Deicher, David v. City Evansville, WI

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2092
D AVID D EICHER and M ARY M EZERA ,
Plaintiffs-Appellants,
v.
C ITY OF E VANSVILLE, W ISCONSIN,
C HRISTOPHER JONES, individually
and in his official capacity as an
employee of the City of Evansville
Police Department, and C OMMUNITY
INSURANCE C ORPORATION,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 C 356—John C. Shabaz, Judge.
____________
A RGUED D ECEMBER 7, 2007—D ECIDED S EPTEMBER 19, 2008
____________
Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Jimmy Reiners called the
police department in Evansville, Wisconsin, claiming
that he needed Mary Mezera’s address in order to serve
2 No. 07-2092
papers on her regarding property that they jointly owned.
Officer Christopher Jones disclosed Mezera’s address to
Reiners who, as it turns out, is her abusive ex-husband
against whom she had a restraining order. Mezera and
her husband, David Deicher, sued the City of Evansville,
Wisconsin, Officer Jones, and the City’s insurer, Commu-
nity Insurance Corporation, alleging that Officer Jones
violated the Driver’s Privacy Protection Act (“DPPA”)
when he disclosed Mezera’s address. After a jury verdict
in the plaintiffs’ favor, the jury awarded $25,000 in dam-
ages.
The plaintiffs appeal, contending that the district court
erred when it answered a question from the jury by
providing the filing date of the complaint, which was not
in evidence, but not the Notice of Claim, a properly
admitted exhibit filed prior to the complaint that indicated
the plaintiffs’ intent to file suit. We find that the district
court properly took judicial notice of the complaint filing
date, but because there is a reasonable possibility that
this date confused the jury, the court erred by failing to
provide the jury with the Notice of Claim.
The plaintiffs also object to the district court’s calcula-
tion of the attorneys’ fees, maintaining that the court
committed error by limiting the attorneys’ fees to the
amount won at trial; however, since a new trial on dam-
ages is warranted, we need not reach this issue. Therefore,
we reverse the judgment and remand for a new trial
on damages and a new determination of attorneys’ fees.
No. 07-2092 3
I. BACKGROUND
Mary Mezera divorced her then-husband Jimmy Reiners
after years of physical and psychological abuse. On Octo-
ber 1, 2005, Mezera and her new husband, David Deicher,
left their home in Evansville, Wisconsin, and moved to a
new location in Beaver Dam, Wisconsin, which they
kept secret from Reiners. On February 2, 2006, Reiners
called the Evansville Police Department looking for
Mezera’s home address, allegedly for the purpose of
obtaining past due mortgage payments on property that
he jointly owned with Mezera. Officer Jones placed Reiners
on hold, obtained the plaintiffs’ new address from the
State of Wisconsin motor vehicle records, and provided it
to Reiners. He claims that he provided the address after
doing a brief check of Wisconsin’s civil litigation database,
but this database also contained Reiners’s and Mezera’s
divorce decree.
Reiners then attempted to contact the plaintiffs by
leaving a note in their mailbox. Mezera testified that
following the disclosure of her address, she received a
threatening phone call from Reiners; that she came
home on the day of Reiners’s birthday to find a table
overturned outside of her home; and that she lived in
constant fear that Reiners would return to harm her,
Deicher, or their animals. The plaintiffs complained to the
Evansville Police Department, which began an investiga-
tion. The Department concluded that Officer Jones made
a serious error by disclosing the plaintiffs’ address and he
was reprimanded.
On April 22, 2006, the plaintiffs served a letter on the
Evansville Police Department entitled “Notice of Claim,”
4 No. 07-2092
which informed the Department that the plaintiffs in-
tended to file a lawsuit. The plaintiffs filed suit on June 30,
2006 against Officer Jones, the City of Evansville, and its
insurer for violating the DPPA. That statute prohibits
anyone from obtaining or disclosing information from
motor vehicle records, subject to certain exceptions. See
18 U.S.C. § 2724(a).
At trial, the plaintiffs argued that Officer Jones falsified
his report regarding the incident with Reiners to provide
a potential defense to the plaintiffs’ DPPA claim. There
is an exemption to DPPA liability if the information was
given to a third party for “use in connection with any civil,
criminal, administrative, or arbitral proceeding in any
Federal, State, or local court or agency or before any
self-regulatory body, including the service of process,
investigation in anticipation of litigation, and the
execution or enforcement of judgments and orders, or
pursuant to an order of a Federal, State, or local court.” 18
U.S.C § 2721(b)(4).
Officer Jones’s report, which he claimed to have prepared
a few days after he disclosed the plaintiffs’ address, stated
that the plaintiffs’ address was provided to Reiners for
“service of process” of documents relating to the fore-
closure of a trailer that Mezera and Reiners owned during
their marriage. The report further states that Officer Jones
had run Reiners’s name through a federal law enforce-
ment database before giving out the plaintiffs’ address.
The plaintiffs claim, however, that this information was
entered into the computer system months after the inci-
dent, specifically after the Department received the plain-
No. 07-2092 5
tiffs’ Notice of Claim indicating that they planned to
file suit over the DPPA violation.
At trial, the plaintiffs maintained that the Police Depart-
ment initiated an extensive coverup of this incident. Officer
Jones testified that he ran a background check on Reiners
through a federal law enforcement database prior to
disclosing the plaintiffs’ address, which revealed no
criminal background. There was no record in the system,
however, of Officer Jones ever accessing state or federal
records on February 2, 2006. In addition, the Chief of the
Evansville Police Department acknowledged that he
wrote a letter to the manager of the federal law enforce-
ment database asking whether Officer Jones conducted
the requisite background check on Reiners and received
a response that Officer Jones had never run
Reiners’s name through the federal database. Although
Officer Jones was reprimanded for disclosing the plain-
tiffs’ address, on cross-examination the Chief admitted
that Officer Jones was not disciplined for stating in his
official police report that he had run Reiners through the
federal database, nor was the report ever corrected to
reflect that the federal background check had never
been conducted.
Officer Jones also testified that he ran a background
check on Reiners through various Wisconsin databases
prior to disclosing the plaintiffs’ address, but this infor-
mation was not in his report and the records from the
database showed that Reiners’s name was run days after
he contacted Officer Jones. The Wisconsin databases also
disclosed that Mezera had a restraining order against
6 No. 07-2092
Reiners, although Officer Jones denied under oath
having seen the order. Had he actually run the background
check, the plaintiffs contend, Officer Jones would have
discovered that Reiners had a violent history and a re-
straining order against him that would have alerted
Officer Jones not to provide Reiners with the plaintiffs’
address. Furthermore, the plaintiffs argue that Reiners
never mentioned anything about “serving papers” in his
call with police, undermining the truthfulness of Officer
Jones’s report.
After a one-day trial on liability, the jury found that
Officer Jones provided the plaintiffs’ address to Reiners
in violation of the DPPA and returned a verdict in their
favor. During the trial to determine damages, the jury sent
a question to the court asking for the date the case was
filed. That date had not been entered into evidence.
Both the parties objected, the defendants because they
were not sure why the jury needed the date and the
plaintiffs because they believed that what the jury actually
wanted to know was the date when the Notice of Claim
had been served on the defendants, not the date the
complaint had been filed. The district court provided
the date the case had been filed, commenting: “Over the
objection of counsel, the Court is going to provide this
very meaningful piece of information to the jury. And
I’ll tell them also the sun rises in the east and sets in
the West [sic] if they want to know.”
The jury awarded Mezera $14,500 and Deicher $1,000 in
compensatory damages. The latter was increased upon
the plaintiffs’ motion to the statutory minimum of $5,000.
No. 07-2092 7
The jury also awarded the plaintiffs $5,500 in punitive
damages, for a total damages award of $25,000. These
amounts were substantially less than the amounts that the
plaintiffs asked for at trial, where they contended that
they suffered severe emotional trauma after learning
that Reiners knew where they lived.
The plaintiffs moved for a new trial based on the
district court’s communication to the jury of information
outside the record, and they maintained that the
punitive damages award was grossly inadequate. They
also sought attorneys’ fees under the DPPA, 18 U.S.C.
§ 2724(b), seeking the lodestar of $192,062.50 incurred
in litigating their case. The district court first denied
$50,345 of the fee request, stating that certain billed hours
were duplicative, excessive and/or unnecessary. Rather
than awarding the $141,717.50 remaining after this reduc-
tion, however, the court then limited the fee award to
$25,000 on the rationale that the attorneys’ fees should
not exceed the amount the jury awarded to the plaintiffs
in damages.
The plaintiffs’ counsel then moved for an additional
$13,276 in fees for litigating the fee award. The district
court awarded one-eighth of this request, or $1,659.50,
reasoning that since the plaintiffs had received one-eighth
of what had been requested in fees for the main litigation,
they should receive one-eighth of the amount requested
for litigating the fee award. The court then denied the
plaintiffs’ motion for a new trial on damages.
8 No. 07-2092
II. ANALYSIS
A. The district court was entitled to take judicial
notice of the complaint filing date.
We review the district court’s denial of a motion for a
new trial for an abuse of discretion. Huff v. Sheahan, 493
F.3d 893, 899 (7th Cir. 2007). The plaintiffs claim that a
new trial is required on the issue of damages because
the district court answered a jury question with informa-
tion extrinsic to the record—the complaint filing date—and
committed error per se which, the plaintiffs maintain, by
definition means that the improper communication
influenced the jury’s verdict. Specifically, they argue the
district court should have provided the jury with the
date of the Notice of Claim and not the complaint filing
date which, they claim, was improper extrinsic evidence.
We review the district court’s answer to a jury question
for an abuse of discretion. United States v. Hewlett, 453
F.3d 876, 880 (7th Cir. 2006); United States v. Sababu, 891
F.2d 1308, 1333 (7th Cir. 1989).
It is undisputed that the complaint filing date was not
admitted into evidence. See United States v. McClellan, 165
F.3d 535, 551 (7th Cir. 1999) (“Should the jury request
clarification on a matter during deliberations, it is when
the court responds with a misleading, incorrect, unclear
or unresponsive (i.e., not with ‘concrete accuracy’) state-
ment of law or fact, or with facts not in evidence, that we
might have cause for concern.”) (emphasis added). How-
ever, the complaint filing date, similar to other documents
that are either directly related to or produced during the
course of the proceedings, does not generate the same
No. 07-2092 9
concerns that are present when evidence that is outside
the scope of the proceedings is introduced. See In re
Hanford Nuclear Reservation Litig., 497 F.3d 1005, 1033 (9th
Cir. 2007) (finding that evidence from the defendant’s
first trial, although not introduced into evidence and
improperly referenced during the second trial, was not
extrinsic information); Smith v. Duncan, 297 F.3d 809, 815
(9th Cir. 2001) (taking judicial notice of state court docu-
ments that were not admitted into evidence but had a
direct relationship to the appeal).
We could find no cases where circuit courts have re-
solved the issue of whether a court may take judicial
notice of the complaint filing date, but several district
courts have held that a court may take judicial notice of
the date a complaint is filed, and once it does so, that
information is no longer extrinsic to the record. See, e.g.,
Gilman v. Schwartz, No. 05 C 2222, 2006 WL 2827409, at *1,
n.1 (E.D. Cal. Sept. 29, 2006) (taking judicial notice of the
complaint filing date because that date was essential to
the adjudication of the issues in the case); Gulf Ins. Co. v.
Glasbrenner, 343 B.R. 47, 63 (S.D.N.Y. 2006).
Additionally, a court can take judicial notice of matters
of public record. Pugh v. Tribune Co., 521 F.3d 686, 691, n.2
(7th Cir. 2008) (taking judicial notice of stock prices); see
also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.
2001) (holding that a district court can take judicial
notice of a waiver of extradition, which is a matter of
public record, but erred by taking judicial notice of dis-
puted facts). Since the complaint filing date is a matter
of public record and subject to judicial notice, we find
that it is not extrinsic evidence.
10 No. 07-2092
B. The district court abused its discretion when it
failed to provide the jury with the Notice of Claim
during deliberations.
Although the district court was entitled to take judicial
notice of the complaint filing date, its decision to
provide this information to the jury brought out a funda-
mental error in the proceedings: its failure to allow the
jury to consult the Notice of Claim during deliberations
even though the plaintiffs had requested the jury be
allowed to do so. A district court’s answer to a jury’s
question must be viewed in light of the issues presented
at trial. See, e.g., United States v. Watts, 29 F.3d 287, 291
(7th Cir. 1994). The answer to a jury question might
implicate other evidence presented in the case, id., and
this is the situation with the Notice of Claim exhibit
that was excluded from the jury here.
Generally, it is within the trial court’s discretion to
determine which exhibits are provided to the jury during
deliberations; we review this decision only for a clear
abuse of discretion. United States v. Biggs, 491 F.3d 616,
623 (7th Cir. 2007); United States v. Arroyo, 406 F.3d 881,
886 (7th Cir. 2005). Such discretion is usually exercised
to exclude exhibits that neither party has relied on, that
have no relevance to any of the issues central to the case, or
that are cumulative, prejudicial, confusing, or misleading.
See Fed. R. Evid. 403 (allowing the judge to exclude rele-
vant evidence “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation
No. 07-2092 11
of cumulative evidence”); see also United States v. Gross, 451
F.2d 1355, 1359 (7th Cir. 1971) (affirming the exclusion
of exhibits that contained conflicting statutes and ordi-
nances that had no bearing on issues in the case). The
clear abuse of discretion standard is deferential and
recognizes that “[t]he admission or exclusion of evidence
is a matter particularly suited to the broad discretion of
the trial judge.” United States v. Casoni, 950 F.2d 893, 902
(3rd Cir. 1991) (internal quotation marks and citation
omitted). In applying this standard, we give “special
deference” to the district court’s handling of the
exhibits, Biggs, 491 F.3d at 623, but we must still consider
whether the district court has exercised its discretion in a
reasonable manner. See Cincinnati Ins. Co. v. Flanders Elec.
Motor Service, Inc., 131 F.3d 625, 628 (7th Cir. 1997) (“A
decision constitutes an abuse of discretion when it is ‘not
just clearly incorrect, but downright unreasonable.’ ”)
(citation omitted); see also Casoni, 950 F.2d at 902 (noting
that the discretion accorded to district courts “is not
unlimited”).
The situation before us, where the appellant argues that
a district court has denied a request to have the jury
consult a properly admitted exhibit, seems to be rare.
More commonly, a party argues that a jury has been
exposed to information not admitted into evidence. In
the latter case, to obtain a new trial, a party must show
that it was prejudiced by the improper exposure. See
United States v. Magana, 118 F.3d 1173, 1183 (7th Cir. 1997)
(“Even if a defendant alleges that improper material was
before the jury . . . he must still show ‘that there was
some prejudice or substantial right affected by the pres-
ence.’ ”) (citation omitted); see also Bankcard America, Inc. v.
12 No. 07-2092
Universal Bancard Systems, Inc., 203 F.3d 477, 483 (7th Cir.
2000) (“When unapproved material reaches the jury, the
trial court must decide whether there is a reasonable
possibility the material altered the jury’s verdict.”).
We have also required a showing of prejudice for prop-
erly admitted exhibits that allegedly improperly influenced
the jury. United States v. Best, 939 F.2d 425, 429 (7th Cir.
1991) (en banc) (finding that the jury was not prejudiced
by exposure to evidence that had been properly ad-
mitted at trial); see also United States v. Parker, 491 F.2d
517, 521 (8th Cir. 1973) (“Probative value of evidence
admitted must be weighed against possible prejudice that
may result if the exhibits are sent to the jury.”). Thus, we
hold that a new trial is required if there is a reasonable
possibility that a party is prejudiced by the district court’s
failure to provide certain exhibits to the jury, even if the
exhibits are properly admitted. See generally Bankcard
America, Inc., 203 F.3d at 480-81 (“A new trial is granted if
the verdict is against the manifest weight of the evidence
or if a prejudicial error occurred. Even if errors occurred,
no new trial is required if the errors were harmless.”); cf.
Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1142
(7th Cir. 1992) (where jury was exposed to extraneous
evidence, the inquiry is “whether there is a reasonable
possibility that the communication altered [the jury’s]
verdict”) (internal quotation omitted); Haugh v. Jones &
Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991) (same).
Where a district court has unreasonably excluded exhibits
from the jury to the detriment of a party and there is a
reasonable possibility that the exclusion of this evidence
influenced the verdict, this is a clear abuse of the district
court’s discretion.
No. 07-2092 13
Applying these standards, we find that the plaintiffs
were prejudiced by the district court’s failure to provide
the jury with the Notice of Claim, and its refusal to do so
was a clear abuse of discretion.1 When the jury asked
for the complaint filing date, both the plaintiffs and the
defendants objected. The plaintiffs specifically asked
that the jury be given the date of the Notice of Claim
and argued that what the jury really wanted to know was
when the defendants learned about the lawsuit, since
during trial the plaintiffs had provided arguments and
evidence on this point. The district court refused. After
reading the question from the jury, the following ex-
change took place between the district court judge and
the plaintiffs’ counsel:
Plaintiffs’ counsel: Your honor, I renew our request
that they get the date of claim.
The Court: I deny that request. Because that isn’t even
close to what they want. You don’t know. I know
1
Although on appeal the plaintiffs couched most of their
arguments in terms of the complaint filing date being inadmissi-
ble because it was extrinsic to the record, there is no issue of
waiver here. The plaintiffs specifically reference the district
court’s failure to provide the jury with the Notice of Claim
in their brief, objected strenuously in the district court over
this specific issue, and raised it in their motion for a new trial.
Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006)
(“To preserve an issue for appellate review, a party ‘must
make a proper objection at trial that alerts the court and oppos-
ing party to the specific grounds for the objection.’ ”) (internal
citation omitted).
14 No. 07-2092
exactly what they want. They don’t even know there
is a notice.
...
The Court: What’s the objection to sending them the
date this case was filed?
Plaintiffs’ counsel: Because I don’t believe that’s what
they’re interested in, your Honor. What they want to
know is when these people first learned that there
might be a lawsuit. We made an argument about that.
We presented an exhibit about that. That’s why we
put the exhibit in showing the notice of claim, and we
questioned Chief McElroy about it. That’s what
they’re interested in is when the Defendants learned
about the lawsuit. I think. And the only way to find out
if that’s the cases is to give them that exhibit, which
is admitted in evidence. If that’s not the one they
want, they’s [sic] can come back with the question,
“No. We want to know when the suit was filed.” At
that point, you can give them that.
The Court: I can give it right now, and I am giving
it right now.
We are particularly troubled by the district court’s
statement that “They don’t even know there is a notice”
when plaintiffs’ counsel asked that the Notice of Claim
be sent back to the jury. Given that the Notice of Claim
was a properly admitted exhibit and central to the plain-
tiffs’ theory of damages, the district court’s statement
was clearly wrong. In fact, it was very pertinent to the
proceedings and was relevant to whether there was a
No. 07-2092 15
willful violation of the DPPA. See 18 U.S.C. § 2724(b)
(stating that the court may award punitive damages
“upon proof of willful or reckless disregard of the law”).
Furthermore, the district court’s decision to provide
the complaint filing date to the jury, but not the Notice of
Claim date, skewed the proceedings in favor of the defen-
dants. In McClellan, 165 F.3d at 551, we held that “a
judge’s response to a jury’s question must not high-
light one witness’ testimony over another’s”; the same
rationale applies when the district court’s response to a
jury’s question implicates exhibits that provide not only
context for the answer given to the jury, but might also
clarify any potential discrepancies or confusion that
result from answering the question in the first place. See
United States v. Carani, 492 F.3d 867, 874 (7th Cir. 2007)
(“[T]he district court retains broad discretion in deciding
how to respond to a question propounded from the jury
and . . . the court has an obligation to dispel any con-
fusion quickly and with concrete accuracy.”) (citing
United States v. Sims, 329 F.3d 937, 943 (7th Cir. 2003)).
The defendants claim that there may be another explana-
tion for the jury’s request for the complaint filing
date—that it wanted to determine whether or not the
plaintiffs had incurred medical expenses and treatment
prior to the date the action was filed. That is certainly a
fair reading of the jury’s request for the complaint filing
date, for the jury also asked several questions regarding
the plaintiffs’ medical expenses. But there is a reasonable
possibility that the jury’s request for the complaint filing
date was to determine if the case was filed before or
after the final police report was completed. Given this
16 No. 07-2092
possibility, we cannot say that the jury was not prejudiced
by the district court’s failure to provide it with the
Notice of Claim.
The district court had several options at its disposal:
it could have given all of the exhibits to the jury at the
close of evidence, provided the jury with the Notice of
Claim with a proper limiting instruction, given a factually
correct explanation why it was not appropriate for the
exhibit to be given to the jury at all, or it could have
opted to provide neither date to the jury. See United States
v. Salerno, 108 F.3d 730, 745 (7th Cir. 1997) (“[A]s long
as the district court is evenhanded in its evidentiary
rulings, [it] has wide discretion in determining whether
an exhibit will be allowed to go into the jury deliberation
room.”) (citation omitted); United States v. Samples, 713
F.2d 298, 303 (7th Cir. 1983) (finding that “the district
judge did not selectively send only prejudicial evidence
to the jury room [because] [a]ll exhibits, the govern-
ment’s and the defendant’s, were given to the jury”). We
likely would have found all of these to be a reasonable
exercise of discretion.
Normally, the district court’s failure to provide a prop-
erly admitted exhibit to the jury during deliberations
would not cause an alarm: the court is entitled to
instruct the jurors to rely on their collective memories
in instances where the trial was short, as it was here, and
the information should be fresh in the jurors’ minds. United
States v. Guy, 924 F.2d 702, 708 (7th Cir. 1991) (finding that
the refusal to provide a jury with a transcript is not an
abuse of discretion when the trial is short and the jurors
should be able to remember the pertinent testimony).
No. 07-2092 17
Here, however, we find that the district court’s exclusion
of the Notice of Claim from the jury deliberations was
an abuse of discretion. The amount awarded in damages
reflects the jury’s skepticism of the plaintiffs’ theory of
liability, and indicates possible confusion between the
date of the complaint and the date of the Notice of Claim.
The plaintiffs requested one million dollars in
punitive damages and alluded that even more might be
appropriate for compensatory damages, but the plain-
tiffs received only a small fraction of that amount. If the
plaintiffs are ultimately awarded the same amount on
remand, it should be done upon consideration of the
most pertinent evidence in the record.
In reaching this outcome, we note that this decision
should not, in any way, be seen as diminishing the dis-
cretion that district courts have to determine which
exhibits should be provided to the jury during delibera-
tions. But this discretion cannot be exercised in a manner
that unduly burdens the jury’s ability to come to a fair
and accurate resolution of the issues in the case. We
urge the district court to revisit its established practice
(though not stated in writing in the rules of the court or
anywhere else) of allowing only certain exhibits to go
back to the jury, specifically when an exhibit has been
properly admitted into evidence, is integral to the issues
in the case, and a party requests that the jury receive it.
Accordingly, we find that the plaintiffs require a new
trial on damages, and we need not reach the question of
whether the district court erred in calculating attorneys’
fees. See generally Pardo v. Hosier, 946 F.2d 1278, 1285 (7th
18 No. 07-2092
Cir. 1991) (“When a judgment on which an award of
attorneys’ fees to the prevailing party is based is reversed,
the award, of course, falls with it.”). We note, however,
that the way in which the district court made its fee
calculations is likely unreasonable in light of the fact
that the plaintiffs ultimately prevailed at trial. Here, the
district court relied solely on the plaintiffs’ limited dam-
ages award in cutting their attorneys’ fee recovery by
almost 90%. After finding that some hours were duplica-
tive and unnecessary, the district court initially found that
the plaintiffs’ counsel was entitled to a lodestar of
$141,717.50 (an amount that the plaintiffs dispute), but
the court went even further and reduced this amount to
$25,000 to match the $25,000 judgment awarded by the
jury. It also applied a similar rationale in reducing the
amount that the plaintiffs requested for attorneys’ fees
in litigating the fee award—the district court awarded
the plaintiffs one-eighth of the fees requested in connec-
tion with the litigation of their fee petition because the
plaintiffs recovered one-eighth of the fees that they had
requested for litigating the case.
While the plaintiffs’ success at trial is certainly one
consideration in reducing fees, see Simpson v. Sheahan, 104
F.3d 998, 1001 (7th Cir. 1997), this factor, although impor-
tant, is not necessarily dispositive. See Spegon v. Catholic
Bishop of Chi., 175 F.3d 544, 558 (7th Cir. 1999) (“although
the fee award need not be proportionate to the amount
of damages a plaintiff actually recovers, it is a factor that
a court should consider when contemplating a reduction
of the modified lodestar amount”); Simpson, 104 F.3d at
1001 (besides success at trial, other considerations in
No. 07-2092 19
reducing attorneys’ fees are the significance of the legal
issue and the public purpose of the litigation).
The defendants’ counsel stated in oral argument that
its fees were approximately $120,000 to litigate this case, a
fact that provides some indication that the $142,000
lodestar that the district court initially calculated for the
plaintiffs’ attorneys’ fees was a reasonable amount to
expend on litigation. It cannot be the case that the prevail-
ing party can never have a fee award that is greater than
the damages award, or in the alternative, if the party asks
for a bigger damage award than it actually receives, that
any fees incurred in litigating the case are automatically
reduced to the same amount as the damage award. In
any event, the district court’s decision to provide the
complaint filing date but exclude the Notice of Claim
exhibit from the jury prejudiced the plaintiffs, and we
conclude that this was an abuse of discretion, requiring
a new trial on damages.
III. CONCLUSION
Accordingly, we R EVERSE the decision of the district court
and R EMAND for a new trial on damages. Circuit Rule 36
shall apply.
9-19-08