Andy Montanez v. Joseph Simon , 755 F.3d 547 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1692
ANDY MONTANEZ,
Plaintiff-Appellant,
v.
JOSEPH SIMON , VINCENT FICO ,
and CITY OF CHICAGO ,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 4708 — Sheila Finnegan, Magistrate Judge.
ARGUED NOVEMBER 1, 2013 — DECIDED JUNE 18, 2014
Before POSNER, FLAUM , and SYKES, Circuit Judges.
SYKES, Circuit Judge. Andy Montanez won a small jury
verdict—just $2,000—in this straightforward excessive-force
case against two Chicago police officers, but his lawyers racked
up enormous legal fees during the course of the litigation.
Invoking the fee-shifting statute applicable in civil-rights cases,
2 No. 13-1692
42 U.S.C. § 1988(d), they submitted a request for more than
$400,000 in fees, but the district court awarded only a fraction
of that amount. The award will be paid by the City of Chicago,
and although it’s much less than requested, it’s still a huge
sum—almost $110,000—in part because the City adopted a
scorched-earth defense strategy. This simple civil-rights claim,
overlitigated by both sides, took on all the protracted complex-
ity of high-stakes commercial litigation, replete with hard-
fought discovery battles and even a mock trial.
The main issue on appeal is whether the City should be
required to pay a larger portion of Montanez’s legal fees than
the district court ordered. The court trimmed the fee request by
striking hours as unnecessary or improperly documented,
reducing the lawyers’ billing rates, and slashing the resulting
“lodestar” figure in half to account for the limited success on
the merits.
We review an award of attorney’s fees deferentially. Trial
judges are in a better position to determine what fees are
“reasonable” in a given case. See § 1988(b) (allowing “a
reasonable attorney’s fee” to the prevailing party in a success-
ful suit under 42 U.S.C. § 1983). This is especially true when the
plaintiff is only partially successful; setting a reasonable fee for
limited success is necessarily imprecise. We find no abuse of
discretion in the district court’s painstaking analysis of the
billing records or in its lodestar reduction; the court’s approach
reflects the perfectly sensible conclusion that the case was
overstaffed and much of the billed time was unjustified.
We take this opportunity to remind trial judges that where
a fee-shifting statute is in play, the court has the opportunity
No. 13-1692 3
and the discretion to check runaway attorney’s fees while the
litigation is underway, not just when reviewing a fee request
after the case has concluded. Early and active use of the court’s
case-management authority can help prevent excessive fees
before they accrue.
I. Background
Andy Montanez sued the City of Chicago and Police
Officers Vincent Fico and Joseph Simon, alleging that Fico used
excessive force while arresting him (for drinking on a public
way) and Simon failed to intervene to stop it. He sustained
minor injuries during the arrest, for which he sought damages
under 42 U.S.C. § 1983 (for violation of his Fourth Amendment
rights) and several state-law theories. He also brought a claim
against the City based on its duty to indemnify the police
officers. The case was assigned to a magistrate judge, see
28 U.S.C. § 636(c), and the state-law claims were dismissed as
time-barred. The City conceded its obligation to indemnify, so
only the § 1983 claims proceeded to trial. Officer Fico was
found liable, Officer Simon was cleared, and the jury awarded
$1,000 in compensatory damages and $1,000 in punitive
damages.
Having secured this $2,000 judgment for their client,
Montanez’s lawyers submitted a bill for more than $426,000 in
attorneys’ fees and about $6,500 in costs and expenses. The
City challenged most of the request as unreasonable. The judge
resolved the dispute by meticulously scrutinizing the bill line
by line, striking entries that she determined were unnecessary,
duplicative, excessive, or improperly documented.
4 No. 13-1692
Seven lawyers had billed approximately 1,021 hours on the
case. Three of the lawyers were only tangentially involved,
cumulatively billing less than 10 hours; the judge excluded
their time entirely. Carefully reviewing the remaining hours,
the judge discounted entries where more than one partner
oversaw the same activities, or where the lawyers researched
or drafted motions that were never filed. She also excluded the
hours the lawyers spent on a full-day mock trial. She struck
entries related to matters that were essentially administra-
tive—such as time spent deciding which attorneys would
handle the lawsuit and hours billed for “trying to find”
Montanez—on the rationale that the City should not be billed
for these case-management problems. The judge discounted or
disallowed other vaguely or improperly billed entries, such as
time spent by partners on tasks that could have been delegated
to paralegals, unspecified “call[s] to client” and his family, and
more than three hours a partner billed while shopping for
clothes for a witness.
The judge also reduced the hourly billing rates. The two
lead lawyers—partners in the firm with nine and thirteen
years’ experience, respectively—sought a rate of $400 per hour
for the first two years of work on the case, $425 per hour for
the third year, and $450 per hour for the last year. The judge
concluded that these rates could not be justified by reference to
the billing rates of comparably qualified lawyers in the Chicago
market for § 1983 litigation. After conducting her own assess-
ment of the market, the judge settled on an hourly rate of $385
for the two lead lawyers. Similarly, the judge set a rate of $175
for the firm’s second- and third-year associates rather than the
requested rates between $250 and $300 per hour. Multiplying
No. 13-1692 5
each attorney’s allowed hours by these lower rates produced
a total adjusted bill of $217,110.50.
The judge then reduced this figure in two ways. First, and
less significantly, the lawyers had requested $881.25 less than
the original billing totals supported, so the judge deducted that
amount from the adjusted total. Second, and more importantly,
the judge concluded that the limited success on the merits
warranted a substantial reduction in the fee award. Noting that
Montanez lost four of his six claims and won just $2,000 in
damages, and also that the case lacked public or precedential
importance, the judge reduced the lodestar amount by 50%
and awarded $108,350.87 in fees.
The judge then turned to the bill of costs and again ad-
dressed each entry individually. The judge struck entries for
unnecessary expenses, like fees for a witness who was never
subpoenaed, copies of deposition transcripts for witnesses who
were never called, and costs of printing untimely discovery
requests. In addition, Montanez’s lawyers had paid more for
certain transcripts than allowed under the local rules, so the
judge capped recovery for these transcripts at the highest per-
page rate permitted. For some of these documents, the lawyers
failed to supply the page lengths; the judge disallowed these
requests outright. After these reductions, the final award of
costs was $3,051.94, down from an initial request of $4,696.84.1
1
The judge also awarded $1,152.99 in expenses. See Downes v. Volkswagen
of Am., Inc., 41 F.3d 1132, 1144 (7th Cir. 1994). This part of the award is not
at issue in this appeal.
6 No. 13-1692
II. Discussion
Montanez’s lawyers challenge just about every dime the
district court disallowed. One example will illustrate the lack
of perspective that pervades this case. The lawyers dedicate an
entire section of their opening brief to claims of error in the
calculation of printing costs, amounting to at most $35.20—
about 0.0082% of the approximately $430,000 they hope to
recover. No reasonable client would countenance spending
even a tenth of an hour arguing over $35.20. The willingness to
fight so hard for so little goes a long way toward explaining
why there is a $426,000 bill for attorneys’ fees in a $2,000 case.
The lack of private restraint in this case underscores a point
that deserves brief attention before we address the substance
of this appeal. Trial judges have substantial case-management
authority to control the course of litigation in their courts. In
cases lacking private incentives to limit the scope of litigation,
active judicial oversight can help prevent straightforward cases
like this one from spiraling out of control. The Federal Rules of
Civil Procedure authorize judges to monitor and influence the
scope of litigation. See, e.g., FED . R. CIV . P. 16 (authorizing
courts to order pretrial conferences to “establish[] early and
continuing control” and to “discourag[e] wasteful pretrial
activities”); FED . R. CIV . P. 26(b)(2)(C) (requiring the court to
limit discovery if “the burden or expense … outweighs its
likely benefit, considering the needs of the case”). As we will
explain, trial judges have broad discretion to adjust bloated
bills for attorney’s fees after the fact, but judicious use of the
court’s case-management authority during the litigation can
also help to check overlawyering. Reasonable limits on dis-
No. 13-1692 7
covery and trial preparation can effectively channel the efforts
of counsel before excessive time and resources are expended.
A. Attorney’s Fees Under § 1988(b)
We review an award of attorney’s fees under a “highly
deferential abuse of discretion standard.” Pickett v. Sheridan
Health Care Ctr., 664 F.3d 632, 639 (7th Cir. 2011) (quoting Estate
of Borst v. O’Brien, 979 F.2d 511, 514 (7th Cir. 1992)). Section
1988(b) allows prevailing parties in § 1983 litigation to recover
“a reasonable attorney’s fee,” and the district court is in the
best position to make the “contextual and fact-specific”
assessment of what fees are reasonable. Sottoriva v. Claps,
617F.3d 971, 975 (7th Cir. 2010). The Supreme Court has
consistently held that the interest in uniformity of fee awards
is not great enough to justify closer appellate scrutiny—indeed,
the Court has said that there is hardly any “sphere of judicial
decisionmaking in which appellate micromanagement has less
to recommend it.” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011).
That doesn’t mean that the district court’s discretion is
boundless. The court “must apply the correct standard,” id.,and “bears the responsibility of justifying its conclusions,”
Sottoriva, 617 F.3d at 975. To this end, the district court gener-
ally begins the fee calculation by computing a “lodestar”: the
product of the hours reasonably expended on the case multi-
plied by a reasonable hourly rate. See id. Although the lodestar
yields a presumptively reasonable fee, Pickett, 664 F.3d at 639,
the court may nevertheless adjust the fee based on factors not
8 No. 13-1692
included in the computation, see Hensley v. Eckerhart, 461 U.S.
424, 434 (1983).2
Perhaps the most important of these factors is the degree of
success on the merits, especially “where a plaintiff is deemed
‘prevailing’ even though he succeeded on only some of his
claims for relief.” Id. Where the hours spent on successful
claims can easily be distinguished from those spent on unsuc-
cessful claims, the court can simply strike the latter entries
when computing the lodestar. But when the work on each set
of claims is difficult to disentangle, the lodestar calculation will
likely include some time spent on unsuccessful claims, and in
these cases the court ought to reduce the lodestar figure.
Ultimately, the guiding inquiry is whether “the plaintiff
achieve[d] a level of success that makes the hours reasonably
expended a satisfactory basis for making a fee award.” Id.B. The Lower Hourly Rates
A reasonable hourly rate is based on the local market rate
for the attorney’s services. Pickett, 664 F.3d at 640. The best
evidence of the market rate is the amount the attorney actually
bills for similar work, but if that rate can’t be determined, then
the district court may rely on evidence of rates charged by
2
H ensley identified 12 factors that courts consider in setting a reasonable
fee. H ensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983). These so-called
“Hensley factors” were used before the lodestar method became popular,
and the Court emphasized that “many of these factors usually are sub-
sumed within the initial calculation of hours reasonably expended at a
reasonable hourly rate.” Id. at 434 n.9.
No. 13-1692 9
similarly experienced attorneys in the community and evi-
dence of rates set for the attorney in similar cases. See Johnson
v. GDF, Inc., 668 F.3d 927, 933 (7th Cir. 2012). The party seeking
a fee award bears the burden of establishing the market rate for
the work; if the lawyers fail to carry that burden, the district
court can independently determine the appropriate rate. See id.Montanez’s lawyers tried to establish hourly rates between
$400 and $450 for the two most experienced lawyers on the
team and between $250 and $300 for the other attorneys. The
primary support for these rates was a collection of the attor-
neys’ retainer agreements with other clients. Most of these
were contingency agreements, however, and the judge
reasonably found this evidence unhelpful. Although the clients
“acknowledged” that the attorneys would charge up to $450
per hour, the agreed-upon rate was really a percentage of the
winnings (usually 40%); clients would only pay the $450 rate
if they changed lawyers before final judgment. The judge did
not abuse her discretion by giving little weight to these
agreements as evidence of market hourly rates for the attor-
neys’ services. See Pickett, 664 F.3d at 640 (recognizing “the
difficulty of determining the hourly rate of an attorney who
uses contingent fee agreements”).
The judge also disregarded other agreements offered by
Montanez’s lawyers because they involved different markets—
namely, the markets for immigration, contract, and criminal-
law services. If the record contained evidence that the prevail-
ing market rate for this type of legal work was similar to rates
for representation in civil-rights cases, we might question the
district court’s decision to distinguish between these markets.
10 No. 13-1692
See Johnson, 668 F.3d at 933 (“It was an abuse of discretion for
the district court to decide that the market must distinguish
between FLSA and Title VII cases. Either it does or it doesn’t,
but it is not the court’s job to say that it should.”). Without such
evidence, however, “[t]he district court’s discretion in deter-
mining what is a reasonable attorney’s fee applies to its
determination of what constitutes a market,” Moriarty v. Svec,
233 F.3d 955, 966 (7th Cir. 2000), and that discretion was not
abused here.
The court also questioned other evidence Montanez’s
lawyers submitted to support their requested rates, including
the so-called Laffey Matrix and affidavits from other lawyers
in Chicago. The Laffey Matrix is a chart of hourly rates
published by the U.S. Attorney’s Office for the District of
Columbia, which some circuits use to help determine a
reasonable fee under fee-shifting statutes. We’ve expressed
some skepticism about applying the Laffey Matrix outside
Washington, D.C., and have left it to trial judges to exercise
their discretion in evaluating its usefulness in any particular
case. See Pickett, 664 F.3d at 649–51. Here, the judge properly
considered the Laffey Matrix and in her discretion found it
unpersuasive in this case. Similarly, the court disregarded the
affidavits from other Chicago attorneys, which only attested
that Montanez’s lawyers were well qualified and that their fees
were reasonable. We’ve held that conclusory affidavits from
attorneys “merely opin[ing]” on the reasonableness of another
attorney’s fee—unlike affidavits describing what “comparable
attorneys charge for similar services”—have little probative
value. Id. at 647. The judge properly disregarded this evidence.
No. 13-1692 11
With little record evidence to support the requested rates,
the judge looked to the fees awarded in some of the lawyers’
previous cases and the publicly available information about
rates charged for similar work in the community. The prior fee
awards varied considerably, from $225 per hour in one case to
$400 in another; both rates were based on compromises
between parties, so the judge discounted their probative value.
The judge also considered rates awarded to similarly experi-
enced Chicago attorneys in other civil-rights cases in the
district. This “next-best” evidence was properly considered
after the court found insufficient evidence of the attorneys’
actual market rates. See Johnson, 668 F.3d at 933.
Weighing all this evidence, the court settled on an hourly
rate of $385 for the two more experienced lawyers on the case
and $175 for the two junior associates. Those rates are within
the upper middle of the range supported by the evidence from
the lawyers’ past cases and the rates awarded to other Chicago
attorneys in civil-rights cases. We find no abuse of discretion.
C. The Reduced Hours
The judge found that dozens of the hours billed should not
be included in the lodestar computation. On appeal
Montanez’s lawyers challenge nearly every one of these
deductions. But they also argue that the court lacked power to
strike any of the entries because the City listed its objections
line by line on a spreadsheet of the bills instead of describing
its objections in a legal memorandum. We can quickly put this
argument to rest: A district court may strike billing entries so
long as the party requesting fees has an opportunity to
12 No. 13-1692
respond to any objections. Cf. Spellan v. Bd. of Educ., 59 F.3d
642, 646 (7th Cir. 1995) (holding that a court may not strike
billing entries sua sponte without giving the party an opportu-
nity to defend them). The City’s line-by-line objections were
admittedly brief, but they were specific enough to allow a
response, and the format was considerably more practical and
economical than a long memorandum detailing each objection.
Regarding the specific exclusions, we note that “[t]he
essential goal in shifting fees (to either party) is to do rough
justice, not to achieve auditing perfection.” Fox, 131 S. Ct. at
2216. We decline the plaintiff’s invitation to reexamine every
line-item deduction. The district court is in a better position to
evaluate the reasonableness of specific requests, and fee-
shifting “should not result in a second major litigation.” Id.(quoting Hensley, 461 U.S. at 437). Our job is to determine
whether the district court applied the correct standards and
avoided arbitrary decisionmaking, not to decide for ourselves
how much litigation was truly reasonable.
The judge concluded that the case had been overlitigated
and on that basis carefully scrutinized the billing records to
exclude any time that was unnecessary, duplicative, or
insufficiently documented. To take just a few examples, she
disallowed time spent by two partners simultaneously doing
the same thing, explaining that on such a straightforward case,
one partner was enough. She concluded that other hours were
wasted, like time spent drafting untimely requests for admis-
sion that were never filed and time spent researching a
Freedom of Information Act claim as an alternative to simple
discovery. It’s not unexpected that some legal research will
No. 13-1692 13
prove fruitless on an ultimately successful claim, and a
prevailing party may in appropriate circumstances recover for
time spent going down roads that seemed promising but turn
out to be dead ends. See Kurowski v. Krajewski, 848 F.2d 767, 776
(7th Cir. 1988). But the district court has the discretion to
decide what research was likely to contribute to a successful
claim, and here the court reasonably determined that many of
the lawyers’ projects were needlessly esoteric in the context of
such a simple case. Montanez’s lawyers belatedly offer an
explanation for some of this research (for example, the time
they spent researching the Prison Litigation Reform Act), but
the arguments are new on appeal and do not establish that the
judge abused her discretion.
The judge also deducted some hours because they were
improperly or inadequately recorded. For example, the court
rejected time billed for vaguely described phone calls; hours
billed as “call to client,” without more, were disallowed. The
judge disallowed time billed for clerical work that was none-
theless recorded at an attorney’s rate. For example, some
scanning and faxing was billed at $450 per hour because a
partner did the work; one associate billing at $275 per hour
spent many hours doing nothing but filing motions in limine.
The district court has broad discretion to strike such vague or
unjustified billing entries. See, e.g., Harper v. City of Chicago
Heights, 223 F.3d 593, 605 (7th Cir. 2000). Appellate deference
to the trial judge’s discretionary judgment in striking specific
billing entries encourages candor in fee requests and relieves
14 No. 13-1692
the burden on district courts faced with vague or poorly
documented fee claims.3
D. The Lodestar Reductions
Finally, Montanez’s lawyers challenge the judge’s two
adjustments to the lodestar: the $881.25 deduction to account
for a discrepancy between the bills and the fee request, and the
50% reduction to reflect Montanez’s limited success on the
merits. The discrepancy is hard to understand. The judge
added up all of the hours billed, multiplied them by the
requested rates, and found that the lawyers had asked for
$881.25 less than the billing records might have supported.
Montanez’s attorneys haven’t explained this discrepancy on
appeal; instead they submitted a new chart with new arithme-
tic errors. Our own review of the bills reveals that the discrep-
ancy was caused by occasionally billing attorneys at a lower
rate—below even the reduced rates set by the district court.
For example, on several occasions the more experienced
attorneys were billed at $225 per hour instead of the $450 they
ultimately requested. We don’t know whether this was
intentional or an oversight, but it was not an abuse of discre-
tion to reduce the adjusted lodestar calculation by the amount
of the discrepancy.
More significantly, the judge did not abuse her discretion
by slashing the lodestar by 50%. In setting a reasonable fee, the
3
M ontanez’s lawyers wisely decline to defend the time a partner spent
shopping for a witness’s clothing.
No. 13-1692 15
district court must determine whether “the plaintiff achieve[d]
a level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award.” Hensley, 461 U.S. at
434. A plaintiff who achieves “excellent results” should receive
the entire lodestar, but where “a plaintiff has achieved only
partial or limited success,” the lodestar “may be an excessive
amount.” Id. at 435–36.
We do not need to belabor the point: Montanez did not
achieve “excellent results.” The district court properly noted
that he lost four of his six claims, including all of his claims
against Officer Simon. Montanez’s lawyers argue that some of
the claims were simply different routes to achieving the same
recovery. A plaintiff who brings multiple theories to remedy
the same harm “is not to be penalized just because some, or
even all but one, are rejected, provided that the one or ones
that succeed give him all that he reasonably could have asked
for.” Lenard v. Argento, 808 F.3d 1242, 1246 (7th Cir. 1987). But
Montanez did not get all that he asked for—far from it. His
failure to prevail on the claims against Simon, for instance,
foreclosed additional punitive damages against another
defendant. And even on the claims Montanez won, his success
was severely limited: just $2,000 in damages, a minimal victory
in light of the time expended to achieve it.
We don’t mean to suggest that Montanez’s victory was
purely nominal, in which case he would not be entitled to
attorney’s fees at all. See Farrar v. Hobby, 506 U.S. 103, 115
(1992). Montanez won a meaningful sum and established both
a compensable injury and an entitlement to punitive damages
against one of the officers. Nonetheless, we agree with the
16 No. 13-1692
district court that his limited success meant that the lodestar
was not “a satisfactory basis for making a fee award.” Hensley,
461 U.S. at 434.
“No algorithm is available” for adjusting a lodestar to
reflect partial or limited success. Richardson v. City of Chicago,
740 F.3d 1099, 1103 (7th Cir. 2014). When the judge cannot
easily separate the successful and unsuccessful work, “there is
nothing to do but make an across-the-board reduction that
seems appropriate in light of the ratio between winning and
losing claims.” Id. Here again, the district court has broad
discretion to determine the appropriate reduction. The trial
judge is in a better position to assess whether the unsuccessful
claims were important or trivial; whether a $2,000 judgment is
a spectacular success, a dismal failure, or something in be-
tween; and whether the plaintiff’s lawyers would have spent
substantially less time on the case had they been more realistic.
As the magistrate judge properly noted, “a fee request that
dwarfs the damages award might raise a red flag.” Anderson v.
AB Painting & Sandblasting Inc., 578 F.3d 542, 546 (7th Cir.
2009). The disparity between the damages and the fee request
could not be more striking here.
The judge did not make the mistake of limiting the fee to
some multiple of the judgment, which would have been
reversible error. See id. at 545. Instead, after finding that the
attorneys’ expenditure of time could not be explained by the
complexity of the facts or the relevant legal doctrine, or by the
vindication of an important public interest, see City of Riverside
v. Rivera, 477 U.S. 561, 574, 579 (1986) (plurality opinion), the
judge treated the disproportionate fees as an indicator that
No. 13-1692 17
Montanez and his attorneys unrealistically believed these
claims were worth far more than they recovered. The 50%
reduction was not an abuse of discretion, and the final fee
award of $108,350.87 was quite “generous in relation to
[Montanez’s] recovery.” Richardson, 740 F.3d at 1103.
E. The Bill of Costs
Rule 54(d) of the Federal Rules of Civil Procedure creates a
strong presumption that the prevailing party will be awarded
those costs of litigation identified in 28 U.S.C. § 1920. See U.S.
Neurosurgical, Inc. v. City of Chicago, 572 F.3d 325, 333 (7th Cir.
2009). Recoverable costs include “[f]ees for … transcripts
necessarily obtained for use in the case,” § 1920(2), “[f]ees …
for printing,” § 1920(3), and “the costs of making copies of any
materials where the copies are necessarily obtained for use in
the case,” § 1920(4). Of the $4,696.84 in costs requested, the
district court awarded $3,051.94. Montanez’s lawyers challenge
the court’s deductions.
As we’ve noted, the lawyers insist that the court errone-
ously deducted $35.20 in printing fees, including $22.10 for
copying certain deposition transcripts, $3.10 for copying
improper requests to admit, and $10 that the court never
explained. Their calculations are incorrect. They requested
$768.70 in printing fees and received $743.50, so the court
deducted $25.20. As far as we can tell, there was no unex-
plained $10 deduction.
Turning to the actual deductions, the court struck $22.10 for
copies of deposition transcripts of three witnesses who were
18 No. 13-1692
never identified as potential witnesses at trial. Montanez’s
lawyers already had the original transcripts, and the district
court concluded that they made copies purely for their own
convenience. Only fees for copies “necessarily obtained for use
in the case” are recoverable, 28 U.S.C. § 1920(4), and the district
court has discretion to determine which copies were necessary,
Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th
Cir. 2000). The judge disallowed the cost of copying transcripts
of witnesses who were never going to be called at trial; that
was a sensible decision.
The lawyers also challenge a $3.10 deduction for copies of
untimely requests to admit. (Why, we do not know. This lack
of perspective is precisely what caused the litigation costs and
fees to spiral so wildly out of control.) The judge had already
held that the lawyers “should have known better than to file
these untimely requests to admit without leave of court” and
struck all hours related to drafting these requests. We cannot
see how the court abused its discretion in denying costs for
copies of improperly filed requests to admit; they could hardly
be characterized as “necessarily obtained for use in the case.”
28 U.S.C. § 1920(4).
Finally, the judge denied a portion of the request for
transcript fees because in several instances the lawyers paid
more for transcripts than the maximum allowed under Local
Rule 54.1(b) in the Northern District of Illinois. The rule
provides that the cost of any transcript may not exceed the rate
set by the United States Judicial Conference unless a higher
rate was previously established by court order. Montanez’s
lawyers argue, for the first time on appeal, that the City chose
No. 13-1692 19
to use a court reporter who charged more than the local rule
allows and that they had to order copies from that reporter;
thus, they had no choice but to pay the higher rates. The City
responds that Montanez could have brought his own court
reporter to the depositions. That’s an absurd suggestion, but in
the end we don’t need to resolve the conflict about compliance
with the local rule.
Had Montanez’s lawyers explained the problem to the
judge, she might have allowed the full cost of the transcripts.
Several decisions from the Northern District of Illinois sensibly
suggest that Local Rule 54.1(b) does not apply when the party
who must bear the costs selected the court reporter—in other
words, whoever picked the reporter can’t later object to that
reporter’s rates. See, e.g., Gyrion v. City of Chicago, 454 F. Supp.
2d 725, 726 (N.D. Ill. 2006). Moreover, the local rule allows
parties to seek a court order authorizing higher transcript fees.
Montanez’s lawyers never sought such an order and never
argued that Local Rule 54.1 was improperly applied in this
case.
Instead they now argue that the cost of any transcripts not
recoverable under Local Rule 54.1 and 28 U.S.C. § 1920(2)
should be recoverable as part of the “reasonable attorney’s fee”
under 42 U.S.C. 1988(b). We disagree. Section 1920(2) allows
parties to recover only the transcript expenses that can be
considered reasonable, that is, “[f]ees for … transcripts
necessarily obtained for use in the case.” Local Rule 54.1
operates as a limit on the amount of fees that will be consid-
ered “necessary” for obtaining transcripts within the Northern
District of Illinois. The rule might be flawed, but Montanez’s
20 No. 13-1692
lawyers chose not to challenge it. They can’t get around the
rule now by arguing that § 1988 covers transcript expenses
beyond the “[f]ees for … transcripts necessarily obtained”
already covered by § 1920(2).
For most of these transcripts, the judge simply revised the
requests downward to bring them within the limits of Local
Rule 54.1 by applying the proper per-page rate. In some cases,
however, the lawyers failed to document the length of certain
transcripts, so revision was impossible and the court simply
disallowed the costs entirely. Montanez’s lawyers now
complain that the court could have determined the page
lengths itself by finding the documents in the record. But it was
not the judge’s responsibility to make up for the lawyers’ lack
of documentation. Cf. Harper, 223 F.3d at 605 (“[W]hen a fee
petition is … inadequately documented, a district court may …
strike the problematic entries … .”). We find no abuse of
discretion in the district court’s award of costs.
AFFIRMED .