Dean v. Cnty. of Gage

332 F. Supp. 3d 1247
CourtDistrict Court, D. Nebraska
DecidedSeptember 14, 2018
Docket4:09CV3144; 4:09CV3145; 4:09CV3146; 4:09CV3147; 4:09CV3148; 4:11CV3099
StatusPublished
Cited by1 cases

This text of 332 F. Supp. 3d 1247 (Dean v. Cnty. of Gage) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dean v. Cnty. of Gage, 332 F. Supp. 3d 1247 (D. Neb. 2018).

Opinion

Richard G. Kopf, Senior United States District Judge

This matter is before the court on Plaintiffs' Application for Attorneys' Fees and Costs (Filing 700) and Plaintiffs' Motion for Review of the Clerk's Denial of Plaintiffs' Bill of Costs (Filing 713).1

I. Plaintiffs' Motion for Attorneys' Fees2

On June 11, 2018, judgment was entered by the United States Court of Appeals for the Eighth Circuit (Filing 694), affirming the judgment that was entered by this court on July 6, 2016 (Filing 561).3 The Court of Appeals' mandate issued and was received by this court on July 24, 2018 (Filing 697). On July 31, 2018, Plaintiffs filed their motion for attorney fees (Filing 700) with an index of evidence (Filing 701), but no supporting brief.

The period of time covered by the motion runs from August 3, 2016 (the date Defendants filed a Rule 59 motion for *1250judgment as a matter of law or for a new trial), through July 29, 2018. The court previously granted a motion for attorney fees and expenses for work performed by Plaintiffs' counsel through July 21, 2016 (the date the motion for attorney fees was filed). See Memorandum and Order (Filing 613) and Judgments (Filings 615 through 620) entered on September 6, 2016.4

On August 1, 2018, this court entered a Memorandum and Order directing Plaintiffs to submit "a brief addressing whether the motion is timely, whether the motion is in compliance with the local rules of this court, the Eighth Circuit Court of Appeals Local Rules, the Federal Rules of Civil Procedure, and whether the law and the facts warrant the relief sought on the merits." (Filing 702) A schedule was established for submission of briefs and evidence by both sides.

Plaintiffs filed their brief on August 13, 2018 (Filing 708). Defendants filed an opposing brief on August 24, 2018 (Filing 712). Plaintiffs replied on August 29, 2018 with a brief (Filing 715) and additional evidence (Filing 716). The matter is now ripe for determination.

A. Jurisdiction

As an initial matter, this court must determine whether it has jurisdiction to award attorney fees and expenses associated with an appeal. As suggested by the court in its previous Memorandum and Order, this question was answered in the affirmative by the Eighth Circuit in Little Rock School District. v. State of Arkansas , 127 F.3d 693 (8th Cir. 1997). In that case, as here, the prevailing parties on appeal did not file a motion for attorney fees with the Court of Appeals, as provided in Rule 47C of the Local Rules of the Eighth Circuit, but instead applied to the district court after the defendant/appellee's petition for rehearing was denied. The district court awarded attorney fees to the plaintiffs pursuant to 42 U.S.C. § 1988.5 The defendant appealed from the award and argued, among other things, that Rule 47C deprived the district court of jurisdiction to award attorney fees for work performed in connection with the appeal. The Eighth Circuit rejected this argument, stating:

Rule 47C provides:

(a) Motion for Fees. A motion for attorney fees ... shall be filed with the clerk within 14 days after the entry of judgment.... The court may grant on its own motion an allowance of reasonable attorney fees to a prevailing party.
(b) Determination of Fees. On the court's own motion or at the request of the prevailing party, a motion for attorney fees may be remanded to the district court or administrative agency *1251for appropriate hearing and determination....
The usual practice for awarding fees and costs under 42 U.S.C. § 1988 is for this Court to fix the compensation for services rendered before it, and for the District Court to do so for services rendered before it. Avalon Cinema Corp. v. Thompson , 689 F.2d 137, 138 (8th Cir.1982) (en banc). The policy behind Rule 47C is that fee awards should be determined by the court most familiar with the legal services in question. In this case, as in any other before this Court, the plaintiffs should have filed a motion to this Court for fees incurred on appeal. If they had done so, we could have remanded the matter to the District Court for its determination; but we probably would have kept the motion here and decided it ourselves.
However, Rule 47C cannot and does not affect the jurisdiction of the district courts. The jurisdiction of the federal district courts is conferred by Congress. See 28 U.S.C. §§ 1331 - 1390. Rule 47C is a rule of procedure for the Court of Appeals and does not alter this grant of jurisdiction. Therefore, despite our local rule, the district courts retain jurisdiction to decide attorneys' fees issues that we have not ourselves undertaken to decide. The District Court has awarded attorneys' fees for services rendered before the United States Supreme Court, reasoning that the Supreme Court had lost jurisdiction, and, in any event, would have been unlikely to undertake the intensive fact-finding necessary in such matters. Vaughn v. Westinghouse Elec. Corp. , 526 F.Supp. 1165, 1169 (E.D.Ark.1981). Such discretionary and practical considerations continue to be relevant to a district court's decision whether to grant a motion for attorneys' fees for services before an appellate court.
Rule 47C's own language indicates that it is not a rigid jurisdictional rule. First, this Court has the power to grant attorneys' fees on its own motion. 8th Cir. R. 47C(a). Second, whether the fee award is on its own motion or that of the party seeking compensation, this Court retains the discretion to remand the question to the District Court, instead of determining the award itself. 8th Cir. R. 47C(b). The Rule thus preserves multiple procedural options for the determination of attorneys' fees.
The choice of procedure should not obscure the end goal: calculation of a fair award.

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Bluebook (online)
332 F. Supp. 3d 1247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-cnty-of-gage-ned-2018.