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awarding $75 per hour for work performed by summer associates
Summary of this case from Kaiser v. JBC Legal Group P.C.Opinion
95 Civ. 5449 (JFK)
August 15, 2001
David R. Lagasse, John E. Davis, PILLSBURY WINTHROP LLP For Plaintiff.
Stuart E. Kahan, OXMAN TULIS KIRKPATRICK WHYATT GEIGER, LLP For Defendants.
OPINION AND ORDER
On July 21, 1995, Plaintiff Wayne Hutchinson ("Hutchinson") brought suit, pro se, against the County of Westchester and Sergeant Richard W. McCabee ("McCabee") pursuant to 42 U.S.C. § 1983. Hutchinson sought $350,000 in damages for injuries arising from an assault by another inmate which occurred while he was incarcerated in the Westchester Correctional Facility. In February of 1997 the Pro Bono Panel of the Southern District of New York assigned the action to the law firm of Pillsbury Winthrop LLP, known until recently as Winthrop Stimson Putnam Roberts. Hutchinson rejected the Defendants' $10,000 settlement offer, and, after a five day trial, a jury found that Sergeant McCabee had violated Hutchinson's Eighth Amendment rights by failing to protect him from serious risk of injury; the jury awarded Hutchinson $392,000 in damages. Before the Court is Hutchinson's application for attorney's fees and costs incurred in litigating this case.
Claims against other Defendants initially named in the lawsuit were later dismissed.
Hutchinson had maintained that Westchester County was liable for failure to train McCabee adequately in protective custody procedures, but the jury rejected this claim.
The Civil Rights Attorney's Fees Awards Act of 1976 states that a district court "may allow the prevailing party [in a civil right case] . . . a reasonable attorney's fee as part of the costs," 42 U.S.C. § 1988(b) ("§ 1988"); the "district court retains discretion to determine, under all the circumstances, what constitutes a `reasonable' fee." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998). Hutchinson now seeks an award of attorneys' fees and reimbursement of costs totaling over $157,000. All parties concede that the Plaintiff was the prevailing party, and while the Defendants do not dispute that Plaintiff is entitled to a fee award they do dispute particular aspects of Plaintiff's request. Furthermore, Defendants maintain that, under the Prison Litigation Reform Act ("PLRA"), up to 25% of the judgment should be applied toward payment of the attorney fee award. The Court will first determine the amount to which Plaintiff's attorneys are entitled and then will address the issue of how much, if any, of the award of attorneys' fees and cost should be paid out of Plaintiff's judgment.
In a letter to the Court dated August 7, 2001, Plaintiff withdrew a request totaling $3465.25 which had been mistakenly added to his supplemental fee application. The Court notes one more minor error in Plaintiff's supplemental fee application. Plaintiff improperly classified clerical fees as part of the attorney's fee request; since clerical work is not normally compensated as part of an award of attorney's fees, see Colbert v. Furumoto Realty, Inc., 144 F. Supp.2d 251, 262 (S.D.N Y 2001), the Court treated these entries as costs.
I. ATTORNEY'S FEES A. Hourly Rate
The Second Circuit adheres to the lodestar approach to determining attorney's fees, in which a presumptively fair amount, the so-called lodestar figure, is calculated by multiplying "the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate."Hensley v. Eckerhart, 461 U.S. 424, 433(1983); see also Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir. 1998). "The lodestar should be based on `prevailing market rates.'" LeBlanc-Sternberg v. Fletcher, 143 F.3d at 764 (citation omitted). The PLRA, however, in order to deter frivolous lawsuits, capped the rate paid to attorneys representing prisoners at 150% of the hourly rate established for payment of court-appointed counsel. See 42 U.S.C. § 1997e(d)(3); see also Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997). The parties concede that the PLRA limits on hourly rates should apply, and in this District the hourly rate cap established by the PLRA is $112.50. Since each of Hutchinson's attorneys bills his work at a rate which exceeds this statutory cap, this Court holds that the hourly rate of $112.50 is reasonable for work performed by the attorneys in this case.
The current billing rate for Mr. Lagasse and Mr. Davis, both fourth year associates, is $290 per hour. The current billing rate for Mr. Paterson, a second year associate, is $215 per hour. See Lagasse Aff. ¶ 22.
Noting that courts customarily do not award full hourly rates for travel, see Wilder v. Bernstein, 975 F. Supp. 276, 286 (S.D.N.Y. 1997), Defendants argue that the hourly rate paid for travel time to Plaintiff's attorneys, David R. Lagasse ("Lagasse") and John E. Davis ("Davis"), should be reduced by half. Plaintiff claims reimbursement for the time it took Lagasse and Davis to travel for the initial client interview and to conduct depositions. Though customary, a reduction in the fee for travel time is not mandatory, and it would be within the Court's discretion to compensate counsel for travel time at the full hourly rate. See Jennette v. City of New York, 800 F. Supp. 1165, 1170 (S.D.N.Y. 1992). In this case it is not necessary to decide whether or not a reduction is appropriate; even if the Court were to reduce the hourly rate by fifty percent, that reduced rate would still exceed the statutory cap established by the PLRA. Therefore the Court will apply the hourly rate of $112.50 to all the hours properly billed by Plaintiff's attorneys, including the time spent travelling.
The Second Circuit has held that "current rates, rather than historical rates, should be applied in order to compensate for the delay in payment," LeBlanc-Sternberg v. Fletcher, 143 F.3d at 764, and both Lagasse and Davis currently bill at $290 per hour. See Lagasse Aff. ¶ 22. Half of that rate would be $145 per hour.
In addition, Defendants argue that the time Plaintiff's attorneys spent on research was excessive and that "the County should not have to pay for the attorney's education at the same rate for which it is paying for the prosecution of the claim." Kahan Aff. dated March 13, 2001 at 3. The Court agrees that counsel's education should not be part of the fee, but research is an essential part of legal practice, and Plaintiff asserts claims for time spent researching several different legal issues, including, particularly in the Second Circuit, the highly complex issue of qualified immunity. It may be appropriate to reduce the rate of pay of a purported expert who, while charging premium rates, found the need to spend inordinate amounts of time researching the law within his supposed field of expertise. See Jennette v. City of New York, 800 F. Supp. at 1170. That is not the case here. Plaintiff does not request reimbursement for research time at premium rates. In fact, due to the statutory cap, Plaintiff requests attorney's fees at a rate far below that normally billed by his attorneys. The Court finds that the hourly rate of $112.50 for research is fully reasonable in this case.
This affidavit is not paginated. Accordingly, the Court has assigned page numbers.
Plaintiff maintains that work performed by Elizabeth Edman ("Edman"), a law student working as a summer associate, should be compensated at the full statutory rate set for attorneys. Even though Ms. Edman's work was customarily billed out to clients at a rate which exceeds the statutory cap, see Lagasse Aff. ¶ 22 (noting that Edman billed at $175 per hour), the Court finds that an adjustment should be made because of Ms. Edman's lack of experience. See Reynolds v. Goord, 98 Civ. 6722 (DLC), 2001 WL 118564 at *2, 3 (S.D.N.Y. Feb. 13, 2001) (allowing compensation for law students at the full statutory rate but dividing the eligible hours in half to account for "inefficiencies" caused by inexperience). Rather than reduce the number of hours for which compensation will be awarded, the Court sets the hourly rate for Ms. Edman's work at $75. Similarly, the Court sets the hourly rate of $60 for all work performed by paralegals. See id. at * 2; see also Williams v. New York City Housing Auth., 975 F. Supp. 317, 324 (S.D.N.Y. 1997).
B. Hours
Having established the appropriate hourly rates, the next step in calculating the lodestar figure is to determine the number of hours reasonably spent in pursuing this lawsuit. In Hensley v. Eckerhart, the Supreme Court stated that "[c]ounsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. at 434; see also Quaratino v. Tiffany Co., 166 F.3d 422, 425 (2d Cir. 1999). Plaintiff's attorneys assert that they have complied with this mandate, but Defendants disagree, pointing to several allegedly duplicative or unnecessary billing entries. The Court will consider each of the Defendants' objections in turn.
First, Defendants claim that it was unnecessary for both Lagasse and Davis to travel to Ray Brook Federal Correctional Institution on May 1, 1997 to meet with Hutchinson. They also argue that it was unnecessary for both attorneys to participate in telephone conferences with the Plaintiff. I disagree. It was entirely reasonable for both attorneys to be present at the initial meeting with the client, and for both to discuss the case with him on the telephone as it progressed. Had Hutchinson been free to come to the attorneys' office for a meeting there would be no question that attendance at that meeting by both Lagasse and Davis was unreasonable or excessive. Accordingly, the Court permits payment for both travel and teleconference time for both attorneys.
Defendants further assert that the time associate Teague Paterson ("Paterson") spent attending the trial was unnecessary, maintaining that he acted mostly as an observer. The question of whether Patterson was a mere observer or, as Plaintiff contends, an "integral member of the litigation team," Pl.'s Reply Mem. at 1, is not easily settled. Paterson participated in the presentation of the case. He questioned one witness during the trial and prepared to cross-examine other witnesses who, although listed on Defendants' proposed witness list, did not testify. Paterson's role was relatively minor, but "[t]he use of multiple attorneys . . . is not unreasonable per se," Williamsburg Fair Housing Comm. v. Ross-Rodney Housing Corp., 599 F. Supp. 509, 518 (S.D.N.Y. 1984), and parties are not barred from receiving compensation for work performed by "an extra lawyer [sent] into court to observe and assist."New York State Ass'n for Retarded Children. Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983). In Quinn v. Nassau County Police Dep't, 75 F. Supp.2d 74, 78 (E.D.N.Y. 1999), it was ruled that a junior attorney, not yet been admitted to the bar, had served primarily as an observer at trial. Despite this, most of her billable hours involved her attendance at trial, and the court did not disallow compensation for that observation time, but merely reduced her billable hours by 20%. This was a rational ruling. See id.
In Rosasa v. Hudson River Club Rest., 96 Civ. 0993 (DLD), 1998 WL 106141 at *3 (S.D.N.Y. 1998), the court reduced the rate of compensation for a senior attorney who served as an assistant at trial, but did not deny compensation for his time. See id. Mr. Paterson's hourly rate has already been reduced by almost fifty percent by the PLRA, and I find, in my discretion, that his contribution at trial was substantial enough to warrant compensation at the statutory rate of $112.50 per hour. Paterson's trial hours will not be reduced. The Court further finds that the time billed by Mr. Paterson in connection with preparing the instant fee application and Reply brief is not excessive and will be allowed.
Defendants also challenge billing entries by attorneys and paralegals which lump together several tasks, since this practice "mak[es] it difficult, if not impossible to know specifically how much time was spent on a particular item." Defs.' Mem. at 4. Defendants cite two cases in support of their argument. See Wilder v. Bernstein, 975 F. Supp. 276, 286 (S.D.N.Y. 1998); Williams v. New York City Housing Authority, 975 F. Supp. at 327. In both Wilder and Williams courts rejected lumped billing entries where attorneys either combined items which should have been compensated at different hourly rates (such as time for travel to and attendance at meetings, where travel time was compensated at a lower rate), or mixed legitimate requests with requests for work which may not have been compensable at all. Obviously such "mixed-class" entries are properly excluded since, without more detail, a court cannot determine the proper compensation. Itemization of billing entries is not required, however, so long as the different tasks which have been lumped together are compensable at the same rate. See Rodriguez v. McLoughlin, 84 F. Supp.2d 417, 425 (S.D.N Y 1999) ("Although defendants are correct to some degree that block billing makes it more difficult for the Court to determine with precision exactly how much time was spent on each task, the practice of block billing is not prohibited in this Circuit."); see also Reynolds v. Goord, 98 Civ. 6722(DLC), 2001 WL 118564 at *3 (S.D.N.Y. Feb. 13, 2001). Detailed fee applications are preferable, but since Defendants have not identified any so-called "lumped" entries in Plaintiff's application which impermissibly combine items requiring different rates of payment, the entries are allowed.
Finally, Defendants' claim that paralegal time spent cite checking and preparing the opposition to McCabee's post-trial motion was excessive. They suggest that the amount of time spent cite checking an Opponent's brief should somehow be comparable to the time spent verifying authority cited in one's own submission, see Kahan Aff. dated July 9, 2001 at 2. This is an argument which ignores the different aims of these two tasks.
This affidavit is not paginated. Accordingly, the Court has assigned page numbers.
The Court finds that Plaintiff's request for compensation for eight hours of paralegal time for cite checking is neither unreasonable nor excessive and is allowed.
C. Adjustment
The calculation of the proper attorney's fee does not end with the determination of the lodestar figure, even though there is a "`strong presumption' that the lodestar represents a `reasonable' fee." Burlington v. Dague, 505 U.S. 557, 562 (1992). As the Supreme Court has noted, there are "considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the "results obtained.'" Hensley v. Eckerhart, 461 U.S. at 434. Defendants argue that, as an acknowledgment of the inevitable waste and duplication in the Plaintiff's fee application, the Court should reduce Plaintiff's award by ten percent. See Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (noting that courts have the discretion "to simply deduct a reasonable percentage of the number of hours claimed `as a practical means of trimming the fat from a fee application'"), quoting New York Association for Retarded Children v. Carey, 711 F.2d at 1146. Plaintiff counters that waste and duplication have already been removed from the application, and Defendants have not persuaded the Court otherwise.
The PLRA, by capping the hourly rate at a level far below what would customarily be billed by Plaintiff's attorneys, has essentially cut this fee application to the bone. There is no "fat" left to trim, and a downward adjustment is neither necessary nor appropriate.
Plaintiff, on the other hand, argues that it would be appropriate to augment the award in light of the excellent outcome achieved by Plaintiff's attorneys. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 760 (2d Cir. 1998) ("The most important factor in determining a reasonable fee for a prevailing plaintiff is `the degree of success obtained.'") (citation omitted); see also United States Media Corp., Inc. v. Edde Entertainment. Inc., 94 Civ. 4849(MHD), 1999 WL 498216 at *5 (S.D.N.Y. July 14, 1999). Having presided over the trial, I recognize that Hutchinson's attorneys worked diligently on his behalf and achieved a result which both vindicated Hutchinson's constitutional rights and surpassed his initial request for damages. Nonetheless, the Court does not find that this case constitutes one of the rare or exceptional cases which the Supreme Court has indicated warrant an upward adjustment of the lodestar figure. See Hensley v. Eckerhart, 461 U.S. at 435; see also Blum v. Stenson, 465 U.S. 886, 897(1984). Consequently there will be no upward or downward adjustment made to the lodestar figure.
II. COSTS
Plaintiff is entitled, under 42 U.S.C. § 1988, to reimbursement for the reasonable costs incurred in pursuing the litigation, although payment is not permitted for items which constitute routine office overhead. See LeBlanc-Steinberg v. Fletcher, 143 F.3d at 763. While there is no clear definition of what constitutes overhead, the Second Circuit has held that reasonable, identifiable out-of-pocket disbursements, which are ordinarily charged to clients, are recoverable. See United States Football League v. National Football League, 887 F.2d 408, 416 (2d Cir. 1989); see also Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d Cir. 1987) (providing a non-exclusive list of recoverable costs including "photocopying, travel and telephone costs").
Defendants state, without citing any legal support, that disbursements for charges such as word processing should be considered nonrecoverable overhead, see Kahan Aff. dated March 13, 2001 at 5, while Plaintiff asserts that these charges should not be considered overhead because they are identifiable out-of-pocket disbursements which are routinely billed to clients. The Second Circuit has recognized, in dicta, that word processing costs are not included in a law firm's overhead, see Henry v. Webermeier, 738 F.2d 188, 192 (2d Cir. 1984), and district courts in this Circuit have permitted reimbursement for word processing charges. See, e.g., Pastre v. Weber, 800 F. Supp. at 1127 (including charges for word processing in the fee award); Cool v. Police Dept., 620 F. Supp. 954, 957 (S.D.N Y 1985) (permitting full reimbursement for word processing); but see Carrero v. New York City Housing Auth., 685 F. Supp. 904, 909 (S.D.N.Y. 1988) (holding that word processing charges constitute non-reimbursable overhead), rev'd in part on other grounds, 890 F.2d 569 (2d Cir. 1989). The Court finds that these charges, identifiable and routinely billed to clients, do not constitute part of the firm's overhead and should be allowed.
Defendants do not specifically raise the issue of word processing costs in their Memorandum of Law.
Defendants also argue that "expenses incurred by Pillsbury Winthrop staff for filing papers, obtaining court decisions and service of subpoenas" should be disallowed. See Defs.' Mem. at 7. While courts concur that such administrative costs are not normally recoverable as attorney's fees, there is no consensus regarding whether requests for compensation should be declined entirely or whether the rate of compensation should merely be reduced. Compare, Sulkowska v. City of New York, 99 Civ. 4228(AGS), 2001 WL 428253 at *4 (S.D.N.Y. Apr. 25, 2001) (disallowing claims for "filing, photocopying, mailing, faxing, and service of papers"), and Marisol A. v. Guiliani, 111 F. Supp.2d 381, 390 (S.D.N.Y. 2000) (denying compensation for serving and filing papers),with Colbert v. Furumoto Realty, Inc., 144 F. Supp.2d 251, 262 (S.D.N.Y. 2001) (noting that time spent on clerical duties should be compensated, but at a lower clerical rate), Anderson v. City of New York, 132 F. Supp.2d 239, 244, 245 (S.D.N.Y. 2001) (same), and Knoeffler v. Town of Mamakating, 126 F. Supp.2d 305, 317 (S.D.N.Y. 2000) (same).
Noting that charges for filing and serving documents are identifiable expenses which Pillsbury Winthrop routinely bills to clients, and following the reasoning of Judge Preska in Lawson v. City of New York, 99 Civ. 10393(LAP), 2000 WL 1617014 at *2 (S.D.N.Y. Oct. 27, 2000), this Court will permit reimbursement for filing and service of documents, but at the reduced hourly rate of $50.
In a supplemental submission to the Court, Defendants raise the argument that, under Local Rule 54.1(c), the Court should deny Plaintiff's requests for reimbursement for the cost of obtaining deposition transcripts which were not used at trial, and for expert witness fees which were not previously authorized by the Court. Local Rule 54.1(c) is not dispositive regarding the recovery of costs in civil rights cases, however. "`[C]osts' pursuant to a section 1988 award include not only those costs ordinarily taxable pursuant to 28 U.S.C. § 1920, as implemented by Fed.R.Civ.P. 54(d)(1) and Local Rule 54.1, but also those reasonable costs that are ordinarily charged to clients in the legal marketplace." Anderson v. City of New York, 132 F. Supp.2d 239, 244 (S.D.N.Y. 2001); see also Shannon v. Fireman's Fund Ins. Co., 00 Civ. 1528(SAS), 2001 WL 637371 at *18; Lawson v. City of New York, 99 Civ. 10393(LAP), 2000 WL 1617014 (S.D.N Y Oct. 27, 2000). Therefore the appropriate standard is not whether such costs would be permitted under Local Rule 54.1(c), but whether the costs constitute reasonable, ordinarily billed expenses of litigation. The Court finds that both the costs for depositions and the expert witness fees for which Plaintiff requests reimbursement were entirely reasonable litigation expenses. Defendants do not contend that any of the depositions taken were unnecessary, and they cannot reasonably argue that it was excessive for Plaintiff, who did not hire expert witnesses of his own, to depose those experts identified by the Defense as potential witnesses. The costs are allowed.
The Court notes that this argument was not properly before the Court, since Plaintiff's Motion had already been fully briefed and these issues went beyond the scope of the additional briefing requested by the Court. Nevertheless, because of the importance of the dispute to both parties, the Court will consider the merits of Defendants' arguments.
Plaintiff argues that reimbursement for the deposition costs would actually be permitted under Local Rule 54.1(c)(2), citing Anderson v. City of New York, 132 F. Supp. at 246, but, since the Court finds the costs to be reasonable and recoverable under § 1988, it is not necessary to determine the scope of the Local Rule at this time.
III. CALCULATION OF AWARD
For, the reasons outlined above, the Court awards the following attorney's fees and costs to the Plaintiff:
ATTORNEY'S FEES
Type Total Hours Hourly Rate total
Attorneys 898.90 $112.50 $101,126.25
Summer Associate 59.25 $75 $4443.75
Paralegals 140.50 $60 $8430.00
Legal Research — — $1,929.43
Total award — — $115,929.43
COSTS
TYPE Total
Clerical Work; 25.05 hours @ $50 per hour $1,252.50 Court Reporters-depositions $10,213.12 Witness Fees-depositions $7,500.00 Daily Trial Transcripts $5,005.00 Postage $12.81 Express Courier Services $288.45 Messenger Fees $32.00 Trial Exhibits $626.77 Long-distance Telephone Calls $544.77 Word Processing Fees $826.62 Duplication Services-internal $3,699.56 Duplication Services-external $610.73 Total $30,612.33
The Court notes that there are three entries, totaling 1.25 hours, in which attorney Lagasse claimed compensation for filing documents with the court. See Lagasse Aff., Ex. A, entries for Feb. 27, 1997, May 14, 1998 and July 8, 1998. For the reasons detailed above, and consistent withLawson v. City of New York, 99 Civ. 10393(LAP), 2000 WL 1617014 at *2 (S.D.N Y Oct. 27, 2000), these hours were deleted from those compensated at the rate for attorneys and added to the clerical hours.
IV. PLRA'S OFFSET PROVISION
The PLRA was enacted on April 26, 1996, after the date on which Hutchinson filed the instant case but before his attorneys filed their first appearance. In addition to capping the hourly rate and total award for work performed on behalf of prisoners in a civil rights suit, the PLRA provides that "[w]henever a monetary judgment is awarded in an action . . . a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney's fees awarded against the defendant." 42 U.S.C. § 1997e(d)(2). No court in this Circuit has directly addressed whether this PLRA offset provision may be applied to cases brought before the PLRA was enacted. At the request of the Court, the parties submitted additional briefs regarding the application of this provision in the instant case. Defendants maintain that the offset provision should apply, and urge the Court to direct that 25% of Plaintiff's award be employed to satisfy Plaintiff's request for attorney's fees. Plaintiff argues that this would constitute an impermissible retroactive application of the PLRA, improperly changing the substantive obligations of the parties. For the reasons outlined below, the Court agrees with the Plaintiff.
The first step in deciding whether a statute should be applied retroactively is to determine whether Congress made an explicit statement regarding the statute's applicability. See Landgraf v. USI Film Products, 511 U.S. 244, 280(1994). "If there is no congressional directive on the temporal reach of a statute, we [then] determine whether the application of the statute to the conduct at issue would result in a retroactive effect." Martin v. Hadix, 527 U.S. 343, 352(1999). To decide whether the statute would have a retroactive effect, a court must determine "whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct; or impose new duties with respect to transactions already completed," Landaraf v. USI Film Products, 511 U.S. at 280, thereby "attach[ing] new legal consequences to events completed before its enactment." Id. at 270. If the statute would have a retroactive effect, and Congress has not explicitly mandated retroactive application, "then in keeping with our `traditional presumption' against retroactivity, [courts should] presume that the statute does not apply to that conduct." Martin v. Hadix, 527 U.S. at 352.
The Supreme Court has held that Congress did not expressly authorize retroactive application of the PLRA, see id. at 353-354, and the Second Circuit has noted, in dicta, that application of the PLRA offset provision "would retroactively impair the plaintiff's right to full compensation for the violation of his constitutional rights." Blisset v. Casey, 147 F.3d 218, 221 (2d Cir. 1998). In Collins v. Montgomery County Bd. of Prison Inspectors, 176 F.3d 679, 685-86 (3d Cir. 1999), the Third Circuit refused to apply the PLRA offset provision to a case which, like the instant case, was filed prior to the PLRA's enactment date, noting that "when [the Plaintiff] brought this action he could have anticipated applying to the court for an award of all of his reasonable attorney's fees." See also, Campbell v. Peters, 92 C 3265, Report and Recommendation, slip op. at 17-18 (N.D.Ill. Nov. 21, 2000) (holding that "requiring the plaintiff to use up to 25 percent of his jury award to pay fees here would be an improper retroactive application of the PLRA"),adoption recognized, 2001 WL 289783 at *2 (N.D.Ill. Mar. 15, 2001), rev'd on other grounds, ___ F.3d ___, 2001 WL 803899 (7th Cir. July 10, 2001).
This Court agrees with the analysis in Collins and Campbell. To make Hutchinson partially liable for attorney's fees and costs would certainly "attach new legal consequences to events completed before [the statute's] enactment," Landgraf v. USI Film Products, 511 U.S. at 270, and would, as the Second Circuit has noted, impair Hutchinson's rights.See Blisset v. Casey, 147 F.3d at 221. Following the Supreme Court's analysis in Martin v. Hadix, and weighing "considerations of fair notice, reasonable reliance, and settled expectations," Landgraf v. USI Film Products, 511 U.S. 270, this Court holds that the PLRA offset provision should not be applied in this case. Defendants cannot seriously argue that failure to apply the PLRA offset provision would disturb their "settled expectations," id., since they, like the Plaintiff, assumed throughout the course of the litigation that the Defendants would be liable for attorney's fees and costs should Hutchinson prevail at trial. Accordingly, no part of the Plaintiff's jury award will be applied towards the award of attorney's fees and costs.
Defendants' Memorandum in Opposition to Plaintiff's fee request does not even mention § 1997e(d)(2); indeed, Defendants did not argue that the PLRA offset provision should apply in this case until the Court raised the issue during oral argument.
Even if the PLRA offset provision applied in this case, it would be well within this Court's discretion to direct that only a nominal amount of Plaintiff's award be applied towards attorney's fees, See Campbell v. Peters, slip op. at 19 (citing cases), since the PLRA establishes only the maximum percentage of a plaintiff's award which may be applied.
CONCLUSION
In summation, the Court hereby orders that, pursuant to 42 U.S.C. § 1988, Defendant pay an amount of $115,929.43 to Pillsbury Winthrop for its services in connection with this case, and to reimburse Pillsbury Winthrop $30,612.33 for costs incurred in connection with this case. All amounts due are to be paid by September 17, 2001. This case remains closed. The Court hereby directs the Clerk of the court to prepare a Final Judgment in this matter, incorporating the amounts awarded by this Order into the Judgment entered on January 16, 2001.SO ORDERED.