Civil Procedure Notes Page 2
LAW 5301 (4 credits)
Professor Pedro A. Malavet
1. Prejudgment Seizure 1: Fuentes v. Shevin, US Const. Am. 14, 26-41
Due Process Clause and Civil Procedure.
THE FOURTEENTH AMENDMENT (Annotated).
"[N]or shall  any State [?] deprive [?] any person of  life, liberty, or property,  without due process of law * * *." _US Const. Am. XIV º 1.
Due Process, in the context of Civil Procedure, generally requires:
1) Notice and
2) A meaningful Opportunity to be Heard
[CB-27] In Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), the Court held that the due process clause of the 14th Amendment * * requires some procedural protections in connection with such remedies.* * * Evidently there was no way for defendant to release the garnishment until the end of the trial. Stressing the "tremendous hardship" that seizure of this "special type of property" presented, the Court held that the state attachment law was unconstitutional for failure to provide  notice and  an opportunity to be heard before garnishment was issued.
- Request for replevin
- Writ is issued
- Sheriff goes to (a) effect service and (b) seize property.
- Litigation of the merits of the case and final judgment.
PENNSYLVANIA Prejudgment Seizure Procedure
- Request for replevin
- Defendant could demand the filing of a complaint and decision on the merits.
FUENTES v. SHEVIN, CB-28
(1) the seizure is directly necessary
to secure an important governmental or general public interest;
(2) there is a special need for very prompt action; (3) the State
has strict control; the person initiating a seizure is a government
official responsible for determining, under the standards of
a narrowly drawn statute, that it was necessary and justified
in the particular instance.
Fuentes v. Shevin, p. 31
For more than a century the central meaning of procedural due process has been clear: "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." ***. It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner."
Fuentes v. Shevin, p. 35
The Due Process Clause requires a pre-seizure hearing to authorize pre-judgment attachment. There are "extraordinary situations" that justify postponing notice and opportunity for a hearing.
(1) the seizure is directly necessary to secure an important governmental or general public interest;
(2) there is a special need for very prompt action; AND/OR?
(3) the State has strict control; the person initiating a seizure is a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.
Fuentes v. Shevin, CB-36:
There may be cases in which a creditor could make a showing
of immediate danger that a debtor will destroy or conceal disputed
1. Prejudgment Seizure 2: Fuentes and it's progeny. Mitchell v. WT Grant, North Georgia, Conn. v. Doehr , 41-65
It is important to keep in mind that you are faced with a series of cases that interpret and modify a seminal case. The question is, is the seminal case --Fuentes v. Shevin-- still alive after all interpretation and modification?
Mitchell v. WT Grant Co., CB-41
Mitchell v. WT Grant, CB-42, White J.
"Fuentes was decided against a factual and legal background sufficiently different from that now before us and that it does not require the invalidation of the Louisiana sequestration statute."
North Georgia v. Di-Chem, CB-44
North Georgia v. DI-Chem, CB-44, White, J.
"Because the official seizures [in Fuentes] had been carried out without notice and without opportunity for a hearing or other safeguard against mistaken repossession they were held to be in violation of the Fourteenth Amendment."
Justice Powell, concurring, CB-43-44
In my view, procedural due process would be satisfied where state
law requires that the garnishment be preceded by the garnishor's
provision of adequate security and by his establishment before
a neutral officer (FN3) of a factual basis of the need to resort
to the remedy * * *.
FN3. I am not in accord with the Court's suggestion that the Due Process Clause might require that a judicial officer issue the writ of garnishment. * * *
* * * The most compelling deficiency in the Georgia procedure is its failure to provide a prompt and adequate postgarnishment hearing. * * *
After WT Grant and Di-Chem, Fuentes is read as requiring a hearing OR another adequate method to prevent mistaken repossession, instead of always requiring a hearing TO prevent mistaken repossession.
- (1) Sworn statement, specific, personal knowledge;
- (2) Neutral judicial officer;
- (3) Bond by Plaintiff;
- (4) Prompt post-seizure hearing, _ has BoP.
- (5) Nature of the legal issue, subject to resolution in writing.
- (6) Preexisting interest in the property;
- (7) Exigent circumstances.
Clearly, the first four safeguards are present in WT Grant, and not all of them are present in North Georgia. The remaining three --which are factors in a balancing test-- will come into play in Connecticut v. Doehr.
Note 7 about Mathews v. Eldridge. CB-48-49.
At page 49, you have a discussion of the three interests to be BALANCED in a Due Process test:
(1) the private interest that will be affected by the official action;
(2) the risk of erroneous deprivation of such interest through the procedures used, BALANCED against the probable value, if any, of additional or substitute procedural regards;
(3) the government's interest, including the function involved and administrative burdens that additional or substitute procedure would entail.
Most recently, Hamdi v. Rumsfeld 542 U.S. 507 (2004).
Both of these positions highlight legitimate concerns. And both emphasize the tension that often exists between the autonomy that the Government asserts is necessary in order to pursue effectively a particular goal and the process that a citizen contends he is due before he is deprived of a constitutional right. [The constitutional rule:] The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," U.S. Const., Amt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U.S. 319 (1976). See, e.g., Heller v. Doe, 509 U.S. 312,330-331 (1993);Zinermon v. Burch,494 U.S. 113, 127-128 (1990); United States v. Salerno,481 U.S. 739, 746 (1987); Schall v. Martin, 467 U.S. 253,274-275 (1984); Addington v. Texas, supra, at 425. [The Mathews TEST:] Mathews dictates that the process due in any given instance is determined by  weighing "the private interest that will be affected by the official action"  against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. 424 U.S., at 335.  The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of [3-a] "the risk of an erroneous deprivation" of the private interest if the process were reduced and [3-b] the "probable value, if any, of additional or substitute safeguards." Id
Connecticut v. Doehr, CB-48.
The opinion is divided into five parts. The four justices who join in the entire opinion were White, of course, with Marshall, O'Connor and Stevens. As the footnote indicates, only parts I, II, and III have a majority vote. Justice Scalia refuses to join part II because he would only apply a strong Due Process test to remedies NOT available prior to enactment of the 14th Amendment. But he makes it clear that he approves of the Mathews test as applied to this case in part III. I chose to focus on parts I, II and III, because they are the ones with a strong majority.
"The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without a hearing . . . upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claims and (1) that the prejudgment remedy requested is for an attachment of real property "
[CB-49] "The rule to be derived from Sniadach and its progeny, therefore, is not that post attachment hearings are generally acceptable provided that the plaintiff files a factual affidavit and that a judicial officer supervises the process, but that a prior hearing may be postponed where exceptional circumstances justify such a delay, and where sufficient additional safeguards are present." This conclusion was deemed to be consistent with our decision in Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974), because the absence of a preattachment hearing was approved in that case based on the presence of extraordinary circumstances.
The interesting thing is that Justice White himself reads WT Grant as merely "fleshing out" the "exigent circumstances" language of Fuentes. Note that "exigent circumstances' is not found in Fuentes at page 36, as cited above ("There may be cases in which a creditor could make a showing of immediate danger that a debtor will destroy or conceal disputed goods.") The phrase is a term of art. You will see, alternatively, "extraordinary circumstances," "exceptional circumstances," etc.
[CB-51, The modified Mathews v. Eldrige test] For this type of case, therefore, the relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections
DI < (1-RE) x PI
DI= Defendant/Debtor's interest; "Taking".
RE=Risk of error, given the existing safeguards and the value of imposing additional safeguards. (Here the risk of error is in wronglfully taking the property away from the Defendant/Debtor).
PI = Plaintiff/Creditor's interest in ex-parte attachment. Mathews v. Eldridge, Doehr.
In class this year, I gave you a variation of this one:
PI > DI x RE
The contrast is interesting. The basic balancing is that the Plaintiff's interest must outweigh the Defendant's interest, adjusted by the probability of error in order to ALLOW attachment WITHOUT a hearing. In the prior one, if Defendant's interest is less than that of Plaintiff adjusted for error, then you allow the hearing. I made the mistake in class in not changing the numbers for the risk of error. I remembered to switch the greater-than sign but forgot to adjust for the risk of error. SORRY! The handling of the Risk of Error, mathematically, could prove confusing. This is one of those that sounded clever when I prepared my notes before class, and it is a good intellectual exercise, but I hope that I did not hopelessly confuse you with it. I should have stuck to the old one.
After Doehr, WT Grant and Di-Chem, Fuentes is read as requiring a pre-attachment hearing OR, in extraordinary circumstances, another method to prevent mistaken repossession, instead of always requiring a hearing TO prevent mistaken repossession. And the following procedural safeguards are needed:
1) Sworn statement, specific, personal knowledge;
2) Neutral judicial officer;
3) Bond by Plaintiff;
4) Prompt post-seizure hearing in which has Burden of Proof.
The remaining three factors are to be considered in applying the balancing test, but they do not double as procedural safeguards.
5) Nature of the legal issue;
6) Plaintiff has a preexisting interest in the property;
7) Exigent circumstances.
How the identified factors affect the analysis:
(1) Sworn statement, specific, personal knowledge (Reduces RE).
(2) Neutral judicial officer (Reduces RE).
(3) Bond by Plaintiff (Reduces DI, and compensates for RE).
(4) Prompt post-seizure hearing (Reduces DI), _ has BoP (Reduces RE).
(5) Nature of the legal issue (Affects RE, e.g., a consumer debt is clearer than a tort case).
(6) Plaintiff has a preexisting interest in the property (Increases PI; e.g., mortgages or co-ownership are better than claims unrelated to the property).
(7) Exigent circumstances (Increases PI).
Hearing [Content Thereof]
- Likelihood of success on the merits
- Pre-existing interest
- Low risk of error
- Bond & Damages for wrongful attachment (plurality in Doehr)
- A hearing "must provide a real test" of "at least the probable validity of the underlying claim". Fuentes v. Shevin, p. 37.
Fuentes v. Shevin to Connecticut v. Doehr represent a slow but fundamental change. All justices have come to believe that ex parte pre-judgment seizures should be the exception rather than the rule. More importantly, they apply a strong Due Process test to all pre-judgment seizure statutes. The process was made perhaps more messy than usual because of the failure to order re-argument of Fuentes to allow Justices Powell and Rehnquist to participate in the decision. Nevertheless, by 1991, when Doehr is decided, Powell has retired and Rehnquist and Blackmun are now willing to accept a Due Process balancing test, as are the new moderate and conservative members of the Court (with Scalia's stated historical limitation --a view to which he has consistently adhered).
As to the continued validity of Fuentes: Fuentes had arguably created an almost "impenetrable barrier" (to paraphrase part III of Fuentes) to ex-parte attachment. While the new test is more liberal, the basic rule of Fuentes, that the Due Process Clause makes ex parte attachment the exception, rather than the rule, is alive and well. This begs the question: has the expansion of the exception swallowed the rule? To the extent that the court will now go through the Due Process analysis in a deliberate and careful way, Fuentes is still around, even if some of the results seem inconsistent with the more specific language of that decision.
1) Avoiding or Reducing them. TRO/PI
a) Pain and Suffering
b) Clearly measurable
Post-Judgment Remedies. Carey v. Piphus, CB-65.
FRCP 65, (a), (b).
42 USC sec. 1983. Civil action for deprivation of rights (derived from Sec. 1 of the Civil Rights Act of 1871)
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
Carey v. Piphus, CB-67-68.
The legislative history of Sec. 1983, elsewhere detailed, demonstrates that it was intended to "[create] a species of tort liability" in favor of persons who are deprived of "rights, privileges, or immunities secured" to them by the Constitution.
Petitioners contend that the elements and prerequisites for recovery of damages under this "species of tort liability" should parallel those for recovery of damages under the common law of torts. In particular, they urge that the purpose of an award of damages under Sec. 1983 should be to compensate persons for injuries that are caused by the deprivation of constitutional rights; and, further, that plaintiffs should be required to prove not only that their rights were violated, but also that injury was caused by the violation, in order to recover substantial damages. Unless respondents prove that they actually were injured by the deprivation of procedural due process, petitioners argue, they are entitled at most to nominal damages.
Carey v. Piphus, CB-68
Respondents seem to make two different arguments in support of the holding below. First, they contend that substantial damages should be awarded under Sec. 1983 for the deprivation of a constitutional right whether or not any injury was caused by the deprivation. This, they say, is appropriate both because constitutional rights are valuable in and of themselves, and because of the need to deter violations of constitutional rights. Respondents believe that this view reflects accurately that of the Congress that enacted Sec. 1983. Second, respondents argue that even if the purpose of a Sec. 1983 damages award is, as petitioners contend, primarily to compensate persons for injuries that are caused by the deprivation of constitutional rights, every deprivation of procedural due process may be presumed to cause some injury. This presumption, they say, should relieve them from the necessity of proving that injury actually was caused.
Carey v. Piphus: Damages
- If the suspensions were substantively justified, an award of compensatory damages resulting from the suspension would be a windfall.
- If the suspensions were not substantively justified, compensatory damage award would be justified.
- Should we award compensatory damages for violation of due process itself, even when the ultimate decision was substantively correct? The court says yes, but only to the extent that actual injury caused by the denial of due process can be proved. Denial of due process is not per se injury, actual injury must be proved. The court itself suggests emotional distress.
- Nominal Damages. Part III. Even if no damages can be proved, the suspended students are entitled to nominal damages because of the Due Process violation.
This year I presented the material thusly:
Carey v. Piphus: Damages
1) If the suspensions were substantively justified, an award of compensatory damages would be a windfall.
2) If the suspensions were not substantively justified, compensatory damage award would be justified.
3) Should we award compensatory damages for violation of due process itself, even when the ultimate decision was substantively correct?
-- Yes, but only to the extent that actual injury caused by the denial of due process can be proved.
-- Denial of due process is not per se injury, actual injury must be proved. The court itself suggests emotional distress.
4) Nominal Damages. Part III. Even if no damages can be proved, the suspended students are entitled to nominal damages because of the Due Process violation.
TRO and Preliminary Injunction
- FRCP 65
- TRO: No prior notice or Opportunity to be heard, 10-day limit.
- PI: only with prior notice and opportunity to be heard.
Preliminary Injunction Standard
- (1) A strong likelihood of success on the merits.
- (2) Irreparable harm should preliminary relief not be granted.
- (3) Balance of hardships strongly favors plaintiff.
- (4) Issuing the injunction will advance the public interest.
P x Hp > (1-P) x Hd
- P = probability of error in granting the TRO or PI.
- Hp = harm to plaintiff
- Hd = harm to defendant
Grant the injunction only if the harm to Plaintiff, should it be denied, adjusted for the probability that the denial will be erroneous, exceeds the harm to the defendant if it is granted, multiplied by the probability of error in granting the order.
- 1) Avoiding or Reducing them. TRO/PI
- 2) Compensatory
- a) Pain and Suffering
- b) Clearly measurable
- 3) Punitive
- 1) Injunction
- 2) Declaratory Judgment
- 3) Specific Performance
- 4) Contempt
- 5) Others
(Note 1, page 85)
- 1) Plaintiff has actually succeeded on the merits;
- 2) P does not have an adequate remedy at law;
- 3) P risks (imminent) irreparable harm;
- 4) The balance of hardships weighs in favor of issuance of an injunction;
- 5) Injunction would serve the public interest;
- 6) The court can, as a practical matter, administer the injunction.
Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order  shall set forth the reasons for its issuance;  shall be specific in terms;  shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained;  and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Equitable Remedies [From Marcus, Redish & Sherman, Civil Procedure, A modern Approach (West 1995).]
For present purposes, the point is that even though the writs could be adapted there still arose cases in which they did not suffice either because the common law offered no relief to a certain claimant, or because the relief that the common law courts would accord such a litigant was insufficient for some reason. In such cases, the Chancellor might intercede personally. For political reasons (if not a desire to limit his own workload), the Chancellor would not do so except where necessary because of some deficiency in the relief available to the claimant at law. (Common law judges, like local lords, could be jealous of their power.) This is the source of the current idea that equitable remedies are only available when plaintiff is faced with "irreparable" harm, i.e., when money damages would not be a sufficient remedy. Where the Chancellor did intervene, however, he did more than issue the sort of judgment that the common law judges offered. Rather than making plaintiff pursue defendant's assets, the Chancellor would act "in personam" by issuing a personal order directing or forbidding specified action by defendant.
There thus developed two parallel systems of adjudication in England. The law courts administered the gradually evolving forms of action. Equity, as the Chancellor's court came to be called, had jurisdiction of cases falling generally into three categories:
(1) cases in which the common law did not prescribe the legal rules, most notably the administration of trusts, so that equity's jurisdiction in such cases was "exclusive," (2) cases in which jurisdiction was "concurrent" in that the "substantive" legal rules governing plaintiff's right to relief were based on common law but equity would also entertain the suit because of some deficiency in the relief afforded at law, and (3) cases in which the equity action was "ancillary" to an action at law, most notably an action at equity for a bill of discovery which might be useful for a suit for damages in the law courts.
As the third type of equitable jurisdiction suggests, the two systems had different procedures. Four types of differences will concern us in this book.
 First, the rules surrounding the way in which plaintiff and defendant had to state their positions--pleading--were very strict at law, . . . . The Chancellor was much less interested in the formalities of pleading . . . .  Third, equity afforded assistance to parties in collecting information, while law did not; . . . .  Finally, the manner of trial was markedly different. At law, factual disputes were resolved by a jury trial. At equity, however, there was no jury, and in some senses there was no trial. Instead, the decision was based on the material developed through the discovery process without a single presentation of evidence in a courtroom. . . .
This year, I presented the material thusly:
Equity jurisdiction: CB-81
(1) cases in which the common law did not prescribe the legal rules, [e.g.] the administration of trusts, so that equity's jurisdiction in such cases was "exclusive,"
(2) cases in which jurisdiction was "concurrent" in that the "substantive" legal rules governing plaintiff's right to relief were based on common law but equity would also entertain the suit because of some deficiency in the relief afforded at law, and
(3) cases in which the equity action was "ancillary" to an action at law, most notably an action at equity for a bill of discovery which might be useful for a suit for damages in the law courts.
LAW vs. Equity PROCEDURE
 First, the rules of pleading were very strict at law, . . . . The Chancellor was much less interested in the formalities of pleading . . . .
 Second, the common law courts severely limited a plaintiff's opportunity to combine claims or parties in one action. He could not combine claims under different writs in a single action, and he could very rarely sue more than one defendant at a time.
 Third, equity afforded assistance to parties in collecting information, while law did not; . . . .
 At law, factual disputes were resolved by a jury trial. At equity, however, there was no jury, and in some senses there was no trial. Instead, the decision was based on the material developed through the discovery process without a single presentation of evidence in a courtroom. . . .
Smith v. Western Electric, CB-84
If plaintiff's petition establishes defendant's failure to provide a safe place for plaintiff to work, we must next consider whether injunctive relief would be an appropriate remedy. AnAn injunction may issue "to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages." Sec. 526.030 RSMo 1978. Injunctive relief is unavailable unless irreparable harm is otherwise likely to result, and plaintiff has no adequate remedy at law.
Smith v. Western Electric, CB-84-85
The petition alleges that plaintiff's continuing exposure to smoke in the workplace is increasingly deleterious to his health and is causing irreparable harm. Assuming the allegations and reasonable inferences therefrom to be true, we think it is fair to characterize deterioration of plaintiff's health as "irreparable" and as a harm for which money damages cannot adequately compensate. This is particularly true where the harm has not yet resulted in full-blown disease or injury. Money damages, even though inadequate, are the best possible remedy once physical damage is done, but they are certainly inadequate to compensate permanent injury which could have been prevented. Plaintiff should not be required to await the harm's fruition before he is entitled to seek an inadequate remedy. Moreover, the nature of plaintiff's unsafe work environment represents a recurrent risk of harm that would necessitate a multiplicity of lawsuits. Finally, the petition states that plaintiff has no adequate remedy at law and alleges facts indicating that prior to this action plaintiff unsuccessfully pursued relief, both through his employer's in-house channels and through administrative agencies. Viewing the petition favorably, as we must to determine its sufficiency, we find that injunction would be an appropriate remedy.
"Irreparable Injury", Note 1, CB-86
"our law embodies a preference for specific relief if plaintiff wants it. The principal doctrinal expression for this preference is the rule that damages are inadequate unless they can be used to replace the specific thing that plaintiff lost." Id. at 691. He adds that "[d]amages are the standard remedy for personal injury only because personal injuries can rarely be anticipated in time to prevent them by injunction." Id. at 709. He concludes, however, that the rule continues to be important in cases involving preliminary injunctions (id. at 732):
Irreparable Injury, Note 1, CB-86
The irreparable injury rule has teeth at the preliminary injunction stage because it still serves a purpose there. At the preliminary injunction stage, the merits are unresolved, plaintiff may be undeserving, and it is still possible that plaintiff will not get any remedy at all. Defendant has a legitimate interest in a full hearing and in freedom to act in ways not yet shown to be unlawful. These interests coincide with the court's interest in avoiding error and being fair to both sides.
(1) Criminal Contempt
(2) Compensatory Civil Contempt
(3) Coercive Civil Contempt
(4) Summary Contempt
As I mentioned in class, the contempt
power of American judges is quite extensive and extends to the
fourth category I discussed: Summary Contempt imposed for acts
committed in the judge's presence.
4. The Cost of Litigation: "Costs" & Attorneys Fees, Venegas v. Mitchell, FRCP 54, 28 USC § 1920, 94-102
42 USC § 1988
"[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 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 . . ."
17 USC § 505. Remedies for infringement: Costs and attorney's fees (1997)
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.
Note how the language of these two statutes is fairly similar, but they are applied in very different ways. In civil rights litigation, the application is not bilateral, i.e., the benefit of the doubt goes to the plaintiff. In the copyright area, the sections are applied more or less equally to both defendants and to plaintiffs. CB-Note 2 at page 99.
Venegas v. Mitchell, CB-95-96
The aim of the section, * * * is to enable civil rights plaintiffs to employ reasonably competent lawyers without cost to themselves if they prevail. It is likely that in many, if not most, cases a lawyer will undertake a civil rights case on the express or implied promise of the plaintiff to pay the lawyer the statutory award, i.e., a reasonable fee, if the case is won. But there is nothing in the section to regulate what plaintiffs may or may not promise to pay their attorneys if they lose or if they win. * * * Sec. 1988 does not * * * limit civil rights plaintiffs' freedom to contract with their attorneys.
Venegas v. Mitchell, CB. 96
It is true that in construing Sec. 1988, we have generally turned away from the contingent-fee model to the lodestar model of hours reasonably expended compensated at reasonable rates. See Blanchard v. Bergeron, ***; Riverside v. Rivera, *** (1986) (plurality opinion); Blum v. Stenson, *** (1984). We may also assume for the purposes of deciding this case that Sec. 1988 would not have authorized the District Court to enhance the statutory award upward from the lodestar figure based on the contingency of nonrecovery in this particular litigation.
Venegas v. Mitchell, CB-96
Because it is the party, rather than the lawyer, who is so eligible, we have consistently maintained that fees may be awarded under Sec. 1988 even to those plaintiffs who did not need them to maintain their litigation, either because they were fortunate enough to be able to retain counsel on a fee-paying basis, Blanchard v. Bergeron, ***, or because they were represented free of charge by nonprofit legal aid organizations,
Venegas v. Mitchell, CB-97
But neither Blanchard nor any other of our cases has indicated that Sec. 1988, by its own force, protects plaintiffs from having to pay what they have contracted to pay, even though their contractual liability is greater than the statutory award that they may collect from losing opponents. Indeed, depriving plaintiffs of the option of promising to pay more than the statutory fee if that is necessary to secure counsel of their choice would not further Sec. 1988's general purpose of enabling such plaintiffs in civil rights cases to secure competent counsel.
- $2,080,000.00 Judgment
- $117,000.00 Attorneys' Fees Award
- $75,000.00 Attributable to Mitchell's work.
- $406,000.00 1/2 of 40% fee
- $812,000.00 40% Fee
- $37,500.00 /200 = $187/hr.
- $406,000.00 / 200 = $2,030.00/hr.
28 USC 1920 (Costs)
- 1) Fees of the clerk and marshall;
- 2) Fees of the court reporter for transcripts;
- 3) Fees for printing and witnesses;
- 4) Fees for exemplification and copies of papers obtained for use in the case;
- 5) Docket fees;
- 6) Compensation of court appointed experts, compensation of interpreters, special interpretation services.
28 USCS § 1920:
Taxation of costs (Full Text)
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
FRCP 54(d)(1) Costs other than attorneys' Fees
Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs;
42 USC 1988
"[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 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."