Buisson Creative Strategies, L.L.C. et al v. Roberts et al
Filing
238
ORDER AND REASONS: Rec. Doc. 196 Motion for Attorney Fees filed by Defendant, Christopher Roberts, is DENIED as set forth in document. Signed by Judge Jane Triche Milazzo on 2/27/2018. (sa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BUISSON CREATIVE STRATEGIES, LLC,
ET AL
CIVIL ACTION
VERSUS
NO: 15-6272
CHRISTOPHER ROBERTS, ET AL
SECTION “H”
ORDER AND REASONS
Before the Court is Defendant Christopher Roberts’s Motion for
Attorney’s Fees (Doc. 196). For the following reasons, the Motion is DENIED.
BACKGROUND
Plaintiffs Buisson Creative Strategies (“BCS”) and Gregory Buisson
bring this action against Christopher Roberts and Jefferson Parish alleging
numerous constitutional violations. Plaintiff BCS is a business that provides
public relations, advertising, marketing, event management, graphic design,
and consulting services. Prior to November 4, 2015, it had numerous contracts
with Jefferson Parish, including providing services to the Jefferson Parish
Convention and Visitors Bureau, event management services for Lafreniere
Park, and event management services associated with the review stands for
Jefferson Parish’s East Bank Mardi Gras parades. During the fall 2015
1
primary election for the Jefferson Parish Council, Plaintiffs provided
consulting services to Louis Congemi in his race against incumbent Defendant
Christopher Roberts. BCS produced various commercials for the Congemi
campaign alleging that Roberts was unqualified for office because of, inter alia,
his alleged failure to file income tax returns.
Roberts ultimately won re-election. According to the Complaint, he was
intent on retaliating against Plaintiffs for their role in creating the Congemi
attack ads. Plaintiffs aver that Roberts impermissibly used his legislative
authority to enact Ordinance 25045 (the “Ordinance”), which had the alleged
effect of terminating BCS’s contracts with the Parish and its entities. The
Ordinance provides that any person or firm who has received compensation for
the management or consulting of political campaigns for a candidate for the
council or for Jefferson Parish President during an “election cycle” cannot be
awarded contracts with the Parish regardless of whether a candidate wins or
loses. It also purported to terminate such individual’s existing contracts with
the Parish. Plaintiffs aver that this ordinance is narrowly tailored to target
them and only them. They allege that the ordinance violates the contracts
clause, the First Amendment, equal protection, due process, and the
prohibition on bills of attainder. They seek an injunction prohibiting
enforcement of the Ordinance and damages pursuant to 42 U.S.C. § 1983.
Plaintiffs named Roberts as a defendant in both his official capacity as a
member of the Jefferson Parish Council and his personal capacity. 1 Defendant
Roberts in his personal capacity waived service of Plaintiffs’ Complaint on
December 21, 2015. 2 Roberts answered the Complaint on February 15, 2016 in
1
2
See Docs. 1, 118 at 8.
Doc. 12.
2
his personal and official capacities, asserting inter alia the defense of
legislative immunity. 3 Plaintiffs filed a Motion for Preliminary Injunction on
May 19, 2016, which Defendant Roberts opposed in his personal and official
capacities. 4 Defendant Roberts in his personal capacity moved for summary
judgment dismissing Plaintiffs’ suit on the basis of legislative immunity on
October 28, 2016. 5 The Court took that Motion under submission on November
16, 2016, and allowed Roberts to file a supplemental brief on December 22,
2016. 6 Defendant Roberts in his personal and official capacities submitted
opposition memoranda on January 4 and 5, 2017 to Defendant Jefferson
Parish’s motion to quash a deposition. 7 In January 2017, Defendant Roberts in
his personal and official capacities made and opposed motions in limine and
participated in the preparation of a pretrial order in advance of a trial
scheduled to begin February 6, 2017. 8
On January 25, 2017, the Court held that Defendant Roberts was
entitled to legislative immunity from Plaintiffs’ claims against him in his
personal capacity. 9 On June 21, 2017, the Court dismissed all of Plaintiffs’
remaining claims because Plaintiffs lacked standing. 10 The Court found that
Plaintiffs could not show that the Ordinance had been enforced against them
or was likely to be enforced against them in the future, and found that the loss
of any contracts with third parties was not fairly traceable to Defendants.
Doc. 14 at 19.
Docs. 22, 34, 64. The hearing on that Motion was continued and ultimately cancelled on
August 16, 2016. See Docs. 48, 70.
5 Doc. 117.
6 Doc. 132.
7 Doc. 137.
8 Docs. 156, 162, 153. The trail was continued indefinitely on January 18, 2017. See Doc. 164.
9 Doc. 165.
10 Doc. 193.
3
4
3
On July 6, 2017, Defendant Roberts in his personal capacity submitted
a Motion for Attorney Fees pursuant to 42 U.S.C. § 1988 as the prevailing
party in a § 1983 action. 11 The Court granted multiple motions by Plaintiffs to
continue the submission date of Defendant’s Motion, and eventually took the
Motion under submission without opposition. 12 Plaintiffs retained new counsel
who petitioned the Court for leave to file a response, which the Court granted. 13
LEGAL STANDARD
Pursuant to 42 U.S.C. § 1988, a court may, in its discretion, award
attorney’s fees to the prevailing party in a § 1983 action. “A prevailing
defendant [in a § 1983 action] is entitled to fees only when a plaintiff’s
underlying claim is frivolous, unreasonable, or groundless.” 14 “[A] court must
ask whether the case is so lacking in arguable merit as to be groundless or
without foundation rather than whether the claim was ultimately
successful.” 15 “To determine whether a claim is frivolous or groundless, [the
Fifth Circuit has] stated that courts may examine factors such as: (1) whether
the plaintiff established a prima facie case; (2) whether the defendant offered
to settle; and (3) whether the court dismissed the case or held a full trial.” 16 If
a suit involves both frivolous and non-frivolous claims, a court may grant
reasonable fees to the prevailing defendant only for costs that the defendant
Doc. 196.
Doc. 219.
13 Doc. 223.
14 Myers v. City of W. Monroe, 211 F.3d 289, 292 (5th Cir. 2000).
15 Offord v. Parker, 456 F. App’x 472, 474 (5th Cir. 2012).
16 Doe v. Silsbee Indep. Sch. Dist., 440 F. App’x 421, 425 (5th Cir. 2011).
11
12
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would not have incurred but for the frivolous claims. 17 Accordingly, a court
must assess the frivolity of each claim individually. 18
LAW AND ANALYSIS
Defendant Roberts in his personal capacity is the prevailing party under
§ 1988 because he successfully invoked absolute legislative immunity. 19
However, this Court declines to exercise its discretion to award Defendant
attorney fees under § 1988. The Court finds that Plaintiffs claims were not “so
lacking in arguable merit as to be groundless.” 20 Plaintiffs argued that the
actions of Defendant Roberts were so narrowly and obviously targeted at
Plaintiffs specifically that they effectively constituted administrative acts not
covered by legislative immunity. 21 While this argument was not ultimately
successful, neither was it entirely groundless. In terms of the three factors
identified
above,
Plaintiffs
therefore
presented
a
colorable,
though
unsuccessful, prima facie case. Additionally, the parties engaged in settlement
negotiations. 22
And
while
Plaintiffs’
personal-capacity
claim
against
Defendant Roberts was dismissed without a trial, briefing on the motion for
summary judgment extended nearly a year after Defendant waived service and
Fox v. Vice, 563 U.S. 826, 836 (2011).
See Greco v. Velvet Cactus, LLC, No. 13-3514, 2014 WL 6684913, at *2 (E.D. La. Nov. 25,
2014).
19 See DeLeon v. City of Haltom City, 113 F. App’x 577, 578 (5th Cir. 2004) (finding that the
successful invocation of absolute judicial immunity made a defendant the prevailing party
under § 1988).
20 See Offord, 456 F. App’x at 474.
21 For example, Plaintiffs specifically alleged that Defendant Roberts sent a text message to
Plaintiff Buisson warning him that, “We’re coming. Lawyer up baldy,” and required
Plaintiffs’ client to appear before the council to detail its relationship with Plaintiffs. See
Docs. 1, 75-4.
22 Defendant argues that it never offered to settle the individual-capacity claim.
17
18
5
well into significant discovery practice. Accordingly, the Court finds that
Plaintiffs’ claim was not frivolous.
Furthermore, even if the claim were to satisfy the three-part test for
frivolity, the Court exercises its discretion to not award fees. 23 “[D]ifferent
equitable considerations [are] at stake” when a defendant prevails. 24 Awards
to prevailing defendants are intended to “insulate[] defendants from the
monetary strain of ‘burdensome litigation having no legal or factual basis.’” 25
Here, Plaintiffs’ other claims were dismissed on standing grounds because
Defendants decided not to enforce the ordinance in question. 26 And although
Defendant Roberts argues that Plaintiffs maintained this action out of
personal animus, the Court will not countenance Defendant’s own apparent
vendetta against Plaintiffs with an award of attorney fees. Plaintiffs’ claims
against Defendant Roberts in his personal capacity may have ultimately failed
on a legal basis, but they do not represent the type of factually groundless or
vexatious litigation Congress intended to discourage. 27
CONCLUSION
For the foregoing reasons, Defendant’s Motion is DENIED.
42 U.S.C. § 1988 (“[T]he court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee . . . .”) (emphasis added).
24 Cantu Servs., Inc. v. Frazier, 682 F. App’x 339, 342 (5th Cir. 2017) (internal quotations
omitted).
25 Id. (quoting Fox, 563 U.S. at 833).
26 See Doc. 193.
27 See Orange v. Cty. of Suffolk, 830 F. Supp. 701, 707 (E.D.N.Y. 1993) (denying fees after
finding defendants “clearly” had legislative immunity); see also Bailey v. Normand, No. 122795, 2015 WL 1268325, at *4 (E.D. La. Mar. 19, 2015) (declining to award fees relating to
a frivolous claim for vicarious liability under § 1983 when plaintiffs’ claim was grounded
in facts).
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New Orleans, Louisiana this 27th day of February, 2018.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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