Dean v. County of Gage

          MEMORANDUM AND ORDER

          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' Fees^[2]

         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 judgment 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 for 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. It would be mere procedural contortion to reverse the District Court's award only to award fees to the school districts on our own motion, which we would be inclined to do rather than allow services necessary to enforce the settlement agreement to go uncompensated. Therefore, we hold that the District Court had jurisdiction to make the award, and we review its amount for abuse of discretion. See Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (8th Cir.1991).

Id., at 696-97 (footnote omitted).

         While it would have been prudent for Plaintiffs to follow the usual practice of filing a motion for any appeal-related attorney fees in the Court of Appeals, see Id. at 697 n. 2 (8th Cir. 1997) (noting that even before the Court's adoption of Rule 47C, “the preferred practice was for the appellate court to decide appellate fee awards”), their failure to do so does not deprive this court of jurisdiction. The court must next decide whether Plaintiffs' motion is timely, an issue that was not raised in the Little Rock Sch. Dist. case.

         B. Timeliness

         Defendants contend Plaintiffs' motion is untimely under Rule 47C(a), which specifies that “[a] motion for attorney fees ... shall be filed with the clerk within 14 days after the entry of judgment.” Because “[a] judgment is entered when it is noted on the docket, ” Fed. R. App. P. 36(a), there can be no doubt that the deadline for Plaintiffs to file a motion for attorney fees in the Court of Appeals was June 25, 2018.

         Defendants do not argue that Rule 47C applies directly to the district courts in this circuit. It is, after all, “a rule of procedure for the Court of Appeals.” Little Rock Sch. Dist., 127 F.3d at 696. See Fed. R. App. P. 47(a)(1) (“Each court of appeals ... may ... make or amend rules governing its practice, ” except that “[a] local rule must be consistent with” the Federal Rules of Appellate Procedure.); see also Fed. R. App. P. 1(a)(1) (“These rules govern procedure in the United States courts of appeals.”).

         Defendants instead argue that the same 14-day deadline should apply in the district court, and that Plaintiffs “should not be allowed to recover simply because they withheld their application hoping to file it in their jurisdiction of choice” (Filing 712, p. 4). While this might be a relevant consideration in determining whether to grant Plaintiffs' motion, see Little Rock Sch. Dist., 127 F.3d at 696, it does not go to the issue of “timeliness.” Plaintiffs admit that their motion for attorney fees “does not comply with the Eighth Circuit Court of Appeals Local Rule 47C” (Filing 708, p. 5). They contend the applicable rule is Rule 54(d)(2) of the Federal Rules of Civil Procedure. This rule, which is also relied upon by Defendants, provides in part:

(A) Claim to Be by Motion. A claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.

(B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must:

(i) be filed no later than 14 days after the entry of judgment; ...

Fed. R. Civ. P. 54(d)(2). Plaintiffs contend “[t]he Court of Appeals' judgment was entered in the district court upon issuance of the mandate” on July 24, 2018 (Filing 708, p. 2), while Defendants contend “entry of judgment” occurred in the Court of Appeals, on June 11, 2018.

         As used in the Federal Rules of Civil Procedure, “judgment” is defined to “include[ ] a decree and any order from which an appeal lies.” See Fed. R. Civ. P. 54(a). Even if the term “appeal” is broadly construed to include discretionary review by petition for writ of certiorari, see Fed. Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88, 100 (1994) (Stevens, J., dissenting) (Although the term ‘appeal' may be construed literally to encompass only mandatory review, a far more natural reading of the term ... would embrace all appellate litigation whether prosecuted by writ of certiorari, writ of mandamus, or notice of appeal.”), it would still require a “strained construction” of Rule 54(d)(2) to conclude that judgment is entered when the Court of Appeals' mandate issues. Cf. Murphy v. L & J Press Corp., 577 F.2d 27, 29 (8th Cir. 1978) (local rule requiring the filing of a bill of costs within 10 days “after entry of a final judgment or decree, ” if read literally, “could not be applicable to the taxation of appellate costs in the district court since district court proceedings after an appellate judgment must await issuance of the mandate, which normally follows the appellate judgment of twenty-one days, and the District Court's implicit construction of ‘final judgment or decree' to mean, in an appellate context, ...