O'Brien v. City of Greers Ferry, s. 88-1468

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before McMILLIAN and BEAM; BEAM
• Citation: O'Brien v. City of Greers Ferry, 873 F.2d 1115 (8th Cir. 1989)
• Decision Date: 22 June 1989
• Docket Number: Nos. 88-1468,88-1534,s. 88-1468
• Parties: Toni O'BRIEN, Appellant, v. CITY OF GREERS FERRY, Jack McKinney, Mayor, Harley Cosby, Alderman, In their individual and official capacities, Appellees. Toni O'BRIEN, Appellee, v. CITY OF GREERS FERRY, Jack McKinney, Mayor, Harley Cosby, Alderman, In their individual and official capacities, Appellants.

Page 1115

873 F.2d 1115

Toni O'BRIEN, Appellant, v. CITY OF GREERS FERRY, Jack McKinney, Mayor, Harley Cosby,

Alderman, In their individual and official

capacities, Appellees.

Toni O'BRIEN, Appellee, v. CITY OF GREERS FERRY, Jack McKinney, Mayor, Harley Cosby,

Alderman, In their individual and official

capacities, Appellants.

Nos. 88-1468, 88-1534.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1988.

Decided May 1, 1989.

Rehearing and Rehearing En Banc Denied June 22, 1989.

John Wesley Hall, Jr., Little Rock, Ark., for appellant.

David Keith Ruthledge, Batesville, Ark., for appellee.

Before McMILLIAN and BEAM, Circuit Judges, and WHIPPLE, ^* District Judge.

BEAM, Circuit Judge.

Toni O'Brien was awarded damages in the amount of $2400 in an action brought pursuant to 42 U.S.C. Secs. 1983, 1985 (1982) against Jack McKinney and Harley Cosby. The jury found for the City of Greers Ferry in the same action. O'Brien appeals from the district court's ¹ denial of her request for attorney's fees. McKinney and Cosby cross-appeal from the denial of their motion for judgment notwithstanding the verdict and the receipt of testimony and exhibits of the city council into evidence. Greers Ferry cross-appeals from the district court's refusal of its application for attorney's fees. We affirm in part and reverse and remand in part.

I. FACTS

In September 1985, Toni O'Brien, an alderwoman in Greers Ferry, Arkansas, was sued in her official capacity for slander by James Weed. Weed alleged that O'Brien told another alderman, Harley Cosby, that money "changed hands" at city hall between Weed and the mayor of Greers Ferry, Jack McKinney.

The Arkansas Municipal League Defense Program (AMLDP) had established a fund to defend officials and employees of member municipalities in lawsuits arising out of their positions as officials or employees. The AMLDP agreed to defend O'Brien in the slander action if Greers Ferry would pay a $2,000 "deductible" amount. O'Brien then introduced a resolution at a city council meeting to appropriate $2,000 for the "deductible." The city council voted not to appropriate the funds.

In December 1985, the slander action was dismissed without prejudice. O'Brien expended $2,200 of her own money to defend herself in the action.

In January 1986, Weed filed the instant action in state court against O'Brien in her individual capacity, presenting essentially the same allegations as in the first slander action. O'Brien removed the action to federal court. O'Brien counterclaimed against Weed and cross-claimed against Greers Ferry, McKinney, and Cosby. The cross-claim alleged that the refusal to appropriate $2,000 was an attempt to force O'Brien to resign from the city council in violation of sections 1983 and 1985. O'Brien based her civil rights claims on retaliation for exercise of free speech rights, sex-based animus by Cosby which led him to attempt to keep women off the city council, and conspiracy to deprive her of constitutional rights.

On May 14, 1986, Greers Ferry, McKinney, and Cosby made a formal offer of judgment to settle the case. O'Brien rejected the offer and proceeded to trial.

Before trial, Weed and O'Brien agreed to dismiss their respective claims against each other. At trial, the jury awarded O'Brien $2,200 in compensatory damages and $200 in punitive damages against McKinney and Cosby in their individual capacities. As indicated, Greers Ferry was exculpated.

After trial, O'Brien and Greers Ferry each filed petitions for attorney's fees, and McKinney and Cosby filed a motion for judgment notwithstanding the verdict. The district court disallowed attorney's fees incurred by O'Brien prior to removal to federal court and all fees incurred after the offer of judgment. The district court denied McKinney's and Cosby's motion for judgment notwithstanding the verdict and Greers Ferry's request for attorney's fees. These appeals followed.

II. DISCUSSION

A. Denial of O'Brien's Attorney's Fees Prior to Removal

O'Brien asserts that she is entitled to attorney's fees which accrued prior to the removal of the action to federal court, specifically, those incurred in defense of the dismissed state court action. She argues that 42 U.S.C. Sec. 1988 (1982) ² authorizes such fees because she was a prevailing party in her section 1983 claim.

The award of attorney's fees under section 1988 is a matter uniquely for the district court's discretion and will not be overturned absent an abuse of discretion or an error in implementing the governing legal standards. Wilmington v. J.I. Case Co., 793 F.2d 909, 923 (8th Cir.1986).

Here, we do not discern an abuse of discretion or an error in implementing the governing legal standards by the district court. The jury awarded O'Brien the attorney's fees of $2,200 as compensatory damages. Therefore, if we were to allow O'Brien recovery for the same attorney's fees under a section 1988 calculation, we would be permitting double recovery. We conclude that the district court correctly denied the section 1988 request for attorney's fees accrued prior to removal of the case to federal court.

B. Denial of O'Brien's Attorney's Fees after Offer of Judgment

Pursuant to Fed.R.Civ.P. 68, Greers Ferry made O'Brien a formal offer of judgment of $6,000, not including costs and attorney's fees. As indicated, O'Brien rejected the offer. The district court calculated that the attorney's fees incurred in federal court prior to the offer of judgment ($3,394.99) and damages awarded by the jury ($2,400) were less than the offer of judgment ($6,000). Therefore, the court denied recovery of attorney's fees incurred after the offer of judgment was made. O'Brien asserts that the trial court, in comparing the actual recovery with the offer of judgment, should have included the attorney's fees of $2,200 incurred in the earlier state action. O'Brien argues that since the amount of attorney's fees accrued in defending the state action ($2,200), attorney's fees incurred in the federal action prior to the offer of judgment ($3,394.99), and damages awarded by the jury ($2,400) exceeds the offer of judgment ($6,000), the trial court should have awarded attorney's fees incurred after the offer of judgment.

"Civil rights plaintiffs--along with other plaintiffs--who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney's fees for services performed after the offer is rejected." Marek v. Chesny, 473 U.S. 1, 10, 105 S.Ct. 3012, 3018, 87 L.Ed.2d 1 (1985). Therefore, we must compare the offer of judgment with the actual recovery to determine which was greater.

We start with the figure of $6,000 stated in the offer of judgment. Because the offer of judgment in this case did not purport to include attorney's fees, the pre-offer attorney's fees must be added to the offer of judgment. Marek, 473 U.S. at 6, 105 S.Ct. at 3015-16 (stating that "if the offer does not state that costs are included and an amount for costs is not specified, the court will be obliged by the terms of the Rule to include in its judgment an additional amount which in its discretion it determines to be sufficient to cover the costs") (citations omitted). Thus, Greers Ferry's offer really included the amount recited ($6,000) plus the pre-offer attorney's fees ($3,394.99) for a total of $9,394.99.

The jury awarded O'Brien damages in the amount of $2,400. To this, we add the pre-offer attorney's fees of $3,394.99. See Grosvenor v. Brienen, 801 F.2d 944, 945-48 (7th Cir.1986) (holding that pre-offer attorney's fees are to be added to the judgment award to determine whether the judgment award was more favorable than the offer of judgment). We do not include the attorney's fees incurred in the state action. As we stated in our previous discussion, the attorney's fees incurred in the state action and the damages awarded by the jury are one and the same. Accordingly, we find that the actual amount of recovery was the sum of the jury award ($2,400) and the pre-offer attorney's fees ($3,394.99) for a total of $5,794.99.

We conclude that the offer of judgment ($9,394.99) was greater than the actual recovery ($5,794.99). In fact, the offer of judgment ($9,394.99) exceeded the actual recovery ($5,794.99) plus the $2,200 in fees incurred in defending the dismissed state action. Thus, the district court correctly denied recovery by O'Brien of attorney's fees incurred after the offer of judgment was made.

C. Denial of the Motion for Judgment Notwithstanding the Verdict

McKinney and Cosby filed a motion for judgment notwithstanding the verdict which the district court denied. McKinney and Cosby argue that the motion should have been granted because a violation of section 1983 or 1985 did not occur. We review a denial of a motion for judgment notwithstanding the verdict according to the following standard:

In reviewing the district court's denial of a motion for judgment n.o.v., we consider the evidence in the light most favorable to the prevailing party, assuming as true all facts that the prevailing party's evidence tended to prove, and giving the prevailing party the benefit of all favorable inferences. This court will not overturn the district court's ruling on a motion for judgment n.o.v. if the evidence is susceptible of any reasonable inference sustaining the prevailing party's position.

Griffin v. Hilke, 804 F.2d 1052, 1055 (8th Cir.1986) (citation omitted).

"To establish a cause of action under 42 U.S.C. Sec. 1983, the plaintiff[ ] must establish (1) that [she has] been deprived of a right secured by the Constitution or laws of the United States, and (2) the deprivation was caused by a person acting under color of state law." Buller v. Buechler, 706 F.2d 844, 846-47 (8th Cir.1983) (citation omitted). McKinney and Cosby first contend that there was not substantial evidence that they deprived O'Brien of a constitutional right.

A city council is not free to retaliate...