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Friday, July 24, 2015

Ind. Decisions - 7th Circuit decides one Indiana case today

In Katherine Cerajeski v. Greg Zoeller (SD Ind., Magnus-Stinson), a 6-page opinion, Judge Posner writes:

This appeal is a sequel to our decision reported at 735 F.3d 577 (7th Cir. 2013), in which we held unconstitutional a provision of the Indiana Unclaimed Property Act, Ind. Code §§ 32-34-1-1 et seq. (Indiana’s version of the Uniform Unclaimed Property Act) that authorized the state to confiscate private property without any compensation—let alone just compensation—to the owner. [ILB: See ILB summary of the 2013 opinion.] * * *

So the case returned to the district court. Several months later the state, having in response to our decision amended its Unclaimed Property Act to provide for payment of inter-est on property to which the owner had made a valid claim, Ind. Code §§ 32-34-1-9.1, 32-34-1-30 (effective July 1, 2014), moved to dismiss the suit as moot. The plaintiff, objecting, asked the district court, pursuant to our judgment, to enter a declaratory judgment and also to award the attorneys’ fees incurred in prosecuting the appeal that had resulted in our judgment. (The plaintiff is not seeking an award of fees for any other part of the litigation in either the district court or this court.) The district judge refused, dismissed the suit as moot, and later denied the motion for attorneys’ fees primarily on the ground that, the suit having been dismissed, the plaintiff was not a prevailing party. The plaintiff has appealed.

The district judge was annoyed at the plaintiff because on remand from our court she’d asked permission to file an amended complaint that would have converted the suit to a class action. She did that because of intimations that the state would, despite our decision, compensate only the plaintiff, forcing the multitude of similarly situated creditors to bring their own suits. But she withdrew that request (as distinct from her request for an award of attorneys’ fees) when the state amended the Unclaimed Property Act. For the amendment mooted her federal claim for damages by entitling her to payment by the state of the interest that she had sought in her lawsuit.

By amending the statute the state conceded that it owed the interest to the plaintiff. But its concession could not deprive the plaintiff of her status as the prevailing party in the litigation. Our decision had preceded the amendment of the statute and by holding that she was entitled to damages equal to the unpaid interest had made her the prevailing party. See National Rifle Association of America, Inc. v. City of Chicago, 646 F.3d 992, 994 (7th Cir. 2011). She would not have been the prevailing party had the state, as in Zessar v. Keith, 536 F.3d 788, 797 (7th Cir. 2008), amended its law before our decision—that would have mooted the case and we would have had to dismiss it for want of jurisdiction, thus not deciding the merits and not ordering any relief. * * *

Even if our holding in the previous round that the plaintiff was entitled to just compensation in a suit under section 1983 (or perhaps in any federal suit) was incorrect and the challenge to it not waived by not being made in our court, the plaintiff nevertheless had obtained a judgment which compelled a change in state law that gave her compensation equal to the damages she was seeking, and it was a result brought about by the efforts of her lawyers. * * *

We therefore reverse the judgment of the district court and remand the case for a determination of the amount of attorneys’ fees to which the plaintiff is entitled. We offer the tentative view that the amount sought—$258,462.50 for 375.75 hours—is excessive, both in the amount of time for which fees are sought and in the average hourly billing rate ($687.86). Remember that this was just time spent on the appeal (the first, not the present, appeal), and the high average billing rate implies that few junior members of the two law firms who handled the appeal for the plaintiff could have been assigned to work on the appeal. In fact it appears that law-firm partners billed more than 93 percent of the total hours billed.

The plaintiff asks us to determine the amount of attorneys’ fees to which she is entitled, but we think it a task better left to the district court.

ILB: A look at the docket shows that Ms. Cerajeski's attorneys' firms are located in Chicago.

Posted by Marcia Oddi on July 24, 2015 04:47 PM
Posted to Ind. (7th Cir.) Decisions