Small Hearts Daycare II, LLC et al v. Quick

Filing 122

OPINION, MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs Small Hearts Daycare Center II, LLC and Walter Colemans Motion for Interim Attorneys Fees Against Kathy Quick in her Official Capacity [ECF No. 44] is DENIED without prejudice.IT IS FURTHER ORDERED that Plaintiffs Motion for Oral Argument on Pending Motion for Interim Attorneys Fees Against Kathy Quick in Her Official Capacity [ECF No. 121] is DENIED as moot. 44 121 Signed by Honorable Henry E. Autrey on 2/9/12. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SMALL HEARTS DAYCARE
CENTER II, LLC & WALTER
COLEMAN,
Plaintiff,
v.
KATHY QUICK, et al.,
Defendant.

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No. 4:09CV2132 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs Small Hearts Daycare Center II
(“Small Hearts”), LLC and Walter Coleman’s (collectively, “Plaintiffs”) Motion for
Interim Attorney’s Fees Against Kathy Quick in her Official Capacity [ECF No. 44].
Defendant Kathy Quick opposes the motion [ECF No. 64].
Background
On December 31, 2009, Plaintiffs filed this action and moved for a Temporary
Restraining Order, to which Defendants opposed. The Court held a hearing on this matter
on January 28, 2010, and concluded that Plaintiffs were entitled to a temporary restraining
order. See ECF No. 24. Plaintiffs brought this lawsuit seeking permanent injunctive relief
against Defendant. Plaintiffs allege that (i) it possessed a right to a constitutionallyprotected right to a pre-deprivation hearing under § 210.245.2 RSMo–a disciplinary
statute for Missouri licensed day cares, (ii) defendant Kathy Quick knew of that

constitutionally-protected right because she expressly notified Small Hearts of that
hearing right, and (iii) Quick closed Small Hearts before the requisite hearing occurred
and thereby deprived Small Hearts of its constitutionally-protected right. On February 5,
2010, the parties filed a consent motion to enter a proposed preliminary injunction [ECF
No.29], which the Court granted on February 8, 2010 [ECF No. 30]. Since that time, all
corresponding state administrative matters have concluded.
Discussion
Section 1988 of Title 42 provides for the payment of attorney’s fees to prevailing
parties in § 1983 cases. 42 U.S.C. § 1988(b); Jensen v. Clarke, 94 F.3d 1191, 1203 (8th
Cir. 1996). Section 1988(b) provides:
In any action or proceeding to enforce a provision of sections 1981,
1981(a), 1982, 1983, 1985, and 1986 of this title . . . the court, in its
discretion, may allow the prevailing party, other than the United States, a
reasonable attorney’s fees as part of the costs. . . .
42 U.S.C. § 1988(b).
The initial question regarding the propriety of awarding attorney’s fees in a case
such as this is whether Plaintiffs can be considered the “prevailing party.” Casey v. City
of Cabool, Mo., 12 F.3d 799, 804 (8th Cir. 1993). “The touchstone of the prevailing party
inquiry,” the Supreme Court has recently affirmed, is “the material alteration of the legal
relationship of the parties....” Sole v. Wyner, 551 U .S. 74, 82 (2007) (quoting Texas State
Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782, 792-93 (1989)).
Plaintiffs contend that they should be deemed a prevailing party in light of the February 1,
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2010 TRO [ECF No. 24]. Generally, a plaintiff “who gains a preliminary injunction does
not qualify for an award of counsel fees under § 1988(b) if the merits of the case are
ultimately decided against her.” Sole, 551 U.S.at 86 (2007). The Eighth Circuit explored
this issue further in Northern Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th
Cir.2006) and held that the grant of a mere preliminary injunction can confer prevailing
party such as where “it alters the course of a pending administrative proceeding and the
party’s claim a for [sic] permanent injunction is rendered moot by the impact of the
preliminary injunction.” Id. at 1086.
The present case, however, has not yet been “ultimately decided against” either
party, as was the case in Sole. And the request for a permanent injunction has not been
“rendered moot by the impact of the preliminary injunction” as was the case in Northern
Cheyenne. Instead, the preliminary injunction that the Court issued on February 1, 2010,
was issued for the purposes of maintaining the status quo–i.e. allowing Plaintiff to operate
its daycare until disposition of the case. A preliminary injunction granting temporary
relief that merely maintains the status quo does not confer prevailing party status.
Northern Cheyenne Tribe, 433 F.3d 1086-1087.
In a recent United States District Court - Western District of Missouri case, Doe v.
Crane, 2010 WL 3927822 (W.D.Mo., 2010), the Western District deemed Plaintiff Doe a
prevailing party where (1) an initial TRO was granted in his favor; and (2) an order was
issued which deemed the case as moot. The District Court opined “[u]nlike in Sole, where

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the plaintiff ‘[won] a battle but los[t] the war,’ here Plaintiff won a battle and won the
war.” Id. at *6. In this case, it could be said that Plaintiff won a battle by obtaining
preliminary injunctive relief, however, the war is not yet over. As such, Plaintiffs’Motion
for Interim Attorney Fees is denied without prejudice.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs Small Hearts Daycare Center II, LLC
and Walter Coleman’s Motion for Interim Attorney’s Fees Against Kathy Quick in her
Official Capacity [ECF No. 44] is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Oral Argument on
Pending Motion for Interim Attorney’s Fees Against Kathy Quick in Her Official
Capacity [ECF No. 121] is DENIED as moot.
Dated this 9th day of February, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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