Opinion
No. 92 C 5722
February 20, 2001
MEMORANDUM OPINION AND ORDER
This case is before the Court on plaintiffs' petition pursuant to 42 U.S.C. § ("section") 1988 and Federal Rule of Civil Procedure ("Rule") 54(d) to recover the attorney fees, costs and expenses they incurred during the fees portion of this litigation. For the reasons set forth below, the Court finds that a reasonable attorney's fee is fifteen percent less than that which plaintiffs expended litigating their entitlement to fees. The Court cannot, however, determine the reasonable costs on the record before it. Accordingly, the Court orders plaintiffs to submit supplemental cost information within seven days of the date of this Memorandum Opinion and Order, after which time the Court will enter a final judgment on the fees portion of this case.
Discussion
In civil rights cases, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988 ("section 1988"). A reasonable attorney's fee, our court of appeals has held, includes fees plaintiffs expend "litigating their claim to fees." Bond v. Stanton, 630 F.2d 1231, 1235 (7th Cir. 1980). We have already determined that plaintiffs are prevailing parties within the meaning of section 1988. (See generally 10/5/00 Mem. Op. Order.) Thus, our only remaining task is to determine what a reasonable fee is for plaintiffs' counsel's work on the fees portion of this case. We do that in the same way that we determined a reasonable fee for the merits phase of this case: by applying the principles set forth in Hensley v. Eckerhart, 461 U.S. 424 (1983). In re Burlington N., Inc. Employment Practices Litig., 832 F.2d 430, 434 (7th Cir. 1987).
According to the Hensley Court, "[t]he 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." Id. at 433. Plaintiffs seek compensation for 1,681.74 hours of work on the fees phase of this litigation. The hourly rates plaintiffs seek for their private lawyers are those that the lawyers normally charge to their paying clients. (Mem. Supp. Pls.' Pet. Attorneys' Fees, Costs Expenses Incurred 8/97-Present, Ex. 4 ¶ 23.) The hourly rates plaintiffs seek for the ACLU lawyers are those charged by other Chicago lawyers of comparable skill and experience. (Id., ¶¶ 16-22.) To adjust for the passage of time, plaintiffs have used hourly rates for the year 2000 for all of its lawyers.
Defendants do not challenge the reasonableness of the number of hours or the hourly rates sought by plaintiffs. Having reviewed the materials submitted by plaintiffs, the Court finds that both are reasonable. The rates sought for the private attorneys, their usual hourly rates, and those sought for the ACLU lawyers, the rates of comparable attorneys in Chicago, have both been sanctioned by our court of appeals. Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) (noting that for private counsel "`the best evidence of the value of their time is the hourly rate which they most commonly charge their fee-paying clients for similar legal services.'") (quoting Berger, Court Awarded Attorneys Fees: What Is "Reasonable"?, 126 U.PA.L.REV. 281, 321 (1977)); People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996) (If the court is unable to determine the attorney's true billing rate, however (because he maintains a contingent fee or public interest practice, for example), then the court should look to the next best evidence — the rate charged by lawyers in the community of reasonably comparable skill, experience, and reputation.) (internal quotation marks and citation omitted). Moreover, though plaintiffs' counsel devoted a great deal of time to the fee issue, the nature of the dispute required it. This was not simply a fight over the propriety of billing rates or the efficiency of legal work. Rather, defendants contended that plaintiffs had not actually prevailed in the litigation and, thus, were not entitled to any fees at all. As a result, plaintiffs had to engage in another round of discovery relating to the impact the lawsuit had on the state hospitals at issue in the suit. Like most other aspects of this case, that discovery process was protracted and contentious, starting in the Fall of 1997 and ending two years later. Viewed in context, 1681.74 hours of work was not unreasonable for this dispute.
Multiplying the reasonable hours by the reasonable hourly rates yields a lodestar of $300,713.50. The analysis does not end with the lodestar, however. We must also consider the "results obtained" by the plaintiffs to determine whether the lodestar is a reasonable fee in this case.Hensley, 461 U.S. at 440. In the words of the Supreme Court:
Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.Id. Plaintiffs contend that they "obtained an excellent result during the fees phase of this litigation," and thus should recover the lodestar in full. We disagree.
To recover attorneys' fees for the merits portion of this case, plaintiffs had to establish that: (1) that they were prevailing parties; and (2) the fees they sought were reasonable in relation to the results they obtained. They succeeded on the former issue, but achieved only partial success on the latter. Plaintiffs maintained that they were entitled to the entire lodestar for the merits phase of the litigation because they had achieved all of the relief they sought. As we stated in our Memorandum Opinion and Order, the record did not support plaintiffs' proclamation of total victory. (See 10/5/00 Mem. Op. Order at 19-22.) Rather, the record indicated that plaintiffs had received meaningful, but not complete, relief on their claims. (Id. at 22.) Thus, we reduced by thirty percent the fees sought by plaintiffs for the merits phase of the case. (Id.)
Plaintiffs' limited success on the reasonableness issue requires a reduction of the lodestar, but not a large one. Though plaintiffs ultimately had to establish the reasonableness of the fees they requested, it was a subsidiary issue. In section 1988 cases, the reasonableness of requested fees is irrelevant unless and until a plaintiff "cross[es] the `statutory threshold' of prevailing party status." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989). Plaintiffs would be considered prevailing parties in this case, which ended in a settlement, only if the suit was a catalyst for change in the Illinois mental health system. As a result, most of the fees-related discovery and briefs were devoted to the catalyst issue. Because that issue was the heart of the fee dispute, and plaintiffs prevailed on it, they should recover the most of fees they expended to do so. We must, however, balance that victory with plaintiffs' failure to establish that the lodestar was a reasonable attorney's fee for the merits portion of the case. Given the relative importance of the two fee-related issues and plaintiffs' recovery of seventy percent of the fees-for-merits lodestar, the Court finds that a fifteen percent reduction in the fees-for-fees lodestar will properly account for the degree of success plaintiffs obtained in the fees phase of this litigation.
Though they do not dispute that Hensley applies to fees-for-fees awards, plaintiffs nonetheless argue that two "analogous" cases militate against reducing the lodestar. First, they point to Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988), in which the Seventh Circuit awarded a plaintiff all of the fees he expended defending his district court victory, though he was only partially successful on appeal. The court explained the reasoning behind its decision as follows:
A civil rights plaintiff who, having won a judgment in the district court, appeals, seeking a greater victory — and fails utterly in his appeal — will be hard pressed to demonstrate an entitlement to his attorney's fees on appeal, even though he remains the prevailing party in the underlying litigation. But when the defendant appeals and the plaintiff incurs expenses in defending against the appeal that are reasonable even though they are not crowned by complete success, ordinarily he should be entitled to reimbursement of those fees; he had no choice but to incur them or forfeit his victory in the district court.Id. at 990 (citation omitted).
The reasoning of the Ustrak court has no application to this case. Plaintiffs are not seeking fees they expended defending a decision on the merits of this case; they are seeking fees they expended litigating their entitlement to fees. There is nothing in the Ustrak opinion that suggests we should depart from the principles of Hensley in determining the reasonableness of the fees plaintiffs seek here.
Plaintiffs' reliance on Wallace v. Mulholland, 957 F.2d 333 (7th Cir. 1992) is similarly misplaced. In Wallace, the Seventh Circuit noted that "[n]either the Supreme Court nor this Court . . . require[s] any correspondence between the degree to which a plaintiff has financially prevailed and the attorney fees awarded to him." Id. at 339. Though accurate, that observation is inapplicable to this case. We are not, despite defendants' request, reducing the fees-for-fees lodestar to correspond to the reduction in the fees-for-merits lodestar. Rather, we are reducing it to reflect the limited success plaintiffs achieved in litigating their entitlement to fees, a reduction mandated by the principles of Hensley.
Appropriately reduced, the fees-for-fees lodestar is $255, 606.47. That does not end the matter, however. A fee award under section 1988 is not comprised solely of the cost of attorney time reflected in the lodestar. Rather, a reasonable attorney's fee also includes "expenses of litigation that are distinct from . . . statutory costs or the costs of the lawyer's time reflected in his hourly billing rates," like postage, long-distance calls, travel, expert witness costs, and costs for computerized legal research. Heiar v. Crawford County, 746 F.2d 1190, 1203 (7th Cir. 1984);Haroco, Inc. v. American Nat'l Bank Trust Co., 38 F.3d 1429, 1440 (7th Cir. 1994) (characterizing computerized legal research expenses as attorney's fees not costs).
Plaintiffs seek $9,339.90 for those kinds of expenses, a request to which defendants have lodged no objection. Having reviewed the materials submitted by plaintiffs, the Court finds that the expenses they request are reasonable and of a kind normally billed by lawyers to their clients. Because they are considered fees under § 1988, however, these expenses are subject to the fifteen-percent reduction. After the reduction, plaintiffs are entitled to $7938.91 for disbursement-type expenses.
Plaintiffs also seek to recover $10,699.79 in statutory costs under Rule 54(d). Once again, defendants have no objection. The type of costs for which plaintiffs seek to recover, costs for photocopies of filings and discovery and for transcripts of depositions and hearings, are recoverable under the Rule 28 U.S.C. § 1920. The only remaining question is whether they are reasonable and were necessary to the litigation.
Unfortunately, plaintiffs' submission does not contain enough information for us to make those determinations. Though plaintiffs have provided enough information with respect to the deposition transcripts to assure us that they are complying with Local Rule 54.1, they have not done so with respect to the hearing transcripts. Moreover, though the relevance of the Steiner, Cella, Stotland, Goldman and Newbanks depositions is apparent, plaintiffs have not sufficiently explained why the Reid deposition and the six hearing transcripts were necessary to the fee dispute. Accordingly, we order plaintiffs' counsel to submit supplemental information on those costs within seven days of the date of this Memorandum Opinion and Order.
Conclusion
For the reasons set forth above, the Court finds that a reasonable attorney's fee, including reasonable disbursement-type expenses, for the fees phase of this litigation is fifteen percent less than that which plaintiffs expended or $263,545.38 ($255,606.47 [$300,713.50-$45,107.03) + $7,938.91 [$9,339. 90-$1,400.99]). The Court cannot, however, determine the reasonable costs to which plaintiffs are entitled, until they submit supplemental information, which they are ordered to do within seven days of the date of this Memorandum Opinion and Order. After they have done so, the Court will enter a final judgment on the fees-for-fees portion of this litigation.