Traditionalist American Knights of the Ku Klux Klan et al v. Desloge, City of, Missouri

Filing 52

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs' motion for attorneys' fees and costs is GRANTED in the amount of $11,970.00 for attorneys' fees and $95.00 for costs. (Doc. No. 38.) Signed by District Judge Audrey G. Fleissig on 11/18/2013. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TRADITIONALIST AMERICAN
KNIGHTS of the KU KLUX KLAN, et
al.,
Plaintiffs,
v.
CITY of DESLOGE, MISSOURI, et al.,
Defendant.

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Case No. 4:12CV2085 AGF

MEMORANDUM AND ORDER
Plaintiffs brought this action under 42 U.S.C. § 1983 alleging that § 615.070 of the
City of Desloge Code of Ordinances, entitled “Prohibition Against Solicitation in the
Streets,” violated their constitutional rights to free speech and assembly under the First
Amendment. On December 27, 2012, this Court granted Plaintiffs’ motion for
preliminary injunction, concluding that the ordinance was overbroad as it applied to
sidewalks. (Doc. No. 28.) On March 19, 2013, this Court entered a Consent Order
converting the preliminary injunction to a permanent injunction. (Doc. No. 36.) The
Consent Order also entered judgment in favor of the Plaintiffs on Count I of their
amended complaint and dismissed Counts II and III as moot. Now before the Court is
Plaintiffs’ motion for attorney’s fees and costs pursuant to 42 U.S.C. § 1988, Local Rule
8.02, and Federal Rule of Civil Procedure 54. For the reasons set forth below the motion
will be granted.

APPLICABLE LAW
Pursuant to 42 U.S.C. § 1988 a party who prevails on a claim under 42 U.S.C. §
1983 “should ordinarily recover an attorney’s fee unless special circumstances would
render such an award unjust.” Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). A “prevailing party” is one that
“obtains a judicially sanctioned, material alteration of the legal relationship of the
parties.” Coates v. Powell, 639 F.3d 471, 474 (8th Cir. 2011) (citing Buckhannon Bd. &
Care Home, Inc., v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598,
601 (2001)). The Supreme Court has repeatedly held that injunctive or declaratory relief
as well as a damages award satisfies this test. Lefemine, 133 S. Ct. at 11; see also Rogers
Group, Inc. v. City of Fayetteville, 683 F.3d 903, 910-11 (8th Cir. 2012) (holding that a
preliminary injunction may convey prevailing party status).
A district court has discretion to determine the amount of a fee award. Kahle v.
Leonard, 563 F.3d 736, 742 (8th Cir. 2009). “‘The starting point in determining attorney
fees is the lodestar, which is calculated by multiplying the number of hours reasonably
expended by the reasonable hourly rates.’” Hanig v. Lee, 415 F.3d 822, 825 (8th Cir.
2005) (quoting Fish v. St. Cloud State Univ., 295 F.3d 849, 851 (8th Cir. 2002)). The
party seeking an award of fees must submit documentation supporting the hours worked
and rates claimed, and the district court should exclude from its fee calculation hours that
were not “reasonably expended.” Quigley v. Winter, 598 F.3d 938, 956-57 (8th Cir.
2010). The district court also may consider an upward or downward adjustment of the
fees in light of the “‘results obtained.’” Id. at 959 (quoting Hensley, 461 U.S. at 434).
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DISCUSSION
Prevailing Parties
Noting that it had never enforced the ordinance against Plaintiffs, Defendant
asserts that Plaintiffs are not prevailing parties. In the absence of such enforcement they
contend that the result in this case, the issuance of the permanent injunction, did not alter
Defendant’s behavior or directly benefit Plaintiffs. See Jenkins ex rel. Jenkins v.
Missouri, 127 F.3d 709, 713 (8th Cir. 1997) (citing Farrar v. Hobby, 506 U.S. 103, 111112 (1992) (holding that “a plaintiff prevails when actual relief on the merits of his claim
materially alters the legal relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff”)). They further argue that any
benefit Plaintiffs achieved from the suit was nominal and insufficient to support a
determination that they are prevailing parties.
The Court does not agree. Previously, in ruling on the motion for preliminary
injunction the Court determined that Plaintiffs could mount a facial challenge to the
ordinance because there was a credible threat of prosecution under the ordinance. (Doc.
No. 28 (citing 281 Care Comm. v. Arneson, 638 F.3d 621, 629 (8th Cir. 2011)). In
considering the justiciability of Plaintiffs’ claims, the Court held that Plaintiffs’ decision
to chill their speech in light of the challenged ordinance was objectively reasonable.
(Doc. No. 28 (citing 281 Care Comm., 638 F.3d at 629)). Therefore, enjoining future
enforcement of the ordinance materially alters the relationship of the parties and directly
benefits Plaintiffs by removing the basis for their objectively reasonable belief that the
ordinance might be enforced against them. In addition, there is no question that the
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injunction Plaintiffs obtained constitutes more than “nominal” relief. Compare Farrar,
506 U.S. at 115-16 (holding that plaintiff in a § 1983 action who obtained only a nominal
damage award of one dollar on a claim for 17 million dollars was not entitled to
attorney’s fees, notwithstanding his technical qualification as a “prevailing party”), with
Rogers Group, 683 F.3d at 910-11 (concluding that defendant’s repeal of the ordinance in
question after the issuance of a preliminary injunction did not deprive the plaintiff of
prevailing party status or an award of attorney’s fees). For these reasons the Court is
satisfied that Plaintiffs derived a direct benefit from the result in this case and are
properly deemed the prevailing parties.
Reasonable Attorneys’ Fees and Costs
“As a general rule, a reasonable hourly rate is the prevailing market rate, that is,
‘the ordinary rate for similar work in the community where the case has been litigated.’”
Moysis v. DTG Datanet, 278 F.3d 819, 828–29 (8th Cir. 2002) (quoting Emery v. Hunt,
272 F.3d 1042, 1047 (8th Cir. 2001)). Plaintiffs seek attorney’s fees of $300 per hour for
Anthony E. Rothert and $225 per hour for Grant R. Doty. Plaintiffs submit affidavits
from both attorneys describing their experience with First Amendment litigation. Mr.
Rothert is the legal director and Mr. Doty, a staff attorney, for the ACLU of Eastern
Missouri. In support of their request, Plaintiffs submitted affidavits from two
experienced local attorneys, stating that the requested hourly rates fall within local
market rates for similar work.
The Court agrees that the requested rates are comparable to rates found reasonable
in other cases involving specialized and complex areas of law. See Republican Party of
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Minnesota v. White, 456 F.3d 912, 920-21 (8th Cir. 2006) (holding that rates of $400 and
$425 per hour for attorneys in a small, appellate firm specializing in First Amendment
cases were reasonable in a case involving free speech for judicial candidates);
Wickersham v. City of Columbia, No. 05-4061-CV-C-NKL, 2007 WL 1813194, at *1
(W.D. Mo. June 21, 2007) (awarding $400 per hour for a partner and $250 per hour for
an associate in a First Amendment case involving the right to distribute leaflets and
circulate petitions at a public air show). Indeed, in a recent First Amendment case from
this district the court held that the same hourly rates for the same attorneys were
reasonable. Snider v. Peters, 928 F.Supp.2d 1113, 1117 (E.D. Mo. 2013) (basing these
rates on the prevailing market rate in Missouri and “the special skill and experience of
counsel”). For these reasons, the Court concludes that the requested hourly rates are
reasonable.
Defendant asks the Court to exclude duplicative and unnecessary hours expended
by Mr. Rothert and Mr. Doty in this case. The two attorneys have submitted detailed
billing records reflecting that Mr. Rothert expended 31.1 hours on the case and seeks
compensation for 30.3 hours, totaling $9,090.1 Mr. Doty expended a total of 15.3 hours
and seeks compensation for 12.8 hours, totaling $2,880. Upon review of these records
the Court sees no basis for a finding that the hours expended were duplicative or
unnecessary. Therefore, the Court concludes that the claimed hours were reasonably
expended.

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Plaintiffs request fees for 30.8 hours, while Mr. Rothert’s billing records,
submitted with his affidavit, indicate 30.3 billing hours.
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Defendant also asks the Court to reduce Plaintiffs’ requested fees in accordance
with the “results obtained,” which Defendant characterizes as insubstantial. For the
reasons set forth above with respect to prevailing party status, the Court concludes that
the result Plaintiffs achieved here is not insignificant. In their amended complaint,
Plaintiffs sought a declaratory judgment holding the ordinance unconstitutional, as well
as injunctive relief enjoining its enforcement. As noted, Plaintiffs ultimately obtained
injunctive relief prohibiting enforcement of the ordinance as overbroad.
Having concluded that the hourly rate sought and the hours expended are
reasonable and finding no basis for a downward adjustment on the basis of the results
obtained, the Court concludes that plaintiffs may recover the entire lodestar amount,
$11,970, as attorney’s fees. The Court also finds reasonable Plaintiffs’ request of $95.00
for the cost of serving Defendant.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion for attorneys’ fees and costs
is GRANTED in the amount of $11,970.00 for attorneys’ fees and $95.00 for costs.
(Doc. No. 38.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 18th day of November, 2013.

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