KENNETH BAKER, et al., Plaintiffs-Appellants, v. JEAN M. LINDGREN, et al., Defendants-Appellees.
No. 15-2203
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 5, 2016 — DECIDED MAY 10, 2017
Before EASTERBROOK and ROVNER, Circuit Judges, and SHADID, District Judge.*
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:11-cv-04197 — Harry D. Leinenweber, Judge.
I.
Because the appeal is directed only at attorneys’ fees and costs, we will give an abbreviated version of the facts to provide context. The plaintiffs’ claims arose from an attempt by Timothy Ghidotti, an employee of Reliable Recovery Services, Inc., to repossess a Chevy Impala from Juanita Horton, the step-daughter of Kenneth Baker. Baker lived with his wife Barbara, son Camden and minor daughter, A.B., in a home in Chicago. Horton sometimes visited the home but did not reside there. In the middle of a February night in 2010, Ghidotti rang the bell at the Baker house, looking for Horton and the Chevy Impala. Baker told Ghidotti that Horton did not live there and then argued with Ghidotti, telling him to “get the hell off my porch,” and to not return to the property. Ghidotti left the porch and called 911 from his truck, falsely telling the dispatcher that a man had threatened him with a gun. Police officers Jean Lindgren and Jesus Vera responded to
Baker, together with his wife and children (who were present in the home during these events), brought a seventeen-count complaint against the City, the police officers, Reliable Recovery and its employees, Ghidotti and Boris Jurkovic. The Bakers alleged Illinois tort claims against the Reliable Recovery defendants including four counts of trespass and one count of intentional infliction of emotional distress. They asserted Fourth and Fourteenth Amendment claims against the police officers, including unconstitutional entry into the home; unconstitutional search of the home; illegal detention in the home; false arrest; failure to investigate; failure to intervene; and conspiracy to violate civil rights. Kenneth Baker asserted Illinois tort claims of malicious prosecution of the aggravated assault charge and malicious prosecution of the weapon registration charge against the City defendants and the Reliable Recovery defendants. Kenneth Baker also asserted supervisory liability against Dennis Walsh, a supervising
On cross-motions for summary judgment, the district court dismissed two police officers from the suit because they lacked any involvement in the incident. The court denied the defendants’ motion for summary judgment on the illegal entry and search claims, the failure to intervene charge, the conspiracy count, and the malicious prosecution claims. The court granted summary judgment in favor of the Reliable Recovery defendants on two of the trespass counts and allowed the other two to proceed to trial. The court also denied Reliable Recovery‘s motion for summary judgment on the intentional infliction of emotional distress claim. Because it was not a separately cognizable claim, the court dismissed the failure to investigate count. The court granted summary judgment in favor of Kenneth Baker on the false arrest claim, allowing that claim to proceed to trial solely on the question of damages. The court dismissed the unknown officers from the case because the plaintiffs made no effort to identify them through the discovery process and the statute of limitations had expired as to any new defendants.
At trial, the jury awarded Kenneth Baker $25,000 on his false arrest claim and $5,000 on his claim for malicious prosecution of the aggravated assault charge. The jury otherwise found in favor of the defendants on all remaining claims. Baker then moved to recover $450,268 in attorneys’ fees from the City defendants and costs from all defendants. The City defendants sought to recover their costs from Barbara and Camden Baker
II.
On appeal, Kenneth Baker contends that the district court should have granted his bill of costs as the prevailing party. He also asserts that the court committed numerous errors in reducing the amount of attorneys’ fees awarded. Barbara and Camden Baker argue that the court erred in awarding costs to the defendants.
A.
The plaintiffs contend that we should review the district court‘s decision de novo because the court erred on a question of law, namely, the definition of the term “prevailing party.” Although it is true that we review de novo any legal questions involving the interpretation of the phrase “prevailing party,” the court did not err in defining that phrase. See Republic Tobacco Co. v. North Atlantic Trading Co., 481 F.3d 442, 446 (7th Cir. 2007) (noting that we review the district court‘s interpretation of the phrase “prevailing party” de novo). Indeed, the court applied the very definition on which the plaintiffs rely. The district court recognized that it should award costs to a party that prevails on a substantial part of the litigation, and that a party may meet that standard even when the party does not prevail on every claim. Baker v. Ghidotti, 2015 WL 1888004, *7 (N. D. Ill. Apr. 24, 2015) (citing Testa, 89 F.3d at 447 and Slane v. Mariah Boats, Inc., 164 F.3d 1065, 1068 (7th Cir. 1999)). The district court also correctly noted that, in a case with mixed results, it retains especially broad discretion to award or deny costs. Baker, 2015 WL 1888004 at *7 (citing Gavoni, 164 F.3d at 1075).
The court then applied that correct definition to the outcome here. The jury was asked to return a verdict on twenty-two claims distributed among four plaintiffs, the court noted. Baker prevailed on two of the six claims that he asserted, recovering a total of $30,000, an award that the district court characterized as “more than nominal, but certainly not substantial.” Baker, 2015 WL 1888004 at *7 (internal quote marks omitted). The defendants, on the other hand, prevailed on all remaining claims, leading the court to determine that, on balance, the defendants, not the plaintiffs prevailed on a “substantial part” of the litigation. The court therefore denied costs to the plaintiffs. On appeal, the plaintiffs urge this court to find that the $30,000 recovery on two claims was a substantial victory, justifying an award of costs in their favor. But that is simply a request to reweigh discretionary factors and substitute our judgment for that of the district court. There was no abuse of discretion in the district court‘s decision to deny costs to the plaintiffs.
The plaintiffs also contend that the court erred in awarding costs to the City as the prevailing party. But the court did not abuse its discretion in determining that the City was the prevailing party because Barbara and Camden Baker, the plaintiffs against whom costs were awarded, lost all of their claims against the City. The plaintiffs complain that the City failed to segregate its costs, and because the verdict was split, the City may not recover any costs. However, the plaintiffs did not raise this argument until their motion to reconsider. The district court correctly noted that arguments raised for the first time in a motion to reconsider are waived. Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009). In sum, there was no
B.
In an action to enforce a provision of section 1983, “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,”
This standard makes sense for a number of reasons: the district court is more familiar with the work the winning attorneys devoted to the case; review of a fee petition is a highly fact-specific exercise; and the district court has a full appreciation of both the factual and the legal history of the case (including those parts that have dropped out by the time an appeal reaches this court).
Cruz, 275 F.3d at 591–92. See also Hensley, 461 U.S. at 437 (emphasizing that the district court‘s discretion is appropriate “in view of the district court‘s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters“). Kenneth Baker
Although the district court determined that the defendants were the prevailing parties for the purposes of
In challenging the fee award, Baker asserts that (1) the defendants should be estopped from requesting a lodestar adjustment because they refused to engage in meaningful settlement negotiations; (2) the court erred in reducing the lodestar 50% because the results achieved were excellent; (3) the court committed an arithmetic error by denying fees for 84.4 hours that Baker had already voluntarily discounted for work on the Reliable Recovery claims; (4) the court erred in
The Supreme Court cautioned that a “request for attorney‘s fees should not result in a second major litigation.” Hensley, 461 U.S. at 437. The plaintiff did little to heed this warning, raising eleven labeled objections and numerous sub-objections to the district court‘s analysis of the fee petition. Some of the sub-objections are so picayune as to challenge the district court‘s decision on line items amounting to one- or two-tenths of an hour of attorney time. See Brief of Appellants, at 41–42. As is apparent from Baker‘s extensive list of issues on appeal, the district court made a number of discretionary adjustments to the hours claimed and also halved the lodestar to reflect Baker‘s limited success. We found no abuse of discretion in the district court‘s handling of ten of those eleven objections and will not address them separately. See Hensley, 461 U.S. at 436 (if a “plaintiff has achieved only partial or limited success, the
Baker contends that the district court committed an arithmetic error when it deducted 84.4 hours of time that was related solely to state law claims against Reliable Recovery when he had already voluntarily deducted these hours. In his fee petition, Baker conceded that section 1988 provides attorneys’ fees only for actions to enforce certain federal laws. The successful malicious prosecution claim was based on state tort law and so Baker agreed that he may not recover fees for that work. See Richardson v. City of Chicago, 740 F.3d 1099, 1102 (7th Cir. 2014) (section 1988 addresses fees for parties who prevailed on certain federal claims). In light of that limitation, Baker voluntarily deducted 84.2 hours for work performed on the state law claims, which were primarily against the Reliable Recovery defendants. R. 231. In the first three columns of a four-column exhibit to his fee petition, Baker listed the “Date,” “Service provided,” and “Time expended (in hours).” The fourth column was not labeled but its purpose is apparent from the last page of the exhibit where Baker showed the 84.2 hour total of the fourth column under the title “Hours Attributable Exclusively to Ghidotti and Reliable Recovery Services, Inc.” These were the hours that Baker then voluntarily deducted as related solely to state law Reliable
In response to Baker‘s petition, the City acknowledged Baker‘s concession that the City should not have to pay for hours attributable to the Reliable Recovery defendants. But the City objected that:
Plaintiffs’ Counsel did not properly account for the full extent of her billable time. Even when calculating billable time up to the date of the summary judgment ruling only, March 28, 2014, Plaintiffs’ counsel billed at least 128.5 hours for issues attributed exclusively to Reliable Recovery, Ghidotti and Boris Jurkovic. ... As a result, Plaintiffs’ hours should be adjusted to reflect the 128.5 hours billed for services attributable to Reliable Recovery.
R. 244, at 8. The first three columns of the City‘s attached exhibit largely copied the content of the first three columns of Baker‘s exhibit. On the defendants’ version, however, the third column was labeled, “P‘s Proposed Time expended (in hours).” A fourth column listed the basis for the defendants’ objections to certain line items (e.g. “clerical,” “vague,” or “Reliable Recovery def“), and the fifth column listed the defendants’ proposed number of compensable hours.
That third column, which purported to list the plaintiff‘s proposed time expended, did not take into account the line items on which the plaintiff had already discounted time. For example, for an entry on September 30, 2011, the defendants listed .3 hours as the plaintiff‘s proposed time expended, even
In reply, Baker noted that he had, in good faith, “deducted 84.2 hours spent exclusively on Reliable Recovery defendant claims.” R. 245, at 7. Baker also noted:
Defendants seek to deduct more, without regard for the fact that the Reliable Recovery defendants were important witnesses in this case and had to be dealt with, regardless of whether plaintiff prevailed against them or not. The Reliable Recovery defendants could not simply be excised from the case. ... Defendants argue that certain entries are “too vague, particularly given that in some instances it is difficult to decipher whether the entry is attributable to Reliable Recovery Services.” ... That is precisely the point. The work on this case cannot be easily parsed into time for one set of defendants and time for another set of defendants. The claims were intertwined and the time for all defendants merged. Whenever possible, plaintiff excluded the time, when it was clear that only the Reliable Recovery defendants were involved. However, there are time periods for which this is not possible.
The district court, apparently misconstruing the City defendants’ objections, assumed that they were proposing to exclude 128.5 additional hours related to the Reliable Recovery defendants. The district court erroneously stated that “Defendants argue that the hours billed still include 128.5 hours of attorney time attributed exclusively” to Reliable Recovery claims, and that “these entries should have been eliminated along with the other 84.2 hours.” Baker, 2015 WL 1888004, at *4 (emphasis added). The court therefore mistakenly added 128.5 to the 84.2 hours that the plaintiff had already deducted, effectively double-discounting 84.2 hours of work. It did so even though the City had labeled the 128.5 hour figure as a “total” of the hours to be deducted for Reliable Recovery work, not an additional amount. Baker moved to reconsider, pointing out that the district court erroneously added the 84.2 hours already discounted to the 128.5 hours that the defendants proposed, discounting those hours twice. Baker attributed the error, in part, to the defendants misleading the court. After making some corrections to his calculations, Baker asserted that the court should add 77.9 hours back into the lodestar to account for the error.
In an oral ruling from the bench, the district court denied the motion to reconsider and declined to adjust the hours, finding that Baker had waived the claim:
For the first time, plaintiff argues that defendants misled the Court into twice deducting 77.9 hours from [his attorney‘s] time. In addition, plaintiff argues that the Court erred
in deducting time for certain work that would have been performed, quote, “Whether Ghidotti had been a defendant or not.” However, plaintiff neglected to raise either of these arguments or supply clarifying documentation at the appropriate juncture on reply. As previously noted, an argument raised for the first time on a motion to reconsider is deemed waived.
R. 266, at 4-5.
On appeal, the parties agree that the district court made a mistake in double-discounting 77.9 hours. But the City contends that we may not review the issue because (1) the district court deemed it waived; (2) the district court did not abuse its discretion in finding the issue waived; and (3) Baker did not address the district court‘s finding of waiver on appeal, further waiving the issue. We will try to cut quickly through this Russian nesting doll of an argument in reverse order: Baker did address the waiver on appeal by arguing that the court “was not correct” in finding that he had neglected to raise the double-counting issue in his reply. He also argued on appeal that he raised the double counting issue as soon as he could, and that it was not possible to anticipate the court‘s arithmetic error and raise it sooner in his fee petition reply brief. This was essentially an argument that the district court erred when it found that he had waived the issue. Although he did not use the word “waiver” in making this argument in his brief, he did address the concept of waiver. Baker therefore did not waive the waiver issue.
The district court‘s mistaken calculation is understandable. The City‘s exhibit includes as “plaintiff‘s proposed time expended” 77.9 hours that the plaintiff had already discounted to zero, unintentionally (we assume) causing the court to believe that these were additional hours attributable to Reliable Recovery claims rather than hours that the plaintiff had already discounted. In replying to the City‘s brief and exhibits, Baker simply argued that he had already deducted 84.2 hours and that the defendants sought to “deduct more,” without quantifying the additional amount and perhaps inadvertently signaling that all of the hours detailed by the City were in addition to the hours already deducted by Baker. The court, for its part, could have compared the charts appended to the parties’ respective filings to see whether the defendants’ 128.5 hour figure already included the hours discounted by Baker.
In any case, there is no dispute at this point that the court mistakenly double-discounted 77.9 hours of time attributed to Reliable Recovery claims. On remand, those hours should be added back to the lodestar calculation. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.