D. Russo, Inc. v. TP. OF UNION
417 N.J. Super. 384
| N.J. Super. Ct. App. Div. | 2010Background
- NJSA 10:6-2(f) authorizes an award of reasonable attorney's fees to the prevailing party in Civil Rights Act actions.
- Union adopted an ordinance regulating sexually-oriented businesses in 2006, imposing restrictions and licensing fees.
- Russo and Expo Video/Bokram filed Civil Rights Act challenges; temporary restraints and a preliminary injunction停 enforcement against the ordinance.
- Union amended the ordinance twice; plaintiffs amended complaints asserting the amended versions still violated the NJ Constitution.
- In 2009 Union repealed the amended ordinance; plaintiffs claimed their litigation was the catalyst for repeal.
- Trial court denied fees under Buckhannon; case later dismissed with prejudice by consent; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether catalyst theory applies to NJCRA 10:6-2(f). | Russo/Expo contend catalyst theory governs prevailing party status under NJCRA. | Union argues Buckhannon bars catalyst theory for NJCRA fee awards. | Catalyst theory may apply under NJCRA; remand for factual determination. |
| If catalyst applies, whether plaintiffs are prevailing parties due to repeal of ordinance. | Litigation caused repeal of challenged ordinance. | Repeal may have reasons unrelated to litigation; not conclusively tied to plaintiffs’ action. | Remand to determine whether plaintiffs' actions were the catalyst for repeal. |
| Whether plaintiffs may recover fees on an alternative ground (preliminary injunction) if catalyst fails. | There may be fee recovery based on successful injunction prior to mootness. | No automatic fee recovery absent catalyst result. | Court leaves open the possibility on remand to pursue alternative fee ground if proved. |
Key Cases Cited
- Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (U.S. Supreme Court 2001) (rejected catalyst theory for federal fee-shifting statutes)
- Mason v. City of Hoboken, 196 N.J. 51 (N.J. 2008) (recognizes catalyst theory in NJ open records and related fee context)
- Warrington v. Village Supermarket, Inc., 328 N.J. Super. 410 (App.Div. 2000) (applied catalyst theory to LAD fee awards)
- Westfield Ctr. Serv., Inc. v. Cities Serv. Oil Co., 86 N.J. 453 (Supreme Court 1981) (precedent on injunctive relief and related fees)
- Patterson v. Vernon Twp. Council, 386 N.J. Super. 329 (App.Div. 2006) (fee considerations related to injunction context)
- L.W. v. Toms River Reg'l Sch. Bd. of Educ., 189 N.J. 381 (Supreme Court 2007) (discussion of equitable fee principles in NJ context)
- Right to Choose v. Byrne, 91 N.J. 287 (Supreme Court 1982) (catalyst/fee considerations in civil rights context)