United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART CHRISTINA
GIBBARD'S MOTION FOR ATTORNEY FEES (DKT. 94) AND DENYING
DEFENDANTS' MOTION FOR ATTORNEY FEES (DKT. 96)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff Christina
Gibbard's motion for attorney fees (Dkt. 94) and
Defendants Judy Keller, Randall Schuette, and Rosie
Quinn's motion for attorney fees (Dkt. 96). This case was
tried in December 2018 on Plaintiffs Shelly Cook's and
Christina Gibbard's claims of First Amendment
retaliation, assault and battery, and violations of
Michigan's Open Meetings Act (“OMA”). The
jury found in Plaintiffs' favor on the battery claims and
in Gibbard's favor on the OMA claim. For the reasons
discussed below, Gibbard's motion is granted in part and
Defendants' motion is denied.
relevant background is set forth in full in this Court's
prior opinion. See 5/15/2018 Op. & Order (Dkt.
45) (denying Defendants' motion for partial summary
judgment). In brief summary, since 2015, Cook and Gibbard
have attended nearly every Greenleaf Township board meeting
and planning commission meeting that has been held. They have
videotaped each meeting and have provided public comment on
issues and proposals that are before the township. Keller and
Schuette took actions against Cook and Gibbard that gave rise
to claims under the First Amendment and the OMA. The matter
proceeded to trial, and a jury found that Keller and Schuette
did not retaliate against Cook and Gibbard in violation of
the First Amendment, but that they did violate Gibbard's
rights under the OMA. The jury awarded Gibbard $250 in
damages against Keller and Schuette respectively, for a total
of $500. The parties have filed cross motions for attorney
fees-Keller and Schuette because they prevailed on the First
Amendment claims, and Gibbard because she prevailed on the
United States, under the “American Rule, ” each
side in legal proceeding pays for its own attorney fees.
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The
American Rule, however, has numerous statutory exceptions,
some, if not most, of which Congress has enacted to encourage
private litigation to implement public policy. Alyeska
Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S.
240, 263 (1975). This private-attorney-general concept is
often found in civil rights statutes. For example, in civil
rights actions brought under 42 U.S.C. § 1983, courts
are authorized to allow “the prevailing party”
reasonable attorney fees as part of the costs. 42 U.S.C.
§ 1988(b). “The touchstone of the prevailing party
inquiry must be the material alteration of the legal
relationship of the parties in a manner which Congress sought
to promote in the fee statute.” Texas State
Teachers Ass'n v. Garland Indep. Sch. Dist., 489
U.S. 782, 792-793 (1989).
is no dispute that Defendants are the prevailing parties on
the First Amendment claims and that Gibbard is the prevailing
party on her OMA claims. However, as explained below, simply
being a prevailing party does not necessarily allow for
attorney fees. Gibbard is entitled to attorney fees;
Defendants are not.
Defendants' Motion (Dkt. 96)
argue that as the prevailing parties on the First Amendment
retaliation claims, they should be awarded attorney fees
under § 1988. But awarding attorney fees to prevailing
defendants is rare and reserved for particularly egregious
cases, which this case is not.
1988 does not distinguish between prevailing plaintiffs and
prevailing defendants. Nonetheless, courts recognize that
there is a dual standard. A prevailing plaintiff should
“ordinarily recover an attorney's fee unless
special circumstances would render such an award
unjust.” Newman v. Piggie Park Enters., Inc.,
390 U.S. 400, 402 (1968). This is so because “[i]f
successful plaintiffs were routinely forced to bear their own
attorneys' fees, few aggrieved parties would be in a
position to advance the public interest.” Id.
“Congress therefore enacted the provision for counsel
fees-not simply to penalize litigants who deliberately
advance arguments they know to be untenable but, more
broadly, to encourage individuals” to bring civil
rights cases. Id.
same policy considerations, however, are not present for the
prevailing defendant. Christiansburg Garment Co. v. Equal
Emp't Opportunity Comm'n, 434 U.S. 412, 419
(1978). Prevailing defendants should recover fees only upon a
finding that “plaintiff's action was frivolous,
unreasonable, or without foundation, even though not brought
in subjective bad faith.” Id. at 421;
accord Wayne v. Village of Sebring, 36 F.3d 517, 530
(6th Cir. 1994). While Congress wanted to clear the way for
civil rights actions, it also wanted to protect defendants
from frivolous litigation having no legal or factual basis.
Christiansburg, 434 U.S. at 420. Accordingly,
“[a]n award of attorney fees against a losing plaintiff
in a civil rights action ‘is an extreme sanction, and
must be limited to truly egregious cases of
misconduct.'” Riddle v. Egensperger, 266
F.3d 542, 547 (6th Cir. 2001) (quoting Jones v.
Cont'l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986)).
argue that Gibbard's and Cook's First Amendment
claims are textbook examples of frivolous, unreasonable, or
without-foundation claims. Mot. at 9. They rely heavily on
Wolfe v. Perry, 412 F.3d 707 (6th Cir. 2005), a case
in which the Sixth Circuit upheld the award of attorney fees
to the prevailing defendant. The Court finds the case
Wolfe, the plaintiff knew from the outset of the
case that his Fourth Amendment claim that police had
illegally searched his home was frivolous, because he neither
owned nor resided at the home that was searched. Id.
at 721. Even after the plaintiff admitted at his deposition
that he neither owned nor resided at the home, he continued
with his claim, which ultimately failed when the court
granted defendants' motion for summary judgment. The
Sixth Circuit found that the plaintiff's claim “was
clearly defective at the ...