International Outdoor, Inc. v. Troy, City of
Filing
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OPINION AND ORDER denying 36 plaintiff's Motion for Attorney Fees. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
INTERNATIONAL OUTDOOR, INC.,
Plaintiff,
Case No. 17-10335
HON. GEORGE CARAM STEEH
vs.
CITY OF TROY,
Defendant.
______________________________/
OPINION AND ORDER DENYING PLAINTIFF’S
MOTION FOR ATTORNEY FEES (DOC. 36)
Plaintiff, International Outdoor, Inc. filed a motion for an award of
attorney’s fees, which is opposed by Defendant City of Troy. For the
reasons explained below, Plaintiff’s motion is denied.
BACKGROUND FACTS
Plaintiff is an outdoor advertising company that erects billboards. On
February 2, 2017, Plaintiff filed its complaint against the City of Troy,
alleging that its Sign Ordinance violated the First Amendment. In Count I,
Plaintiff alleged that the ordinance’s variance process created an
unconstitutional prior restraint on speech. In Count II, Plaintiff alleged that
the ordinance was an unconstitutional regulation based upon content.
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Defendant moved to dismiss the complaint pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). On June 30, 2017, the court
denied Defendant’s motion with respect to Count I, and granted the motion
with respect to Count II. Defendant sought reconsideration, which the
court denied on December 20, 2017. In doing so, the court emphasized
that, in allowing Count I to proceed, it “did not rule that the Ordinance was
an unconstitutional prior restraint. It merely concluded that plaintiff had
stated a claim upon which relief could be granted.” Doc. 13 at 3.
Thereafter, the parties engaged in discovery. Plaintiff filed a motion
for summary judgment on September 20, 2018. The City of Troy amended
its Sign Ordinance on October 1, 2018, to provide additional standards for
and limits on granting variances. On October 31, 2018, Defendant also
filed a motion for summary judgment.
Plaintiff conceded that the amended ordinance rendered its claims for
declaratory and injunctive relief moot. The court found, however, that
Plaintiff’s claim for damages was not moot, and went on to discuss the
merits of Count I. The court found that “the variance standard in the Troy
Sign Ordinance, in effect prior to the 2018 amendment, creates an
impermissible prior restraint in violation of the First Amendment.” Doc. 34
at 10. The court also found that the variance provision was severable from
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the rest of the ordinance, and that the surviving provisions precluded
Plaintiff’s claim. Plaintiff’s proposed signs would exceed the Sign
Ordinance’s size limitations, which Plaintiff did not challenge. “Because
these unchallenged provisions would preclude Plaintiff from erecting its
signs, any injury suffered by Plaintiff as a result of the application of the
severable variance provision is not redressable.” Doc. 34 at 12 (citing
Midwest Media Property, L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 46162, 464-65 (6th Cir. 2007)). In order words, the court determined that
Plaintiff ultimately lacked standing. Midwest Media, 503 F.3d at 461-62
(plaintiff must show, as an element of standing, that “the injury will be
redressed by a favorable decision”).
The court entered an order granting Defendant’s motion and denying
Plaintiff’s motion, as well as a judgment in favor of Defendant, on January
18, 2019. Contending that it is the prevailing party, Plaintiff now seeks
attorney’s fees pursuant to 42 U.S.C. § 1988.
LAW AND ANALYSIS
Section 1988 provides that in a § 1983 action, “the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee as
part of the costs. . . .” 42 U.S.C. § 1988(b). The term “prevailing party” is “a
legal term of art.” Buckhannon Bd. and Care Home, Inc., v. West Va. Dept.
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of Health & Human Resources, 532 U.S. 598, 603 (2001). A prevailing
party is a “party in whose favor a judgment is rendered.” Id. “[E]nforceable
judgments on the merits and court-ordered consent decrees create the
‘material alteration of the legal relationship of the parties’ necessary to
permit an award of attorney’s fees.” Id. at 604 (citation omitted).
Plaintiff argues that it is the prevailing party in this action because it
obtained favorable rulings from the court that caused the City of Troy to
amend its ordinance. Plaintiff claims that “Troy changed its variance
procedure only after the Court’s determination that it was facially
unconstitutional.” Doc. 36 at 15.1 To be clear, the court denied Defendant’s
motion to dismiss as to Count I. In doing so, it did not declare the City of
Troy’s variance procedure to be facially unconstitutional. Rather, the court
ruled that Count I did not fail to state a claim. The court did not grant relief
in favor of Plaintiff.
In this context, the City of Troy’s amendment of the Sign Ordinance
was a voluntary change in conduct. The Supreme Court has rejected the
argument that a party is entitled to attorney’s fees because its lawsuit
brought about a voluntary change in the defendant’s conduct. See
“In assessing fee requests, the Court . . . tends to eschew fact-based and speculative
inquires into why government bodies altered their conduct,” in part to avoid a “second
major litigation.” McQueary, 614 F.3d at 598.
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Buckhannnon, 532 U.S. at 600-605 (“A defendant’s voluntary change in
conduct, although perhaps accomplishing what the plaintiff sought to
achieve by the lawsuit, lacks the necessary judicial imprimatur on the
change.”). Rather, the Court found that there must be a “material alteration
of the legal relationship between the parties,” such as a judgment on the
merits or a “court-ordered consent decree.” Id. at 604-605. Under certain
circumstances, a party who has obtained relief in the form of a preliminary
injunction may also be eligible for attorney’s fees. See McQueary v.
Conway, 614 F.3d 591, 597-601 (6th Cir. 2010).
Here, Plaintiff has not obtained court-ordered relief in any form. See
Buckhannon, 532 U.S. at 605-606 (noting that court has not awarded
attorney’s fees when a plaintiff “acquired a judicial pronouncement that the
defendant has violated the Constitution unaccompanied by ‘judicial relief’”)
(emphasis in original). To the contrary, the court entered judgment in favor
of Defendant. A prevailing party is not “a litigant who left the courthouse
emptyhanded.” Id. at 614 (Scalia, J., concurring). Plaintiff is not the
prevailing party in this action and is not entitled to attorney’s fees under §
1988. See also Lynch v. Leis, 382 F.3d 642, 646 (6th Cir. 2004) (a party
who lacked standing “is not a proper prevailing party”).
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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s motion for attorney’s fees
(Doc. 36) is DENIED.
Dated: April 2, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 2, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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