Consolidated Paving Inc v. County of Peoria, Illinois
Filing
48
ORDER & OPINION entered by Judge Joe Billy McDade on 3/7/13. For the foregoing reasons, Plaintiff is entitled to attorneys' fees and costs as the prevailing party in this litigation. However, the amount awarded must still be determined as outlin ed in this Order, and the Court would encourage efforts to settle this matter. IT IS THEREFORE ORDERED that Plaintiff's Petition for Fees 45 is TAKEN UNDER ADVISEMENT. Defendant SHALL file a brief detailing its objections to specific fee requests within fourteen days of the date of this Order. Plaintiffs MAY then file a brief in response within fourteen days of service of Defendant's brief ( Miscellaneous Deadline 3/21/2013). SEE WRITTEN ORDER. (AEM, ilcd)
E-FILED
Friday, 08 March, 2013 11:59:55 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CONSOLIDATED PAVING, INC., an
Illinois Corporation
Plaintiff,
v.
COUNTY OF PEORIA, ILLINOIS
Defendant.
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Case No. 10-cv-1045
ORDER & OPINION
This matter is before the Court on Plaintiff’s Motion for Fees and Costs (Doc.
45). Defendants filed a Response in opposition (Doc. 47). For the reasons stated
below, Plaintiff’s Motion is taken under advisement pending further briefing by
both parties.
BACKGROUND
Plaintiff filed the present case seeking “declaratory, injunctive, and further
relief,” challenging Peoria County ordinances governing the use of paving materials.
(Doc. 1). Plaintiff’s Amended Complaint concerns the ordinance as amended on
April 8, 2010, requiring that asphalt paving material be produced at a plant
certified by the Illinois Department of Transportation (IDOT) and that asphalt
paving material meet all IDOT specifications. (Doc. 14 at 7). Failure to comply
would result in penalties including fines and construction permit denials. (See Doc.
14 at 7). On the same date as Plaintiff filed its Amended Complaint, it also filed
motions for both a temporary restraining order and a preliminary injunction.
On April 20, 2010, the Court granted Plaintiff’s Motion for Preliminary
Injunction and found Plaintiff’s Motion for Temporary Restraining Order moot.
(Minute Entry, Apr. 20, 2010; see also Doc. 21). In granting the preliminary
injunction, the Court found that Plaintiff had a substantial likelihood of success on
the merits. (Doc. 21 at 2). The challenged ordinance required all asphalt plants
producing asphalt in the unincorporated areas of Peoria County to be certified by
IDOT; however, the Court found that IDOT does not certify plants and thus
compliance with that component of the ordinance was impossible. (Doc. 21 at 2).
Further, the Court found that Plaintiff was likely to succeed on the merits because
the meaning of the ordinance requirement that the asphalt plants meet all IDOT
specifications was unclear. (Doc. 21 at 2). Thus, the Court determined that the
ordinance would likely be found unconstitutionally vague and would constitute a
taking of property without due process. (Doc. 21 at 2).
The Court also found that Plaintiff had no adequate remedy at law: if the
injunction were not granted, Plaintiff would have been forced to violate the law and
suffer sanctions and extreme loss of business or go out of business entirely, causing
irreparable harm from enforcement of the ordinance. (Doc. 21 at 2). The Court
enjoined Defendant from enforcing the challenged sections of the Peoria County
Code until further order of the Court. (Doc. 21).
On September 9, 2010, Peoria County adopted amendments to the ordinance,
replacing the existing language of the provisions challenged by Plaintiff. (See Doc.
26-1). In particular, the definition of contractor was narrowed such that Plaintiff
would no longer be regulated by the ordinance, the provision requiring the
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nonexistent IDOT certification was changed to instead require IDOT approval, and
the potentially vague language was amended. (See Doc. 26-1; Doc. 26 at 3-6). As a
result, the Court granted Defendant’s Motion to Dissolve Preliminary Injunction on
July 18, 2011. (Doc. 32). The Court determined that the September 9, 2010,
amendments rendered the preliminary injunction of the April 8, 2010, ordinance
moot, and that Plaintiff could no longer satisfy the requirements for a preliminary
injunction. (Doc. 32 at 4-5). In the same Order, the Court denied Plaintiff’s Petition
for Fees, in part because it was “premature in view of the continuation of the
litigation to definitely resolve the controversy.” (Doc. 32 at 7).
On October 24, 2011, Defendant filed a Motion for Judgment on the
Pleadings, arguing that Plaintiff’s Amended Complaint was moot. (Doc. 36). The
Court agreed that the case was moot, and consequently dismissed the Amended
Complaint for lack of subject-matter jurisdiction. (Doc. 44). In reaching this
conclusion, the Court explained that the provisions of the ordinance “that
constituted the source of this controversy have been replaced” and there was no
indication Defendant would reenact the challenged provisions. (Doc. 44 at 9-10).
PETITION FOR FEES AND COSTS
Plaintiff seeks attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, in the
amount of $88,917.35. Under 42 U.S.C. § 1988, a court, “in its discretion, may allow
the prevailing party” in certain enforcement actions, including actions under 42
U.S.C. § 1983, “a reasonable attorney’s fee.” 42 U.S.C. § 1988(b). Defendant, in its
Response, argues Plaintiff is not entitled to fees for two primary reasons. First,
Defendant argues Plaintiff’s Petition was untimely, as it was not filed within two
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weeks of the date the preliminary injunction was ordered. Second, Defendant
argues Plaintiff is not a “prevailing party” under 42 U.S.C. § 1988, so is not entitled
to fees.
I. Timeliness
Federal Rule of Civil Procedure 54 provides that “[u]nless a statute or a court
order provides otherwise” a motion for attorneys’ fees must be filed “no later than
14 days after the entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B). Defendant argues
the word “judgment” in Rule 54(d)(2)(B) means “a decree and any order from which
an appeal lies,” as defined in Rule 54(a). Because an order granting a preliminary
injunction is an order from which an appeal lies, Defendant concludes that it was a
judgment for purposes of Rule 54(d)(2)(B), and Plaintiff would have to have filed its
Petition for Fees within fourteen days of the Order granting Plaintiff a preliminary
injunction. (Doc. 47 at 5). Because it was not, Defendant argues that it was not
timely. (Doc. 47 at 5).
A logical reading of Rule 54, and the implications of attorneys’ fees precedent,
lead to the conclusion that Plaintiff’s Petition was not untimely. The Seventh
Circuit has noted “the need for flexibility and good sense in interpreting time limits
on attorney's fee petitions.” Smith v. Vill. of Maywood, 970 F.2d 397, 399 (7th Cir.
1992). Though Defendant’s reading may not be frivolous, good sense dictates that it
cannot be the correct meaning. “It simply makes little sense to require the
submission of petitions for attorney's fees before the legal work is done.” Id. at 399400. Further, an attorneys’ fees petition filed immediately after a preliminary
injunction would be premature, as this Court determined when denying Plaintiff’s
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previous Petition. (Doc. 32 at 7). This is particularly true because if a plaintiff is
awarded a preliminary injunction, but a final decision on the merits denies
permanent injunctive relief, that party is not a “prevailing party” for purposes of §
1988. Sole v. Wyner, 551 U.S. 74, 78 (2007). In dicta, the Court noted in reference to
a preliminary injunction that “[i]ts tentative character, in view of the continuation
of the litigation to definitively resolve the controversy, would have made a fee
request at the initial stage premature.” Id. at 84. In Seventh Circuit cases
discussing attorneys’ fees awards following a preliminary injunction, the discussion
is focused on whether the court is permitted to award an interim fee—there is no
indication that the final fee award must be completed at that time. See, e.g., Dupuy
v. Samuels, 423 F.3d 714, 719, 722 (7th Cir. 2005). In Dupuy, the court determined
even interim fees were inappropriate in cases where a preliminary injunction was
awarded but further proceedings on the merits were contemplated. Id. at 724. Thus,
requiring an attorneys’ fees petition to be filed within fourteen days of the
preliminary injunction would conflict with Dupuy.
Like in Dupuy, this case was not over after the preliminary injunction was
granted. The case proceeded and was set for trial, clearly indicating further
proceedings on the merits were anticipated. (See, e.g., Doc. 21). Undoubtedly, had
Plaintiff filed a fee petition immediately following the preliminary injunction,
Defendant would have accurately argued that Plaintiff’s prevailing party status
could not properly be determined at such an early stage of the litigation. Despite
Defendant’s arguments to the contrary, it would be absurd and would contradict
common sense and precedent to require a petition for fees to be filed before the bulk
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of the attorney work is completed and before the Court could have accurately
determined whether Plaintiff was even entitled to fees. Thus, Plaintiff’s Petition for
Fees was not untimely.
II. Prevailing Party
Defendant also challenges Plaintiff’s assertion that it is a prevailing party for
purposes of 42 U.S.C. § 1988. Defendant correctly notes that Plaintiff does not come
within the two categories of cases described in Buckhannon Bd. & Care Home, Inc.
v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001). In Buckhannon, the
Supreme Court rejected the “catalyst theory,” instead requiring a party to have
achieved a “judicially sanctioned change in the legal relationship of the parties” if it
is to be considered a prevailing party, such as a final judgment on the merits or a
consent decree. Id. at 605. However, these two categories are not exclusive, but
rather are examples of what makes a party a prevailing party under attorneys’ fees
statutes. See, e.g., Dupuy, 423 F.3d at 719. In Sole, Court held that “a plaintiff who
gains a preliminary injunction does not qualify for an award of counsel fees under
§ 1988(b) if the merits of the case are ultimately decided against her.” Sole, 551 U.S.
at 86 (emphasis added). However, the Court explicitly stated “[w]e express no view
on whether, in the absence of a final decision on the merits of a claim for permanent
injunctive relief, success in gaining a preliminary injunction may sometimes
warrant an award of counsel fees.” Id.
In the present case, the merits of Plaintiff’s claim were never decided by this
Court. Unlike a preliminary injunction that is “reversed, dissolved, or otherwise
undone by the final decision” in a case, id. at 83, this preliminary injunction was
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dissolved and the case dismissed because it was made moot by Defendant’s actions.
There was never a final decision on the merits. Rather, because Defendant showed
the amendments to the ordinance in question both made it no longer applicable to
Plaintiff and changed the language that caused the constitutional concerns, the case
was found moot and the merits were never reached. As such, it is not covered by the
holding of Sole, but is of a type of case on which the Supreme Court expressed no
opinion.
The Seventh Circuit has previously held that a plaintiff that was awarded a
preliminary injunction, even though the appeal was dismissed as moot, was a
prevailing party despite the court never reaching a judgment on the merits. Young
v. City of Chicago, 202 F.3d 1000, 1000-01 (7th Cir. 2000) (“A defendant cannot
defeat a plaintiff’s right to attorneys’ fees by taking steps to moot the case after the
plaintiff has obtained the relief he sought, for in such a case mootness does not alter
the plaintiff’s status as a prevailing party.”). Further, the court has indicated a view
in line with other circuits holding that a plaintiff who is granted a preliminary
injunction and whose case is subsequently mooted is a prevailing party. Dupuy, 423
F.3d at 723 n.4 (“[S]everal of our sister circuits have held that attorneys’ fees may
be awarded after a party has obtained a preliminary injunction and the case
subsequently has become moot. . . . [W]e follow the approach of the[se] circuits.”
(citing Select Milk Producers, Inc. v. Johanns, 400 F.3d 939 (D.C. Cir. 2005); Watson
v. Cnty. of Riverside, 300 F.3d 1092 (9th Cir. 2002), cert. denied, 538 U.S. 923
(2003); Taylor v. City of Fort Lauderdale, 810 F.2d 1551 (11th Cir. 1987)). In this
same footnote, the Seventh Circuit noted its “respectful disagreement” with a rule
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that a preliminary injunction can never be the predicate for interim attorneys’ fees.
Id.
In the cases cited favorably in Dupuy and others affirming attorneys’ fees
awards in similar cases, the circuit courts of appeals have found that a preliminary
injunction based in part on a determination of likely success on the merits is a
judicially sanctioned change in the relationship that satisfies Buckhannon. In
Johanns, the D.C. Circuit held that a preliminary injunction, as a court-ordered
change in the parties’ legal relationship, satisfied the prevailing party requirement;
subsequent actions by the defendant that made the case moot did not negatively
affect the plaintiff’s prevailing party status. Johanns, 400 F.3d at 948. The Ninth
Circuit also allowed attorney fees after a preliminary injunction and subsequent
mooting of the case, stating “[a] preliminary injunction issued by a judge carries all
the ‘judicial imprimatur’ necessary to satisfy Buckhannon.” Watson, 300 F.3d at
1096. Similarly, in Taylor, the Eleventh Circuit determined that “a preliminary
injunction on the merits, as opposed to a merely temporary order which decides no
substantive issues but merely maintains the status quo, entitles one to prevailing
party status and an award of attorney's fees.” Taylor, 810 F.2d at 1558.
Since Dupuy, at least three other circuit courts have affirmed fee awards in
similar cases. The Fifth Circuit set forth a test whereby to qualify as a prevailing
party, the plaintiff:
(1) must win a preliminary injunction, (2) based upon an unambiguous
indication of probable success on the merits of the plaintiff's claims as
opposed to a mere balancing of the equities in favor of the plaintiff, (3)
that causes the defendant to moot the action, which prevents the
plaintiff from obtaining final relief on the merits.
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Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008). The Third Circuit,
confronting the issue for the first time, agreed that a plaintiff who had achieved a
preliminary injunction despite never securing a final judgment was the prevailing
party. People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 228-29 (3d
Cir. 2008). The court reasoned that Buckhannon did not require a contrary rule
because “[t]he ultimate mooting of plaintiffs’ claims resulted not solely from the
filing of the lawsuit but from the results of the legal process.” Id. at 234. The Tenth
Circuit also recently held that where a preliminary injunction was based in part on
the likelihood of success on the merits and is the relief sought in the complaint, the
plaintiff is the prevailing party even if the case later becomes moot because of
circumstances outside plaintiff’s control. Kan. Judicial Watch v. Stout, 653 F.3d
1230, 1234, 1238 (10th Cir. 2011).
The only arguable material distinction between the present case and the
cases allowing attorneys’ fees based on a granted preliminary injunction followed by
the case becoming moot is that some of them emphasize the fact that the
defendant’s behavior in mooting the case was directly caused by and in response to
the preliminary injunction. See, e.g., Dearmore, 519 F.3d at 525. However, the
attorneys’ fees determination is not supposed to be a second trial. See, e.g.,
Buckhannon, 532 U.S. at 609. To require a substantial factual determination of
whether the defendant’s actions, causing the case to be mooted, were undertaken to
avoid the potential negative decision on the merits or for some other reason would
take significant time and effort.
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Here, Defendant argues it amended the ordinance voluntarily and had
intended to do so “[f]rom the start of this litigation.” (Doc. 47 at 4). Defendant
implies the amendments to the ordinance were not in response to the preliminary
injunction, and compares Plaintiff’s theory to the catalyst theory rejected in
Buckhannon. (Doc. 47 at 4). Yet it amended precisely the provisions the Court found
potentially problematic and limited the entities it regulated such that Plaintiff was
no longer included. It can easily be inferred that this amendment was, at least in
part, the result of the judicial determination that Plaintiff was likely to succeed on
the merits in the case. To the extent any causation element must be proven, it is
satisfied here by Defendant’s amendments of the challenged provisions after the
preliminary injunction based on a likelihood of success on the merits. The cases it
cites in support of its argument relate to a voluntary settlement, Bingham v. New
Berlin Sch. Dist., 550 F.3d 601 (7th Cir. 2008), and a dismissal of a mooted case,
Walker v. Calumet City, Ill., 565 F.3d 1031 (7th Cir. 2009), both before any court
order altering the legal relationship of the parties; thus they are factually dissimilar
and distinguishable from the case law supporting an award in this case. Therefore,
Plaintiff is a prevailing party and is able to collect attorneys’ fees under 42 U.S.C.
§ 1988.
III. Amount of Fees
Though Plaintiff will be awarded fees and costs, the amount remains to be
determined. As explained below, some unresolved issues preclude a determination
of the amount and the parties must submit further briefing on the matter. However,
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the Court here explains some determinations it has already made as to the amount
that will eventually be awarded.
Because the award of attorneys’ fees is a discretionary matter under 42
U.S.C. § 1988, the Court finds the quality of work of Plaintiff’s counsel must be
addressed. Throughout this litigation, the Court has found Plaintiff’s counsel’s
filings to be of very poor quality.1 In fact, Plaintiff’s initial Response to Defendant’s
Motion for Judgment on the Pleadings was so deficient the Court ordered the filing
of an amended response. (Doc. 39 at 4-5). In addition to unclear arguments, Plaintiff
cited no supporting authority in the entire document. (Doc. 39 at 5). Despite this
disapproval, the Court noted shortcomings in Plaintiff’s further briefing, stating
Plaintiff’s “chronically maladroit filings have resulted in an unnecessary delay in
the disposition of this matter.” (Doc. 44 at 6 n.1). Because of Plaintiff’s counsel’s
deficient filings, the Court, in its discretion, will not award attorneys’ fees for their
work preparing Plaintiff’s briefs related to the Motion for Judgment on the
Pleadings.
Apparently, after these warnings, one way Plaintiff’s counsel attempted to
rectify the problem of not citing case law in support of its legal arguments was to
plagiarize large portions of analysis from another source. Plaintiff’s Petition for
Fees (Doc. 45) spans thirteen pages. Five pages of material in the Petition are lifted
nearly verbatim from the Seventh Circuit’s opinion in Dupuy v. Samuels, yet this
case is not cited anywhere in Plaintiff’s Petition. (See Doc. 45 at 3-8). Instead of
analyzing precedent himself, Plaintiff’s counsel copied the Seventh Circuit’s
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The problematic filings noted were all signed by Attorney Samuel Zabek.
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analysis of Supreme Court and Seventh Circuit case law, making only minor
changes, such as changing “we decided” to “the Court decided.” (Compare, e.g., Doc.
45 at 5, with Dupuy, 423 F.3d at 720-21). Case law is meant to support an attorney’s
arguments, but borrowed analysis, and especially quoted material, must be cited.
Perhaps the most confounding part of Plaintiff’s counsel’s behavior is that despite
copying pages of material from that opinion, most of which only lend relatively
weak support to his claim, he missed the most compelling parts of Dupuy, the parts
which this Court finds strongly support the award of attorneys’ fees in this case.
Plagiarism is a serious issue, and several courts have found such behavior
unacceptable and a violation of the Rules of Professional Conduct that govern
attorneys’ behavior. See, e.g., United States v. Bowen, 194 F. App'x 393, 402 n.3 (6th
Cir. 2006); United States v. Lavanture, 74 F. App'x 221, 224 n.2 (3d Cir. 2003);
United States v. Jackson, 64 F.3d 1213, 1219 n.2 (8th Cir. 1995); Venesevich v.
Leonard, No. CIV A 1:07CV2118, 2008 WL 5340162, at *2 n.2 (M.D. Pa. Dec. 19,
2008); Pagan Velez v. Laboy Alvarado, 145 F. Supp. 2d 146, 160-61 (D.P.R. 2001).
The Supreme Court of Illinois censured an attorney for plagiarizing in an academic
work, not even while practicing law, because it constituted “conduct involving
dishonesty, fraud, deceit, or misrepresentation.” In re Lamberis, 443 N.E.2d 549,
552 (Ill. 1982) (“The essence of plagiarism is deceit.”). In a particularly notable case,
a bankruptcy judge ordered an attorney who had plagiarized work to disgorge fees
and complete a course in professional responsibility, and sent a copy of the order to
the state disciplinary board. In re Burghoff, 374 B.R. 681 (Bankr. N.D. Iowa 2007).
A judge in the Northern District of Illinois reduced an attorneys’ fees award by
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ninety percent because of counsel’s plagiarism. A.L. v. Chi. Public Sch. Dist. No.
299, No. 10 C 494, 2012 WL 3028337, at *6 (N.D. Ill. July 24, 2012).
This Court does not look lightly upon passing off as one’s own the analysis
and work of another. As such, the Court will not award fees for the work in
preparing the Petition for Fees. Plaintiff’s counsel is warned that future filings in
this Court must follow commonsense and ethical standards, including citing work
that is from another source. Plaintiff’s counsel should take note of the cases cited
above in which judges imposed more serious consequences for plagiarizing material,
and realize the consequences may be far more severe if he ever attempts to
plagiarize again.
Defendant argues that Plaintiff should only be awarded attorneys’ fees for
the work done in relation to the preliminary injunction, as that is what makes
Plaintiff the prevailing party. (Doc. 47 at 7). Defendant cites no case law in support
of such a rule, citing only Federal Rule of Civil Procedure 11(b)(1), barring a party
from “needlessly increas[ing] the cost of litigation.” If Defendant wishes to maintain
this argument, it must provide a more thorough argument with supporting
authority in its brief in response to this Order.
Defendant also takes issue with some of the work for which Plaintiff’s counsel
is claiming fees, particularly for “discussions held with Defendant’s officials and
employees during the pendency of this litigation without the consent of Defendant’s
attorneys,” and requests a hearing to determine the amount of fees and costs. (Doc.
47 at 7). Defendant seems to raise another possible ethical violation by Plaintiff’s
counsel, by talking to agents of Defendant Peoria County without Defendant’s
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counsel’s permission, in violation of Illinois Rule of Professional Conduct 4.2, made
applicable to attorneys practicing in this Court by Local Rule 83.6(D). Defendant
also cites not case law in support of this argument, but perhaps is appealing to the
Court to use its discretion to reduce the fee award. The Court finds a hearing
unnecessary to resolving the issue of amount of damages due, but notes Defendant’s
concerns. Instead of a hearing, the Court will allow Defendant’s counsel to file a
brief outlining Defendant’s objections to the specific fees and itemizations
requested. Plaintiff may then file a brief in response, and may also provide further
detail about any questionable itemizations. The Court will then determine the
amount of attorneys’ fees and costs to which Plaintiff is entitled.
CONCLUSION
For the foregoing reasons, Plaintiff is entitled to attorneys’ fees and costs as
the prevailing party in this litigation. However, the amount awarded must still be
determined as outlined in this Order, and the Court would encourage efforts to
settle this matter. IT IS THEREFORE ORDERED that Plaintiff’s Petition for Fees
(Doc. 45) is TAKEN UNDER ADVISEMENT. Defendant SHALL file a brief
detailing its objections to specific fee requests within fourteen days of the date of
this Order. Plaintiffs MAY then file a brief in response within fourteen days of
service of Defendant’s brief.
Entered this 7th day of March, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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