Opinion
Civil Action No. 01-3503, Section: I/1.
June 7, 2004
ORDER AND REASONS
Pending before the Court are the following post-trial motions:
1) Renewal motion by defendant for judgment as a matter of law in accordance with Rule 50(b) or, in the alternative, motion and order for new trial pursuant to Rule 59;
2) Motion by plaintiffs to alter or amend judgment pursuant to Rule 59(e), motion for additur, and alternative motion for new trial;
3) Motion by plaintiffs for post-trial injunctive relief;
4) Motion by plaintiffs for attorney's fees without deduction; and
5) Motion by defendant to determine prevailing party pursuant to 42 U.S.C. § 1983 and 1988.
Rec. Doc. No. 149.
Rec. Doc. No. 152.
Rec. Doc. No. 182.
Rec. Doc. No. 155.
Rec. Doc. No. 148.
Relevant Facts
On February 13, 1996, plaintiff, Charles D. Chauvin, II ("Chauvin"), purchased 4.978 acres of land on Bergeron Street in Houma, Louisiana, for the sum of $80,000. The Bergeron Street tract of land is located in a flood zone in a forced drainage district, i.e., the area is drained by pumps. It is a low lying tract of land with elevations ranging from the highest of four feet above sea level at Eschete Street to two feet below sea level at Sixth Street.In 1996, Chauvin filed an application to subdivide the tract into eighteen lots, a development which he referred to as the Bergeron Street subdivision. The application, which included drainage plans, received conceptual and preliminary approval on February 16, 1996, from the Houma Terrebonne Regional Planning Commission ("HTRPC"), with notification that the property had serious sewer problems. On April 26, 1996, Chauvin received engineering approval from the HTRPC, provided he complied with the parish engineer's checklist.
On August 6, 1996, Chauvin acquired a portion of Lot 1, Block 4 of the Jolet subdivision in an exchange from Keneth L. Rembert, Sr. Chauvin filed another application for subdivision approval which included drainage plans, but this particular application was for a thirty-two lot subdivision. Only four of the proposed thirty-two lots exceeded an elevation of four feet above sea level. The average elevation of ten of the proposed lots was less than one foot above sea level and the average elevation of eight additional lots was less than two feet below sea level. A videotape of the area after a September, 2002, heavy thunderstorm depicted severe flooding on Bergeron Street and the adjacent property.
Jnt. Exh. 2.
Def. Exh. 9.
On October 16, 1997, the HTRPC granted conceptual approval of the subdivision application. Chauvin transferred the Bergeron Street property to plaintiff, Unique Properties, LLC ("Unique"), on October 30, 1997, for the sum of $96,135.14. On October 30, 1997, Unique sold a portion of the property, now known as the Holsum Bread property or Tract "A", to Harrison-Walker Properties, for the amount of $65,000, reducing the size of the proposed subdivision to twenty-nine lots. Tract A is located near Eschete Street and the elevation is significantly higher than the lots fronting Bergeron Street located near Sixth Street. The HTRPC approved redivision of Tract A with a waiver of engineering and a Holsum Bread store facing Highway 182 was built at that location.
Unique is a limited liability company of which plaintiff, Chauvin, and Arlene Babin are members.
For example, the elevations in Tract A are between 4.0 to 5.0 feet above sea level. The elevations of the Bergeron Street subdivision lots fronting Highway 182 range from 4.7 to 4.5 feet and these lots drain toward the highway.
The HTRPC did not require plaintiffs to provide any additional drainage to obtain approval to subdivide Tract A, i.e., the plaintiffs were granted a drainage variance.
Def. Exh. 15.
On January 15, 1998, the HTRPC gave preliminary approval for the Bergeron Street subdivision. On March 19, 1998, the HTRPC tabled the application for engineering approval and Unique withdrew the application on April 16, 1998.
On May 18, 2000, Unique submitted an application for approval of the Bergeron Street subdivision which is at issue in this action. The application was prepared by T. Baker Smith Son, Inc., a different engineering company than the one which prepared the previous application. No drainage plans were included in the application for conceptual and preliminary approval. The HTRPC granted conceptual and preliminary approval on May 18, 2000.
In August, 2000, Unique requested a variance from engineering except for sewerage. On September 21, 2000, the HTRPC tabled Unique's request for a waiver of engineering. On October 16, 2000, the HTRPC staff recommended denial of the variance from engineering except sewerage, commenting in relevant part:
A) Preliminary and Conceptual were approved at the 5/18/00 meeting of the Planning Commission;
B) It was understood at the 5/18/00 meeting that engineering would be applied for including drainage.
C) This subdivision is extremely low and lacks adequate drainage.
D) The Planning Commission has historically approved one or two lot divisions without engineering approval.
E) This subdivision has 29 residential lots which will incur additional slabs and roofs to drain additional runoff into an already substandard drainage system.
F) Terrebonne Parish Code 24-8, Standards for development, Subsection (d)(6), requires that drainage system design shall conform to the requirements of the parish's 1987 Storm Drainage Design Manual, as amended.
G) Engineering plan prerequisites shall contain 24-7(d) (12) final drainage plan, which should comply to 24-8 pertaining to drainage.
H) It is the interpretation of this department that the Planning Commission does have the authority to regulate developments inclusive of the 1986 Storm Drainage Design Manual, as amended.
Although a request for a waiver of engineering may be broader than a waiver or a variance from Terrebonne Parish drainage requirements, a request for a waiver of engineering includes a request for a drainage variance.
Pl. Exh. 148.
Public hearings were held on the proposed subdivision and, due to concerns about flooding, there was opposition to the development by neighbors. Despite the low elevation and the property's history of flooding during heavy rainfalls, plaintiffs' plan to subdivide the property did not include any drainage plans, such as adding fill on the lots or building additional surface or subsurface drains.
Following its staff's recommendation, on October 19, 2000, the HTRPC denied Unique's request for a variance from engineering except sewerage. Unique filed an appeal of the denial of the variance request with the Terrebonne Parish Consolidated Government ("TPCG"). On September 26, 2001, the TPCG denied the request.
Plaintiffs filed the instant complaint pursuant to 42 U.S.C. § 1983 asserting several federal and state constitutional claims against numerous defendants. Shortly before trial, plaintiffs waived all claims except their federal denial of equal protection claim against the HTRPC and the TPCG.
"To establish a claim under § 1983, plaintiffs must show that they have been deprived of a federally protected right, privilege or immunity as a result of action taken by persons acting under color of state law." Littlefield v. City of Afton, 785 F.2d 596, 600 (8th Cir. 1986), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-1913, 68 L.Ed.2d 420 (1981).
On September 12, 2003, the jury returned a verdict in favor of the plaintiffs, Unique and Chauvin, and against the defendant, HTRPC, finding that the HTRPC deprived them of their right to equal protection guaranteed by the U.S. Constitution. The jury found that the TPCG did not violate the plaintiffs' equal protection rights. The jury awarded Unique damages of $30,000, but awarded Chauvin no damages. Judgment was entered in accordance with the jury's verdict.
Renewal motion by defendant for Rule 50(b) judgment as a matter of law or, in the alternative, Rule 59 motion for a new trial
Rec. Doc. No. 145.
Rec. Doc. No. 147.
At the close of plaintiffs' case, both defendants moved for judgment as a matter of law which the Court took under advisement. After they rested, defendants renewed their motion for judgment as a matter of law. The Court maintained the motion of both defendants under advisement. Defendant, HTRPC, now reurges its motion for judgment as a matter of law pursuant to Rule 50(b).
Rec. Doc. No. 143.
Rec. Doc. No. 144.
Because the jury found in favor of the TPCG on plaintiffs' equal protection claims, TPCG did not file a motion for judgment as a matter of law.
"A motion for judgment as a matter of law should be granted if `there is no legally sufficient evidentiary basis for a reasonable jury to find for a party.' Fed.R.Civ.P. 50(a)."Pineda v. United Parcel Service, Inc., 360 F.3d 483, 486 (5th Cir. 2004).
The district court properly grants a motion for judgment as a matter of law only if the facts and inferences point so strongly in favor of one party that reasonable minds could not disagree. [ Rutherford v. Harris County, Texas, 197 F.3d 173, 179 (5th Cir. 1999).] "In ruling on a rule 50 motion based upon the sufficiency of the evidence, we `consider all of the evidence — not just that evidence which supports the non-mover's case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion.'" Information Communication Corp. v. Unisys Corp., 181 F.3d 629, 633 (5th Cir. 1999) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc)). Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001).
At trial, plaintiffs alleged that they were intentionally treated differently from others who were similarly situated when their application for a variance from the drainage requirements promulgated by the TPCG was denied by the HTRPC and that there was no rational basis for the HTRPC to have done so. The plaintiffs also argue that such disparate treatment was motivated by an illegitimate animus or ill will.
Plaintiffs urged the same claim against the TPCG because it affirmed the plaintiffs' appeal of the variance denial, but the jury rejected the plaintiffs' claims against the TPCG.
The Fifth Circuit has "long insisted that review of municipal zoning is within the domain of the states, the business of their own legislatures, agencies, and judiciaries, and should seldom be the concern of federal courts." FM Properties Operating Co. v. City of Austin, 93 F.3d 167, 173-174 (5th Cir. 1996), quoting Shelton v. City of College Station, 780 F.2d 475, 477 (5th Cir.) (en banc), cert. denied, 477 U.S. 905, 106 S.Ct. 3276, 91 L.Ed.2d 566 and 479 U.S. 822, 107 S.Ct. 89, 93 L.Ed.2d 41 (1986). "Nonetheless, when challenges to such land-use decisions aspire to constitutional stature, we view those decisions as `quasi-legislative' in nature, and thus sustainable against a substantive due process challenge if there exists therefor `any conceivable rational basis.'" FM Properties, 93 F.3d at 174, quoting South Gwinnett Venture v. Pruitt, 491 F.2d 5, 7 (5th Cir.) (en banc), certs. denied, 416 U.S. 901, 94 S.Ct. 1625, 40 L.Ed.2d 119 and 419 U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974).
In Shelton, the Fifth Circuit summarized the analytical tracks on which a decision on land use may be made as follows:
A regulatory decision can be legislative or it can be adjudicative, and it will be reviewed differently depending on which category it is placed into. . . .
The most obvious difference between the two tracks is in how the judiciary reviews the facts behind the decision at issue. In the adjudicative model, historical facts are determined by judge or jury and thereafter are to be accepted unless supported by adequate evidence found within a defined record. In general, historical facts in the adjudicated model are case specific-for example, the speed of a car or the condition of a roadway.
Review of legislative facts is quite different. `In ordinary civil litigation, the question frequently is which party has shown that a disputed historical fact is more likely than not to be true. . . . [H]owever, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.' Vance v. Bradley, 440 U.S. 93, 110-11, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979).
Attacks against zoning plans invoke the legislative model and have only rarely been sustained. See, e.g., Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842 (1928). Euclid and Nectow held that an ordinance was not to be declared unconstitutional unless `clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.' See Moore v. East Cleveland, 431 U.S. 494, 498 n. 6, 97 S.Ct. 1932, 1935 n. 6, 52 L.Ed.2d 531 (1977) (plurality opinion). . . .
Although Euclid and Moore were frontal attacks on zoning ordinances rather than attacks on their specific application, the Court has also, and more recently, treated the denial of a variance in a specific zoning case as a legislative action. (Emphasis added). . . .
Given the legislative or quasi-legislative nature of zoning decisions, their review by federal courts is quite different from the review to which they may be subjected by state courts. (Citation omitted). . . . It is also very different from the review of certain federal administrative actions, where, by statute, a decision must be overturned if not supported by `substantial evidence' on the record. (Citation omitted). Unlike such schemes for administrative review, federal judicial interference with a state zoning board's quasi-legislative decisions, like invalidation of legislation for `irrationality' or `arbitrariness,' is proper only if the governmental body could have no legitimate reason for its decision. (Citations omitted). . . .
We do not suggest that a zoning decision can be justified by mouthing an irrational basis for an otherwise arbitrary decision. . . . The key inquiry is whether the question is `at least debatable.' See [Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981)]. If it is, there is no denial of substantive due process as a matter of federal constitutional law.780 F.2d 479-480, 482-483 (5th Cir. 1986).
"It is well-established that, as a general matter, the Equal Protection Clause of the Fourteenth Amendment requires that all similarly situated persons be treated substantially alike."Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 388-389 (5th Cir. 2001), citing Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir. 1996). "Zoning classifications (at least in the absence of a classification affecting fundamental personal rights or based upon inherently suspect distinctions such as race, religion, or alienage) are subject to the same rational basis analysis utilized in due process claims. Jackson Court Condominiums, Inc. v. City of New Orleans, 874 F.2d 1070, 1079 (5th Cir. 1989); see also Vulcan Materials, 238 F.3d at 389, citing Jackson Court Condominiums, 874 F.2d at 1079.
Plaintiffs do not allege disparity in treatment due to a suspect classification, but instead contend that they are in a "class of one", i.e., intentionally treated differently than others similarly situated without a rational basis. In Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the Supreme Court observed that:
Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989). In so doing, we have explained that `"[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.'" Sioux City Bridge Co., supra, at 445, 43 S.Ct. 190 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352, 38 S.Ct. 495, 62 L.Ed. 1154 (1918)).528 U.S. 564; 120 S.Ct. at 1074.
The plaintiffs' claim is not that the alleged equal protection violation is embedded in the land use and zoning regulations, but that the defendants applied land use regulations and policies against them, not against others similarly situated, without a rational basis for the difference in treatment. "As the Supreme Court explained long ago, equal protection of the law requires not only that laws be equal on their face, but also that they be executed so as not to deny equality." Mahone v. Addicks Utility District of Harris County, 836 F.2d 921, 932 (5th Cir. 1988), citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).
See also Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir. Unit B 1981) ("[T]he unequal application of a state law, fair on its face, may act as a denial of equal protection.").
"As a prerequisite to [an equal protection] claim, the plaintiff must prove that similarly situated individuals were treated differently." Beeler v. Rounsavall, 328 F.3d 813, 816 (5th Cir. 2003), citing Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999). It was the plaintiff's obligation at trial "to identify and relate specific instances where persons situated similarly `in all relevant aspects' were treated differently, [citations omitted], instances which have the capacity to demonstrate that the [plaintiffs] were `singled . . . out for unlawful oppression.'"The Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989), quoting Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946). "The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated. Much as in the lawyer's art of distinguishing cases, the `relevant aspects' are those factual elements which determine whether reasoned analogy supports, or demands, a like result. Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples."The Dartmouth Review, 889 F.2d at 19.
Although plaintiffs introduced evidence that the HTRPC granted other applications for waivers of engineering while denying Unique's variance, they failed in their effort to demonstrate that they were "similarly situated" in all relevant aspects to other applicants. For example, one of the comparators in closest proximity to the Bergeron Street subdivision was the Jolet subdivision. Jolet is adjacent to the Bergeron Street tract, but it fronts Highway 182. The Jolet tract was substantially smaller than the proposed Bergeron Street subdivision and most of the Jolet property was higher in elevation than the majority of the Bergeron Street tract. The Jolet applicant sought to divide two lots into five, not to divide a tract into twenty-nine lots. Although Jolet was adjacent to the Bergeron Street property, the applications were not substantially similar with respect to elevation and number of lots.
Highway 182 is also referred to as Old Highway 90 or New Orleans Boulevard.
Pl. Exh. 150 C.
Pl. Exhs. 150, 150 C, 150 D, and 159.
As previously noted, the HTRPC approved Chauvin's application for a waiver of engineering with respect to drainage on Tract A of the Bergeron Street subdivision which is the property adjacent to Jolet fronting Highway 182. Unique sold Tract A for $65,000, recouping a substantial amount of Chauvin's original $80,000 investment. After the sale of Tract A, Unique still retained ownership of the vast majority of the Bergeron Street property for further development and sale. Pl. Exh. 150. Memorandum in opposition to defendants' motion for summary judgment (Rec. Doc. No. 78), plaintiffs' response to statement of uncontested facts, p. 10, No. 25.
The plaintiff also failed to offer sufficient evidence to establish that Ashland North subdivision is similarly situated to the Bergeron Street subdivision. When the Ashland North subdivision commercial multi-family development project plans were drawn on July 14, 1983, the plans specified that the first floor elevation shall be "+6.00 Mean Sea Level." The 1997 proposal to redivide the property into single family residential lots included numerous drainage servitudes. There is no evidence that the elevation of Ashland North subdivision is as low in most areas as the Bergeron Street tract. The developers of Ashland North subdivision had already paid a substantial fee for a pumping station and twice granted rights-of-way to the parish to address the drainage needs of the property. Unique's request for a variance with respect to drainage did not include any provisions to allay the HTRPC's concerns that the development would exacerbate drainage problems plaguing an already substandard drainage system.
Pl. Exh. 164.
Pl. Exh. 165.
Pl. Exhs. 163 and 165.
The evidence was also lacking that the Enterprise Drive Commercial Place variance application was similarly situated to the proposed Bergeron Street development. The general plan for Enterprise Drive dated January 3, 1996, indicated that elevations of the proposed lots ranged from 4.0 feet to 11.0 feet above sea level. Unlike Bergeron Street, there was no evidence of substantial drainage or persistent flooding problems in the Enterprise Drive development.
Jt. Tr. Exh. 3.
The same is true of the other subdivision applicants who applied for drainage variances during the same time frame as the plaintiffs did. Although plaintiffs argue that other subdivision applicants who sought drainage variances were similarly situated, the proof failed to establish that they were fair comparators, i.e., that the properties were of similar elevations, that the applicant sought to subdivide a tract of land into several lots, rather than redivide a lot into one or two lots, and that the properties had a history of flooding. These were the factors cited by the HTRPC staff in recommending denial of Unique's application and these are the relevant considerations in determining whether the application was similarly situated.
Plaintiffs introduced evidence concerning sewerage issues affecting the Bergeron Street subdivision and other subdivisions. The basis of this action, however, is the failure of the HTRPC and the TPCG to grant Unique's drainage variance.
The second prong of an equal protection claim requires proof that the plaintiff was intentionally treated differently than those similarly situated without a rational basis. InOlech equal protection cases, i.e., those alleging a class of one, proof of an intentional difference in treatment without a rational basis has been described as requiring plaintiff to "present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position." Shipp v. McMahon, 234 F.3d 907, 916 (5th Cir. 2000), quoting Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th Cir. 2000).
With respect to a rational basis review, the court inMahone explained that:
[T]he Supreme Court has developed a general rule for testing official action which is challenged on equal protection grounds: the challenged action is presumed to be valid and must be sustained if the classification drawn by the action is rationally related to a legitimate state interest. (Citation omitted). An equal protection challenge, therefore, focuses on three separate elements. First, the classification. Second, the purpose which the classification is designed to serve. And third, the `fit' between the classification and the purpose; that is, whether the state could rationally determine that by distinguishing among persons as it has, the state could accomplish its legitimate purpose.836 F.2d at 933.
The actions of government when making land-use classifications have a rational basis if they are "rationally related to a legitimate government interest." Jackson Court Condominiums, 874 F.2d at 1079. Government action has no rational basis if it is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Village of Euclid, 272 U.S. at 395, 47 S.Ct. at 121. Parties challenging the decisions of governmental bodies cannot prevail on their claim that the decisions have no rational basis if "it is evident from all the considerations presented to [the governmental body], and those of which we may take judicial notice, that the question is at least debatable." Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981), quoting United States v. Carolene Products Co., 304 U.S. 144, 153-154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938).
See also FM Properties, 93 F.3d at 174 (other citations omitted).
The Fifth Circuit has "emphasized that in suits involving a challenge to a law's rational basis, the burden is not upon the state to establish the rationality of its statute, but is upon the challenger to show that the restriction is wholly arbitrary."Harris County, Texas v. Carmax Auto Superstores, Inc., 177 F.3d 306, 322-323 (5th Cir. 1999), citing Home Depot, Inc. v. Guste, 773 F.2d 616, 621 (5th Cir. 1985). "Whether a particular zoning action has the requisite rational relationship to a legitimate government interest is a question of law to be decided by the court." FM Properties, 93 F.3d at 172, n. 6. By contrast, determinations of whether the government's actions were motivated "by bias, bad faith, or improper motive, such as partisan political reasons or personal reasons unrelated to the merits of plaintiffs' application" are properly made by the finder of fact. Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 683 (3rd Cir. 1991).
See also City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) ("[T]he courts have themselves devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." (other citations omitted)).
Defendant argues that if the decisions of the HTRPC and the TPCG denying the plaintiffs' variance request were motivated by concerns about the drainage and flooding problems in the Bergeron Street subdivision, then as a matter of law there was a rational basis for the governmental entity's action. In other words, the defendant's position is that concern about adequate drainage is a legitimate governmental objective and, therefore, as a matter of law, a decision based upon drainage concerns has a rational basis. Plaintiffs, however, suggest that if the decision was based upon drainage concerns and public opposition to the governmental entity approving a drainage variance, such decision would not have a rational basis.
With respect to whether public opposition constitutes a rational basis for governmental action, the Supreme Court has explained that:
[M]ere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for [a difference in treatment]. It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause, Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 736-737, 84 S.Ct. 1459, 1473-1474, 12 L.Ed.2d 632 (1964), and the City may not avoid the strictures of that Clause by deferring to the wishes or objections of same fraction of the body politic. `Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.' Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 1882, 80 L.Ed.2d 421 (1984).City of Cleburne, 475 U.S. at 448, 105 S.Ct. at 3259. A governmental body's consideration of public opposition as a factor in determining a course of action is permissible if it is based on legitimate state concerns. As explained by the court inMidnight Sessions, 945 F.2d at 685:
[T]he state may consider community sentiment in evaluating applications for licenses if community objection is based on legitimate state interests such as, inter alia, traffic, safety, crime, community pride, or noise. . . . On the other hand a government's determination predicated on the public's negative attitudes or biases, unfounded fears or speculation, prejudice, self-interest, or ignorance is arbitrary and irrational action . . . But, again, consideration of the community's viewpoint about the local effects of a proposed change in their neighborhood that has some basis in fact cannot fairly be characterized as arbitrary and capricious government action. We decline to equate the accommodation of legitimate community concerns to a victory of mob rule to be denounced under substantive due process standards.Id.
See also Sylvia Development Corp. v. Calvert County, Maryland, 48 F.3d 810, 824 (4th Cir. 1995) ("While the discriminatory motivations of people who testify before a decisionmaking board might in limited circumstances be probative of the board's motivations, this could be true only where public testimony was overwhelmingly opposed to a proposal for a distinct discriminatory reason, and board members were clearly swayed by that public opposition, fully aware of its basis in discrimination and prejudice." (other citations omitted)).
A public hearing was held to consider community sentiment with respect to the Bergeron Street subdivision application. Testimony adduced at trial indicated that some neighbors were opposed to the application because the street had a history of flooding and the application included no drainage plans. There was no evidence that any of the public opposition to the application was based on prejudice, bias, or any animosity toward the plaintiffs.
The paramount issue, then, is whether concerns about street flooding and inadequate drainage constituted a rational basis for HTRPC and TPCG decisions denying Unique's application for a drainage variance. In connection with this issue, plaintiffs argue that the SDDM, which purportedly regulates drainage in Terrebonne Parish, is not legally applicable to this property and Unique should not have been required to comply with its requirements. They also argue that compliance with the SDDM would have rendered development of the property commercially unfeasible.
In their memorandum in opposition to defendants' motion for summary judgment and in support of plaintiffs' motion for summary judgment, plaintiffs explain:
The SDDM was enacted in 1987. Its arguendo application to the [Bergeron Street subdivision] has prevented approval of the subdivision applications that were made in 1996, 1998, and again in 2000 because the requirement that the developer provide on or offsite reservoir property sufficient to offset the drainage impact of the proposed development makes such a development commercially unfeasible. In addition to reservoir requirements, there are requirements that the elevation of the subdivision be raised above the tailwater requirements derived from the SDDM. These requirements would necessitate that lots in the [Bergeron Street subdivision] be brought to certain minimum elevations that would necessitate 41,123 yards of fill material, at a cost of $287,861.00, to comply with the SDDM.
Rec. Doc. No. 78, p. 7.
The applicability of the SDDM to the Bergeron Street subdivision application is an intricate question of state law. The key inquiry, however, is not whether the HTRPC or the TPCG was wrong in deciding that the SDDM was applicable, but "whether the question is `at least debatable'." Shelton, 780 F.2d at 483 (Other citation omitted). The federal court's deference to the governmental bodies' decisions is so substantial that, "to successfully challenge [their] legislative judgment, [the plaintiffs'] `must convince the court that the legislative facts on which the [decisions are] apparently based could not reasonably be conceived to be true by the governmental decisionmaker.'" FM Properties, 93 F.3d at 175, quoting Shelton, 780 F.2d at 479 ( quoting Vance v. Bradley, 440 U.S. 93, 110-11, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979)).
See, Defendants' motion for summary judgment, Rec. Doc. No. 55, pp. 4-8; Plaintiffs' memorandum in opposition to defendants' motion for summary judgment, Rec. Doc. No. 78, pp. 7-8.
It is not necessary to engage in an extensive analysis of state law to determine whether the SDDM is or is not applicable to the Bergeron Street subdivision application; the Court finds that the question is "at least debatable." Further, there can be little doubt that concerns about drainage and street flooding are related to the public interest in health, safety, and welfare; policies which dictate that a subdivision applicant must provide adequate drainage in order to receive approval are related to a legitimate objective.
See Clover Leaf Creamery, 449 U.S. at 464, 101 S.Ct. at 724.
FM Properties, 93 F.3d at 174.
Plaintiffs suggest that decisions of the HTRPC and the TPCG to deny Unique's drainage variance and subdivision application were not motivated by rational reasons, but instead were made with the intent to treat him differently because members of these governmental bodies had an animus toward him. This allegation is akin to a claim of selective enforcement.
In Beeler, the Fifth Circuit observed that "[t]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." 328 F.3d at 817, citing Allred's Produce v. U.S. Dep't of Agric., 178 F.3d 743, 748 (5th Cir. 1999). "[T]o successfully bring a selective prosecution or enforcement claim, a plaintiff must prove that the government official's acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right." Beeler, 328 F.3d at 817, citing Bryan v. City of Madison, 213 F.3d 267, 276-77 (5th Cir. 2000). "[I]t must be shown that the selective enforcement `was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,'" Beeler, 328 F.3d at 817, citing Allred's Produce, 178 F.3d at 748 (other citation omitted).
The Beeler court also noted that the Fifth Circuit has stated "that personal vindictiveness might be an improper motive in a selective enforcement case", but the Fifth Circuit has "`never specifically addressed whether such a motive would be enough to support an equal protection claim without some other class-based discrimination.'" 328 F.3d at 817-818, citing Bryan, 213 F.3d at 277, n. 18. Although no evidence of personal vindictiveness was presented in Beeler, the court observed that the "`text of the Equal Protection Clause, the history leading to its adoption, [and] a century of jurisprudence that has in the main interpreted the clause to prohibit only disparate treatment based upon group or class factors' suggests that personal vindictiveness by itself is insufficient as an improper motive in the absence of some other class- or group-based discrimination." 328 F.3d at 818, quoting Timothy Zick, Angry White Males: The Equal Protection Clause and "Classes of one", 89 Ky. L.J. 69, 75 (2000/2001).
It bears noting that in Bryan, the Fifth Circuit did not construe Olech as recognizing an equal protection violation when the motive for governmental decision-making is personal vindictiveness. The court stated:
In Willowbrook v. Olech, [ 120 S.Ct. at 1074], the Supreme Court explained that `[o]ur cases have recognized successful equal protection claims brought by a "class of one".' As we read this part of the holding, it merely stands for the proposition that single plaintiffs may bring equal protection claims. They need not proceed on behalf of an entire group. But this statement has nothing to do with whether they must assert membership in a larger protected class. The decision does not, therefore, alter our requirement of an improper motive, such as racial animus, for selective enforcement claims.213 F.3d at 277, n. 17.
The only colorable evidence of any "ill will" presented at trial was the tape of the October 20, 1994, HTRPC meeting at which then chairman, Jimmy Hebert, became angry with Chauvin during a discussion regarding the absence of a sewer tap on a lot Hebert believed Chauvin owned. Hebert indicated that unless Chauvin "shut up", Hebert intended to descend from the podium and "slap" him. Although this evidence might support an inference that Hebert had some animosity toward Chauvin, at the time the present waiver application was brought before the planning commission in 2000, Hebert was no longer the chairman nor even a member of the HTRPC. The fact that Hebert may have exhibited some anger toward Chauvin in 1994 does not reasonably support an inference that in 2000, any member of the HTRPC or the TPCG voted to deny Unique's variance application because of personal vindictiveness toward Chauvin, Unique, or Chauvin's partner, Babin.
Pl. Exh. 18 and 18A.
The transcript of the October 20, 1994, meeting also indicates that another HTRPC member chastised Hebert for his untoward behavior. Pl. Exh. 18A.
Countering plaintiffs' argument that there was animus toward plaintiffs, defendants introduced evidence that although the Bergeron Street subdivision application was not approved by the defendants in 2000, Unique and Unique's partners, Chauvin and Babin, received approval by the HTRPC for several of their other projects. Examples of these projects include the following: (1) On May 15, 1997, Unique received final approval, including a variance from engineering, on its application for Alma Heights subdivision, addendum no. 1, a subdivision of twenty single-family residential lots; (2) On June 17, 1999, Unique received final approval, including a variance from engineering, on its application for an eight lot multi-family subdivision; (3) On May 20, 1999, Unique received final approval, including a variance from engineering, on the division of a one hundred foot lot into two fifty foot lots on Alma Street, Tracts A and B; (4) On May 20, 1999, Unique received final approval, including a variance from engineering, on the creation of lot 3A and the annexation of lot 3 to an adjoining 7.72 acre tract; (5) On August 17, 2000, the same year that the Bergeron Street subdivision application was denied, Unique received approval to create thirty-three single family residential lots in the Alma Heights subdivision, addendum no. 2, with a variance from engineering; (6) On January 18, 2001, Arlene Babin received final approval, including a variance from engineering, for redivision of Block-9 Idlewild subdivision, addendum no. 1, which created two residential lots. Finally, as previously noted, the HTRPC approved redivision of the Bergeron Street subdivision, Tract A, with a waiver of engineering, paving the way for a sale by Unique to Harrison-Walker Properties.
See Def. Exh. 16 in globo.
Plaintiffs also attempt to bolster their argument by presenting evidence that a member of the HTRPC, W. Alex Ostheimer, and a member of the TPCG, J.B. Breaux, were cited for ethics violations. There is no evidence that Chauvin or Unique had any interest in the projects or proposals at issue in those alleged violations. Such evidence does not support an inference that members of the HTRPC, for purely personal reasons or because of an animus toward plaintiffs, intended to treat the Bergeron Street subdivision variance application differently than other similarly situated properties.
Considering the totality of the evidence in "the light and with all reasonable inferences most favorable" to the plaintiffs, the Court finds that there was not a legally sufficient evidentiary basis for the jury to find for either plaintiff against the HTRPC with respect to plaintiffs' claim that there was a denial of equal protection. Judgment as a matter of law pursuant to F.R.Civ.P. 50(b) shall be granted in favor of defendant, the HTRPC.
Pineda, 360 F.3d at 486.
See Piotrowski, 237 F.3d at 576.
For the same reasons expressed in connection with the motion of the HTRPC, there was also not a legally sufficient evidentiary basis for plaintiffs' claims against TPCG.
In conjunction with its motion for judgment as a matter of law, HTRPC alternatively moved for a new trial. F.R.Civ.P. 50(c)(1) specifies that:
If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for a new trial. If the motion for new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
In its alternative motion for a new trial, defendant argues that the Court erred in admitting evidence of ethics violations by HTRPC member Alex Ostheimer and Parish Councilman J.B. Breaux. It also alleges that the Court erred in allowing the introduction of a tape of a 1994 HTRPC meeting. Finally, while defendant does not specifically request a new trial on this basis, it contends that the Court erred when it instructed the jury with respect to the "rational basis" prong of an equal protection challenge.
Defendant, HTRPC, first argues that the admission of ethics violations by HTRPC member Ostheimer and TPCG member Breaux was highly prejudicial and deprived defendants of a fair trial. It contends that the evidence was not relevant to any issue. Assuming such evidence is relevant to some issue, the defendant suggests that it should have been excluded pursuant to Federal Rule of Evidence 403 because its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.
F.R.E. 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
The Court finds that admission of the evidence of the ethical violations of Ostheimer and Breaux was not erroneous. The probative value of such evidence was not substantially outweighed by a danger of unfair prejudice to the defendants. If admission of such evidence was erroneous, such error was harmless and did not affect the parties' substantial rights.
In a similar vein, the Court detects no error in the admission of the 1994 HTRPC meeting tape. Its probative value was not substantially outweighed by prejudice to the defendants and, in any event, admission of the tape did not impact the defendants' substantial rights.
The issue of the alleged error in the jury instructions is more troubling. The defendants allege that the jury was improperly charged with respect to whether or not there was a rational basis for the defendants' decision. Plaintiffs counter that the defendants failed to preserve the objection pursuant to F.R.Civ.P. 51.
F.R.Civ.P. 51(d) provides that:
(1) A party may assign as error:
(A) an error in an instruction actually given if that party made a proper objection under Rule 51(c), or
(B) a failure to give an instruction if that party made a proper request under Rule 51(a), and-unless the court made a definitive ruling on the record rejecting the request-also made a proper objection under Rule 51(c).
(2) A court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by Rule 51(d)(1)(A) or (B).
In Castellano v. Fragozo, 311 F.3d 689 (5th Cir. 2002), the Fifth Circuit stated that:
When the party challenging the district court's instructions has not objected to them before the district court, our consideration of the issue is limited to plain error review and requires proof: `(1) that an error occurred; (2) that the error was plain, which means clear or obvious; (3) the plain error must affect substantial rights; and (4) not correcting the error would `serious affect the fairness, integrity, or public reputation of judicial proceedings.'" Further, this court has noted that "[a]n inadequate instruction merits reversal when `the charge as a whole leaves us with the substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.'" Thus, for this court "[t]o overturn a verdict for plain error in the instructions, we must find an obviously incorrect statement of law that was `probably responsible for an incorrect verdict, leading to substantial injustice.'311 F.3d at 701 (internal citations and quotations omitted).
The defendants' argument is that the Court erred by instructing the jury to determine whether the defendants had a rational basis for any intentional difference in treatment between similarly situated applicants and the plaintiff. The Court instructed the jury as follows in pertinent part:
In order to prevail on an equal protection claim in this case, a plaintiff must prove:
1) the plaintiff and another applicant or applicants for subdivision approvals and/or for variances were similarly situated;
2) the plaintiff and another applicant or applicants for subdivision approvals and/or for variances were intentionally treated differently; and
3) there is no rational basis for the difference in treatment.
Court's Instructions to the Jury, Rec. Doc. No. 145, p. 9.
The Court further instructed the jury that:
If you conclude that the plaintiffs were intentionally treated differently than similarly situated applicants, then you must consider whether there was a rational basis for the difference in treatment by the defendants. If you find that the governmental entity's decision was rationally related to a legitimate state objective, the governmental entity had a rational basis for its decision.
Instructions to the Jury, pp. 11-12. Such an instruction, the defendant contends, directed the jury, which is the factfinder, to make a determination of law. Defendants, however, failed to object at trial to the rational basis component of the jury instructions.
In FM Properties, the Fifth Circuit concluded that the district court "erred insofar as it submitted only a question of law to the jury." 93 F.3d at 172, n. 6. Holding that "[w]hether a particular zoning action has the requisite rational relationship to a legitimate government interest is a question of law to be decided by the court," the court determined that the following instruction asked the jury to determine whether a rational basis existed for the government decision maker's action:
With respect to the first element [of a cause of action § 1983], deprivation of a property interest rises to the level of a substantive due process violation if the conduct was arbitrary and capricious, which means that it was done for an improper motive and lacking in any conceivable rational basis. (Emphasis in the original). . . . To establish that the [City] acted arbitrarily and capriciously, [FMP] must prove that the [City] could have no legitimate reason for its decision to apply the SOS Ordinance to [FMP's] site plan.
The Court then concluded that the instructions, as a whole, "asked the jury to determine whether a rational basis existed for the City Council's actions. 93 F.3d at 172, n. 6. The FM Properties court did not, however, grant a new trial, but it concluded as a matter of law that plaintiff failed to state a constitutional violation.
This Court reaches a similar conclusion. To the extent that the instructions asked the jury to determine whether a rational basis existed for the defendants' actions, such instructions were, according to FM Properties, erroneous. However, because this Court finds that plaintiffs have failed to present a sufficient evidentiary basis for any reasonable factfinder to find an equal protection violation, a new trial is not warranted.
In Reid v. Rolling Fork Public Utility District, 854 F.2d 751 (5th Cir. 1988) (Reid I), the district court reversed a verdict in favor of a developer on an equal protection challenge to a denial of a sewage treatment commitment because of erroneous jury instructions which advised the jury that:
Since [the defendant] gave in 1983 several reasons for its action, it is your responsibility to decide whether any of them is reasonably related to a legitimate function of a sewer district. If [the defendant] employs any standard reasonably related to a legitimate function, the employment of other standards which may not be reasonably related to legitimate functions of [the defendant] is sufficient to support a finding of a denial of equal protection of the law."Id. at 754. In vacating and remanding for a new trial, theReid I court held that, "[e]ven if we could accept [the plaintiff's] facts, the District would be insulated from an action for denial of equal protection if there is any rational basis for rejecting the requested commitment. That issue must be resolved by a properly instructed jury." Id. at 755. (emphasis added).
After the second trial, the developer challenged on appeal the take nothing judgment. The developer argued that the district court's submission to the jury of the determination of whether or not there was a rational basis for the defendant's action was error because such a determination is a question of law and not fact.
In Reid II, the Fifth Circuit noted that "on remand, the district court followed the guidance of Reid I and submitted to the jury the appropriate `reasonable basis' test." 979 F.2d 1084, 1086 (5th Cir. 1992). Addressing the developer's contention that submitting the "reasonable basis" test to the jury was error, the Reid II court responded by stating:
This argument is inconsistent with Reid I, in which the panel clearly determined that the question [of whether there is a rational basis for rejecting the developer's request] was one for a properly instructed jury. But, even if the Reid I panel were incorrect, its decision bound the district court, as it binds us, in all subsequent proceedings unless, under the `rule of the case' doctrine, one of the three recognized exceptions appertain. As Reid has failed to advance any arguments that the Reid I panel was incorrect and has failed to cite any authority for his proposition, Reid I stands as binding precedent for the instant appeal ( Reid II).979 F.2d at 1087-1088.
Motion by plaintiffs, Unique and Chauvin, to alter or amend judgment pursuant to Rule 59(e) and for additur, and alternative motion for new trial
Plaintiffs move to alter or amend the judgment pursuant to F.R.Civ.P. 59(e), seeking an amended judgment, contrary to the jury's verdict, in their favor against the TPCG for violation of the plaintiffs' equal protection rights. Plaintiffs also seek an amended judgment for additional damages for Unique and Chauvin."A motion to alter or amend the judgment under Rule 59(e) `must clearly establish either a manifest error of law or fact or must present newly discovered evidence' and `cannot be used to raise arguments which could, and should, have been made before the judgment issued.'" Schiller v. Physicians Resource Group Inc., 342 F.3d 563, 567 (5th Cir. 2003), quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-864 (5th Cir. 2003) ( quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). "Relief under Rule 59(e) is also appropriate when there has been an intervening change in the controlling law." Schiller, 342 F.3d at 567, citing In re Benjamin Moore Co., 318 F.3d 626, 629 (5th Cir. 2002).
Plaintiffs have failed to establish a manifest error of law or fact which would entitle them to an altered or amended judgment. As discussed above, plaintiffs did not have a sufficient evidentiary basis to prove a claim of denial of equal protection. Under such circumstances, plaintiffs are not entitled to a judgment against the TPCG nor are they entitled to any additional damages.
In the alternative, plaintiffs seek a new trial on their equal protection claims against TPCG because the jury rejected their claims against them. Plaintiffs also seek a new trial on damages with respect to HTRPC. For reasons discussed herein, there is no basis for granting a new trial in favor of plaintiffs with respect to liability or damages as to either defendant. If there was an error in the "rational basis" prong of the jury instructions, such error did not prejudice the plaintiffs.
Plaintiffs also seek a new trial on the basis that the "rational basis" jury charge was erroneous. Plaintiffs argue that the jury charges allowed the jury to determine that flooding and neighborhood opposition could constitute a rational basis for the defendants' decision denying the Bergeron Street subdivision application. Plaintiffs' suggestion that drainage problems and public opposition because of flooding concerns could not, as a matter of law, constitute a rational basis, as that term has been defined by the courts, for the denial of the subdivision application is incorrect. The failure to so instruct the jury, therefore, was not error and did not affect plaintiffs' substantial rights.
In addition, plaintiffs also contend that the Court improperly excluded evidence concerning settlement discussions and ethical violations. As previously discussed, the Court did admit evidence of the alleged ethical violations of Ostheimer and Breaux. To the extent that the admission of such evidence was limited by the Court, its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. The Court reaches a similar conclusion with respect to the exclusion of evidence of settlement negotiations.
Finally, plaintiffs argue that the court should order a new trial because the verdict was a compromise. Inasmuch as there is not a sufficient evidentiary basis to sustain a verdict in favor of the plaintiffs on these claims against either defendant, plaintiffs have not demonstrated their entitlement to a new trial on this ground.
Motion by plaintiffs, Unique and Chauvin, for post-trial injunctive relief
Plaintiffs, Unique and Chauvin, move for post-trial injunctive relief seeking an injunction against the HTRPC ordering it to grant Unique's application to subdivide the Bergeron Street property in accordance with its prior applications, i.e., to grant a drainage variance. Plaintiffs suggest that this is an appropriate case for the Court to exercise its discretion to grant equitable relief to return plaintiffs to the position they would have occupied had their constitutional rights not been violated by the HTRPC.
"The standard for determining whether a permanent versus a preliminary injunction should issue is primarily the same, except that the Court determines the plaintiff's success on the merits rather than the plaintiff's likelihood of success on the merits."Dye v. McKeithen, 856 F. Supp. 303, 306 (W.D. La. 1994), citing Amoco Production Co. v. Village of Gambel, Alaska, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 1404 n. 12, 94 L.Ed.2d 542 (1987) (other citation omitted). "To be entitled to a permanent injunction for a constitutional violation, a plaintiff must show (1) that there has been such a violation, (2) the existence of continuing irreparable injury if the injunction does not issue, and (3) the lack of an adequate remedy at law." Causeway Medical Suite v. Ieyoub, 905 F. Supp. 360, 366 (E.D. La. 1995), aff'd 109 F.3d 1096 (5th Cir. 1997), citing Dye, 856 F. Supp. at 306 ( citing Newman v. State of Alabama, 683 F.2d 1312, 1319 (11th Cir. 1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983)).
Pretermitting the question of whether plaintiffs have established irreparable injury and the lack of an adequate remedy at law, the threshold issue is whether the plaintiffs have established a constitutional violation. See Jade Aircraft Sales, Inc. v. City of Bridgeport, 849 F. Supp. 10, 11 (D. Conn. 1994). For reasons stated previously, plaintiffs have failed to establish a constitutional injury and, therefore, they are not entitled to a permanent injunction.
Motion by plaintiffs, Unique and Chauvin, for attorney's fees without deduction
Plaintiffs, Unique and Chauvin, seek attorney's fees pursuant to 42 U.S.C. § 1988. § 1988 provides that "the court, in its discretion, may allow the prevailing party [in any action or proceeding to enforce a provision of § 1983 of the Civil Rights Act] . . . a reasonable attorney's fee as part of the costs." The Supreme Court in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), observed that:
`Congress intended to permit the . . . award of counsel fees only when a party has prevailed on the merits.' Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) ( per curiam). Therefore, in order to qualify for attorney's fees under § 1988, a plaintiff must be a `prevailing party.' Under our `generous formulation' of the term, "plaintiffs may be considered `prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)). `Liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, § 1988 does not authorize a fee award against that defendant." Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3104, 87 L.Ed.2d 114 (1985)).506 U.S. at 109, 113 S.Ct. at 572.
The jury found in favor of defendant, TPCG, and the Court herein grants the motion of defendant, HTRPC, for judgment as a matter of law for reasons previously stated. The plaintiffs have not succeeded on any significant issue in the litigation and, therefore, they are not prevailing parties. They are not entitled to attorney's fees and costs pursuant to 42 U.S.C. § 1988.
Motion by defendant, TPCG, to determine prevailing party pursuant to 42 U.S.C. § 1983 and 1988
Defendant, TPCG, moves for a determination that it is the "prevailing party" in the instant action brought pursuant to 42 U.S.C. § 1983 and, therefore, entitled to attorney's fees pursuant to 42 U.S.C. § 1988. In assessing whether a defendant is a "prevailing party" pursuant to § 1988, district courts must apply a different standard in exercising their discretion. The U.S. Supreme Court has held that "a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with attorney's fees incurred by the defense."Christianburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978). In exercising its discretion to award attorney's fees to a prevailing defendant, "it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success." 434 U.S. at 421-422, 98 S.Ct. at 700. To assess attorney's fees against a plaintiff pursuant to § 1988, "[t]he plaintiff's action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees."Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980).
Accord Jones v. Texas Tech University, 656 F.2d 1137, 1145 (5th Cir. 1981); Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1140 (5th Cir. 1983).
Applying this stringent standard to the defendant's § 1988 request to be awarded attorney's fees as a "prevailing party", the Court finds that the defendants have not established that it is entitled to such fees. Although the plaintiffs have, at this juncture, not been successful on any significant issue in the case, neither was their claim "meritless in the sense that it is groundless or without foundation." Plaintiffs voluntarily waived certain claims prior to trial, but they did so in an effort to simplify the issues and streamline the case for trial.
Conclusion
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the renewal motion by defendant, the HTRPC, for judgment as a matter of law in accordance with Rule 50(b) is hereby GRANTED. IT IS FURTHER ORDERED that the alternative motion by defendant, HTRPC, for a new trial is hereby DENIED. IT IS FURTHER ORDERED that the motion by plaintiffs to alter or amend judgment pursuant to Rule 59(e) and for additur is DENIED. IT IS FURTHER ORDERED that the plaintiffs' alternative motion for new trial is hereby DENIED. IT IS FURTHER ORDERED that the motion by plaintiffs for post-trial injunctive relief is hereby DENIED. IT IS FURTHER ORDERED that the motion by plaintiffs for attorney's fees without deduction is hereby DENIED. IT IS FURTHER ORDERED that the motion by defendant, TPCG, to determine that it is the prevailing party pursuant to 28 U.S.C. § 1983 and 1988 is hereby DENIED.