United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.
September 24, 2018, the Court issued a Memorandum Opinion and
Order on cross-motions for summary judgment. (Doc. 76). The
Court ruled in Plaintiffs' favor on summary judgment,
finding that the City of Rogers' Ordinance 52-139 was
unconstitutional under the First and Fourteenth Amendments to
the Constitution. The Court also enjoined the City of Rogers
from enforcing the Ordinance. As Plaintiffs prevailed in this
matter, the Court directed them to submit a brief and
itemized bill in support of their request for an award of
attorney's fees and costs, pursuant to 42 U.S.C. §
1988, by no later than October 9, 2018. The Court also
permitted the City of Rogers to file a response, if desired,
by no later than two weeks after Plaintiffs' brief was
filed their Motion for Attorneys' Fees and Costs (Doc.
81) and Brief in Support (Doc. 82) on October 5, 2018. On
October 11, one of Plaintiffs' attorneys, Monzer Mansour,
filed an amended declaration in support of his request for
fees (Doc. 83). In the amended declaration, Mr. Mansour asked
the Court to reduce the hourly rate he claimed in his
original declaration (Doc. 81-2) and pay him less fees than
he previously requested.
to the Court's Order of September 24 (Doc. 76), the City
of Rogers had fourteen days following the filing of
Plaintiffs' Motion, or until October 19, 2018, to file a
response. As of today's date, no response was
filed. The Court therefore considers the Motion to be
unopposed. For the reasons explained below, Plaintiffs'
Motion for Attorneys' Fees and Costs (Doc. 81) is
Glynn Dilbeck and Shane Cook, who identify themselves as
panhandlers or beggars, brought suit in this Court on June
27, 2017, arguing that an ordinance passed by the City of
Rogers, Arkansas, violated their First Amendment right to
engage in solicitation speech. After the lawsuit was filed,
the City repealed and replaced the ordinance in question
several times, each time amending the language. The most
recent version of the ordinance, which was titled
'Approaching an occupied vehicle-Prohibited," was
challenged by Plaintiffs under the First and Fourteenth
Amendments to the United States Constitution. Following an
in-court hearing on the relevant law and extensive briefing
by the parties on summary judgment, the Court determined that
the ordinance was unconstitutional under both claimed
grounds, and Plaintiffs prevailed in their lawsuit.
U.S.C. § 1988 gives the Court discretion to award
"a reasonable attorney's fee as part of the
costs" to the "prevailing party" in an action
brought under 42 U.S.C. § 1983. "[P]laintiffs may
be considered 'prevailing parties' for attorney's
fees purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing suit." Hensley v. Eckerhart,
461 U.S. 424, 433 (1983) (quoting Nadeau v.
Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).
"Absent special circumstances, a prevailing party should
be awarded section 1988 fees as a matter of course."
Hatfield v. Hayes, 877 F.2d 717, 719 (8th Cir. 1989)
(quoting Kirchberg v. Feenstra, 708 F.2d 991, 998
(5th Cir. 1983)) (emphasis in original, alteration omitted).
first step in determining a reasonable attorney's fee is
the calculation of the "lodestar," which is
"the number of hours worked multiplied by the prevailing
hourly rates," see Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 546 (2010), "reduce[d]... for
partial success, if necessary," Jensen v.
Clarke, 94 F.3d 1191, 1203 (8th Cir. 1996). Then,
"in extraordinary circumstances" the Court may
adjust the lodestar, but "there is a strong presumption
that the lodestar is sufficient." Perdue, 559
U.S. at 546. In determining whether such extraordinary
circumstances exist, the Court "may consider other
factors identified in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), though it
should note that many of these factors usually are subsumed
within the initial calculation of hours reasonably expended
at a reasonable hourly rate." Hensley, 461 U.S.
at 434 n.9. Always, though, "the most critical factor is
the degree of success obtained." Id. at 436.
"[T]he fee award should not be reduced simply because
the plaintiff failed to prevail on every contention raised in
the lawsuit, "-especially when all of the claims are
based on a common core of facts or related legal theories;
rather, the degree of success should be ascertained by
"focus[ing] on the significance of the overall relief
obtained by the plaintiff in relation to the hours reasonably
expended on the litigation." Id. at 435.
are clearly "prevailing parties" as contemplated by
42 U.S.C. § 1988. They succeeded in their constitutional
challenge on both grounds asserted, and the City of Rogers
was permanently enjoined from enforcing the ordinance at
attorneys Bettina Brownstein, Monzer Mansour, and Holly
Dickson propose hourly billing rates of $300.00, $275.00, and
$300.00, respectively. Ms. Brownstein has been licensed to
practice law for 36 years. She has extensive experience in
the private sector litigating numerous complex cases in the
areas of civil rights and government integrity. She is
currently a Cooperating Attorney with the American Civil
Liberties Union of Arkansas. Ms. Dickson is Legal Director
for the American Civil Liberties Union of Arkansas. She has
been licensed to practice law for 20 years and has extensive
knowledge and experience in the area of constitutional law,
with free speech challenges being her particular specialty.
Mr. Mansour has been licensed to practice law for 22 years.
He is experienced in handling both civil and criminal
matters, and he has affiliated with the American Civil
Liberties Union of Arkansas to assist in civil rights actions
brought under Section 1983.
the experience and expertise of these attorneys in litigating
civil rights lawsuits for more than two decades, and drawing
on the Court's "own experience and knowledge of
prevailing market rates," Warnock v. Archer,
397 F.3d 1024, 1027 (8th Cir. 2005), these attorneys'
hourly rates of $300.00, $275.00, and $300.00 are reasonable,
especially considering the complex work they performed
successfully on behalf of their clients.
Brownstein, Mr. Mansour, and Ms. Dickson have submitted bills
of 81.0 hours, 44.2 hours, and 3.2 hours, respectively, for
their work on this case. After a careful review of the time
sheets, the Court concludes that 100% of these attorneys'
hours constitute original and independent work product for
which they should receive full credit and compensation.
Therefore, the Court will calculate the lodestar in this case
as follows: 81.0 hours at a rate of $300.00 per hour for Ms.
Brownstein, plus 44.2 ...