Cobb v. Miller
| Decision Date | 15 June 1987 |
| Docket Number | 86-3635,Nos. 86-3105,s. 86-3105 |
| Citation | 818 F.2d 1227 |
| Parties | Elbert A. COBB and Gail Smith Cobb, Husband and Wife, Plaintiffs-Appellants, v. Beauregard H. MILLER, Jr., Individually and as the Chief of Police for the City of Gretna Police Department, et al., Defendants-Appellees, Patrolman Richard Panuski, et al., Defendants-Appellees. WESTERN WORLD INSURANCE COMPANY, et al., Plaintiffs-Appellants, v. Elbert A. COBB, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James Carter, Porteous, Hainkel, Johnson & Sarpy, New Orleans, La., for Western World & Panuski.
Robert J. Caluda, New Orleans, La., for Cobb.
Lawrence J. Centola, Jr., George J. Nalley, Jr., New Orleans, La., for Forum Ins. Co.
Randall A. Fish, Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Paul B. Deal, Frilot, Michael T. Cali, New Orleans, La., for Caluda.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before WISDOM, WILLIAMS and HILL, Circuit Judges.
This consolidated appeal involves three issues: whether the district court erred in calculating the amount of attorney's fees that plaintiff Elbert Cobb was entitled to under 42 U.S.C. Sec. 1988; whether the issue of attorney's fees under section 1988 is a collateral issue for purposes of finality and appealability; and whether the district court erred in concluding that Western World Insurance Company did not have an action for wrongful execution under Louisiana law.
In summary, we conclude that the district court erroneously reduced the amount of attorney's fees awarded to Cobb; that the issue of attorney's fees under 42 U.S.C. Sec. 1988 is a collateral issue and appealable; and that the district court correctly granted summary judgment against Western World's wrongful execution claim.
Elbert A. Cobb and his wife, Gail Smith Cobb, filed a lawsuit in 1980 against Beauregard H. Miller, Arthur Lawson, Jr., Richard Panuski, as well as their insurers, Western World Insurance Company (Western World) and Forum Insurance Company (Forum). They were represented by Robert J. Caluda. The basis of the lawsuits were civil rights violations under 42 U.S.C. Secs. 1981, 1983, 1985, and 1986 that allegedly occurred during the arrest and conviction of Mr. Cobb for being a felon in possession of a firearm. The Cobbs also sought punitive damages as well as attorney's fees and costs under 42 U.S.C. Sec. 1988.
On February 14, 1985, after trial by jury, a judgment was rendered in federal court in favor of Mr. Cobb against Western World and Panuski, "jointly, severally, and in solido " in the sum of $12,300. 1 The jury also found that none of the other defendants had violated Cobb's civil rights and that punitive damages were not appropriate against Panuski. The judgment entered by the district court reserved the issue of attorney's fees for determination at a later time.
On February 22 Western World made a motion for a new trial and, alternatively, a motion to alter or amend the judgment. On March 15 the district court granted Western World's motion for a new trial for "the sole purpose of amending and correcting" its judgment of February 14. The court amended the judgment by adding Forum as an additional party against whom Cobb could recover his damages. The amended judgment again stated that Cobb's claim for attorney's fees was reserved for determination at a later time. No party filed a notice of appeal from the March 15 judgment.
On March 18 the district court referred the issue of attorney's fees to a magistrate. On December 12 the magistrate recommended that Cobb be awarded attorney's fees pursuant to 42 U.S.C. Sec. 1988 in the amount of $7,902.90 and costs in the amount of $8,958.26. Cobb had sought $49,788.90 in attorney's fees and $8,958.26 in costs. Over Cobb's objections, the district court adopted the magistrate's report and recommendation. Defendants Western World and Panuski appealed the judgment of attorney's fees. Cobb filed a cross-appeal claiming that the district court abused its discretion in reducing his request for attorney's fees. Cobb also argues in his cross-appeal that the district court improperly limited the testimony of his expert witness at trial. Subsequently, Western World and Panuski made a motion to dismiss their appeal, which was granted.
On June 28, 1985, while the attorney's fees issue was under the magistrate's consideration, Caluda filed a petition in Louisiana state court in order to commence execution of the March 15 judgment rendered against Western World and Forum. A Louisiana state district court judge issued a writ of fieri facias which directed the sheriff to seize the insurance bonds of Western World and Forum which were in the possession of the Louisiana insurance commissioner. The form writ that Caluda filed with his petition stated that the federal court judgment of February 14, 1985, was the basis for the writ of fieri facias. The bonds were apparently seized by the sheriff on July 19. 2 On July 19 Western World and Forum filed a motion in federal district court to stay execution of "a non-final judgment." The district court granted the motion on July 19 and enjoined the sheriff from seizing any property of Western World or Forum. On July 23, the state district judge rescinded his order of July 8 and ordered the sheriff to return the bonds to Western World and Forum.
On November 7, Western World and two of its employees filed a federal suit against Caluda and Cobb seeking damages for the alleged wrongful seizure of the insurance bond of Western World. Forum was not a party to the suit filed by Western World. Western World argued that the federal judgment which Caluda sought to execute in state court was not final because attorney's fees had not yet been awarded by the district court. It also argued that it was entitled to damages for wrongful execution since Caluda relied on the non-final judgment of February 14 when he filed his petition for a writ of fieri facias. Caluda and Cobb filed a motion for summary judgment claiming that the judgment of February 14 as amended on March 15 was final and that therefore there was no wrongful seizure of Western World's insurance bond.
On August 8, 1986, the district court granted Caluda's and Cobb's motion for summary judgment. The court held that the March 15 judgment was final. The court reasoned that although the defendants had cited the non-final February 14 judgment in their petition for a writ of fieri facias, this was irrelevant since a final judgment was rendered on March 15 which also held Western World liable for the identical amount. The court concluded that Western World could not show any harm or damages as a result of Caluda's actions and therefore did not have a claim for wrongful execution. Western World appeals from this judgment. 3
The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. Sec. 1988, allows courts to award reasonable attorney's fees to "prevailing parties" in an action to enforce provisions of the federal civil rights laws. 4 In this circuit the test for prevailing party status is whether the plaintiff prevailed on the central issue by acquiring the primary relief sought. Falcon v. General Telephone Co., 815 F.2d 317, 322-23 (5th Cir.1987); Commonwealth Oil Refining Co., Inc. v. EEOC, 720 F.2d 1383, 1385 (5th Cir.1983); Iranian Students Association v. Edwards, 604 F.2d 352, 353 (5th Cir.1979). For purposes of No. 86-3105, Western World does not dispute that Cobb is the prevailing party and is entitled to attorney's fees.
In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), we established twelve factors which district courts must consider in deciding the amount of attorney's fees to award to a prevailing plaintiff. 5 The twelve factors are considered within the framework outlined in Copper Liquor, Inc. v. Adolph Coors, 684 F.2d 1087 (5th Cir.1982). Under Copper Liquor the district court should: (1) ascertain the nature and extent of the services supplied by the attorney; (2) value the services according to the customary fee and quality of the legal work; and (3) adjust the compensation on the basis of the other Johnson factors that may be of significance. 684 F.2d at 1092. The product of factors (1) and (2) is called the "lodestar." See Nisby v. Commissioners Court, 798 F.2d 134, 136-37 (5th Cir.1986). While specific findings on individual Johnson factors involve fact determinations reviewable under the clearly erroneous standard, Brantley v. Surles, 804 F.2d 321, 327 (5th Cir.1986), the ultimate award of attorney's fees is reviewed for abuse of discretion. Id. (citing Johnson, 488 F.2d at 717).
Subsequent to our opinion in Johnson, the Supreme Court held that an award of attorney's fees under section 1988 should normally be based on multiplying a reasonable number of hours worked by a reasonable rate of compensation. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891, 895 (1984); Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40, 50 (1983). The Court noted, however, that the calculation of the lodestar does not end the inquiry and that other considerations may persuade the district court to increase or decrease a fee award. Hensley, 461 U.S. at 434, 103 S.Ct. at 1940, 76 L.Ed.2d at 51.
After Blum and Hensley, the question arose whether district courts still had to follow the Johnson factors. In Nisby a panel of this court held that Blum and Hensley did not abrogate the requirement that district courts must consider the twelve factors established in Johnson. 798 F.2d at 137. Nisby noted that the Congressional reports relied upon by the Supreme Court in Blum and Hensley expressly approved the use of the Johnson factors. Id. However, after Blum and Hensley we have not always followed the framework outlined in Johnson consistently. In Nisby, for example, the court...
To continue reading
Request your trial
-
Spencer v. General Elec. Co.
...however, limited recovery may be a factor properly considered in determining the level of reasonable fees. See Cobb v. Miller, 818 F.2d 1227, 1234 (5th Cir.1987); Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 & n. 28 (4th Cir.), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978......
-
Islamic Center of Mississippi, Inc. v. City of Starkville, Miss.
...City of Houston, 831 F.2d 576, 584 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1735, 100 L.Ed.2d 199 (1988); Cobb v. Miller, 818 F.2d 1227, 1231 (5th Cir.1987); Brantley, 804 F.2d at 327; Copper Liquor, 684 F.2d at 1094; Georgia Highway Express, 488 F.2d at 717; Black Grievance C......
-
Domegan v. Ponte
...due process claims against their codefendants. Yet appellants propose no practicable method for doing so. See Cobb v. Miller, 818 F.2d 1227, 1233-34 (5th Cir.1987) (reversing fee-reduction order where plaintiff succeeded on but one of three interrelated claims against different defendants: ......
-
Brady v. Fort Bend County
...in allowing the Plaintiffs to recover attorney's fees incurred during Molina's interlocutory appeal also lacks merit. In Cobb v. Miller, 818 F.2d 1227 (1987), we adopted the Seventh Circuit's reasoning in Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.1983), where that court held t......