ROGERS GROUP, INC., Appellee, v. CITY OF FAYETTEVILLE, ARKANSAS, Appellant.
No. 11-2482.
United States Court of Appeals, Eighth Circuit.
July 5, 2012.
683 F.3d 903
George Alan Wooten, argued, Fayetteville, AR, Stephen R. Giles, Little Rock, AR, Robert Ashley Frazier, Rogers, AR, on the brief, for appellee.
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
SMITH, Circuit Judge.
“Rogers Group, Inc. (‘Rogers Group‘) brought suit in district court1 against the City of Fayetteville, Arkansas, (‘the City‘) seeking to prevent the enforcement of the City‘s ordinance regulating rock quarries in or near the City‘s corporate limits.” Rogers Group, Inc. v. City of Fayetteville, Ark., 629 F.3d 784, 785 (8th Cir. 2010). The district court granted Rogers Group‘s motion “for a preliminary injunction to enjoin the ordinance prior to its enforcement date,” and this court affirmed. Id. Following this court‘s affirmance, the City advised the district court that it repealed the ordinance “to preserve the viability of the Rock Quarry Operating License within Fayetteville‘s city limits and to avoid litiga
I. Background
“Rogers Group operates a limestone quarry (‘the Quarry‘) in an unincorporated section of Washington County, Arkansas.” Rogers Group, 629 F.3d at 785. “The Quarry is located entirely outside, but within one mile of, the corporate limits of the City.” Id. It “is not located within the City‘s planning or zoning authority.” Id. at 786.
The City passed an ordinance providing “for the licensing and regulation of rock quarries.” Id. This ordinance found that “‘the operation of a rock quarry would be a nuisance to the citizens and City of Fayetteville, Arkansas[,] if operated or used other than as prescribed in [the Ordinance].‘” Id. (alterations in original). The ordinance provided that “to operate a rock quarry within the City or one mile beyond the City‘s corporate limits, a quarry operator must obtain a license from the City after demonstrating its full compliance with all requirements of the Ordinance.” Id. It “limit[ed] quarry operations to a total of 60 hours per week and al
A. Complaint
Rogers Group brought suit against the City in federal district court. In its complaint, Rogers Group stated that the district court had subject matter jurisdiction over the suit based on (1) diversity jurisdiction because the lawsuit was between citizens of different states and the amount-in-controversy exceeded $75,000, and (2) federal question jurisdiction because the complaint asserted rights arising from the Constitution and laws of the United States.
Count I of the complaint requested “declaratory and injunctive relief pursuant to
Count II asserted that the ordinance was “arbitrary, capricious, and unreasonable” and “denie[d] Rogers [Group] liberty and property without due process of law.” According to Rogers Group, the ordinance “violate[d] the Due Process Rights conferred by the 14th Amendment of the United States Constitution and Article 2 Section 8 of the Constitution of the State of Arkansas.” In Count II, Rogers Group claimed that no rational basis existed for the ordinance and asked the court to “declare that the Ordinance is invalid and enjoin the City from enforcing the Ordinance against Rogers [Group] or any other person or entity” under
Count IV sought relief on a claim for an unconstitutional taking without just compensation, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Rogers Group asserted that it “ha[d] not been compensated for the taking of its vested rights to mine crushed stone in the Quarry and [was] entitled to just compensation in an amount determined at trial, or to an order enjoining enforcement of the Ordinance based on the City of Fayetteville‘s failure to provide just compensation.” Rogers Group sought damages “[u]nder
B. Preliminary Injunction
Rogers Group moved pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction enjoining the City from enforcing or attempting to enforce the ordinance. The district court entered an
The City appealed the district court‘s preliminary-injunction order, and we affirmed. See Rogers Group, 629 F.3d at 787-90. Regarding the probability of Rogers Group‘s success on the merits, we concluded that “[a]bsent a judicial determination that the Quarry‘s activities constitute a nuisance, the City has no statutory authority to regulate the Quarry in the guise of abating a nuisance.” Id. at 789. Therefore, we held that “the district court did not err in finding that Rogers Group was likely to succeed on the merits of its suit.” Id.
C. Motions for Summary Judgment/Dismissal
Following the appeal, the district court held a telephone conference call with the parties to discuss the status of the case—specifically, the pending motions for summary judgment. During this conference, the court expressed its view that, pursuant to the law-of-the-case doctrine, Rogers Group was entitled to partial summary judgment on Count I of its complaint. The court also indicated that, if it granted Rogers Group summary judgment on Count I, then such a ruling would likely render Rogers Group‘s remaining claims moot and would require the court to also deny the City‘s cross-motion for summary judgment as moot. The City requested additional time to discuss the matter with the City Council before the court entered orders on the pending motions. The court granted the City‘s request.
Thereafter, the City filed a “Report to the Court” in which it advised the court that the City Council had passed Ordinance # 5393, which repealed and deleted the challenged provision in Ordinance # 5280 that made it applicable to quarries operating outside of Fayetteville‘s city limits. The City advised the court that it took this action “to preserve the viability of the Rock Quarry Operating License within Fayetteville‘s city limits and to avoid litigation expense.”
Rogers Group responded that, despite the new amended ordinance, it was still entitled to a final ruling on the issue of the City‘s authority to regulate rock quarries outside the city limits and that, based on the law of the case, Rogers Group was entitled to partial summary judgment on that issue. Rogers Group conceded that, if the court granted partial summary judgment on that issue, the remainder of its claims would be moot and should be dismissed without prejudice.
Thereafter, the court issued an order, stating:
10. In the Court‘s view, the issue on which this case turned—whether the City (as it attempted to do by the enactment of Ordinance # 5280) has the authority to regulate rock quarries outside the city limits absent a judicial declaration that such activity is a nuisance—has
been decided adversely to the City‘s argument and that is the law of this case on that point. Further it is the Court‘s view that the City‘s action of replacing Ordinance # 5280 with an amending ordinance not containing the unauthorized provisions has no bearing on the resolution of that issue. Thus, because the City has now (apparently prompted by adverse holdings by this Court) eliminated the challenged provisions from its City Code, it appears to the Court that [Rogers Group] has succeeded in its challenge to the unauthorized provisions of Ordinance # 5280 the same as if, in the absence of such action by the City, the Court had granted (as it would have) [Rogers Group]‘s Motion for Partial Summary Judgment together with the injunctive relief sought by [Rogers Group] in connection with its challenge.
11. It follows therefore that, because of the City‘s action in replacing Ordinance # 5280 with an amended ordinance, [Rogers Group]‘s request for a declaratory judgment concerning the validity of the replaced ordinance is moot and it is unnecessary for the Court to further address that request.
12. It also follows that [Rogers Group]‘s request for a permanent injunction is likewise moot because Ordinance # 5280 is no longer in place or operative. Moreover, in light of the foregoing, the Court concludes that the remainder of [Rogers Group]‘s claims are moot and they will be dismissed.
Therefore, the court held that both Rogers Group‘s motion for partial summary judgment and the City‘s cross-motion for summary judgment were moot. The court dismissed the case because no case or controversy existed.
D. Motion for Attorneys’ Fees and Costs
Rogers Group then filed a motion for attorneys’ fees and costs, seeking to recover $110,419.71 in attorneys’ fees and costs incurred in prosecuting the action. The court granted the motion, finding that Rogers Group was a “prevailing party” because
- there was a court-ordered change in the legal relationship because the preliminary injunction blocked the City from enforcing Ordinance # 5280—which the City had planned to do on December 1, 2010;
- the preliminary injunction was a judgment rendered in favor of the plaintiffs because it was an order from which an appeal could be—and in this case, was taken; and
- the preliminary injunction provided plaintiffs with “judicial relief” in the sense that the injunction prevented the implementation and enforcement of Ordinance # 5280, which could have severely limited [Rogers Group] from operating and/or expanding [its] business. See Rogers Group, 629 F.3d at 790.
Furthermore, the court found that Rogers Group was “entitled to a fee award under
II. Discussion
The City argues that the district court erroneously awarded attorneys’ fees to Rogers Group because it was not a prevailing party entitled to an award of attorneys’
In response, Rogers Group argues that it is a prevailing party because it obtained a preliminary injunction that functioned like a grant of partial summary judgment on the merits of the lawsuit. According to Rogers Group, the district court—and this court on appeal—found that the City had acted unlawfully in passing the ordinance. Rogers Group asserts that although the City contends that it “voluntarily” amended the ordinance, it actually amended the ordinance after the district court and this court determined that the City had acted unlawfully. Additionally, Rogers Group maintains that the City reported to the district court that it modified the ordinance to preserve it—that is, to avoid having it invalidated. Under such circumstances, Rogers Group argues that the City‘s amendment is not “voluntary” and Rogers Group is a prevailing party. Additionally, Rogers Group maintains that it is entitled to an award of attorneys’ fees pursuant to
[i]n any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney‘s fee as part of the costs....
(Emphases added.)
Thus, whether Rogers Group is entitled to attorneys’ fees, depends upon (1) whether Rogers Group is a “prevailing party,” and, if so, (2) whether it prevailed under
A. Prevailing Party
“In the United States, parties are ordinarily required to bear their own attorney‘s fees—the prevailing party is not entitled to collect from the loser.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep‘t of Health & Human Res., 532 U.S. 598, 602 (2001). This “American Rule” sets forth “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Id. (quotations and citation omitted). “Congress, however, has authorized the award of attorney‘s fees to the ‘prevailing party’ in numerous statutes ..., such as ... the Civil Rights Attorney‘s Fees Awards Act of 1976, 90 Stat. 2641,
To obtain “an award of litigation costs,” a party must be a “prevailing” or “successful” party, i.e., “one who has been awarded some relief by the court.” Buckhannon, 532 U.S. at 603.
In Buckhannon, the Supreme Court rejected the “catalyst theory” then prevailing in the circuit courts, which permitted a plaintiff to recover fees if the lawsuit achieved the desired result through a voluntary change in the defendant‘s conduct. Instead, the Court held that, to be a prevailing party entitled to a statutory attorneys’ fee award, a party must obtain a judicially sanctioned material alteration of the legal relationship of the parties to the lawsuit. Id. at 604-05; see Cody v. Hillard, 304 F.3d 767, 772-73 (8th Cir. 2002). Citing prior decisions, the Court noted in Buckhannon that court-ordered consent decrees and enforceable judgments on the merits create the requisite material alteration in the parties’ relationship. Buckhannon, 532 U.S. at 604. N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1085 (8th Cir. 2006). The Supreme Court dismissed the notion “that the term ‘prevailing party’ authorizes federal courts to award attorney‘s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the sought-after destination without obtaining any judicial relief.” Buckhannon, 532 U.S. at 606 (quotation and citation omitted).
Following Buckhannon, the Supreme Court held that “[p]revailing party status ... does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” Sole, 551 U.S. at 83 (footnote omitted); see also id. at 78 (“We hold that a final decision on the merits denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of
“We have recognized that a preliminary injunction can in some instances carry the judicial imprimatur required by Buckhan-
By contrast, “a preliminary injunction granting temporary relief that merely maintains the status quo does not confer prevailing party status.” Id. (holding that plaintiffs were not prevailing parties where the district “court granted only interim relief that preserved the status quo until it could resolve the merits of the [plaintiffs‘] claims” and, “in granting the preliminary injunction, ... primarily considered the merits of those claims against ... other defendants“). These types of “preliminary injunctions have nothing to do with the merits, offering no insight into whether one party or the other will prevail at the end of the case.” McQueary v. Conway, 614 F.3d 591, 600 (6th Cir. 2010). These “stay-put or status quo injunctions ... turn more on the grave risks of irreparable harm to one party or to the public interest than on the legal virtues of the parties’ positions.” Id.
In determining whether a preliminary injunction creates prevailing-party status, the D.C. Circuit, analyzing Buckhannon, identified “three core principles” for a court to consider in “construing the term ‘prevailing party’ in federal fee-shifting statutes.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 946 (D.C. Cir. 2005).
First, in order to be a prevailing party, a claimant must show that there has been a court-ordered change in the legal relationship between the plaintiff and the defendant. (Citing Buckhannon, 532 U.S. at 604.)
Second, a prevailing party is a party in whose favor a judgment is rendered, regardless of the amount of damages awarded. (Citing Buckhannon, 532 U.S. at 603.)
Third, a claimant is not a prevailing party merely by virtue of having acquired a judicial pronouncement unaccompanied by judicial relief. (Citing Buckhannon, 532 U.S. at 606.)
Id. at 947 (citing Thomas v. Nat‘l Sci. Found., 330 F.3d 486, 492-93 (D.C. Cir. 2003)).
We conclude that Rogers Group is a prevailing party for
Third, there is no doubt that Rogers Group received “judicial relief.” Id. “Relief” is defined “as ‘redress or benefit, esp. equitable in nature (such as an injunction or specific performance) that a party asks of a court.‘” Id. (quoting Black‘s Law Dictionary 1293 (7th ed. 1999)). Here, Rogers Group “asked the District Court for equitable relief in the form of a preliminary injunction that would enjoin the implementation [and enforcement of the ordinance].” Id. “When the District Court issued the injunction, it granted [Rogers Group] the precise relief that [it] had requested.” Id.
In determining that Rogers Group is a “prevailing party,” we note that this is not a case in which the [City] voluntarily changed its ways before judicial action was taken. If the [City] had acted to moot this case through voluntary cessation before there was a judicially sanctioned change in the legal relationship of the parties, [Rogers Group] would not have been [a] “prevailing part[y].”
Id. “However, the record in this case demonstrates that the District Court‘s injunction, not the [City‘s] voluntary change in conduct, afforded [Rogers Group] the relief [it] sought“—an injunction blocking the City from enforcing the ordinance. Id.
B. Prevailed Under § 1988
Having determined that Rogers Group is a “prevailing party,” we must now determine whether “a plaintiff br[inging] a
In Kimbrough v. Arkansas Activities Ass‘n, we considered “whether the fact that [the plaintiff] prevailed on a nonconstitutional ground render[ed] the case inappropriate for a discretionary award of attorney‘s fees [under
“To the extent a plaintiff joins a claim under one of the statutes enumerated in [the Act] with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. Morales v. Haines, 486 F.2d 880 (7th Cir. 1973). In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the nonconstitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528 (1974). In such cases, if
the claim for which fees may be awarded meets the ‘substantiality’ test, see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715 (1966), attorneys’ fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a ‘common nucleus of operative fact[.]’ United Mine Workers v. Gibbs, supra at 725.”
Id. (alterations in original) (quoting H.R.Rep. No. 1558, 94th Cong., 2d Sess. 4 n. 7 (1976)). We noted that “[o]ther courts which have considered this issue have followed this unambiguous expression of congressional intent.” Id. at 427 (citing Seals v. Quarterly Cnty. Court of Madison Cnty., Tenn., 562 F.2d 390, 393-94 (6th Cir. 1977); Bond v. Stanton, 555 F.2d 172, 174 (7th Cir. 1977); Se. Legal D. Grp. v. Adams, 436 F.Supp. 891, 894-95 (D. Or. 1977)).
The “substantiality” test referred to in the House Judiciary Committee Report “is jurisdictional in nature.” Id. Thus, before a district court can exercise federal pendent jurisdiction over a non-federal claim, it “must make the threshold determination that a substantial federal claim, arising from the same nucleus of operative fact, is raised by the allegations of the complaint. Without the existence of a substantial federal claim, no federal pendent jurisdiction over the non-federal claim exists.” Id. In Kimbrough, we held that because “the [d]istrict [c]ourt invoked jurisdiction and disposed of the case on non-federal grounds, it implicitly made the initial determination that the allegations of the complaint raised a substantial constitutional claim sufficient to confer jurisdiction.” Id.; cf. Emery v. Hunt, 272 F.3d 1042, 1046 (8th Cir. 2001) (“The defendants do not contest that the plaintiffs are entitled to an award of attorney fees under these federal statutes, even though the plaintiffs ultimately prevailed only on state constitutional claims.“).
The City asserts that Kimbrough “is probably no longer valid after the much stricter attorney‘s fees standard announced” in Buckhannon. But in a post-Buckhannon decision, the Fifth Circuit observed, consistent with Kimbrough, that “where a plaintiff br[ings] a
such a plaintiff may obtain attorney‘s fees even though the
§ 1983 claim was not decided “provided that 1) the§ 1983 claim of constitutional deprivation was substantial; and 2) the successful pend[e]nt claims arose out of a common nucleus of operative facts.”
Planned Parenthood, 480 F.3d at 739 (quoting Sw. Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 551 (5th Cir. 2003)).
In the present case, Rogers Group stated in its complaint that the district court had subject matter jurisdiction over the action based on diversity jurisdiction and federal-question jurisdiction. Thus, Rogers Group had an independent basis for its state-law claim—diversity jurisdiction—and did not invoke the federal supplemental jurisdiction of the district court. But Rogers Group‘s failure to invoke federal supplemental jurisdiction does not mean that the district court would have lacked jurisdiction to hear the state-law claim if diversity jurisdiction did not exist. Thus, we must independently analyze whether Rogers Group‘s state-law claim could have been brought under the federal district court‘s supplemental jurisdiction. See
In Count I, Rogers Group alleged that, under Arkansas law, the City lacked authority to regulate the Quarry, which was located entirely outside the City limits, “because a rock quarry is not a nuisance per se.” The district court, in granting the preliminary injunction, agreed with Rogers Group that the City lacked such authority under Arkansas law. The district court never reached Rogers Group‘s constitutional claims. But, in granting Rogers Group‘s motion for attorneys’ fees and costs, the district court did conclude that Rogers Group was “entitled to a fee award under [
Therefore, we hold that Rogers Group is a “prevailing party” entitled to an award of attorneys’ fees pursuant to
III. Conclusion
Accordingly, we affirm the judgment of the district court.
SMITH
UNITED STATES CIRCUIT JUDGE