Shelby County Board Of Education v. Memphis City Board of Education et al

Filing 415

ORDER denying Motion for Attorney Fees. Signed by Judge Samuel H. Mays, Jr on 09/30/2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

BOARD OF EDUCATION OF SHELBY
COUNTY, TENNESSEE, et al.,

)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
MEMPHIS CITY BOARD OF
EDUCATION, et al.,
Defendants.

No. 11-2101

ORDER DENYING MOTION FOR ATTORNEY’S FEES

On September 28, 2011, the Court entered a Consent Decree.
(Order,

ECF

No.

262

(“Consent

Decree”).)

Intervening

Plaintiffs, Snowden Carruthers (“Carruthers”), Michael Wissman
(“Wissman”), David Reaves (“Reaves”), Joseph Clayton (“Clayton”)
and David Pickler (“Pickler”) (collectively, the “Intervenors”)
move for an award of attorney’s fees under 42 U.S.C. § 1988(b).
(Intervening

Pls.’

Mot.

for

Attorney’s

Fees,

ECF

No.

264.)

Intervenors, members of the Board of Education of Shelby County,
Tennessee, contend that they are prevailing parties, that their
arguments
Shelby

strengthened

County

Board

the
of

arguments

Education,

of
and

the

Plaintiff,

that,

without

the
their

involvement, an amicable and favorable settlement of this matter
would

not

have

been

reached.

(Id.
1

1.)

The

Memphis

City

Council, the Memphis Education Association, the Board of County
Commissioners

of

Shelby

County,

Tennessee

(“Shelby

County

Commission”), the City of Memphis, and the Board of Education of
the Memphis City Schools (“Memphis Board of Education”) have all
filed responses opposing the Intervenors’ Motion.

(Memphis City

Council’s Resp. in Opp. to First Request for Atty.’s Fees, ECF
No.

274;

Resp.

Association,

of

Keith

O.

Intervening
Williams,

Defs.
and

Memphis

Karl

Thomas

Education
Emens

to

Intervening Pls.’ Mot. for Attorney’s Fees, ECF No. 265; Def.
Board

of

Cnty.

Comms.

of

Shelby

Cnty.,

Tenn.’s

Resp.

to

Intervenors’ Mot. for Attorney’s Fees, ECF No. 272; Def. City of
Memphis’ Resp. in Opp. to Intervening Pls.’ Mot. for Attorney’s
Fees, ECF No. 275; Bd. of Education of Memphis City Schools’
Resp. in Opp. to Intervening Pls.’ Mot. for Attorney’s Fees, ECF
No. 273.)
No. 271.)

Intervenors replied on October 28, 2011.

(Reply, ECF

For the following reasons, Intervenors’ Motion is

DENIED.
I.

Background
The Board of Education of Shelby County, Tennessee (“Shelby

County Board of Education”) filed this action on February 11,
2011, in response to the Memphis Board of Education’s adoption
of a resolution surrendering its charter.

The Memphis Board of

Education purported to transfer “the administration of Memphis
City

Schools

to

the

Shelby

County
2

Board

of

Education.”

(Resolution,

ECF

No.

1-2.)

Invoking

42

U.S.C.

§

1983,

the

Shelby County Board of Education sought a declaratory judgment
declaring the rights, duties, and legal relations of all parties
affected by the combination of the two school systems.

The

Intervenors moved to intervene on March 18, 2011, contending
they might be deprived of positions on the Shelby County Board
of

Education

in

which

property interest.

they

had

a

constitutionally

protected

(Mot. to Intervene ¶¶ 2-3, ECF No. 53.)

Although the Court doubted they had a property right in their
positions, (Order Granting Mot. to Intervene 4-5, ECF No. 97),
the

Court

permitted

the

Intervenors

to

join

the

litigation

because they “raise common questions about the legality of the
Shelby County Board of Commissioners’ actions.”

(Id. 7.)

On August 8, 2011, the Court entered an Order declaring the
rights
Board

of

because

of

the

parties

Education’s
they

and

concluding

that

voting

districts

the

one-person,

violated

(Order 145, ECF No. 243 (“Decl. J.”).)

the

were

Shelby

County

unconstitutional

one-vote

principle.

The parties engaged in

judicial mediation, which led to a Memorandum of Understanding
that the Court approved and to the Consent Decree.
II.

Standard of Review

Forty-two U.S.C. § 1988(b) provides that “the court, in its
discretion, may allow the prevailing party [in a 42 U.S.C. §
1983 suit] . . . a reasonable attorney’s fee as part of the
3

costs.”

“A ‘plaintiff prevails when actual relief on the merits

materially alters the legal relationship between the parties by
modifying

the

defendant’s

benefits the plaintiff.’”

behavior

in

a

way

that

directly

Sandusky Cnty. Democratic Party v.

Blackwell, 191 F. App’x 397, 399 (6th Cir. 2006) (quoting Farrar
v. Hobby, 506 U.S. 103, 111-12 (1992)).

“Settlement does not

bar a plaintiff from establishing ‘prevailing party’ status.”
Black Elected Democrats v. Ohio Dep’t of Admin. Servs., 1999
U.S. App. LEXIS 174, at *8 n.5 (6th Cir. Jan. 6, 1999) (citing
Maher v. Gagne, 448 U.S. 122, 129 (1980)).

Although “even an

award of nominal damages suffices,” Buckhannon Bd. & Care Home
v.

W.

Va.

(2001),

Dep’t

of

Health

&

Human

Res.,

523

U.S.

604

“a technical victory may be so insignificant as to be

insufficient to support prevailing party status.”
City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005).
Circuit

598,

has

recognized

that

an

intervening

Dillery v.
The Sixth

plaintiff

may

be

classified as a prevailing party for purposes of attorney’s fees
in a case that culminates in a consent decree.

Sierra Club v.

Hamilton Cnty. Bd. of Cnty. Comm’rs, 504 F.3d 634, 645 (6th Cir.
2007).

That

is

true

only

when,

without

“the

[intervenors’]

efforts, the more comprehensive consent decree could not have
come

to

fruition.”

Id.

“[I]t

is

not

intervenor who will be entitled to fees.

every

permissive

Courts should deny

fees to intervenors who have failed to play a significant role
4

in the litigation.”
1998).
fees

Shaw v. Hunt, 154 F.3d 161, 168 (4th Cir.

“‘[A] court may deny a plaintiff-intervenor attorney’s

in

role.’”

a

civil

rights

action

if

they

played

Dept. of Fair Empl. & Hous. v. Lucent

a

de

minimis

Techs, Inc., 642

F.3d 728, 742 (9th Cir. 2011) (quoting Seattle Sch. Dist. No. 1.
v. Washington, 633 F.2d 1338, 1349 (9th Cir. 1980)).

Attorney’s

fees may only be sought against intervenor defendants when the
intervenors’

action

foundation.”

was

“frivolous,

unreasonable,

or

without

Bogaert v. Land, No. 1:08-CV-687, 2009 U.S. Dist.

LEXIS 31491, at *5 (W.D. Mich. April 14, 2009) (quoting Indep.
Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 761 (1989)).
III. Analysis
The Intervenors are not prevailing parties based on their
own claims or because of significant assistance they rendered to
the original Plaintiff, the Shelby County Board of Education.
The Intervenors have not prevailed on their own claims.
They

asserted

a

constitutionally

protected

right

positions on the Shelby County Board of Education.

in

their

(Verified

Intervening Compl. ¶ 13, ECF No. 53-2 (“Intervenors’ Compl.”).)
The

Court

dismissed

all

of

Intervenors’

claims.

The

Court

concluded they had no constitutionally protected right in their
offices.

(Decl.

J.

136.)

Intervenors

moved

to

enjoin

the

Shelby County Commission from replacing the Intervenors on the
Shelby Country Board of Education.
5

(Intervenors’ Compl. ¶¶ 18-

26.)

Because

the

Court

concluded

that

they

had

no

constitutional right to their positions, the Intervenors were
not

entitled

to

injunctive

relief.

The

Intervenors

alleged

that, “[e]ven assuming that the Commission were to appoint each
of the Intervenors to the new 25 member school board . . .
[they] would nevertheless suffer a diminution of their property
interest.”

(Id.

¶

15.)

The

Consent

Decree

established

a

twenty-three member interim Shelby County Board of Education.
(Consent Decree 13.)
they

requested.

The Intervenors did not receive the relief

They

had

no

constitutional

right

to

their

positions; they became members of a larger board; their terms
will expire on September 1, 2013.

“[A] plaintiff who

(Id.)

loses on the merits of its federal civil rights claim is not a
‘prevailing party.’”

Natl. Org. for Women v. Operation Rescue,

37 F.3d 646, 653-54 (D.C. Cir. 1994); see also D.C., Inc. v.
Missouri, 627 F.3d 698, 701-2 (8th Cir. 2010) (a party does not
prevail when its federal constitutional claim is dismissed).
Intervenors
“continued
County

and

School

contend

they

uninterrupted
Board,”

and

prevailed
terms

because,

of

because
office

as

a

they

sought

the

Shelby

on

result

of

their

intervention, the Shelby County Commission “agreed to take none
of the actions it desired to take with regard to modifying the
composition of the Shelby County Board of Education.”
3.)

(Reply

Intervenors did not retain their positions because of a
6

court-ordered injunction; the Shelby County Commission agreed,
along with all other parties, to a resolution that permitted an
orderly transition to common school system.

“[A] defendant’s

voluntary change of conduct . . . is insufficient to make a
plaintiff a prevailing party.”
U.S. at 602.

Buckhannon Bd. & Care Home, 532

The Intervenors claims were dismissed.

They did

not prevail on their argument and did not receive the relief
they sought.
Intervenors also contend that “the parties were able to
reach a consent decree, in part, as a result of the intervention
of and arguments set forth by Movants.”

(Intervening Pls.’ Mem.

of Law in Supp. of Their Mot. for Attorney’s Fees 3, ECF No.
264-1 (“Intervenors’ Mem.”).)

Intervenors filed a Motion to

Intervene (ECF No. 53), a Motion for a Temporary Restraining
Order (ECF No. 56), a Complaint (ECF No. 103), a Motion for
Judgment on the Pleadings (ECF No. 140), and the present Motion
for

Attorney’s

Fees.

Intervenors

contend

they

“stayed

[the

Shelby County Commission’s] hand, no doubt saving Shelby County
untold sums of money.”
County

Board

Intervenors’

of

(Reply 5.)

Education

claims

were

In fact, however, the Shelby

brought
ultimately

suit

initially,

meritless.

and

The

the
Court

observed as much when it ruled on their Motion to Intervene,
concluding

that

the

Intervenors

7

“have

no

substantial

legal

interest

in

the

subject

matter

of

this

litigation.”

(Order

Granting Mot. to Intervene 3.)
Intervening plaintiffs receive attorney’s fees because they
are acting as “‘private attorneys general’” and “the ‘chosen
instrument
Zipes,

of

491

Congress.’”.

U.S.

at

758-60

Shaw,

154

at

166

Intervenors

(1989)).

F.3d

did

(quoting
not

“act

effectively as private attorneys general in vindicating abuses
of

civil

rights,”

attorney’s fees.”
Cir. 1992).

and

so

are

not

“entitled

to

an

award

of

Wilder v. Bernstein, 965 F.2d 1196 1204 (2d

Their actions did not lead to a material alteration

in the legal relationship among the parties.

Farrar, 506 U.S.

at 111-12.
Cases where intervenors have received attorney’s fees are
distinguishable because the intervening plaintiffs prevailed on
their own claims or were suing on behalf of others.

The Sierra

Club brought suit to remedy a Clean Water Act violation that had
Sierra Club, 504 F.3d at

harmed a community for over a decade.
637-38.

In

challenging

Shaw,
the

congressional

the

original

plaintiffs

constitutionality

districts.

Shaw,

of

154

brought

North

F.3d

suit

Carolina’s

at

162.

The

intervening plaintiffs who received attorney’s fees adopted the
plaintiffs’
case.

complaint

Id. at

(granting

163.

attorney’s

and

litigated

see

also

fees

to

the

Washington,
public

8

original
633

interest

plaintiffs’

F.2d

at

groups

1349
that

intervened in a school desegregation case).
brought

suit

for

their

own

benefit,

argued

The Intervenors
for

their

own

benefit, and were unsuccessful.
IV.

Conclusion

For

the

foregoing

reasons,

Intervenors’

Motion

for

Attorney’s Fees is DENIED.

So ordered this 30th day of September, 2012.

s/ Samuel H. Mays, Jr._______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

9