Neighborhood Enterprises, Inc. et al v. City of St. Louis et al

Filing 142

OPINION, MEMORANDUM AND ORDER re: IT IS HEREBY ORDERED that Plaintiffs' Motion for Attorneys' Fees And Cost, [Doc. No. 129 ] is granted. IT IS FURTHER ORDERED that Plaintiffs are awarded attorneys' fees in the amount of $159,843.75 and Costs in the amount of $300.. Signed by District Judge Henry Edward Autrey on 12/15/17. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NEIGHBORHOOD ENTERPRISES, INC.,
et al.,
Plaintiffs,
vs.
CITY OF ST.LOUIS, et al.,
Defendants.

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) CASE NO. 4:07CV1546 HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorneys’ Fees and
costs on remand, [Doc. No. 129] and Plaintiff’s Bill of Costs, [Doc. No. 131].
Defendant has filed a response in opposition to the Motion for Attorneys’ Fees.
Plaintiffs seek attorneys’ fees in the in the amount of $159,843.75 as the
prevailing parties in the Section 1983 action and costs in the amount of $300.
Defendants did not object to Plaintiffs’ Bill of Costs, and the Court finds the
submitted Costs to be recoverable. Costs will be taxed against Defendants.
With respect to the Motion for Attorneys’ Fees, Plaintiffs have submitted
their itemized statement of the time expended by counsel. Plaintiffs have derived
the amount by multiplying the number of hours expended on this case by the
hourly fees of counsel.

Defendants object on several grounds. Initially, Defendants argue that
special circumstances exist in this case to deny attorney’s fees and costs. They
argue that under the new sign code, Plaintiff’s would not be the prevailing party in
any post-new Sign Code definition of “sign.” This argument lacks merit because it
is based entirely on speculation and a hypothetical that is not before the Court.
Likewise, the fact that Defendants acted within the bounds of the law at the
time of the denial of the sign permit and had a good faith belief that the sign at
issue was not within the scope of the law is unavailing. Carhart v. Stenberg, 192
F.3d 1142, 1152 (8th Cir. 1999); Martin v. Heckler, 773 F.2d 1145, 1150 (8th Cir.
1985).
Defendants also object to certain fees charged by counsel. Defendants seek
denial of the charges for attorney travel time. In the Eighth Circuit, travel time is
allowable time. “We have long recognized a ‘presumption ... that a reasonable
attorney's fee includes reasonable travel time billed at the same hourly rate as the
lawyer's normal working time,’ Craik v. Minn. State Univ. Bd., 738 F.2d 348, 350
(8th Cir.1984), absent a showing the award would be unreasonable, for example,
because ‘the lawyer did not customarily charge clients for travel time, or ... did not
have other work that could have been done during that time had he not been
traveling,’ Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 396
(8th Cir.1987).” Ludlow v. BNSF Ry. Co., 788 F.3d 794, 803–04 (8th Cir. 2015).
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Defendants also object to the inclusion of fees charged for preparation of the
response to the City’s petition for a writ of certiorari in this case. A
factor that has been considered in deciding whether post-judgment fees were
necessary and useful is whether the attorneys' activity was defensive,
seeking to preserve relief obtained earlier, or offensive, seeking to augment
what had already been approved. In Ustrak v. Fairman, the Seventh Circuit
distinguished between a case in which the fee applicant unsuccessfully
defends an appeal of relief he has won below and a case in which the fee
applicant unsuccessfully appeals, seeking to expand his victory. 851 F.2d at
990. The Seventh Circuit concluded that it would be more likely to award
fees in the former case than in the latter. We have referred to this case with
approval in Schafer, 83 F.3d at 1012, and denied a fee where the prevailing
party was seeking a greater victory, rather than defending the remedy.
Jenkins by Jenkins v. State of Mo., 127 F.3d 709, 719 (8th Cir. 1997). Clearly
opposing the petition for writ of certiorari was defensive and not offensive to this
litigation. The objection is overruled.
Defendants argue that Plaintiffs’ fee request should be reduce because the
time entries submitted were improper “block billing.” While the entries do not
indicate how many minutes were spent on each particular task, they are sufficiently
specific to communicate the work that was done and its connection to the case.
Furthermore, there is no evidence that attorneys were spending an excessive
amount of time on their tasks or duplicating the work done by others. “Defendant’s
position that counsel should be required to more specifically detail how his/her
time was expended would place a tremendous burden on any counsel and would
result in inefficient utilization of counsel’s time.”
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Monsanto Company v. David, No. 4:04CV425HEA, 2006 WL 2669076, at *1
(E.D. Mo. Sept. 14, 2006). The Court finds that the billing report sufficiently
details the actions taken by the attorneys to allow for meaningful review of the
hours expended, so a percentage reduction for block billing is unwarranted here.
Finally, Defendants argue that some of counsel’s time appears excessive.
Defendants have presented no persuasive evidence or argument in support of their
assessment of the time spent of particular issues. As counsel points out, the
attorneys in this matter were required to prosecute claims that were unsettled at the
outset of the case, revise pleadings after the City made significant changes to the
ordinance at issue and pursue an appeal of this matter. Moreover, Plaintiffs point
out that they have diligently attempted to reduce the hours by excluding any hours
billed by attorneys other than lead counsel. The Court therefore concludes that a
reduction for excessive billing is not justified.
After considering all the relevant factors, the Court finds that an award of
fees is appropriate, and that Plaintiffs’ requested fees are reasonable. The Court
will award fees in the total amount of $159,843.75.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Attorneys’ Fees
And Cost, [Doc. No.129] is granted.

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IT IS FURTHER ORDERED that Plaintiffs are awarded attorneys’ fees in
the amount of $159,843.75 and Costs in the amount of $300.
Dated this 15th day of December, 2017.

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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