Connolly, Emma J. v. Laidlaw Inc

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1151
Emma J. Connolly,
Plaintiff-Appellant,
v.
Laidlaw, Inc., formerly known as
National School Bus Service Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 96 C 6060--George W. Lindberg, Judge.
Argued October 31, 2000--Decided November 21,
2000
Before Bauer, Kanne, and Rovner, Circuit
Judges.
Bauer, Circuit Judge. We first sampled
this attorney’s fees case in Connolly v.
National Sch. Bus Serv., Inc., 177 F.3d
593 (7th Cir. 1999) ("Connolly I"), an
appeal from the district court’s award of
$23,281.16 to plaintiff’s attorney Mr.
Earnest T. Rossiello, Connolly, 922 F.
Supp. 1032 (N.D. Ill. 1998), who sought
some $97,000. Unhappily, we take a second
bite. See, e.g., Hensley v. Eckerhart,
461 U.S. 424, 437 (1982) ("A request for
attorney’s fees should not result in a
second major litigation."); Estate of
Borst v. O’Brien, 979 F.2d 511, 514 (7th
Cir. 1992) ("We can think of few matters
more wasteful of judicial resources than
ancillary litigation over an attorneys’
fee award."); Nanetti v. Univ. of
Illinois at Chicago, 944 F.2d 1416, 1417
(7th Cir. 1991) ("Critics of our
society’s penchant for litigation could
make a strong argument on the basis of
attorney’s fees litigation alone.");
Ustrak v. Fairman, 851 F.2d 983, 987, 988
(7th Cir. 1988) ("Fee litigation has
become a heavy burden on the federal
courts. It can turn a simple civil case
into two or even more cases . . . [,
which reinforces] our impression that
lawyers litigate fee issues with greater
energy and enthusiasm than they litigate
any other type of issue."). For economy,
we assume an acquaintance with Connolly
I, where we reviewed the district court’s
attorney’s fee award for abuse of
discretion, as we do again here. See
Evans v. Evanston, 941 F.2d 473, 476 (7th
Cir. 1991). Our deference leads us to
affirm the district court’s grant of
$23,281.16 to Rossiello.
Rossiello raised three issues to us in
his Connolly I appeal. First, he
questioned the "market rate" used by the
district court in its lodestar
calculation. Second, he disputed the 50%
reduction of the lodestar amount for
achieving only "limited success" for his
client. Third, he challenged the further
reduction of the lodestar amount by 33%
for his dilatory tactics. Our decision in
Connolly I fully sided with the district
court on its resolution of issues one and
two. We remanded the third, asking the
district court to clarify the extent to
which Rossiello’s refusal to meet with
the judge’s law clerk, a refusal we found
to be well within his rights, factored
into the 33% reduction.
Curiously, Rossiello attempts now, in
Connolly II, to reargue issue two. In his
brief, Rossiello complains that the
district court only reconsidered the
third issue, even though we "mandated"
that the whole case be reconsidered. He
further professes: "This court did not
’affirm in part and reverse in part.’ It
did not ’vacate.’ It ’reversed
andremanded.’ Therefore, the entire
motion for attorney’s fees and costs was
to have been reconsidered. The district
court did not reconsider the entire
award." Rossiello described the district
court’s misdeed as "disingenuous" and a
"charade of the proceeding in this
court." A reading of Connolly I shows
Rossiello’s argument to be pure
sophistry.
The district court was correct in
reconsidering only the third issue, as it
was the only issue to be heard on remand.
We affirmed the district court’s decision
on the market rate issue when we stated:
"We find no abuse of discretion in Judge
Lindberg’s awarding rates of $285/hour
for Rossiello, $140/hour for Dimopoulos,
$160/hour for Brom, and $175/ hour for
Kelly." Connolly, 177 F.3d at 597.
Likewise, we affirmed the district
court’s 50% lodestar reduction, by
stating: "This is exactly the procedure
Judge Lindberg followed in this case, and
we find no abuse of discretion." Id. at
598. As to the third issue, we wrote:
Contrary to Rossiello’s contentions,
Judge Lindberg had ample evidence before
him of Rossiello’s dilatory tactics.
Given the deference we show to a district
court judge’s determination of reasonable
attorney’s fees, we would ordinarily
affirm Judge Lindberg’s reduction from
the lodestar amount based on the record
before us. Rossiello, however,
legitimately complains of one factor
Judge Lindberg relies on in reaching his
decision.
* * *
We conclude that it was an abuse of
discretion to reduce the attorneys’ fee
award based on Rossiello’s refusal to
have the district court’s law clerk
mediate the case. On remand, the district
court may well conclude that other
factors besides the failure to meet with
his law clerk merit a reduction in the
attorneys’ fee award due to unreasonable
delay. We leave this decision to the
sound discretion of the district court.
The district court may not, however,
consider Rossiello’s refusal to meet with
the district court judge’s law clerk in
determining whether Rossiello
unreasonably delayed settlement.
Id. at 598-99. We regret Rossiello’s
confusion because it has wasted precious
resources, but we believe that our
mandate to the district court was clear.
Therefore, since issues one and two were
fully and fairly decided in Connolly I,
we refuse to reopen them under the law of
the case doctrine. See Payne for Hicks v.
Churchich, 161 F.3d 1030, 1037 n.8 (7th
Cir. 1998); Evans v. City of Chicago, 873
F.2d 1007, 1013-14 (7th Cir. 1989). Thus,
on this appeal, we need only consider
whether the district court abused its
discretion on remand as to issue three.
The district court’s decision on remand
adequately addressed our concerns. The
court clarified the basis for its
decision to reduce the award by 33%
because of Rossiello’s dilatory tactics.
These bases included Rossiello’s repeated
statements that "this case is all about
the fees," Rossiello’s refusal to conduct
settlement negotiations with Connolly
present because she might want to accept
a settlement offer not in his interests,
and Rossiello’s repeated rejection of
higher settlement offers. See Connolly,
77 F. Supp. 2d 903, 904-05 (N.D. Ill.
1999). Specifically as to the law clerk
issue, the district court explained: "The
court is confident that it in no way
based its decision to further reduce the
lodestar amount by one-third on counsel’s
refusal to engage in settlement or
mediation with its law clerk." Id. at
904. We read this to mean that the
district court concluded on remand that
the other evidence of dilatory tactics,
excluding Rossiello’s refusal to mediate
with the law clerk, merited the 33%
reduction. Therefore, we AFFIRM.