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L. H. H. v. Horton

United States District Court, N.D. Indiana, Hammond Division

March 10, 2015

L. H. H., a minor, by and through his mother and next friend, ESMERALDA HOLMAN HERNANDEZ, Plaintiff,


PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on an Affidavit of Fees [DE 36], filed by Plaintiff on February 2, 2015. The affidavit was filed pursuant to this Court's January 23, 2015 Order that Plaintiff was entitled to reasonable attorney fees and costs incurred in bringing a November 4, 2014 Motion to Compel. Defendants Gerald Horton, Angelo Bradshaw, and Gary Community School Corporation filed a response on February 19, 2015. (Defendant City of Gary did not file a response.) And Plaintiff filed a reply on March 2, 2015.

Plaintiff's attorney asks for $1, 450 in attorney fees. The objecting Defendants contend that no award of fees is warranted and, alternatively, that both the rate ($500 per hour) and the amount of time spent (2.9 hours) are excessive. The first objection is not well taken. As the Court noted in its January 23, 2015 Order, the issue before the Court at this point is not whether fees are warranted, but rather the appropriate amount of those fees.

Reasonable attorney fees under Rule 37 are calculated using the "lodestar" method, which is a reasonable hourly rate multiplied by the hours reasonably expended. Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir. 2012); Gautreaux v. Chi. Housing Auth., 491 F.3d 649, 659 (7th Cir. 2007) ("In calculating reasonable attorneys' fees, the district court should first determine the lodestar amount by multiplying the reasonable number of hours worked by the market rate." (quoting Bankston v. State of Ill., 60 F.3d 1249, 1255 (7th Cir. 1995)).

I. Reasonable Rate

A reasonable rate is one "derived from the market rate for the services rendered." Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011) (quoting Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003)). The market rate is defined as the rate for the relevant type of work normally charged by a lawyer of similar ability and experience in the community. See Gautreaux, 491 F.3d at 659.

"The fee applicant bears the burden of produc[ing] satisfactory evidence-in addition to the attorney's own affidavits-that the requested rates are in line with those prevailing in the community.'" Pickett, 664 F.3d at 640 (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). "If the fee applicant satisfies this burden, the burden shifts to the other party to offer evidence that sets forth a good reason why a lower rate is essential.'" Id. (quoting People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1313 (7th Cir. 1996) (quoting Gusman v. Unisys Corp., 986 F.2d 1146, 1151 (7th Cir.1993))).

1. Has Attorney Feuer Met His Initial Burden?

In figuring out whether an fee applicant has met the initial burden, the Court must first consider whether there is sufficient evidence to conclude that the attorney actually charges the amount he says he does for this type of work. Mathur v. Bd. of Trustees of S. Illinois Univ., 317 F.3d 738, 743 (7th Cir. 2003). If there is enough evidence to reach this conclusion, the burden has been met. Id.; Pickett, 664 F.3d at 640 ("We presume that an attorney's actual billing rate for similar litigation is appropriate to use as the market rate." (citing Denius, 330 F.3d at 930)).

Attorney Feuer's affidavit represents that he has been practicing law since 1984, primarily in the Chicago area, and that his current billing rate is $500 per hour for civil rights cases such as this one, which he believes is commensurate with the rate charged by other Chicago-area attorneys with similar experience and skill. He explains that, eleven years ago, when he was a partner at a large Chicago law firm, his rate was $350 per hour, and he believes that, had he stayed there, his current rate would be over $500 per hour. He also points to a recent order issued by the United States District Court for the Northern District of Illinois, approving a $500-per-hour rate for work he did in 2010 on a civil rights case. See McDonough v. Briatta, 935 F.Supp.2d 897, 903 (N.D. Ill. 2013).

The objecting Defendants point out that Feuer's evidence relates to Illinois, not to Indiana, contending that, in the Northern District of Indiana, $250 per hour is a reasonable rate. In other words, they argue that Feuer's rate is out of step with the rate prevailing in the community in which this Court sits. The objection fails. To begin with, the Seventh Circuit Court of Appeals has held that it is equally plausible to read "community" as referring to a community of practitioners instead of, as the objecting Defendants suggest, a local market area. Jeffboat, LLC v. Dir., Office of Workers' Comp. Programs, 553 F.3d 487, 490 (7th Cir. 2009); cf. Lane v. Piper Jaffray Companies, No. 01C925, 2005 WL 1229388, at *2 (E.D. Wis. May 24, 2005) ("In Mathur, the Seventh Circuit noted that the presumed applicable market rate is that of the lawyer's legal community."). And even if "community" means the local market, it is not as if Feuer is from some far-flung locale. Many litigants before this Court hire Chicago attorneys, who presumably charge Chicago rates. And Gary, Indiana, where this case originated, lies only a few miles east of the city limits of Chicago. Likewise, the Hammond Division of this Court, where this case was filed, sits only a few hundred feet from the Illinois state line.

Regardless, as the Mathur court explained, "[o]nly if an attorney is unable to provide evidence of her actual billing rates should a district court look to other evidence, including rates similar experienced attorneys in the community charge paying clients for similar work.'" Id. (quoting People Who Care, 90 F.3d at 1311). By providing evidence, especially the district court opinion, that he actually gets paid $500 per hour in similar cases, albeit cases in Illinois, Feuer has met his initial burden.[1] The Court must therefore turn to consider whether the objecting Defendants' evidence demonstrates that a lower rate is essential. Pickett, 664 F.3d at 640; see also Gusman, 986 F.2d at 1151.

2. Have the Objecting Defendants Shown that a Lower Rate is Essential?

The objecting Defendants argue that Feuer's proposed rate is excessive and imposes a severe penalty. As mentioned, they contend that in this district $250 per hour, one-half of Feuer's asked-for rate, is reasonable. This contention is unsupported as their brief does not point to anything but their own say-so about what a reasonable fee is. This ...

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