United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on a Motion for Order Awarding
Attorney Fees and Costs [DE 127], filed by Plaintiff Rebecca
Zander on August 16, 2017. Defendant Samuel Orlich, Jr. filed
a response on September 18, 2017. Plaintiff has not filed a
reply, and her deadline by which to do so has passed. For the
reasons stated below, the Court grants the motion.
claims against Defendant of battery, false imprisonment, and
violation of federal civil rights proceeded to jury trial,
with the undersigned magistrate judge presiding by consent of
the parties pursuant to 28 U.S.C. § 636(c). The jury
returned verdicts in favor of Plaintiff on all claims and
awarded compensatory and punitive damages. Plaintiff now
requests $78, 962.50 in attorney fees and $18, 305.30 in
costs pursuant to 42 U.S.C. § 1988.
U.S.C. § 1988 provides that “[i]n any action or
proceeding to enforce . . . [42 U.S.C. §1983] . . . the
court, in its discretion, may allow the prevailing party . .
. a reasonable attorney's fee as part of the
costs.” “A plaintiff may be awarded
attorney's fees as a prevailing party if [she] succeeds
on ‘any significant issue in litigation which achieves
some of the benefit [she] sought in bringing
suit.'” Bisciglia v. Kenosha Unified Sch. Dist.
No. 1, 45 F.3d 223, 227 (7th Cir. 1995) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
Attorney's fees are awarded to prevailing plaintiffs
“almost as a matter of course.” Id.;
accord Khan v. Galitano, 180 F.3d 829, 837 (7th Cir.
1999); Simpson v. Sheahan, 104 F.3d 998, 1001 (7th
does not argue that an award of fees is inappropriate.
Therefore, the Court will award fees. Defendant does argue,
however, that the amount of fees awarded should be reduced
from the amount that Plaintiff requests. The Court will
address Defendant's arguments in turn.
Defendant asserts that the Court may consider his inability
to pay when determining the amount of attorneys fees to
award. In support, Defendant cites Alizadeh v. Safeway
Stores, 910 F.2d 234, 238 (5th Cir. 1990). Contrary to
the rule in the Fifth Circuit, the Seventh Circuit Court of
Appeals has determined that, under § 1988, “[t]he
defendant's perceived ability to pay an attorney's
fee award is not relevant to the determination of a
reasonable fee.” Simpson, 104 F.3d at 1003;
cf. Entm't Concepts, Inc., v. Maciejewski, 631
F.2d 497, 507 (7th Cir. 1980) (“[A]bility to pay is not
a ‘special circumstance' that will bar an award of
attorneys fees to a successful plaintiff.”);
Jefferson v. Ingersoll, Nos. 99 C 50362, 98 C 50042,
2002 WL 31598990, at *1 (N.D. Ill. Nov. 19, 2002). Thus,
Defendant's argument to reduce the amount of fees on this
basis is unsuccessful, as it is contrary to legal precedent
in this circuit.
Defendant argues that Plaintiff should have submitted a copy
of the fee agreement between Plaintiff and her counsel and
that the maximum fee allowable by the agreement should be the
maximum fee awarded under § 1988. Once again, Defendant
cites to out-of-circuit jurisprudence in support: Cooper
v. Singer, 689 F.2d 929, 932 (10th Cir. 1982). Not only
did the Seventh Circuit Court of Appeals hold that “a
contingent fee contract should not serve ‘as an
automatic ceiling on the amount of a statutory award,
'” explicitly disagreeing with Cooper in
Lenard v. Argento, 699 F.2d 874, 900 & n.22 (7th
Cir. 1983) (quoting Sanchez v. Schwartz, 688 F.2d
503, 505 (7th Cir. 1982)), but also the Supreme Court held
that “a contingent-fee contract does not impose an
automatic ceiling on an award of attorney's fees, ”
Blanchard v. Bergeron, 489 U.S. 87, 93 (1989). Thus,
Defendant's argument is based on an inaccurate statement
of the law.
neither argues that Plaintiff's counsel's requested
hourly fee-$350 per hour for attorney work and $100 per hour
for paralegal work-is unreasonable nor argues that the number
of hours of work spent on this litigation is unreasonable.
Plaintiff has provided affidavits from her counsel and
paralegal and itemizations of time spent and costs incurred.
A contingency fee agreement, if any exists, is not necessary
to determine the reasonable fee award in this matter. The
argument based on Cooper fails.
Court finds the Plaintiff's counsel's hourly rates
and the number of hours spent litigating this matter to be
reasonable and awards fees and costs in the amount requested.
on the foregoing, the Court hereby GRANTS
the Motion for Order Awarding Attorney Fees and Costs [DE
127] and AWARDS in favor of Plaintiff
Rebecca Zander against Defendant Samuel Orlich, Jr. $78,
962.50 in attorney fees and $18, 305.30 in costs.