Opinion
CIVIL ACTION 7:00-CV-042-R.
June 30, 2003.
MEMORANDUM OPINION AND ORDER
On April 22, 2002, the Fifth Circuit Court of Appeals issued an opinion, LLEH, Inc. v. Wichita Cty., Tx., 289 F.3d 358 (5th Cir.), cert. denied, ___ U.S. ___, 123 S.Ct. 621 (Dec. 2,2002) (the "Opinion"), affirming in part, reversing in part, vacating the fee award, and remanding for further proceedings in accord with its Opinion, this Court's two prior decisions in this case. See LLEH, Inc. v. Wichita Cty., Tx., 121 F. Supp.2d 513 (N.D. Tex. Sep. 19, 2000) (findings of fact and conclusions of law) (the "Findings"); LLEH, Inc. v. Wichita Cty., Tx., No. 7:00-CV-42-R (N.D. Tex. Dec. 20, 2000) (attorney's fee decision) (the "Attorney's Fee Memorandum"). Pursuant to the Opinion of the Fifth Circuit, and for the reasons stated below, this Court hereby AWARDS Plaintiffs attorney's fees and costs as specified herein.
I.
With respect to its decision to vacate the Attorney's Fee Memorandum, the Fifth Circuit began its discussion by noting the proposition in Farar v. Hobby that, "[A] plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Opinion, 289 F.3d at 371 (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)) (emphasis in Opinion). In a subsequent decision, Walker v. City of Mesquite, Tx., 313 F.3d 246, 249 (5th Cir. 2002), the Fifth Circuit provided a lengthier discussion of Farrar, stating that:
Farar provided one of the clearest formulations of the prevailing party jurisprudence. To qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an enforceable judgment or a consent decree; (2) that materially alters the legal relationship between the parties; and (3) modifies the defendant's behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement.Walker, 313 F.3d at 249. Therefore, to qualify as a prevailing party, Plaintiff must demonstrate that it has met the three-part Farar test set out above, namely, that the Plaintiff obtained "actual relief" that "materially altered the legal relationship between the parties, and "modifie[d] the defendant's behavior in a way that directly benefits plaintiff at the time of the judgment." Id.
The Opinion also provided clear guidance on the scope of the inquiry to be conducted on remand, stating:
In the light of our disposition of this appeal, the only points on which LLEH might be considered to have "prevailed" are: (1) in having the term "partially nude" adjudged vague (it is unclear whether the County conceded this at trial); (2) in having it adjudged that the County may not request a current residential address, which it conceded pre-trial; and (3) in having a provision (not at issue here) pertaining to on-premises alcohol consumption adjudged preempted by Texas law, which the County also apparently conceded pre-trial. Because the district court is better suited to determine both whether LLEH is a prevailing party in the light of our resolution of this appeal and what, if any, fees would be reasonable, we vacate the award and remand for reconsideration.Opinion, 289 F.3d at 371. In short, the Fifth Circuit mandated that this Court examine whether Plaintiffs are a prevailing party for purposes of 42 U.S.C. § 1988(b) with respect to three possible bases — partial nudity definition, current residential address disclosure, and the on-premises alcohol provision — and, if Plaintiff is a prevailing party, to determine the appropriate fee award. Each of the three bases will be examined in turn.
A. In the Findings, this Court held sections XXIV(a)(11), (a)(13), and (a)(14) of the Regulations for Sexually Oriented Businesses in the Unincorporated Areas of Wichita County., Texas (the "Regulations") unconstitutionally vague because each section included the term "partially nude" which was not defined in the Regulations. Findings, 121 F. Supp.2d at 524, 528, 529 (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972)). Section (a)(13) required any "partially nude or totally nude" performer to be separated from customers by a distance of at least six feet and to be on a stage at least eighteen inches high. Section (a)(14) requires that the six foot separation zone be clearly demarcated. Section (a)(11) requires that any tips paid to "partially nude or totally nude" performers be placed in designated receptacles rather than given directly to the performers.
Specifically, the relevant provisions state that: (a)(11) "gratuities being offered to any person performing partially nude or totally nude must be placed in a receptacle provide for receipt of gratuities"; (a)(13) it is a violation for "any person performing partially nude or totally nude at an enterprise to do so less than (6) feet from the nearest patron and less than (18) inches above floor level"; and, (a)(14) it is a violation for "the owner of an enterprise to allow any location within the enterprise to be used for the purpose of partially nude or totally nude live exhibitions unless it is marked with clear indications of the six (6) foot zone." Regulations, at 29.
Sections (a)(13) and (a)(14) were also held unconstitutional by this Court on the additional ground that they failed the O'Brien test for regulations of speech. Findings, 121 F. Supp.2d at 524, 525 (citing U.S. v. O'Brien, 391 U.S. 367 (1968)). On appeal, the Fifth Circuit reversed this Court's holdings with respect to application of the O'Brien test to sections (a)(13) and (a)(14), instead holding that the buffer, stage height, and demarcation provisions contained in those sections satisfied the requirements of O'Brien. Opinion, 289 F.3d at 367-69. Defendant, Wichita County (the "County"), however, did not appeal this Court's holding on the vagueness issue, and thus, that holding was not ruled upon by the Fifth Circuit in the Opinion. Id., at 367, 371. As such, this Court concludes that Plaintiff prevailed on the issue of the vagueness of sections (a)(11), (a)(13), and (a)(14). Moreover, this Court finds that its holding with respect to the vagueness of these three sections meets the Farar test of "materially alter[ing] the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff at the time of the judgment."
Subsequent to the Opinion and to the denial of certiorari, on February 3, 2003, the Regulations were amended by the County. Among the amendments was the addition of the following definition of "partially nude":
Plaintiff's Brief Attorney's Fees after Remand ("Plaintiff's Brief") Ex. 1 (Amendments to the Regulations) ("Amendments"). The Amendments were enacted February 3, 2003, and became effective February 10, 2003.
any state of dress which fails to opaquely cover a human buttock, anus, male genitalia, female genitalia, female pubic area, or the areola of a female breast.C.f. Findings, 121 F. Supp.2d at 524 (suggesting the County "defin[e] the phrase `Partially nude' as it has already done with `Nudity or State of Nudity' and `Semi-nude'"). This amendment, by providing a precise definition of partially nude, would appear to remove any Papachristou vagueness concerns with regards to sections (a)(11), (a)(13), and (a)(14), though it is not necessary for this Court to reach this issue at this time. The amendment does not, however, negate the fact that Plaintiff has prevailed on this issue. Quite the contrary, the amendment is a concrete manifestation of Plaintiff's victory on the vagueness issue.
Id., section IV(x-1).
B. In the Findings, this Court held that the disclosure requirements of section X(a)(3) of the Regulations were not narrowly tailored and thus unconstitutional under O'Brien. Findings, 121 F. Supp.2d at 525. Specifically, the Findings held that the regulation's requirement that an applicant for employment disclose his or her "current home address and phone information" was not narrowly tailored to meet the "substantial government interest in monitoring persons with histories of regulatory violations or sexual misconduct who manage or work in adult businesses." Id.; see also Opinion, 289 F.3d at 525 ("We understand the district court's holding as pertaining only to a current residential address and telephone number.") (emphasis in original). However, as noted by the Fifth Circuit, the text of section X(a)(3) does not require the disclosure of an applicant's current residential address or phone number. Opinion, 289 F.3d 369-70. It simply requires the "city, county, and state of the applicant's residences" for the prior three years as well as "the present mailing address of the applicant." In light of this clarification in the Opinion, this Court now finds that Plaintiff has not prevailed on the issue of the constitutionality of the disclosure provision of section X(a)(3), and is, accordingly, ineligible for attorney's fees with respect to this issue. Subsequent amendments to the Regulations which state, with greater clarity, that the current residential address is not required do not affect this Court's ruling, as such amendments were not mandated by this Court or the Fifth Circuit in order to make the provisions constitutional. C. In the Findings, this Court ruled that section XXIV(a)(16) of the Regulations was preemoted by the Texas Alcoholic Beverages Code and the regulations of the Texas Alcoholic Beverages Commission. Findings, 121 F. Supp.2d at 525. The County conceded this point at trial, and does not appear to have raised it on appeal. Id.; Opinion, 289 F.3d at 371 (the alcoholic beverages holding was "not at issue here"). Accordingly, this Court concludes that Plaintiff prevailed on the issue of preemption of section XXIV(a)(16). Moreover, this Court finds that its holding with respect to the preemption of this section meets the Farar test of "materially alter[ing] the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff at the time of judgment."
Regulations, at 15. Section X(a)(3), in full, states that an applicant for employment shall provide the County Sheriff with "the city, county, and state of each of the applicant's residences for the three (3) years immediately preceding the date of the application, indicating the dates of each residence and including the present mailing address of the applicant."
Amendments, sections IX(c)(1)-(2), (e)(1); X(a)(3)-(4); XI(a)(1), XVI(a)(3).
II.
In the Attorney's Fee Memorandum, which has now been vacated by the Fifth Circuit, this Court, after reviewing the detailed fee and cost submissions provided by the parties, awarded Plaintiff $43,342.32 (of which $28,166.00 was fees and $15,176.32 was costs). Attorney's Fee Memorandum, at 10. In determining the award, this Court applied the considerations for fee awards outlined by the Fifth Circuit in Romaguera v. Gegenheimer. Id. at 3-4. In determining fee awards for cases, such as the present one, in which a Plaintiff prevails on some claims and not on others, the Fifth Circuit has stated that:
[w]hen the plaintiff raises several claims and those claims involve a common core of facts or related legal theories, the district court need not attempt to divide counsel's hours among the claims. Instead it should focus on "the significance of the overall relief obtained by the plaintiff in relation to the hours reasonable expended on the litigation." The most critical factor in determining a fee award is the "degree of success obtained." While counsel obtaining "excellent results" are entitled to a fully compensatory fee, those with limited success may not be.Romaguera v. Gegenheimer, 162 F.3d 893, 896 (5th Cir. 1998) (quoting Hensley v. Eckerhart, 561 U.S. 424, 435-6 (1983)) (internal citations omitted).
In the Findings, this Court held in favor of Plaintiffs on 8 of the 11 claims brought at trial. Therefore, the Attorney's Fees Memorandum concluded that, "Plaintiffs' degree of success was excellent and the significance of the overall relief was substantial in relation to the hours expended on the litigation." Attorney's Fee Memorandum, at 4. After reversal of several of this Court's holdings on appeal, Plaintiff cannot now credibly be found to have achieved excellent results. Opinion, 289 F.3d at 366-70. The Opinion, as quoted above, provides that Plaintiff "might" be considered to have prevailed on at most three claims. Opinion, 289 F.3d at 371. This Court (as discussed above in part I) finds on remand that Plaintiff prevailed on only two of the three claims. Accordingly a proper fee award will be significantly lower than the prior award of $43,342.32. Indeed, Plaintiff's brief on remand recognizes this and seeks a "proportionally" reduced award of $16,253.37 (of which fees are $10,562.25 and costs are $5,691.12). Examining the considerations outlined in Romaguera, this Court notes that the holding that three sections of the Regulations were unconstitutionally vague was a significant victory for Plaintiff. To a similar, though perhaps lesser extent, the holding with respect to preemption of the section regulating alcohol sales was also a victory for Plaintiff. In light of these two holdings and the consequent "limited success" obtained, this Court finds Plaintiff are entitled to an award equal to 25% of the prior award determined in the Attorney's Fees Memorandum. Accordingly, Plaintiff is hereby awarded $10,835.58 in reasonable fees and costs (of which $7,041.50 is attorney's fees and $3,794.08 is costs).
Plaintiff's Brief, at 21.
The Attorney's Fee Memorandum carefully considered the reasonableness of the hourly rate, number of hours, and costs billed by Plaintiffs' counsel before arriving at the total award amount of $43,342,32. Attorney's Fee Memorandum, at 4-11. There is no need for this Court to now revisit the particular details of the amounts billed by Plaintiffs as the analysis this Court previously conducted with respect to the financial particulars of the award (i.e. which fees and costs ought to be excluded or reduced) remains sound.
III.
For the reasons stated above, Plaintiff is hereby AWARDED $10,835.38 in reasonable attorney's fees and costs.
Judgment on the merits will be separately entered by this Court. Opinion, 289 F.3d at 371.
It is so ORDERED.