In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3495

WILLIAM T. DIVANE JR., et al.,

Plaintiffs-Appellees,

v.

KRULL ELECTRIC CO.,

Defendant,

and

JOHN J. CURRY JR.,

Respondent-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 C 6108—George W. Lindberg, Judge.

____________

ARGUED SEPTEMBER 24, 2002—DECIDED FEBRUARY 11, 2003

____________

Before BAUER, POSNER, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Three years ago, we upheld

the district court’s imposition of Rule 11 sanctions against

John J. Curry Jr. for filing an answer and counterclaim

that (i) denied certain facts that Curry’s client, Krull

Electric Company, previously had admitted in companion

litigation and (ii) asserted a frivolous counterclaim for

which Curry never provided any evidentiary support,

despite the frequent opportunities to do so during the
2 No. 01-3495

underlying litigation’s “tortuous three-year road to trial.”

Divane v. Krull Electric Co., Inc., 200 F.3d 1020, 1022 (7th

Cir. 1999) [hereinafter Divane I]. We remanded the case

to the district court to determine the appropriate amount

of sanctions, vacating the district court’s initial blanket

award of attorney’s fees and costs because it necessarily

included some amount that did not directly result from

Curry’s sanctionable conduct. Id. Dissatisfied with the

district court’s decision on remand, Curry appeals the

sanction award once again, arguing this time that the

district court abused its discretion by ignoring certain

elements of our mandate and disregarding governing

principles in fashioning an appropriate award. Because

the district court acted within its discretion in reducing

the amount of the original sanction award by a figure

representing a reasonable estimate of what the plaintiffs’

attorney’s fees and costs would have been absent Curry’s

sanctionable conduct, we affirm.

HISTORY

The sanctions were imposed in a case that began in

October 1995, when plaintiffs-appellees William T. Divane

Jr., et al., known collectively as the Electrical Insurance

Trustees, filed a complaint against defendant Krull

Electric Company claiming that the defendant owed them

delinquent benefit-fund contributions under the terms of

a collective bargaining agreement (“CBA”). For ease of

later explanation, we will refer to this case as Krull Electric II. Specifically, in Krull Electric II, the Trustees alleged that Krull Electric was an electrical employer employing electricians pursuant to an October 1984 letter of

assent that Krull Electric had executed to a CBA originally entered into between Local 134 of the International

Brotherhood of Electrical Workers and the Electrical

Contractors’ Association of the City of Chicago. Under the

terms of the CBA, Krull Electric (as an employer) agreed
No. 01-3495 3

to pay certain wages and to file a monthly payroll report

and make corresponding monthly contributions to the

Trustees (as the duly appointed representatives of Local

134 and the Association) to cover certain fringe benefits

for Krull Electric’s employees. The Trustees alleged that

Tan Lee—an electrician employed by Krull Electric and

husband of its president, Pamela Lee—had testified in a

September 1995 deposition (taken in a related case, which

is explained below) that he had been working forty hours

a week for the company. This was news to the Trustees;

Krull Electric had stopped making contributions in October 1994, filing monthly payroll reports that claimed that

no contributions were due because no “clock hours” had

been logged by any of its electricians. Citing provisions

of the CBA and its related agreements, which granted the

Trustees the power to demand and collect delinquent

contributions on the Fund’s behalf, the Trustees brought

suit under ERISA and the Labor Management Relations Act to recover the delinquent funds.

Krull Electric denied liability, claiming it had no payment obligation because it was no longer a signatory to

the CBA, and filed a counterclaim alleging that the Trustees’ demand for payment constituted a violation of section

302 of the LMRA. 29 U.S.C. § 186 et seq. (1995) (prohibiting the collection of payments without the requisite provisions of services or benefits). In its answer, Krull Electric

denied knowledge of various CBA and related-agreement

provisions, denied knowledge that Tan Lee had testified

to working forty hours a week, and although it admitted

that it had not made any fringe-benefit contributions

since October 1994, denied that it had any obligation to

make them. It asserted four affirmative defenses: (1) that

it was not bound by any agreement to pay benefit-fund

contributions; (2) that the Trustees suffered no loss; (3) that

the amounts claimed by the Trustees were excessive;

and (4) that the Trustees’ demands for payment were

unlawful. In its corresponding single-count counterclaim,
4 No. 01-3495

Krull Electric explained why it was no longer obligated

to make benefit-fund contributions despite its October

1984 assent to the CBA: Krull Electric alleged that in

October 1994, Local 134 determined that the company

was no longer a signatory of the CBA. And since the

Trustees knew (or should have known) of Local 134’s

determination, their demand to compel payment violated the LMRA.

Krull Electric’s denials and counterclaim allegations

frustrated and confused the Trustees. First, the denials directly contradicted admissions the company had

made just months earlier in response to another, related

complaint the Trustees had filed against Krull Electric. In

that case, which had been pending before Judge Kocoras

since April 1995, the Trustees claimed that Krull Electric had been underreporting the amount of hours Tan

Lee had worked each week for the years 1992 and 1993

in order to minimize the amount of fringe-benefit contributions the company was responsible for making under

the CBA. Since it was filed first (even though it is discussed second here), we will call this case Krull Electric I.

The Trustees’ Krull Electric I complaint had set forth some

of the same CBA and related-agreement provisions that

were alleged in Krull Electric II. But in its Krull Electric I answer, the company had admitted knowledge of

these provisions and to being a signatory to the agreement. (Tellingly, Krull Electric filed a motion on May 15,

1996—five days after filing its answer in Krull Electric

II—seeking to amend its Krull Electric I answer in order

to remove its admissions regarding its knowledge of the

CBA provisions and to refute its status as a signatory.

Judge Kocoras denied the motion.) Second, it was in the

course of discovery for Krull Electric I that Tan Lee’s

deposition had been taken, revealing the post-October 1994

hours worked that formed the core of the Trustees’ cause

of action in Krull Electric II. And as such, the Trustees

were perplexed over how Krull Electric—who, as a party
No. 01-3495 5

in Krull Electric I, attended the Tan Lee deposition and

was entitled to the same copy of the deposition transcript

that the Trustees had received—could credibly claim lack of

knowledge over what Tan Lee had testified to. Finally,

at Pamela Lee’s deposition on May 24, 1996, the Trustees inquired into the factual underpinnings of the counterclaim: namely, the alleged Local 134 determination. Over

objections by Curry, Pamela claimed she didn’t know

what Local 134 might have done in October 1994 and,

strangely, that if she did, the information about it was

privileged. After the deposition, the Trustees informed

Curry that if he could not provide support for Krull Electric’s counterclaim allegations, they would seek sanctions.

Curry never did. He deposed several Local 134 members, but never was able to drum up any support for the

notion that the union had repudiated its agreement with

Krull Electric. So on September 13, 1996, the Trustees

sent Curry a motion requesting that he withdraw the

counterclaim and amend his answer by October 4, 1996, or

face sanctions. Judge Lindberg denied the motion to strike,

noting that by alleging the October 1994 repudiation by

Local 134, Krull Electric had raised an issue of fact. But

the court warned Curry that if he could not substantiate

his claim, he would face sanctions. Discovery concluded,

and the case went to bench trial in December 1997. In his

trial brief, Curry advanced a couple of new arguments as

to why the company was not obligated to pay contributions as required by the CBA. Finding these last-minute

arguments as equally unsupported by the evidence as the

October 1994 repudiation allegation, the district court

found in favor of the Trustees and awarded just over

$54,000 in damages.

In post-trial proceedings, the Trustees renewed their

Rule 11 motion, requesting the court to award $25,000 as a

flat sanction. Simultaneously, they filed a fee petition

against Krull Electric under ERISA’s fee-shifting provision.
6 No. 01-3495

In a March 27, 1998 order addressing both motions, the

district court first found Curry’s conduct sanctionable,

observing that the answer and counterclaim had been

filed without any evidentiary support (or reasonable inquiry) and were intended for the improper purposes of

incurring unnecessary delay and needlessly increasing

the costs of litigation. As such, Curry’s sanctionable conduct had infected the entire proceeding, pressing an

otherwise straightforward, routine, and, for that matter,

meritorious case (because, after all, Krull Electric never

was able to produce any viable defense to the Trustees’

claim) all the way to trial, imposing en route undue burdens on the Trustees and the court. As a sanction, the

district court ordered Curry to pay a $5000 penalty to the

court, and, should Krull Electric not be able to satisfy its

judgments, to pay the roughly $37,645 in attorney’s fees

and $2526.07 in costs prayed for by the Trustees in their

ERISA fee petition—reasoning that the practical effect

(and perhaps targeted goal) of Curry’s obstructionism

was the avoidance of any realistic possibility of the Trustees’ recovery from Krull Electric, which had by then

claimed insolvency and seemed likely to enter bankruptcy proceedings. In setting the amount of the fee

award, the district court considered and rejected Krull

Electric’s numerous objections to the Trustees’ fee petition,

including claims that the Trustees’ attorney’s billing rates

were unreasonable and the time requested was excessive.

Dissatisfied, Curry filed a Rule 59(e) motion seeking

to alter or amend the court’s sanction award, essentially

repeating the arguments he advanced in opposition to

the Trustees’ Rule 11 motion and fee petition the first

time. In an April 16, 1998 order, the district court refused

to address the only new argument Curry advanced—

that the court had in fact already stricken the counterclaim back in June 1996—because that argument was

available to Curry at the time he filed his original response.

But the court did proceed to modify the judgment. Having
No. 01-3495 7

determined that circumstances now made clear that Krull

Electric would not be able to satisfy the judgments entered against it, the court dispensed with contingencies

altogether and ordered Curry to pay the Trustees all

attorney’s fees and expenses incurred after May 10, 1996—

the date of the offensive pleading—a total of $33,292 in

fees and $2306.69 in costs. In the court’s opinion, this

amount was an appropriate sanction for Curry’s conduct

and was warranted for effective deterrence.

On appeal, we upheld the district court’s imposition of

Rule 11 sanctions against Curry, rejecting his procedural

and substantive challenges. Divane I, 200 F.3d at 1022.

But in evaluating the fee-based sanction in light of the

Rule’s mandate in subsection (c)(2) that sanctions be limited to the least amount sufficient to deter repetitious

conduct and—that being so—that an award of reasonable

attorney’s fees and other expenses be limited to those

directly resulting from the sanctionable conduct, we

could not accept that all of the awarded legal expenses

were warranted. Id. at 1030; see also Fed. R. Civ. P.

11(c)(2). We remanded the case so that the district court

could set a more appropriate amount, noting that it was

in the best position to determine which of the Trustees’

legal costs were the direct result of the sanctionable

conduct. Id.

In remanding, we added a “cautionary note” to the district court, which explained that a proper award would

include, for example, any research into the sole legal

issue raised by Curry’s counterclaim, but that it could not

include such activities as the cost of deposing witnesses

who would have been deposed without regard to the

frivolous counterclaim. Id. at 1031. Moreover, we observed that we could see no reason why the sanctionable

denials in the answer would cause the Trustees to incur

additional legal expenses since those denials were di-
8 No. 01-3495

rectly at odds with admissions made in companion litigation. Id.

On remand, Curry seized upon our cautionary language

as an explicit endorsement that the district court evaluate

each specific line-item entry in the fee petition in setting

the appropriate award. Moreover, he read our language

questioning whether any additional fees could result

from contesting denials in an answer that had been admitted elsewhere to mean that we had conclusively held

unrecoverable any fees claimed to have resulted from the

sanctionable answer. As this left only the sanctionable

counterclaim, he scoured the fee petition objecting to any

line-item entry that did not specifically reference it and

it alone. As a result, he struck all but two entries, which

totaled $334 in fees. Apart from his objections, Curry

advocated for a period of discovery during which he could

depose the Trustees’ counsel and gain access to their

individual timesheets, which in his opinion were the only

evidence of contemporaneous timekeeping capable of

clarifying the pre-billing reports and conclusively establishing the time spent addressing his sanctionable conduct.

He demanded that at the conclusion of this additional

discovery the court hold an evidentiary hearing before

ruling on an appropriate award.

Viewing his latest procedural requests against the

protracted procedural history of this case and its related

proceedings, the Trustees argued in response that granting the request for additional discovery and an evidentiary

hearing would do nothing more than create another battlefield for Curry’s war of attrition, one that the court

need not endorse or participate in. In any event, they

asserted that their pre-billing time descriptions were

adequate and that discovery of individual timesheets

wouldn’t aid the district court in its analysis. The difficulty

in separating recoverable from nonrecoverable fees was

not—as Curry asserted—due to insufficient time-record-
No. 01-3495 9

ing procedures or a failure to satisfy the Trustees’ burden to substantiate their fee request, but was instead a

byproduct of Curry’s sanctionable conduct. The denial

that Krull Electric was no longer bound by the terms of

the CBA (an argument up until trial based solely on the

counterclaim allegations) so pervaded discovery and the

pretrial proceedings that the Trustees were unable to

separate by individual time entry that time spent litigating against the counterclaim from that time spent prosecuting their own case. To illustrate, they responded to

many of Curry’s objections to their individual time entries on the pre-billing report, setting forth how each

challenged entry directly related to Curry’s sanctionable

conduct. Moreover, they argued that Krull Electric’s only

practical defense to the action was to delay the course of

the litigation, which Curry accomplished by asserting

the baseless counterclaim and obstructionist answer. Absent this sanctionable conduct, the Trustees argued that

the company would, at the least, have been forced into

favorable settlement terms since Krull Electric had no

viable defenses to the Trustees’ claims (as born out by

the meritless arguments asserted in its last-minute trial

brief). But because of the time the Trustees spent battling

against Curry’s stonewalling tactics, Krull Electric was

essentially allowed to liquidate its assets, preventing any

meaningful recovery by the Trustees. Thus, the Trustees

stood by their claim to the entire amount originally

awarded.

Only after additional prompting by the court to come

up with some portion attributable only to the counterclaim did the Trustees capitulate. They pointed to the

fees they had been awarded in prosecuting a similar

straightforward ERISA case and argued that those fees,

$8500, be deducted as a fair benchmark of what it would

have cost them to prosecute this litigation against an

opponent who was unwilling to violate Rule 11. The court
10 No. 01-3495

agreed, but deducted not the $8500 eventually awarded

(which reflected reasonableness-of-fee-and-time deductions),

but the $11,584 that the Trustees had requested in that

fee petition. So it reduced the original amount of the

sanctions, $29,869, by $11,584, to arrive at $18,285. Moreover, the district court agreed with Curry’s position that

in our cautionary note we had determined that no additional fees could have been generated in response to the

answer’s sanctionable denials. The court estimated that

one-third of the fees that were not attributable to the

estimated figure of the Trustees’ base prosecution costs

were attributable to other nonrecoverable aspects of the

case (i.e., litigating against the denials), and thus further

reduced the award by $6095, arriving at $12,190. As for

costs, the district court reduced the original $2306.69

requested by forty-one percent, since the $12,190 fee award

represented forty-one percent of the original $29,869

requested for fees. So it added $945.74 in costs to the

running total, bringing the sanction award to $13,135.74.

Finally, the district court added an additional $6425 in

attorney’s fees generated in litigating the Rule 11 motion

through remand, representing two-thirds of the total

amount requested, $9637.50; the one-third reduction representing the amount of time on remand the Trustees had

spent arguing that the sanctionable denials resulted in

additional fees (an estimate based on the observation

that approximately one-third of the Trustees’ briefs addressed that argument).

Regrettably—but not surprisingly—the case is back before us. Curry argues that the district court’s chosen

methodology was an abuse of discretion and, for that

matter, that had the district court conducted anything

short of a mini-trial over each of the recorded entries, it

would have likewise abused its discretion. In the alternative, since the Trustees refused to meet him on the lineitem-entry battlefield, Curry argues they are in derelic-
No. 01-3495 11

tion of their duty to substantiate their fee request and

thus entitled to no fees-as-sanctions award at all (or at

least, only to the $344 he admits directly resulted from

his sanctionable conduct). In addition, he asserts a number of objections to the reasonableness of the entire fee

request itself: namely, that the hours submitted were

excessive and that the rates were unreasonably high.

Finally, he argues that the award should have been further reduced based upon numerous equitable principles:

most notably, that the Trustees failed to mitigate their

damages and that the district court did not properly take

into account his ability to pay the fine assessed. Curry’s

remaining challenges have been considered by the court,

are meritless, and warrant no discussion here.

ANALYSIS

I.

“A request for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424,

437 (1983). Despite this oft-quoted admonition, fee litigation has become a significant burden on the federal courts.

As we have previously observed, fee litigation “can turn a

simple civil case into two or even more cases—the case on

the merits, the case for fees, the case for fees on appeal, the

case for fees for proving fees, and so on ad infinitum, or

at least ad nauseam.” Ustrak v. Fairman, 851 F.2d 983,

987 (7th Cir. 1988). Given the burdens this litany of fee

litigation imposes upon the courts, we have granted wide

latitude to district courts in setting awards of attorney’s

fees, for “neither the stakes nor the interest in uniform

determination are so great as to justify microscopic appellate scrutiny.” Id. Generally, a district court will only

abuse this discretion when no reasonable person could

have taken the same view it adopted. Bright v. Land

O’Lakes, Inc., 844 F.2d 436, 442 (7th Cir. 1988).
12 No. 01-3495

The same holds true for awards of attorney’s fees as Rule

11 sanctions. In general, the district court enjoys broad

discretion in setting a sanction award that it believes

will serve the deterrent purpose of Rule 11. In an effort to

deter future conduct, it may impose a flat sanction, it may

strike offensive pleadings, or—more commonly—it may

direct the offending party to pay the other party’s reasonable attorney’s fees. In the latter case, “Rule 11 is not a feeshifting statute in the sense that the loser pays.” Mars

Steel Corp. v. Cont. Bank, 880 F.2d 928, 932 (7th Cir. 1989).

Instead, “Rule 11 ensures that each side really does bear

the expenses of its own case—that the proponent of a

position incurs the costs of investigating the facts and

the law.” Id.; see also Johnson v. A.W. Chesterton, 18 F.3d

1362, 1366 (7th Cir. 1994). But if the court determines

that an award of attorney’s fees will serve the deterrent

purpose of Rule 11, it has an obligation to award only

those fees which directly resulted from the sanctionable

conduct. Fed. R. Civ. P. 11(c)(1)(A). This ensures that the

proponent of a sanctionable position ultimately pays the

costs resulting from it, serving a dual purpose of deterrence and restitution, while avoiding blanket fee-shifting,

which would have the tendency to overcompensate the

opponent and penalize the proponent.

In practice, this proves to be an inexact science. Essentially, the analysis is a matter of causation. This is apt

since we have already analogized Rule 11 litigation to tort

law, having opined that “it establishes a new form of

negligence,” where one owes a “duty to one’s adversary

to avoid needless legal costs and delay.” Mars, 880 F.2d

at 932 (citing In re Central Ice Cream Co., 836 F.2d 1068,

1072 (7th Cir. 1987) (“[T]he Rule speaks of ‘reasonable’ prefiling inquiry, the language of tort law.”) and Hays v. Sony

Corp., 847 F.2d 412, 418 (7th Cir. 1988) (“Rule 11 defines

a new form of legal malpractice.”)). Carrying the analogy

further: once a violation of this duty has been established,
No. 01-3495 13

a claimant must still show how its damages resulted

from that violation. As with tort law, there are easy cases

and hard ones. If a plaintiff files a baseless single-count

complaint, it is fairly simple for a district court deciding

upon an award of attorney’s fees as a Rule 11 sanction to

determine which fees resulted from the plaintiff’s conduct:

they are those that the defendant spent answering the

complaint and defending against it. This scenario is the

slip-and-fall of Rule 11 cases. The task becomes more

complicated with multicount complaints or multiple defenses intertwined around similar operative facts, some

of which are sanctionable, some not. Think of these cases

as complex toxic-tort litigation. But just as tort law has

developed various mechanisms to allow innocent plaintiffs to recover from negligent defendants even if it is

difficult, if not impossible, to prove that all of the plaintiff’s injuries resulted from the defendant’s conduct, so too

has the law of fee litigation developed to address these

more complex scenarios.

In deciding upon a fee award in a case where a plaintiff has only partially prevailed, a court must apportion

the award according to the results actually achieved.

Hensley, 461 U.S. at 434-37. Perhaps a victorious plaintiff will have succeeded on only some of his claims for relief, in which case the district court has an obligation to

adjust the award downward to account for time spent on

unsuccessful claims. In Hensley, the Supreme Court outlined the framework for the district court’s analysis:

“Factually unrelated claims are treated as separate lawsuits, and therefore if the plaintiff loses on such a claim

he is not to be reimbursed for the attorney’s fees allocable

to it.” Ustrak, 851 F.2d at 988 (discussing Hensley). In this

scenario, a fee applicant should have maintained and

provided records identifying “the general subject matter

of his time expenditures,” which will “enable a reviewing

court to identify distinct claims.” See Hensley, 461 U.S. at
14 No. 01-3495

437 & n. 12. “But where ‘the plaintiff’s claims of relief . . .

involve a common core of facts or [are] based on related

legal theories,’ so that ‘much of counsel’s time will be

devoted generally to the litigation as a whole, making it

difficult to divide the hours expended on a claim-by-claim

basis, . . . the district court should focus on the significance

of the overall relief obtained by the plaintiff in relation

to the hours reasonably expended on the litigation.’ ”

Ustrak, 851 F.2d at 988 (quoting Hensley, 461 U.S. at 435).

If the latter is applicable, “[n]o exact calculation” of the

time reasonably required to prepare and litigate a case

if that case had been confined to its meritorious issues is

possible. Id. at 989. The amount is an “elusive counterfactual,” and thus relegated to the domain of best estimates. Id. (finding that the “best estimate” of the cost of

prosecuting plaintiff’s sole meritorious claim amid five

other unsuccessful ones would have been “half as great as

it turned out to be”).

We see no reason why Hensley shouldn’t control under

Rule 11’s directly resulting standard. For that matter

neither do the parties. The more pressing question is

where the relationship between the Trustees’ bare prosecution costs and Curry’s sanctionable conduct lies amid

Hensley’s distinction between factually unrelated, independent claims and those claims interwoven around a

common core of facts or based on related legal theories. A

district court is less likely to abuse its discretion in deciding to “simply reduce the award to account for . . . limited success,” rather than identifying and eliminating

specific unrelated hours, in a case where the prevalence

of common facts and related themes makes it difficult, if

not impossible, efficiently and expediently to pursue the

other alternative. See Hensley, 461 U.S. at 436-37 (“There

is no precise rule or formula for making these determinations. The district court may attempt to identify specific

hours that should be eliminated, or it may simply re-
No. 01-3495 15

1 The Trustees’ claim had the following elements: (1) the Trustees

administer ERISA funds for Local 134 members; (2) Krull Electric was a signatory to Local 134’s CBA, which required contributions to be made to the Trustees; (3) Krull Electric employed

an individual who performed bargaining unit work; and (4) Krull

Electric failed to remit fringe-benefit fund contributions to the

Trustees. See 29 U.S.C. §§ 1132(a)(3), 1145 (2002); Connors

v. Hallmark & Son Coal, 935 F.2d 336, 337-38 (D.C. Cir. 1991);

1 ROTHSTEIN ET AL., EMPLOYMENT LAW § 3.27 (2d ed. 2002).

duce the award to account for the limited success. The

[district] court necessarily has discretion in making this

equitable judgment.”).

Here, it cannot be said that the Trustees’ claim and Krull

Electric’s counterclaim are “factually unrelated.” They

share a central issue of proof: During the relevant time

period, was Krull Electric obligated under the CBA agreement to make contributions? To succeed on their claim,

one of the elements that the Trustees had to prove was

that Krull Electric was a signatory to the CBA1

; conversely, in order for Krull Electric to succeed in its own right, it

had to prove it was not. In its answer, Krull Electric first

denied that it had any contributory obligations and then

asserted this denial as an affirmative defense. It added

as another affirmative defense that the Trustees’ demand

for payment without obligation was unlawful. These defenses comprised Krull Electric’s counterclaim; only in

pleading the counterclaim, Krull Electric was required

to submit a short plain statement of the facts. Krull Electric alleged that Local 134 had repudiated Krull Electric’s signatory status in October 1994 (no obligation) and

that the Trustees’ demand for payment violated the LMRA

(unlawful). In addition to the October 1994 repudiation

allegation, Krull Electric’s trial brief presented a couple

new factual twists about why Krull Electric was no longer

bound by its earlier assent to the CBA. These alternate
16 No. 01-3495

theories could have provided support for Krull Electric’s

counterclaim, had Krull Electric been able to offer up

any proof in support. It could not. It was this complete

failure of proof, regardless of the theory advanced, that

ultimately made the counterclaim sanctionable. Restated,

if the counterclaim was supportable on any theory, it

would not have been sanctionable. But regardless of whether it took the form of the initial October 1994 repudiation

allegation or those later advanced, the Trustees had to

refute the central allegation of the sanctionable counterclaim that Krull Electric was no longer obligated to contribute in order to succeed in prosecuting their case.

This is not to say that a blanket award of all attorney’s

fees incurred in the litigation was justified under Rule 11.

Indeed, we remanded because it was not. But certainly

this case was like those where recoverable claims are

closely interwoven factually and legally with nonrecoverable ones. And we cannot say that given this interrelatedness, the district court abused its discretion in determining that an analysis of each line-item entry in the petition was overburdensome and unlikely to produce a reliable result. See Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th

Cir. 1986) (“[I]t is generally unrealistic to expect a trial

court to evaluate and rule on every entry in an application.”).

Curry would reject this conclusion, arguing that a district

court has an obligation to respond to specific objections

raised in opposition to a fee petition. See Oxford Asset

Mgmt. v. Jaharis, 297 F.3d 1182, 1196 (11th Cir. 2002). The

Eleventh Circuit has observed that the “more specific the

objections to a fee application are, the more specific the

findings and reasons for rejecting those objections can be.”

Id. at 1196-97. Here, Curry asserted boilerplate objections

to all but two entries in the fee petition. Essentially, they

were comprised of one of two categories: either he objected

to any entry that did not mention the counterclaim specifi-
No. 01-3495 17

cally, or he objected to line item entries that clearly referred

to the counterclaim or motions written in opposition to it,

but objected to them because they also included time he

opined was dedicated to addressing other tasks. Curry

would have a point if his sanctionable conduct and the

Trustees’ prosecution efforts were not—as demonstrated

above—so factually and legally intertwined. Keeping this

interrelatedness in mind, however, we find—as the district

court must have—that Curry’s boilerplate objections were

unduly overbroad. The Trustees effectively demonstrated

this point to the district court in their reply, where they

showed how entries that did not reference the counterclaim

on their face nonetheless reflected time spent in opposition

to it (or at the least, time spent litigating the central issue

in the case: whether or not Krull Electric was obligated

under the CBA). Nonetheless, even if Curry’s individual

objections were nonspecific in the sense that they were

fatally overbroad, the gist of them had some merit; on

remand the district court was charged with the obligation

to segregate the recoverable from the nonrecoverable. But

Curry’s concerns are addressed by the district court’s

decision to reduce the award; they are not offended by the

court’s refusal of Curry’s invitation to do so on an entry-byentry basis.

Curry next argues that the district court violated our

mandate by simply reducing the fee award instead of

deciding upon specific entries in the fee petition. Curry

reads too much into our opinion. We remanded because

we noted that the district court was in the best position to

make the decision on fees, having had first-hand experience with the parties and the issues advanced throughout the litigation. Had we felt otherwise, we had the

authority to review the petitions and make our own determination of an appropriate award. See Ustrak, 851 F.2d

at 989-90 (listing cases where appellate courts made

necessary adjustments to fee awards “without bothering
18 No. 01-3495

to remand”). In remanding, our cautionary notes merely

reinforced the district court’s obligation to segregate out

those fees generated as a result of sanctionable conduct.

They did not mandate that a particular methodology be

employed to achieve that end.

II.

We next address the application of the district court’s

chosen methodology. Under Hensley, the starting point

in a district court’s evaluation of a fee petition is a lodestar analysis; that is, a computation of the reasonable

hours expended multiplied by a reasonable hourly rate.

461 U.S. at 434. Here, that figure was the $29,869 that

the Trustees had requested in their initial post-trial fee

petition submitted under ERISA’s fee-shifting provision.

The district court used this number as a base award from

which to deduct nonrecoverable fees. Curry argues that

the district court abused its discretion in using this figure

as a starting point without first making reductions for

unreasonable hours (vague time entries, multiple tasks

in single entries, etc.) and unreasonably high hourly

rates. But the district court had already rejected these

same arguments in its March 27, 1998 order, in which it

ruled that the hours spent and the rates charged were

reasonable. Curry did not appeal this aspect of that ruling,

and, as such, these arguments have been waived. See

Moriarty v. Svec, 233 F.3d 955, 963-64 (7th Cir. 2000). In

any event, since no circumstances have changed that

would affect the district court’s initial impression of the

reasonableness of the total hours spent litigating the case

or the hourly rates charged, we can see no abuse of discretion in the district court’s refusal to readdress the

issue on remand.

Curry also challenges the baseline figure by arguing

that it still improperly included some amount of fees
No. 01-3495 19

2 We reiterate that we have the power to modify the judgment

without remanding. See Burda v. M. Excker Co., 2 F.3d 769, 778

(7th Cir. 1993); Ustrak, 851 F.2d at 989-90. We do so here in

the interests of bringing this protracted litigation to a close.

generated before the filing of the sanctionable answer and

counterclaim. Looking at the original fee request, Curry

asserts that just over $4800 in fees included in the original

petition was generated between October 1995 and May 10,

1996. We agree and will subtract $4800 from the court’s

baseline figure of $29,869. In so doing, we note that Curry

receives a bit of a windfall from this deduction since the

court’s later subtraction for estimated prosecution costs,

which was based on a bare ERISA claim taken from filing

to judgment, would have by definition accounted for

expenses incurred at the outset of the Trustees’ claim;

that is, between filing the complaint and receiving the

sanctionable answer. But in the face of clear evidence—

because the burdensome and inexact task of interrelatedclaim segregation discussed above is not at issue for the

time period before the sanctionable papers were even

filed—we will make the deduction.2

Curry’s main problem with the court’s chosen methodology is its decision to use the fees incurred by the Trustees in another, unrelated ERISA case as a benchmark for

what their fees would have been in this case had no

sanctionable conduct occurred. Despite Curry’s protestations, the approach itself is not novel. We have noted

that district courts often look to fees awarded in similar

litigation for guidance in fashioning appropriate awards.

See, e.g., Tolentino v. Friedman, 46 F.3d 645, 652 (7th Cir.

1995) (fees charged in other cases used as evidence of

attorney’s market rate); People Who Care v. Rockford Bd. of

Educ., 90 F.3d 1307, 1315 (7th Cir. 1996) (same). Here, the

district court looked to a recent ERISA case prosecuted

by the Trustees against another signatory to the same
20 No. 01-3495

CBA, Divane v. Barnet Electric Co., No. 93 C 1721, 1995

WL 55245 (N.D. Ill. Feb. 7, 1995). An audit of Barnet

Electric’s payroll by the Trustees’ accountant revealed

inaccurately kept records for fiscal year 1988 and, as a

result, showed the Trustees being owed some $29,000 in

delinquent benefit-fund contributions. There was no dispute that Barnet Electric was a signatory to the CBA or

that it was liable to make regular reports and corresponding benefit-fund contributions. Instead, the only issue

presented for trial was whether the audit revealed unreported overtime hours or merely noncompensable reimbursements. Barnet Electric was a single issue ERISA case;

at most, the kind of case that Krull Electric II should

have been absent sanctionable denials and allegations

that Krull Electric was no longer bound by the agreement.

Curry makes much of the fact that the same parties

were simultaneously litigating Krull Electric I and that

if the court was going to look to other cases, it should

have looked to the Trustees’ Krull Electric I fee petition

(some $48,000). It is not clear whether this argument

was ever presented to the district court, but even if it

was, we don’t find it persuasive. In making it, Curry fails

to recognize that Krull Electric II should have been a

very simple case because of the admissions obtained as

a result of the Krull Electric I litigation. Almost by definition then, Krull Electric I was not analogous and must

have been excluded from the court’s comparison.

In the end, we could speculate a number of ways that

the district court could have decided upon an estimate

of base prosecution fees. For example, it could have

looked to more than one case, and even to similar cases

between other litigants, and averaged the results. But

we cannot say that the approach it did take, given its

knowledge of both the issues and the protracted procedural history of the instant case, was one that no other

reasonable person in the same situation would have taken.
No. 01-3495 21

Continuing to follow the district court’s analysis, if we

deduct the $4800 from the baseline figure of $29,869

and then deduct the district court’s $11,584 estimate of

base prosecution fees, we arrive at $13,485. Having decided that we had ruled conclusively that no additional

fees were generated as a result of Curry’s sanctionable

denials, the district court next estimated that one-third

of this remaining amount (which is now $13,485) should

be attributed to time spent litigating against the nonrecoverable, though nonetheless sanctionable denials. Had

the Trustees taken issue with this aspect of the district

court’s award and cross-appealed, they may have found

sympathetic ears: although we note that in further reducing the amount the district court was only attempting

to follow the cautionary statements in our first opinion,

we see potential problems with its conclusion.

First, we observe that it is a very different thing to say

“we see no reason” why the sanctionable denials would

generate additional fees, Divane I, 200 F.3d at 1031, than

to hold “there is no reason.” The former connotes skepticism about a possibility; the latter forecloses it. Accord

Moriarty, 233 F.3d at 964 (“Moriarty’s first claim is that

any reduction in the Phase I fees is prohibited by language

in the first opinion of this court, which states that ‘we

see no error in any of the cost and fee calculations the

[district] court has already ordered.’ However, immediately preceding this phrase the opinion states that ‘we

realize that this award may have to be adjusted on remand to reflect any additional proceedings.’ This language plainly demonstrates that we did not freeze the

amount of the Phase I award but rather explicitly invited

the district court to adjust it in accord with subsequent

proceedings.” (citations omitted)). Second, the Trustees

did present evidence in their submissions on remand

showing how the sanctionable denials resulted in additional attorney’s fees. Krull Electric had argued at trial
22 No. 01-3495

that its Krull Electric I admissions were evidentiary, not

judicial in nature. In other words, although they were

admissible evidence, they were nonbinding, and Krull

Electric was free to introduce evidence to refute them. The

Trustees produced trial transcripts to show that the

company proceeded to spend trial time introducing testimony to that effect, and that the Trustees were obligated

to respond. Finally, the very fact that the court attributed some amount of fees to the task of litigating against

the denials belies our prognostication that no amount

of fees was generated in response to them. We doubt that

this amount was substantial (another reason for rejecting the estimated one-third reduction); nevertheless,

when the district court found that fees were generated in

response to the sanctionable denials, the fees should

have been awarded, not discounted. But since on appeal

the Trustees assert no error with this portion of the district court’s analysis, we will not decide whether there

was one. Hence, we will reduce our adjusted figure

($13,485) by one-third ($4495), arriving at $8990.

Moving on to costs, the district court next computed

a ratio of the amount of fees it was prepared to award

against the amount originally requested and then apportioned costs accordingly. It was reasonable to expect

that portion of the fees attributable to the sanctionable

conduct would bear a relationship to the portion of the

costs attributable to the same, and thus we see no error

in this next step of the court’s analysis. If we do the

same, allowing for our adjustments, we calculate that

thirty percent of the total costs should be awarded, or

$692. Adding this amount to the $8990, we arrive at $9682.

The court then considered an award of fees and costs

for the effort spent in remand proceedings. Rule 11 allows

the court, in its discretion, to award to the prevailing party the reasonable attorney’s fees and expenses incurred

in presenting or opposing the Rule 11 motion. Fed. R. Civ.
No. 01-3495 23

P. 11(c)(1)(A). Curry never convincingly argues why the

fees incurred on remand are noncompensable under the

rule. At the end of the day, despite the fact that it took

an appeal and additional proceedings on remand, the

Trustees prevailed on their motion, proving that Curry

violated the rule and securing an award of attorney’s fees

as a sanction. Cf. Sullivan v. Hudson, 490 U.S. 877, 889

(1989) (holding that a claimant could recover attorney’s

fees for work done in administrative proceedings after

remand, where those proceedings were critical to vindication of the claimant’s rights); Weyant v. Okst, 198 F.3d 311,

316-17 (2d Cir. 1999). Given the amount of paper Curry

filed in opposition to the Trustees’ efforts to secure the

amount of the award on remand—including, for example,

motions to reconsider, motions to amend motions, an

amended motion to reconsider, numerous discovery requests and subpoenas, a motion to present a surreply

and the surreply itself, and rescheduling motions—it is

hardly surprising that the district court felt that the Trustees’ efforts in successfully prosecuting their motion should

not go unrewarded. Furthermore, we have reviewed the

Trustees’ fee petition for this period and find the hours

expended (64.25) and the rates charged ($150 per hour) to

be reasonable. And although for reasons similar to

those discussed above we are skeptical of the district

court’s one-third reduction of this amount, we will not

disturb this aspect of the award absent challenge. Adding two-thirds of the Trustees’ expenses generated on

remand ($6425) to our adjusted figure ($9682), we total

$16,107.

III.

Finally, we address Curry’s remaining arguments attacking the district court’s refusal to reduce the sanctions

award further. Of these, the only challenges meriting
24 No. 01-3495

discussion are whether the Trustees’ failed to mitigate

their damages and whether the district court failed to

consider Curry’s financial situation.

“A party defending against a frivolous paper has a duty

under Rule 11 to mitigate its legal fees and expenses

by resolving frivolous issues quickly and efficiently.”

Dubisky v. Owens, 849 F.2d 1034, 1037 (7th Cir. 1988).

Which is to say, “[c]ounsel must mitigate [his] damages

by correlating his response, in terms of hours and funds

expended, to the merit of the claims.” Id. (quotations

omitted). “Further, the court must consider to what extent a defending party’s injury could have been avoided

or was self-inflicted.” Id. (citing Thomas v. Capital Security Servs., Inc., 836 F.2d 866, 879 (5th Cir. 1988) (en

banc)). “This entails an examination of the promptness

and method of bringing the frivolous conduct to the attention of both the court and the opposing party.” Id.

In Dubisky, we remanded a Rule 11 sanction award to

the district court for redetermination in light of the defendant’s failure to mitigate its damages incurred in

responding to the plaintiff’s complaint. The plaintiff’s

complaint inaccurately alleged diversity jurisdiction.

Instead of informally bringing this error to the attention

of plaintiff’s counsel, the defendants filed an extensive

motion to dismiss and moved for sanctions, all of which

generated substantial fees. Finding the plaintiff’s conduct sanctionable, the district court awarded as a sanction all the fees generated in preparing the motion to

dismiss. We held this to be error. Litigants have a duty to

use the least expensive alternative to alert the court

and the offending party to a possible Rule 11 violation.

An informal phone call or status conference would have

alerted the plaintiff to his error and thus could have

avoided litigation over the issue. If, however, after receiving informal notice of his error, the plaintiff chose to

press his jurisdictional allegations then the defendant
No. 01-3495 25

would have been justified in filing its extensive motion. Id.

at 1038.

Here, we all but considered and rejected Curry’s mitigation argument three years ago. There, Curry argued that

we should estop the Trustees’ motion since it was not

filed in a timely fashion. Divane I, 200 F.3d at 1027. We

rejected Curry’s argument noting that “[i]mmediately after

Pamela Lee’s testimony, when it became apparent to

Trustees’ counsel that the counterclaim lacked a factual

basis, Trustees informed Krull Electric and Curry that

they would file for sanctions if factual information to

substantiate this claim did not emerge.” Id. at 1028.

Therefore, Dubisky’s informal-notice requirement was satisfied. Despite the warning, Curry never withdrew his

counterclaim. Like the hypothetical situation we propounded in Dubisky, Curry’s refusal justified the Trustees’

further efforts to strike the counterclaim and move for

sanctions. Dubisky, 849 F.2d at 1038. Although they

served Krull Electric with a motion for sanctions in September 1996 and moved for sanctions on October 17, 1996,

the court rejected the motion at that time noting that

the counterclaim raised issues of fact that still had adequate time to be discovered. Divane I, 200 F.3d at 1028.

For this reason, the Trustees waited until after trial to

move again for sanctions. In the meantime, the Trustees

still had to prove their case, and, as discussed at length

above, necessarily had to refute the counterclaim allegations in doing so. Having had the advantage of this

nearly year-and-a-half period of additional discovery during which he neither proved nor withdrew the sanctionable counterclaim, it is disingenuous for Curry now to

fault the Trustees for the benefit accorded him by the

district court.

It is also disingenuous for Curry to claim financial

hardship. It appears to this Court that Curry’s financial

circumstances change to suit his litigation posture. When
26 No. 01-3495

arguing against a substantial sanction award, Curry

claims he lacks significant assets and that a large award

may force him into bankruptcy. But when defending against

the Trustees’ fraudulent-conveyance claim, initiated in the

same district court and alleging that Curry unlawfully

conveyed his residence from joint tenancy with his wife

to tenancy in the entirety with his wife in an effort to

avoid payment of the sanction award, Curry claims “[t]here

is no evidence or indication that John Curry will be unable

to pay any award, even one as high as $35,589.69.” (R. 164,

Curry’s Mot. for Stay of Fraudulent Conveyance Claim

at ¶ 3.) Reading these fraudulent-conveyance submissions,

the district court took Curry at his word, “Mr. Curry’s

submissions have shown that he will have the ability

to pay the amount of sanctions that will be ultimately

awarded,” (R. 206) and so will we.

IV.

Both parties have indicated that they wish this litigation to end. To ensure that it does, we direct the Trustees

to submit to this court within fifteen days a statement of

fees reasonably incurred on appeal. Accord Ustrak, 851 F.2d

at 990. The Trustees as prevailing appellees achieving

substantial success on appeal are entitled to these costs.

Fed. R. App. P. 39(a)(2), (4); Ustrak, 851 F.2d at 990 (“But

the fact that we have cut down the district court’s fee

award [by one third] does not in itself justify trimming

the award for fees in this court, given [the plaintiff’s] status as an appellee defending with substantial although

not complete success a district court’s judgment in his

favor.”). “[W]e can determine those fees ourselves; we

need not require the district court to make the determination.” Ustrak 851 F.2d at 990. Curry may of course submit

specific objections to particular items of expense.
No. 01-3495 27

CONCLUSION

In conclusion, the judgment of the district court is

AFFIRMED as MODIFIED. Curry is ordered to pay $16,107 to

the Trustees as a sanction for conduct in violation of

Rule 11. Interest on the judgment shall accrue from September 5, 2001, the date that the sanction award on remand

was set. Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S.

827, 835-36 (1990) (“Where the judgment on damages was

not supported by the evidence, the damages have not

been ‘ascertained’ in any meaningful way.”); Harris v.

Chicago Great W. Ry., 197 F.2d 829 (7th Cir. 1952) (vacating and reducing a district court’s award of reasonable

attorney’s fees from $500,000 to $350,000, directing the

district court to enter judgment in conformity with mandate, and allowing interest to accrue only from the date

of the revised judgment; “[N]either the amount due for

fees nor the due date of the obligation was authoritatively defined until our decision. There will be a final

valid judgment only when a new one shall have been

entered in conformity with our mandate.”).

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-11-03