Opinion
CIVIL ACTION No. 03-2041-CM
January 9, 2004
MEMORANDUM AND ORDER
On January 24, 2003, plaintiff's filed a Verified Petition and Motion for Restraining Order against defendant City of Shawnee (the City) in Johnson County District Court seeking, among other things, an order enjoining the City from enforcing certain municipal ordinances (the Ordinances) pertaining to deed restrictions governing the SaddleBrooke subdivision. On that same date, the Honorable Thomas E. Foster issued a Restraining Order enjoining the City from enforcing the Ordinances as to the deed restrictions. The City thereafter removed the case to federal court, whereupon this court issued a Temporary Restraining Order (Doc. 14) enjoining the City from enforcing the Ordinances. On April 1, 2003, this court held a hearing on plaintiff's Motion for Preliminary Injunction (Doc. 4). On May 22, 2003, the court issued an order (Doc. 31) (the May 2003 Order) granting plaintiff's motion for preliminary injunction. The court subsequently amended the May 2003 Order (Doc. 41). Both parties then moved for summary judgment. On October 2, 2003, the court granted plaintiff's' Motion for Summary Judgment (Doc. 32), denied defendant's Cross Motion for Summary Judgment (Doc. 46), thereby permanently enjoining the City from enforcing Ordinance 2655, subsection (b), and further ordered plaintiff's to submit to the court an itemized accounting of attorneys' fees allegedly due and owing. This matter is before the court on plaintiff's' Statement of Fees and Costs Pursuant to Section 1988 (Doc. 56).
Plaintiff's contend in their fee statement that they have incurred attorneys' fees of $88,426.50 prior to preparing the fee application, plus $6,304.40 in out of pocket expenses. In addition, plaintiff's request $1,202.50 for the preparation of the fee application, for a total of $95,933.40.
I. Standards
42 U.S.C. § 1988(b) provides that, in certain federal civil rights actions, including those brought pursuant to 42 U.S.C. § 1983, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). Along with the fees and expenses allowed under § 1988, a prevailing party in a civil rights action is normally entitled to costs under 28 U.S.C. § 1920. See Jane L. v. Bangerter, 61 F.3d 1505, 1517 (10th Cir. 1995). A plaintiff who "`succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit'" is a "prevailing party," Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). The parties do not dispute that the plaintiff's in this case were prevailing parties under the statutes.
II. Discussion
One of the billing attorneys in this action, Rachel Ruben, is a resident of the Saddlebrooke subdivision and a member of the Saddlebrooke Homeowners Association as well as a plaintiff in a related state court action entitled Faltermeier, et al. v. Sultani, Case No. 02CV07830. In addition, two of the billing attorneys, Michael Abrams and Tammy Somogye, were attorneys of record in both cases. Defendant contends that those charges attributed to Ms. Ruben should be disallowed and that those charges involving any other billing attorney performing work on research or strategy concerning litigation involving the Ordinance should be reduced because, defendant claims, such work performed also applied to the Faltermeier action. Defendants finally argue that the expenses should be reduced because there is insufficient backup documentation to demonstrate that those expenses are attributable to this case.
A. Rachel Rubin
In the instant action, Rachel Ruben billed 12.8 and 189 hours in 2002 and 2003, respectively. Defendant argues that these hours should be disallowed in their entirety because Ms. Ruben was essentially performing work to advance her case against the City and that, as a result, Ms. Ruben's participation in the instant case is akin to an attorney representing herself pro se.
An attorney appearing pro se is not entitled to receive attorneys' fees under § 1988, even if the claim is successfully litigated. Kay v. Ehrler, 499 U.S. 432, 438 (1991). The court is aware that Ms. Ruben is not a named plaintiff in the instant action. Yet, the court is troubled by her participation as a named plaintiff in the Faltermeier action.
The plaintiff's in Faltermeier filed their Verified Petition on November 19, 2002. The court has reviewed that Verified Petition, wherein the named plaintiff's, members of the Saddlebrooke Homeowners Association, brought suit against defendant Wali Sultani, a builder allegedly in the process at that time of installing an asphalt shingle roof on a structure located on Lot 14. The plaintiff's in Faltermeier sought injunctive relief to enforce the Saddlebrooke deed restrictions, which prohibited asphalt shingle roofs. Ms. Ruben and others, which included the plaintiff's in the instant action, were named plaintiff's in Faltermeier. Thereafter, plaintiff's Laura and Marty Mease filed the instant action naming the City as the sole defendant. plaintiff's simultaneously filed a Motion to Consolidate the two actions, arguing that the two actions involve common questions of law-whether the Ordinance is constitutional and whether Saddlebrooke's deed restrictions are valid.
The court believes that Faltermeier and the instant action are so closely related that Ms. Ruben was, in essence, acting pro se in the instant action. Ms. Ruben's time spent on this case directly affected the outcome in Faltermeier. In other words, as soon as this court rendered the Ordinance unconstitutional, Ms. Ruben was entitled to the injunctive relief she sought in Faltermeier. Thus, notwithstanding the technicality of solely naming Laura and Marty Mease here, the court considers Ms. Ruben in essence a plaintiff in this case for purposes of awarding attorneys' fees. As such, Ms. Ruben's billable time is attributable to an attorney acting pro se. Therefore, under Kay, those fees attributable to Ms. Ruben, totaling $32,265.00, are disallowed.
B. Billable Time Spent on Faltermeier
Defendant argues that those billing entries attributable to Tammy Somogye and Michael Abrams involving research or strategy on the common legal issue of constitutionally of the Ordinance should be reduced to reflect the benefit of the work on Faltermeier. plaintiff's contend the time and expenses incurred on the Faltermeier case were billed to those plaintiff's, and the time and expenses incurred in the this matter were accounted to the Mease plaintiff's. The court has reviewed the billing records and concludes that, on their face, no time and expenses incurred on the Faltermeier case were billed to the plaintiff's in this case.
However, even if a portion of time attributable to the instant case benefited the plaintiff's in Faltermeier, the court would find such fees appropriate under § 1988. See Lampher v. Zagel, 755 F.2d 99, 102-103 (7th Cir. 1985) (holding that awarding attorneys fees for time spent in state court testing the same constitutional question "would further cooperation between state and federal courts in the protection of federal constitutional rights and that otherwise serious strains between the federal and state federal court systems might develop and encourage forum shopping"); see also Exeter-West Greenwich Regional School Dist. v. Pontarelli, 788 F.2d 47, 51-52 (1st Cir. 1986) ("There is solid precedent for allowing fees under § 1988 for work done in a state court."). The court declines on this basis to reduce the billable time attributable to Tammy Somogye and Michael Abrams.
C. Lack of Documentation
Finally, defendant argues that plaintiff's' expenses should be reduced due to lack of documentation. Defendant fails to specify how these expenses are improperly documented. In fact, these expenses were individually itemized by category and are objectively reasonable for a case of this complexity. The denies defendant's request to reduce plaintiff's' expenses.
IT IS THEREFORE ORDERED that plaintiff's' are awarded $56,161.50 for attorneys' fees, $6,304.40 for expenses, and $1,202.50 for the preparation of the fee application. In total, the court hereby awards plaintiff's $63,668.40.