Amico v. New Castle County, Civ. A. No. 82-513 CMW.

CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)
Citation654 F. Supp. 982
Docket NumberCiv. A. No. 82-513 CMW.
PartiesMichael AMICO, Plaintiff, v. NEW CASTLE COUNTY, a political subdivision of the State of Delaware, Commission on Adult Entertainment, an entity within the State of Delaware, Department of Administrative Services, Division of Business and Occupational Regulation, and the State of Delaware, Defendants.
Decision Date11 February 1987





Joseph A. Hurley, Wilmington, Del. (Lewis H. Robertson of Levy & Robertson, Asbury Park, N.J., of counsel), for plaintiff.

Howard M. Berg and Michael K. Tighe of Berg & Associates, Wilmington, Del., Scott A. Green and Donald E. Marston, of New Castle County Law Dept., Wilmington, Del., for defendant, New Castle County.

John J. Polk, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendant, the State of Delaware.


CALEB M. WRIGHT, Senior District Judge.

The Court must decide whether to award attorneys' fees to a party that successfully challenged, on First Amendment grounds, a county ordinance that, among other things, forbade the construction of an "adult entertainment center" proximate to residential areas.

The precise question presented today is whether this Court may award attorneys' fees when the party submitting the fee request fails to comply with a deadline established by local rules. The Court will grant plaintiff's motion for fees.1

An ancillary question is whether the Court may adjust a fee award upward to compensate for the undesirability of the case, the delay in payment or the risk of non-payment. A multiplier for only the last two factors will be allowed.


Plaintiff, Michael Amico, applied in 1978 for a license to open an "adult entertainment center" in New Castle County. He was denied the license and filed a lawsuit on August 9, 1982 to challenge the constitutionality of the County's land use ordinances. The contested provision requires that "adult" uses be located at least 500 feet from property used solely for residential purposes and that such uses obtain a special permit.

The action, brought pursuant to 42 U.S.C. § 1983, sought an injunction against enforcement of the land use provisions, damages for the alleged violations of plaintiff's civil rights, costs and attorneys' fees. Plaintiff's core contention was that defendants violated his First Amendment rights by denying his permit. The Court granted plaintiff's motion for summary judgment, holding that the 500-foot residential spacing and permit requirements were unconstitutional, and enjoined the County from enforcing those provisions. Amico v. New Castle County, 571 F.Supp. 160 (D.Del. 1983).

In August, 1983, defendants applied for an order modifying the Court's Opinion because another provision of the county ordinances operated to bar plaintiff's zoning permit. This church/school spacing provision requires that adult entertainment centers cannot be located within 2800 feet of a church, school or other place of worship.2 The Court modified its earlier opinion on September 23, 1983 to clarify that the County could enforce the church/school spacing portion of the ordinance. Amico v. New Castle County, 571 F.Supp. at 173.

The Court subsequently permitted plaintiff to amend his complaint to seek a determination that the church/school provision was not applicable to him or was unconstitutional. In an April 6, 1984 Opinion, the Court determined, inter alia, that, absent a trial, the Court could not rule that the church/school spacing requirement was unconstitutional on the equal protection, due process and establishment clause grounds asserted by Amico. The Court consolidated the trial on the merits with the hearing on plaintiff's request for a preliminary injunction. Amico v. New Castle County, 101 F.R.D. 472 (D.Del.1984). The proceedings were subsequently bifurcated to have one trial on liability and another trial, if necessary, on damages.

After a two day trial, the jury returned a verdict in favor of the County. On the following day, July 19, 1984, the Court entered a "Judgment on Special Verdict" holding that "in accordance with the Special Verdict of the Jury and the Opinion of the Court, dated April 6, 1984 ... all relief requested by plaintiff is denied and judgment entered for defendants."

On August 31, 1984, Amico filed a Notice of Appeal to the Third Circuit.3 The Third Circuit Merits Panel affirmed this Court on June 6, 1985. Amico v. New Castle County, No. 84-5603, Slip Op. at 1 (3d Cir. May 14, 1985) 770 F.2d 1066 (table).

Plaintiff next filed a motion for summary judgment seeking damages in connection with the invalidated residential spacing provision. The District Court, sua sponte, requested briefing on the issue of whether its earlier judgment of July 19, 1984 barred further litigation under the doctrine of res judicata. On July 11, 1986, the District Court entered an Order stating that its July 19, 1984 Order was a final judgment which had denied all relief requested by plaintiff, and had barred further proceedings. This Court, accordingly, denied Amico's motion for summary judgment or, in the alternative, for a trial date.

Plaintiff filed a Notice of Appeal to the Third Circuit from the District Court's Order on July 21, 1986. Briefing is completed and the matter is ripe for decision, although no date for oral argument is scheduled.

On September 5, 1986, plaintiff filed a Notice of Motion for Entry of Order Awarding Costs to Plaintiff Pursuant to 42 U.S.C. § 1988. Defendant, New Castle County, objects to plaintiff's application for attorneys' fees.


While conceding that plaintiff is a prevailing party, defendant asserts that plaintiff's failure to timely apply for attorneys' fees bars his recovery. Defendant constructs three alternative theories: (1) the doctrine of res judicata bars plaintiff's motion; (2) plaintiff did not comply with the Delaware local rules prescribing the timing of attorneys' fees applications; and (3) the timing of plaintiff's application for attorneys' fees harmed defendant. The Court is persuaded by none of these theories.

A. A Prevailing Party Under § 1988

Plaintiff brought his motion for attorneys' fees under the 1976 Civil Rights Attorneys' Fees Award Act, 42 U.S.C. § 1988, which grants the Court discretion to award reasonable attorneys' fees to prevailing plaintiffs in civil rights actions.4

A typical formulation is that "plaintiffs may be considered prevailing parties for attorneys' fees purposes if they succeed on any significant issue which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Defendant does not contest that plaintiff is a prevailing party within the ambit of the statutory section.

During the course of this protracted litigation, plaintiff successfully persuaded the Court that New Castle County's residential spacing and special permit provisions were unconstitutional. He succeeded in convincing the Court to enjoin the County from enforcing those provisions against him. He also established his prima facie right to damages. Amico v. New Castle County, 553 F.Supp. 738 (D.Del.1982); Amico v. New Castle County, 571 F.Supp. 160 (D.Del.1983). In response to the Court's earlier provision, the County repealed the special permit requirement and amended its residential spacing restriction to ameliorate any constitutional infirmity. As a prevailing party, plaintiff is presumptively entitled to attorneys' fees. Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (a successful plaintiff should ordinarily recover attorneys' fees unless special circumstances would render such an award unjust); Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954, 955 (5th Cir.1981) (discretion to deny fees to prevailing party has been said to be exceedingly narrow).

B. Res Judicata

While conceding that plaintiff is a prevailing party, defendant contends that any fee recovery is barred by the doctrine of res judicata. This argument suggests that just as this Court's July 19, 1984 judgment barred further litigation on the question of damages, so should it bar additional litigation over attorneys' fees. Defendant's argument, however, fails because it ignores the distinction between proceedings on the merits and proceedings for attorneys' fees.

This distinction is critical given the meaning of res judicata accepted by this Court. The precise definition of res judicata is one attorneys have debated for centuries. The litany of preclusion concepts includes "merger", "bar", "causes of action", "collateral estoppel", "claim preclusion" and "issue preclusion". This Court, however, adopts the Supreme Court's definition of res judicata: "the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit." Migra v. Warren City School District, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), quoted with approval in Neoplan U.S.A. Corp. v. Taylor, 604 F.Supp. 1540, 1543 (D.Del.1985). Res judicata, therefore, may be defined as "claim preclusion". Id. See also Albanese v. Emerson Elec. Co., 552 F.Supp. 694 (D.Del.1982); U.S.A. Corp. v. Taylor, (1982); Aiello v. City of Wilmington, 470 F.Supp. 414 (D.Del.1979), aff'd., 623 F.2d 845 (3d Cir.1980).

Defendant urges that, under the doctrine of res judicata, this Court's July 19, 1984 judgment bars plaintiff from applying for any further relief, including attorneys' fees. Further, defendant argues, it was incumbent upon plaintiff to file a motion under Rule 59(e) of the Federal Rules of Civil Procedure to modify the judgment to seek attorneys' fees.5

But, proceedings for attorneys' fees under § 1988 are separate and distinct from proceedings on the...

To continue reading

Request your trial
9 cases
  • Cooper v. Hopkins, Civil Action No. 3:78-CV-207WS.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • 3 de março de 1995
    ...41-44), and established by the credible testimony of Plaintiffs' counsel). Alberti, 688 F.Supp. at 1199. Cf. Amico v. New Castle County, 654 F.Supp. 982, 1002-03 (D.Del.1987) (refusing to allow a multiplier for the undesirability of a case where the two principal attorneys for the plaintiff......
  • U.S. v. Aisenberg, 8:99-CR-324-T23MAP.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • 31 de janeiro de 2003
    ...based on half of the average prime rate for each calendar year of the litigation— in a Clean Water Act suit); Amico v. New Castle County, 654 F.Supp. 982, 1008 (D.Del. 1987) (applying a delay multiplier of 1.135 in a civil rights action); Shakman v. Democratic Org. of Cook County, 677 F.Sup......
  • Urban League of Greater New Brunswick v. Mayor and Council of Borough of Carteret
    • United States
    • United States State Supreme Court (New Jersey)
    • 11 de julho de 1989
    ...uniform rule requiring the filing of a claim for attorney's fees within twenty-one days after entry of judgment); Amico v. New Castle County, 654 F.Supp. 982, 991 (D.Del.1987) (Local Rules of Civil Practice for the U.S. District Court for the District of Delaware requires attorney's fee mot......
  • Shakespeare Co. v. Silstar Corp. of America, Inc., Civ. A. No. 3:90-1695-19.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 2 de janeiro de 1996
    ...lower court, thereby directing action to be taken or disposition to be made of the cause by the trial court,'" Amico v. New Castle County, 654 F.Supp. 982, 991 n. 6 (D.Del.1987) (citation omitted); "the mandate is a tool used to ensure that institutional values are maintained and that the a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT