UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

KYLE LAWSON, et al.,
Plaintiffs,
v.
ROBERT KELLY, et al.,
Defendants/Intervenors.

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) Case No. 4:14-cv-00622-ODS
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SUGGESTIONS IN OPPOSITION TO PLAINTIFFS

MOTION FOR ATTORNEYS FEES AND EXPENSES
The State of Missouri, by and through counsel, submits the following
suggestions in opposition to Plaintiffs motion for attorneys fees and
expenses.
ARGUMENT
On November 7, 2014, this Court entered an order and judgment
granting in part and denying in part the parties pending dispositive motions.
Plaintiffs fee request includes issues that they pursued unsuccessfully or
withdrew. Under these circumstances, the Plaintiffs request for attorneys
fees and expenses should be denied or apportioned according to Plaintiffs
degree of success. Alternatively, this Court should stay its determination
pending resolution on appeal.

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I.

An Award of Attorneys Fees Must be Reasonable and

Apportioned According to the Level of Success.
As described in Hensley v. Eckerhart, 461 U.S. 424 (1983), the

American Rule provides that each party in a lawsuit ordinarily shall bear
its own attorneys fees unless there is express statutory authorization to the
contrary. Id. at 429 (citing Alyeska Pipeline Serv. Co. v. Wilderness Society,
421 U.S. 240 (1975)). In response Congress enacted the Civil Rights
Attorneys Fees Awards Act of 1976, 42 U.S.C. 1988, authorizing the district
courts to award a reasonable attorneys fee to prevailing parties in civil rights
litigation. Id.
The trial court has discretion to determine the appropriate fee under
1988, and the amount of the fee must be determined on the facts of each
case. Id. First, however, [a] plaintiff must be a prevailing party to recover
an attorneys fee under 1988. Id. at 433. The standard for making this
threshold determination has been framed in various ways. Id. A typical
formulation is that plaintiffs may be considered prevailing parties for
attorneys fees purposes if they succeed on any significant issue in litigation
which achieves some of the benefit the parties sought in bringing suit. Id.
The relief must also materially alter[] the legal relationship between the
parties by modifying the defendants behavior in a way that directly benefits
the plaintiff. Doe v. Nixon, 716 F.3d 1041, 1048 (8th Cir. 2013) (quoting
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Advantage Media, L.L.C. v. City of Hopkins, Minn., 511 F.3d 833, 836 (8th Cir.
2008); see also Farrar v. Hobby, 506 U.S. 103, 11112, (1992).
But even this generous formulation, as the Supreme Court calls it, is
not the end of the inquiry. It remains for the district court to determine what
fee is reasonable. Hensley, 461 U.S. at 433. The inquiry as to what fee is
reasonable is not completed merely by determining a reasonable rate and the
number of hours. Instead, there remain other considerations that may lead
the district court to adjust the fee upward or downward, including the
important factor of the results obtained. Id. at 434. Indeed, [t]he courts
finding that the significant extent of the relief clearly justifies the award of a
reasonable attorneys fee does not answer the question of what is reasonable
in light of that level of success. Id. at 438-39 (emphasis added) (rejecting the
implicit suggestion in Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978) that fees
should be paid unless those claims were frivolous).
A reduced fee award is appropriate if the relief, however significant, is
limited in comparison to the scope of the litigation as a whole. Id. at 440.
This is true even where the plaintiffs claims were interrelated, nonfrivolous,
and raised in good faith. Congress has not authorized an award of fees
whenever it was reasonable for a plaintiff to bring a lawsuit or whenever
conscientious counsel tried the case with devotion and skill. Again, the most
critical factor is the degree of success obtained. Id. at 436.
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Courts routinely reduce attorneys fee claims based on the degree of

success. See, e.g., Padrta v. Ledar Transport, Inc., 2004 WL 2495905 (8th Cir.
Nov. 8, 2004) (affirming a significant reduction of attorneys fees); Dorr v.
Weber, 741 F. Supp.2d 1022 (N.D. Iowa 2010) (reducing by more than half the
request for attorneys fees); Nelson v. Shuffman, 2011 WL 3099900 (E.D. Mo.,
July 25, 2011) (reducing a request for fees from nearly $400,000 to $50,000);
Lamb v. Speck, 1985 WL 3791 (E.D. Ark., Dec. 20, 1985) (reducing by nearly
two-thirds the plaintiffs request for attorneys fees).
Here, Plaintiffs seek attorneys fees and expenses for time spent on
issues for which the State prevailed or which Plaintiffs withdrew. For
example, Plaintiffs seek extensive attorneys fees relating to their motion to
remand to state court that they withdrew. Plaintiffs affidavits identify as
many as 25 hours spent on an issue that Plaintiffs ultimately withdrew. (Doc.
#26). Interestingly, Plaintiffs do not even seek compensation for the time
related to their request for a permanent injunction which was denied. (Doc.
#56, p. 6). Yet, they seek compensation for an issue that they voluntarily
withdrew. For these reasons, the Plaintiffs request for attorneys fees and
expenses should be denied or apportioned.

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II.

Alternative Motion to Stay the Issue of Attorneys Fees

and Expenses Until after Appeal.
The State respectfully asserts that it intends to appeal from the Courts

order and judgment. The Eighth Circuit has recognized the wisdom in
awaiting the ruling on appeal before addressing attorneys fees and expenses
in an effort to avoid wasted resources should an award be overturned. Indeed,
the Eighth Circuit has explained:
Thus, rather than undertaking the time-consuming
task of determining a reasonable attorneys fee, only
to see the effort overturned on appeal, see, e.g.,
Copperweld Corp. v. Independence Tube Corp., 467
U.S. 752, 104 S. Ct. 2731, 81 L.Ed.2d 628 (1984)
(overturning entire attorneys fee award); Paschall v.
Kansas City Star Co., 727 F.2d 692 (8th Cir.1984) (en
banc) (same), the district court wisely deferred ruling
on attorneys fees and costs pending appeal.
National Farmers Organization, Inc. v. Associated Milk Producers, Inc., 850
F.2d 1286, 1312 (8th Cir. 1988); see also Siddle v. Crants, 2010 WL 3491195
(M.D. Tenn., Sept. 2, 2010) (holding attorneys fees, expenses and cost issues
in abeyance pending appeal); Smith v. Psychiatric Solutions, Inc., 2010 WL
942155 (N.D. Fla., March 12, 2010) (same); Red School House, Inc. v. Office of
Economic Opportunity, 386 F. Supp. 1177, 1193 (D.C. Minn. 1974) (holding
motion for attorneys fees in abeyance pending appeal).
Accordingly, in an effort to avoid the premature and potentially
unnecessary expenditure of resources by the Court and any further
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expenditure of resources by the parties, the State would request, in the

alternative, for the Court to hold in abeyance Plaintiffs motion for attorneys
fees and expenses until after final resolution of this case through appeal.
CONCLUSION
For the foregoing reasons, this Court should deny or apportion
attorneys fees and expenses, or alternatively stay a determination pending
appeal.
Respectfully submitted,
By: /s/ Jeremiah J. Morgan
Jeremiah J. Morgan, Mo. Bar #50387
Deputy Solicitor General
P.O. Box 899
Jefferson City, Missouri 65102-0899
Telephone: (573) 751-1800
Facsimile: (573) 751-0774
jeremiah.morgan@ago.mo.gov
ATTORNEYS FOR THE STATE OF
MISSOURI BY AND THROUGH THE
MISSOURI ATTORNEY GENERAL
IN HIS OFFICIAL CAPACITY

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served
via the courts CM/ECF system, this 5th day of December, 2014, to:
Anthony E. Rothert
Grant R. Doty
ACLU of Missouri Foundation
454 Whittier Street
St. Louis, Missouri 63108
trothert@aclu-mo.org
Gillian R. Wilcox
ACLU of Missouri Foundation
3601 Main Street
Kansas City, Missouri 64111
gwilcox@aclu-mo.org
Attorneys for Plaintiffs
W. Stephen Nixon
Jay D. Haden
Jackson County Counselor
415 East 12th Street, Second Floor
Kansas City, Missouri 64106
cocounselor@jacksongov.org
jhaden@jacksongov.org
Attorneys for Defendant Robert Kelly
/s/ Jeremiah J. Morgan
Jeremiah J. Morgan
Deputy Solicitor General

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