United States District Court, D. Montana, Butte Division
MARION I. HOWELL and FRANCIS L. HOWELL, Plaintiffs,
TRAVIS EARL, individually and as agent of Gallatin County Sheriff's Department, State of Montana, KELLI MUNTER, individually and as agent of Gallatin County Sheriff's Department, State of Montana, SCOTT SECOR, individually and as agent of Gallatin County Sheriff's Department, State of Montana, GALLATIN COUNTY, a political subdivision of the State of Montana, JAMES SULAGES, individually and as agent of Montana Highway Patrol, State of Montana, and the STATE OF MONTANA, Defendants.
OPINION AND ORDER
DONALD W. MOLLOY, District Judge.
In their Amended Complaint, Plaintiffs Marion I. Howell and Francis L. Howell brought civil rights claims under 42 U.S.C. § 1983 and state law claims related to a traffic accident investigation on the evening of June 26, 2011. (Doc. 28.) The Court resolved some claims following a Motion to Dismiss brought by the State Defendants, (see Docs. 36 and 41), and Motions for Summary Judgment brought by the Plaintiffs, the State Defendants, and the County Defendants, (see Docs. 118, 119, and 148). The Plaintiffs' excessive use of force, unlawful entry, unlawful detention, negligent investigation, and punitive damages claims survived and were tried before a jury in Butte, Montana June 30, 2014 to July 3, 2014. (See Docs. 168-170, 177.) During the trial, the Court granted Motions for Judgment as a Matter of Law, brought pursuant to Federal Rule of Civil Procedure 50, regarding the Plaintiffs' negligence claim against the State Defendants and claim for punitive damages. (Doc. 169.) On the afternoon of July 3, 2014, after approximately seven hours of deliberation, the jury found for Plaintiff Marion I. Howell on her unlawful entry of home claim brought under 42 U.S.C. § 1983 and the Montana Constitution, but awarded only nominal damages. (See Doc. 178.) The jury found for the Defendants on all other claims. ( Id. )
Plaintiffs now move for an award of attorney fees, pursuant to 42 U.S.C. § 1988 and Montana law. (Doc. 185.) The State Defendants and County Defendants oppose Plaintiffs' Motion. (Docs. 189 and 192.) The State Defendants also bring a Motion for Review of Costs assessed by the Clerk of Court. (Doc. 198.) Plaintiffs oppose the State Defendants' Motion. (Doc. 204.) This order and opinion resolves these outstanding Motions.
II. Plaintiffs' Motion for Attorney Fees
Plaintiffs move for an award of attorney fees pursuant to 42 U.S.C. § 1988 and Montana law. As a predicate to their argument on the merits, Plaintiffs qualify their Motion with a claim that they should be awarded the entirety of attorney fees incurred in this action because precise attribution of the fees to specific claims is impossible. Even though only one Plaintiff, Marion Howell, prevailed against one County Defendant, Deputy Scott Secor, Plaintiffs state that the Court must grant recovery of all attorney fees incurred in this action. Plaintiffs represent this result is warranted because the fees attributable to each claim made by each Plaintiff against each Defendant are not segregable. Plaintiffs argue that the interrelatedness of the factual foundation of their claims and the legal theories pursued in this case make a precise allocation of the fees incurred on each claim impossible. Before analysis of the ultimate issue raised by the Motion, Plaintiffs also argue that the County Defendants were presented with two opportunities to resolve this action by settlement, which they declined to consider.
Plaintiffs assert that the Court must consider twelve factors that the Supreme Court adopted in Hensley v. Eckerhart when evaluating a motion for attorney fees in a § 1983 action. See 461 U.S. 424 (1983). Plaintiffs claim that the Court in Hensley considered the legislative history of the Civil Rights Act and adopted a factor analysis from Johnson v. Georgia Highway Express, Inc. for adjudication of a claim for attorneys fees brought pursuant to the Act. See id. at 429-30 (citing Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714 (5th Cir. 1974)). Plaintiffs argue that the Ninth Circuit Court of Appeals has favorably referred to Hensley as a guide for adjudication of attorney fee claims under the Act. See Corder v. Gates, 947 F.2d 374 (9th Cir. 1991). In their brief, Plaintiffs set forth the twelve factors from Johnson, but forgo any analysis or argument as to how the factors should be applied, instead opting to "not belabor this matter by discussing each factor because the [C]ourt is already generally familiar with this case...." (Doc. 186 at 6.) In closing, Plaintiffs make arguments to justify the calculation of the fees sought.
The State Defendants' Response to Plaintiffs' Motion for Attorney's Fees indicates that they were not contacted for their position on the Motion, pursuant to Local Rule 7.1. The State Defendants filed their Response "out of an abundance of caution" because Plaintiffs' Motion "discusses work done [on] unsuccessful claims against [the] State [D]efendants." (Doc. 189 at 1.) The State Defendants present a straightforward legal argument for denying any fee award attributable to claims upon which they prevailed. Relying on the statute's limitation of fees to a "prevailing party[, ]" 42 U.S.C. § 1988(b), and relevant state and federal cases, the State Defendants claim that the Plaintiffs may not recover any fees from the state because the state prevailed on all claims.
The County Defendants Response to Plaintiffs' Motion insists that the Court must deny any award of attorney fees because Marion Howell filed to prove an essential element of her claim for monetary relief and recovered only nominal damages. The County Defendants rely on Farrar v. Hobby, where the United States Supreme Court interpreted the fee recovery provision of the Civil Rights Act in the context of a plaintiff awarded only nominal damages. See 506 U.S. 103 (1992). There, the Supreme Court stated that "[w]hen a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief... the only reasonable fee is usually no fee at all." Id. at 115 (citation omitted). The County Defendants argue that Marion Howell has "essentially prevailed on a simple trespass theory, without establishing anything other than entry into the residence without an adult's consent." (Doc. 192 at 4.) This, they argue, "renders her success relatively insignificant in the context of the entirety of the case presented, " and entitles her to no award of fees. (Id. at 4-5.) The County Defendants also argue that no award of fees is warranted under Montana law and that the amount of fees Plaintiffs request are unreasonable.
The Court is now called upon to determine whether any award of attorneys fees is appropriate under federal and state law. If so, the Court must then decide whether the amount of the Plaintiffs' request is reasonable. Plaintiffs filed a Reply to the Defendants' Responses to their Motion. In this document, Plaintiffs engaged in detailed analysis of the legal justification for the fees sought, with specific reference to authority regarding a nominal damages plaintiff's ability to recover fees in an action brought under the Civil Rights Act. This analysis was notably absent from the initial Brief in Support of their Motion. Because these arguments were only presented to the Court in the Plaintiff's Reply, Defendants have not been afforded an opportunity to respond. Despite this unfair sandbagging, the Court has given due consideration to each of the Plaintiffs' arguments in support of their claim that they are entitled to attorney's fees. The only proper conclusion is that Plaintiffs are entitled to none of the relief sought under federal and state law. Their Motion will therefore be denied.
At the outset, lacking any assistance or instruction from Plaintiffs' briefs on the Motion, it is necessary to narrow the scope of the question now before the Court. Plaintiffs are not entitled to an award of fees against the State Defendants because they were not a prevailing party as to any State Defendant. See 42 U.S.C. § 1988(b). The Court therefore construes Plaintiffs' Motion as a request that the entire sum of attorney fees requested be assessed against the County Defendants.
A. Plaintiffs' Claim for Attorney's Fees under Federal Law
Plaintiffs are not entitled to an award of attorney's fees under federal law. Marion Howell prevailed against Defendant Deputy Scott Secor on her claim that he unlawfully entered her home. The jury awarded her only nominal damages of one dollar. The Supreme Court in Farrar v. Hobby considered the whether a civil rights plaintiff who receives only nominal damages is a prevailing party eligible to receive an award of attorney's fees under § 1988. 506 U.S. 103 (1992). In Farrar, the Court held that "a plaintiff who wins nominal damages is a prevailing party under § 1988." Id. at 112. The Court went on to state that the degree of a plaintiff's success is the guidepost for whether an award of attorney's fees is reasonable for a prevailing nominal damages plaintiff in a civil rights action. Id. at 114. In this context, a court need only consider the amount and nature of damages sought and awarded, without reference to the Hensley factors bearing on reasonableness or calculating an exact award by reference to the number of hours reasonably expended and a reasonable hourly rate. Id at 114-15. Of special importance to this case, the Court noted that "[i]n some circumstances, even a plaintiff who formally prevails' under § 1988 should receive no attorney's fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party." Id. at 115. "When a plaintiff recovers only nominal damages because of  failure to prove an essential element of [a] claim for monetary relief... the only reasonable fee is usually no fee at all." Id.
Without specific guidance from Justice Thomas' opinion in Farrar as to the circumstances under which recovery of attorney's fees by a nominal damages plaintiff is proper, the Ninth Circuit Court of Appeals "follow[s] the general rule, derived from Justice O'Connor's concurrence in Farrar, that [i]f a district court chooses to award fees after a judgment for only nominal damages, it must point to some way in which the litigation succeeded, in addition to obtaining a judgment for nominal damage." Mahach-Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir. 2010) (citing Wilcox v. City of Reno, 42 F.3d 550, 555 (9th ...