United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
Gregory Luce and Nicholas Newman brought this suit under 42
U.S.C. § 1983 against defendant the Town of Campbell,
challenging the constitutionality of an ordinance prohibiting
signs, banners, flags and other similar items on or within
100 feet of a pedestrian bridge or overpass. This court
granted summary judgment in favor of defendants, holding that
the ordinance was a reasonable time, place and manner
restriction on plaintiffs' First Amendment rights.
(6/16/15 Op. & Order (dkt #127).) Plaintiffs appealed,
and the Court of Appeals for the Seventh Circuit affirmed in
part and reversed in part, vacating this court's judgment
with respect to the plaintiff's challenge to the 100-foot
buffer zone and remanding the case for further proceedings as
to that challenge. Luce v. Town of Campbell, 872
F.3d 512 (7th Cir. 2017). On remand, the court found that the
Town had not met its burden of demonstrating that the
100-foot buffer zone is narrowly tailored to serve a
significant government interest, resulting in its amending
the judgment to enjoin the enforcement of the ordinance with
respect to the 100-foot buffer zone. (3/29/19 Op. & Order
(dkt. #196); Am. Judgment (dkt. #197).)
response to that amended judgment, plaintiffs filed a motion
pursuant to 42 U.S.C. § 1988, seeking attorneys'
fees in the amount of $235, 256.00 and costs in the amount of
$22, 366.03, and also requesting $1 in nominal damages. (Dkt.
#203.) Plaintiffs also filed a bill of costs pursuant to
Federal Rule of Civil Procedure 54(d), seeking $10, 507.20.
(Dkt. #198.) Given the limited success of this lawsuit, the
court will award 20% of the fees, expenses and costs
requested as set forth in detail below, along with an award
of $1 in nominal damages.
Attorneys' Fees and Costs Under 42 U.S.C. §
42 U.S.C. § 1988(b) provides in pertinent part:
In any action or proceeding to enforce a provision of
section . . . 1983 . . . of this title, . . ., the court,
in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney's fee as part of
plaintiffs prevailed on a limited portion of their First
Amendment claim, finding that the Town failed to demonstrate
that the 100-foot buffer zone was narrowly tailored to serve
the Town's interest in highway safety, but judgment was
entered in defendant's favor on the
bulk of plaintiffs' First Amendment claim -- namely, that
the Town's speech restriction on the overpass itself was
a reasonable time, place and manner restriction -- and on
plaintiffs' First Amendment retaliation claim. Against
this backdrop, defendant reasonably argues that plaintiffs
are not entitled to an award of attorneys' fees and
costs, or if entitled to such an award, the court should
discount significantly the amount requested to reflect
plaintiffs' modest victory.
Farrar v. Hobby, 506 U.S. 103 (1992), the United
States Supreme Court considered the meaning of
“prevailing parties” under 42 U.S.C. § 1988,
reiterating its prior holding that “plaintiffs may be
considered ‘prevailing parties' for attorney's
fees purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing suit.” Id. at 109 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). In
turn, the Court also explained that the judgment must
“affect the behavior of the defendant toward the
plaintiff” or “changes the legal relationship
between” the parties. Id. at 110 (quoting
Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per
curium); Texas State Teachers Ass'n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792 (1989)).
the court agrees with plaintiffs that the enjoining of the
portion of the Ordinance prohibiting signs in the 100-foot
buffer zone of overpasses changes the legal relationship
between the parties, thus triggering “prevailing
party” status for plaintiffs under § 1988. This
conclusion, however, does not entitle plaintiffs' counsel
to the full amount of their lodestar. In other words, while
the Supreme Court has recognized that “the
degree of the plaintiff's success does not
affect eligibility for a fee award, ” “the degree
of the plaintiff's overall success goes to the
reasonableness of a fee award.” Farrar, 506
U.S. at 114 (quotation marks omitted) (citing Garland
Indep. Sch. Dist., 489 U.S. at 790; Hensley,
461 U.S. 424). Indeed, the Supreme Court has explained that
the degree of success is “‘the most critical
factor' in determining the reasonableness of a fee
award.” Id. at 114 (quoting Hensley,
461 U.S. at 436).
Seventh Circuit instructs that in reducing an attorney's
fee award to reflect the time devoted to “the
successful portion of the litigation, ” a district
court judge may calculate a lodestar rate based on the hours
actually devoted to the winning claims. Richardson v.
City of Chi., 740 F.3d 1099, 1103 (7th Cir. 2014).
However, “when the lawyer's billing records do not
permit time to be allocated between winning and losing
claims, estimation is inevitable.” Id. Often,
a precise estimation is not possible; in which case,
“there is nothing to do but make an across-the-board
reduction that seems appropriate in light of the ration
between winning and losing claims.” Id.
(citing Hensley, 461 U.S. at 436-37). Indeed, in
Richardson, the Seventh Circuit affirmed the
district court's decision to reduce the lodestar request
by roughly 80% in light of the modest success counsel had
achieved for the plaintiff, with the jury awarding him only
nominal damages of $1 plus $3, 000 in punitive damages.
Id. at 1101, 1103. In two even more recent cases,
the Seventh Circuit affirmed reductions of 50%, see
Sommerfield v. City of Chi., 863 F.3d 645, 650-52 (7th
Cir. 2017), and 70%, see World Outreach Conference Ctr.
of City of Chi., 896 F.3d 779, 783-84 (7th Cir. 2018),
to reflect limited success. In World Outreach Conference
Center, the Seventh Circuit noted that there is
“no particular algorithm for making such reductions to
the lodestar.” 896 F.3d at 783-84.
defendant contends that the court should award no fees,
pointing to cases in which the court has determined that an
award of nominal damages does not warrant an award of
attorney's fees. (Def.'s Opp'n (dkt. #213) 6.)
However, the court is not relying on plaintiffs' request
of $1 in nominal damages -- addressed below -- but instead on
the court's entry of a permanent injunction (albeit
limited in scope) to find that plaintiffs are entitled to an
award under § 1988. See Hyde v. Small, 123 F.3d
583, 584 (7th Cir. 1997) (explaining that a plaintiff likely
needs “decreed declaratory or injunctive relief”
or some other substantial benefit for fees when only nominal
damages are awarded).
alternative, defendant proposes that the court should
discount plaintiff's fee request by 90% to account for
the very limited relief plaintiffs achieved through this
lawsuit. The court agrees with defendant that a substantial
discount is warranted here given: (1) the very limited scope
of relief achieved in this lawsuit; (2) plaintiffs' focus
on enjoining the Ordinance with respect to the overpass
itself, rather than simply the buffer zone; and (3) the loss
of plaintiffs' related First Amendment retaliation claim.
As defendant points out, a cursory review of plaintiffs'
briefing on the first round of summary judgment motions,
their appeal to the Seventh Circuit, and their unsuccessful
attempt for further review by the United States Supreme Court
demonstrates that plaintiffs “were aiming high and fell
far short, in the process inflicting heavy costs on [their]
opponent and wasting the time of the court.”
Hyde, 123 F.3d at 585. As such, the court agrees
that an 80% deduction in their request is warranted.
Accordingly, the court will award attorneys' fees in the
amount of $47, 051.20.
plaintiffs' motion for reimbursement of out-of-pocket
expenses, for the same reasons articulated above, the court
will similarly discount those costs by the same 80%
deduction, awarding $4, 473.21. In doing so, the court notes that
certain of the expenses should not be reimbursable at all,
namely the costs associated with plaintiffs' writ of
certiorari petition to the United States Supreme Court. Such