1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

JOSEPH S. McGREAL, ) 

)

Plaintiff, ) 

)

v. ) Case No. 12 cv 05135

) 

THE VILLAGE OF ORLAND PARK, an Illinois ) Hon. Joan Humphrey Lefkow,

Municipal Corporation and a body politic, and ) Judge Presiding.

Chief of Police TIMOTHY McCARTHY, )

Individually, Lieutenant PATRICK DUGGAN, ) Hon. Sidney I. Schenkier,

Individually, and Lieutenant JAMES BIANCHI, ) Magistrate Judge.

Individually, )

)

Defendants. ) JURY TRIAL DEMANDED

MOTION AND STATEMENT 

IN RESPONSE PURSUANT TO LOCAL RULE 54.3(E) AND (F) TO

ORDER ASSESSING RULE 11 SANCTIONS AGAINST ATTORNEY DEROSE

Now comes John P. DeRose, Attorney of Record in the above-captioned cause and, 

pursuant to Local Rule 54.3(e) and (f) as required by the order of this Honorable Court entered 

assessing Rule 11 Sanctions against him, moves and responds as follows:

INTRODUCTION

Although U.S. District Court Rules N.D.Ill., LR 54-3 (a) specifically provides, "[u]nless 

otherwise ordered by the court, this rule does not apply to motions for sanctions under 

Fed.R.Civ.P. 11 or other sanctions provisions", and since this Honorable Court has ordered1 the 

parties "to proceed according to Local Rule 54.3(d)-(g)”, the parties conferred extensively and 

shared a draft of a JOINT STATEMENT PURSUANT TO LR 54.3(e) and (f). Because 

Attorney DeRose is moving this Honorable Court to vacate its order sanctioning and assessing 

fees against him, and although he and defense counsel had exchanged a draft of the joint 

 1 Opinion and Order, Document #: 286, pp. 9-10.

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 1 of 9 PageID #:8277
2

statement last evening, he had declined defense counsel’s invitation to file the Joint Statement, 

and instead indicated that he would file the instant Motion and Statement. Now however, out of 

an abundance of caution and pursuant to the order of the Court to follow Local Rule 54.3 (e) 

regarding the Joint Statement, Attorney DeRose attaches the draft of the Joint Statement2 drafted 

in consort and exchanged with counsel for the defendant last evening. 

Attorney DeRose asks the Court to consider the instant Motion and Statement which 

contains additional information, citation, and argument not contained in the Joint Statement 

coming.

THE RELEVANT FACTS

A. Records Belie Defendants Billings as Exaggerated and Excessive

1. Attorney John P. DeRose (hereinafter simply referred to as “Attorney DeRose”) 

contends that the hours recorded by each of the defense attorneys involved in the above matters

were unnecessary, redundant, and duplicative of each other’s work.

2. Attorney DeRose points out that the Time Records of defense counsel originally 

submitted to him on October 18, 2017 pursuant to this Honorable Court’s Order were different

and more voluminous, and defendants claimed they were entitled to “$83,433 ($53,445 in 

attorneys’ fees to defendants McCarthy and Bianchi and $29,988 in attorneys’ fees to defendants 

Village of Orland Park and Dugan).” 

3. The overlapping, duplicative, and redundant Contemporaneous Time Records of 

the five different (5) attorneys seeking the sanction award for working on the same Reply to the 

Motion for Summary Judgment betrays their excessiveness and failure to mitigate their own 

 2 The original draft of the Joint Statement drafted in consort, between Atty. DeRose and Attorney 

Michael J. Wall, is attached hereto and made a part hereof as Exhibit 1.

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 2 of 9 PageID #:8277
3

costs. See Noga v. Kimco, No. 96 C 6108, 1998 WL 9127, at *4 (N.D.Ill. Jan.6, 1998), holding 

that a court awarding sanctions also must consider whether the petitioning party adequately 

mitigated its own legal costs.

4. For comparison sake, Attorney DeRose attaches a copy of his Contemporaneous 

Time Records3 kept in the cause in preparing Plaintiff’s Response to Defendants’ Motion for 

Summary Judgment and which he has shared with defense counsel indicating that he spent a total 

of 187.10 hours drafting Plaintiff’s Response to Defendants Motion for Summary Judgment. 

5. There were no fees billed or charged by Attorney DeRose to the client because he 

was being represented on a contingency fee basis in his civil rights case that Attorney DeRose in 

good faith believed was meritorious and plaintiff would prevail.

6. Pursuant to LR 54.3(e)(2), after considering the merits of the instant Motion and 

Statement, if this Honorable Court determines that defendants should receive fees as a sanction, 

Attorney DeRose respectfully suggests that such amount be reduced to more reflect the amount 

of time plaintiff’s counsel spent on his Response to the Motion for Summary Judgment as 

opposed to the many hours charged by defense counsel for the redundant work done by so many 

of them in the Reply to the Motion for Summary Judgment.

7. The Seventh Circuit Court of Appeals has taught that the trial court should impose 

the least severe sanction that is adequate to serve the purpose said to be achieved. Anderson v. 

County of Montgomery, 111 F.3d 494, 502 (7th Cir.1997).

8. The Court may consider equitable factors in exercising its discretion in awarding 

a sanction against Attorney DeRose. See Brown v. Federation of State Medical Boards of U.S., 

 3 The Contemporaneous Time Records kept by Attorney DeRose in preparing Plaintiff’s 

Response to Defendants’ Motion for Summary Judgment, attached hereto and made a part hereof

as Exhibit 2.

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 3 of 9 PageID #:8277
4

830 F.2d 1429, 1439 (7th Cir.1987). If citizens who believe that their civil rights have been 

violated cannot secure representation through a contingency fee arrangement with an attorney, it 

is most probable that such rights will never be vindicated. As the court noted4, Attorney DeRose

often represents different civil rights clients for years and receives no compensation whatsoever.

Admittedly, Attorney DeRose is getting “somewhat long in the tooth”, but he hopes to still be 

able to litigate on behalf of civil rights clients for some time to come. Frankly, too large a 

sanction may well deter him from pursuing the representation of clients under such an 

arrangement in the future. Compare the holding by Magistrate Judge Denlow in Moline v. Trans 

Union, LLC, 222 F.R.D. 346, 352 (N.D.Ill. 2004).

B. The Offer to Settle

9. Because of the vagaries of further litigation in the matter, Attorney DeRose has 

offered $15,000 to settle the cause, with the proviso that he will not be able to pay this amount 

until he receives the settlement funds in either of the civil rights contingency fee cases he has 

recently won, but the offer was refused.

C. Judgment Was Employed in Voluntarily Dismissing Certain Defendants

10. It is important to note that in good faith consultation with his client after the 

completion of discovery, evaluating the evidence, and without the need of any summary 

judgment procedure whatsoever, Attorney DeRose voluntarily dismissed defendants Thomas 

Kenealy, Patrick Duggan, Joseph Mitchell, Anthony Farrell, and Scott Malmborg from the above 

caption cause.

11. But the case went forward against the moving defendants. See Lena v. Cach, 

LLC, Case No. C 01805, at*4, (N.D.Ill. 2015), wherein Judge Tharp stated:

 4 Opinion and Order, Document #: 286, p. 8, footnote 7.

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 4 of 9 PageID #:8277
5

Filing a complaint requires only a good faith belief that the claim is 

legitimate; there is nothing deceptive about being unable to prove that 

claim at the time it is filed—or at trial, for that matter. Nor is it 

deceptive to file a good-faith claim in the hope that initiating a lawsuit 

will convince an opposing party to settle the dispute. (Internal citation 

omitted. Bold in the original).

D. Seventh Circuit Precedent Ignored

1. The Emails and Letters from Defense Counsel

12. As noted in the email exchange between Attorney Michael J. Wall and Attorney 

DeRose on June 14, 2017 concerning a meeting at DeRose’s office on June 6, 2017 which was

also attended by Attorney John Allen Wall and plaintiff, Attorney Michael J. Wall wrote:

As I have advised you, we will be filing motions seeking 

reimbursement from you and Mr. McGreal for all of these fees and 

expenses. Please let me know ASAP if you and/or your client are 

going to agree to the payment of all, or any of these charges, or if 

you have any specific objections to any of the entries or the rates 

charged. When we met in your office on June 6 you said that it was 

likely that you would hold off on any response until the motions 

were filed, and then file your responses to those motions. Please let 

me know if that is still your intention.

Attorney DeRose responded:

Case costs are not paid by counsel for a party. They are paid to the 

prevailing party by the party who has not succeeded as long as they 

are validly incurred and so ordered by the court. As we discussed 

the other day, you will have to file your motion before the court 

and we will be given the opportunity to review those costs for 

which you seek reimbursement, we will determine if those case 

costs are appropriate or we should file an objection to any or all of 

them.

Exhibit 1 to DEFENDANTS’ MOTION FOR AWARD OF ATTORNEY’S FEES [Doc.#284-1].

13. The following day, June 15, 2016 Attorney Michael J. Wall sent a letter to 

Attorney DeRose which concluded on Page 2:

Finally, we told you that despite your adamant position we would 

be providing to you the information required by the Local Rules, in 

connection with our motions. You said at that time that you may or 

may not respond to what we send to you. Subsequently on June 14, 

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 5 of 9 PageID #:8277
6

2016, you and I had an exchange of emails in which you informed 

me that you definitely would not be responding to whatever we 

sent you and that you would withhold any response until our 

motions were filed....

Exhibit 3 to DEFENDANTS’ MOTION FOR AWARD OF ATTORNEY’S FEES [Doc.#284-1].

14. It is respectfully submitted that the meeting at Attorney DeRose’s office in June 

2017 was intended to intimidate him and plaintiff from going forward with an appeal of this 

Honorable Court’s grant of summary judgment.

15. Based on the facts in the instant case, the observation made by Judge Hamilton in 

the most recent case of Riffner v. PNC Bank, N.A., 850 F.3d 880, 886 (7th Cir., March 10, 2017

seems most apropos: 

A letter may thus warn about impending service of the motion, but 

a letter is not a substitute for a motion.

16. The letters and email correspondence from defendants threatening to seek 

sanctions if they were not paid more than $500,000 in this case were not a substitute for an actual 

motion.

17. Attorney DeRose was indeed surprised by the Order of this Honorable Court 

awarding Rule 11 Sanctions against him in the above-captioned cause. [Doc.#286].

4. No Separate Motion for Sanctions

18. DEFENDANTS’ MOTION FOR AWARD OF ATTORNEY’S FEES 

PURSUANT TO 42 U.S.C. §1988 [Doc.#284] filed in this cause and seeking $540,000, included 

a section seeking an award of attorney’s fees as sanction under Rule 11.

19. Contrary to Seventh Circuit precedent, defendants’ Motion for Rule 11 Sanctions 

was contained in their motion for attorneys’ fees. See Riffner, 850 F.3d, at 884 (“A motion for 

sanctions must be made separately from any other motion...”).

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 6 of 9 PageID #:8277
7

5. Requirement That Sanction Motion Be Served in Advance of Filing

20. Federal Rule of Civil Procedure 11(c)(2) requires a party seeking Rule 11 

sanctions to first serve a proposed motion on the opposing party and to give that party at least 21 

days to withdraw or correct the offending matter.

21. Defendants never did serve a Rule 11 Motion for Sanctions on Attorney DeRose 

under Rule 5 and give him “at least 21 days to withdraw or correct the offending matter” before 

filing the proposed motion seeking sanctions in violation of Rule 11(c)(2). See Riffner, 850 F.3d 

at 884.

6. The Matter Was Terminated before Sanctions Were Imposed

22. Convinced in good faith that that there were triable issues and they would prevail 

before a jury, plaintiff and Attorney DeRose went forward with the appeal which was 

unsuccessful as this Honorable Court’s grant of summary judgment for defendants was affirmed.

23. The case has been settled against plaintiff and Attorney DeRose from whom 

defendants now seek sanctions.

24. The Riffner court furthered ruled: 

“The court must not impose a monetary sanction: 

(A) against a represented party for violating Rule 11(b)(2); or

(B) on its own, unless it issued the show-cause order under Rule 11 

(c)(3) before voluntary dismissal or settlement of the claims made 

by or against the party that is, or whose attorneys are, to be 

sanctioned. Id., at 885.

7. No Warning Shot/Safe Harbor Procedure Followed

25. The Riffner court went on to explain the importance of following the provisions of 

Rule 11 exactly:

One of the most important changes was to add the provision at 

issue in this appeal, the warning-shot/safe harbor procedure in rule 

11(c)(2). The Advisory Committee will explained:

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 7 of 9 PageID #:8277
8

The rule provides that request for sanctions must be made as a 

separate motion, i.e., not simply included as an additional prayer 

for relief contained in another motion. The motion for sanctions is 

not, however, to be filed until at least 21 days (or such other period 

as the court may set) after being served... These provisions are 

intended to provide a type of “safe harbor” against motions under 

Rule 11 in that a party will not be subject to sanctions on the basis 

of another party’s motion unless, after receiving the motion, it 

refuses to withdraw that position or to acknowledge candidly that it 

does not currently have evidence to support a specified allegation.

Id., at 886.

WHEREFORE, Attorney DeRose respectfully moves this Honorable Court to vacate its 

order assessing Rule 11 Sanctions against him and to terminate the case.

Respectfully submitted,

/s/ John P. DeRose

John P. DeRose

 

CERTIFICATE OF SERVICE 

I, John P. DeRose, an attorney, hereby certify that on the 8th day of 

December 2017 the that the foregoing MOTION AND STATEMENT IN RESPONSE 

PURSUANT TO LOCAL RULE 54.3(e) AND (f) TOORDER ASSESSING RULE 11 

SANCTIONS AGAINST ATTORNEY DEROSE will will will will will will will and in and in 

and will electronically filed on December 8, 2017 and served on the attorneys of 

record who are recipients in the Federal Court’s electronic filing system and by emailing same to the attorneys of record.

/s/ John P. DeRose

John P. DeRose

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 8 of 9 PageID #:8277
9

John P. DeRose & Associates

15 Spinning Wheel Road

Suite 428

Hinsdale, IL 60521

(630) 920-1111 office

(630) 920-1170 fax

john@johnderoselaw.com

Case: 1:12-cv-05135 Document #: 289 Filed: 12/08/17 Page 9 of 9 PageID #:8277