South Bend City of v. Holder et al
OPINION AND ORDER: DENYING 185 MOTION for Taxation of Costs Directed to the South Bend Common Council by Defendants Tim Corbett, Steve Richmond, Dave Wells, Brian Young, Sandy Young; and DENYING 187 MOTION for Attorney Fees by Defendant South Bend Common Council. Signed by Judge Joseph S Van Bokkelen on 9/28/2015. (lhc)
United States District Court
Northern District of Indiana
City of South Bend,
Civil Action No. 3:12-CV-475 JVB
South Bend Common Council, Tim
Corbett, Dave Wells, Steve Richmond,
Brian Young, Sandy Young, Karen
DePaepe, and Scott Duerring,
OPINION AND ORDER
The Court entered final judgment in this declaratory action case finding that the South
Bend Police Department’s recording of Officer Brian Young’s phone line after February 4, 2011,
violated § 2511(1)(a) of the Wiretap Act. As a result, these recordings cannot be disclosed to
others. On the other hand, the Court found that recording the same line before February 5, 2011,
did not violate the Act.
The Police Officers and the South Bend Common Council each believe that they are
entitled to attorney’s fees from each other.1 The Court will start with the officers and the
somewhat complicated procedural history of this case.
At the end of 2012, the City of South Bend filed a complaint for declaratory judgment
and named as defendants the Common Council; as well as Tim Corbett, Dave Wells, Steve
Richmond, Brian Young, and Sandy Young (“Officers”).2 With respect to the Common Council,
the City wanted its rights and obligations defined concerning the recordings because the
While the Officers say as much in their motion, the Common Council is silent as to whom it expects to the pay the
fees. The Court only assumes that the motion is directed against the Officers since they are the ones fighting it.
The United States was also named as a defendant but it was shortly dismissed by the City.
Common Council had subpoenaed the recordings. In relation to the Officers, the City had just
received their notice of intent to file a tort claim for violations under, among other things, the
Wiretap Act. In answering the Complaint, neither the Common Council nor the Officers filed
any counterclaims or crossclaims.
Meanwhile, the Officers sued the City, the Chief of Police, Karen DePaepe, and Scott
Duerring in a separate case (No. 3:12-CV-532), alleging that their telephone conversations were
illegally recorded and disclosed. The ‘532 case was consolidated with the present case. At the
end of 2013, the Officers settled with the City and the Chief of Police, stipulating that only the
claims against Karen DePaepe and Scott Duerring remained. In mid-2014, the Officers settled
with them too, thus ending the ‘532 case. In retrospect, at that point the Officers could have been
dismissed from the declaratory judgment case because there was no longer a case or controversy
between them and the City, and, in fact, they had taken the same position as the City in relation
to the Common Council, even though they were named as defendants along with the Common
Council. If anything, they became de facto interveners, fighting against the disclosure of their
In light of this procedural history, and given that the Officers had settled with the City, in
exercising its discretion, the Court will not award attorney’s fees to them. After all, since the
City was the party responsible for bringing them into this action, under normal circumstances
their remedy would have been against the City, not a fellow defendant.3 4 Presumably attorney’s
Title 18 U.S.C. § 2520 states:
(a) In general.---Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action
recover from the person or entity . . . which engaged in that violation such relief as may be appropriate. (b) Relief.--In an action under this section, appropriate relief includes . . . a reasonable attorney’s fee and other litigation costs
While in their motion the Officers call themselves plaintiffs, in the instant case they were defendants, brought into
this litigation by the City.
fees were addressed in their settlement with the City, and the fact that the Officers ended up as
de facto interveners does not persuade the Court to award them the attorney’s fees from the
Moreover, this is a somewhat unusual case where neither the Officers nor the Common
Council are the prevailing party in the strict sense.5 The Court did side with the Officers in
declaring that Officer Young’s telephone conversations recorded after February 4, 2011, were
done illegally and thus could not be disclosed; however, the same could be said of the Common
Council which prevailed in its position that the recordings on or before February 4, 2011, were
legal. That is, both parties succeeded on the core issue in this litigation. Thus, awarding
attorney’s fees to the Officers is unjustified.
The same is true for the Common Council. What is more, attorney’s fees would be
awarded in the Common Council’s favor only in exceptional circumstances to start with. For
example, if the claims against the Common Council were frivolous, unreasonable, or groundless,
only then would the Common Council be a real candidate for an award. Cf. Cooney v. Casady,
735 F.3d 514, 521 (7th Cir. 2013) (“There is a significant difference between making a weak
argument with little chance of success ... and making a frivolous argument with no chance of
success,” and “it is only the latter that permits defendants to recover attorney's fees” under §
1988.” (citing Khan v. Gallitano, 180 F3d 829, 837 (7th Cir. 1999)). And in any case, the
Common Council’s claim for attorney’s fees would have to first be brought against the City, the
real plaintiff in this case.
A party “prevails when actual relief on the merits of his claim materially alters the legal relationship between the
parties modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Simpson v. Sheahan, 104
F.3d 998, 1001 (7th Cir. 1997).
For these reasons the Court denies the Officers’ and the Common Council’s motions for
attorney’s fees (DEs 185 & 187).
SO ORDERED on September 28, 2015.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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