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Cook v. Greenleaf Township

United States District Court, E.D. Michigan, Southern Division

September 17, 2019

GREENLEAF TOWNSHIP, et al., Defendants.



         This 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.

         I. BACKGROUND

         The 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 OMA claim.


         In 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).


         There 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.

         A. Defendants' Motion (Dkt. 96)

         Defendants 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.

         Section 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.[1]

         These 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)).

         Defendants 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 inapposite.

         In 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 ...

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