United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
17, 2017, the Court issued an order dismissing this action
for lack of subject-matter jurisdiction. Novoselsky v.
Zvunca, Case No. 17-CV-427-JPS, 2017 WL 3025870, at *1
(E.D. Wis. July 17, 2017). Defendants Jeanine L. Stevens and
F. John Cushing, III (collectively, “Defendants”)
then filed a motion for sanctions against Plaintiff David
Alan Novoselsky (“Novoselsky”). (Docket #35). The
Court granted that motion in an order dated December 29,
2017, finding that Novoselsky's filings in this case were
frivolous and deserving of sanctions pursuant to Federal Rule
of Civil Procedure 11. (Docket #42).
Court awarded Defendants their reasonable attorney's fees
and expenses incurred in this case-excluding any fees or
expenses incurred in connection with the sanctions request
itself-and directed the parties to submit supplemental
briefing on the appropriate amount of the award. Id.
at 20-22. That briefing has been submitted, and the Court now
arrives at the final fee award for Defendants.
DEFENDANTS' FEE PETITION
Court noted in its prior order, a district court enjoys broad
discretion in arriving at a sanctions award that it believes
will deter future violations of Rule 11 by the violator and
others like him. See Divane v. Krull Elec. Co., 319
F.3d 307, 314 (7th Cir. 2003); Fries v. Helsper, 146
F.3d 452, 459 (7th Cir. 1998); Brandt v. Schal Assoc,
Inc., 960 F.2d 640, 645 (7th Cir. 1992). When
attorney's fees are awarded under Rule 11, the Seventh
Circuit applies the teachings of Hensley v.
Eckerhart, 461 U.S. 424 (1983), to this determination,
Divane, 319 F.3d at 317. “Under
Hensley, the starting point in a district
court's evaluation of a fee petition is a lodestar
analysis; that is, a computation of the reasonable hours
expended multiplied by a reasonable hourly rate.”
Id. (citing Hensley, 461 U.S. at 434).
While the lodestar figure can be adjusted where the
circumstances warrant it, “[t]here is a strong
presumption that the lodestar calculation yields a reasonable
attorneys' fee award.” Pickett v. Sheridan
Health Ctr., 664 F.3d 632, 639 (7th Cir.
matter of reasonable rate, courts normally use the
attorney's actual billing rate for similar litigation as
a representation of the market rate for the services.
Id. The fee applicant bears the burden of proving
that his rate is reasonable. Id. While fights often
arise over a comparison between the counsel's rate and
comparable rates charged by others in the community,
Novoselsky does not dispute the $300 per hour rate of
Defendants' counsel. (Docket #45 at 1).
parties' dispute instead focuses on the reasonableness of
the claimed hours. In determining the reasonable number of
hours expended, a court should exclude hours that are
“excessive, redundant or otherwise unnecessary.”
Hensley, 461 U.S. at 434. In this vein, counsel for
the fee applicant is expected to exercise “billing
judgment” when presenting their bill to the court, by
“winnowing the hours actually expended down to the
hours reasonably expended.” Spegon v. Catholic
Bishop of Chicago, 175 F.3d 544, 552 (7th Cir. 1999)
(quotation omitted). The “winnowing” process
involves excluding not only hours “that would normally
not be billed to a paying client, but also those hours
expended by counsel on tasks that are easily delegable to
non-professional assistance.” Id. at 553. This
principle is sometimes characterized as an antecedent duty to
mitigate fee expenditures. Dubisky v. Owens, 849
F.2d 1034, 1037 (7th Cir. 1988). This means that
“[c]ounsel must mitigate [his] damages by correlating
his response, in terms of hours and funds expended, to the
merit of the claims.” Id. (quotations
lodestar figure is calculated, the court may “adjust
that figure to reflect various factors including the
complexity of the legal issues involved, the degree of
success obtained, and the public interest advanced by the
litigation.” Schlacher v. Law Office of Phillip J.
Rotche & Assoc., P.C., 574 F.3d 852, 856-57 (7th
Cir. 2009). In doing so, the court must “provide a
clear and concise explanation for its award, and may not
‘eyeball' and decrease the fee by an arbitrary
percentage because of a visceral reaction that the request is
excessive.” Id. at 857.
have submitted a request for $16, 050 in attorney's fees.
(Docket #44). They report that this amount represents
substantial self-editing of their counsel's timesheets,
including seeking recompense for only one of their two
lawyers and declining to seek fees for work performed that
was not ultimately presented to the Court. See Id.
at 2-4. The sought-after amount includes, primarily, review
of Novoselsky's complaint, legal research, telephone
calls with other co-counsel regarding litigation strategy,
and preparation of the motion to dismiss and the reply brief
relating thereto. See (Docket #44-1 at 2-4). In
total, Defendants seek payment for 53.5 hours of work (at
counsel's above-stated, unchallenged rate of $300 per
hour). Id. at 5. They believe that their
counsel's fee, which approximates a week's worth of
work over a four-month period and a little over a tenth of
the $100, 000 amount in controversy stated in the complaint,
is reasonable. Id. at 4-5.
does not seek to nitpick counsel's time records. (Docket
#45 at 1). Instead, he relies upon an order of the Seventh
Circuit, previously referenced in the Court's order on
the motion for sanctions, in which the appellate court
substantially cut Defendants' lawyer's time in
awarding fees for Novoselsky's frivolous appeal in MB
Financial, N.A. v. Stevens, No. 11-2603. See
Id. at 2-3. The court stated that because the appeal was
frivolous, it should not have cost over $40, 000, the amount
requested, to defend it. (Docket #39-2 at 2). That was well
above the fee award in the district court. Id.
Moreover, counsel claimed to have spent nearly three billable
days preparing for a 15-minute appellate argument, which the
court found indicative of “padding.” Id.
In the end, the Seventh Circuit awarded as an appellate fee
half the underlying fee award in the district court.
Id. For Defendants' counsel in this case, that
came to $5, 000. Id.
that appeal, Novoselsky alleges that here that counsel's
claimed time is disproportionate to the needs of the case.
(Docket #45 at 3). First, conceding the frivolousness of this
action, he says that it should have taken less time to defend
against his frivolous complaint as opposed to one that might
have had merit. Id. Thus, Novoselsky believes that
an award of three times the amount awarded to this lawyer in
the Seventh Circuit appeal is too much.
second argument is that certain time entries belie the same
padding that the Seventh Circuit detected in
Stevens. For instance, counsel purports to have
spent over twenty-five hours on legal research, drafting, and
conferences with co-counsel in preparing Defendants'
motion to dismiss and the accompanying Rule 11 safe-harbor
letter. Id. at 4-5. (Defendants' counsel did not
seek compensation for the time expended actually preparing
that letter.) Novoselsky points out that if twenty-six hours
were needed to carefully research and determine that the
complaint was frivolous, the remaining twenty-seven hours of
time were cumulative and unnecessary. Id. As such,
Novoselsky contends that the Court should use the Seventh
Circuit's fee award of $5, 000 in Stevens as a
ceiling for its award in this case. Id.
reply that the Seventh Circuit's Stevens
decision reflects the principle that a frivolous appeal is
easier to defeat than a frivolous action in the district
court. (Docket #49 at 1). Because counsel was engaged in
trial court litigation in this instance, the appellate fee
award is not comparable. Id. Next, Defendants argue
that their time expenditures after the motion to dismiss were
reasonably related to Novoselsky's numerous
post-complaint filings, which required research, conference,
and response. Id.
Court, having carefully reviewed counsel's time records
and the relevant authorities, finds that a reasonable fee
award in this case is $12, 000. As to Novoselsky's first
challenge-that the Stevens case should be a guiding
light here-the Court finds both parties' positions to
miss the mark. True, as Defendants contend, the Seventh
Circuit was primarily concerned with appellate fees exceeding
those expended in the district court. But at least part of
the Seventh Circuit's point in Stevens was also
that defending against frivolous cases should be easier and
less time-consuming than defending against those with a
modicum of merit. Other Seventh Circuit decisions buttress
this view. See Kathrein v. Monar, 218 F. ...