Opinion
No. 96 C 0356.
March 11, 1998
MEMORANDUM OPINION AND ORDER
Plaintiff Ronnie Lawyer was formerly employed by defendant 84 Lumber Company. Plaintiff's complaint contained five counts: (I) racial harassment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (II) race discrimination in violation of Title VII; (III) retaliation in violation of Title VII; (IV) interference with contract in violation of 42 U.S.C. § 1981; and (V) state law interference with contract. At trial, plaintiff voluntarily dismissed counts III, IV, and V. The jury returned a verdict in plaintiff's favor on Counts I and II and awarded him $75,000 in compensatory damages and $250,000 in punitive damages. Defendant's post-trial motions were granted in part and damages were reduced to $50,000 compensatory and $150,000 punitive. See Lawyer v. 84 Lumber Co., 991 F. Supp. 973, 1997 WL 827395 (N.D. Ill. Nov. 26, 1997). Plaintiff accepted the remittitur and no appeal was taken from the amended judgment. Presently pending are plaintiff's bill of costs and his motion for attorney fees and related non-taxable expenses.
The parties have complied with Local Rule 47 by first meeting to attempt to resolve their differences and then setting forth their remaining disputes. By limiting their presentation to the remaining disputes, however, plaintiff never submitted the time records of the undisputed hours for which defendant seeks a percentage reduction. The motions will be resolved on the records presented.
Plaintiff seeks attorney fees for the work of four attorneys and one paralegal. For the attorneys, plaintiff seeks compensation for 526.75 hours of out-of-court time, 103 hours of in-court time, and 67 hours of non-legal time. For the paralegal, he seeks compensation for 97.5 hours. Applied to the claimed rates this totals $102,887.50. Defendant disputes some of the billing rates and, as to hours, contends it should be 428 hours of out-of-court time, 102.5 hours of in-court time, 67 hours of non-legal time, and 58 hours of paralegal time. Applied to defendant's proposed rates, this totals $79,743.75. Defendant also contends that the fees should be reduced 50% based on a partial success for a reimbursable amount of $39,871.88. By comparison, defendant's counsel billed defendant $121,261.25.
The parties do not explain what the non-legal time is. However, there is no objection to this time.
The specific objections to hours will be considered first. The letters used below correspond with the sections of the parties' briefs.
A. Paralegal Time at Trial. Defendant objects that attendance of the paralegal at trial was an unnecessary expense because there were already two attorneys at the trial. Plaintiff responds that, unlike defendant's counsel who have offices across the street from the courthouse, the office of plaintiff's counsel is in Woodstock, Illinois, well outside downtown Chicago. Also, on one day, only one attorney for plaintiff was in court. Plaintiff represents that the paralegal helped the attorneys in taking notes, but also acted as a liaison with witnesses and other activity outside the courtroom. Plaintiff also points out that defendant had three attorneys present in the courtroom. This use of the paralegal is found to be reasonable.
B. Time on Other Matters. Plaintiff concedes that these hours were incorrectly included in the fee petition. Skowron's out-of-court time will be reduced by 1 hour and Harrison's by .5 hours.
C. Attorney Performance of Clerical Work. One attorney billed .75 hours for three telephone calls to make hotel reservations for the trial. Plaintiff justifies this on the ground that he requested a personal favor of the hotel manager so as to obtain a discounted rate. Nevertheless, this is a clerical task and should not be charged to defendant. Funk's out-of-court time will be reduced by .75 hours.
One attorney charged 1.25 hours to pick up a fax enlargement. Plaintiff claims this had to be done by an attorney because the printer was refusing to reproduce it based on the contents of the document and so that the attorney could ensure that the enlargement was appropriate for presenting in the courtroom. This time will not be charged to defendant because the enlargement itself was unnecessary. Making a standard-sized copy for each juror would have been sufficient. Harrison's out-of-court time will be reduced by 1.25 hours.
One attorney charged 2.0 hours to file plaintiff's bill of costs. That is a purely clerical task. Defendant will not be required to pay for the attorney's time to perform that task. Hanson's time will be reduced 2 hours. D. Jagotka Subpoena. Defendant objects to attorney and paralegal time spent on unsuccessfully seeking to obtain the appearance of Paul Jagotka as a witness at trial. Much of this time was spent on preparing or serving a subpoena, even though Jagotka was beyond the court's subpoena power. Jagotka did not appear at trial and his deposition was used instead. Since this was an unsuccessful expenditure of time, it will not be compensated. See Doll v. Brown, 1995 WL 579287 *5 (N.D. Ill. Sept. 29, 1995). Out-of-court time will be reduced by 3.5 hours for Harrison and .25 hours for Funk, and 3.5 hours for the paralegal.
E. Jury Demand and Statute of Limitations Issues. 14.75 hours of attorney time was expended on a motion for leave to file a late jury demand. Defendant does not object to the amount of time spent on that issue. It objects that the time was only made necessary because of an attorney failure to file a jury demand with the original complaint. It could also be argued that much of the time was made necessary by defendant's decision to oppose the filing of the jury demand. In any event, plaintiff's motion was granted. See Lawyer v. 84 Lumber Co., 1997 WL 24748 (N.D. Ill. Jan. 17, 1997). Fees will not be denied for time expended on this successful motion. Defendant also objects to 16.5 hours devoted to a motion in limine concerning the statute of limitations, claiming this resulted from counsel's delay in filing this action. Again, plaintiff was successful; no claims were dismissed as untimely. These hours will not be excluded from the fee petition.
F. Conference Time. Defendant objects that 54.75 hours of attorney time and .25 hours of paralegal time is labeled only as "conference with client" or "teleconference with client." It also objects to .5 hours of attorney time and 3 hours of paralegal time labeled only as "letter to client" or "research" and .25 hours of paralegal time listed as "teleconference with Matt Schalz." Defendant complains that these designations are too indefinite to determine if they were devoted to the issues in this case. Neither side provides any information as to when in the case this time was expended.
The burden is on plaintiff to substantiate the time claimed.Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Plaintiff responds with a general assertion that all the time claimed related to this litigation. Obviously, some conference time with the client was necessary. Approximately 55 hours would not be presumptively excessive. Because of the lack of specificity, this time will be reduced by approximately 20%. Skowron's out-of-court time will be reduced by six hours and Harrison's by five hours. G. Subpoena Time. Defendant complains that 4 hours of attorney time to draft 16 subpoenas is excessive. This appears true. Harrison's out-of-court time will be reduced by 3 hours.
H. Temporary Restraining Order. Defendant objects to 2.75 hours expended on considering the possibility of a Motion for Temporary Restraining Order that was never filed. That time will not be compensated. Skowron's out-of-court time will be reduced by 2.5 hours and the paralegal's time by .25 hours.
I. Other Telephone Calls. Defendant objects to time labeled as the paralegal's telephone call to Judge Williams's minute clerk. Plaintiff, however, explains that this is a typographical error that should read Judge William Hart. This time will be compensated.
Defendant also objects to a .25 hour telephone interview with a television reporter. That time will not be compensated. Funk's out-of-court time will be reduced by .25 hours.
J. Maggi Telephone Call. Defendant objects to a .25 hour conversation with witness Steven Maggi who complained to counsel of intimidation. Defendant objects because this conversation took place after the completion of the trial. It, however, concerned a matter related to the trial. The time will be compensated.
Taking into account the aforementioned rulings, the allowable time for each attorney and the paralegal is as follows. Harrison: 246.25 out-of-court; 43.75 in-court; 23.25 non-legal. Funk: 118 out-of-court; 27.50 in-court; 9.25 non-legal. Hanson: 13.25 out-of-court. Skowron: 123.25 out-of-court; 31.75 in-court; 34.5 non-legal. Paralegal: 93.75 hours.
Defendant does not dispute the claimed rate of $100 per hour for all non-legal time. It also does not object to $75.00 per hour for the paralegal. There is no objection to Harrison's rates ($150 out-of-court, $175 in-court) or Skowron's rates ($125 out-of-court, $150 in-court). Defendant does object to rates for two associates. Plaintiff uses $150 per hour for Funk's in-court time and $125 per hour for Funk's and Hanson's out-of-court time. Defendant contends all three of those rates should be $100 per hour. Hanson graduated from law school in 1996 and was admitted to the Illinois bar in May 1997. Funk graduated from law school in 1995 and was admitted to the Illinois bar in 1996.
In support of its objection, defendant submits the affidavit of a partner at defendant's law firm, Brittain Sledz Morris Slovak, who states that the firm employs (1) a 1996 University of Michigan graduate who was admitted to the Illinois bar in 1996 whose time has been billed to clients at $100 per hour since admission to the bar and (2) a 1994 Loyola University graduate who was admitted to the Illinois bar in 1994 whose time was billed to clients at $100 per hour in 1995 and $110 per hour in 1996. No description is provided of the type of work these associates perform. In response, plaintiff provides the affidavit of Sandra Nye stating that "[s]ince 1993 and continuing through the present, Sandra G. Nye and Associates has and continues to hire recent law school graduates as associates and bills their time and legal services rendered to the client at a rate of $150.00 per hour." No description is provided of the background of any such associate or the type of work they perform. Defendant also cites $100 per hour rates used in three Northern District of Illinois decisions from 1990, 1991, and 1997.
Since no adjustment is being made for any delay in payment, the rate to be used is the one in effect at the time the fee award is made. See Smith v. Village of Maywood, 17 F.3d 219, 221 (7th Cir. 1994); In re Continental Illinois Securities Litigation, 962 F.2d 566, 571 (7th Cir. 1992). The best evidence of current rates is the rate the attorney charges to paying clients for the same or similar work. See Eddleman v. Switchcraft. Inc., 965 F.2d 422, 425 (7th Cir. 1992). Plaintiff has not submitted any such evidence. Therefore, the rates charged by other lawyers in the Chicago area of similar ability and experience may be considered. See id. at 424-25. The affidavits submitted by the parties are of limited value. Therefore, recent employment discrimination cases from this district have been examined. Considered in light of cases from the last few years, the rates proposed by plaintiff appear to be within the range that the market presently will bear. Compare Noga v. Kimco Corp., 1998 WL 9127 *3 (N.D. Ill. Jan. 6, 1998) (uncontested rate of $100-120 per hour for non-trial work of a third-year associate); Webb v. James, 967 F. Supp. 320, 323-24 n. 4-5 (N.D. Ill. 1997) (voluntary reduction from $150 per hour to $125 per hour for nontrial work of associate admitted to practice in November 1994; voluntary reduction from $150 per hour to $100 per hour for nontrial work of associated admitted to practice in November 1995; $135 per hour for nontrial work of associate with three years' experience); Shea v. Galaxie Lumber Construction Co., 1997 WL 51655 *6 (N.D. Ill. Feb. 5, 1997) ($125 per hour for associate admitted to practice in 1995); Sanders v. City of Chicago, 1996 WL 400053 *1-2 n. 1 (N.D. Ill. July 15, 1996) ($125 and $135 per hour for associates with one year of experience and $135 per hour for associate with two years' experience); Emmel v. Coca-Cola Bottling Co. of Chicago, Inc., 904 F. Supp. 723, 749 n. 13 (N.D. Ill. 1995), aff'd, 95 F.3d 627 (7th Cir. 1996) 65 per hour for highly skilled associate with little experience).Compare also McNabola v. Chicago Transit Authority, 10 F.3d 501, 519 (7th Cir. 1993) (upholding December 1991 rate of $100 per hour for the "most junior member of the litigation team"). The rates used by plaintiff will be employed in computing the lodestar.
The associate's date of admission is not mentioned in the opinion, but was found in Sullivan's Law Directory.
The lodestar of $99,025.00 is computed as follows:Attorney Hours Rate Fee 3,450.00 7,031.25
Harrison 246.25 OOC $150 $36,937.50 43.75 IC 175 7,656.25 23.25 NL 100 2,325.00 Funk 118.00 OOC 125 14,750.00 27.50 IC 150 4,125.00 9.25 NL 100 925.00 Hanson 13.25 OOC 125 1,656.25 Skowron 123.25 OOC 125 15,406.25 31.75 IC 150 4,762.50 34.50 NL 100 Attorney Subtotal $91,993.75 Paralegal 93.75 75 TOTAL $99,025.00 Still to be considered is defendant's contention that the lodestar should be reduced by 50% in light of plaintiff's partial success. Hensley v. Eckerhart, 461 U.S. 424 (1983), addresses the issue of the appropriate amount of fees to be awarded when a party is successful on some claims and unsuccessful on other claims. The basic rule is that fees should be awarded for any work that would have had to be done even if the unsuccessful claims had not been pursued. See Ustrak v. Fairman, 851 F.2d 983, 988 (7th Cir. 1988). This recognizes that much of what an attorney does is related to the case as a whole, not just specific issues or claims. See id. Here, all the claims were closely related and based on the same core facts. All the discovery plaintiff engaged in would have been necessary even if plaintiff had not included Counts III, IV, and V. There was never any motion to dismiss directed to any counts nor was there any motion for summary judgment. The only additional work that would have been required would have been the time spent drafting the additional counts of the complaint and any time spent drafting proposed jury instructions for these claims or any time spent addressing these claims in a trial brief. Such time was likely minimal. It is difficult to determine how much time because the entire time records were not submitted. Attorney fees will be reduced by $2,000 as an estimate of additional time that may have been expended by plaintiff's counsel on the dismissed counts. The attorney and paralegal fees to be awarded will be $97,025. It is also found that such an amount is reasonable in light of the damages obtained in this case and the amount defendant expended on attorney fees in defense of this case.Plaintiff's fee petition also includes a request for $2,141.85 labeled as "non-taxable expenses." This includes costs for photocopying, a witness's wage reimbursement, and costs of an investigator.
Plaintiff objects that the photocopying expenses should be considered waived because not included in the bill of costs. Although taxable as a cost, photocopying may also be awarded as an attorney fee, at least in locales such as Chicago where it is customary to bill clients for photocopying costs. Abrams v. Lightolier Inc., 50 F.3d 1204, 1225-26 (3d Cir. 1995). Also, even if the time limit of Local Rule 45(A) (30 days after a judgment to submit bill of costs) applies to the request for photocopy expenses, plaintiff's request was timely. On May 20, 1997, plaintiff first filed a combined motion for attorney fees and costs that included the photocopying as part of costs. That was less than 30 days after the judgment entered following trial. The fee petition presently under consideration was filed on August 4, 1997. Although that is more than 30 days after the May 9 entry of judgment following trial, it is within 30 days after the amended judgment entered on December 8, 1997 following timely post-judgment motions. The photocopying expenses have not been waived.
Plaintiff seeks 15 cents per page for in-house photocopying. Defendant contends it should be 8 cents per page. Costs for in-house printing may not exceed the costs of an outside print shop. Haroco, Inc. v. American National Bank Trust Co. of Chicago, 38 F.3d 1429, 1441 (7th Cir. 1994). Copying services in Chicago generally charge even less than 8 cents per page. The 8-cent rate suggested by defendant will be used. Cf. Doll, 1995 WL 579287 at *6 (5 cents per page).
Defendant also objects to items of copying which are labeled as case law for judge, deposition transcripts, and tax records. Plaintiff's response is to conclusorily assert that these were all necessary for the litigation. The burden is on plaintiff to show these items were necessary. Since the purpose of these items is not adequately identified, costs will not be awarded for them. Plaintiff will be awarded costs for the copying of 1,065 pages. At a rate of 8 cents per page, this comes to $85.20.
Plaintiff seeks reimbursement for a witness's (Steve Maggi) lost wages for the day he testified. Reimbursable costs for witnesses, however, are limited to $40 per day plus transportation expenses. See 28 U.S.C. § 1821; Exxon Chemical Patents. Inc. v. Lubrizol Corp., 131 F.R.D. 668, 674-75 (S.D. Tex. 1990); Bankston v. State of Illinois, 60 F.3d 1249, 1257 (7th Cir. 1995). See also West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991) (superseded in part by 42 U.S.C. § 1988(c) as regards expert witness fees). Plaintiff is entitled to $40 of costs as regards Maggi, but those expenses are already included in the bill of costs.
Defendant also objects to the fees claimed for an investigator. Costs of an investigator may be properly awarded as an attorney fee. Garmong v. Montgomery County, 668 F. Supp. 1000, 1011 (S.D. Tex. 1987). In response to defendant's objections, however, plaintiff provides no explanation of the expenses other than to conclusorily assert that the expenses were necessarily incurred for the litigation. Plaintiff has failed to meet his burden of showing that the costs were necessarily incurred in the litigation.
Still to be considered are the items contained in plaintiff's bill of costs. Defendant objects to Line 6, an $85.00 expense for locating Jagotka. Although not awardable as a cost, see Collins v. Gorman, 96 F.3d 1057 (7th Cir. 1996); Terrell v. Tufano, 1985 WL 3635 *2 (N.D. Ill. Aug. 14, 1985), it would be awardable as a fee under § 1988. See Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989); Perez v. Manhattan Jeep Eagle, 1997 WL 458787 *2 (S.D.N.Y. Aug. 11, 1997);Garmong, 668 F. Supp. at 1011. This expense will be included in the award.
Exhibit A to the bill of costs lists all the expenses. Attached to defendant's objections is a copy of Exhibit A with each line numbered. Since the parties' briefs refer to these line numbers, this opinion will as well.
Defendant objects to Line 11, transcript costs of Maggi's statement. Defendant objects because plaintiff took this statement without notifying plaintiff and therefore contends the statement must be considered purely investigatory. Even ignoring whether exigencies existed that justified taking the statement without notice, Maggi did testify at trial and there is no contention that defendant was denied access to the transcript. Additionally, even if a purely investigatory deposition could not be recovered as a cost, it would be recoverable as part of attorney fees. This expense will be included in the award.
Defendant objects to lines 22 and 23, which are costs for attempting to serve a trial subpoena on Jagotka. Just as the related attorney's fees were found to not be compensable, these costs will not be compensated.
Defendant objects to Line 36, the cost of the trial transcript. Defendant argues that only parts of the transcript were necessary for preparing a response to defendant's post-trial motions. Issues raised in the post-trial motions were not as limited as defendant contends. This cost will be compensated.
Without making a distinction as to which amounts are properly awarded as § 1988 fees and which amounts are properly awarded as § 1920 costs, the total award for fees and costs is $103,357.30, representing $97,025.00 for attorney and paralegal time, $85.20 for photocopying, and $6,247.10 that was included in the bill of costs.
IT IS THEREFORE ORDERED that plaintiff's amended bill of costs and motion for attorney fees and related nontaxable expenses [69-1, 2] are granted in part and denied in part. The Clerk of the Court is directed to enter judgment in favor of plaintiff and against defendant in the amount of $103,357.30 attorney fees and costs.