Higher Taste, Inc. v. City of Tacoma
717 F.3d 712
9th Cir.2013Background
- Higher Taste Inc. sold message-bearing T-shirts at a Tacoma Zoo walkway; Park District Resolution 40-05 banned merchandise sales near the zoo entrance and along walkways; District initially allowed sale at non-prime location but later banned sale anywhere on zoo grounds in 2010; Higher Taste sued under 42 U.S.C. § 1983 seeking declaratory relief and injunction; parties settled after lengthy negotiations, resulting in new regulations allowing sale on walkways and parking areas as part of a settlement; the district court dismissed the case with prejudice and denied attorney’s-fee recovery, which is reviewed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a merits-based preliminary injunction can satisfy Buckhannon’s judicial imprimatur | Preliminary injunction based on likelihood of success shows judicial imprimatur | Imprimatur must be tied to a final judgment or consent decree | Yes, preliminary injunction satisfied judicial imprimatur |
| Whether the settlement provides enduring relief to make Higher Taste a prevailing party | Settlement creation of enduring rights suffices for prevailing-party status | Only a court-enforceable judgment or retained jurisdiction ensures enduring relief | Yes, settlement endows enduring relief qualifying as prevailing-party status |
| Whether the district court erred in denying attorney’s fees despite settlement and appeal ruling | Higher Taste should recover fees as prevailing party | Fees denied because settlement/dismissal with prejudice not a mootness-based win | Remanded for fee determination consistent with prevailing-party finding |
Key Cases Cited
- Watson v. County of Riverside, 300 F.3d 1092 (9th Cir. 2002) (preliminary injunction can satisfy judicial imprimatur; enduring relief considerations apply to fees)
- Sole v. Wyner, 551 U.S. 74 (S. Ct. 2007) (discusses durability of relief for fee eligibility; mootness concept)
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598 (U.S. 2001) (judicial imprimatur and material alteration of legal relationships for prevailing-party status)
- Common Cause/Ga. v. Billups, 554 F.3d 1340 (11th Cir. 2009) (preliminary injunction with merits-based relief can carry judicial imprimatur)
- Dearmore v. City of Garland, 519 F.3d 517 (5th Cir. 2008) (merits-based preliminary injunctions and fee considerations)