Jennings et al v. University City, Missouri, City of

Filing 118

MEMORANDUM AND ORDER: Accordingly, IT IS HEREBY ORDERED that Plaintiffs' motion for bill of costs 107 is GRANTED. IT IS FURTHER ORDERED that costs shall be taxed against Defendant City of University City, Missouri and in favor of Plaintiffs i n the amount of $5,669.26. IT IS FURTHER ORDERED that Plaintiffs motion for attorneys' fees 108 is GRANTED in part and DENIED in part. Plaintiffs are awarded the amount of $55,0898.68 as and for their attorneys fees and non-taxable costs/expenses. Signed by District Judge John A. Ross on 11/21/22. (JAB)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RAVEN WOLF C. FELTON JENNINGS II,
and RAYMOND DOUGLAS,
Plaintiffs,
v.
CITY OF UNIVERSITY CITY, MISSOURI,
Defendant.

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No. 4:20-CV-00584 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ motion for bill of costs (Doc. No. 107) and
motion for attorneys’ fees (Doc. No. 108). The motions are fully briefed and ready for
disposition.
Background
Plaintiffs are street musicians who perform in the University City Loop Special Business
District (“the Loop”). On April 28, 2020, Plaintiffs filed this lawsuit against the City pursuant to
42 U.S.C. § 1983 to challenge the constitutionality, both facially and as applied, of University
City Ordinance § 215.720: Obstructing Public Places (the “Original Ordinance”), which
prohibited any person from standing or remaining idle in a public place in such manner so as to
obstruct any public sidewalk “by hindering or impeding or tending to hinder or impede the free
and uninterrupted passage of … pedestrians[.]” Plaintiffs also challenged the constitutionality of
alleged City policies forbidding individuals engaged in speech or performance from remaining
stationary on public sidewalks (“Non-Stationary Policy”) and requiring conditional use permits
for musicians to perform on private property adjacent to public sidewalks (“Permit Policy”). In

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conjunction with their complaint, Plaintiffs filed a motion for preliminary injunction to enjoin
enforcement of the City’s Ordinance and other policies, alleging the City relied on the ordinance
and policies to broadly prohibit expressive activities on public sidewalks in violation of their
constitutional rights to free speech and due process, even when individuals engaged in such
activities were not actually obstructing pedestrian traffic.
In July 2020, the City amended the Original Ordinance to address Plaintiffs’ claims and
represented it would not enforce a Non-Stationary Policy to the extent such a policy existed and
would not require a property owner to obtain a conditional use permit to allow musicians to
perform outside on private property adjacent to the public sidewalk. Based on the City’s
representations and the amendments to the Ordinance, Plaintiffs’ motion for preliminary
injunction was denied as moot on August 25, 2020.
On April 29, 2021, Plaintiffs renewed their motion for preliminary injunction, arguing
that certain internal communications and actions taken by the City in March 2021 indicated the
Amended Ordinance was being unconstitutionally applied. Following a hearing on July 23, 2021,
the Court denied Plaintiffs’ renewed motion on October 22, 2021. The Court concluded that
Plaintiffs failed to show, based on the application of the Amended Ordinance in two isolated
incidents, that it unduly restricts free speech in light of the City’s legitimate interest in regulating
pedestrian traffic or that it fails to accord with the due process requirement of fair notice. The
Court also concluded that in the absence of any additional record evidence, Plaintiffs failed to
establish a policy or custom that deprived them of their constitutional rights.
Plaintiffs moved for summary judgment on July 20, 2021, requesting the Court find and
declare that the Original Ordinance was facially unconstitutional; that the Original Ordinance
violated the First Amendment; and that the Non-Stationary Policy and Permit Policy violate the

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First Amendment and Due Process Clause. Plaintiffs also sought declaratory and injunctive relief
based on an “as applied” challenge to the Amended Ordinance and nominal damages for the
alleged infringement of their First Amendment rights on those occasions in 2019 and 2020 when
they were allegedly told they could not perform in the Loop.
The Court granted summary judgment on Plaintiffs’ claims for nominal damages for
violations of their constitutional rights under the Original Ordinance; granted summary judgment
on Plaintiffs’ claims for declaratory relief and nominal damages for violations of their
constitutional rights under the City’s Non-Stationary Policy and Permit Policy; and denied
summary judgment on Plaintiffs’ claim for declaratory and injunctive relief regarding the
Amended Ordinance. The case was set for a bench trial on January 26, 2022 to resolve the
outstanding issues. Shortly before trial, the parties negotiated a settlement of the outstanding
issues and the case was dismissed with prejudice.
On April 15, 2022, Plaintiffs filed their motion for bill of costs, asserting entitlement to
costs pursuant to Federal Rule of Civil Procedure 54 and 28 U.S.C. § 1920 in the amount of
$5,669.26. (Doc. No. 107). Plaintiffs also move for $101,958.50 in attorneys’ fees and $4,110.43
in expenses, which include mediation fees of $1,275.93; discovery management fees of
$2,379.50; and service of subpoena fees of $445.00. (Doc. No. 108).
Motion for attorneys’ fees
In a § 1983 case, the Court “may allow the prevailing party, other than the United States,
a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). A party is a prevailing
party under § 1988 if he succeeds on any significant issue in the case “which achieves some of
the benefit the part[y] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)
(quoted case omitted); see also Farrar v. Hobby, 506 U.S. 103, 111 (1992) (a prevailing party is

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one who obtains “at least some relief on the merits of his claim”); Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Serv., 532 U.S. 598, 603 (2001) (term
“prevailing party” means, in essence, “one who has been awarded some relief by the court”).
Even an award of nominal damages suffices under this test. See Farrar, 506 U.S. at 112-13. 1
A trial court’s “discretion to deny attorneys’ fees to a prevailing plaintiff is narrow.”
Jenkins ex rel. Jenkins v. State of Mo., 127 F.3d 709, 716 (8th Cir. 1997). “[A] prevailing
plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render
such an award unjust.” Hensley, 461 U.S. at 429 (quoted source omitted). “Where a plaintiff has
obtained excellent results, his attorney should recover a fully compensatory fee. Normally, this
will encompass all hours reasonably expended on the litigation, and indeed in some cases of
exceptional success an enhanced award may be justified.” Id. at 435. The Eighth Circuit has
stated, “[i]f the plaintiff has won excellent results, he is entitled to a fully compensatory fee
award, which will normally include time spent on related matters on which he did not win.”
Jenkins, 127 F.3d at 716 (citing Hensley, 461 U.S. at 435).
The party seeking the award must submit evidence supporting the requested hours and
rates, making a “good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary[.]” Hensley, 461 U.S. at 434. “To calculate attorney’s fees,
courts typically begin by using the lodestar method, which multiplies the number of hours
reasonably expended by reasonable hourly rates.” Bryant v. Jeffrey Sand Co., 919 F.3d 520, 529
(8th Cir. 2019) (citing Brewington v. Keener, 902 F.3d 796, 805 (8th Cir. 2018)). Courts
consider several factors in determining a reasonable attorney’s fee, including the time and labor
However, in certain circumstances such a “prevailing party” should still not receive an award of
attorney’s fees. See Buckhannon, 532 U.S. at 604 (citing Farrar, 506 U.S. at 115-116) (civil rights
plaintiffs who recovered nominal damages of only one dollar on claim for 17 million dollars in
compensatory damages were not entitled to attorney fee award under civil rights statute).
1

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required to litigate the case, the novelty and difficulty of the questions involved, the skill
required to perform the services properly, customary fees, the results obtained, and awards in
similar cases. See McDonald v. Armontrout, 860 F.2d 1456, 1459 & n.4 (8th Cir. 1988);
Fernandez v. St. Louis Cty., Missouri, 538 F. Supp. 3d 888, 905 (E.D. Mo. 2021). “When
determining reasonable hourly rates, district courts may rely on their own experience and
knowledge of prevailing market rates.” Bryant, 919 F.3d at 529 (quoting Hanig v. Lee, 415 F.3d
822, 825 (8th Cir. 2005)).
In support of their motion, Plaintiffs assert that they successfully obtained the relief they
sought through the Court’s partial grant of summary judgment (including declaratory and
nominal relief), the City’s post-suit amendment of its ordinance, and settlement. Moreover, all of
Plaintiffs’ claims involved passage and enforcement of the same Ordinance and policies, based
on common facts tied to the same Ordinance and policies, and challenged the City’s violation of
their constitutional rights under the same Ordinance and policies. When this Court denied
Plaintiffs’ claims for declaratory relief on Counts I and II and injunctive relief as moot, it did so
based on the City’s voluntary amendment of the Ordinance and policies rather than based on the
merits of Plaintiffs’ constitutional claims, and awarded nominal damages based on the prior
violations of Plaintiffs’ rights. Plaintiffs ultimately obtained the relief they requested in this case
with the elimination of challenged policies as they existed at the time the lawsuit was filed. (Doc.
No. 109 at 12-13).
For purposes of lodestar analysis, Plaintiffs submit the following concerning their
attorneys’ hourly rates and the hours expended in this litigation2:

Plaintiffs’ counsel state they have exercised billing judgment to account for duplicative time and
reduced the hours for which they seek compensation by 96.18 hours. They have also omitted various
entries for substantive work, including time spent on their renewed motion for preliminary injunction. The

2

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Hours

Rate

Total

66.5

$410.00

$27,265.00

150.86

$325.00

$49,029.50

Jessie Steffan

5.1

$300.00

$1,530.00

Molly Carney

24.8

$300.00

$7,440.00

Omri Praiss

15.3

$400.00

$6,120.00

105.74

$100.00

$10,574.00

Anthony E. Rothert
Lisa Hoppenjans

Law Students

368.30

Total:

$101,958.50

Plaintiffs’ motion is supported by Declarations signed by their attorneys, describing their
backgrounds and experience and providing details of their hours billed. (Doc. Nos. 109-1, -2, -3,
-4). Plaintiffs maintain that the rates being requested by their attorneys are reasonable and within
the range of market rates customarily charged by lawyers with similar experience and practice
areas in Missouri. (See Doc. No. 109-5). The City does not dispute the background and
experience of Plaintiffs’ attorneys or the reasonableness of their requested hourly rates. 3 Based
on its experience with this case, with civil rights cases in general, and its knowledge of
prevailing attorney hourly rates in this area and as awarded by this Court, the Court finds the
requested hourly rates reasonable. See Fernandez v. St. Louis Cnty., Missouri, 538 F. Supp. 3d
888, 906 (E.D. Mo. 2021); Willson v. City of Bel-Nor, Missouri, No. 4:18-CV-003 RLW, 2021
WL 2255003, at *5-6 (E.D. Mo. June 3, 2021) (citing cases).
assistance of clinic students and law clerks further reduced the amount of fees for which reimbursement is
sought. (Doc. No. 109 at 9-10).
3

The City has challenged Plaintiffs’ requested fees of $10,574 for law student time, arguing that student
participation is for educational purposes only and that their work was uncompensated. (Doc. No. 110 at 3
n.3). The Court disagrees, finding the use of law students akin to legal support staff. The Court will not
dissuade attorneys from utilizing law clerks or paralegals with lower billing rates to perform tasks in a
more cost-effective fashion. Davis v. Lancatser, No. 4:13CV1638 HEA, 2019 WL 265098, at *4 (E.D.
Mo. Jan. 18, 2019). The Court also notes that the rates Plaintiffs have submitted for law student work are
reasonable and consistent with other awards in this District. See, e.g., Koenig v. Bourdeau Const. LLC,
No. 4:13CV00477 SNLJ, 2014 WL 6686642, at *2 (E.D. Mo. Nov. 26, 2014) (billing rates in the St.
Louis area for paralegals and law students range from $50.00 to $100.00 per hour).

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The City acknowledges that Plaintiffs are entitled to some recovery of costs and
attorneys’ fees but contends Plaintiffs are not prevailing parties as to any claims for events
occurring after August 2020 when the City amended the Original Ordinance and ceased the
restrictions that Plaintiffs challenged. The City argues that most of the fees, costs, and expenses
Plaintiffs seek were incurred during discovery and briefing related to their renewed motion for
preliminary injunction – which the Court denied – and motion for summary judgment – which
the Court granted only to the extent Plaintiffs’ claims related to events prior to August 2020 that
were effectively resolved in June and July 2020. (Doc. No. 110 at 2-3). The City argues that
Plaintiffs’ recovery should therefore be limited to attorneys’ fees incurred as of August 2020 in
the amount of $24,254.75 and costs of $400, for a total award of $24,654.75. 4 (Id. at 3).
After considering the parties’ arguments, the Court is unwilling to strike Plaintiffs’
request for fees and costs for all work performed after August 2020. Although injunctive relief
against the Original Ordinance was rendered unnecessary in light of the Amended Ordinance,
Plaintiffs’ counsel continued to monitor the City’s compliance with the Amended Ordinance as
part of their representation of their clients. Those efforts resulted in discovery that at least in one
instance, the City was not complying. That said, the Court finds some reduction in fees is
appropriate based on the results ultimately obtained by Plaintiffs.
A district court may in the exercise of its discretion use a percentage reduction as a
practical means of reducing fee claims. See, e.g., Dinosaur Merch. Bank Ltd. v. Bancservices
Int’l LLC, No. 1:19-CV-84 ACL, 2020 WL 3489344, at *3 (E.D. Mo. June 26, 2020) (reducing
one firm’s hours by 50% and the other firm’s hours by 75% for “overlawyering and duplicative
In the event the Court determines that law student time should be included in a fee award, the City adds
an additional $8,101 (law student time expended before August 25, 2020), for a total award of
$32,355.75. (Doc. No. 110 at 6 n.5).

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work”); Fletcher v. Tomlinson, No. 4:14-CV-999 RLW, 2016 WL 6069497, at *9 (E.D. Mo.
Oct. 14, 2016) (reducing plaintiff’s requested attorneys’ fee award by forty-five percent); Maher
v. Barton, No. 4:13-CV-2260 (CEJ), 2014 WL 1316936, at *3 (E.D. Mo. Apr. 2, 2014) (applying
a fifty percent reduction to adjust for excessive billing); Marez v. Saint-Gobain Containers, Inc.,
No. 4:09CV999 MLM, 2011 WL 19390706, at *13 (E.D. Mo. May 18, 2011) (reducing
plaintiff’s requested attorneys’ fee award by fifty percent). In light of the facts and circumstances
of this case, the Court will reduce Plaintiffs’ requested attorneys’ fee award by fifty (50) percent,
to $50,979.25. While Plaintiffs obtained relief when the City amended the Original Ordinance
and ceased certain internal policies affecting their right to perform music, they effectively
obtained the relief they sought within four months of filing their lawsuit.
The City does not specifically object to Plaintiffs’ non-taxable costs/expenses and the
Court finds $4,110.43 to be reasonable in this case. All reasonable out-of-pocket costs and
expenses are recoverable as part of a Section 1988 fee award because they are part of the costs a
law firm would normally charge to a fee-paying client. See Jenkins v. Kansas City Mo. Sch.
Dist., 525 F.3d 682, 682 n.1 (8th Cir. 2008) (“travel expenses and other out-of-pocket expenses
that a law firm normally would bill to its client are … properly characterized as part of an
attorney fee award” under Section 1988).
Bill of costs
Rule 54(d) of the Federal Rules of Civil Procedure provides that “costs – other than
attorney’s fees – should be allowed to the prevailing party.” Cowden v. BNSF Railway Co., No.
4:08CV01534, 2014 WL 107844, at *1 (E.D. Mo. Jan 3, 2014). Pursuant to 28 U.S.C. § 1920,
the Court may tax costs for: (1) fees of the clerk and marshal; (2) fees for printed or
electronically recorded transcripts necessarily obtained for use in the case; (3) fees and

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disbursements for printing and witnesses; (4) fees for exemplification and the cost of making
copies of any materials where the copies are necessarily obtained for use in the case; (5) docket
fees under § 1923 of this title; (6) compensation of court appointed experts, compensation of
interpreters, and salaries, fees, expenses, and costs of special interpretation services under § 1828
of this title. The Court may not award costs other than those authorized by § 1920, because this
section “imposes rigid controls on cost-shifting in federal courts.” Cowden, 2014 WL 107844, at
*1 (quoting Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir. 2002)). Upon objection by
the opposing party as to authorized costs, however, the Court may exercise its discretion to grant
or deny costs. Id. (citing Pershern v. Fiatallis North America, Inc., 834 F.2d 136, 140 (8th Cir.
1987)).
Plaintiffs have submitted a bill of costs in the amount of $5,669.26, which includes $400
for fees of the clerk; $5,116.50 for printed or electronically recorded transcripts; and $152.76 for
witness fees. The City argues that Plaintiffs should be limited to $400 in costs to account for the
fact that much of the costs incurred related to claims that were denied as moot by virtue of the
City’s remedial actions. For the reasons discussed above, the Court will grant Plaintiffs’ motion
for bill of costs.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ motion for bill of costs [107] is
GRANTED.
IT IS FURTHER ORDERED that costs shall be taxed against Defendant City of
University City, Missouri and in favor of Plaintiffs in the amount of $5,669.26.

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IT IS FURTHER ORDERED that Plaintiffs’ motion for attorneys’ fees [108] is
GRANTED in part and DENIED in part. Plaintiffs are awarded the amount of $55,0898.68 as
and for their attorneys’ fees and non-taxable costs/expenses.

Dated this 21st day of November, 2022.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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