Opinion
Case No. 97 C 8950
February 18, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff, Miguel Perez ("Perez") petitions this court for an award of attorney's fees and costs. Additionally, Perez has filed a motion to strike the defendant, Z Frank Oldsmobile, Inc.'s ("Z Frank"), response to Perez's petition for violating Local Rule "47." The court addresses the petition for attorney's fees and costs and the motion to strike herein.
On June 10, 1999, after a jury trial, this court entered a judgment in favor of Perez in the amount of $34,500.00 in compensatory damages and $515,000.00 in punitive damages. This case involved allegations that (1) Z Frank knew or should have known that the used Oldsmobile sold to Perez was a lemon; (2) had had more than one previous owner, despite the representation made to Perez; and (3) that the odometer on the car had been rolled back.
On August 30, 1999, Perez filed a motion to strike Z Frank's response to his petition for fees and costs for violating Local Rule "47." The court notes that the Local Rules have been renumbered and the appropriate Local Rule is 54.3. As such, in this opinion, the court refers to the update version and Local Rule 54.3. Local Rule 54.3 "was promulgated to promote amicable resolution and lessen the burden on the court by defining the areas of actual disagreement between the parties to a fee petition dispute." South/Southwest Assoc. v. Village of Crestwood, 985 F. Supp. 833, 834 (N.D. Ill. 1997)
In this case, Perez has replied to Z Frank's response, effectively waiving the need for a joint statement under Rule 54.3. Both parties have submitted evidence of correspondence between them in which they discussed the agreed and disagreed amounts relating to this issue. Although pursuant to Local Rule 54.3, parties submit a joint statement of the areas in which they agree and disagree, Z Frank has indicated in his response the areas in which he disagrees with Perez's petition. The response — reply approach by the parties has sufficiently defined the dispute between the parties with regards to fees and costs, and "district courts have discretion in interpreting and applying their local rules." Tenner v. Zurek, 168 F.3d 328, 331 (7th Cir.) (upholding the district court's decision to excuse compliance with Local Rule 54.3). Therefore, the court denies Perez's motion to strike Z Frank's response.
The parties do not dispute whether fees and costs should be awarded; they disagree as to the amount. The amount of attorney's fees is arrived at by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate, resulting in the "lodestar figure." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (U.S. 1983), Bryant v. City of Chicago, Nos. 99-1272, 99-3475, 2000 WL 36711, *9 (7th Cir.). Perez's attorney, Joseph Longo ("Longo") has submitted documentation indicating that he worked 1,241 hours on this case over the course of three years. In his initial petition, Longo stated that his hourly rate was $185.00. Z Frank responded that this was a reasonable hourly rate. However, in a motion to supplement his petition, Longo raised his rate to $225.00 per hour because of the complexity of the case and the undesirability of the case. According to Longo, the case ventured into uncharted legal waters.
In calculating an attorney's fee award, the Supreme Court had elucidated the factors that the court should consider when awarding fees, including, the time and labor required on the case; the novelty and difficulty of the issues; the skill required; whether the attorney was precluded from working on other cases; the customary fee; whether the fee is fixed or contingent; time limitations; the monetary amounts involved and the eventual result; the experience, reputation and ability of the attorney; awards in similar cases and the nature and length of the professional relationship between the attorney and client.Hensley at 441, 103 S.Ct. at 1943-44.
Included on the list of factors is also the "undesirability" of the case. Id. at 441, 103 S.Ct. at 1944. The case of Perez v. Z Frank Oldsmobile, Inc. was not an undesirable case. There was a significant amount of evidence which could lead a reasonable to jury to find Z Frank liable. The trial lasted less than a week, and only six witnesses testified. Therefore, the court declines to increase Longo's hourly rate, and the rate of $185.00 will be used in the fee calculation. Multiplying the 1,241 hours dedicated by Longo to the case by $185.00 per hour, the lodestar amount is $229,585.00.
Perez has also submitted a bill of costs for the time leading up to and including trial in the amount of $8,339.91. The court will award costs pursuant to 28 U.S.C. § 1920, Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54.1. According to the Seventh Circuit, "[d]istrict courts have broad discretion in determining whether and to what extent prevailing parties may be awarded costs." Weeks v. Samsung, 126 F.3d 926, 945 (7th Cir. 1997).
Z Frank raises the following objections to the petitions and requests that the fee amount be reduced by $24,438.50 and the costs be reduced by $1,578.89. Z Frank states that Longo's bill includes duplicative entries, calculation errors, clerical tasks billed at attorney's rates, items which were not filed and items which are excessive. The court will address Z Frank's ten objections in turn.
First, Z Frank objects to the 321 hours spent by Longo on research, arguing that for $185.00 an hour, Longo should have been more familiar and experienced with the issues in this case. However, despite numerous requests, Z Frank's attorneys have failed to turn over records revealing how many hours they dedicated to the case and how much money was billed. The court notes that this information exchange was also required under Local Rule 54.3(d)(5) Longo is a sole practitioner. Z Frank has submitted no case law indicating that 321 hours is an unreasonable amount of research time for a case spanning approximately three years. Therefore, the court overrules Z Frank's objections-to Longo's research time.
Second, Z Frank objects that he should not have to pay for Longo's travel time to and from Mount Prospect because Longo maintains an office in Cook County. Z Frank cites no law with regards to compensation for travel time. Longo has cleared up this discrepancy by pointing the court to Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir. 1984), in which the Seventh Circuit held that travel time is compensable. Moreover, Longo states that he has no office in Cook County; his only office is in Mount Prospect. Therefore, the court orders Longo reimbursed for travel time.
Third, Z Frank has used a computer program to locate what it considers are duplicative entries in Perez's petition. Z Frank's software points it to any entries which occur on the same day; however, Z Frank neglects to consider the fact that the alleged "duplications" occur when Longo is reviewing and revising work he has just produced. Therefore, the court will not reduce Perez's petition for Z Frank's alleged duplications.
Fourth, Z Frank objects that Longo's bill includes several entries which are dedicated to "drafting minute orders." Longo replies that he was following local procedure in submitting draft orders, which are often helpful to the court. The court rejects Z Frank's fourth objection.
Fifth, Z Frank objects that the bill of costs is too vague. However, Longo's bill included a description of the action that he took, the time allotted and the necessary dates. Furthermore, in the Reply, copies of invoices and receipts were also attached. Pl. Reply at Ex. VII. According to the Supreme Court, "[p]laintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures." Hensley, 437, 103 S.Ct. at 1941. Longo has sufficiently complied with this dictate and the court rejects Z Franks objection of vagueness.
Sixth, Z Frank argues that Longo overcharged for court appearances which only took a few moments. As Longo has indicated, his appearances include travel time, which this court agrees should be included in his bill. Henry at 194.
Seventh, Z Frank objects to the five hours that Longo spent reviewing the deposition of Z Frank's expert because the expert was never called to testify at trial. In reply, Longo reveals that Z Frank did not alert Longo that the expert would not be testifying until the day that Z Frank was scheduled to present its defense at trial. The appropriate standard is whether this cost was reasonably necessary for the case, not whether it was necessary for trial. State of Illinois v. Sangamo Constr. Co., 657 F.2d 855, 867 (7th Cir. 1981).
Z Frank's eighth objection is moot because Z Frank argues that Longo has not submitted any invoices or other documentation. As discussed, Longo has submitted copies of invoices. See Pl. Reply at Ex. VII, see also Henry at 194 (allowing recovery for costs such as photocopying, telephone calls, postage, and extra secretarial help).
Ninth, Z Frank argues that it is being billed for "nothing." Z Frank indicates that Longo's bill included the entry "review" of "lack of answer." Longo notes that Z Frank was late in filing an answer to the complaint; therefore, Longo reasonably spent time seeking an answer from the defendant and checking the court file for the answer.
Tenth, and finally, Z Frank asserts that Longo engaged in excessive discovery motion practice. Longo cites to no examples of what excess Longo engaged in, nor does it cite to any law as to what is considered excessive. Furthermore, a review of the record reveals that discovery was not excessive in this case.
In his supplement to his petition, Longo adds fees and costs for the preparation of this bill as well as for the time spent attempting to collect judgment from Z Frank. Longo has spent an additional 39.6 hours. Courts have awarded fees for these reasons; therefore, the bill is supplemented. See 496 U.S. 154, 162, 110 S.Ct. 2316, 2321, Chrapliwy v. Uniroyal, Inc., 509 F. Supp. 442, 454 (N.D. Ind. 1901) rev'd on other grounds, 670 F.2d 760 (7th Cir. 1982). At an hourly rate of $185.00, this increases the attorney's fee award, which the court determined as $229,585.00 by $7,326.00. The bill for costs of $8,339.91 is increased by $173.25.
CONCLUSION
THEREFORE, for the foregoing reasons, the court finds as follows:
1. Plaintiff's motion to "strike Z Frank's response to plaintiff's petition for attorney's fee for violating Local Rule 47" is denied;
2. Plaintiff's petition for fees is granted in the amount of $236,911.00;
3. Plaintiff's motion for costs is granted in the amount of $8,513.16; and
4. Plaintiff's pending motion for turnover of insurance proceeds is dismissed, as it was granted on September 16, 1999 in open court.
IT IS SO ORDERED.