Demarco Nichols v. Illinois Department of Transp ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1456
DEMARCO NICHOLS,
Plaintiff-Appellant,
and
LONGO & ASSOCIATES, LIMITED,
et al.,
Appellants,
v.
ILLINOIS DEPARTMENT OF TRANSPORTATION,
et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-01789 — Thomas M. Durkin, Judge.
____________________
ARGUED JANUARY 22, 2021 — DECIDED JULY 6, 2021
____________________
Before RIPPLE, KANNE, and SCUDDER, Circuit Judges.
2 No. 19-1456
RIPPLE, Circuit Judge. Attorney Joseph Longo represented
Demarco Nichols, the plaintiff in this employment discrimi-
nation action against the Illinois Department of Transporta-
tion (“IDOT”). When his client prevailed, Mr. Longo peti-
tioned the district court for attorneys’ fees and costs under
the fee-shifting provision of Title VII of the Civil Rights Act
of 1964. See 42 U.S.C. § 2000e-5(k). The district court con-
cluded that Mr. Longo, in his fee petition, inflated his hour-
ly rate and grossly overstated the hours that an attorney
reasonably could have expended litigating this action. In the
end, the district court awarded Mr. Longo $774,584.50 in
fees and $4,061.02 in costs. Mr. Longo now appeals. He con-
tends that the district court applied an erroneous legal
framework and abused its discretion when it reduced his
rate and hours. Because the district court acted well within
its discretion, we affirm its judgment.
I
BACKGROUND
The underlying discrimination case was tried to a jury
and resulted in a judgment of $1.5 million in damages (later
reduced to the statutory cap of $300,000) and $952,156 in eq-
uitable relief. Neither the jury’s verdict nor the equitable re-
lief that Mr. Nichols received is at issue in this appeal. In-
stead, our task today is to resolve a dispute over the district
court’s application of Title VII’s fee-shifting provision, 42
U.S.C. § 2000e-5(k).
Mr. Longo petitioned for $1,709,345 in attorneys’ fees and
$4,460.47 in costs. He submitted that his hourly rate was
$550 and that he had worked 3,107.9 hours on Mr. Nichols’s
case. Mr. Longo also requested a 15% upward adjustment
No. 19-1456 3
based on (1) his assertion that Mr. Nichols’s case was
“risky” 1; (2) the successful outcome he achieved; and (3) the
ability of a large fee award to act as a deterrent against fu-
ture misconduct. For its part, IDOT vigorously contested
Mr. Longo’s fee calculation. In IDOT’s view, an appropriate
fee award was $286,931.02, which included a downward ad-
justment based on IDOT’s contention that Mr. Longo’s litiga-
tion conduct had inflated inappropriately his fee request.
The district court combed through Mr. Longo’s volumi-
nous fee petition and ultimately awarded $774,584.50 in fees
and $4,061.02 in costs. In its opinion, the district court ex-
plained why Mr. Longo’s requested rate and hours were
both unreasonable. The district court first calculated the
lodestar, which is the reasonable hourly rate multiplied by
the reasonable hours worked. Relying on other then-recent
fee awards for Mr. Longo, the court set the reasonable hour-
ly rate at $360 for attorney work and $125 for paralegal
work. Scrutinizing the hours submitted, the district court re-
duced Mr. Longo’s request by 962.1 hours. The court ex-
plained that the reduction included 109.2 hours that
Mr. Longo had billed for trips from his office to the down-
town Chicago courthouse; 18.5 hours for paralegal work
billed at an attorney’s rate; a further 10% reduction (298.0
hours) for excessive billing for clerical work; and another
20% reduction (536.4 hours) for general excessive billing.
In the end, the court permitted Mr. Longo 2,145.8 hours
at an attorney’s rate and 18.5 hours at a paralegal’s rate,
which set the lodestar at $774,584.50. The district court then
1 R.290 at 18.
4 No. 19-1456
turned to the parties’ requests for adjustments and conclud-
ed that neither an upward nor downward adjustment was
warranted. Lastly, the district court denied Mr. Longo’s re-
quest for fees for litigating the fee petition, noting that
Mr. Longo’s lack of billing judgment and his overly volumi-
nous fee petition made such an award inappropriate. As a
result, the court awarded the lodestar amount to Mr. Longo,
who now appeals that fee award.
II
DISCUSSION
Mr. Longo’s appellate brief touches on virtually every
aspect of the district court’s decision to award him fees be-
low the amount he requested. 2 He claims that the district
court committed both legal error and abused its discretion.
All of Mr. Longo’s contentions in his appellate brief are mer-
itless. Some are simply frivolous. Although we do not im-
pose sanctions today for Mr. Longo’s apparent failure to
heed past opinions critical of frivolous fee litigation conduct,
we are unlikely to countenance such behavior in the future. 3
2 The district court exercised its jurisdiction under 28 U.S.C. § 1331. We
exercise ours under 28 U.S.C. § 1291. See Palmer v. City of Chicago, 806
F.2d 1316, 1318 (7th Cir. 1986) (“Attorney’s fees usually are awarded af-
ter the final judgment; since there is then nothing else pending in the
district court, the fee award is a final order in an uncontroversial sense,
appealable under 28 U.S.C. § 1291.”). Mr. Longo and his law firm are
appropriate appellants for purposes of this appeal, which involves only
the attorneys’ fees and costs award. See Mathur v. Bd. of Trs. of S. Ill.
Univ., 317 F.3d 738, 741–42 (7th Cir. 2003).
3 Our warning today should come as no surprise to Mr. Longo, who has
had his fee litigation conduct repeatedly criticized by district courts in
(continued … )
No. 19-1456 5
With that, we will address Mr. Longo’s contention that the
district court committed legal error, then turn to his asser-
tion that the court abused its discretion.
A.
Mr. Longo submits that the district court “utilize[d] the
wrong methodology/legal analysis” when it set his fee
award. 4 We review de novo whether the district court ap-
plied the correct legal framework for deciding a fee award.
See Anderson v. AB Painting & Sandblasting Inc., 578 F.3d 542,
544 (7th Cir. 2009).
Mr. Longo’s argument is plainly frivolous. The analytical
framework relevant here is well established and straightfor-
ward. “The award’s size is a function of three numbers: the
hours worked, the hourly rate, and any overall adjustments
up or down.” Sommerfield v. City of Chicago, 863 F.3d 645, 650
(7th Cir. 2017). A court starts by determining the “lodestar,”
( … continued)
our circuit. See, e.g., Smith v. Rosebud Farm, Inc., No. 11-cv-9147, 2018 WL
4030591, at *4 (N.D. Ill. Aug. 23, 2018) (“Even a cursory review of the
docket reveals that [Mr. Longo’s] submissions regularly cited incorrect
and/or irrelevant authorities and often were of questionable necessity or
utility.”); Sommerfield v. City of Chicago, 2012 WL 5354987, at *3 (N.D. Ill.
Oct. 29, 2012), report and recommendation adopted, 2013 WL 139502 (N.D.
Ill. Jan. 10, 2013), aff’d, 863 F.3d 645 (7th Cir. 2017) (“[Mr. Longo’s] willful
misconduct time and time again results in needless and unreasonable
expenditures of time for which he invariably seeks compensation
through inflated fee awards and that courts have repeatedly condemned
his behavior in published opinions that could not be more critical of a
lawyer.”).
4 Appellant’s Br. 1.
6 No. 19-1456
which is the attorney’s reasonable hourly rate multiplied by
the hours the attorney reasonably expended on the litigation.
Id. (quoting Johnson v. GDF, Inc., 668 F.3d 927, 929 (7th Cir.
2012)). Once the court calculates the lodestar, it then may de-
termine whether an adjustment is warranted under the
case-specific circumstances. Id. If a plaintiff requests fees for
the fee award litigation, the court will also determine that
after calculating the lodestar. See Batt v. Micro Warehouse,
Inc., 241 F.3d 891, 894 (7th Cir. 2001); see also, e.g., Pennsylva-
nia v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546,
565–66 (1986).
There is no question that the district court applied the
correct legal framework. It started by determining Mr. Lon-
go’s reasonable hourly rate and multiplying that rate by the
number of hours Mr. Longo reasonably had expended on
Mr. Nichols’s case. The court then considered and denied
Mr. Longo’s request for an upward adjustment and IDOT’s
request for a downward adjustment. Finally, the court de-
nied Mr. Longo’s request for fees for the fee-stage litigation.
This methodology matches perfectly the legal framework set
out in our case law. 5 See, e.g., Pickett v. Sheridan Health Care
Ctr., 664 F.3d 632, 639–40 (7th Cir. 2011).
5 Indeed, we have every reason to assume that Mr. Longo was well
aware of the correct legal framework. We explained it just a few years
ago in Sommerfield v. City of Chicago, 863 F.3d at 650, another case in
which a district court concluded that Mr. Longo petitioned for an unrea-
sonable fee award. He should have had no doubt that the district court in
this case applied the correct legal framework.
No. 19-1456 7
B.
Mr. Longo also challenges much of the district court’s
application of the methodology we just discussed in calculat-
ing the lodestar, in addressing his upward adjustment re-
quest, and in denying him fees for litigating the fee petition.
We review an award of attorneys’ fees for abuse of discre-
tion, Montanez v. Simon, 755 F.3d 547, 552–53 (7th Cir. 2014),
and “give the district court the benefit of the doubt,” Som-
merfield, 863 F.3d at 650.
First, Mr. Longo claims that the district court abused its
discretion in setting his reasonable hourly rate at $360. He
invites our attention to six affidavits from other attorneys
that he submitted alongside his petition to substantiate that
his requested $550 hourly rate was reasonable. The district
court thoroughly examined the affidavits and found them
insufficient. That decision was far from an abuse of discre-
tion. The court noted that three of the affidavits did not state
the affiant’s own hourly rate; instead, they were merely con-
clusory. We have held that district courts may refuse to cred-
it conclusory affidavits. See Montanez, 775 F.3d at 554. The
district court also found the other three affidavits—those
from attorneys David Lee, Aaron Maduff, and John Moran—
unpersuasive. Lee’s affidavit did not specifically address
fees in employment cases like this one, and his qualifications
far exceeded Mr. Longo’s; Maduff’s was too general; and
Moran’s did not list a judicially approved or client-paid
amount for work in similar employment cases. The district
court acted within its discretion in examining the persua-
siveness of each affidavit; it gave sufficient reasons for find-
ing each unpersuasive. See Small v. Richard Wolf Med. Instru-
ments Corp., 264 F.3d 702, 707 (7th Cir. 2001) (noting that a
8 No. 19-1456
district court is entitled to weigh the probity of affidavits
submitted to support a fee request). Mr. Longo also takes is-
sue with the district court’s discounting of his own affidavit.
The district court, consistent with our case law, concluded
that Mr. Longo’s affidavit was entirely conclusory and thus
unpersuasive. See Harper v. City of Chi. Heights, 223 F.3d 593,
604 (7th Cir. 2000) (noting that “an attorney’s self-serving
affidavit alone cannot establish the market rate for that at-
torney’s services”). In short, none of the district court’s con-
clusions constitute an abuse of discretion.
Second, Mr. Longo claims that the district court abused
its discretion when it relied on a prior case involving him in
order to determine the reasonable hourly rate. The court ob-
served that another judge in the district had set Mr. Longo’s
reasonable hourly rate at $360, and it found that judge’s rea-
soning persuasive. Smith v. Rosebud Farm, Inc., No.
11-cv-9147, 2018 WL 4030591, at *5 (N.D. Ill. Aug. 23, 2018).
This determination, too, was not an abuse of discretion. Re-
cent fee awards from an attorney’s other cases provide a use-
ful comparison when establishing that attorney’s reasonable
rate. See, e.g., Jeffboat, LLC v. Dir., Off. of Workers’ Comp. Pro-
grams, 553 F.3d 487, 491 (7th Cir. 2009) (“[A] previous attor-
neys’ fee award is useful for establishing a reasonable mar-
ket rate for similar work.”). The district court was especially
reasonable to rely on Smith because that litigation over-
lapped with the litigation in this case.
Third, Mr. Longo submits that the district court abused
its discretion by refusing to award him fees for the time he
spent travelling to the courthouse for hearings. Under our
case law, we presume “that a reasonable attorney’s fee in-
cludes reasonable travel time billed at the same hourly rate
No. 19-1456 9
as the lawyer’s normal working time.” Henry v. Webermeier,
738 F.2d 188, 194 (7th Cir. 1984). We explained in Henry that
“if [attorneys] charge their paying clients for travel time they
are entitled to charge the defendants for that time in a case
such as this where the plaintiffs have shown a statutory right
to reasonable attorneys’ fees.” Id. (emphasis added). But we
have emphasized that “if the travel is unnecessary the time
spent in travel should be subtracted out.” Id.The district court did not categorically deny Mr. Longo
fees for time spent traveling. Rather, the district court simply
determined that the hours Mr. Longo submitted for trips
from his office to the downtown Chicago courthouse were
unreasonable. For each roundtrip, Mr. Longo billed 2.8
hours, which amounts to $1,008 at the reasonable $360 per
hour rate (or $1,540 at the $550 rate Mr. Longo urges us to
award). Mr. Longo’s voluminous petition gives no hint that
he bills paying clients every time he drives to court; especial-
ly in a case like this where he made thirty-nine such trips. Cf.
id. (explaining that if an attorney charges paying clients for
travel time, then defendants must pay for such time under a
fee-shifting statute).
More fundamentally, the district court noted that it “al-
lows parties to appear by phone and encourages parties to
do so to avoid unnecessary expense to clients and wasted
time to counsel, making travel time even less necessary for
all but the trial or lengthy contested hearings.” 6 Mr. Longo
6 R.305 at 18. The distance between an attorney’s place of practice and
the courthouse is a factor that can be considered in determining whether
it was reasonable to use an option other than an in-person appearance.
But a trial judge must take into account that attorneys have every right to
(continued … )
10 No. 19-1456
ignored that option. On the other hand, the district court
awarded Mr. Longo’s request for attorneys’ fees for his trav-
el to depositions. This fits neatly with our holding in Henry:
reasonable travel warrants attorneys’ fees, but unnecessary
or unsupported travel does not. We therefore cannot say that
the court abused its discretion when it denied Mr. Longo
fees for travel to and from his office.
Fourth, Mr. Longo challenges the district court’s denying
his request for an upward adjustment. He claims that he de-
serves such an adjustment because of the success he
achieved in this case and as a means to encourage other law-
yers to take similar cases. Upward adjustments, however,
are appropriate only in “rare” or “exceptional” cases. See
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010) (in-
ternal quotation marks omitted). Indeed, the lodestar is pre-
sumptively sufficient to induce a capable attorney to take on
a meritorious civil rights case. Id. Here, the district court rea-
sonably concluded that Mr. Nichols’s case was not rare or
exceptional. Although Mr. Longo claimed it was rare to
achieve a successful verdict for a Muslim plaintiff like
Mr. Nichols in a discrimination case, the district court cor-
rectly noted that Title VII plaintiffs are often members of
minority groups and thus this case is not rare in that respect.
( … continued)
consider the accessibility of their office to their clients when determining
the situs of their practice. The mere fact, then, that an attorney has cho-
sen an office located outside of an urban center does not preclude an
award of fees for travel from that office to the courthouse. The key ques-
tions remain whether the attorney has adequately supported their fee
petition and whether their request is reasonable under the circumstanc-
es.
No. 19-1456 11
The court also correctly noted that the lodestar in this case
was sufficient to achieve the fee-shifting statute’s goal of at-
tracting qualified lawyers to take similar cases. The district
court’s determination was certainly within its discretion; in-
deed, its reasoning is persuasive.
Fifth, Mr. Longo takes issue with the district court’s deci-
sion not to award fees for the fee petition litigation. Again,
the district court did not abuse its discretion. We have
frowned upon lawyers who litigate fee awards with greater
vigor than any other issue. See Spegon v. Cath. Bishop of Chi.,
175 F.3d 544, 554 (7th Cir. 1999). We also have instructed
those seeking fees to review carefully their petition and cut
unnecessary costs. Mr. Longo, as the district court noted,
demonstrated no such billing judgment. Instead, he submit-
ted a voluminous billing record that included plainly inap-
propriate entries. For example, Mr. Longo billed 284.8 hours
for a summary judgment response that the district court
commented “was not particularly effective or
well-organized.” 7 He billed 250.1 hours for reviewing
IDOT’s summary judgment documents, an amount of time
the district court found “simply ridiculous.” 8 He billed 0.2
hours (twelve minutes) for reading even the shortest emails
from IDOT’s counsel. He billed a full attorney’s rate for par-
alegal tasks. He billed an hour for motions hearings that
lasted mere minutes. He served interrogatories and docu-
ment requests with such breadth and volume that the magis-
trate judge overseeing discovery ordered Mr. Longo to seek
7 R.305 at 21.
8 Id.
12 No. 19-1456
leave of court before requesting additional discovery. We
have no trouble concluding that the district court was within
its discretion to deny fees for the fee petition litigation.
Mr. Longo also contests a few other aspects of the district
court’s opinion but provides no coherent argument to sup-
port his discontent. For instance, Mr. Longo appears to chal-
lenge the district court’s decision to reduce his hours (after
the other targeted reductions) by 20% based on his excessive
billing. But he does not provide any explanation for his as-
sertion that the district court erred in determining the reduc-
tion percentage. And we have said that district courts need
not undertake a line-by-line inquiry when the voluminous
nature of a petition makes doing so impractical. See
Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) (“We en-
dorse the court’s [lump-sum] approach as a practical means
of trimming fat from a fee application; it is generally unreal-
istic to expect a trial court to evaluate and rule on every en-
try in an application.”). Elsewhere, Mr. Longo says the dis-
trict court based its decision on “thoughts/feelings” and
viewed his petition with a “negative lens,” but he does not
explain what that means. 9 In any event, upon examination of
the record, we are confident that the district court fairly ap-
plied the law to the facts of this case. Mr. Longo’s conclusory
statements do not present a coherent argument or give us
any basis to disturb the award.
Conclusion
Mr. Longo submitted a voluminous and unreasonable fee
petition. The district court meticulously, fairly, and correctly
9 Appellant’s Br. 6, 10.
No. 19-1456 13
applied our case law and awarded reasonable attorneys’ fees
and costs. We, therefore, affirm the district court’s judgment.
AFFIRMED