G & K SERVICES CO., INC., Plaintiff-Appellee, v. BILL‘S SUPER FOODS, INC., Defendant-Appellant, Billy Orr, Defendant.
No. 13-2919.
United States Court of Appeals, Eighth Circuit.
Submitted: May 23, 2014. Filed: Sept. 5, 2014.
766 F.3d 797
The Ex parte Young exception only applies against officials “who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution.” Ex parte Young, 209 U.S. at 156, 28 S.Ct. 441. It is the attorney general‘s now-established (via affidavit), not speculative, unwillingness to exercise her ability to prosecute a
At this stage in the proceedings we are no longer concerned with who is “a potentially proper party for injunctive relief” but rather who in fact is the right party. Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1146 (8th Cir.2005) (alteration in original). Now that the attorney general has testified with assurances that the office will not take up its discretionary ability to assist in the prosecution of
III. CONCLUSION
For the reasons stated herein, we dismiss Lori Swanson, in her official capacity as the Minnesota Attorney General, and reverse and remand for further proceedings consistent with this opinion.
I.
G & K Services, a Minnesota corporation with its principal place of business in Minnesota, sued Bill‘s Super Foods, an Arkansas corporation with its principal place of business in Arkansas, seeking liquidated damages. The district court‘s jurisdiction was premised on diversity of citizenship.
In September 2009, the district court granted G & K‘s motion for summary judgment on its breach of contract claim, but ruled that a trial was necessary to determine the amount of liquidated damages. The court granted in part and denied in part G & K‘s motion for summary judgment on Bill‘s counterclaims.
After a trial in May 2013, a jury awarded G & K $50,837.92 in liquidated damages on its breach of contract claim. The jury found in favor of G & K on Bill‘s common-law counterclaims. On Bill‘s counterclaim under the Arkansas Deceptive Trade Prac-
G & K then moved for attorney‘s fees, citing contractual language and
Bill‘s then moved the district court to reconsider, arguing that the fees awarded to G & K were excessive. Bill‘s also urged that it was entitled to attorney‘s fees under the Arkansas Deceptive Trade Practices Act, even though it was not the prevailing party in the overall action. The district court denied the motion without prejudice, “recogniz[ing] that the Arkansas Deceptive Trade Practices Act allows for reasonable attorney‘s fees,” but noting that Bill‘s “provided no authority” that the Act “trumps” the prevailing party rule.
After additional briefing, the court again denied Bill‘s motion for reconsideration. The court explained that Bill‘s “provided no direct, binding authority requiring attorney‘s fees under the Arkansas Deceptive Trade Practices Act,” and “provided no authority to support [its] position that the ‘prevailing party’ rule is trumped by the [Act].” Relying on FMC Corp. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005), and Jim Ray, Inc. v. Williams, 99 Ark. App. 315, 260 S.W.3d 307 (2007), the court ruled that “neither the language of the [Act] nor subsequent case law mandate attorney‘s fees for a successful [Arkansas Deceptive Trade Practices Act] claim.” Bill‘s Super Foods appeals.
II.
This diversity case is governed by Arkansas law. We therefore apply decisions of the Arkansas Supreme Court construing Arkansas law, and we attempt to predict how that court would decide any state law questions that it has not yet resolved. Curtis Lumber Co. v. La. Pac. Corp., 618 F.3d 762, 771 (8th Cir.2010). We review the district court‘s award of attorney‘s fees, and the amount of that award, for abuse of discretion. Warnock v. Archer, 380 F.3d 1076, 1083 (8th Cir. 2004); FMC Corp., 202 S.W.3d at 506.
A.
Bill‘s argues that the district court abused its discretion in awarding $82,766.50 in attorney‘s fees to G & K. Bill‘s contends that the fee award was excessive in light of G & K‘s degree of success, but the district court expressly considered G & K‘s degree of success and reduced its requested award by $22,860 based on time devoted to unsuccessful causes of action. Given the district court‘s familiarity with the litigation, we will not second-guess the degree of the reduction.
Bill‘s next contends that the hourly rates claimed by G & K‘s Little Rock-based attorneys, which ranged from $150 to $260 per hour, are excessive for the market in Jonesboro, Arkansas, and should be reduced to a maximum of $225 per hour. The district court is presumed to be familiar with the local bar,
Bill‘s also complains that G & K‘s descriptions of time and activity were inadequate to justify the award, but the record includes invoices that detail the amount of time spent on this litigation and the activities on which that time was spent. The documentation was sufficient to support the district court‘s conclusion.
Bill‘s final contention is that the district court failed to consider the eight factors—known as the Chrisco factors—that Arkansas “courts should be guided by” in awarding attorney‘s fees. Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717, 718-19 (1990). Those eight factors are:
- the experience and ability of counsel;
- the time and labor required to perform the legal service properly;
- the amount involved in the case and the results obtained;
- the novelty and difficulty of the issues involved;
- the fee customarily charged in the locality for similar services;
- whether the fee is fixed or contingent;
- the time limitations imposed upon the client or by the circumstances; and
- the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
S. Beach Beverage Co. v. Harris Brands, Inc., 355 Ark. 347, 138 S.W.3d 102, 108 (2003) (internal quotation omitted). Although the district court did not expressly mention all eight factors, the court did address several: the time and labor required, the results obtained, and the novelty and difficulty of the issues involved. Chrisco recognized that “there is no fixed formula in determining the computation of attorney‘s fees,” and we do not read its listing of “recognized factors” to require that a court must discuss each one in every case. 800 S.W.2d at 718. The court provided enough explanation for us to evaluate the exercise of discretion, and there was no abuse of discretion for failing to enumerate other factors.
For these reasons, we reject Bill‘s challenge to the district court‘s award of $82,766.50 in attorney‘s fees to G & K Services.
B.
Bill‘s Super Foods also challenges the district court‘s refusal to award attorney‘s fees to Bill‘s under the Arkansas Deceptive Trade Practices Act. Bill‘s broadest argument is that an award is mandatory under the statute. The Act provides that “[a]ny person who suffers actual damage or injury as a result of an offense or violation as defined in this chapter has a cause of action to recover actual damages, if appropriate, and reasonable attorney‘s fees.”
The statute thus provides for “a cause of action” to recover fees, but does not specify whether an award is mandatory or within the discretion of the court. By contrast, the preceding subsection—which governs enforcement proceedings brought by the state attorney general—states in mandatory language the attorney general “shall recover attorney‘s fees.”
The best guidance from the Arkansas courts is to the same effect. In FMC Corp., the Arkansas Supreme Court—considering an award of fees under the Act—said in dicta that “a trial court is not required to award attorney‘s fees,” and that “[t]he decision to award attorney‘s fees and the amount to award are discretionary determinations.” 202 S.W.3d at 506. The Arkansas Court of Appeals, in discussing a case involving the Act, later remarked that “[a]ttorney‘s fees were possible, but not mandatory.” Jim Ray, 260 S.W.3d at 313; see also Curtis Lumber Co. v. La. Pac. Corp., No. 2:08-CV-00107, 2011 WL 3203722, at *1 (E.D.Ark. July 27, 2011) (“‘The decision to award attorney‘s fees and the amount to award are discretionary determinations’ to be made by the trial court.“) (quoting FMC Corp., 202 S.W.3d at 506). In light of these comments from the Arkansas courts and the absence of mandatory language in
In evaluating the district court‘s exercise of discretion, however, we find little explanation for the district court‘s ruling. As best we can tell, the district court believed that the so-called prevailing party rule dictates that there can be only one prevailing party in the litigation, and only the prevailing party is entitled to attorney‘s fees. R. Docs. 230, 235. The court apparently concluded that because the Arkansas Deceptive Trade Practices Act does not “trump” the prevailing party rule, and because G & K was the prevailing party in the action, Bill‘s could not recover fees pursuant to
On this point, we take a different view. The prevailing party rule is a creature of statute. In a civil action in Arkansas to recover on a breach of contract, for example, “the prevailing party may be allowed a reasonable attorney‘s fee.”
For the foregoing reasons, we affirm the district court‘s award of attorney‘s fees to G & K Services, but remand for the court to consider whether Bill‘s Super Foods should be awarded a reasonable attorney‘s fee pursuant to
COLLOTON, Circuit Judge.