exemplification and copies of papers necessarily obtained for use
in the case; (5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.” 28
U.S.C. § 1920 (West 2003). But a district court has broad
discretion in determining the appropriate expenses and costs to
be awarded. See Haroco, Inc. v. American National Bank and Trust
Company of Chicago, 38 F.3d 1429, 1439 (7th Cir. 1994). The
court may award costs that are reasonable in amount and necessary
to the litigation, Harkins v. Riverboat Services, Inc., 286 F.
Supp. 2d 976, 979 (N.D. Ill. 2003), and may reduce or deny
reimbursement for any expenses that are inadequately documented.
See Altergott, 864 F. Supp. at 783. Unfortunately for Nextel,
that is largely the case here.

With respect to the copying charges, for example, Nextel
provided no documentation that would allow the Court to determine
the per page rate being charged.? The monthly copying charges
vary from entries less than $10 to entries in the hundreds and
thousands of dollars. Depending on the number of pages copied,

the rates may be exorbitant or they may be entirely reasonable.

*This is perhaps understandable, given that the matter comes to
the Court, not on a formal fee petition, but on collateral motions.
But it is on this record that Nextel has asked the Court to enter the

award,

13


On February 9, 2004, Goldberg Kohn, counsel for Nextel,
wrote to Freeborn & Peters, counsel for Messenger, in an attempt
to reach an agreement as to the amount of the attorneys’ fees
award. Along with that letter, counsel enclosed a declaration
from the lead Goldberg Kohn partner on the case, which, in turn,
enclosed the firm’s billing records on the case. The records are
copies of the actual bills sent to Nextel, which have either
already been paid or will be paid shortly, in the ordinary course
of business. The bills reflect entries for particular tasks, and
each entry shows the date on which the task was performed, a
description of the task, the initials of the attorney who
performed the task, the amount of time spent on the task, and the
total amount billed for the task.

In response to this package, Messenger’s counsel sent
Nextel’s counsel a letter dated February 27, 2004. This letter
quoted the portion of Local Rule 54.3 addressing what should
eccur if the parties cannot agree on the amount of fees to be
awarded, thereby suggesting, without ever really stating, that
Messenger disputed the amounts claimed in Goldberg Kohn’s billing
statements. Rather than challenging - specifically or generally
~ Nextel’s billing records, Messenger’s counsel simply shared
that Messenger had been billed, or would soon be billed, a total
of $150,860.77 in connection with the litigation against Nextel,

and that Messenger had already paid a total of $131,427.45 for


These are the same fees and costs that Nextel now asks the Court
to award.!

The Court first considers the rates claimed by Nextel, which
range, over time, from $50 to $95 for paralegal services and from
$190 to $460 for attorney services. Initially, Messenger has
never challenged the reasonableness of the rates Nextel’s
attorneys charged for their time. In their motion, Messenger
suggests that it is unable to contest the rates because Nextel
failed “to provide sufficient detail in its billing narratives.”
See Motion, 47. But more detailed descriptions of the services
provided would say nothing about the reasonableness of the rates
charged by the individual attorneys. Moreover, based upon its
own experience, the Court finds that the rates charged by
Nextel’s attorneys fall within the bounds of reasonableness,
given the experience level of the attorneys involved.

The Court next considers the hours billed by the various
attorneys and paralegals. As a general rule, “hours that are not
properly billed to one’s client are also not properly billed to

one’s adversary pursuant to statutory authority.” Hensley, 461

‘Actually, Nextel seeks $226,966.20, $351.61 more than the amount
identified by the Court. The Court attributes this discrepancy to the
fact that page 4 of Nextel’s August 15, 2002 billing statement appears
to have been omitted. If this statement is consistent with the rest
of the statements included in the package, this last page would have
itemized the costs and expenses (photocopying, telecopy, telephone,
computerized researched, etc.) included in that bill. Because these
expenses are not specifically identified, the Court will disallow the
$351.61, and use the number that is supported in Nextel’s documents.

9


costs incurred in connection with the counterclaim are
inseparable from those incurred in connection with the complaint.
Additionally, Nextel faults Messenger for failing to provide the
information required under Local Rule 54.3; Nextel asks the Court
to either order Messenger to provide the information, or to award
Nextel the full amount of fees and costs reflected in the
billing records included in the February 9 package.

Initially, the Court rejects counsel’s suggestion that the
time and effort spent on battling the plaintiffs’ claims is
somehow separate and distinct from the time and effort spent
pursuing defendants’ counterclaim. Given the nature of the
parties’ claims - at their core, the plaintiffs’ claims arise out
of the allegation that Nextel breached the contractual duties
owed CMS and VMS, and Nextel’s claim alleges breach of the same
contract - the effort is inseparable. The Court agrees with
Nextel on this point.

Turning to Nextel’s motion, the Court is mindful, given the
track record of this case, that additional orders requiring the
parties to comply with Rule 54.3 will likely result in more
squabbling and - in all likelihood - more motions. Accordingly,
the Court has determined that the wisest course of action, in
terms of preserving judicial resources, is not to issue
additional orders concerning the requirements of Rule 54.3, but

to decide what is the appropriate amount of fees and costs to be


litigation services,

Nextel’s counsel, in turn, responded with a letter, dated
March 4, 2004, indicating that, in her view, the February 9
package satisfied Nextel’s obligations under Local Rule 54.3,
whereas the February 27 letter failed to satisfy Messenger’s
obligations under that rule. In this last letter, counsel for
Nextel demanded that, if Messenger wished to dispute the hourly
rates or the number of hours reflected in the billing statements,
it provide the information necessary to explain the bases for the
dispute, which would then - hopefully - facilitate a resolution
of the disputed issues. Rather than respond to that letter,
counsel for Messenger filed its Motion for Clarification of Local
Rule 54.3. The next day, Nextel filed its Motion to Enforce
Local Rule 54.3.

The gist of Messenger’s motion is that Nextel is not
entitled to recover fees and costs incurred in connection with
Messenger’s complaint; rather, according to Messenger, Nextel is
entitled to recover only those fees and costs incurred in
connection with Nextel’s counterclaim. Because Nextel’s billing
records do not permit Messenger to differentiate between time
billed on the complaint and time billed on the counterclaim, the
records are, in Messenger’s view, deficient under Local Rule
54.3, which means all bets are off.

In response to this argument, Nextel arques that fees and


(paralegal)

BILLING PERSON HOURS & RATES TOTAL
Frederic R. Klein (atty) 15.50 @ 375.00 $51,652.50
69.75 @ 410.00
35.25 @ 450.00
3.00 @ 460.00
Matthew H. Metcalf (atty) 20.25 @ 190.00 $91,520.00
220.00 @ 215.00
163.25 @ 240.00
4.50 @ 265.00
Diane M. Ende (paralegal) -50 @ 70.00 $35.00
Mike Evans (paralegal) 13.75 @ 50.00 $777.50
1.50 @ 60.00
Linda K. McClain (paralegal) -25 @ 95.00 $23.75
Kathleen M. 0’Connell 9.00 @ 95.00 $855.00

Additionally, Nextel documented the following costs and

expenses:
copying/labeling charges . ,
telecopy charges ... . ee ee

long distance telephone charges . .

computerized research services/research fees . oe

filing fees/other court expenses .
courier/expedited delivery charges
deposition-related expenses ..
meeting expenses (petty cash)

travel expenses . . . ee ee

- $8,900.42
+ + $265.38
$143.76

- $3,826.54
+ $277.11

+ + $330.81
- $4,682.93
$10.55

- $478.34

Thus, the total reflected in the February 9 package is

$226,614.59 ($207,698.75 in fees, plus $18,915.84 in expenses) .


moe wag Eom OSI
United States District Court, Northern District of Illinois

Nanestasines inde | Charles R.Norgle | Sint foe Avlander Keys
CASE NUMBER 01 C 8820 DATE 1/12/2005
CASE Chicago Messenger Service et al. vs. Nextel Communications et al.
TITLE
(in the following box (a) indicate the party filing the motion, ¢.g., plaintif&, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(0) oO Filed motion of [ use listing in “Motion” box above.)
Q) oO Brief in support of nfotion due ;
(3) a Answer brief to motion due___. Reply to answer briefdue___.
(4) oO Ruling/Hearingon___setfor__at
(5) Q Status hearing{held/continued to} {set for/re-set for}on__—ssetfor___— at
@) oO Pretrial conference{held/continued to] [set for/re-set for]on____setfor___—at__.
(7) Oo Trial[set for/re-set for}on___—at_
@ OC [Bench/Jury trial] [Hearing] held/continued to___—_at
(e2) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocaiRule 41.1 OFRCP4i(aXi) G FRCP41(a\(2).
ao {Other docket entry} Report and Recommendation submitted to Judge Norgle. The Court

recommends that the district court deny Plaintiffs’ Motion for Clarification of Local Rule 54.3 [#86};
grant Defendants’ Motion to Enforce Local Rule 54.3 [#87]; and award Defendants attorneys’ fees and
costs in the amount of $191,442.40. _ All matters relating to the referral of this action having been
resolved, the case is returned to the assigned judge.

ay {For further detail see order attached to the original minute order.]

No notices required, advised in open court.
2
No notices required. umber of
ao | Notices mailed by judge's staff. 24
WAN 3 2 2005
Notified counsel by telephone. date ds
Docketing to mail notices, ¢
Mail AO 450 form. atin
o | Copy to judge/magistrate judge. Us 4 wn
date mailed notice,
courtroom: re yore G
7 caus gy Nits 24 SE S002 7
initials
Date/time received ini .} 7
central Clerk's Offica *~ Tsing depeny itil



more junior attorney, also attended depositions taken by Attorney
Hogan, the more seasoned attorney. Similarly, Goldberg Kohn
billed Nextel to have two attorneys attend a court hearing on a
motion to extend the discovery schedule ~ hardly a complex
matter. While these practices might be appropriate for training
purposes, it seems wholly inappropriate to bill the client for
the resulting redundancies in coverage.

Additionally, the records show that counsel spent a combined
total of just under 40 hours preparing an answer to the amended
complaint and an amended counterclaim, a total of just under 30
hours preparing a response to a motion to compel filed in October
of 2002, approximately 30 hours preparing just the statement of
facts for Nextel’s motion for summary judgment, a total of just
under 130 hours for Nextel’s opening brief on summary judgment,
and another 75+ hours for the reply brief on that motion. All of
this seems somewhat excessive. The way in which counsel billed -
in quarter hour increments - also suggests that some of the hours
claimed are excessive; by way of example, the Court finds it hard
to believe that it could have taken Attorney Metcalf thirty
minutes to review Judge Norgle’s July 30, 2003 four-paragraph
order granting Nextel’s motion to strike.

Based on these examples, and others reflected in the
records, the Court will disallow 21 hours billed by Attorney

Hogan, 12 hours billed by Attorney Klein, and 41 hours billed by

11


U.S. at 434 (emphasis in original). The party seeking the fee
award bears the burden of proving the reasonableness of the hours
worked, and the Court should exclude from the fee request any
hours that are excessive, redundant, or otherwise unnecessary to
the litigation. Spegon v. Catholic Bishop of Chicago, 175 F.3d
544, 550, 552 (7th Cir. 1999). The Court may also exclude hours
that are inadequately documented if the lack of documentation
prevents the Court from gauging reasonableness. See Hensley, 461
U.S. at 433; People Who Care v. Rockford Board of Education,
School District No. 205, 90 F.3d 1307, 1314 (7th Cir. 1996).
Messenger’s complaints about the lack of detail in the
billing statements make more sense in the context of the hours
issue. But the descriptions provided are typical of those seen
on attorneys’ billing statements. And the descriptions are
adequate to convey the gist of the services provided in each
case. Nevertheless, in some instances, the Court finds that the
amounts billed are excessive or unreasonable. For example,
according to the billing statements, Goldberg Kohn billed Nextel
to have two attorneys, Attorney Hogan and Attorney Metcalf,
attend the depositions of M. Buzil on October 4, 2002, S. Brennan
on October 7, 2002, and W. Factor on November 5, 2002. One might
argue that it makes sense to send a supervising attorney to watch
over a deposition taken by a less experienced attorney. But it

appears that, in this case, it went both ways - Mr. Metcalf, the

10


awarded. This the Court does below.

A reasonable attorney’s fee is “the number of hours
reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
This calculation, known as the “lodestar,” may then be adjusted
upward or downward, depending on a variety of factors. Altergott
v. Modern Collection Techniques, Inc., 864 F. Supp. 778, 780
(N.D, Ill. 1994). The party seeking the fees bears the burden of
proving both that the hourly rates requested are reasonable and
that the hours claimed to have been worked were reasonably
expended on the litigation. Hensley, 461 U.S. at 433. And,
although Courts have broad discretion in fixing the amount of the
award, to the extent they deviate from the petitioner’s claimed
rates and hours, they must explain those deviations. McNabola v.
Chicago Transit Authority, 10 F.3d 501, 519 (7th Cir. 1993).

In its February 9 submission to Messenger, Nextel documented
fees and costs totaling $226, 966.20 through January 31, 2004.
More specifically, Nextel documented the following hours and

rates for its team of attorneys and paralegals:

BILLING PERSON HOURS & RATES TOTAL

Deborah R. Hogan (atty) 2.75 @ 240.00 $62,835.00
107.50 @ 290.00
92.50 @ 300.00
10.00 @ 325.00



54.3. The district judge referred the motions to this Court on
October 12, 2004.

Federal Rule of Civil Procedure 54 provides that, as a
general rule, “costs other than attorneys’ fees shall be allowed
as of course to the prevailing party unless the court otherwise
directs... .” Fed. R. Civ. P. 54(d) (1). The Rule also allows
parties to petition the court for an award of attorneys’ fees.
Local Rule 54.3 provides that “[t]he parties involved shall
confer and attempt in good faith to agree on the amount of fees
or related nontaxable expenses that should be awarded prior to
filing a fee motion.” L.R. 54.3(d). To this end, the rule
requires the movant to provide the respondent with the time and
work records on which the fee motion will be based, as well as
records showing the hourly rates paid for litigation services
provided in the case, and records supporting the requested
related nontaxable expenses. Id., @{(d)(1)-(4). If, after the
above information is furnished, the parties still cannot agree on
the amount of fees and expenses, the respondent is required to
disclose the total amount of attorneys’ fees paid (or soon to be
paid) by respondent for the litigation; the rule also requires
the respondent to furnish time and work records, hourly rate
evidence, evidence supporting related nontaxable expenses, and
any other evidence supporting respondent’s opposition to the fee

motion. Id., 4(5).


But because the Court has no way of knowing which is the case,
the copying charges will be disallowed. The same analysis would
apply for the telecopy and long distance telephone charges
included in counsel’s bills. Nor does counsel provide the Court
with the means to assess the reasonableness of the charges
incurred in connection with depositions. The Court would need to
know, for example, how many pages the deposition transcripts
were, and whether the charges include fees for expedited
delivery, ox special form transcripts, etc. Without invoices -
or some other documentation demonstrating the reasonableness of
the charges incurred - the Court is unwilling to impose the
charges on Messenger. So too with the meeting expenses and the
travel expenses. The Court will, therefore, disallow all but
$150.00 of the requested expenses. In so doing, the Court is in
no way suggesting that counsel for Nextel did not spend the
amounts claimed for depositions, photocopying, etc. But without
adequate documentation, the Court simply has no way of gauging
the reasonableness of those charges.

The Court will allow Nextel to recover the money it spent on
computerized legal research, however, as the Seventh Circuit has
instructed, those expenses fall under attorneys’ fees, not under
costs. See Haroco, Inc. v. American National Bank, 38 F.3d 1429,

1440-41 (7th Cir. 1994).

14


Nextel moved for summary judgment, and, in a Memorandum
Opinion and Order entered September 23, 2003, the district judge
granted the motion, finding the plaintiffs liable to Nextel, but
reserving for trial the question of the amount of damages to be
awarded. Shortly thereafter, the plaintiffs submitted proposed
findings of fact and conclusions of law on the question of
damages. Based upon those findings and conclusions, Nextel asked
the court to enter judgment in its favor on the damages issue,
and the district judge granted the motion. On January 29, 2004,
Judge Norgle ordered the Clerk to “enter judgment pursuant to
Federal Rule of Civil Procedure 58"; additionally, the court’s
order provided that, “[a]s to the issue of attorney fees, the
parties shall comply with Local Rule 54.3.” Chicago Messenger
Service v. Nextel, No. 01 C 8820 (N.D. Ill. Minute Order of Jan.
29, 2004). The next day, Judge Norgle signed a Judgment Order,
ordering Messenger to pay Nextel $128,729.54, plus late fees in
the amount of $1,930.94 per month from November 28, 2001 to the
date of judgment, as well as attorneys’ fees and costs.

The defendants satisfied the part of the judgment relating
to the contractual damages and the late fees, but the parties
continue to squabble over that part of the judgment relating to
attorneys’ fees and costs. As a result of that squabble,
Messenger filed a Motion for Clarification of Local Rule 54.3;

Nextel responded and also filed a Motion to Enforce Local Rule


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CHICAGO MESSENGER SERVICE, INC.,
and VETERANS MESSENGER SERVICE,
INC.,

No. 01 C 8820
Plaintiffs,
Judge Charles R. Norgle
v.
Magistrate Judge
NEXTEL COMMUNICATIONS, INC., and Arlander Keys
NEXTEL WEST CORP.,

Defendants.
TO: THE HONORABLE CHARLES R. NORGLE DOCKET
UNITED STATES DISTRICT JUDGE JAN 7 2 2005

REPORT AND RECOMMENDATION

As their names suggest, Chicago Messenger Service, Inc., and
Veterans Messenger Services, Inc. (collectively, “Messenger”)
provide messenger delivery services. In November 2001, Messenger
sued Nextel Communications, Inc. and Nextel West Corp. .
(collectively, “Nextel”) in state court, alleging that Nextel
breached an agreement it had to provide Messenger with the
communications services and equipment Messenger needed to operate
its businesses. Specifically, Messenger sued Nextel for breach
of contract, consumer fraud, fraud, tortious interference with
contract and tortious interference with prospective economic
advantage. Nextel removed the case, and filed a counterclaim,
alleging that it had performed all of its obligations under the
contract with the defendants, and that the defendants had failed

to pay what they owed Nextel under the contract.

nN)


Attorney Metcalf. In total, the Court finds that $187,338.75

is a reasonable attorneys’ fee award in this case. This amount
consists of the paralegal time itemized above, plus attorney time
as follows:

for Attorney Hogan, 2.75 hours billed at the rate of
$240.00/hour, plus 96.50 hours billed at the rate of
$290.00/hour, plus 82.50 hours billed at the rate of
$300.00/hour, plus 10.00 hours billed at the rate of
$325.00/hour;

for Attorney Klein, 15.50 hours billed at the rate of
$375.00/hour, plus 61.75 hours billed at the rate of
$410.00/hour, plus 31.25 hours billed at the rate of
$450.00/hour, plus 3.00 hours billed at the rate of $460.00/hour;
and

for Attorney Metcalf, 20.25 hours billed at the rate of
$190.00/hour, plus 190 hours billed at the rate of $215.00/hour,
Plus 152.25 hours billed at the rate of $240.00/hour, plus 4.50
hours billed at the rate of $265.00/hour.

The Court next considers the costs and expenses claimed by
Nextel. Costs recoverable under Federal Rule of Civil Procedure
54 include “(1) Fees of the clerk and marshal; (2) Fees of the
court reporter for all or any part of the stenographic transcript
necessarily obtained for use in the case; (3) Fees and

disbursements for printing and witnesses; (4) Fees for

12


CONCLUSION

For the reasons set forth above, the Court recommends that
the district court award Nextel fees and costs in the amount of

$191,442.40.

Date: January 12, 2005

RESPECTFULLY SUBMITTED:

Kou s
ARLANDER KEYS ~
United States Magistrate Judge

Counsel have ten days from the date of service to file
objections to this Report and Recommendation with the Honorable
George W. Lindberg. See Fed. R. Civ. P. 72(b); 28 U.S.C. §
636(b) (1). Failure to object constitutes a waiver of the right

to appeal. Egert v. Connecticut General Life Ins. Co., 900 F.2d
1032, 1039 (7th Cir. 1990).

15