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Stoedter v. Gates

United States District Court, D. Utah

March 20, 2018

KENNETH C. GATES, an individual, and KENYON T. MADSEN, an individual, Defendants.


          Bruce S. Jenkins, Judge


         At its most basic, this case at this point is about what should be paid to counsel for work done and costs incurred to vindicate Plaintiff Robert Stoedter's ("Plaintiff) constitutional right to be free from unlawful seizure. Inherent in that vindication are the ancillary benefits of stressing the importance of that right, educating law enforcement personnel as to proper procedures implicating that right, and clarifying the understanding of those who instruct law officers as to what is required to conform with the Foi;rth Amendment.

         Plaintiff prevailed three times during trial and post-trial proceedings, namely in an early opinion of the court, [1] in the court's granting of Plaintiff's motion for a directed verdict, [2] and in the court's post-trial determination that Plaintiff was entitled to nominal damages as a matter of law because his Fourth Amendment rights were violated.[3]

         Plaintiff prevailed a fourth time by the affirmation of the Court of Appeals for the Tenth Circuit.[4]

         In consideration of Plaintiff's application for attorney's fees and costs, the court held evidentiary hearings on December 7, 2017 and January 22, 2018 and closing arguments on January 31, 2018. Diana Huntsman appeared on behalf of Plaintiff, and Andrew Morse and R. Scott Young appeared on behalf of Defendants Kenneth Gates and Kenyon Madsen ("Defendants"). As indicated in the briefing and as clarified at the hearings, Plaintiff seeks a total of $582, 902.50 in attorney's fees and costs:

• $321, 550.95 in attorney's fees incurred through trial;
• $94, 301.25 in attorney's fees incurred in post-trial motions;
• $156, 557.50 in attorney's fees incurred at the appellate court level; and
• $10, 492.80 in costs incurred at the district court and appellate court level.

         Having considered the parties' briefs, the evidence presented, the arguments of counsel, and the relevant law, the court hereby GRANTS IN PART Plaintiff's applications for attorney's fees and costs. As further discussed below, Plaintiff is entitled to reasonable attorney's fees and costs incurred throughout the case, but the amount of such fees is subject to adjustments. The court finds that the total amount of reasonable attorney's fees and costs awardable to Plaintiff is $260, 552.57.[5]


February 23, 2012: Plaintiff filed a complaint against Salt Lake County, Riverton City, Unified Police Department, and Officers Kenneth Gates, Kenyon Madsen, Gregg Shaver, and Brooks Green alleging seven causes of action: (1) violation of the Fourth Amendment by the officers for unreasonable search and seizure and excessive force, (2) violation of the Fourth Amendment by Salt Lake County and Riverton City for failure to train and/or supervise and for deficient policies, (3) violations of Utah Constitution Article I, Sections 1, 7, 9, and 14, (4) negligence by Salt Lake County, Riverton City, and Unified Police Department, (5) negligence by Officers Gates, Madsen, Shaver, and Green, (6) battery, and (7) assault. Plaintiff asked for compensatory and punitive damages for these claims.[7]
February 7, 2014: Defendants Salt Lake County, Brooks Green, and Gregg Shaver were dismissed.[8]
March 18, 2014: Defendant Riverton City was dismissed.[9] Plaintiff's claims for negligence, battery, and assault were dismissed.[10]
August 6, 2014: The court issued a decision (the "August 2014 Memorandum Opinion") denying the parties' summary judgment motions. The August 2014 Memorandum Opinion determined that, upon arriving at the scene of events, Officers Gates and Madsen did not have reasonable suspicion that an armed robbery or similar armed crime was afoot. Thus, a future jury determination on whether reasonable suspicion or probable cause existed to support Defendants' actions would be limited in scope to the time period following the officers' approach and initial orders.[11]
January 5, 2015: During final pretrial conference, Defendant Unified Police Department was dismissed.[12]
January 7, 2015: The parties submitted a revised stipulated pretrial order, wherein Plaintiff no longer asserted claims for violation of the Utah Constitution.[13] The parties also each separately provided the court with proposed jury instructions. Plaintiff's proposed instructions did not include an instruction on nominal damages.[14] Defendants' proposed instructions did include an instruction on nominal damages.[15]
January 12-16, 2015: The court held a jury trial on the case's sole remaining claim.
o After the parties rested, both Plaintiff and Defendants moved for directed verdict.[16] The court granted Plaintiff's motion, finding the manner in which Officers Gates and Madsen conducted their investigation violated the Fourth Amendment.[17] Having so determined, the court found there were two remaining questions for the jury to answer: did the actions of Officers Gates and Madsen in violation of the Fourth Amendment cause damage to Plaintiff, and, if so, how much?[18]
o Thereafter, the court provided the parties with a package of proposed jury instructions, which did not include an instruction on nominal damages. The parties were given an opportunity to read through the packet and voice concerns at a jury instruction conference.[19]
o At the jury instruction conference, Defendants requested that their proposed nominal damages instruction be added to the final instruction packet presented to the jury.[20] The court denied Defendants' request and indicated it would not give an instruction on nominal damages.[21] Thereafter, in response to the court's inquiry as to whether Plaintiff had anything additional to raise, counsel for Plaintiff stated, "No, Your Honor. We have nothing to add."[22]
o After the jury instruction packet and special verdict form were accepted and agreed to, the parties made closing arguments, the court instructed the jury, and the jury retired for deliberations.[23]
o The special verdict form asked the jury two questions: (i) did Plaintiff suffer damages as a result of the constitutional violations; and (ii) if so, how much will fairly compensate Plaintiff for such damages?[24]
o After deliberations, the jury returned a verdict finding that Plaintiff suffered no damages as a result of the constitutional violations.[25]
January 30, 2015: The Clerk of Court entered judgment in favor of Defendants.[26]
February 13, 2015: Plaintiff filed his original motion for attorney's fees.[27]
February 27, 2015: Defendants filed a notice of appeal.[28]
February 27, 2015: Plaintiff filed a Motion for Judgment as a Matter of Law Under Rule 50, or in the Alternative, a New Trial Under Rule 59.[29] In that motion, Plaintiff argued as follows:
The Court should grant Mr. Stoedter an award of damages under Rule 50(b). When the Court granted Mr. Stoedter a directed verdict as it relates to the 4fl Amendment, it held that Mr. Stoedter's Constitutional rights had been violated. That violation alone should give Plaintiff a claim for damages. In addition, the Court heard evidence from two physicians that the Plaintiff was in fact injured, from his encounter with the Defendant police officers, and as such, is entitled to damages.
As such, it is within the Court's power and discretion to award Mr. Stoedter damages as a result of his injuries. Or, in the alternative, the Court could order a new trial on the issue of damages alone, since the Court directed verdict on the issue of liability.[30]
June 17, 2015: The court issued a Memorandum Opinion and Order (the "June 2015 Memorandum Opinion") partially granting Plaintiff's Motion for Judgment as a Matter of Law Under Rule 50, or in the Alternative, a New Trial Under Rule 59.[31] In the June 2015 Memorandum Opinion, the court denied Plaintiff's request for compensatory damages, but the court granted Plaintiff's request for nominal damages, stating that judgment should be amended in favor of Plaintiff in the amount of $1.[32]
June 18, 2015: The Clerk of Court entered amended judgment in favor of Plaintiff[33]
September 13, 2017: The Tenth Circuit issued its Mandate, affirming this court's determination that the Defendants unreasonably seized Plaintiff in violation of the Fourth Amendment and that nominal damages were warranted.[34]
October 4, 2017: Plaintiff filed his Supplemental Motion for Attorney Fees.[35]
October 10, 2017: In response to briefing Plaintiff filed at the appellate court level related to appellate level fees and costs-as well as the resulting dispute as to the timeliness of such briefing-the Tenth Circuit issued a decision denying Plaintiff's bill of costs as untimely but directing the Clerk of the Tenth Circuit to accept as filed Plaintiff's proposed motion for appellate attorney fees.[36]
October 30, 2017: The Tenth Circuit granted Plaintiff's motion for appellate attorney fees and remanded to this court "for a determination of the amount of appellate attorneys' fees that were reasonably and necessarily incurred."[37]
December 7, 2017: The court held an evidentiary hearing on Plaintiff's applications for district level and appellate level attorney's fees and costs.[38]
January 22, 2018: The court held a continued evidentiary hearing on Plaintiff's applications for district level and appellate level attorney's fees and costs.[39]
January 31, 2018: The court heard closing argument from the parties on Plaintiff's applications for district level and appellate level attorney's fees and costs. At the close of argument, the court reserved on the matter.[40]


         Plaintiff seeks attorney's fees pursuant to 42 U.S.C. § 1988(b), which states in relevant part that "[i]n any action or proceeding to enforce a provision of sections .. . 1983 . . . of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs .. .." "The general rule under § 1988 is that 'the prevailing party "should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'""[41] "In enacting § 1988, Congress pointed out that '[a]U of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.'"[42] "In view of this clearly expressed congressional intent, [the Tenth Circuit] has recognized that the 'district court's discretion to deny fees to a prevailing party is quite narrow.'"[43]

         According to the Tenth Circuit, "[t]he first question in determining whether a party is entitled to attorney's fees under § 1988 is whether he or she qualifies as a 'prevailing party'"[44] In the June 2015 Memorandum Opinion, the coixrt already determined as a matter of law that the violation of Plaintiff's Fourth Amendment rights entitled Plaintiff to nominal damages and that such damages made Plaintiff the prevailing party.[45] Thus, Plaintiff satisfies the first question regarding attorney's fees.

         "The second question in the attorney's fees inquiry is to determine what amount of 'reasonable attorney's fees' should be awarded to the prevailing party."[46] "A court will generally determine what fee is reasonable by first calculating the lodestar-the total number of hours reasonably expended multiplied by a reasonable hourly rate-and then adjust the lodestar upward or downward to account for the particularities of the suit and its outcome."[47] For cases that "result in a merely technical or de minimus [sic] award, however, a court may 'lawfully award low fees or no fees' without calculating a lodestar."[48] Consequently, "[i]n some circumstances, even a plaintiff who formally 'prevails' under § 1988 should receive no attorney's fees at all."[49]

         In determining whether an award is a merely "technical or de minimis award, " such that no attorney's fees should be awarded, the Tenth Circuit looks to Justice O'Connor's concurring opinion in Farrar v. Hobby, 506 U.S. 103 (1992). There, Justice O'Connor noted that not "all nominal damages awards are de minimis. Nominal relief does not necessarily a nominal victory make."[50] Instead, Justice O'Connor's concurrence "distills various principles from the Court's § 1988 case law into a three-part test to determine whether a prevailing party achieved enough success to be entitled to an award of attorney's fees. The 'relevant indicia of success' in such cases are: (1) the difference between the judgment recovered and the recovery sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose of the litigation."[51]

         Thus, under Farrar and Tenth Circuit precedent, although a party may recover no actual damages, insofar as his recovery was not merely technical or de minimis, he should still receive an appropriate, reasonable amount of attorney's fees.[52]


         There are essentially two issues before the court: (i) is Plaintiff entitled to an award of his attorney's fees and costs incurred throughout this litigation, and, if so, (ii) what is the appropriate amount of such award? Each issue will be addressed in turn.

         A. Is Plaintiff Entitled to an Award of His Attorney's Fees and Costs?

         The parties segregate this case into three separate stages of litigation-trial, post-trial motions, and appeal. The court will consider whether Plaintiff is entitled to attorney's fees and costs for each stage of litigation.

         i. The Case Through Trial

         Plaintiff first seeks recovery of attorney's fees and costs incurred through trial. In opposition, Defendants contend Plaintiff achieved merely a technical or de minimis victory and is entitled to zero or minimal fees.[53]

         As noted above, the court previously determined that Plaintiff's Fourth Amendment rights were violated, that Plaintiff was entitled to nominal damages, and that Plaintiff therefore was the prevailing party in the action before this court.[54] Thus, in analyzing whether Plaintiff should recover attorney's fees incurred through trial, the court must next consider whether the victory Plaintiff achieved is sufficient to justify awarding fees under 42 U.S.C. § 1988(b). Applying Justice O'Connor's three-part Farrar test, the court finds awarding attorney's fee incurred through trial is warranted.

         The first Farrar factor looks to the difference between the judgment recovered and the judgment sought. In the present case, Plaintiff acknowledges that he requested $450, 000 in damages during trial but that he recovered only $ 1, [55] While Plaintiff's nominal damages are a limited recovery compared to what he sought, such discrepancy is substantially less than the discrepancy in Farrar, wherein the plaintiff sought $17 million in compensatory damages but received only $1.[56]

         The second Farrar factor-the significance of the legal issue on which the plaintiff prevailed-weighs heavily in Plaintiff's favor. This factor "goes beyond the actual relief awarded to examine the extent to which the plaintiffs succeeded on their theory of liability."[57] Plaintiff proved that his Fourth Amendment rights had been violated as a matter of law. This is a significant victory achieved through trial.

         The third Farrar factor-the public purpose of the litigation-also weighs in Plaintiff's favor. This litigation served several public purposes. As an initial matter, it emphasizes that officers must have reasonable suspicion or probable cause before seizing an individual, even when responding to a general report that a man has a gun.[58] Defendants argued repeatedly throughout this litigation that seizing Plaintiff-approaching Plaintiff with guns drawn and ordering him to put his hands up and step off the porch-was how officers were trained to handle "man with a gun" investigations.[59] As the Defendants acknowledge, this court's ruling and the Tenth Circuit's affirmation that Defendants' actions violated Plaintiff's clearly established Fourth Amendment rights "will force police agencies to reevaluate officer training."[60] Indeed, they should. And such will benefit not only average citizens, whose Fourth Amendment rights are protected in the future from constitutionally deficient actions, but also other police officers, who are now more likely to be properly trained and thus face a lower risk of liability. Further, this litigation served the public purpose of fortifying the fact that, in the Tenth Circuit at least, nominal damages are mandatory upon a rinding of a constitutional violation under 42 U.S.C. § 1983.[61] This clarity regarding nominal damages is important for future parties, as nominal damages affect the entry of a final judgment and a plaintiff's ability to vindicate his or her constitutional rights.

         Tenth Circuit precedent supports this court's conclusion that, under the Farrar three-part test, Plaintiff achieved more than a technical or de minimis victory and should receive reasonable attorney's fees.

         For example, in Koopman v. Water Dist. No. 1 of Johnson Cty., Kan., 41 F.3d 1417 (10th Cir. 1994), the plaintiff had brought a due process claim after he was discharged from his job.[62]

         The lower court had ruled as a matter of law that the plaintiff had been denied both pre- termination and post-termination hearings, but the jury awarded him only $1.[63] The Tenth Circuit affirmed the lower court's judgment on the merits, but it reversed and remanded the lower court's decision of not awarding the plaintiff attorney's fees.[64] The Tenth Circuit found as follows:

Unlike the litigation in Farrar, this litigation has not been protracted nor are the claims for damages extravagant and, as Koopman claims, his victory sends an important message to the District. As a result of this case, the District is on notice that it must provide its employees with constitutionally adequate pretermination and post-termination hearings. This is a significant victory. Although it is true Koopman received only a nominal award, the present and future employees of the District benefit by having their rights affirmed.

         It does not appear to us this is the kind of case Farrar was intended to discourage attorneys from taking. It is true Koopman was not successful in proving he was damaged, but we do not believe he and his attorney should bear the entire cost of battling the District's unconstitutional practices. Deterring meritorious lawsuits on constitutional issues because they offer a small likelihood of a significant money judgment presents as grave a danger to our legal system as frivolous litigation. In the past, we have attempted to balance these concerns in cases where nominal damages were awarded but which involved the vindication of a constitutional right of significance extending beyond the plaintiff by reducing rather than denying the award of attorney's fees.

         It is indisputable that Koopman did not prove actual damages and so under Farrar is not entitled to full reimbursement for attorney's fees and costs. Nonetheless, his lawsuit was successful in important ways. We remand the issue of the appropriate amount of attorney's fees and costs to the district court.[65]

         Relevant to the present case, the Tenth Circuit in Koopman determined that the plaintiff's minimal $1 recovery under the first Farrar factor did not bar plaintiff from receiving attorney's fees and costs. Instead, looking to the second and third Farrar factors-i.e., the plaintiff's vindication of his due process rights and the benefit this provided to fellow employees in notifying the employer that it must provide adequate pre-termination and ...

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