Arce et al v. Louisiana State et al

Filing 192

ORDER AND REASONS re 176 Motion for Attorney Fees; ORDERED that plaintiff's motion is GRANTED IN PART and DENIED IN PART. FURTHER ORDERED that plaintiff's request for attorney's fees is DENIED. FURTHER ORDERED that plaintiff's request for costs is GRANTED and that plaintiff is awarded costs in the amount of $11,428.06, as set forth herein. Each defendant shall be responsible for one-half of the costs, or $5,714.03 each. FURTHER ORDERED that plaintiff may file a request with the Clerk through the procedures specified in Local Rule 54.3 to recover 1920(3) witness fees and allowances. If plaintiff intends to recover such fees and allowances, then plaintiff shall file her request with the Clerk by 3/15/2018. Signed by Judge Lance M Africk on 3/1/2018. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NELSON ARCE ET AL.

CIVIL ACTION

VERSUS

No. 16-14003

LOUISIANA STATE ET AL.

SECTION I

ORDER AND REASONS
The concept of reasonableness plays a leading role in American law, from the
“reasonable person” of tort law fame to the “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures” enshrined in the Fourth Amendment. It is also central to the inquiry
currently before the Court: after plaintiff Ana Christine Shelton sought as much as
millions in compensatory damages, yet won only nominal damages and no other
judicially sanctioned relief, what amount of attorney’s fees and costs—if any—would
it be reasonable for the Court to award her?
I.
This case arose from Nelson Arce’s interactions with the Louisiana criminal
justice system. After pleading guilty to a drug possession offense in Louisiana state
court, Nelson—who was deaf—was placed on probation in Jefferson Parish. 1 Plaintiff
alleged that Jefferson Parish probation office staff knew that Nelson required a
qualified American Sign Language (“ASL”) interpreter to effectively communicate,
but did not provide such an interpreter to facilitate communication at meetings

1

See R. Doc. No. 69, ¶¶ 19, 27.
1

between themselves and Nelson. 2

Plaintiff contended that, as a result, Nelson

inadvertently violated the terms and conditions of his probation, leading to his
incarceration in the Jefferson Parish Correctional Center (“JPCC”) for 90 days. 3
Plaintiff further alleged that JPCC officials likewise understood Nelson’s
communication needs, but ignored them. 4 For example, plaintiff argued that JPCC
officials never interpreted JPCC rules and regulations into ASL for Nelson. 5 Plaintiff
alleged that Nelson thus did not understand the rules governing inmates in JPCC,
but that, notwithstanding, JPCC twice penalized Nelson for violating these rules. 6
On August 22, 2016, Nelson and his father, Lazaro Arce, filed a lawsuit in this
Court against the State of Louisiana, through the Department of Public Safety and
Corrections (“Louisiana”); Sheriff Newell Normand, in his official capacity as the
Sheriff of Jefferson Parish (“Sheriff of Jefferson Parish”); 7 and Jefferson Parish. 8
Their initial complaint asserted claims under Title II of the Americans with
Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act of 1973 (“Rehab Act”),
and prayed for compensatory damages, as well as declaratory and injunctive relief,
against all defendants. 9
Nearly two months after initiating their case, Nelson and Lazaro filed a motion
for a preliminary injunction against Louisiana, asking the Court to order Louisiana

See id. ¶¶ 29-30, 33.
See id. ¶¶ 38-39.
4 See id. ¶¶ 58, 61.
5 See id. ¶ 44.
6 See id. ¶¶ 44-45.
7 Upon Sheriff Normand’s retirement, his successor, Sheriff Joseph Lopinto, was
substituted in his place.
8 R. Doc. No. 1.
9 See id.
2
3

2

to provide a qualified ASL interpreter for Nelson’s probation meetings while the case
was pending. 10 Before the Court had an opportunity to hold an evidentiary hearing
or otherwise act on the motion, the parties reached an agreement that addressed
Nelson and Lazaro’s concerns. 11

After the parties informed the Court of this

development, and with the parties’ consent, the Court in a minute entry dismissed
the motion for a preliminary injunction as moot. 12
Several months later and in the midst of discovery, Nelson unfortunately
passed away. 13 All parties have consistently recognized that Nelson’s death was
unrelated to the litigation.
After learning of Nelson’s untimely passing, the Court dismissed without
prejudice all claims for injunctive relief without opposition. 14 Shortly thereafter,

R. Doc. No. 25.
See R. Doc. No. 43, at 1.
12 See id. at 2.
13 See R. Doc. No. 60; R. Doc. No. 64.
14 See R. Doc. No. 60, at 2. “Mootness is ‘the doctrine of standing in a time frame.’”
Moore v. Hosemann, 591 F.3d 741, 744 (5th Cir. 2009) (quoting United States Parole
Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)). “A case is moot where the cause of
action is no longer live, or where the parties no longer hold a personal stake in the
outcome.” Henschen v. City of Houston, Tex., 959 F.2d 584, 587 (5th Cir. 1992).
Courts examine mootness on a claim-by-claim basis. See JSLG, Inc. v. City of Waco,
504 Fed. App’x 312, 315-19 (5th Cir. 2012) (per curiam) (doing just that).
“In order to demonstrate that a case or controversy exists to meet the Article
III standing requirement when a plaintiff is seeking injunctive or declaratory relief,
a plaintiff must allege facts from which it appears there is a substantial likelihood
that he will suffer injury in the future.” Bauer v. Texas, 341 F.3d 352, 358 (5th Cir.
2003). Nelson’s death removed all likelihood that Nelson would suffer any injury in
the future as a result of defendants’ conduct. Thus, to the extent that Nelson had
standing to pursue prospective relief against defendants prior to his death, those
claims became moot upon his death. See Tandy v. City of Wichita, 380 F.3d 1277,
1290 (10th Cir. 2004) (“Beltz’s claims for prospective relief are mooted by his death
because once dead, he is no longer under a real and immediate threat of repeated
injury.”).
10
11

3

plaintiff was substituted in Nelson’s place and reurged the claims for injunctive
relief. 15 With plaintiff’s consent, the Court granted Louisiana’s motion to dismiss
plaintiff’s claims for injunctive relief, as plaintiff did not have standing to assert such
claims. 16
Prior to trial, the Court also dismissed all claims against Jefferson Parish, 17 as
well as all claims brought by Lazaro. 18

Further, the parties held settlement

discussions 19 before the U.S. Magistrate Judge about two months before trial.

See R. Doc. No. 68; R. Doc. No. 69.
See R. Doc. No. 80. The Sheriff of Jefferson Parish never moved to dismiss
plaintiff’s claims for prospective relief against it. However, as with such claims
against Louisiana, plaintiff lacked standing to assert such claims against the Sheriff
of Jefferson Parish.
17 See R. Doc. No. 42, at 13.
18 See R. Doc. No. 131, at 51; R. Doc. No. 137, at 6.
19 Plaintiff did not request a specific amount in compensatory damages either in her
amended complaint, see R. Doc. No. 68, or at trial. (Upon inquiry by the Court out of
the presence of the jury, plaintiff’s counsel told the Court that she believed that she
was precluded from asking the jury for a specific amount of damages. The Court
informed her that she was incorrect.) In fact, plaintiff’s settlement demands
represent the only instances when plaintiff revealed to defendants and the Court the
monetary value that she assigned to her claims.
Plaintiff argues that the “[t]he Court should not consider the private
settlement negotiations between the parties in determining her success because these
monetary demands took into consideration substantial concessions that would be
made in settlement—no finding or admission of liability and no ability to seek costs
or attorney’s fees.” R. Doc. No. 184, at 6. The Court rejects plaintiff’s position.
It appears that the Fifth Circuit has not yet addressed the applicability of
Federal Rule of Evidence 408—which governs the admissibility at trial of settlement
offers and discussions—to motions for attorney’s fees. However, the Third Circuit
has concluded that “Rule 408 does not bar a court’s consideration of settlement
negotiations in its analysis of what constitutes a reasonable fee award in a particular
case,” because “the use of such evidence as bearing on the issue of what relief was
sought by a plaintiff does not offend the clear terms” of the rule. Lohman v. Duryea
Borough, 574 F.3d 163, 167 (3d Cir. 2009). The Ninth Circuit has adopted the Third
Circuit’s reasoning. See Ingram v. Oroudjian, 647 F.3d 925, 927 (9th Cir. 2011).
The Court likewise finds the Third Circuit’s reasoning persuasive. Cf. Migis v.
Pearle Vision, Inc., 135 F.3d 1041, 1062 (5th Cir. 1998) (Barksdale, J., concurring in
part and dissenting in part) (stating his view that courts should be able to consider a
15
16

4

Plaintiff’s initial settlement demand was $2 million per defendant. 20 According to
plaintiff, she made this demand “understanding that any settlement would mean no
admission of liability, a significant concession particularly in light of Nelson’s
death” 21—a position seemingly at odds with her recognition that any alleged
transgression by defendants did not cause Nelson’s death.

plaintiff’s settlement demands “as a factor in making the degree of success and other
relevant evaluations for its discretionary, reasonable fee award” (emphasis in
original)). Further, this reasoning is consistent with the Fifth Circuit’s own
observations concerning the reach of Rule 408. See Lyondell Chem. Co. v. Occidental
Chem. Corp., 608 F.3d 284, 299 (5th Cir. 2010) (“We are mindful that Rule 408 should
not exclude more than required to effectuate its goals, which, after all, run counter to
the overarching policy favoring the admission of all relevant evidence.”)
Further, “[t]he Supreme Court has [at least] twice made clear that the most
critical factor in determining the reasonableness of a fee award in a civil rights suit
is the degree of success obtained.” Migis, 135 F.3d at 1047 (majority opinion)
(internal quotation marks omitted). Thus, “in a private civil rights suit, a district
court must consider any disparity between the amount of damages sought and the
amount of damages awarded.” Combs v. City of Huntington, Tex., 829 F.3d 388, 39596 (5th Cir. 2016). Plaintiff’s position on her settlement demands would leave the
Court with no evidence as to the amount of compensatory damages that she sought
in this case—and without such evidence, the Court would be hampered in its duty,
when calculating a reasonable fee, “to give adequate consideration to the result
obtained relative to the fee award, and the result obtained relative to the result
sought.” Migis, 135 F.3d at 1048 (holding that a district court abused its discretion
when it did not sufficiently consider these metrics when calculating an attorney’s fee
award).
The Court therefore points to plaintiff’s settlement demands for the limited
purpose of identifying the value that plaintiff assigned to her claims prior to trial.
20 See R. Doc. No. 182-1, at 1; see also R. Doc. No. 179-1, ¶¶ 13-14. The Court notes
that, prior to its dismissal of Lazaro’s claims, Lazaro was seeking $300,000 from
Louisiana and $150,000 from the Sheriff of Jefferson Parish. See R. Doc. No. 182-1,
at 1.
21 R. Doc. No. 184, at 5. In an affidavit, however, plaintiff’s counsel appears to offer
a different rationale behind this initial demand. According to counsel, “Mr. Arce
before his death authorized his attorneys to make a 2-million-dollar demand as to
each [d]efendant for the severe damages he incurred.” R. Doc. No. 179-1, ¶ 13. Then,
after Nelson’s death, plaintiff apparently “decided to respect Nelson’s wishes and
continue with his demand at the settlement conference because she saw first-hand
how dramatically [d]efendants’ violation of Nelson’s rights affected Nelson’s mental
health.” Id. ¶ 14.
5

Plaintiff then reduced her demand to $1 million per defendant. 22 Plaintiff
contends that she “indicated a willingness to negotiate,” but “[d]efendants did not
give any offer whatsoever.” 23
On the eve of trial, however, defendants offered plaintiff a combined $95,000,
inclusive of attorney’s fees and costs, to settle the case. 24 Plaintiff alleges that she
countered their offer with “an admission of liability, $95,000 in damages, plus an
application of attorney’s fees and costs.” 25

Defendants argue that “this never

occurred.” 26 In any event, no settlement was reached, and the case proceeded to trial.
After nearly a week of hearing the evidence, the jury found that Louisiana and
the Sheriff of Jefferson Parish had both discriminated against Nelson in violation of
Title II of the ADA and of § 504 of the Rehab Act, and that the discrimination had
been intentional. 27 However, the jury found that the discrimination had not caused
any injury to Nelson—a point hotly contested by the parties—and it therefore did not
award plaintiff any compensatory damages. 28 Per the parties’ stipulation, 29 the
Court then awarded plaintiff nominal damages of $1 as to each defendant. 30

See id. ¶ 13.
R. Doc. No. 184, at 5.
24 Id. at 4; R. Doc. No. 187, at 1.
25 R. Doc. No. 184, at 5.
Plaintiff contends that, on the eve of trial, plaintiff’s
attorney’s fees totaled $394,263.75, see R. Doc. No. 179, and costs totaled $18,853.92,
see R. Doc. No. 181.
26 R. Doc. No. 187, at 1.
27 See R. Doc. No. 172, at 1, 3; see also R. Doc. No. 163, at 1 (stipulation that, if the
jury found that a defendant had violated Title II of the ADA, then the jury also found
that the defendant had violated § 504 of the Rehab Act).
28 See R. Doc. No. 172, at 2, 4.
29 See R. Doc. No. 163, at 1.
30 See R. Doc. No. 175.
22
23

6

Plaintiff now requests attorney’s fees in the amount of $495,853.50 and costs
in the amount of $32,373.08. 31 Louisiana and the Sheriff Jefferson Parish both
oppose plaintiff’s request. 32
The Court will address each of plaintiff’s requests in turn.
II.
“In the United States, parties are ordinarily required to bear their own
attorney’s fees—the prevailing party is not entitled to collect from the loser.”
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res.,
532 U.S. 598, 602 (2001). However, numerous federal statutes depart from this
“American Rule,” authorizing courts to award an attorney’s fee to a “prevailing
party.” The ADA and the Rehab Act are among them.
In an action under Title II of the ADA, “the court . . ., in its discretion, may
allow the prevailing party, other than the United States, a reasonable attorney’s fee,
including litigation expenses, and costs.” 42 U.S.C. § 12205. Similarly, in an action
under § 504 of the Rehab Act, “the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as part of the costs.”
29 U.S.C. § 794a(b).
The Fifth Circuit generally interprets the ADA and the Rehab Act in pari
materia. See Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011). As the

R. Doc. No. 176, at 1. Plaintiff’s original memorandum in support of her motion
categorized paralegal expenses as costs. See R. Doc. No. 176-1, at 22. In her
supplemental memoranda, she added these expenses to her requested attorney’s fees
and subtracted them from her requested costs. See R. Doc. No. 179, at 1-3; R. Doc.
No. 181, at 1-2.
32 See R. Doc. No. 182; R. Doc. No. 183.
31

7

parties have not identified any reason why the Court should interpret the ADA and
the Rehab Act differently with respect to the question of attorney’s fees, the Court
will analyze the fee-shifting provisions of both statutes together. See id. at 224.
Further, “[j]urisprudence interpreting either [Title II of the ADA or § 504 of
the Rehab Act] is applicable to both.” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir.
2000). For example, the Fifth Circuit has followed its sister circuits and applied case
law addressing fee-shifting under 42 U.S.C. § 1988 and Title VII of the Civil Rights
Act of 1964 to fee-shifting under Title II of the ADA. See No Barriers, Inc. v. Brinker
Chili’s Texas, Inc., 262 F.3d 496, 498 (5th Cir. 2001). The same case law would
likewise apply to § 504 of the Rehab Act.
A.
The threshold question is whether plaintiff qualifies as a “prevailing party”
against defendants under the ADA and the Rehab Act. “The ‘touchstone’ of the
prevailing party analysis is whether there has been ‘a material alteration of the legal
relationship’ between the parties.” Grisham v. City of Fort Worth, Tex., 837 F.3d 564,
569 (5th Cir. 2016) (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 792 (1989)).
To modify the parties’ legal relationship, the modification must bear the
“necessary judicial imprimatur.” Buckhannon, 532 U.S. at 605 (emphasis in original).
Worded differently, “prevailing party” status requires the receipt of some type of
judicially sanctioned relief; an opposing party’s voluntary change in conduct will not

8

do. See id. at 603-06. 33 Thus, “[t]o qualify as a prevailing party, the plaintiff must
(1) obtain actual relief, such as an enforceable judgment or a consent decree; (2) that
materially alters the legal relationship between the parties; and (3) modifies the
defendant’s behavior in a way that directly benefits the plaintiff at the time of the
judgment or settlement.” Walker v. City of Mesquite, Tex., 313 F.3d 246, 249 (5th Cir.
2002).
“[T]he Supreme Court has emphasized that ‘the prevailing party inquiry does
not turn on the magnitude of the relief obtained.’” Sanchez v. City of Austin, 774 F.3d
873, 879 (5th Cir. 2014) (quoting Farrar v. Hobby, 506 U.S. 103, 114 (1992)). “A
judgment for damages in any amount, whether compensatory or nominal, modifies
the defendant’s behavior for the plaintiff’s benefit by forcing the defendant to pay an
amount of money he otherwise would not pay.” Farrar, 506 U.S. at 113 (emphasis
added). Thus, even a plaintiff who wins only nominal damages after seeking millions
of dollars in compensatory damages still qualifies as a “prevailing party.” See id. at
113 (concluding, where “petitioners received nominal damages instead of the $17
million in compensatory damages that they sought” and no other relief, id. at 114,

The Buckhannon Court rejected the so-called “catalyst theory” of “prevailing party”
status. See Buckhannon, 532 U.S. at 610. Under the “catalyst theory,” a plaintiff
could qualify as a “prevailing party” where she “has failed to secure a judgment on
the merits or a court-ordered consent decree, but has nonetheless achieved the
desired result because the lawsuit brought about a voluntary change in the
defendant’s conduct.” Id. at 600. In other words, the “catalyst theory” allowed for an
award of attorney’s fees even “where there is no judicially sanctioned change in the
legal relationship of the parties.” Id. at 605. Prior to Buckhannon, a sizable majority
of circuit courts—including the Fifth Circuit—endorsed the theory. See Buckhannon,
532 U.S. at 626-27 (Ginsburg, J., dissenting) (explaining the development of the
“catalyst theory” in the lower courts); Bailey v. Mississippi, 407 F.3d 684, 687 (5th
Cir. 2005) (explaining the formulation of the “catalyst theory” that the Fifth Circuit
applied before Buckhannon).
33

9

that the Fifth Circuit “erred in holding that petitioners’ nominal damages award
failed to render them prevailing parties”).
In this case, plaintiff won nominal damages from both Louisiana and the
Sheriff of Jefferson Parish. As such, longstanding Supreme Court precedent leaves
no doubt that plaintiff qualifies as a “prevailing party” under the ADA and the Rehab
Act as to each defendant. 34 See id. at 112 (“We therefore hold that a plaintiff who
wins nominal damages is a prevailing party under § 1988.”); see also Hidden Oaks
Ltd. v. City of Austin, 138 F.3d 1036, 1052 (5th Cir. 1998) (“Even a plaintiff who wins
only nominal damages qualifies as such a ‘prevailing party.’”).
B.
Although both fee-shifting provisions at issue in this case use discretionary
language such as “may,” courts have more or less transformed the “may” into a “must”
in the context of prevailing plaintiffs. Cf. Sanchez, 774 F.3d at 880 (5th Cir. 2014)
(“[T]he judicial gloss on § 1988, and its legislative history, have constrained that
discretion, in most cases converting the statute’s ‘may’ into a ‘must.’”).

Thus,

“[p]revailing plaintiffs ‘should ordinarily recover an attorney’s fee unless special
circumstances would render such an award unjust.’” Cruz v. Hauck, 762 F.2d 1230,
1233 (5th Cir. 1985) (quoting Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402
(1968)).

Surprisingly, defendants contend that plaintiff does not qualify as a “prevailing
party,” despite having received nominal damages from both of them. See R. Doc. No.
182, at 5; R. Doc. No. 183, at 10. Apparently, defense counsel did not carefully read
Farrar. (The Court assumes that defense counsel did in fact read Farrar, given that
they quote from and discuss the case in their memoranda in opposition to plaintiff’s
motion. See R. Doc. No. 182, at 4-5; R. Doc. No. 183, at 6-7.).
34

10

This special circumstances exception “is a narrow carve-out of the general rule
that prevailing civil-rights plaintiffs should be awarded fees.” Sanchez, 774 F.3d at
880; see also Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir. 1983) (describing the
exception as “extremely limited”). Defendants carry the high burden of establishing
the application of the exception. See Pruett v. Harris Cty. Bail Bond Bd., 499 F.3d
403, 417 (5th Cir. 2007) (“[D]efendants must make an ‘extremely strong showing’ of
special circumstances to avoid paying attorneys’ fees . . . .”)
In Riddell v. National Democratic Party, 624 F.2d 539 (5th Cir. 1980), the Fifth
Circuit reviewed the case law and identified two types of “unusual situations” in
which courts had denied attorney’s fees in full to a prevailing plaintiff: 1) “situations
in which the plaintiff filed under section 1983 to recover what was essentially a tort
claim for private monetary damages,” which “did not require injunctive relief or
confer significant civil rights to the public”; and 2) situations in which, “even though
the plaintiffs received the benefits desired from their litigation, their efforts did not
contribute to achieving those results.” 624 F.2d at 544. In the decades since Riddell,
the Fifth Circuit has “rejected a host of other asserted special circumstances.”
Grisham, 837 F.3d at 569. These include
a defendant’s good faith in enacting overturned laws or policies; a
defendant’s decision not to appeal a permanent injunction; a plaintiff’s
ability to pay its own costs; and the district court’s view that a prior
award of fees was sufficient or that a supplemental request included
some clerical work.
Id. (internal citations omitted).
Further, the Fifth Circuit has unequivocally held that “[a] prevailing plaintiff’s
degree of success is not a special circumstance that justifies a complete denial of [ ]
11

fees.” Sanchez, 774 F.3d at 881 (emphasis added). “Instead, the degree of success . .
. is a factor—often an important one—to consider in assessing the reasonableness of
the fee request.” Grisham, 837 F.3d at 568; see also Sanchez, 774 F.3d at 881
(discussing the distinction between the availability of a fee award and the
reasonableness of a fee request).
The Fifth Circuit has also heavily circumscribed the reach of Farrar v. Hobby,
506 U.S. 103 (1992). In Farrar, the Supreme Court affirmed the complete denial of a
fee award to prevailing plaintiffs, observing that, “[i]n a civil rights suit for damages,
. . . the awarding of nominal damages [ ] highlights the plaintiff’s failure to prove
actual, compensable injury.” Farrar, 506 U.S. at 115. Thus, “[w]hen a plaintiff
recovers only nominal damages because of his failure to prove an essential element
of his claim for monetary relief, the only reasonable fee is usually no fee at all.” Id.
(internal citation omitted). According to the Fifth Circuit, “the Farrar circumstance
of nominal but no compensatory damages only justifies a complete denial of fees when
monetary relief is the primary objective of a lawsuit.” 35 Grisham, 837 F.3d at 569;
see also Riley v. City of Jackson, Miss., 99 F.3d 757, 759-60 (5th Cir. 1996)
(understanding Farrar as “illustrative of cases where the plaintiff sought only money
damages and was essentially unsuccessful since he did not achieve in any way the
ultimate goal of the litigation”).
i.

The Court recognizes that “[a] district court abuses [its] discretion if it applies an
‘erroneous interpretation of [ ] special circumstances’ to justify denial of fees to an
otherwise prevailing party.” Grisham, 837 F.3d at 567-68.
35

12

Both defendants argue that the Court should not award plaintiff any attorney’s
fees. 36 Pointing out that “the only claim [against it] that went to trial was for
monetary relief” and arguing that “plaintiff never requested that [it] change its
policies in any way as part of the settlement negotiations,” Louisiana contends that
“[p]laintiff’s primary objective, indeed, her only objective, was to recover damages.” 37
Yet plaintiff only recovered nominal damages from Louisiana. In Louisiana’s view,
“[w]hile plaintiff may feel a personal sense of vindication by the jury’s determination
that [Louisiana] discriminated against Nelson Arce, this may not be a basis for
attorneys’ fees.” 38
Likewise, the Sheriff of Jefferson Parish argues that the Court should not
require it to pay any of plaintiff’s attorney’s fees. Arguing that plaintiff did not have
standing to pursue any form of relief against it other than monetary relief, the Sheriff
of Jefferson Parish contends that “the only objective available [to plaintiff] vis-à-vis
the claims against Sheriff Lopinto . . . was monetary relief.” 39 Indeed, the Sheriff of
Jefferson Parish goes further than plaintiff herself, contending that even Nelson did
not have standing to pursue prospective relief against it at any time during his
participation in the case. 40

The Court notes that defendants improperly conflate the “prevailing party” inquiry
and the “special circumstances” inquiry in their oppositions to plaintiff’s motion. See
R. Doc. No. 182, at 4-9; R. Doc. No. 183, at 6-10; see also Sanchez, 774 F.3d at 881
(“The two inquires—prevailing-party status and special circumstances—are
distinct.”). Despite defendants’ confusion on the law, the Court will consider whether
defendants’ arguments establish that special circumstances justify a denial of all fees
to plaintiff.
37 R. Doc. No. 182, at 5-7 (emphasis removed).
38 Id. at 5.
39 R. Doc. No. 183, at 6 (emphasis removed).
40 See id. at 4-5.
36

13

For her part, plaintiff argues that her case does not present a special
circumstance warranting an outright denial of fees, because her lawsuit
“accomplished [a] public goal” and thus her award of nominal damages was
“material.” 41

Plaintiff then points to various voluntary actions that she alleges

defendants took in response to the lawsuit and that she alleges have improved or will
improve the experience of deaf and hard-of-hearing individuals who interact with
defendants. 42
Plaintiff also points to this Court’s minute entry dismissing Nelson and
Lazaro’s motion for a preliminary injunction against Louisiana as moot. She argues
that the agreement referenced in the minute entry “itself confers prevailing party
status on the plaintiff sufficient to warrant an award of attorney’s fees,” because its
terms were allegedly “incorporated” into the minute entry. 43 That is to say, plaintiff
insists that Nelson “fully litigated the issue of injunctive relief” against Louisiana
prior to his death and that he “obtained the equivalent of an enforceable consent
decree as against” Louisiana. 44
ii.

R. Doc. No. 176-1, at 5-6 (quoting Farrar, 506 U.S. at 121 (O’Connor, J., concurring))
(internal quotation marks omitted).
42 See id. at 6, 9-10.
43 Id. at 7-8.
44 R. Doc. No 184, at 4. The Court notes that, in her filings in support of her motion
for attorney’s fees, plaintiff refers to herself as the party who “fully litigated the issue
of injunctive relief.” Id.; see also R. Doc. No.176-1, at 7 (referring to plaintiff’s
“emergency motion seeking preliminary injunctive relief” and “[p]laintiff’s motion for
preliminary injunction”). In a footnote in her memorandum in support of her motion
for attorney’s fees, however, plaintiff recognizes that “the motion was filed by then
living [p]laintiff Nelson Arce.” Id. n.4.
41

14

Before turning to the question of whether special circumstances justify the
complete denial of attorney’s fees to plaintiff, the Court must correct plaintiff’s
misrepresentation of the record.
Prior to Nelson’s death, the Court never evaluated the merits of Nelson’s
claims for injunctive relief, and never issued “the equivalent of an enforceable consent
decree,” against either defendant. 45 Lest one have any doubt, one need only look to
the minute entry on which plaintiff’ focuses. The minute entry speaks for itself:
A follow-up status conference was held on this date with counsel
participating on behalf of all parties. The Court and counsel discussed
the plaintiffs’ pending motion for a preliminary injunction against the
State of Louisiana and the Louisiana Department of Public Safety and
Corrections (collectively, “Department of Corrections” or “Department”).
Plaintiffs and the Department of Corrections informed the Court that
they have reached an agreement whereby the Department will provide
plaintiff Nelson Arce with access to an ASL certified interpreter, either
in person or through video conferencing, during all future meetings with
his probation officer. Plaintiffs and the Department will confer further
regarding the details of the arrangement.
Accordingly, as indicated at the conference and with the consent of the
parties,
IT IS ORDERED that the motion for a preliminary injunction is
DISMISSED AS MOOT and that the preliminary injunction hearing
discussed at the previous status conference is CANCELLED.
IT IS FURTHER ORDERED that all other dates and deadlines in this
case remain in effect, including the motion submission deadline, pretrial
conference date, and trial date. 46
In short, the minute entry recorded the information that the parties provided to the
Court—i.e., that the parties had reached an agreement that addressed the concern

Id. Nelson never requested a preliminary injunction against the Sheriff of
Jefferson Parish. For the reasons explained below, the Court would have denied such
a request. See infra note 56.
46 R. Doc. No. 43, at 1.
45

15

motivating Nelson and Lazaro’s motion for a preliminary injunction. In light of this
agreement and with the parties’ consent, the Court then dismissed the motion as
moot.
The minute entry is not, nor was it ever meant to be, a consent decree that
resolved the merits of Nelson’s claim for injunctive relief against Louisiana. Cf.
United States v. City of New Orleans, 731 F.3d 434, 439 (5th Cir. 2013) (“Consent
decrees cannot be approved without due consideration by the district court and, once
approved, have the force of a legal judgment.”); United States v. Chromalloy Am.
Corp., 158 F.3d 345, 349 (5th Cir. 1998) (“A consent decree is akin to a contract yet
also functions as an enforceable judicial order.”). Further, even if the Court had
adopted the agreement mentioned in the minute entry as its own order—it did not—
the agreement alone would not confer “prevailing party” status. 47 Cf. Yousuf v.
Motiva Enter. LLC, 246 Fed. App’x 891 (5th Cir. 2007) (per curiam) (concluding that
two agreements between the parties, one which the district court “adopted . . . as an
order of the court” and the other which facilitated the district court’s issuance of a

The Fifth Circuit has recognized that a preliminary injunction may qualify as
judicially sanctioned relief for purposes of “prevailing party” status in at least one
limited situation: where the preliminary injunction is “coupled with the [defendant’s]
subsequent mooting of the case.” Dearmore v. City of Garland, 519 F.3d 517, 524 (5th
Cir. 2008). To qualify as a “prevailing party” in this situation, “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.” Id.
Nelson did not “win a preliminary injunction,” let alone one “based upon an
unambiguous indication of probable success on the merits of [his] claims as opposed
to a mere balancing of the equities in [his] favor.” Id. Further, it is beyond dispute
that the Court’s minute entry did not cause Louisiana to do anything to moot the case
or any claims in it. See id.
47

16

preliminary injunction, id. at 892, did not entitle the plaintiff to attorney’s fees and
costs under the federal Petroleum Marketing Practices Act, in part because “the
district court did not engage in any consideration of the merits of [the plaintiff’s]
claim, even to a minimal degree,” id. at 895).
Plaintiff’s “prevailing party” status is due solely to her receipt of nominal
damages at the conclusion of trial. With plaintiff’s misrepresentation set straight,
the Court will now proceed to the subject of special circumstances.
iii.
After carefully considering the parties’ arguments and the applicable law, the
Court concludes that special circumstances justify the denial of attorney’s fees to
plaintiff.
As the Court previously explained, “the Farrar circumstance of nominal but no
compensatory damages only justifies a complete denial of fees when monetary relief
is the primary objective of a lawsuit”—an objective that nominal damages do not
achieve. Grisham, 837 F.3d at 569. In an attempt to demonstrate that she is entitled
to an award of attorney’s fees, plaintiff points the Court to the initial complaint filed
by Nelson and Lazaro on August 22, 2016, which sought declaratory and injunctive
relief, and compensatory damages. 48 Plaintiff places great significance on this fact,
arguing that “there is no way to characterize [her] claims as seeking solely monetary

48

See R. Doc. No. 1, at 13-14.
17

relief.” 49 Further, plaintiff relies on Justice O’Connor’s Farrar concurrence 50 to argue
that her success was “material” and thus fees are warranted. 51
However, the relevant question is not whether a party who wins nominal
damages alone only pursued monetary relief or whether the nominal damages
represents a “material” success. 52 Rather, the relevant question is whether monetary

R. Doc. No. 184, at 3 (emphasis removed).
Justice O’Connor wrote separately in Farrar “to explain more fully why, in [her]
view, it [was] appropriate to deny fees in [the] case.” Farrar, 506 U.S. at 116
(O’Connor, J., concurring). Justice O’Connor opined that Joseph Farrar’s “success
might be considered material if it also accomplished some public goal other than
occupying the time and energy of counsel, court, and client.” Id. at 121-22. She
ultimately did not discern any public goal served by the Farrar plaintiff’s nominal
damages award. See id. at 122. Thus, Justice O’Connor concluded that “the relevant
indicia of success,” which included “the public purpose served” by a plaintiff’s success,
“all point[ed] to a single conclusion: Joseph Farrar achieved only a de minimis
victory” that did not warrant an award of attorney’s fees. Id.
51 R. Doc. No. 176-1, at 5-10.
52 None of Justice O’Connor’s colleagues joined her concurrence.
Further, the
Supreme Court has never signaled that the lower courts should follow any opinion in
Farrar other than the one that garnered a majority of the justices.
That being said, the Court acknowledges that Justice O’Connor’s concurrence
has played an outsized role in shaping circuit law post-Farrar. A number of circuits
have more or less adopted it as circuit law. See Diaz-Rivera v. Rivera-Rodriguez, 377
F.3d 119, 125 (1st Cir. 2004); Jama v. Esmor Correctional Serv., Inc., 577 F.3d 169,
176 (3d Cir. 2009); Mercer v. Duke University, 401 F.3d 199, 203-09 (4th Cir. 2005);
Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726, 731 (7th Cir. 1995);
Jones v. Lockhart, 29 F.3d 422, 423-24 (8th Cir. 1994); Cummings v. Connell, 402
F.3d 936, 947 (9th Cir. 2005); Phelps v. Hamilton, 120 F.3d 1126, 1131-33 (10th Cir.
1997)); see also Glowacki v. Howell Pub. Sch. Dist., 566 Fed. App’x 451, 453-55 & 453
n.1 (6th Cir. 2014) (applying Justice O’Connor’s concurrence, but declining to adopt
it as circuit law). On occasion, the Fifth Circuit has also incorporated insights offered
by Justice O’Connor in her concurrence into its opinions. See Riley, 99 F.3d at 760;
Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1052 (5th Cir. 1998).
The Fifth Circuit has not, however, adopted the factors proposed by Justice
O’Connor to determine whether a technically prevailing plaintiff should nonetheless
receive no fee award under Farrar. Compare Grisham, 837 F.3d at 569 (“We have
repeatedly held that the Farrar circumstance of nominal but no compensatory
damages only justifies a complete denial of fees when monetary relief is the primary
objective of a lawsuit), with Farrar, 506 U.S. at 122 (O’Connor, J., concurring) (“In
this case, the relevant indicia of success—the extent of relief, the significance of the
49
50

18

relief was “the primary objective of a lawsuit.” Grisham, 837 F.3d at 569 (emphasis
added).
The Fifth Circuit has never held that the “primary objective” inquiry should
turn on a party’s initial pleading—and for good reason. As litigation proceeds, a party
may voluntarily abandon her quest to obtain certain types of judicially sanctioned
relief, while continuing to pursue others, thus clarifying through her actions the
primary objective of her lawsuit. Indeed, in Farrar itself, Joseph Farrar originally
sought both “monetary and injunctive relief” against numerous individuals when he
initiated his lawsuit. See Farrar, 506 U.S. at 106. However, “[l]ater amendments to
the complaint . . . dropped the claim for injunctive relief, and increased the request
for damages to $17 million.” 53 Id. Thus, by the time the case was tried before a jury,
the only form of relief still in play was monetary relief. It is no surprise, then, that
the Supreme Court would view the primary—indeed, exclusive—objective of Farrar’s
lawsuit to be to receive a damages award. See id. at 114 (“In this case, petitioners
received nominal damages instead of the $17 million in compensatory damages that
they sought.”); id. at 115 (“In a civil rights suit for damages, . . . the awarding of
nominal damages . . . highlights the plaintiff’s failure to prove actual, compensable
injury.” (emphasis added)).

legal issue on which the plaintiff prevailed, and the public purpose served—all point
to a single conclusion: Joseph Farrar achieved only a de minimis victory. As the Court
correctly holds today, the appropriate fee in such a case is no fee at all.”). The Court
will not tread into jurisprudential territory that the Fifth Circuit appears to have
chosen to avoid.
53 It appears that Joseph Farrar dropped his injunctive relief claim before his death.
See Estate of Farrar v. Cain, 941 F.2d 1311, 1312 (5th Cir. 1991), aff’d sub nom.,
Farrar v. Hobby, 506 U.S. 103 (1992).
19

More fundamentally, a party’s pleadings—whether initial or amended—do not
conclusively establish that the party has a legal right to pursue all forms of relief
requested in the pleadings. Despite requesting prospective relief in her amended
complaint, 54 for example, plaintiff never alleged that she “has sustained or is
immediately in danger of sustaining some direct injury as the result of the challenged
. . . conduct” of either defendant. Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563
(5th Cir. 1998) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)) (internal
quotation marks omitted). Thus, plaintiff never had standing to pursue prospective
relief against defendants—and she conceded as much well before trial. 55 Similarly,
while Nelson had standing to pursue prospective relief against Louisiana—he was
still on probation at the time that he initiated this suit and until his unfortunate
death—Nelson did not have standing at any time during his participation in this case
to pursue prospective relief against the Sheriff of Jefferson Parish. 56

See R. Doc. No. 69, at 13-14.
See R. Doc. No. 79.
56 Although no party questioned Nelson’s standing to pursue prospective relief
against the Sheriff of Jefferson Parish while Nelson was alive, the Court now
concludes that Nelson did not have standing to do so. Nelson was released from the
JPCC on March 7, 2016. See R. Doc. No. 1, ¶ 34. Yet he did not file suit until August
22, 2016—over five months later. Plaintiff has not identified even one case
authorizing a former prisoner to pursue prospective relief against the institution at
which he was incarcerated after his release from the institution. See R. Doc. No. 184,
at 10-11. This is no surprise: “The general rule is that a prisoner’s transfer or release
from a jail moots [any] individual claim for declaratory and injunctive relief”
involving conditions at the jail that the prisoner otherwise had standing to bring
during his period of incarceration. McKinnon v. Talladega Cty., Ala., 745 F.2d 1360,
1363 (11th Cir. 1984) (citing Holland v. Purdy, 457 F.2d 802 (5th Cir. 1972)); cf.
Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (“Herman’s transfer from the
ECDC to the Dixon Correctional Institute in Jackson, Louisiana, rendered his claims
for declaratory and injunctive relief moot.”).
However, “if a reasonable likelihood exists that the plaintiff will again be
subjected to the allegedly unconstitutional actions,” then “[j]urisdiction over a
54
55

20

Therefore, the Court will not determine the primary objective of the lawsuit by
examining the pleadings, as plaintiff suggests. Instead, the Court will determine the
primary objective of the lawsuit by considering what types of judicially sanctioned
relief plaintiff pursued to a court-ordered resolution of her claims, such as a judgment
on the merits or to a settlement agreement enforced through a consent decree. 57 Cf.
Buckhannon, 532 U.S. at 603-04 (concluding, in the process of interpreting the term
“prevailing party” as used in fee-shifting provisions of federal civil rights laws, that

plaintiff’s claims for future relief is appropriate” even after the plaintiff is no longer
exposed to those unconstitutional actions. Wallace v. Texas Tech Univ., 80 F.3d 1042,
1047 n.3 (5th Cir. 1996) (emphasis removed). To that end, plaintiff contends that
“Nelson at the time of filing his complaint was on active probation and had charges
pending in Plaquemines Parish so with those two factors combined, there was a
‘sufficient likelihood of future harm’ to confer standing upon Nelson” to pursue
prospective relief against the Sheriff of Jefferson Parish. R. Doc. No. 184, at 11. The
Court disagrees.
Plaintiff’s suggestion that Nelson was reasonably likely to find himself
incarcerated at JPCC again in the future amounts to nothing more than rank
speculation driven by a series of assumptions, including assumptions about how
Nelson’s charges in Plaquemines Parish would be resolved and how various actors in
the Louisiana criminal justice system would react to that resolution. Cf. Humphreys
v. City of Ganado, Tex., 467 Fed. App’x 252, 257 (5th Cir. 2012) (“Here, Humphreys
lacks standing to seek an injunction against future prosecution for the same conduct
because he alleges no facts indicating that such prosecution is likely, or even
threatened. Indeed, any threat of future prosecution is highly speculative.”);
Herman, 238 F.3d at 665 (“[A]ny suggestion of relief based on the possibility of
transfer back to the ECDC is too speculative to warrant relief.”). The “continuing
controversy” required to seek injunctive or declaratory relief “may not be conjectural,
hypothetical, or contingent; it must be real and immediate, and create a definite,
rather than speculative threat of future injury.” Bauer v. Texas, 341 F.3d at 358.
“[T]he mere possibility of future consequences is too speculative to give rise to a case
or controversy.” Bailey v. Southerland, 821 F.2d 277, 279 (5th Cir. 1987). Therefore,
Nelson did not have standing to pursue prospective relief against the Sheriff of
Jefferson Parish.
57
Where the basis for a plaintiff’s “prevailing party” status is a preliminary injunction
grounded in the plaintiff’s likely success on the merits, see supra note 47, then the
preliminary injunction functions as the equivalent of a court-ordered resolution of her
claims.
21

its prior decisions “establish that enforceable judgments on the merits and courtordered consent decrees create the ‘material alteration of the legal relationship of the
parties’ necessary to permit an award of attorney’s fees”).
This approach has much to commend it. First, and critically, it is consistent
with relevant Fifth Circuit case law.

Cf. Grisham, 837 F.3d at 569 (“Grisham,

however, is not an unsuccessful seeker of compensatory damages. He obtained the
relief he sought: nominal damages in recognition that his rights were violated and
injunctive relief prohibiting the City from violating his rights again.”); Sanchez, 774
F.3d at 883 (“Unlike Farrar, Appellants’ primary goal in this litigation was to force
the City to stop issuing [criminal-trespass notices, or] CTNs. Appellants achieved
that goal by securing a permanent injunction against future enforcement of the CTN
policy. A fee award was therefore appropriate.”); Riley v. City of Jackson, Miss., 99
F.3d 757, 760 (5th Cir. 1996) (“The Appellants here requested first and foremost
injunctive relief and secondarily monetary damages and were, for the most part,
successful in obtaining the relief they sought. The Appellants obtained, in addition
to the nominal damages, injunctive relief by way of a change in the Appellees’ conduct
that redressed the Appellants’ grievances . . . .”); Pembroke v. Wood County, Texas,
981 F.2d 225, 227, 231 n.27 (5th Cir. 1993) (distinguishing Farrar on the ground that
the plaintiff class “waived its damages claim and proceeded to trial seeking only
declaratory and injunctive relief,” id. at 227), abrogated on other grounds by
Buckhannon, 532 U.S. at 610. 58

In her memorandum in support of her motion, plaintiff cites Pembroke for the
proposition that attorney’s fees are warranted on the basis of voluntary changes that
defendants allegedly implemented as a direct result of the lawsuit. See R. Doc. No.
58

22

Further, this approach harmonizes the “primary objective” test with the
“prevailing party” inquiry by keeping the Court’s focus squarely on what permits
plaintiff to request attorney’s fees in the first place: the receipt of judicially sanctioned
relief. Cf. Buckhannon, 532 U.S. at 606 (“We cannot agree that the term ‘prevailing
party’ authorizes federal courts to award attorney’s fees to a plaintiff who, by simply
filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be
determined), has reached the ‘sought-after destination’ without obtaining any judicial
relief.”). Simply put, having determined that plaintiff qualifies for “prevailing party”
status due to her receipt of some form of judicially sanctioned relief, the Court will
now consider what forms of judicially sanctioned relief plaintiff pursued to a courtordered resolution of her claims.

176-1, at 10. In Pembroke, the Fifth Court determined that the plaintiffs “should
receive reasonable attorney’s fees and costs,” because the plaintiffs were “entitled to
prevailing party status.” 981 F.2d at 231. They were entitled to this status, the Fifth
Circuit explained, because “[t]he goal of their suit was accomplished as a result of
their filing suit and the defendant has failed to show that the improvements were
‘wholly gratuitous.’” Id.
In short, the Fifth Circuit concluded in Pembroke that the plaintiffs were
entitled to “prevailing party” status under the “catalyst theory.” As the Court
previously explained, the Supreme Court has rejected this theory; voluntary actions
by a defendant can no longer support “prevailing party” status under federal civil
rights laws. See supra note 33.
Moreover, it is axiomatic that “the determination of fees ‘should not result in a
second major litigation.’” Fox v. Vice, 563 U.S. 826, 838 (2011) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983)). If the Court treated defendants’ voluntary
changes in conduct as relevant to any stage of the attorney’s fees inquiry, then just
such a result seems inevitable. The parties would certainly contest what changes
were made and why, and the Court would be required to resolve these intensely
factual disputes.
In any event, the Court need not conclusively determine whether voluntary
conduct by a defendant may be relevant at some point in the attorney’s fee analysis.
It is enough to say that an examination of such conduct is not relevant to the question
of whether “monetary relief is the primary objective of a lawsuit”—the question
currently facing the Court. Grisham, 837 F.3d at 569.
23

It also does not hurt that this approach is consistent with old-fashioned
common sense. After all, the reason that any party initiates and maintains a lawsuit
is because the party wants to receive some form of judicially sanctioned relief—and
to receive such relief, a court-ordered resolution of a party’s claims is necessary.
Applying this approach to this case, the only type of judicially sanctioned relief
that plaintiff pursued to a court-ordered resolution of her claims—indeed, the only
type of relief that plaintiff herself had standing to pursue at all 59—was monetary
relief. Thus, the Court concludes that “monetary relief [was] the primary objective of
[the] lawsuit.” Grisham, 837 F.3d at 569.
Plaintiff failed to achieve this objective. She aimed for compensatory damages
numbering as high as the millions, and the jury awarded zero. Plaintiff is walking
away from this case with an award of $1 in nominal damages as to each defendant
and no other judicially sanctioned relief.
“In a civil rights suit for damages, . . . the awarding of nominal damages [alone]
. . . highlights the plaintiff’s failure to prove actual, compensable injury.” Farrar, 506
U.S. at 115. “When a plaintiff recovers only nominal damage because of [her] failure
to prove an essential element of [her] claim for monetary relief, the only reasonable
fee is usually no fee at all.” Id. (internal citation omitted); see also Allstate Ins. Co. v.
Plambeck, 802 F.3d 665, 678 (5th Cir. 2015) (“[I]f a plaintiff recovers only nominal
damages, the proper fee usually is none at all, even though the plaintiff has won his

With respect to the Sheriff of Jefferson Parish, the same can be said even of Nelson.
See supra note 56. Thus, as far as the Sheriff of Jefferson Parish is concerned, this
case from its inception has only been about monetary relief: it is the only form of relief
that either Nelson or plaintiff had any legal right to pursue against the Sheriff of
Jefferson Parish.
59

24

case.”). This is because, where “substantial fees are expended in pursuit of a remedy
that is never achieved, an award of fees amounts to a windfall for the unsuccessful
attorneys.” Grisham, 837 F.3d at 569. For these reasons, the Court will not award
attorney’s fees to plaintiff. 60
The Court will now turn to plaintiff’s request for costs.
III.
“[A] district court may not award costs unless it first determines that the
expenses are allowable cost items and that the costs are reasonable, both in amount
and in necessity to the litigation.” Katz v. State Farm Fire & Cas. Co., No. 06-4155,
2009 WL 3712588, at *1 (E.D. La. Nov. 4, 2009) (Vance, J.) (internal quotation marks
omitted). With respect to “allowable” costs, Federal Rule of Civil Procedure 54(d)(1)

Having concluded that special circumstances justify the denial of all fees to
plaintiff, the Court will not proceed to the two-step analysis in which courts generally
must engage to determine an appropriate fee award: 1) “calculat[ing] a ‘lodestar’ fee
by multiplying the reasonable number of hours expended on the case by the
reasonable hourly rates for the participating lawyers,” and 2) “consider[ing] whether
the lodestar figure should be adjusted upward or downward depending on the
circumstances of the case.” Migis, 135 F.3d at 1047; see also Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974) (articulating the twelve factors that a court
should consider to adjust the lodestar).
Were the Court to proceed to this analysis, however, the Court doubts that it
would award plaintiff anything near her requested $495,853.50 in attorney’s fees. Cf.
Migis, 135 F.3d at 1048 (“The attorney’s fee award was over six and one-half times
the amount of damages awarded. Migis sought over twenty-six times the damages
actually awarded. Regardless of the effort or ability of her lawyers, we conclude that
these ratios are simply too large to allow the fee award to stand.”); Smith v. Acevedo,
No. 09-620, 2010 WL 11512274, at *2 (W.D. Tex. Nov. 22, 2010) (Sparks, J.) (“Having
considered all of the Johnson factors, the evidence provided by Smith’s counsel, and
the arguments and objections of the parties, the Court awards $2,500 in attorneys’
fees and costs to Smith’s counsel. This sum appropriately reflects Smith’s very
limited success, while still recognizing the useful time spent by counsel, the minor
controversy involved in the case, and the importance of civil rights litigation.”), aff’d,
478 Fed. App’x 116 (5th Cir. 2012).
60

25

provides that a “prevailing party” in federal court “should be allowed” to recover their
non-attorney-fee “costs.” “There is a strong presumption under Rule 54(d)(1) that the
prevailing party will be awarded costs.” Cheatham v. Allstate Ins. Co., 465 F.3d 578,
586 (5th Cir. 2006)
Title 28, United States Code, § 1920 “enumerates expenses that a federal court
may tax as a cost under the discretionary authority found in Rule 54(d).” Crawford
Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987). These categories
include:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily
obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any
materials where the copies are necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
28 U.S.C. § 1920; see also Mota v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d
512, 529 (5th Cir. 2001) (summarizing § 1920).
“The Supreme Court has indicated that federal courts may only award those
costs articulated in section 1920 absent explicit statutory or contractual
authorization to the contrary.” Mota, 261 F.3d at 529. In this case, the ADA provides
the Court with an additional source of authority to award costs.

26

The relevant provision of the ADA—codified at 42 U.S.C. § 12205—provides
that “the court . . ., in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee, including litigation expenses, and costs.”
Under this section, “courts also allow an award of costs for Federal Express, electronic
research, long-distance calls, printing, attorney-fee declarants, and computer-based
research.” Gilmore v. Elmwood S., L.L.C., No. 13-37, 2015 WL 1245770, at *7 (E.D.
La. Mar. 18, 2015) (Knowles, M.J.) (citing Praseuth v. Rubbermaid, Inc., 406 F.3d
1245, 1259 (10th Cir. 2005); InvesSys, Inc. v. McGraw–Hill Cos., Ltd., 369 F.3d 16, 22
(1st Cir. 2004)).
Further, the U.S. Department of Justice (“DOJ”) has promulgated a regulation
implementing § 12205 with respect to nondiscrimination on the basis of disability in
state and local government services. See 28 C.F.R. § 35.175. DOJ’s regulation parrots
the language of § 12205. Compare id., with 42 U.S.C. § 12205.
According to DOJ guidance interpreting this regulation, “[l]itigation expenses
include items such as expert witness fees, travel expenses, etc.” 61 28 C.F.R. § Pt. 35,
App. B. Courts in this circuit have relied on DOJ guidance when determining what
items fall under the rubric of “litigation expenses” under the ADA. See, e.g., Jones v.
White, No. 03-2286, 2007 WL 2427976, at *8 (S.D. Tex. Aug. 22, 2007) (Rosenthal, J.);
see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597-98 (1999) (“Because [DOJ]

DOJ’s guidance further notes that “[t]he [House] Judiciary Committee Report [on
the ADA] specifies that such items”—namely, litigation expenses—“are included
under the rubric of ‘attorneys fees’ and not ‘costs’ so that such expenses will be
assessed against a plaintiff only under the standard set forth in Christiansburg
Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978).”
28 C.F.R. § Pt. 35, App. B (citing H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 73
(1990)).
61

27

is the agency directed by Congress to issue regulations implementing Title II, its
views warrant respect.”); Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530,
536 n.34 (5th Cir. 2016) (“The Supreme Court instructs that the DOJ’s guidance in
reference to the ADA is entitled to deference.”); Frame, 657 F.3d at 224 (“[B]ecause
Congress directed [DOJ] to elucidate Title II with implementing regulations, DOJ’s
views at least would ‘warrant respect’ and might be entitled to even more deference.”).
A.
Plaintiff requests a total of $32,373.08 in costs, divided into nine categories of
expenses:
Fees of the Clerk:

$400.00

Fees for summons and subpoena:

$1,567.24

Fees for printed or electronically recorded transcripts:

$7,179.24

Fees for disbursements for printing:

$59.37

Travel expenses for depositions, court conferences, and trial:

$12,357.68

Computerized legal research:

$1,124.38

Expert witness:

$8,587.34

Postage/Courier:

$273.05

Interpreter:

$824.78 62

As a preliminary matter, the Court concludes that plaintiff supports her request with
proper documentation. 63 Further, having reviewed plaintiff’s documentation and
considered the necessity of these expenses to plaintiff’s case, and noting the fact that

62
63

R. Doc. No. 181, at 1.
See R. Doc. No. 188-1.
28

defendants have not raised any challenges to plaintiff’s request for costs, 64 the Court
concludes that these expenses are both reasonable in amount and were necessary to
the litigation. See Katz, 2009 WL 3712588, at *1.
The next question is whether these expenses are “allowable cost items”—in
other words, expenses that plaintiff has a legal right to recover. Id.
B.
After reviewing the applicable law, the Court will award plaintiff some—but
not all—of these expenses as “costs.” Under § 1920, plaintiff may recover five of her
nine categories of expenses: 65
Fees of the Clerk:

$400.00

Fees for summons and subpoena: 66

$1,567.24

Defendants do not address plaintiff’s request for costs in their oppositions to
plaintiff’s motion. See R. Doc. No. 182; R. Doc. No. 183. Therefore, defendants have
waived any challenge concerning the request. Cf. United States v. Scroggins, 599
F.3d 433, 446-47 (5th Cir. 2010) (explaining that a party waives any issue that it fails
to satisfactorily brief on appeal).
65 Plaintiff appears to suggest that her counsel’s travel expenses are recoverable
under § 1920. See R. Doc. No. 176-1, at 24 & n.18. If so, plaintiff is mistaken. See
Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993) (“The district court
denied Coats’ request for travel expenses in the amounts of $711.69 and $642.35,
$1,744.96 for ‘blow-ups’ used at trial, and $1,175.00 in video technician fees incurred
for video depositions. These expenses are not included in § 1920 and therefore are
not recoverable.”), aff’d en banc, 61 F.3d 1113 (5th Cir. 1995).
66 As Judge Fallon has recognized:
64

Although 28 U.S.C. § 1920 does not expressly authorize the payment of
private process servers, the Fifth Circuit acknowledged, in Gaddis v.
United States, 381 F.3d 444, 456 (5th Cir. 2004), that section 1920(1)’s
phrase “fees of the clerk and marshal” has been interpreted to include
private process servers’ fees as taxable costs “because the service of
summonses and subpoenas is now done almost exclusively by private
parties employed for that purpose, not the U.S. Marshal.”
29

Fees for printed or electronically recorded transcripts:

$7,179.24

Fees for disbursements for printing:

$59.37

Interpreter:

$824.78

Moreover, § 12205 permits plaintiff to recover two additional categories of expenses:
Computerized legal research:

$1,124.38

Postage/Courier:

$273.05

See Gilmore, 2015 WL 1245770, at *7. Because the Court concludes that these
expenses—totaling $11,428.06—are sufficiently supported and reasonable, the Court
will award them.
However the Court will not award plaintiff’s requested travel expenses
($12,357.68) or expert witness expenses ($8,587.34).

As the Court previously

explained, both § 12005 and DOJ’s regulation implementing § 12205 provide that “the
court . . ., in its discretion, may allow the prevailing party . . . a reasonable attorney’s
fee, including litigation expenses, and costs.” 42 U.S.C. § 12205; 28 C.F.R. § 35.175.
Worded differently, a “prevailing party” may recover an “attorney’s fee” and “costs”
under § 12205 and its implementing regulation, with “litigation expenses” included
as part of the “attorney’s fees.”

See, e.g., Jones, 2007 WL 2427976, at *7-*8

MCI Commc’ns Servs., Inc. v. Hagan, No. 07-0415, 2010 WL 11549409, at *2 (E.D.
La. Feb. 12, 2010) (Fallon, J.); see also Cashman Equip. Corp. v. Smith Marine
Towing Corp., No. 12-945, 2013 WL 12229038, at *11 (E.D. La. June 27, 2013)
(Wilkinson, M.J.) (observing that “district courts in the Fifth Circuit have in recent
years begun to award costs for private process servers, though some have limited
those costs to the amount charged for service by the U.S. Marshal” and citing cases),
report and recommendation adopted, No. 12-945, 2013 WL 12228976 (E.D. La. July
12, 2013) (Vance, J.); Katz, 2009 WL 3712588, at *2 (“Parties routinely employ private
process servers . . . . And courts often allow for the taxation of such costs, especially
when locating witnesses is cumbersome.”).
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(incorporating “litigation expenses” into the “attorney’s fee” awarded pursuant to §
12205). DOJ has interpreted the phrase “litigation expenses” in its regulation to
include travel expenses and witness expert expenses. 28 C.F.R. § Pt. 35, App. B; see,
e.g., Jones, 2007 WL 2427976, at *7-*8 (relying on DOJ guidance to categorize expert
fees as “litigation expenses”). Plaintiff offers no reason why the Court should deviate
from this interpretation.
The Court has already concluded that an award of attorney’s fees would be
inappropriate in this case. Because “litigation expenses” such as travel expenses and
expert witness expenses are a component of the attorney’s fee under § 12205, the
Court will likewise not award these expenses to plaintiff.
C.
Notwithstanding the Court’s resolution of plaintiff’s request for expert witness
expenses, the Court advises plaintiff that her expert witness qualifies for the
standard witness fees and allowances available under § 1920(3) and defined by 28
U.S.C. § 1821. These fees and allowances—which “shall be paid” to a witness to cover
“attendance at any court of the United States” or “attendance . . . before any person
authorized to take his deposition pursuant to any rule or order of a court of the United
States,” 28 U.S.C. §§ 1821(a)(a)—include a per diem, travel expenses, and a
subsistence allowance, see id. §§ 1821(a)-(d).
If plaintiff intends to recover § 1920(3) fees and allowances on behalf of her
expert, then she may do so by filing a request with the Clerk through the procedures
specified in Local Rule 54.3. Plaintiff must file such a request by the deadline set
forth below.
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VI.
The attorney’s fees inquiry ultimately revolves around reasonableness: what
is a reasonable fee? Plaintiff Ana Christine Shelton sought as much as millions in
compensatory damages. She achieved only nominal damages and no other judicially
sanctioned relief.
As the Supreme Court has pointed out, “[w]hen a plaintiff recovers only
nominal damage because of [her] failure to prove an essential element of [her] claim
for monetary relief, the only reasonable fee is usually no fee at all.” Farrar, 506 U.S.
at 115. In this case, where plaintiff’s primary objective was to receive monetary relief
and she did not succeed, reasonableness demands no less a result.
Accordingly,
IT IS ORDERED that plaintiff’s motion is GRANTED IN PART and
DENIED IN PART.
IT IS FURTHER ORDERED that plaintiff’s request for attorney’s fees is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s request for costs is GRANTED
and that plaintiff is awarded costs in the amount of $11,428.06, as set forth herein.
Each defendant shall be responsible for one-half of the costs, or $5,714.03 each.
IT IS FURTHER ORDERED that plaintiff may file a request with the Clerk
through the procedures specified in Local Rule 54.3 to recover § 1920(3) witness fees
and allowances. If plaintiff intends to recover such fees and allowances, then plaintiff
shall file her request with the Clerk by March 15, 2018.

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New Orleans, Louisiana, March 1, 2018.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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