Opinion
Cause No. IP01-0880-C-B/G.
January 21, 2005
ENTRY ON PLAINTIFF'S MOTION TO RECONSIDER AND DEFENDANT'S MOTION FOR RELIEF
On November 12, 2004 we issued our Entry On Plaintiff's Fee Request And Defendant's Motion For Sanctions. Also on that date, the court entered a separate judgment in favor of the Plaintiff based on the contemporaneously issued entry. Plaintiff has now filed a Motion to Reconsider, pursuant to Fed.R.Civ.P. 59, asking that the hourly rate used to calculate the award of attorney fees be reconsidered. Defendant has filed a Motion for Relief, pursuant to Fed.R.Civ.P. 60, seeking correction of a clerical error with regard to the amount of the judgment.
Plaintiff's request that we reconsider the hourly rate we applied to calculate the award of attorney fees is premised on the fact that the Court previously utilized a higher hourly rate in calculating sanctions imposed on Daniel Cadle. In that prior instance, Plaintiff sought sanctions for Cadle's knowing violation of an order entered by Magistrate Judge V. Sue Shields, to limit direct contact between the principals involved in this lawsuit. A hearing on that matter was held before Magistrate Judge Tim A. Baker, resulting in a finding that Daniel Cadle had in fact violated the earlier order and that he must pay the attorney fees generated by Plaintiff's efforts to redress that violation. Magistrate Judge Baker ruled that David Philipps' then hourly rate of $275.00 per hour was fair and reasonable, as was his local counsel's rate of $200.00 per hour. Accordingly, he recommended that Cadle be required to pay the Plaintiff the sum of $712.50, reflecting the time spent by the two attorneys in attending the sanctions hearing. We adopted Magistrate Baker's Report and Recommendation on October 15, 2002.
Plaintiff also offers some additional citations to other cases in this district wherein fees were awarded based upon a higher hourly rate for Philipps and members of his firm. However, that evidence could and should have been proffered at the time the instant fee petition was being considered and prior to entry of a judgment. We are not obliged to reopen a case to consider, belatedly, evidence which was previously readily available. Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995). Furthermore, the proffered citations appear to relate to settled class action lawsuits wherein the amount of attorney fees is generally agreed upon by the parties at the time of settlement. In any event, these additional citations are not a proper basis upon which to seek an amended judgment, pursuant to Fed.R.Civ.P. 59.
In our November 12, 2004 entry, we rejected the request of Plaintiff's attorney to calculate attorney fees based upon an hourly rate of $300.00 for attorney Philipps, finding instead that $220.00 was the appropriate market rate based on evidence regarding attorney fees tendered by both sides and in view of the fact that Philipps and his associate pursued Chicago rates, rather than rates for comparable services in Indianapolis. Indianapolis practitioners of similar experience charge considerably less per hour for the same work, as evidenced by Philipps' own local counsel's submissions. Further, there is no indication in the record that any evidence regarding hourly rates was presented to Magistrate Baker other than Philipps' own statement as to what he charges for his time.
The Seventh Circuit has held that where there has been an earlier award of attorney fees based upon a particular hourly rate, it is not an abuse of discretion for a district court later to award fees based upon a lower hourly rate. Moriarty v. Svec, 233 F.3d 955, 966 (7th Cir. 2000). If a greater depth of evidence is made available for consideration the second time around, the Court is not prohibited from determining that a lower rate is appropriate. Id. Further, while Plaintiff's success in litigating this case cannot be denied, his effort to create a class action failed, which was the only matter of real substance posing any significant degree of difficulty. In addition, Plaintiff had no actual damages and waived the additional damages allowed under the statute, which left only the fees of the attorneys to be recouped in the final judgment. Such an outcome does not bespeak any exceptionality in Plaintiff's representation. Accordingly, we decline to reconsider the hourly rate assigned to Mr. Philipps and his associate and will not amend the judgment to reflect a larger award of fees.
We will, however, amend the judgment for a different reason, as requested in Defendant's post judgment motion. Our November 12, 2004 entry awarded attorney fees of $54,391.00 and costs of $3,704.65. By inadvertence, when the separate judgment was entered that same day, the costs and fees were mistakenly added together into a judgment of $58,095.65, and the separate award of costs in the amount of $3,704.65 was again set forth. In other words, the $3,704.65 amount for costs was included twice. Computation errors are appropriately addressed through a motion pursuant to Fed.R.Civ.P. 60, even where, as here, the case is on appeal. Brenner v. C.F.T.C., 338 F.3d 713, 721 (7th Cir 2003). The judgment should have been stated as follows: attorney fees in the amount of $54,391.00, plus costs of $3,704.65. Accordingly, contemporaneously with this order, we shall enter an Amended Judgment to incorporate this correction.
It is so ORDERED.