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Silent settlement doesn't include fees, costs

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A federal judge rejected a northern Indiana sheriff's argument that a settlement agreement in a civil rights case includes attorney's fees and costs when the agreement doesn't say anything on the issue.

In a Dec. 30 order from Chief Judge Robert L. Miller Jr. of the U.S. District Court, Northern District of Indiana, South Bend Division, St. Joseph County Sheriff Frank Canarecci Jr. claimed a $75,000 settlement reached between the sheriff and the relatives of a jail inmate who killed himself included attorney's fees for the plaintiffs even though the settlement stated nothing about the matter.

Relatives of inmate Gregory Zick sued Canarecci and 26 other defendants in 2005 after Zick committed suicide while in jail in 2003. Summary judgment was granted to all the defendants on the federal claims, except for an Eighth Amendment claim against Canarecci. The parties settled in the summer of 2009 before the issue went to trial. Cathy Minix and Steven Zick, Gregory Zick's mother and brother, filed a motion for nearly $745,000 in attorney's fees and costs.

Chief Judge Miller denied Canarecci's motion to strike in Cathy Minix and Steven Zick v. Sheriff Frank Canarecci Jr., et al., No. 3:05-CV-144, because there was no evidence the parties' settlement was intended to include attorney's fees and costs. Canarecci argued that a court could assume a settlement agreement in a civil rights case that didn't spell out attorney's fees and costs automatically included them in the settlement. Chief Judge Miller noted the 7th Circuit Court of Appeals has yet to take up this question.

"To assume that an agreement such as this one was meant to include attorney's fees and costs would run counter to Congress' policy of awarding attorney's fees to private attorneys general," wrote Judge Miller.

The judge also rejected the request for almost $750,000 in attorney's fees and costs because the plaintiffs' application fell below the level of specificity required by Hensley v. Eckerhart, 461 U.S. 434. The plaintiffs weren't specific enough in the amount of hours worked by the attorneys or expert witness fees on only the Eighth Amendment claim. Chief Judge Miller allowed the plaintiffs leave to re-file their motion within 10 days of the order "with a more reasonable request and with more reliable yardsticks by which the court may determine their award."

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  1. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

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