Dickerson v. Pritchard

• Decision Date: 10 November 1982
• Docket Number: Civ. No. 81-2164.
• Citation: 551 F. Supp. 306
• Parties: Douglas R. DICKERSON, Plaintiff, v. Robert F. PRITCHARD, et al., Defendants.
• Court: U.S. District Court — Western District of Arkansas

551 F. Supp. 306

Douglas R. DICKERSON, Plaintiff, v. Robert F. PRITCHARD, et al., Defendants.

Civ. No. 81-2164.

United States District Court, W.D. Arkansas, Fort Smith Division.

November 10, 1982.

COPYRIGHT MATERIAL OMITTED

Robert M. Cearley, Jr., Charles D. Harrison, and Cearley, Mitchell & Roachell, Little Rock, Ark., for plaintiff.

Sam Sexton, Jr., Fort Smith, Ark., for defendants Pritchard, Reed & Parker.

Jonah Ted Yates, Ozark, Ark., for defendant Ronald Williams.

Lonnie C. Turner, Turner, Mainard & Whitehead, Ozark, Ark., for defendant McElhaney.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Introduction

This action arose under 42 U.S.C. § 1983, for injuries received by plaintiff on or about May 31, 1981, in Franklin County, Arkansas, when he was allegedly struck on the head by an ax handle wielded by the Sheriff. The case was tried to a jury on July 11 and 12, 1982, whereupon the jury returned a verdict for plaintiff in the amount of $140.32 as compensatory damages and $5,000.00 as punitive damages against defendant, Robert F. Pritchard, Sheriff of Franklin County, Arkansas. The jury found in favor of defendants, Alan Parker, Margurette Reed and Ronald Williams. The Court had previously dismissed defendant, Bob McElhaney, from the action.

Judgment in the amount of $5,140.32 was entered for plaintiff on July 13, 1982. Defendant, Robert F. Pritchard, filed his notice of appeal on August 19, 1982. On August 26, 1982, plaintiff moved this Court for an order awarding attorney's fees and costs, under the provisions of 42 U.S.C. § 1988. Defendant, Robert F. Pritchard, failed to respond. On August 27, 1982, defendant, Bob McElhaney, likewise moved for an award of attorney's fees. Plaintiff has timely responded and the issues are ripe for resolution.

Discussion

I. Jurisdiction

At the outset the Court raises, as legitimate inquiry into the existence of its subject matter jurisdiction, the issue of whether the timely filing of the notice of appeal divested this Court of jurisdiction to entertain the subsequent motions for attorney's fees.

We note that there is a "split in the Circuits" on this precise issue. The First Circuit's position is that a motion for attorney's fees under 42 U.S.C. § 1988 must be made within ten days after entry of judgment on the merits of the litigation. White v. New Hampshire Dept. of Employment Security, 629 F.2d 697 (1st Cir.1980); Fed.R. Civ.P. 59(e).

The Fifth, Sixth and Seventh Circuits have held, however, that attorney's fees should be characterized as an item of costs, which, under the provisions of Rules 54(d) and 58, Fed.R.Civ.P., need not be requested within any prescribed time period after entry of judgment on the merits of the litigation. Jones v. Dealers Tractor and Equipment Co., 634 F.2d 180 (5th Cir.1981); Johnson v. Snyder, 639 F.2d 316 (6th Cir.1981); Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980).

In Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980), the Fifth Circuit held that an award of attorney's fees under section 1988 should be treated "as part of the costs" taxed after litigation under Rule 54(d) rather than as an element of the judgment on the merits. The court primarily relied on the language of section 1988, which "allows the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988 (1976) (emphasis added). Because Rule 58 specifically provides that the entry of judgment shall not be delayed for the taxing of costs, and neither Rule 54(d) nor 58 prescribes any period after judgment within which an application for costs must be filed, the Fifth Circuit found no bar to entertaining a fee request filed over two months after the district court entered judgment on the merits.

The First Circuit, however, found this analysis unpersuasive in White v. New Hampshire Department of Employment Security, 629 F.2d 697 (1st Cir.1980). The court concluded that, despite the statutory language describing attorney's fees "part of the costs," Congress did not intend to include attorney's fees within the specific type of costs recoverable under Rule 54(d).

The Court of Appeals for the Eighth Circuit, reviewing the relevant case law, agreed that "the differences between attorney's fees and those items routinely assessed as costs after entry of judgment on the merits make it unlikely that Congress intended that fees be treated as costs for purposes of Rule 54(d)." Obin v. District No. 9 of Intern. Ass'n, Etc., 651 F.2d 574 (8th Cir.1981).

Nevertheless, the Court indicated that their rejection of attorney's fees as costs taxable under Rule 54(d) does not, a fortiori, lead to the conclusion that attorney's fees are integral to the judgment on the merits and subject to the ten-day limitation of Rule 59(e). "Just as an award of attorney's fees differs in nature from the assessment of costs, it also differs from a judgment on the merits of the action." Obin, supra, at 580.

The Court concluded that a motion for attorney's fees raises a collateral and independent claim, not an application for costs under Rule 54(d) or a matter integral to the merits of the action. Therefore

if the trial court enters a separate judgment on the merits and reaches the attorney's fee issue subsequently, we suggest that district courts adopt a uniform rule requiring the filing of a claim for attorney's fees within twenty-one days after entry of judgment.... If an appeal on the merits has already been taken, this court on its own motion or the motion of either party will consolidate the appeals for consideration by this court.

* * * * * *

The Fulbright (citation omitted) and Yellow Bird (citation omitted) rulings served to clarify that the district courts retained jurisdiction to pass upon a claim for attorney's fees even though one of the parties has filed a notice of appeal on the merits of the litigation. Because we hold in this opinion that a post judgment motion for attorney's fees raises a collateral and independent claim, there can be no question that the district courts retain jurisdiction to rule upon such motions notwithstanding entry of a judgment resolving the merits of the action.

Accordingly, the law is clear in this Circuit that a judgment on the merits is final for appeal purposes, and that the filing of an appeal on the merits does not oust the district court of jurisdiction to award attorney's fees under 42 U.S.C. § 1988.

II. The Amount of Attorney's Fees To Be Awarded

The computation of allowable attorney's fees under section 1988 is governed by familiar principles. Typically, a court will first multiply the number of hours reasonably expended times the lawyer's reasonable regular hourly rate. This is the so-called "lodestar" method of computation and normally produces a minimum amount below which the awards do not go. Avalon Cinema Corporation v. Thompson, 689 F.2d 137 (8th Cir.1982); Crain v. City of Mountain Home, 611 F.2d 726 (8th Cir.1979). The court will then consider other pertinent factors, commonly referred to as the "twelve factor" rule. Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876 (8th Cir.1977). These twelve factors are:

(1) The time and labor required;

(2) The novelty and difficulty of the questions;

(3) The skill requisite to perform the legal service properly;

(4) The preclusion of other employment by the attorney due to the acceptance of the case;

(5) The customary fee;

(6) Whether the fee is fixed or contingent;

(7) The time limitations imposed by the client or circumstances;

(8) The amount involved and the results obtained;

(9) The experience, reputation and ability of the attorney;

(10) The undesirability of the case;

(11) The nature and length of professional relationship with the client;

(12) Awards in similar cases.

A court also has discretion to enhance a fee because of the public importance or other extraordinary features of a case. Taylor v. Jones, 653 F.2d 1193 (8th Cir.1981).

Plaintiff's counsel, Cearley, Mitchell and Roachell, by Robert M. Cearley, Jr., seeks compensation for fees computed as follows: 63.3 hours at $80.00 per hour; 41.2 hours at $60.00 per hour; and 29.4 hours of paralegal time at $30.00 per hour.

Although "this court does not accept the attorneys' usual billing rate as definitively fixing their billing rates for this litigation," Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D.Cal.1974), aff'd, 550 F.2d 464 (9th Cir.1977), rev'd on other grounds, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), in general, "a reasonable hourly rate would be the ordinary fee `for similar work in the community.'" Avalon, supra. However, "if `a plaintiff can show he has been unable through diligent, good faith efforts to retain local counsel, attorney's fees under 42 U.S.C. § 1988 are not limited to the prevailing rate in the district where the case is tried.'" Avalon, supra.

This Court is unable to declare that $80.00 per hour is an excessive rate for this type of litigation in the locale. Further, we think plaintiff did not act unreasonably in employing experienced and able counsel from the Little Rock area in view of the type of case presented, the rural area of plaintiff's home and the identity of defendants (Sheriff of Franklin County, Sheriff's Deputies, Chief of Police, Police Dispatcher). This Court can well understand the reluctance of local rural attorneys to accept such employment and the difficulty of locating local counsel who have not had personal dealings of one kind or another with the involved members of the rural law enforcement community. Thus, although we do not believe that the requested hourly rates exceed those in the area where the case was tried, we are equally confident that plaintiff was justified in employing counsel from the Little Rock area and the rates requested are well within the range of reasonableness for capable and skilled attorneys in that area.

We do not mean to imply that the local bar in the area of plaintiff's...