BENTON – Former U.S. district judge Patrick Murphy and colleague Shari Rohde deserve nothing for a $2,500 jury verdict or deserve less than the $190,027.31 they seek, Mounds police officer Dustin Turska argued in district court on June 13.
Turska’s lawyer, Joseph Bleyer of Marion, rejected Murphy’s argument that he and Rohde qualify for a fee award because plaintiff Terry Ditterline prevailed at trial.
Bleyer wrote that in 1999, Seventh Circuit appellate judges stated that a litigant who wins less than 10 percent of his demand is not a prevailing party.
“The difference between the judgment recovered and the recovery sought is enormous and this alone provides for the denial of attorney’s fees,” he wrote.
Bleyer also wrote that three plaintiffs from Ditterline’s family didn’t prevail against any of three Mounds officers they sued.
He calculated the fee request at 76 times the verdict and 19 times the last settlement offer from defendants.
“The Seventh Circuit would never allow such an award on these facts,” he wrote.
Ditterline, wife Delana, and sons Bryan and Brandon sued the Mounds police department and chief Lloyd Bosecker in 2015, alleging excessive force.
They sued Mounds officers Kitisha Ray, Lyle Womack and Turska, as well as Pulaski County sheriff’s office and deputy Kent Ray.
They moved for appointment of counsel, and Senior District Judge Phil Gilbert denied it.
The family retained Rohde, of Carbondale, in 2016.
Last year, they settled with Mounds, the sheriff’s office, and deputy Ray.
On Dec. 7, Gilbert granted summary judgment dismissing Bosecker.
On Dec. 12, Murphy entered an appearance for the Ditterlines.
Officers Turska, Ray, and Womack stood trial for two days in March.
Jurors cleared Ray and Womack of all claims, and cleared Turska of all claims except that of Terry Ditterline.
Jurors awarded Terry Ditterline $500 in compensatory damages and $2,000 in punitive damages.
Murphy moved for a fee award at $500 an hour for himself, $400 for Rohde last year, and $500 for Rohde this year.
“Without such an award, no attorney is likely to represent plaintiffs whose constitutional rights were violated but where the damages may be relatively small and the time and the resources of the attorneys it takes to vindicate these violations very costly,” Murphy wrote.
In response, Bleyer called the trial a simple matter that didn’t require the expertise of two trial attorneys.
Bleyer wrote that in March 2017, Rohde called seeking to settle before discovery.
He wrote that on behalf of all defendants, he offered $5,000. He wrote that plaintiffs, through Rohde, demanded $150,000.
He wrote that in August, after depositions, plaintiffs settled with the sheriff’s office and deputy Ray for $5,000.
He wrote that the fight between Kent Ray and Terry Ditterline was the only hand to hand combat between any of the plaintiffs and defendants.
He wrote that by Ditterline’s testimony, Ray inflicted the most pain on him.
He further wrote that the Mounds defendants offered $5,000 on Aug. 10 and plaintiffs, after deposing Kitisha Ray, demanded $25,000.
On Dec. 28, the Mounds defendants offered $10,000, and plaintiffs didn’t respond.
Bleyer wrote that the most important factor in awarding fees is the degree of success.
“Plaintiffs’ rejection of larger amounts in settlement negotiations clearly shows that this factor weighs against an award of fees,” he wrote.
He wrote that the case presented no new theory of constitutional importance.
He called it nothing more than a squabble between the family and Bosecker.
In case Gilbert should order an award, Bleyer proposed ways to reduce it.
He wrote that fees should be limited to Terry Ditterline’s claim and denied for claims of the losing plaintiffs.
Bleyer proposed to deny Murphy’s hours or Rohde’s hours after Murphy entered.
He compared the 495 hours in their motion to 249 hours he spent on the case, and accused Rhode of double billing for 43.8 hours of trial preparation.
He wrote that it should indicate to the court that the fees are excessive.
He wrote that plaintiffs’ case lasted two hours and 20 minutes, and that Terry Ditterline’s testimony lasted 37 minutes.
According to Bleyer, depositions were reviewed for more than 70 hours, nine times as long as the depositions took.
He challenged the hourly rates, writing that neither Murphy nor Rohde attached a contract with Terry Ditterline or comparable billings in similar cases.
Magistrate Judge Stephen Williams has set a settlement conference on fees July 5.
Murphy, of Marion, presided in district court from 1998 to 2013.