Village of Park Forest v. Tom Mick , 886 F.3d 626 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-2295, 15-2303 & 16-3556
THORNCREEK APARTMENTS III, LLC, a foreign limited liability
company d/b/a The Lofts at Thorncreek,
Plaintiff-Appellee/
Cross-Appellant,
and
THORNCREEK MANAGEMENT, LLC,
Plaintiff-Appellee,
v.
TOM MICK,
Defendant-Appellant/
Cross-Appellee.
____________________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 1225 — Gary Feinerman, Judge.
____________________
Nos. 15-2296, 15-2302 & 16-3555
VILLAGE OF PARK FOREST,
Plaintiff-Appellant/
Cross-Appellee,
and
2 Nos. 15-2295, et al.
TOM MICK,
Third-Party Defendant-Appellant/
Cross-Appellee,
and
MAE BRANDON, et al.,
Third-Party Defendants/
Cross-Appellees,
v.
THORNCREEK APARTMENTS II, LLC,
Defendant-Appellee/
Cross-Appellant,
and
ATLANTIC MANAGEMENT CORPORATION,
Defendant-Appellee.
____________________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 0869 — Gary Feinerman, Judge.
____________________
Nos. 15-2298, 15-2304 & 16-3557
THORNCREEK APARTMENTS I, LLC,
Plaintiff-Appellee/
Cross-Appellant,
and
THORNCREEK MANAGEMENT, LLC,
Plaintiff-Appellee,
v.
Nos. 15-2295, et al. 3
TOM MICK, individually and as Village Manager for the
Village of Park Forest,
Defendant-Appellant,
and
VILLAGE OF PARK FOREST, et al.,
Defendants/
Cross-Appellees.
____________________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 4303 — Gary Feinerman, Judge.
____________________
ARGUED MAY 18, 2017 — DECIDED MARCH 27, 2018
____________________
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
SYKES, Circuit Judge. These consolidated appeals
challenge various aspects of a judgment entered on a split
jury verdict in a long-running dispute between the Village of
Park Forest, Illinois, and Thorncreek Apartments, a large
housing complex located in the Village. Thorncreek accused
village officials of engaging in a campaign of regulatory
harassment based on personal animus against its owner and
because many of its residents are black. Thorncreek sued the
Village and ten officials for compensatory and punitive
damages under several federal and state civil-rights laws.
After a 13-day trial, jurors returned a partial verdict for
Thorncreek. The Village and its manager were found liable
under 42 U.S.C. § 1983 for a class-of-one equal-protection
violation, and the village manager and director of communi-
ty development were found liable for conspiracy in violation
4 Nos. 15-2295, et al.
of 42 U.S.C. § 1985(3). In all other respects, the jury sided
with the defendants.
Ruling on postverdict motions, the district court tossed
out the jury’s liability finding against the community-
development director but otherwise approved the verdict
and entered judgment accordingly. The judge also granted
Thorncreek’s motion for prejudgment interest and attorney’s
fees, though the award of fees was approximately one-third
of what was requested.
Both sides appealed, raising assorted challenges to the
judge’s posttrial rulings on damages, prejudgment interest,
and attorney’s fees. We find no error and affirm.
I. Background
Thorncreek is a large townhouse complex nestled in the
Village of Park Forest, a suburb southeast of Chicago that
straddles both Cook County and Will County. In 1989
Thorncreek was sold to Atlantic Limited Partnership XX, a
Michigan partnership largely owned by David Clapper, its
general partner. Clapper later reorganized the property into
three separate limited liability corporations: Thorncreek
Apartments I, LLC; Thorncreek Apartments II, LLC; and
Thorncreek Apartments III, LLC. Each corporation operated
a different part of the complex: Thorncreek I (“Area F”),
Thorncreek II (“Area G”), and Thorncreek III (“Area H”). We
refer to the three corporations collectively as “Thorncreek”
unless the context requires otherwise.
In 2007 Atlantic Limited sold Thorncreek I for roughly
$16 million. The leasing office for the entire complex was
located in a townhouse in Area F, so the sale caused a logis-
tical problem. Thorncreek’s management company proposed
to relocate the leasing office to a vacant townhouse in
Nos. 15-2295, et al. 5
Area G, which was owned and operated by Thorncreek II.
The move required a conditional use permit, so in February
2007 Thorncreek II applied to the Village for a permit to use
the vacant townhouse as a business office. In the meantime,
however, Thorncreek began to conduct its business opera-
tions from the Area G townhouse without waiting for action
on the permit application. The Village responded by citing
Thorncreek II for zoning violations and operating without
the required permit.
In December 2007 the Village filed suit in state court
against Thorncreek II and Atlantic Limited to halt the zoning
and operating violations arising from the unpermitted
leasing office and also to redress certain building-code
violations. Thorncreek II removed the suit to federal court,
but a district judge quickly sent it back to state court for lack
of subject-matter jurisdiction. A later removal was success-
ful; Thorncreek II counterclaimed against the Village and ten
village officials raising a host of federal and state civil-rights
violations. In February 2008 Thorncreek III filed its own
federal lawsuit raising substantially similar claims.
Two months later Fannie Mae filed foreclosure notices
with the Cook County Recorder of Deeds against
Thorncreek II and III. Thorncreek blamed its predicament on
the Village’s regulatory overreach. In July 2008 Thorncreek I
joined the legal battle by filing its own federal suit alleging
similar civil-rights violations.
In essence, all three suits alleged that the Village violated
Thorncreek’s constitutional rights by denying its application
for a business license, interfering with business operations,
refusing to grant the application for a conditional use per-
mit, failing to issue a certificate of occupancy, and unequally
enforcing a building-code provision requiring electrical
6 Nos. 15-2295, et al.
upgrades. A single district judge took charge of all three
suits, consolidating them for summary judgment and, if
necessary, a trial.
As originally pleaded, the case was sprawling.
Thorncreek brought claims under 42 U.S.C. §§ 1981, 1983,
1985, and 1986 seeking compensatory and punitive damages
for alleged due-process, equal-protection, and Takings
Clause violations; conspiracy; and failure to prevent a civil-
rights conspiracy. Thorncreek also tacked on claims under
the Illinois Civil Rights Act, 740 ILL. COMP. STAT. § 23/5.
The judge trimmed the case a bit on summary judgment,
but even as narrowed the case remained unwieldy. Three
groups of claims were tried to a jury over 13 days: (1) § 1983
claims against the Village and nine officials for class-of-one
and race-based equal-protection violations; (2) claims under
§§ 1985 and 1986 against the same nine officials for conspira-
cy and failure to prevent a civil-rights conspiracy; and
(3) claims against the Village under the Illinois Civil Rights
Act. The basic theory of the case was that the defendants
caused Thorncreek’s mortgage default and foreclosure by
singling it out for unfair regulatory action (and inaction)
based on irrational animus against Clapper and racial bias
against its black residents.
Thorncreek prevailed in part. The jury found the Village
and Village Manager Tom Mick liable for a class-of-one
equal-protection violation. The jury also found Mick and
Larrie Kerestes, the director of community development,
liable for conspiracy in violation of § 1985(3). The jury
cleared the other defendants on these two claims and exon-
erated all defendants on the remaining claims. On the issue
of damages, the jury awarded $2,014,000 in compensatory
damages to Thorncreek II but only $1 in nominal damages to
Nos. 15-2295, et al. 7
Thorncreek I and III. Finally, the jury awarded punitive
damages against Mick and Kerestes in the amounts of $5,000
and $1,000, respectively.
Thorncreek moved for a new trial under Rule 59(a) of the
Federal Rules of Civil Procedure but only on the issue of
damages. The motion raised several claims of error. The
judge rejected each one and denied relief. Thorncreek also
asked for prejudgment interest on the jury’s award of com-
pensatory damages. The judge granted that request.
Mick and Kerestes both moved for judgment as a matter
of law under Rule 50(b). The jury’s verdict against Kerestes
was limited to the § 1985(3) conspiracy claim, but that statute
requires a predicate race-based or class-based equal-
protection violation. Because the jury cleared all of the
defendants on the race-based equal-protection claim, the
judge held that the verdict against Kerestes on the § 1985(3)
claim could not stand.
Mick’s situation was different. His Rule 50(b) motion
challenged only the jury’s finding on the § 1985(3) conspira-
cy claim; he did not attack the jury’s liability finding against
him on the class-of-one equal-protection claim. So the judge
saw no reason to disturb the verdict as to him and denied his
motion. With these adjustments, the judge entered judgment
on the verdict.
Thorncreek later moved for an award of attorney’s fees
and nontaxable costs under 42 U.S.C. § 1988. The judge
granted the motion and awarded $430,999.25 in fees and
$44,844.33 in costs. The award of fees was about one-third of
what Thorncreek requested.
Both sides appealed, reprising many of the arguments
raised in the posttrial litigation.
8 Nos. 15-2295, et al.
II. Analysis
A. Mick’s Motion for Judgment as a Matter of Law
Mick challenges the denial of his motion for judgment as
a matter of law. He argues that he deserves the same treat-
ment as his codefendant Kerestes because the jury’s finding
of liability on the § 1985(3) conspiracy claim is invalid with-
out a predicate race-based or class-based equal-protection
violation. That’s a correct statement of settled law. See, e.g.,
Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008) (“Section
1985(3) prohibits a conspiracy to deprive another of equal
protection under the law … , but the conspiracy must be
motivated by racial, or other class-based discriminatory
animus.” (citing Griffin v. Breckenridge, 403 U.S. 88, 102
(1971))). But it does not follow that Mick, like Kerestes, is
entitled to judgment as a matter of law.
It’s true that the jury’s verdict on the § 1985(3) claim was
flawed as to both defendants. The jurors rejected the race-
based equal-protection claim in toto, so there’s no underly-
ing race-based equal-protection violation to support con-
spiracy liability under § 1985(3). But the jury found Mick
and the Village liable on Thorncreek’s § 1983 claim alleging a
class-of-one equal-protection violation and awarded more
than $2 million in compensatory damages. Mick did not
challenge this part of the verdict in his Rule 50(b) motion.
The compensatory-damages award on this claim is plainly
sufficient to support the $5,000 punitive-damages award
against him. So although the jury’s verdict on the § 1985(3)
claim was defective, there’s nothing wrong with the judg-
ment, which Mick does not otherwise challenge. The judge
properly denied his motion for judgment as a matter of law.
Nos. 15-2295, et al. 9
B. Thorncreek’s Motion for a New Trial on Damages
Thorncreek asks us to order a new trial on the limited is-
sue of damages. Its primary argument is that the judge
impermissibly admitted prejudicial references to Clapper’s
wealth that influenced the jury’s assessment of damages.
Thorncreek also attacks the jury decision to award only
nominal damages to Thorncreek I and III.
1. Prejudicial Evidence
“Evidence is unfairly prejudicial only if it will induce the
jury to decide the case on an improper basis, commonly an
emotional one, rather than on the evidence presented.”
United States v. Suggs, 374 F.3d 508, 516 (7th Cir. 2004) (quo-
tation marks omitted). We review claims of evidentiary error
for abuse of discretion. Smith v. Hunt, 707 F.3d 803, 807 (7th
Cir. 2013). Because the trial judge is in a superior position to
evaluate the impact of contested testimony or other evi-
dence, we give special deference to the judge’s evidentiary
rulings. Suggs, 374 F.3d at 516. And to warrant a new trial,
an evidentiary error must affect the losing party’s substantial
rights—that is, there must be a significant chance that the
flawed ruling affected the outcome of the trial. Smith,
707 F.3d at 808.
The parties submitted some 26 or 27 motions in limine
seeking to limit the opposition’s evidentiary submissions.
One of Thorncreek’s pretrial motions pertained to evidence
of Clapper’s wealth, which Thorncreek insisted should be off
limits. The judge agreed and excluded evidence of Clapper’s
wealth or financial status. Thorncreek maintains that the
defense attorney violated this ruling several times, tainting
the jury on the question of damages. The judge was not
persuaded. Neither are we.
10 Nos. 15-2295, et al.
Thorncreek’s main complaint centers on a brief moment
during the trial when defense counsel was cross-examining a
witness about a phone conversation with Clapper. Counsel
asked if the witness knew where Clapper was during the
call. The witness replied that he was “either in his offices in
Michigan, or he was on his boat in the Mediterranean.”
The judge instructed the jury to disregard the testimony,
and we assume that jurors follow such instructions. Solyts v.
Costello, 520 F.3d 737, 744 (7th Cir. 2008). To overcome this
presumption, the complaining party must establish “an
overwhelming probability” that the jury was “unable to
disregard inadmissible evidence” and also “a strong likeli-
hood of a devastating effect from the evidence.” Turner v.
Miller, 301 F.3d 599, 604 (7th Cir. 2002). Thorncreek has not
shown that this stray snippet of testimony had any sort of
effect—much less a devastating effect—on the jury.
Other oblique references to Clapper’s wealth occurred
during defense counsel’s closing argument, but Thorncreek
did not object. Ordinarily “a definitive ruling in limine
preserves an issue for appellate review, without the need for
later objection.” Wilson v. Williams, 182 F.3d 562, 563 (7th Cir.
1999). But that rule doesn’t apply to claimed violations of a
judge’s in limine rulings; an objection is generally required
to preserve appellate review of an alleged violation of a
pretrial ruling. And here the judge reminded the parties to
object to any violations of his rulings on motions in limine
and instructed them to be specific about the grounds.
More specifically, after the witness’s “boat in the
Mediterranean” reference, the judge called a break, made a
record of what happened, and instructed the lawyers as
follows:
Nos. 15-2295, et al. 11
What I’ll say in response is there were 26 or
27 motions in limine, so -- and with some prior
objections, the objection said, “ruling on the
motion in limine,” and that prompts me to
think about the motion in limine. …
If you want to rely on a motion in limine -- a
ruling on a motion in limine in making an ob-
jection, you’ve got to tell me because it isn’t
like -- if we had one or two or three motions in
limine, it would be different, but we had 26 or
27.
….
[Y]ou really have to state the basis for the ob-
jection when you make the objection.
….
[I]n the future, if you do want -- both sides, if
you want to rely on a motion in limine ruling in
making an objection, just say, “motion in limine
ruling.” Obviously don’t get into the details of
the motion in limine, because again, that would
defeat the point of having the motion in limine.
The judge’s instructions could not have been clearer: To
preserve a challenge to any further violations of his rulings
on motions in limine, the parties had to object. Thorncreek
did not do so with respect to defense counsel’s passing
references to Clapper’s wealth during closing argument.
That’s a waiver. Venson v. Altamirano, 749 F.3d 641, 657 (7th
12 Nos. 15-2295, et al.
Cir. 2014); Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir.
2008). 1
Thorncreek argues for the first time in its reply brief that
we should review the unpreserved errors under the plain-
error standard. Plain-error review is rarely applied in civil
cases and is available only if “(1) exceptional circumstances
exist[]; (2) substantial rights are affected; and (3) a miscar-
riage of justice will occur if plain error review is not ap-
plied.” Willis v. Lepine, 687 F.3d 826, 839 (7th Cir. 2012)
(quotation marks omitted). Thorncreek’s plain-error argu-
ment fails for multiple reasons. For starters, “arguments
raised for the first time in a reply brief are waived.” Darif v.
Holder, 739 F.3d 329, 336 (7th Cir. 2014). And Thorncreek has
not shown either exceptional circumstances or a miscarriage
of justice. Thorncreek won more than $2 million in damages,
which suggests that the jury was not put off by any refer-
ences to Clapper’s wealth. 2
1 Thorncreek suggests that not interrupting closing argument was part of
its own counsel’s trial strategy. Maybe so, but that doesn’t make a
difference in the analysis. “Perhaps defendant-appellant feared that a
contemporaneous objection would incur hostility from the jury. This
court need not speculate as to the nature of defendant-appellant’s
motives. Suffice it to note, however, that risky gambling tactics such as
this are usually binding on the gambler.” Pickett v. Sheridan Health Care
Ctr., 610 F.3d 434, 445 (7th Cir. 2010) (quoting Gonzalez v. Volvo of Am.
Corp., 752 F.2d 295, 298 (7th Cir. 1985) (per curiam)).
2 Before we leave the subject of Clapper’s wealth, we pause to note an
additional argument Thorncreek raises, though it’s so plainly meritless
that we could let it go unmentioned. Thorncreek takes issue with the
highlighted parenthetical in this passage from the judge’s written
decision on posttrial motions:
Before trial, Thorncreek moved in limine to bar, among
other things, any references to or evidence regarding the
Nos. 15-2295, et al. 13
Thorncreek next argues that its financial records pre-
dating 2005 should not have been admitted at trial. This
argument rests entirely on a ruling by a magistrate judge
concerning a discovery dispute. The magistrate judge saw a
need to limit the scope of discovery, so he ordered that
“[e]xcept for specific interrogatories and document requests
identified on the record, the interrogatories and document
requests are limited to the time period of 01/01/05 to the
present.”
But the documents at the center of Thorncreek’s argu-
ment are publicly available financial records pertaining to the
housing complex. The defense expert incorporated this
material into his final damages opinion, and the defense
disclosed the documents to Thorncreek about two months
before trial, explaining that the pre-2005 public records were
additional support for the expert’s opinion. The defense
even offered to produce the expert for another deposition.
Thorncreek declined the offer.
wealth and personal financial status of David Clapper,
Thorncreek’s principal owner. Doc. 258. (Clapper ap-
parently is a wealthy man. See Kaya Morgan, David
Clapper—Success Runs Deep, http://www.island
connections.com/edit/clapper.htm (last visited May 17,
2015), which appears to be a puff piece about Clapper
authored by a publicist, which refers to Clapper as a
“Michigan business tycoon,” which shows photo-
graphs of Clapper with, among others, the first Presi-
dent Bush, Pope John Paul II, and Kevin Nealon, and
which was not offered or admitted into evidence at tri-
al.) The Village did not oppose the exclusion of such ev-
idence, Doc. 272, and the court granted the motion in
relevant part, Doc. 377.
(Emphasis in bold added.) This harmless aside is hardly reversible error.
14 Nos. 15-2295, et al.
Thorncreek now cries foul, relying on Rule 26(a), but its
objection is way off the mark. Rule 26(a) says that “[a]bsent a
stipulation or a court order,” expert testimony must disclosed
at least 90 days before the date set for trial. FED. R. CIV.
P. 26(a)(2)(D)(i) (emphasis added). Here the judge specifical-
ly allowed the defense to submit the modified expert report
two months before trial. There was no Rule 26 violation, and
the judge did not otherwise abuse his discretion in admitting
the publicly available pre-2005 financial records.
2. Challenge to Nominal Damages Awards
“[W]e do not readily overturn a damage award when the
trial court has denied the plaintiff’s motion for a new trial.”
Rosario v. Livaditis, 963 F.2d 1013, 1020 (7th Cir. 1992). We
will do so only “when the jury’s verdict is contrary to reason
and the trial court’s denial of a new trial on damages is an
abuse of discretion.” Id.
The jury awarded a substantial sum of money—more
than $2 million—to Thorncreek II but only nominal damages
of $1 each to Thorncreek I and III. Thorncreek insists that the
awards are inconsistent and contrary to reason. Not so.
Based on the evidence adduced at trial, the jury rationally
treated the three Thorncreek entities differently.
Thorncreek I originally housed the apartment leasing of-
fice and was sold for roughly $16 million in 2007 before most
of the events in question occurred. True, the sale necessitat-
ed the relocation of the business office, which spawned the
fight over regulatory approval of the conditional use permit.
Regardless, although Thorncreek’s expert testified that the
$16 million price was too low, the defense expert said it was
just right and no damages accrued. The jury was entitled to
accept the latter’s testimony.
Nos. 15-2295, et al. 15
Thorncreek II, for its part, was uniquely affected by the
run-ins with the Village. The Village unequally enforced an
electrical-upgrade ordinance against Area G. And the
Village sued Thorncreek II to enforce the electrical-upgrade
ordinance and to shutter the illegal leasing office set up in
the Area G townhouse after the sale of Thorncreek I. Finally,
the jury heard evidence that before the foreclosure
Thorncreek II was set to be sold to a third party and that but
for the Village’s interference, the sale would have been
consummated. Indeed, it appears that the jury took the
contract value of the property and subtracted the mortgage
amount to arrive at its compensatory-damages award.
Thorncreek III, on the other hand, was not subjected to
harassment over electrical upgrades like Thorncreek II was,
and it did not face an enforcement action by the Village in
state court. The record supports the jury’s decision to treat
each Thorncreek plaintiff differently when assessing damag-
es. The judge properly denied Thorncreek’s motion for a
new trial.
C. Prejudgment Interest
The Village challenges the judge’s decision to award pre-
judgment interest on the verdict. We held long ago that
prejudgment interest is “presumptively available to victims
of federal law violations.” Gorenstein Enters., Inc. v. Quality
Care–USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989). Prejudg-
ment interest serves dual purposes: to fully compensate the
plaintiff and to minimize a defendant’s incentive to delay. Id.
But it is not the same as punitive damages; prejudgment
interest is not meant to penalize the party who caused the
injury. Raybestos Prods. Co. v. Younger, 54 F.3d 1234, 1247 (7th
Cir. 1995).
16 Nos. 15-2295, et al.
Accordingly, a prevailing plaintiff can’t double dip by
providing the jury with a damages estimate that includes
interest and also moving for prejudgment interest. When a
plaintiff provides evidence of damages that includes interest,
the presumption flips and the judge will presume that the
jury included the interest in its award. Id.
The damages estimates Thorncreek submitted to the jury
included prejudgment interest. So the judge properly started
with the presumption that Thorncreek was not entitled to
prejudgment interest. But he found the presumption re-
butted and granted the request for prejudgment interest. We
review that decision for abuse of discretion. First Nat’l Bank
of Manitowoc v. Cincinnati Ins. Co., 485 F.3d 971, 981 (7th Cir.
2007).
The judge concluded that the jury calculated its
compensatory-damages award by simply subtracting the
mortgage debt on Thorncreek II from its value—a figure that
the judge said “result[ed] from simple subtraction, [and] did
not include prejudgment interest.” In its motion for a new
trial, the Village embraced this interpretation as a plausible
reading of the verdict. That concession takes most of the
wind out of the Village’s sails.
For completeness, however, we note that the jury heard
evidence that a willing buyer offered to purchase
Thorncreek II for $11 million. The jury also heard evidence
that the original mortgage on Thorncreek II was $8,960,000
and $8,466,945.55 of the principal on the mortgage remained
unpaid. Simple subtraction results in a range of damages
between $2,004,000 and $2,533,054.45. The actual
compensatory-damages award—$2,014,000—fits squarely
within that range.
Nos. 15-2295, et al. 17
Thorncreek’s expert offered an estimate of prejudgment
interest in the range of $1,311,163 to $1,641,861. Under the
circumstance it’s highly improbable that the jury incorpo-
rated prejudgment interest in its ultimate award, and the
Village has not given us a good reason to think that it did.
We see no error in the judge’s award of prejudgment inter-
est.
D. Attorney’s Fees
For claims brought under § 1983, “the court, in its discre-
tion, may allow the prevailing party … a reasonable attor-
ney’s fee as part of the costs.” 42 U.S.C. § 1988(b). The
statute’s use of the word “may” commits the award of fees
to the district court’s discretion. Thorncreek challenges the
judge’s decision to substantially reduce the amount of fees it
requested. Our review is deferential, for abuse of discretion
only. Khan v. Gallitano, 180 F.3d 829, 837 (7th Cir. 1999).
The reasonableness of an award of fees is fundamentally
determined by “the degree of the plaintiff’s overall success.”
Farrar v. Hobby, 506 U.S. 103, 114 (1992) (quoting Tex. State
Teachers Ass’n v. Garland Ind. Sch. Dist., 489 U.S. 782, 793
(1989)). Ordinarily a reasonable fee is calculated under the
lodestar method by multiplying a reasonable hourly rate by
the number of hours reasonably expended on the litigation.
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir.
2011). The judge performed that calculation here and
reached a lodestar figure of $1,292,997.75.
But the lodestar figure is just the “starting point.” Estate
of Enoch v. Tienor, 570 F.3d 821, 823 (7th Cir. 2009). And
though it is presumptively reasonable, Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 553–54 (2010), the figure may be
excessive when “a plaintiff has achieved only partial or
18 Nos. 15-2295, et al.
limited success,” Hensley v. Eckerhart, 461 U.S. 424, 436
(1983). In making this determination, the district court
considers the claims on which the party did not prevail, the
size of the monetary award, and any social benefits not
reflected in a small damages award. Estate of Enoch, 570 F.3d
at 824.
If a plaintiff recovers only nominal damages, the “rea-
sonable fee is usually no fee at all.” Farrar, 506 U.S. at 115.
Three factors help determine whether attorney’s fees are
appropriate in a nominal-damages case: “(1) the difference
between the judgment recovered and the recovery sought;
(2) the significance of the legal issue on which the plaintiff
prevailed; and (3) the public purpose of the litigation.”
Johnson v. Daley, 339 F.3d 582, 609 (7th Cir. 2003).
The judge properly applied these general principles here.
He first noted that the jury awarded only nominal damages
to two of the three Thorncreek entities. Thorncreek I and III
sought a combined total of $12.5 million but received a
combined total of $2. The judge also considered that the
issues in the litigation were primarily factual rather than
legal. And, finally, the public purpose of the litigation was
minimal. Though the vindication of constitutional rights is
always important, “attorney’s fees are appropriate … only
when the plaintiff’s victory entails something more than
merely a determination that a constitutional guarantee was
infringed.” Maul v. Constan, 23 F.3d 143, 146 (7th Cir. 1994).
The judge reasonably concluded that the necessary “some-
thing more” was missing here.
On the other hand, Thorncreek II won a substantial sum
from the jury, though not close to what it sought. It asked for
$8 million; the jury awarded just over $2 million. Still, it’s a
sizeable award, and the judge properly noted the point. And
Nos. 15-2295, et al. 19
he did not “make the mistake of limiting the fee to some
multiple of the judgment, which would have been reversible
error.” Montanez v. Simon, 755 F.3d 547, 557 (7th Cir. 2014).
In the end, there is no algorithm “for adjusting a lodestar
to reflect partial or limited success.” Id. The trial judge “has
broad discretion to determine the appropriate reduction”
and “is in a better position to assess … whether a … judg-
ment is a spectacular success, a dismal failure, or something
in between.” Id. Here the judge reasonably exercised his
broad discretion to reduce the requested fees. Two of the
three Thorncreek entities won only nominal damages.
Thorncreek achieved a partial victory against the Village and
Mick on a single claim but lost on all the others, and the nine
remaining defendants were completely exonerated.
Thorncreek sought a combined total of $20.5 million in
damages but won a fraction of that amount, though at just
over $2 million it’s unquestionably a substantial sum. After
considering all the relevant factors, the judge declined to
approve a lodestar recovery and settled on a fee award of
approximately $475,000. That decision was sound.
AFFIRMED.