Conclusion

For the reasons set forth above, Ryder Transportation Services and Ryder Truck Rental, Inc.’s
petition to set amount of sanctions award is granted in part and denied in part. Maxon’s motion to
enforce sanctions order is also granted in part and denied in part. The Court awards attorneys fees
of $7,873.50 to the Ryder Defendants and $2,340.00 to Maxon Lift Corporation. These fees are to
be paid by Bradley Steinberg and all amounts must be paid within one month of the date this

memorandum opinion and order has been entered.

ENTERED:

UNITED STATES DISTRICT JUDGE

DATED: MAR j 4 2006

-20-


Daniel Derechin’s and Brian Flood’s rates are $190 per hour and that associate Timothy Epstein’s
rate is $150 per hour. Ryder also attached biographies of each attorney in an attempt for this Court
to justify those rates. However, Mr. Fuoco’s self-serving affidavit and the attached biographies are
insufficient evidence for this Court to award a higher rate than is actually being charged in this case.
Indeed, to justify their fee awards, counsel for Ryder should have submitted affidavits from attorneys
other than those seeking the fee award or produce evidence of fee awards in similar cases in order
to establish a market rate for their services. See Batt, 241 F.3d at 894. Accordingly, because Ryder
has not submitted sufficient evidence to justify an award at rates higher than those actually being
charged in this case, Ryder is unable to shift the burden to Plaintiffs “to demonstrate why a lower
rate should be awarded.” Smail v. Richard Wolf Med. Instruments Corp., 264 F.3d 702, 707 (7th Cir.
2001). Asa result, the Court finds that the “discounted billing rates” of $165 per hour for Steven
Fuoco and Lewis Bricker, $145 per hour for Daniel Derechin and Brian Flood, and $125 per hour
for Timothy Epstein as reasonable, particularly in light of Plaintiffs’ failure to address the
reasonableness of the fees charged or provide any evidence to the contrary. See Pressley v. Haeger.
977 F.2d 295, 299 (7th Cir. 1992) (requiring the district court to award the attorney’s billing rate
where the party opposing the fee award failed to submit contrary evidence as to the issue of fees):
People Who Care v. Rockford Bd. of Educ., School Dist. No. 205, 90 F.3d 1307, 1313 (7th Cir. 1996)
(observing that in situations where the fee applicant has met its initial burden, the burden shifts to
the other party to “present evidence establishing a good reason why a lower rate is essential” and
noting that the “failure to do so is essentially a concession that the attorney’s billing rate is

reasonable and should be awarded”).

“14.


In connection with their position, Plaintiffs rely on Franzen v. Ellis Corp., No. 03 C 0641,
2004 WL 421954, at *1 (N.D. Ill. Feb. 11, 2004), to support their argument “that fees that a
defendant would have incurred regardless of plaintiff's counsel’s conduct are not recoverable.”
Pls.’Resp. Ryder Sanctions Fee Pet. at 3. In Franzen, the district court granted the defendant
attorneys’ fees and costs incurred as a result of the plaintiff's failure to appear at two depositions.
Franzen, 2004 WL 421954, at *1. While the court did not permit recovery of attorneys’ fees and
costs that would have been incurred “irregardless of any sanctionable conduct,” it is important to
note that the Franzen court did not contemplate ordering such fees and costs to be reimbursed prior
to fixing the fees and costs in its opinion. See generally id. As such, the present case is factually
distinguishable from Franzen because preparatory fees and costs were clearly within the
reimbursement considered and ultimately ordered by Magistrate Judge Keys. In pertinent part,
Magistrate Judge Keys noted:

if Mr. Steinberg had simply failed to produce Mr. Morita, he would actually have

saved the defendants some money; instead, he produced the witness, causing the

defendants to spend money to prepare for and attend the deposition, then he

prevented them from accomplishing anything once they got there. Because of Mr.

Steinberg’s and Mr. Morita’s conduct, the defendants’ time, effort, and money were

utterly wasted. ... Additionally, because Mr. Steinberg’s conduct was so out-of-line,

the Court will order him to reimburse the defendants for the fees and costs they

incurred to have their attorneys attend Mr. Morita’s deposition.
Mem. Op. & Order of 9/8/2005 at 20-21 (emphasis added). Moreover, in light of the fact that Mr.
Morita has been barred from testifying as an expert witness in this matter, it is questionable whether
the preparations conducted would otherwise have been incurred as that preparation appears to have

been specific to deposing Morita. Asa result, Ryder can be reimbursed for the preparatory fees and

costs incurred in connection with the Morita deposition.

5.


LLC y. Christiana Indus. Corp., No. 1-02-3648 (Ill. App. Ct. July 22, 2003), which provides even

less evidence regarding Jason Rosenthal’s rate than the first decision.

However, while the evidence provided does not discuss Mr. Rosenthal’s particular rate, it
does provide rate information for those who work with him, which this Court may consider. See
People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1312 (7th Cir.1996) (stating that “[i]fa
court chooses to look to the next best evidence of what similarly situated attorneys charge, there is
no reason that it should refuse consideration of those who practice in conjunction with the attorney
at issue.”). Accordingly, rather than award Mr. Rosenthal the rate he seeks, the Court finds that $200
per hour is a more appropriate rate based on the evidence submitted. Though the Carter opinion is
nearly three years old and Schopf & Weiss LLP’s billing rates have likely increased since the
issuance of the opinion, the Court declines to award a rate for Mr. Rosenthal that is in excess to that
charged by Mr. Baugher, an attorney with 24 years more experience than Mr. Rosenthal. See
Biography of Peter Baugher available at http://sw.com/public/page.cfm?z=60921 8sr=2BaugherPV,0

(last visited March 1, 2006)."'

Asa final matter, Maxon Lift has not provided any evidence showing the reasonableness of
the rate of $155 per hour charged for Jean Watt’s services, an assistant. In the absence of such

evidence, the Court reduces the requested fee by approximately one-third. Accordingly, the Court

"plaintiffs appear to argue that Mr. Rosenthal’s rate should be reduced to the amount billed
by Mr. Fuoco to the Ryder Defendants, i-e., $165 per hour. Pls.’ Sanctions Fee Pet. Resp. to Maxon
Lift at 5. However, the Court declines to adopt such an approach as Mr. Fuoco’s rate isa
“discounted” rate and also because of the evidence as to prior fee awards submitted by Maxon Lift
in connection with its present motion.

-18-


reflecting 7.1 hours of research conducted on October 3, 2005, by Mr. Fuoco at the Court’s request
nor the 0.3 hours he expended on October 4, 2005 in drafting a letter reflecting that research.
Accordingly, because the Court finds as reasonable 34.6 hours expended by Steven Fuoco and Lewis
Bricker, 1.6 hours expended by Flood and 4.6 hours expended by Daniel Derechin, they are
reimbursable.

Plaintiffs contend that the attorneys’ fees incurred in connection this Court’s reversal of the
Magistrate’s denial of Plaintiffs’ request to name a new expert should be proportionately reduced
by one-quarter because Ryder did not succeed on appeal as to this issue, which represented one of
four issues raised by Plaintiffs in their appeal from Magistrate Judge Keys’ Order. Specifically,
Plaintiffs contend that any fee award as to the appeal “should result in a proportionate reduction on
the order of one-fourth” as the “argument constituted one-fourth of the substantive brief.” Pls.’Resp.
Ryder Sanctions Fee Pet. at 10. In connection with their position, Plaintiffs cite to Hensley v.
Eckerhart, 461 U.S. 424 (1983), in an attempt to support their position that “a petitioner is entitled
only to those fees expended on and related to those claims on which the petitioner succeeded on
appeal.” Pls.’ Resp. Ryder Sanctions Fee Pet. at 9-10 (citing Hensley, 461 U.S. at 439-40).
However, the Supreme Court in Hensley expressly rejected use of the “proportionate reduction”

Plaintiffs now argue for in their Response.

In Hensley, the plaintiffs brought an action pursuant to 42 U.S.C. § 1988 on behalf of all

persons “involuntarily confined” at a Missouri state-run hospital, alleging various constitutional

of case law regarding excluding expert testimony for disregarding court orders), 9/28/05 (research
involving case law regarding Rule 37(b) sanctions) and 9/28/05 (research regarding conduct giving
rise to sanctions).

-10-


a-half hours spent in preparation for a six hour deposition is reasonable, 10.5 hours are thus

reimbursable.

Further, Ryder seeks to recover $1,623.07 in “associated expenses” connected with the ill-
fated deposition. However, while costs were certainly within the scope of Magistrate Judge Keys’
Order, Ryder has neither explained nor sufficiently documented which costs were incurred in
preparing for and attending the Morita deposition. Indeed, the only cost which might have been
incurred in preparation for the Morita deposition is a $487.90 invoice dated March 31, 2005, for
photocopies. While Ryder’s counsel was not required to maintain a list of every sheet of paper
photocopied, the Court cannot make a reasonableness determination without such minimal
information as to what was copied and why.’ See, e.g., Robinson v. City of Harvey, No. 99 C 3696,
2004 WL 2033714, at *8 (N.D. Ill. Aug. 13, 2004) (declining to award photocopy costs following
insufficient support of the fee request). Therefore, absent such information, Ryder may not recover
said photocopy expenses. Moreover, due to the absence of any explanation for the remaining

$1,135.17 claimed as costs, they are also unrecoverable.

B. Fees and Costs Associated With Ryder’s Motion for Sanctions.
Next, Ryder seeks reimbursement for attorneys’ fees of $13,121.00, representing 80.2 hours
of work by three attorneys - a figure approximately eight times in excess of the 10.6 hours counsel

for Ryder spent preparing for and attending the Morita deposition - as well as $1,228.55 in related

Counsel for Plaintiffs’ note that the $487.90 expense was to obtain Morita’s file. Pls.”
Sanctions Fee Pet. Resp. at 4. Nevertheless, and as noted above, Ryder bears the burden of
providing information as to the reasonableness of its counsels’ charges, a burden it has not met.

-7-


Having determined that preparatory fees and costs are within the scope of the September 8,
2005 Order, the Court turns to the issue of whether the time expended in connection with the
deposition was reasonable. As the party requesting reimbursement of attorneys’ fees, counsel for
Ryder is expected to exercise “billing judgment.” “Billing judgment consists of winnowing the
hours actually expended down to the hours reasonably expended.” Spegon, 175 F.3d at 552 (citing
Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1250 (10th Cir.1998)). “In exercising ‘billing
judgment,’ the Supreme Court emphasized that counsel for the [fee seeking party] should exclude
from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in
private practice ethically is obligated to exclude such hours from his fee submission. /d. (citing
Hensley, 461 U.S. at 434).

Inconnection with its fee request, Ryder has provided the Court with its counsels’ time sheets
indicating the time spent on various tasks for which Ryder now seeks reimbursement. According
to its fee petition and corresponding time records, Ryder asserts that counsel Steven Fuoco spent
10.6 hours total in preparing for and attending the deposition, namely 4.5 hours preparing for the
deposition by reviewing Plaintiffs’ Rule 26 disclosure as well as reviewing material for use in cross-
examining Morita, six hours attending the deposition and a tenth of an hour drafting a letter to the
court reporter in order to preserve an audiotape copy of the deposition. Because the May 18, 2005
letter to the court reporter should have been completed by clerical staff rather than counsel, that entry
will be deleted. See, e.g., Spegon, 175 F.3d at 553 (holding that district courts “should disallow time
spent on what are essentially ‘clerical’ or secretarial tasks”); Newsome v. McCabe, 96 C 7680, 2002

WL 1008472, at *3 (N.D. Ill. May 17, 2002). Asa result, because the Court finds that the four-and-

-6-


finds as appropriate $200 per hour for the services of Mr. Rosenthal and $100 per hour for the

services of Ms. Watt.

Cc Maxon Lift’s Request for Fees In Connection With Its Present Motion.

As noted above, Maxon Lift also seeks an award of the fees and costs incurred in preparing
its present motion to enforce the sanctions order. However, because this Court finds that the
attorneys’ fees and costs incurred in connection with Maxon Lift’s present motion were not within
the scope of Magistrate Judge Keys’ September 8, 2005 Order, or within the scope of this Courts’
October 6, 2005 Order, the reimbursement amounts of those fees and costs need not be assessed as
they are not reimbursable. See Mem. Op. & Order, No. 03 C 0289 (N.D. Ill. Sept. 9, 2005); Minute
Order, No. 03 C 0289 (N.D. Ill. Sept. 8, 2005); Minute Order, No. 03 C 0289 (N.D. Ill. Oct. 6, 2005).
See also Christman, 2001 WL 1403024, at *3 (denying fees and expenses that were beyond the

scope of recoverable costs permitted by a prior court order).

-19-


While a majority of the hours involved appear reasonable, there are a number of entries
which do not and will need to be reduced prior to any reimbursement. First, counsel seek
reimbursement of 2.4 hours of Steven Fuoco’s and Lewis Bricker’s time, entered after Magistrate
Judge Keys’ Order was issued on September 8, 2005, but prior to the date Plaintiffs filed their
objections to that order. Because this time was not incurred in connection with preparing for or
conducting the deposition, or defending against Plaintiffs’ appeal, it is not reimbursable. Second,
a number of the entries reflect 1.5 hours of staffing redundancies by Mr. Fuoco or Mr. Bricker and
will thus be deleted.® Third, several entries reflect 0.9 hours of work by Mr. Fuoco or Mr. Bricker
that could have been accomplished with the help of an assistant rather than an attorney at an
attorney’s fee, as a result, those entries will be deleted.’ Fourth, the September 22, 2005 entry,
involving a 0.2 hour meeting between Mr. Fuoco and Mr. Bricker, will be deleted for vagueness as
to the subject matter of the meeting. Moreover, the September 2, 2005 entry by Mr. Fuoco,
reflecting his apparent problems with e-filing system cannot properly be attributed as arising from
Plaintiffs’ appeal to Magistrate Judge Keys’ Order and will also be deleted. Fifth, research entries
reflecting 4.2 hours of inefficiencies resulting from Daniel Derechin’s research into previously

researched issues will be deleted.® Finally, the Court cannot reasonably award Ryder attorneys’ fees

Those entries are: 9/20/05 (Fuoco review of Plaintiffs’ emergency motion), 9/20/05 (Fuoco
conference with Brian Flood), 9/20/05 (Fuoco review of minute order), 9/22/05 (Bricker review of
electronic notice of emergency motion and review of Judge St. Eve’s minute order), (Bricker review
minute order), 9/28/05 (two entries by Bricker for teleconference regarding the Court’s request for
case law)

’Those entries are: 9/28/05 (Bricker entry for letter to counsel), 9/29/05 (Fuoco entry for e-
filing difficulties) and 10/4/05 (Fuoco entry for letter to district court law clerk).

’Those entries are: 9/28/05 (research involving sanctions as a remedy for failure to follow
court order), 9/28/05 (research involving magistrate control over pretrial issues), 9/28/05 (analysis

-9-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
THOMAS J. HERIAUD and )
PAT HERIAUD, )
)
Plaintiffs )
) No. 03 C 0289

Vv. )

) Paul E. Plunkett, Senior Judge
RYDER TRANSPORTATION )
SERVICES, RYDER TRUCK RENTAL, )
INC., MORGAN CORPORATION and )
THE MAXON LIFT CORPORATION, )
)
Defendants. y
)

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Ryder Transportation Services, Ryder Truck Rental, Inc.
and Maxon Lift Corporation’, petitions to set the fees and costs associated with the sanctions order
entered on September 8, 2005 by Magistrate Judge Keys and affirmed in part by this Court on
October 6, 2005. Having already determined that fees and costs are appropriate, see Minute Order,

No. 03 C 0289 (N.D. Ill. Oct. 6, 2005), for the reasons set forth below, the Court awards attorneys

fees of $7,873.50 to the Ryder Defendants and $2,340.00 to Maxon Lift Corporation.

Background
On January 14, 2003, Defendant Morgan Corporation (“Morgan”) removed the present

products liability suit, initially filed in the Circuit Court of Cook County on December 12, 2002, by


particularly in light of its relatively small size in comparison to the $133,332.25 the district court

awarded the Hensley plaintiffs in January 1981. /d. at 428.

Next, turning to the issue of costs incurred in defending against Plaintiffs’ objections, while
Ryder’s costs incurred in connection with Plaintiffs’ appeal were within the scope of this Court’s
October 6, 2005 Order, Ryder has not pled a reimbursement amount for costs in its fee petition, thus
they will not be awarded. Moreover, to the extent Ryder submitted documentation of costs incurred
during the period between Magistrate Judge Keys’ Order and this Court’s October 6, 2005, Ryder
has neither explained nor sufficiently documented which costs were incurred in defending against
Plaintiffs’ objections to Magistrate Judge Keys’ Order. Instead, Ryder merely attached records
spanning from June 11,2005 to September 13, 2005, reflecting costs advanced for expenditures such
as courier fees, faxes and copying. However, as previously noted, the Court cannot make a
reasonableness determination without such minimal information as to what was copied and why,
what was faxed and why, what was sent by courier and why. See, e.g., Robinson v. City of Harvey,
No. 99 C 3696, 2004 WL 2033714, at *8 (N.D. Ill. Aug. 13, 2004). Therefore, absent such

information, Ryder will not be awarded costs expended in connection with the appeal expenses.

D. Ryder’s Applicable Billing Rates.

Having determined the number of hours reimbursable to Ryder in this matter, the Court must

determine the appropriate billing rates to be used in determining the lodestar amount. According to

°Counsel for Plaintiffs’ note that the $487.90 expense was to obtain Morita’s file. Pls.’ Resp.
Ryder Sanctions Fee Pet. at 4. Nevertheless, and as noted above, Ryder bears the burden of
providing information as to the reasonableness of its counsels’ charges, a burden it has not met.

-12-


violations which resulted in allegedly inadequate treatment and conditions at the hospital. Hensley,
461 U.S. at 426. After succeeding at trial on five of six alleged constitutional violations, the
plaintiffs sought attorneys’ fees. /d. at 428. The district court awarded attorneys’ fees but refused
“to eliminate from the award hours spent on unsuccessful claims . . . based strictly on a mathematical
approach comparing the total number of issues in the case with those actually prevailed upon.” Jd.
While the Supreme Court vacated the decision of the district court and remanded for further
proceedings, the Court affirmed the district court’s rejection of “a mathematical approach” to reduce
any fee award. Specifically, the Court noted that “[s]uch a ratio provides little aid in determining

what is a reasonable fee.” Jd. at 435 n.11.

As noted above, Plaintiffs argue that this Court should reduce any award in connection with
the appeal by one-quarter, based on the fact that Ryder did not succeed on one of the four issues
presented to this Court. Just as the district court in Hensley did not mathematically reduce a fee
award based upon a simple application of a ratio, an approach met with approval by the Supreme
Court, this Court declines to do so as well. Any mechanical reduction based on Ryder’s failure as
to the issue of whether to bar Plaintiffs from naming a replacement expert would be inappropriate
due to its interrelatedness with the issue of whether to bar Plaintiff's particular expert, Morita. See
id. at 438 (noting that “[g]iven the interrelated nature of the facts and legal theories in this case, the
District Court did not err in refusing to apportion the fee award mechanically on the basis of [the fee
seeking party’s] success or failure on particular issues”). Furthermore, to the extent that the Supreme
Court in Hensley reversed the district court, it did so on the ground that the district court “did not
properly consider the relationship between the extent of success and the amount of fee award.” Jd.

at 438. In the present case, however, the dollar amount this Court will award is quite reasonable,

-ll-


costs. Because this Court finds that the attorneys’ fees and costs incurred in connection with Ryder’s
Motion for Sanctions were not within the scope of Magistrate Judge Keys’ September 8, 2005 Order,
or within the scope of this Courts’ October 6, 2005 Order, the reimbursement amounts of those fees
and costs need not be assessed as they are not reimbursable.t See Mem. Op. & Order, No. 03 C 0289
(N.D. Ill. Sept. 8, 2005); Minute Order, No. 03 C 0289 (N.D. Ill. Sept. 8, 2005); Minute Order, No.
03 C 0289 (N.D. Ill. Oct. 6, 2005). See also Christman y. Brauvin Realty Advisors, Inc., No. 96C
6025, 2001 WL 1403024, at *3 (N.D. lll. Nov. 9, 2001) (denying fees and expenses that were beyond

the scope of recoverable costs permitted by a prior court order).

Cc Fees and Costs Associated With The Appeal of the September 8, 2005 Sanction
Order.

Finally, Ryder seeks reimbursement for attorneys’ fees of $10,254.05 associated with
defending against Plaintiffs’ appeal of Magistrate Judge Keys’ September 8, 2005 sanction order.
According to Ryder, counsel Steven Fuoco and Lewis Bricker expended 47.6 hours in connection
with the appeal, assisted by Brian Flood for 1.6 hours and Daniel Derechin for 8.8 hours.’ Ryder
Sanctions Fee. Pet. § 11. In turn, Plaintiffs suggest that Ryder’s demands are excessive and
unreasonable in light of the issues raised by Plaintiffs’ appeal of the September 8, 2005 Order. Pls.”

Resp. Ryder Sanctions Fee Pet. at 8.

‘Indeed, Magistrate Judge Keys” Memorandum Opinion and Order is silent as to an award
of attorneys’ fees and costs incurred in connection with the Motion for Sanctions. See Mem. Op.
& Order, No. 03 C 0289 (N.D. Ill. Sept. 8, 2005).

5Calculating the hours provided by Ryder in its fee petition at the discounted rate, the
attorneys’ fees sought by Ryder equals $9,362.00, not $10,254.05.

-8-


of hours expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart,
461 U.S. 424 (1983). As the parties seeking the fee award, Ryder and Maxon Lift each “bear[] the
burden of proving the reasonableness of the hours and the hourly rates claimed.” Spegon v. Catholic

Bishop of Chicago, 175 F.3d 544, 550 (7th Cir. 1999).

1. Ryder’s Hours and Appropriate Billing Rates.

Ryder seeks reimbursement for attorneys’ fees and costs associated with three broad tasks:
(1) the fees and costs incurred in preparing for and attending the Morita deposition; (2) the fees and
costs associated with their motion for sanctions before Magistrate Judge Keys; and (3) the fees and
costs attributable to defending against Plaintiffs’ appeal from the September 8, 2005 Order. See

Ryder Sanctions Fee Pet. 4 7-8, 11. Each request will be examined in turn.

A. Fees And Expenses Associated With The Morita Deposition.

In its fee petition, Ryder seeks $1,749.00 in attorneys’ fees and $1,623.07 in expenses
associated with both the actual attendance of the Morita deposition as well as with the time spent
preparing for that deposition. See Ryder Sanctions Fee Pet. {| 7. Alternatively, Plaintiffs contend
that Magistrate Judge Keys’ order limits reimbursement simply to the time Ryder counsel spent
examining Morita, i¢., six hours, and challenge Ryder’s request for preparatory fees and costs on
the ground that they are beyond the scope of the reimbursement ordered on September 8, 2005. Pls.’
Resp. Ryder Sanctions Fee Pet. at 1. As a result, they argue preparatory fees and costs are not
reimbursable as they would have been incurred regardless of the Morita deposition’s premature

conclusion.


I. Maxon Lift’s Hours and Appropriate Billing Rates.

Like Ryder, Maxon seeks reimbursement for attorneys’ fees and costs incurred in preparing
for and attending the Morita deposition. Additionally, and unlike Ryder, Maxon Lift also argues that
this Court should also award them the fees and costs incurred in preparing its present motion to

enforce the sanctions order. See generally Maxon Lift Sanctions Fee Pet.

A. Fees And Expenses Associated With The Morita Deposition.

In its fee petition, Maxon Lift seeks $4,248.00 in attorneys’ fees and $487.90 in expenses.
See id. at 1. In response, Plaintiffs again argue that Magistrate Judge Keys’ order limits
reimbursement solely for the time Maxon Lift counsel spent examining Morita, i.e. 4 hours and 25
minutes. Pls.” Maxon Lift Sanctions Fee Pet. Resp. at 3. Similarly, Plaintiffs also argue that
preparation time for that deposition was also in excess of the reimbursement ordered on September
8, 2005. /d. However, as noted supra at 4-5, preparatory fees and expenses were clearly within the
reimbursement considered and ultimately ordered by Magistrate Judge Keys. Thus, the Court turns
to the issue of whether Maxon Lift’s time expended in connection with the deposition was

reasonable.

Like counsel for Ryder, Maxon Lift is expected to exercise billing judgment. In connection
with its fee petition, Maxon Lift has provided this Court with its counsels’ time sheets. Counsels*
time sheets reflect 11 entries totaling 16.5 hours of time expended in connection with and in

preparation for the Morita deposition. However, of these 11 entries, 7 of these entries are “lumped”


B. Maxon Lift’s Applicable Billing Rates.

Having determined the number of hours reimbursable to Maxon Lift in this matter, the Court
must also determine the appropriate billing rates to be used in determining the lodestar amount.
According to Maxon Lift’s fee petition, all of its “invoices have been paid, which creates a strong
implication that the fees are reasonable.” Maxon Lift Sanctions Fee Pet. at 4 (citing Medcom
Holding Co. v Baxter Travenol Labs., Inc., 200 F.3d 518, 520 (7th Cir. 2000)). As noted, fee
applicants can prove its market rate in two ways: “either by submitting affidavits from similarly
experienced attorneys attesting to the rates they charge paying clients for similar work or by
submitting evidence of fee awards the attorney has received in similar cases.” Batt, 41 F.3d at 894.

(emphasis added).

Here, Maxon Lift proceeds under the second option by attempting to submit evidence of fee
awards received in similar cases. Such evidence comes in the form of two judicial opinions granting
Maxon Lift’s law firm, Schopf & Weiss LLP, its requested attorneys’ fees. However, these opinions
are not very helpful for determining whether Jason Rosenthal's current rate of $260 per hour is
reasonable. In the first opinion submitted, Carter v. Commonwealth Edison, No. 98 L 13041/93 L
12432 (Apr. 8, 2003) (Elrod, J.), while the trial court notes that Schopf & Weiss LLP’s hourly rates,
were “well within the range of rates charged by comparable Chicago firms,” Judge Elrod does not
discuss whether Jason Rosenthal’s fees in particular were reasonable. Instead, Judge Elrod’s opinion
found noted that the average hourly rate for Peter Baugher, a partner at Schopf & Weiss LLP, for the
years 1997-98 ranged from $245 to $265 per hour, and that Paula Render’s rates ranged from $90
to $105 dollars, with the average hourly attorney rate at $225 per hour. Carter, supra at 7. This
infirmity also exists with respect to the other decision submitted by Maxon Lift, Christiana Indus.,

-17-


appendixes) objecting to that Order, generally characterizing it as “too harsh” and “draconian.” See
generally Pls.’ Objections. In responding to Plaintiffs’ objections, Ryder did so as to four issues:
(1) the barring of Plaintiffs’ expert, Morita; (2) the denial of Plaintiffs’ request to name a
replacement expert; (3) the imposition of monetary sanctions against Mr. Steinberg personally; and
(4) the denial of Plaintiffs’ counter-motion for sanctions. Ryder’s Resp. to Pls.” Objections at 3.
Yet, after reviewing the relevant briefs and transcripts, and after conducting a hearing, this Court
affirmed Magistrate Judge Keys as to all issues raised save his oral order barring a substitute expert.
See Minute Order, No. 03 C 0289 (N.D. Ill. Oct. 6, 2005). Additionally, this Court also assessed the
costs of appealing against Plaintiffs. See id.

On October 20, 2005, the Ryder Defendants moved to set the amount of the sanctions award
against Steinberg. Thereafter, on November 23, 2005, Plaintiffs responded not only to Ryder’s fee
petition, but also to Maxon Lift, though, at the time Maxon Lift had only submitted a letter
requesting payment and not filed a motion with the Court. However, on January 3, 2006, Maxon Lift
submitted its own motion. With this background in mind, the Court turns to the issues presently

before it.

Analysis
“District courts possess wide latitude in fashioning appropriate sanctions and evaluating the
reasonableness of the attorneys’ fees requested.” Johnson v. Kakvand, 192 F.3d 656, 661 (7th Cir.

1999), “The most useful starting point for determining the amount of a reasonable fee is the number

2 Plaintiffs filed an emergency motion for leave to file a brief in excess of the limit imposed
by Local Rule 7.1, which Judge Amy St. Eve granted on September 19, 2005.

3-


Plaintiffs Thomas J. Heriaud and Pat Heriaud, to the United States District Court for the Northern
District of Hlinois, Eastern Division. In connection with this suit, Defendants attempted to depose
Plaintiffs’ engineering expert, Douglas Morita (“Morita”), on May 17, 2005. However, due to the
obfuscating, obstructing and generally capricious behavior of Plaintiffs’ counsel, Bradley Steinberg
(Mr. Steinberg”), frustrated defense counsel ended the deposition without completing their
examination of Morita."

As aresult of the difficulties which arose during the Morita deposition, Defendants Ryder
Transportation Services, Ryder Truck Rental, Inc. (collectively “Ryder”), Morgan and the Maxon
Lift Corporation (“Maxon Lift”), filed separate motions seeking sanctions against Steinberg pursuant
to Rules 20(d)(3) and 37(b)(2)(E) of the Federal Rules of Civil Procedure as well as an order barring
Morita from testifying at trial. After extensive briefing, which also included a cross-motion for
sanctions filed by Plaintiffs, Magistrate Judge Keys granted Defendants’ motions for sanctions,
thereby barring Morita from testifying at trial and ordering Mr. Steinberg “to reimburse defendants
for their attorneys’ fees and costs they incurred to have their attorneys attend that disastrous
deposition.” Keys Mem. Op. & Order, No. 03 C 0289 at 21-22 (N.D. Ill. Sept. 8. 2005). Judge Keys
also denied Plaintiffs’ counter-motion for sanctions and orally refused to let Plaintiffs appoint a
substitute expert. /d.

Seeking to have this Court reverse Magistrate Judge Keys’ September 8, 2005 Order, on

September 19, 2005, Plaintiffs filed an eighteen page motion (supplemented by 2 voluminous

‘For a thorough examination of the issues arising in the Morita Deposition resulting in
Defendants’ sanctions motions, see generally Magistrate Judge Keys’ Memorandum Opinion and
Order of September 8, 2005.

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Ryder’s fee petition, the defense of the Ryder defendants in the present litigation “is being done at
a substantially discounted rate . . . due to Ryder’s continuing engagement” of counsel in what
appears to be an insurance coverage matter. Ryder Sanctions Fee Pet. § 6. As such, counsel urge
this Court to calculate any fees awarded by utilizing their alleged “market rates” rather than the
discounted rate they are actually billing their clients. Jd § 13-14. However, the Court declines
Ryder’s invitation to award fees at the higher rate, as Ryder has not met its burden of proving its

counsels’ market rates.

“Generally, when calculating attorney’s fees, a district court will determine a lodestar amount
by multiplying the reasonable number of hours worked by the market rate.” Uphoffv. Elegant Bath,
Ltd., 176 F.3d 399, 407 (7th Cir. 1999) (internal quotation omitted). “The market rate is the rate that
lawyers of similar ability and experience in the community normally charge for their paying clients
for the type of work in question” and an “attorney’s actual billing rate for comparable work is
“presumptively appropriate’ to use as the market rate.” /d. See also Gusman v. Unisys Corp., 986
F.2d 1146, 1150 (7th Cir. 1993) (“When the lawyers sell their time in the market, the market
provides the starting point: the lawyer's hourly rate.”). Importantly, “[t]he burden of proving the
market rate is on the party seeking the fee award.” Small v. Richard Wolf Med. Instruments Corp.,
264 F.3d 702, 707 (7th Cir. 2001). Thus, as the fee applicant, Ryder can meet its initial burden in
two ways: “either by submitting affidavits from similarly experienced attorneys attesting to the rates
they charge paying clients for similar work or by submitting evidence of fee awards the attorney has

received in similar cases.” Batt v. Micro Warehouse, Inc., 241 F.3d 891, 894 (7th Cir. 2001).

In support of Ryder’s fee petition, counsel for Ryder, Steven Fuoco, submitted his own
affidavit, attesting that his and Lewis Bricker’s “prevailing rates” are $250 per hour, that associates

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as they contain a description of more than one task per entry.'” As this Court recently noted,
“lumping prevents the Court from determining whether that time was reasonably spent.” Jn re
Subpoenas Issued to Danze, Inc., No. 05 C4538, 2006 WL 211942, at *3 (N.D. IIL. Jan. 18, 2006).
Though some courts have considered lumped entries as non-compensable, see, e.g., /nre Wiedau's
Inc., 78 B.R. 904, 908 (Bankr. S.D. Ill. 1987), this Court declines such an approach and instead
reduces the Jumped entries by 50%. Moreover, with respect to a particular lumped entry, the May
17, 2005 attendance at the deposition and “conferring with Howe re same,” instead of reducing the
6.5 hour entry by half, the Court limits recovery to §.25 hours, the time actually spent at the
deposition. Thus, the Court finds that 0.2 hours of Jean Watt’s time and 11.6 hours of Jason

Rosenthal’s time as compensable.

Furthermore, Maxon Lift seeks reimbursement of $487.90 in expenses connected with
Morita’s deposition. As noted above, costs were within the scope of Magistrate Judge Keys” Order,
but again, without any information as to what was copied and why, this Court cannot make a
reasonableness determination. See supra at 6-7. Maxon Lift refers to the charges simply as charges
for copies of Morita’s documents, noting that the “invoice contains no breakdown of the copy
charges.” While the invoice did not need to explain the copy charges, Maxon Lift needed to and did

not, Thus, absent such information, Maxon may not recover said photocopy expenses.

‘Those entries are: 2/1/05 (Watt review of additional research materials; preparation of
packet of materials re Morita for Rosenthal); 3/25/05; 3/30/05, 4/15/05; 5/9/05; 5/16/05 and;
5/17/05.

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