Van Orden et al v. Healthlink, Inc. et al

Filing 810

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Armstrong Teasdale LLP's motion for attorney's fees and costs, and its motion requesting oral argument on the same, are both DENIED. ECF Nos. 791 & 792 . Signed by District Judge Audrey G. Fleissig on September 22, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN VAN ORDEN, et al.,
Plaintiffs,
v.
JEFF STRINGER, et al.,
Defendants.

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Case No. 4:09CV00971 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion (ECF No. 791) of the law firm
Armstrong Teasdale LLP (“AT”) for $3,504,047.88 in attorney’s fees and $423,410.46 in
costs. Attorney Richard B. Scherrer from AT was appointed by the Court beginning on
September 2, 2009,1 to represent Plaintiffs in this class action challenging the care and
treatment provided to civilly committed residents of the Missouri Department of Mental
Health’s (“DMH”) Sex Offender Rehabilitation and Treatment Services (“SORTS”)
facilities. Scherrer withdrew as lead counsel in January 2014 for medical reasons, and at his
request, the Court at that time appointed Eric M. Selig from Rosenblum Schwartz, P.C. as
new lead counsel for Plaintiffs, with the understanding that other attorneys from AT would
remain as co-counsel, but only in a supporting role. Attorneys from the American Civil

1

At that time, the case was before the Honorable Jean C. Hamilton. The case was
transferred to the undersigned on September 13, 2010.

Liberties Union of Eastern Missouri also entered and remained co-counsel of record for
Plaintiffs.2
However, AT apparently elected to increase its role over the course of litigation, and
an attorney from AT, John H. Quinn, III took a co-lead role at the April 2015 bench trial in
the liability phase of this case.3 Although the Court’s Memorandum Opinion after that trial
ruled in favor of Plaintiffs on some liability issues, the Court later vacated that ruling based
on the United States Court of Appeals for the Eighth Circuit’s decision in Karsjens v. Piper,
845 F.3d 394 (8th Cir. 2017). The Court entered judgment in favor of Defendants on July 6,
2017.
AT acknowledges that Plaintiffs were not prevailing parties in this litigation.
However, AT argues that the Court should nevertheless award the fees and costs requested
because (1) under Missouri law, which AT argues should apply because Plaintiffs pleaded
both federal and pendant state law constitutional claims, attorneys’ fees are recoverable
when a successful litigant benefits a group of similarly situated individuals under an
equitable “balancing the benefits” doctrine, and (2) Plaintiffs may be considered successful
litigants even though they lost their case, under a “catalyst rule,” which deems plaintiffs
successful if they achieved a desired result because their lawsuit brought about a voluntary
change in the defendant’s conduct.

2

None of the attorneys from other firms and organizations representing Plaintiffs has
filed a motion for fees or costs.
3

At some point after the trial, Quinn left AT, but he continued to represent Plaintiffs
as separate counsel of record.

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As AT notes, the “catalyst theory” has been rejected by the United States Supreme
Court with respect to federal fee-shifting statutes. Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 605 (2001). But AT argues that
the rule has continued to apply in some states and has not been addressed by the Missouri
Supreme Court for fee requests under Missouri law. AT argues that Plaintiffs may be
considered successful litigants under the catalyst rule because, during the course of litigation
and particularly during settlement negotiations in this case, Defendants voluntarily made
some improvements to funding and treatment at SORTS.
Defendants oppose AT’s motion, arguing that fees and costs are not warranted here
because Plaintiffs were not prevailing parties and because there is insufficient evidence that
any changes made by Defendants were the direct result of this litigation. Defendants note
that Plaintiffs strenuously objected to a proposed class action settlement, and that based on
those objections, the Court denied a motion to approve the settlement.
After carefully considering the parties’ briefs and the authorities cited therein, the
Court will deny AT’s motion.4 Even if AT were correct that Missouri law governs its
request for attorney’s fees (which is doubtful), AT has pointed to no Missouri caselaw or
other authorities persuading the Court that Missouri would decline to follow Buckhannon
and would instead authorize an equitable award of attorney’s fees to losing plaintiffs as a
result of voluntary changes made by the defendants. Cf. Valley Park Fire Prot. Dist. of St.
Louis Cty. v. St. Louis Cty., 265 S.W.3d 910, 914 (Mo. Ct. App. 2008) (citing Buckhannon
4

AT has also filed a motion requesting oral argument. ECF No. 792. Finding that the
issues have been thoroughly briefed and that oral argument would not assist the Court, the
motion will be denied.
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and noting the federal courts’ rejection of the catalyst theory, though ultimately declining to
address the merits of plaintiff’s request for attorney’s fees); Lett v. City of St. Louis, 24
S.W.3d 157, 164 (Mo. Ct. App. 2000) (pre-Buckhannon case declining to decide whether a
catalyst theory would be recognized by Missouri courts but noting that “the cases applying
the catalyst theory are typically federal civil rights cases” and therefore “view[ing] the
federal decisions as . . . instructive”).
Moreover, without discounting the tremendous amount of time and energy that
Scherrer, Quinn, and the other attorneys from AT devoted to this case, granting AT’s
motion for fees and costs would be problematic in light of the unique circumstances of this
case. As the Court stated in its Memorandum Opinion on liability, it is sincerely grateful to
all of the attorneys who represented Plaintiffs in this case, for their dedicated representation
of their clients and assistance to the Court. And certain testimony at the trial on liability
provides at least some evidence that improvements to policies and procedures at SORTS
were made as a result of the filing and prosecution of this lawsuit. However, as the parties
are aware, at a time when the Memorandum Opinion faced significant risk of reversal, either
by an appeal in this case or the then-pending appellate decision in Karsjens, Scherrer and
Quinn opposed the proposed class action settlement that other class counsel, including lead
counsel, supported. That settlement, as it turned out, would have provided substantially
more benefits to the Plaintiff class.
Accordingly,

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IT IS HEREBY ORDERED that Armstrong Teasdale LLP’s motion for attorney’s
fees and costs, and its motion requesting oral argument on the same, are both DENIED.
ECF Nos. 791 & 792.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of September, 2017.

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