Maiden v . Manchester, et a l . CV-03-190-SM 08/26/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Diane Maiden, Plaintiff

v. Civil N o . 03-190-SM Opinion N o .

City of Manchester, New Hampshire; Matthew Normand, Deputy City Clerk; and the Manchester Board of Mayor and Aldermen, Defendants

O R D E R

Diane Maiden filed this suit against the City of Manchester

and various municipal political leaders seeking declaratory and

injunctive relief. In her one-count complaint, Maiden alleged

that a Manchester ordinance restricting the practice of tattooing

to licensed physicians violated her First Amendment rights. See

generally

. Although she is a state-licensed

tattoo artist, Maiden is not a physician.

Approximately eight months after filing her complaint,

Maiden moved for summary judgment, advancing two arguments.

First, she reiterated her original claim that the Manchester

ordinance in question violated her constitutionally protected right to freedom of speech. Additionally, for the first time,

she claimed that the local ordinance was preempted by state law -

N.H. Rev. Stat. Ann. (“RSA”) ch. 314-A (2003 Supp.), a

comprehensive statutory scheme governing tattooing and other

forms of body art. While defendants objected to Maiden’s motion

and addressed both grounds on which she sought summary judgment,

they did not adequately address her preemption claim.

Accordingly, by order dated March 8 , 2004, the court

directed defendants to submit a legal memorandum showing cause

why judgment should not be entered in favor of plaintiff on

grounds that, by enacting RSA ch. 314-A, the State completely

preempted the City’s far more restrictive ordinance regulating

the same subject. Maiden v . City of Manchester, N o . 03-190-M,

(D.N.H. March 8 , 2004). Defendant complied with

that order, and plaintiff filed a responsive memorandum.

After reviewing the parties’ memoranda and the applicable

law, the court concluded that it need not reach Maiden’s federal

constitutional claim, because the City’s 40 year-old ordinance

was plainly preempted by the recently enacted state statute

2 governing body art. Maiden v . City of Manchester, N o . 03-190-M,

(D.N.H. May 6, 2004). Pursuant to

, Maiden now moves the court to award her reasonable

attorney’s fees. See also Fed. R. Civ. P. 54(d)(2).

Section 1988 of Title 42 provides, in relevant part, as

follows:

In any action or proceeding to enforce a provision of [

], the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.

(b). As the court of appeals for this circuit

has observed, “[a]lthough this fee-shifting provision is couched

in permissive terminology, awards in favor of prevailing civil

rights plaintiffs are virtually obligatory.” Gay Officers Action

League v . Puerto Rico,

8 8 , 293 (1st Cir. 2001)

(citations omitted). The question presented in this case is

whether plaintiff may properly be deemed a “prevailing party”

under section 1988 notwithstanding the fact that the court did

not resolve her First Amendment claim.

3 Discussion

I. Plaintiff’s Entitlement to Fees.

Interpreting the fee-shifting provisions of section 1988,

the Supreme Court has held that a party “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.” Farrar

v . Hobby,

(1992). More recently, the Court

clarified the meaning of “prevailing party” by rejecting the

notion that a party “prevails,” at least for purposes of fee-

shifting statutes, simply because his or her suit acts as a

“catalyst” for the favorable change in a defendant’s conduct.

We cannot agree that the term “prevailing party” authorizes federal courts to award attorney’s fees to a plaintiff who, by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined), has reached the “sought-after destination” without obtaining any judicial relief.

Buckhannon Bd. & Care Home, Inc. v . W . V a . Dep’t of Health &

Human Res.,

9 8 , 606 (2001). Thus, to be properly

viewed as a “prevailing party,” a plaintiff must obtain either an

enforceable judgment on the merits or a court-ordered consent

4 decree which materially alters the legal relationship of the

parties. Id. at 604.

Here, plaintiff obtained a judgment on the merits that

materially (and, from her perspective, favorably) altered the

legal relationship of the parties: a judicial declaration that

the Manchester ordinance limiting the practice of tattooing

exclusively to licensed physicians is preempted by state law and

unenforceable against her. Nevertheless, a question remains as

to whether she is entitled to attorney’s fees under § 1988, since

she prevailed on a state law claim, rather than on her federal

claim. The court of appeals for this circuit has repeatedly

answered that question in the affirmative.

In 1978, the court of appeals upheld a district court’s

award of attorney’s fees to a party who prevailed on a state law

claim, notwithstanding the fact that the court never reached his

federal constitutional claim.

The district court . . . analyzed the law and facts properly. It made the award [of attorney’s fees] only after first determining that the § 1983 claim was substantial and that the successful pendent claim arose from the same nucleus of facts. The legislative

5 history of [

] supports the awarding of fees in such circumstances. Indeed, since courts often by-pass constitutional issues when a case can be disposed of on statutory grounds, it could well be unfair to attach controlling weight to the particular claim upon which relief is granted.

Lund v . Affleck,

5 , 77 (1st Cir. 1978) (citation

omitted).

More recently, in Williams v . Hanover Hous. Auth.,

(1st Cir. 1997), plaintiffs brought a section 1983 action,

but prevailed when the district court resolved an underlying

state law question in their favor. Despite the fact that

plaintiffs’ federal claims were rendered moot, the court of

appeals concluded that plaintiffs were still properly viewed as

“prevailing parties,” entitled to an award of attorney’s fees

under section 1988.

By addressing the state law question first, the federal court followed the principle that a case should not be decided on constitutional grounds if other grounds are available. [Here,] the state law question on which the court ruled was . . . closely entwined with the federal claims [and] the court’s addressing of it [was] an appropriate judicial action taken within the context of the § 1983 proceeding itself. Being integral to the latter and to the federal claims therein, it furnished an unexceptionable basis for finding plaintiffs to be “prevailing parties” entitled to fees under § 1988.

6 Id. at 1299. Thus, the court concluded that, “it is immaterial

for § 1988 purposes that plaintiffs’ success in the § 1983 action

results from a favorable ruling on a relevant issue of state law,

so long as the state law issue and the federal claims being made

in the § 1983 proceeding are closely interrelated.” Id. at 1298.

Here, Maiden’s federal and state law claims were “closely

interrelated” and arose from the same nucleus of operative facts.

Both directly challenged the validity and enforceability of the

City’s ordinance, which precluded all but “licensed physicians”

from practicing the art of tattooing within the City. Having

prevailed on her state law claim, plaintiff is properly viewed as

a “prevailing party” for purposes of § 1988, thereby entitling

her to an award of reasonable attorney’s fees, even though the

court’s favorable ruling on her state claim rendered moot her

constitutional claim. And, because she prevailed on the merits,

and does not advance a “catalyst theory” in support of her motion

for attorney’s fees, her claim is not thwarted by Buckhannon.

7 II. Calculating the Amount to which Plaintiff is Entitled.

A. Plaintiff’s Submissions.

Having found an award of attorneys’ fees justified under the

statute, the court must next determine whether the sum requested

is “reasonable.” In this circuit, the preferred method for

calculating fee awards under

is the “lodestar

method,” by which “the number of hours reasonably expended on the

litigation [are] multiplied by a reasonable hourly rate.” Coutin

v . Young & Rubicam Puerto Rico, Inc.,

3 1 , 337 (1st Cir.

1997)(quoting Hensley v . Eckerhart,

2 4 , 433 (1983)).

See also In re Thirteen Appeals Arising out of the San Juan

Dupont Plaza Hotel Fire Litig.,

(1st Cir. 1995).

Plaintiff bears the burden of providing sufficiently

detailed contemporaneous records of the time spent and tasks

performed to allow the court to determine their reasonableness.

See Tennessee Gas Pipeline C o . v . 104 Acres of Land,

3 2 ,

634 (1st Cir. 1994). She has met that burden by submitting

comprehensive records detailing the effort expended by her legal

counsel. She has also filed affidavits from Jennifer Eber, Esq.

8 and David Slawsky, Esq. supporting the reasonableness of the fees

claimed.

Records submitted by plaintiff’s counsel document the

following:

a. 169.8 hours of work performed by Attorney Jennifer Eber (a partner at the law firm of Orr & Reno), at an hourly rate of $180;

b. 6.20 hours of work performed by Attorney Martha Van Oot (also a partner at that firm), at an hourly rate of $210;

c. 11.90 hours of work performed by Attorney James Laboe (an associate at that firm), at an hourly rate of $160;

d. 23.60 hours of work performed by Attorney Phillip Bixby (a former associate at that firm), at an hourly rate of $160;

e. 9.40 hours of work performed by Attorney Melissa Guldbrandsen (an associate at that firm), at an hourly rate of $120;

f. 9.7 hours of work performed by Paralegal Diane White, at an hourly rate of $80.

Additionally, plaintiff has submitted documentation supporting

counsel’s expenditure of $456.48 in costs. The court finds that

the hourly rates charged by each of the attorneys and the

paralegal who worked on this matter are reasonable and consistent

9 with those customarily charged by practitioners of comparable

skill and experience in New Hampshire. See Andrade v . Jamestown

Hous. Auth.,

, 1190 (1st Cir. 1996) (“In determining

a reasonable hourly rate, the Supreme Court has recommended that

courts use ‘the prevailing market rates in the relevant

community’ as the starting point.”). See also Affidavit of David

Slawsky, Esq.

B. Defendants’ Objections.

Defendants object to an award of attorney’s fees on two

grounds. First, they say that plaintiff is not properly viewed

as a “prevailing party” under section 1988 because the court did

not rule in her favor on her federal constitutional claim. As

discussed above, however, that view is not consistent with

applicable Supreme Court or circuit precedent.

Next, defendants say that if the court grants plaintiff’s

application for attorney’s fees, any award should compensate

plaintiff exclusively for work performed by her attorneys on the

state law preemption claim; it should not, say defendants,

10 compensate plaintiff for legal work performed on her First

Amendment claim, which the court never resolved.

Defendants’ point i s , at least in part, persuasive. But, to

deny plaintiff fees for any of the work performed on her First

Amendment claim would go too far. First, plaintiff’s

constitutional claim was certainly “non-frivolous.” In fact, it

had substantial merit and might well have met with success had it

been resolved. See, e.g., Commonwealth v . Meuse, 10 Mass. L .

Rep. 6 6 1 ,

(Mass. Super. Nov. 2 9 , 1999) (“The

absolute prohibition of all forms of tattooing, a protected form

of expression, except by licensed physicians - not themselves

generally known to be tattoo artists - is substantial

overbreadth. The [state statute] sweeps too broadly by punishing

criminally a substantial amount of constitutionally protected

expression. It i s , therefore, unconstitutional.”). See

generally Anthony J. Picchione, Tat-too Bad for Municipalities:

Unconstitutional Zoning of Body-Art Establishments, 84 B.U.L.

Rev. 829 (June, 2004).

11 Additionally, as noted above, plaintiff’s state law

preemption claim and her constitutional claim were closely

related. That the court chose, for prudential reasons, not to

resolve plaintiff’s constitutional claim, should not undermine

plaintiff’s entitlement to an otherwise reasonable attorney’s fee

for work reasonably performed in the pursuit of the claim.

Nevertheless, under the circumstances, the full fee claimed

ought to be equitably reduced to some degree. Although the City

of Manchester, which has effectively banned the practice of

tattooing within city limits since at least 1962, is fairly

charged with knowledge of the preemptive effect of RSA ch. 314-A,

still the court cannot escape an abiding conviction that had

plaintiff diligently researched the applicable law before filing

suit, she would have asserted a preemption claim early o n . Had

she done s o , this case likely would have been resolved much

earlier, at far less cost to both parties. To be sure, there is

equivalent blame on the City’s counsel for not recognizing the

governing state statute at a much earlier point, and perhaps

taking a cue from its provisions (of course, even when put on

notice of the state law support for plaintiff’s claim of right,

12 the City still continued its opposition and, facing an adamant

opponent, plaintiff reasonably pressed both her constitutional

and statutory grounds for relief). But, all in all, some

estimable portion of the fees actually incurred should not have

been necessary.

Conclusion

For the reasons set forth above, plaintiff is a “prevailing

party” under

and, therefore, entitled to an

award of reasonable costs and attorney’s fees. But, because

plaintiff asserted her decisive state law preemption argument for

the first time in her motion for summary judgment, principles of

fairness and equity counsel in favor of equitably reducing the

total award of attorney’s fees, given the substantial portion

devoted to the First Amendment claim - work that in some measure

would have been unnecessary had the state law claim been asserted

earlier.

Considering the totality of the circumstances presented in

this case, as well as the fact that plaintiff prevailed on her

singular goal - to have the City’s ordinance governing the

13 practice of tattooing declared unenforceable against her - the

court, in the exercise of its discretion, deems her request for

attorney’s fees both reasonable and well-supported, to the extent

of $30,000. See generally Hensley v . Eckerhart, 461 U.S. at 437;

United States v . Communidades Unidas Contra la Contaminacion,

(1st Cir. 2000). Accordingly, plaintiff’s motion

for an award of attorney’s fees and costs (document n o . 24) is

granted and plaintiff is hereby awarded $456.48 in costs and

$30,000.00 in attorney’s fees (representing an equitable

reduction in her request for nearly $40,000 in attorney’s fees).

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 2 6 , 2004

cc: Jennifer A . Eber, Esq. Robert J. Meagher, Esq.

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