Summary: Plaintiffs Copper and Norberg sought attorneys fees and defendant Niemann sought relief from judgment pursuant to Rule 60. The court denied defendant’s motion, stating that it will not vacate a judgment the defendant specifically requested the Eighth Circuit to reinstate. As for attorney fees, the court noted the same were envisioned by the Eighth Circuit and are appropriately awarded to plaintiffs as the prevailing party. The court determined that fees up to and including May 10, 1995, the date of the first judgment, should be awarded, as well as fees incurred in preparing the motion for attorneys fees and responding to the Rule 60 motion.  The court awarded plaintiffs attorneys’ fees in the amount of $42,705.75 and costs in the amount of $3,454.51.

Case Name: Copper v. City of Fargo

Case Number: A3-93-130

Docket Number: 182

Date Filed: 3/29/02

Nature of Suit: 440

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

MEMORANDUM AND ORDER

            Before the court is plaintiff’s Post- Remand Motion for Attorney’s Fees (Doc. # 167), as well as defendant Kevin Niemann’s Motion for Relief from Judgment (Doc. # 171) pursuant to Federal Rule of Civil Procedure 60(b)( 4), (5), and (6). The procedural history of this case is well known and need not be repeated here. Accordingly the court will proceed directly to the motions, and will first quickly dispose of the latter.

            I.         Defendant Kevin Niemann’s Motion for Relief from Judgment.

            Defendant moves the court for relief from the judgment dated May 10, 1995 on three grounds: the judgment is void, it has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application, or the catchall, any other reason justifying relief from the operation of the judgment. In support of the motion defendant cites the fact that, before the second trial, this court reversed its opinion in regard to Niemann’s liability and dismissed the judgment against him, with prejudice. Defendant then argues, “Perhaps this Court’s dismissal of that claim could be considered relief from judgment pursuant to Rule 60, ... .” To this the court responds, “perhaps not.” Plaintiffs’ arguments opposing the motion hit the nail on the head-- defendant cannot now “request[] this Court to vacate a judgment which he expressly invited the Eighth Circuit to reinstate against him.” To do so would go crosswise of the Eighth Circuit, something this court does not wish to nor cannot do. The Eighth Circuit specifically stated, on numerous occasions, that the first trial resulted in the final judgment and the first judgment is the one to be enforced. Copper v. City of Fargo, 184 F.3d 994, 995 (8^th Cir. 1999). Although the judgment against Niemann does not comport with the law established by the Eighth Circuit in Veneklase v. City of Fargo, 78 F.3d 1264 (8^th Cir. 1966), it is nonetheless the law of this case according to the decision of the Circuit court. Therefore, without further ado, defendant’s Motion for Relief from Judgment (Doc. # 171) is DENIED.

            II.       Plaintiff’s Post Remand Application for Attorney Fees and Costs.

            In its opinion reversing the entry of the second judgment, finding this court lacked jurisdiction to proceed with the second trial, the Eighth Circuit not only reinstated the first judgment entered May 10, 1995, but also remanded the action to this court for a determination and award of appropriate attorneys’ fees. Id. at 998-99. In their application for attorneys’ fees following remand plaintiffs seek the full amount awarded by this court in its order dated March 31, 1998, plus additional fees for counsel’s appellate and post-remand work. In response defendant Niemann requests the court not order him to pay any fees and costs, arguing the facts simply do not justify attorney fees, he is entitled to Rule 60 relief from the judgment, the later finding of qualified immunity would preclude an attorney fee award, and given the nominal amount of the May 10, 1995 judgment, the only reasonable fee is no fee at all. (Doc.# 170).

            The Eighth Circuit fully envisioned an award of attorney fees when it remanded this case. Accordingly, the overriding issue is not whether there should be an attorney fee award, but how much. This court’s earlier opinion awarding a substantial fee award to plaintiffs discusses at length defendant’s argument that plaintiffs’ victory resulted in only nominal damages, and that nominal damages do not justify a fee award. In addition, the opinion recognizes the public benefit realized by challenging unconstitutional action by a public body or official, supporting an award commensurate with the degree of success. This same rationale applies to the current application for fees. Plaintiffs’ constitutional victory is far more important than the damages awarded in either the first or second trial. Thus, defendant’s arguments are dismissed out of hand. However, before addressing the specific amount to be awarded, the court would be remiss to leave on the record what might appear to be silent acquiescence in plaintiffs’ counsel’s inappropriate and somewhat vicious remarks about judges of the Eighth Circuit. The court is disappointed counsel has chosen to attack the proceedings in this manner when, as noted in this court’s order dated March 31, 1998, counsel previously handled this case in a highly professional and skillful manner, and remained “focused on the issues at hand.” This court has at no time viewed this case as anything other than an important First Amendment case involving the exercise of the right of free speech on public sidewalks in a residential neighborhood, not as a case about “abortion jurisprudence,” as plaintiffs’ counsel brands the Eighth Circuit decision. The fact that plaintiffs are opponents of abortion is entirely irrelevant. It is in this vein the court addresses the pending fee application.

            The mandate of the Eighth Circuit is clear that the amount of attorney fees is to be determined “in light of the damages awarded by the first jury verdict.” In addition, the opinion states that “each party is responsible for their own fees and costs on appeal.” Thus, an appropriate award would be one which addresses matters preceding and immediately following the first trial, as well as plaintiffs’ efforts in defending the current Rule 60(b) motion and in making this current application for attorney fees. The court does not accept plaintiff’s invitation to “impute” a higher damage award as a basis for the attorney fee award. This court does find, however, that plaintiffs were the prevailing party as to the first trial and are entitled to recover reasonable attorney fees.

            The first trial ended on January 13, 1995. A supplemental order addressing municipal liability was entered on April 11, 1995, and judgment was entered on May 10, 1995 on both the jury verdict against defendant Niemann and the supplemental order relating to the city. Plaintiffs timely filed a motion for new trial on the issue of damages only. This court denied that motion on August 14, 1995. Plaintiffs submitted a timely notice of appeal on September 12, 1995, but retracted it in favor of the new trial on the issue of damages and liability. Thus, it is the court’s opinion that it had jurisdiction through September 12, 1995, and time spent until that date can be legitimately claimed. That is not to say that all of the time will be awarded.

            The logical starting point in this fee determination is this court’s order dated March 31, 1998. The scope of this award encompassed everything pre and post first trial, including the second trial and subsequent motions. Clearly this calculation of fees and costs is not the appropriate measure at this juncture in the proceedings, as is aptly, albeit belatedly, recognized by plaintiffs in their reply brief to the motion for fees and costs. But, the earlier order awarding fees stands in terms of its finding of reasonableness of the hourly rates charged by the respective counsel and paralegal. In addition, this court’s discussion of the amount of time expended and its finding that on the whole the time spent by plaintiffs’ counsel on this case appears reasonable still applies. Finally, all of the court’s responses to defendant’s criticism’s of plaintiffs’ initial fee application and resulting rulings thereon continue with full force and effect as to the current application.

                        A.        Attorney and Paralegal Fees.

            With this premise in mind the court has undertaken the arduous task of determining how much of the fees and costs claimed by the plaintiffs was incurred prior to the entry of the judgment following the first trial, May 10, 1995. The court will begin with the fees claimed by the lead attorney, Thomas Condit.

            In his first fee application Mr. Condit sought the amount of $46,257.50. The court finds that the first five itemized areas of activity are acceptable as to content and time, whereas the remaining time relates to activity that is not compensable. Thus, the court makes the following award:  

         This court’s March 1998 order contains an extensive discussion concerning Mr. Condit’s travel time during which no work was being performed. The court concluded that compensating counsel for this nonworking time at his full hourly rate would be unreasonable, and allowed a half rate of $75.00 per hour for nonworking travel time. The court searched counsel’s time records to glean all travel time expended prior to May 10, 1995 and found four time entries; on 11/30/94 for a total of 4.5 hours, 1.75 of which was working time, 12/2/94 for a total of 4 hours, 1.6 of which was working time, 1/9/95 for a total of 4.5 hours, of which .75 was working time, and 1/14/95 for a total of 3.75 hours. Counsel will be compensated for the nonworking travel time of 11.65 hours at a reduced rate of $75.00 hour. Thus, the amount of $873.75 is subtracted from $28,162.50, and the amount of $281.25 is added in, for a total award of $27, 570.00 for Mr. Condit’s time prior to the May 10, 1995 judgment.

            The court similarly reviewed the affidavits of the remaining counsel and paralegal to determine the amount of time expended prior to the entry of the judgment on the first trial. Mr. Madlom’s time of 60.6 hours, less the 6.0 previously reduced by the court, for a total of 54.6 hours was incurred entirely before May 10, 1995. Therefore, the amount of $5,460 is allowed. Peter Crary came on the scene relatively late in the action, on March 3, 1995. By the court’s calculations, Mr. Crary expended a mere 7.3 hours between March 3, 1995 and May 11, 1995. At an hourly rate of $105.00, the court allows a fee award to Mr. Crary in the amount of $766.50. Finally, the court calculated the time that paralegal Martin Wishnatsky expended on the case between July 24, 1993 and May 3, 1995 and arrived at a total of 66.35 hours. At a rate of $55.00 per hour, the court allows a fee award of $3,649.25.

                        B.        Other Post Remand Activity.

            Attorney Condit seeks reimbursement for fees incurred post remand in the amount of $742.50. The court has examined the time entries for this period and finds that .95 hours would be appropriately compensable, as this time is directly addressed to this court. Accordingly, the amount of $142.50 is allowed.

                        C.        Response to Rule 60(b) Motion.

            Defendant’s Rule 60(b) motion to vacate or otherwise set aside the judgment relates to the judgment reinstated by the Eighth Circuit and is the very judgment on which this fee award is based. Accordingly, the time spent by plaintiffs’ counsel to ensure the judgment’s continued viability was crucial and is appropriately compensated. According to Mr. Condit’s supplemental affidavit (Doc. # 177), he devoted 5.05 hours to his response to the Rule 60(b) motion. The court finds this to be a reasonable length of time. Therefore, the amount of $757.50 is allowed. In addition, Mr. Wishnatsky filed a supplemental affidavit to the fee application in which he states he expended a total of 20.25 hours primarily responding to the Rule 60(b) motion, but also preparing the supplemental post-remand fee application (Doc. # 178). The court also finds this amount to be reasonable and allows the additional sum of $1,113.75.

                         D.        Post Remand Attorney Fee Application.

            The final component of the attorney fee award is plaintiffs’ application for fees. The court determines that, because this court apparently did not have jurisdiction to consider the first application, only the time for the most recent application is compensable. This application was certainly made easier by the existence of the earlier application, an unexpected benefit to the defendant. Mr. Condit seeks a total of $2,380, which sum represents time spent in preparing the application of 23.8 hours at a reduced rate of $100 per hour. This amount is allowed. In addition, Mr. Wishnatsky seeks reimbursement for 15.75 hours at a rate of $55 per hour, for a total amount claimed of $866.25. This time is also reasonable and is allowed. Therefore, the total award for making this application for attorney fees is $3,246.25.

                        E.        Costs through and including May 10, 1995.

            This court’s order dated March 31, 1998 allowed virtually all of the costs requested by the plaintiffs, save for overtime for secretarial help and Mr. Condit’s attorney admission fee. The court is again inclined to accept plaintiffs’ cost statements, but limit it as to scope. Thus, the court will allow costs in the amount of $3,454.51, which sum represents costs incurred by Mr. Condit through May 10, 1995 in the amount of $2,823.51 (all costs except overtime and admission fee through May 10, 1995), Mr. Crary’s costs of $28.55, and Mr. Madlom’s costs in the sum of $602.45. Post judgment litigation costs except for those directly associated with responding to defendant’s Rule 60(b) motion and plaintiff’s post remand attorney fee application are not allowed for reasons previously stated.

             III.      Conclusion.

            The court finds that plaintiffs are entitled to an award of attorneys’ fees in the amount of $42,705.75 and costs in the amount of $3,454.51.

            IT IS ORDERED that defendant Niemann’s Motion for Relief from Judgment (Doc. #171 ) is DENIED. IT IS FURTHER ORDERED that plaintiffs’ application for fees and costs (Doc. #167 ) is GRANTED in part and DENIED in part. Plaintiffs shall be awarded attorneys’ fees and costs in the amount of $ 46,160.26.

            Dated this ______ day of March, 2002.

________________________________________
Karen K. Klein
United States Magistrate Judge