Opinion
Case No. 95 C 5370
September 20, 2001
ORDER
Plaintiffs, Abraham Sonii and Rufus Jones, filed suit against their former employer, General Electric Co. ("GE"), for alleged violations of Title VII and the Civil Rights Act of 1964. The parties have entered a settlement agreement, and plaintiffs have filed a motion for attorneys' fees, costs, and interest. Before the court presently are two motions by plaintiffs: (1) "Plaintiffs' Motion for Withdrawal of GE's Response and [sic] Strike Certain Allegations and Affidavits" ("Motion for Withdrawal"); and (2) "Plaintiffs' Request for a Hearing on Plaintiffs' Motion for Attorneys' Fees, Costs and Interest" ("Request for a Hearing"). For the reasons set forth below, the Motion for Withdrawal is denied, and the Request for a Hearing is denied.
I. Motion for Withdrawal
A. Motion for withdrawal of GE's response
On January 30, 2001, GE filed its Response to Plaintiffs' Memorandum in Support of Their Motion for Attorneys' Fees, Costs and Interest. Contrary to a protective order entered on December 13, 2000, the response was not filed under seal or as a restricted document. However, on February 9, 2001, GE moved to withdraw the already filed brief and refile it under seal in accordance with the protective order. The court allowed GE to refile its brief correctly on February 14, 2001. Accordingly, plaintiffs' motion as to withdrawal of GE's response is denied as moot.
B. Motion to strike certain allegations and affidavits
1. Alleged breach of the parties' confidentiality agreement
In its response brief, GE objects to the attorneys' fees requested by the two firms that represented plaintiffs: Tressler, Soderstrom, Maloney Priess ("TSMP"); and Meites, Mulder, Burger Mollica ("MMBM"). Plaintiffs claim that in its response brief, GE made allegations regarding the parties' settlement and mediation efforts in contravention of two confidentiality agreements. Specifically, plaintiffs point to three instances in GE's brief in which GE, plaintiffs claim, breached their agreements: (1) GE's allegation that "[p]laintiffs' counsel refused to engage in rational discussion regarding reasonable fees and costs"; (2) GE's allegation that "the substantial efforts to resolve the attorneys fees and costs issue (which included a separate mediation session solely on the issue of attorneys fees) before filing the Joint Statement [as required by Rule 54.3] proved fruitless"; and (3) GE's recitation and objection to the number of hours spent by plaintiffs' counsel on settlement and mediation. (Resp. to Pls.' Mem. Supp. Mot. for Attorneys' Fees, Costs and Interest at 9.)
The parties' settlement agreement provides that "all settlement discussions, negotiations, statements, documents and records made, submitted and/or disclosed in connection with efforts toward settling the attorneys' fees and costs shall remain confidential and shall not be disclosed to anyone, specifically including, but not limited to, the Court." (Pls.' Mot. Attorneys' Fees, Costs and Interest Ex. 1 at 6.) In addition, the parties entered a Mediation and Confidentiality Agreement on June 29, 2000. That agreement provides that "[c]ommunications, negotiations, or settlement discussions by and between participants in the mediation shall be and remain confidential, not to be disclosed to any third party specifically including the court, administrative agency or arbitrator before which the controversy comes." ( Id. Ex. 1 Attach.)
The issue is whether the statements made by GE in its brief actually disclose "communications, negotiations, or settlement discussions" made by the parties during their efforts to settle attorneys' fees. They do not. The first reference to plaintiffs' counsel's refusal to engage in rational discussions, as well as the second reference to the mediation session to resolve attorneys' fees and costs issue, are general statements which do not disclose any communications made during the mediation session. The first three sentences of the paragraph to which plaintiffs object state:
Plaintiffs' counsel refused to engage in rational discussions regarding reasonable fees and costs. TSMP has not written off any of the enormous amount of time they indicated was attributable to this case of limited success. Therefore, the substantial efforts to resolve the attorneys fees and cost issues (which included a separate mediation session solely on the issue of attorneys fees) before filing the Joint Statement proved fruitless.
(Resp. to Pls.' Mem. Supp. Mot. for Attorneys' Fees, Costs and Interest at 9.) GE argues, and the court agrees, that this paragraph objects to TSMP's refusal to eliminate any of the time billed in its request for attorneys' fees. They do not point to any specific comments. To the extent that GE's allegations insinuate anything about what plaintiffs' counsel did or did not say during the efforts to resolve attorneys' fees, the court will disregard them. Finally, plaintiffs also object to GE's reference to hours spent in settlement and mediation. Similarly, this statement does not disclose any communication or negotiation made during that time. Plaintiffs' motion as to GE's alleged breach of the confidentiality agreements is denied.
2. Alleged violation of Local Rule 54.3
Next, plaintiffs move that certain affidavits submitted by GE must be removed because they violate Local Rule 54.3. Plaintiffs argue that GE submitted the affidavits of Mitzi Wyrick. Richard Schnadig, and Elizabeth Hubbard for the first time in its response brief, which means it withheld evidence past the deadline established by the local rule. Plaintiffs assert that in the Wyrick affidavit, "GE (for the first time) actually identifies the motions, briefs, arguments and other work [by plaintiffs' counsel] that it contends were either unnecessary or unsuccessful and that it objects to." (Pls.' Mot. for Withdrawal at 6.) Plaintiffs also claim that this affidavit specifies, for the first time, GE's objections to overstaffing and billing unreasonable hours by plaintiffs' counsel. Finally, plaintiffs argue that GE relies on the Schnadig and Hubbard affidavits as evidence to object to MMBM's rates, even though this was the first time that plaintiffs saw this evidence.
Local Rule 54.3(d)(5)(D) provides that within 21 days of receipt of the documents supporting the fee motion, the respondent must furnish "any evidence the respondent will use to oppose the requested hours, rates, or related nontaxable expenses." In the present case, plaintiffs submitted the affidavits they intended to use in support of their fee motion on October 30, 2000. The court ordered the defendant to submit its objections to fees and costs by November 15, 2000. GE did not submit its affidavits until it filed its initial response brief on January 30, 2001. This violates the local rule.
GE argues that the Wyrick affidavit "merely compiles information drawn from Plaintiffs' own billing records." (D.'s Resp. to Pls.' Mot. for Withdrawal at 2.) Therefore, plaintiffs could not have been unfairly surprised by its objections to plaintiffs' counsel's unnecessary or unsuccessful work, overstaffing, and unreasonable hours. In addition. GE argues that it already objected to the rates charged by MMBM, so the Schnadig and Hubbard affidavits also could not have surprised plaintiffs. GE fails to address the specific requirement imposed on it by Local Rule 54.3. The affidavits were furnished on January 30, 2001, in violation of the rule.
However, GE is correct that the affidavits offer no new objections. GE has already objected that "time spent on various projects is excessive, due in part to the large number of attorneys involved. . . . and the number of firms involved." (Pls.' Mot. for Attorneys' Fees, Costs and Interest Ex. 5 at 1.) GE has also objected to time spent on unsuccessful motions, unnecessary work, and duplicative work. GE also provided a lengthy list of its objections to billing entries for each date reported by both plaintiffs' counsel. The Wyrick affidavit provides a more detailed breakdown of those objections, but does not create new objections. In addition, GE has already objected to the rates charged by plaintiffs' counsel. The Schnadig and Hubbard affidavits merely provide more detailed argument and evidence to bolster that objection. "Local Rule [54.3] aims to promote `amicable resolution' by encouraging the parties to define their areas of actual disagreement regarding fee awards." Tenner v. Zurek, 168 F.3d 328, 331 (7th Cir. 1999). Although GE has clearly violated Local Rule 54.3, the affidavits contained in GE's response brief do not necessarily undermine that purpose. Furthermore, plaintiffs have failed to show how they have been prejudiced by the affidavits. Therefore, the affidavits will not be stricken. "We have recognized that district courts have discretion in interpreting and applying their local rules." Id. (finding no abuse of discretion where a district court excused the conference requirements of Local Rule 54.3, then Local Rule 47).
The court will decide whether these objections and GE's other conduct violated Local Rule 54.3 when it decides plaintiffs' fee motion on the merits.
Plaintiffs' motion to strike the affidavits is denied. However, if plaintiffs feel that GE's affidavits require them to alter the argument in their Motion for Attorneys' Fees, Costs and Interest, they are granted leave to file a supplemental brief addressing this issue within 14 days.
II. Request for a Hearing
Plaintiffs have also requested a hearing on the issue of attorneys' fees, costs, and interest before this court. This issue has been fully briefed, and the court has enough evidence to resolve it without a hearing. Plaintiff's request is denied.
Conclusion
For the reasons set forth above, Plaintiff's Motion for Withdrawal of GE's Response and [sic] Strike Certain Allegations and Affidavits is denied. Plaintiffs' Request for a Hearing on Plaintiffs' Motion for Attorneys' Fees, Costs and Interest is denied.
ENTER.