting with client to review new discovery and finalize production"; two 9/19 entries for a total of 13 minutes re "send[ing] out discovery documents." Those entries, which total one hour and seven minutes, do not relate to Plaintiff's attempt to procure discovery responses from the Defendants, and therefore the Court will not award attorney's fees for that time. Accordingly, the Court awards attorney's fees for 7.9 hours at a rate of $250 per hour, for a total award of $1975.00.
For the reasons set forth above, the Court grants Plaintiff's Fee Petition in part and denies it in part. The Court awards attorney's fees to Plaintiff in the amount of $1975.00.
MATTHEW F. KENNELLY, District Judge:
Thaddeus Jimenez sued City of Chicago and Jerome Bogucki, a former Chicago police detective, for claims arising from his wrongful conviction of the murder of Eric Morro. Jimenez served approximately sixteen years in prison before his conviction was vacated and he was released. In January 2012, a jury returned a verdict in favor of Jimenez and awarded him $25 million. In July 2012, the Court denied defendants' motion for a new trial and their motion for judgment as a matter of law.
Jimenez has now petitioned for an award of attorney's fees pursuant to 42 U.S.C. § 1988. "The most useful 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 v. Eckerhart, 461 U.S. 424, 433 (1983). This "lodestar" figure can then be adjusted based on twelve factors described in Hensley. Id. at 434 n. 9.
A reasonable hourly rate is "one that is derived from the market rate for the services rendered." Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011) (internal quotation marks omitted). If the attorney has an actual billing rate that he or she typically charges and obtains for similar litigation, that is presumptively his hourly rate. Id. In some situations, however, the attorney does not have an established market rate, for example, because he or she typically uses contingent fee arrangements or relies on statutory fee awards. In that situation, a court should rely on the "next best evidence" of the attorney's market rate, namely "evidence of rates similarly experienced attorneys in the community charge paying clients for similar work and evidence of fee awards the attorney has received in similar cases." Id. (internal quotation marks omitted). "The fee applicant bears the burden of `produc[ing] satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community.'" Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). If the applicant satisfies this burden, then the opposing party has the burden to offer evidence "that sets forth a good reason why a lower rate is essential." Id. (internal quotation marks omitted).
Plaintiff has offered a significant amount of evidence concerning the appropriate hourly rates. This includes affidavits by the attorneys the present case; affidavits of experienced civil rights attorneys who were not involved in this case; affidavits of attorneys that were submitted by fee applicants in other litigation; and citations to fee awards in other cases. Defendants have supported their position with affidavits of attorneys that were submitted by fee applicants in other litigation and citations to fee awards in other cases. $495 is fully warranted based on Loevy's "experience, reputation, and ability." Hensley, 461 U.S. at 430 n.3.
Mandell, Rauscher, and Mazur are appropriately compensated at rates similar to each other given their relative experience, with Mazur a bit higher than the others to account for her greater degree of experience. Each of them is appropriately compensated at levels significantly below the rates cited by plaintiff for significantly more experienced plaintiff's civil rights attorneys ($395 to $425). See Pl.'s Mem. at 8-9. It is also appropriate to compensate them at a somewhat lower level than their colleague Feldman, who has a greater level of litigation experience and law practice experience. The Court approves a rate of $300 for Mandell and $275 for Rauscher and Mazur.
Pickett, 664 F.3d 649-50 (internal quotation marks and citations omitted). Given these concerns and the Seventh Circuit's expressed preference for other, more direct measures of reasonable hourly rates, the Court has not relied on the Laffey Matrix in the present case.
The following chart lists the hourly rates the Court has determined for each lawyer and paralegal; the agreed-upon compensable hours for each; and the total fees awarded for each lawyer and law firm.
The parties have agreed to expense awards in the following amounts: $54,859 for MacArthur Justice Center; $57,962 for Valorem Law Group; and $29,226 for Loevy & Loevy. The total of these amounts is $142,047. See Pl.'s Mem., Ex. A.
For the reasons stated above, the Court grants plaintiff's petition for attorney's fees and costs [dkt. no. 345]. The Court awards plaintiff attorney's fees of $1,740,899.20 and costs of $142,047 pursuant to 42 U.S.C. § 1988.
