Doe v. Community Unit School District No. 428 et al.
Filing
157
MEMORANDUM Opinion and Order; For the reasons given, the defendants' motion for fees 134 is granted. Fees are awarded in the requested amount of $136,476.60. Because the motion is granted, the defendants' motion to strike filings of former plaintiffs' counsel 145 is denied as unnecessary. See the attached order for details. Signed by the Honorable Iain D. Johnston on 3/29/2021:(yxp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
James C. Mason, et al.,
Plaintiffs,
v.
Community Unit School Dist. No. 428, et al.,
Defendants.
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Case No. 17 CV 50307
Judge Iain D. Johnston
MEMORANDUM OPINION AND ORDER
The plaintiffs believe that the public schools in DeKalb, Illinois, have been enrolling
more than a thousand students who do not live within the school district’s boundaries. They
alleged the practice has cost them millions of dollars in unnecessary property taxes and caused
property values to drop. The court dismissed the plaintiffs’ claims in their entirety and awarded
costs. Dkt. 101. Now the defendants seek fees as the prevailing parties. See 42 U.S.C.
§ 1988(b). For the reasons that follow, the defendants’ motion for fees [134] is granted.
Background
The following facts are from the First Amended Complaint, which for purposes of
resolving the motion to dismiss Judge Pallmeyer accepted as being true and viewed in the light
most favorable to the plaintiffs. The plaintiffs own 735 real estate units in in DeKalb, Illinois,
and pay about $1.2 million each year in property taxes, about 60% of which has gone to DeKalb
public schools. Meanwhile, the defendants encouraged about 1,200 students who live outside the
school district’s boundaries to enroll, in violation of residency and tuition payment requirements
in the Illinois School Code. As a result, about 15% of the tax revenues DeKalb public schools
received each year was spent educating out-of-district students. The plaintiffs alleged numerous
constitutional violations under 42 U.S.C. §§ 1983, 1985 and 1986, and sought damages including
the return of alleged tax overpayments from 2007 to 2018, plus an injunction requiring the
defendants to conduct a residency investigation.
Judge Pallmeyer granted the defendants’ motion to dismiss. She gave two reasons for the
dismissal: “[T]he court grants Defendants’ motion to dismiss because (1) the principle of comity
counsels against adjudicating Plaintiffs’ claims and (2) the Tax Injunction Act, 28 U.S.C. § 1341,
divests the court of jurisdiction over Plaintiffs’ request for injunctive relief.” Order [101] at 2.
Following the dismissal, Judge Pallmeyer entered judgment in favor of the defendants and
allowed them costs. Dkt. 102. The defendants have now filed a motion to recover their fees
under 42 U.S.C. § 1988(b).
Analysis
Under 42 U.S.C. § 1988(b), a “court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the costs” in proceedings to
enforce certain civil rights violations, including under 42 U.S.C. §§ 1983, 1985 and 1986. A
plaintiff is ordinarily entitled to fees just for prevailing. See Fox v. Vice, 563 U.S. 826, 833
(2011). But a defendant is not entitled to fees just because it prevailed; rather it faces the
additional hurdle of a finding that the plaintiff’s action was “‘frivolous, unreasonable, or without
foundation.’” Id. (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).
1.
Prevailing Party
The plaintiffs object to any award of fees to the defendants on two grounds. First, they
contend that the defendants were not the prevailing parties because their claims were dismissed
not on the merits, but rather out of concerns for comity. A defendant need not prevail on the
merits to be considered a prevailing party under § 1988. In CRST Van Expedited, Inc. v. EEOC,
136 S. Ct. 1642, 1649-50 (2016), an employer successfully obtained the dismissal of all but two
claims brought against it by the EEOC, settled one of the two remaining claims, and the EEOC
withdrew the other remaining claim. Thus, all of the claims were resolved without any
determination of the merits. The Supreme Court held that the employer was the prevailing party
under the applicable fee shifting statute, even though the claims were never decided on the
merits. Id. at 1651-53. Although CRST Van involved the fee shifting statute under Title VII, see
42 U.S.C. § 2000e-5(k), the Supreme Court noted that it construed the phrase “prevailing party”
consistently for each civil rights statute in which it appears, including § 1988, and in fact
supported its decision by citing § 1988 precedent. Id. at 1646, 1652.
The plaintiffs do not acknowledge CRST Van Expedited, and instead rely on two
Supreme Court cases that pre-date it for their contention that under § 1988 a party prevails only
by obtaining a “judgment on the merits,” or a “court ordered consent decree.” Resp. [144] at 7
(citing Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Resources, 532 U.S.
598 (2001) and Hanrahan v. Hampton, 446 U.S. 754 (1980)). But both Buckhannon and
Hanrahan address what a plaintiff must accomplish to be a prevailing party, and provide no
guidance on the issue squarely addressed in CRST Van of when a defendant is the prevailing
party.
The defendants here obtained dismissal of all of the claims against them, same as the
employer in CRST Van except for the one settled claim. Under the same analysis, the defendants
here are prevailing parties, even in the absence of any decision on the merits.
2.
Frivolous, Unreasonable, or Without Foundation
As noted earlier, a defendant cannot obtain fees under § 1988 merely because it
prevailed. Rather, a defendant may obtain fees only if the plaintiff’s claims were frivolous,
meritless, or without grounds. “[W]hen a civil rights suit is lacking in any legal or factual basis .
. . an award of fees to the defendant is clearly appropriate to deter frivolous filings and to ensure
that the ability of the courts to remedy civil rights violations is not restricted by dockets crowded
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with baseless litigation.” Munson v. Milwaukee Bd. of School Directors, 969 F.2d 266, 269 (7th
Cir. 1992) (internal quotation marks and citations omitted). Relevant factors include whether the
claim is one of first impression, and whether it is based on a real threat of injury to the plaintiff.
See Reichenberger v. Pritchard, 660 F.2d 280, 288 (7th Cir. 1981). But a defendant is not
required to show either subjective or objective bad faith by a plaintiff. Munson, 969 F.2d at 269.
The decision whether to award a defendant fees under § 1988 is left to the sound discretion of the
court. Id.
The plaintiffs’ attempt to litigate state taxation issues in federal court was frivolous and
without grounds from the outset. The doctrine of comity has long counseled federal courts to
resist engaging in cases involving certain issues falling within the jurisdiction of the states. See
Younger v. Harris, 401 U.S. 37, 43 (1971). The U.S. Supreme Court recognized that taxation
was one of those issues nearly 90 years ago. See Matthews v. Rodgers, 284 U.S. 521, 525-26
(1932) (“the mere illegality or unconstitutionality of a state or municipal tax is not in itself a
ground for equitable relief in the courts of the United States. If the remedy at law is plain,
adequate, and complete, the aggrieved party is left to that remedy in the state courts . . .”). The
doctrine’s applicability to cases involving state taxation has been reaffirmed through the years.
See Levin v. Commerce Energy, Inc., 560 U.S. 413, 417 (2010); Fair Assessment in Real Estate
Assn., Inc. v. McNary, 454 U.S. 100, 107 (1981). Therefore, the issue is not one of first
impression. Although the plaintiffs alleged that their threat of being overtaxed was real, courts
have long held that the proper forum to address such threats was in a state forum, and in Illinois
that available forum is the county board of review. Order [101] at 8-9. This long history of
jurisprudence should have alerted the plaintiffs before they ever filed suit that the doctrine of
comity barred their claims from proceeding in a federal forum.
Although plaintiffs’ claims squarely fall within the comity doctrine, the plaintiffs
nevertheless argue that their claims were not frivolous for several reasons. First, they contend
that comity is an equitable, not jurisdictional, bar, and so to conclude that their claims were
frivolous would be “tantamount to saying Plaintiffs knew or should have known how this Court
would exercise its discretion.” Response [144] at 10. But the plaintiffs do not identify any
authority that gives a court discretion to set aside concerns over comity and proceed with a state
taxation case. Nor have they proffered any reason for exercising such discretion if it existed,
either in their response to the motion for fees or in opposition to the motion to dismiss.
Next, they contend that their claims were not frivolous because DeKalb School Board
member Jeff Hallgren put them up to filing this lawsuit so that “the School Board would have to
act.” Response [144] at 2. But, again, they point to no authority supporting their position that a
claim is not frivolous because a school board member told them to file it. Maybe the plaintiffs
were attempting to assert estoppel – that the defendants cannot now obtain fees spent fighting a
frivolous claim that someone associated with the defendants encouraged them to file. But the
response never mentions estoppel or refers to any authority supporting its application here, and
so the assertion is forfeited. See Williams v. Bd. of Educ. of City of Chicago, 982 F.3d 495, 508
(7th Cir. 2020). And regardless of the impetus of the litigation, parties and counsel have a duty
to ensure after reasonable inquiry that claims are warranted by existing law or a non-frivolous
argument for extending, modifying, or reversing existing or established law. Fed. R. Civ. P.
11(b)(2). That did not occur here.
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Finally, the plaintiffs contend that their claims were not frivolous because after they filed
suit, the school board made changes to the district’s residency verification and registration
processes. Again, the plaintiffs have cited no authority to support their contention, or even
established that the changes were made because of this lawsuit. There is simply no evidence of
causation here. Plaintiffs’ assertion is pure speculation. The changes may have been made
simply because of the public airing of the issue, rather than because of the filing of a federal
lawsuit doomed to failure. This issue is undeveloped, unsupported, and forfeited. Id.
The Court therefore finds not only that the defendants prevailed, but also that the
plaintiffs’ attempts to litigate state taxation issues in federal court was frivolous and without
grounds. In an exercise of its discretion, the Court finds that the defendants are entitled to
recover their reasonable fees under § 1988.
3.
Amount of Fee
A court may determine the reasonableness of a fee award by evaluating whether the
reasonableness of the number of hours counsel spent as well as counsel’s hourly rate. Murphy v.
Smith, 864 F.3d 583, 586 (7th Cir. 2017) (explaining the lodestar method of calculating a
reasonable attorney fee under § 1988). The defendants have not provided to the Court their
billing records. But according to a joint statement signed by both sides, the defendants gave their
billing records to the plaintiffs, the fees total $136,476.60, and “there is unlikely to be a dispute
regarding the reasonableness of the fees incurred by Movants as Respondents incurred
substantially more attorneys’ fees (with their previous attorney) over the same period. As such,
the primary dispute is not about the amount of fees but rather whether the Movants are entitled to
be awarded the fees under the facts of this case.” Motion [134], Ex. A at 2. The absence of
billing records leaves the Court unable to assess the reasonableness of the fees sought for itself.
But given the joint statement, the fact that plaintiffs’ counsel incurred higher fees than defense
counsel, and the fact that in their response brief the plaintiffs have not taken issues with either
the hours spent or hourly rates, the Court awards the full $136,476.60 in fees sought. In the joint
statement, the defendants contend that their fees continue to accrue and their request would be
updated or supplemented. Id. at 1. But the defendants never filed an update or supplement and
so the award is limited to the amount sought.
The Court notes that although the defendants’ motion is one for fees, it also refers to
costs in the amount of $19,116.35 the defendants want included in their award. The recovery of
costs is governed by Local Rule 54.1, which requires the prevailing party to “file a bill of costs
with the clerk and serve a copy of the bill on each adverse party” within “30 days of the entry of
judgment allowing costs.” Failure to do so waives costs. Id. Judge Pallmeyer’s order allowing
costs was entered on September 5, 2019, but the defendants have never filed a bill of costs. Even
if the plaintiffs’ motion to reconsider [104] and appeal [108] stayed the 30-day deadline, the
plaintiffs voluntarily dismissed their appeal on October 17, 2019, Dkt. 113, and withdrew the
motion to reconsider on October 30, 2019. Dkt. 121. The Court can extend the deadline, but
only “on motion filed within the time provided for the filing of the bills of costs,” and the time
provided has long passed. L.R. 54.1(a). In the absence of a timely bill of costs, the defendants
have provided the Court no basis for awarding costs.
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CONCLUSION
For the reasons given, the defendants’ motion for fees [134] is granted. Fees are awarded
in the requested amount of $136,476.60. Because the motion is granted, the defendants’ motion
to strike filings of former plaintiffs’ counsel [145] is denied as unnecessary.
Date: March 29, 2021
By:
__________________________________________
Iain D. Johnston
United States District Judge
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