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ENTERTAINMENT CONCEPTS, III, INC. v. MACIEJEWSKI

June 9, 1981

ENTERTAINMENT CONCEPTS, III, INC., PLAINTIFF,
v.
ROBERT T. MACIEJEWSKI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Perry, Senior District Judge.

MEMORANDUM OF DECISION

This cause comes on upon plaintiff's motion for attorneys' fees and costs (filed November 5, 1980), and upon plaintiff's amended and supplemental motion for attorneys' fees and costs, which was filed March 20, 1981 and which the court hereby treats as having supplanted the motion filed November 5, 1980. The court has read and considered both the aforesaid motions, defendants' Objections To Plaintiff's Petition For Attorneys' Fees, filed January 6, 1981, and Defendants' Responsive Memorandum of Law On The Issue of Attorneys' Fees, filed May 11, 1981. After making narrative findings and conclusions hereinafter, the court will rule on said amended and supplemental motion for attorneys' fees and costs.

Plaintiff's suit against the Village officials was, for all practical purposes, brought against the Village itself. The Village's attorneys recognized this, for they have defended this suit since it began. Congress, too, has recognized that suits for injunctive relief against state or municipal officers in their official capacities are, for all practical purposes, suits against the state or the municipality itself and the legislative history of 42 U.S.C. § 1988 makes it clear that in such instances attorneys' fees should generally be obtained "either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or the government is a named party)". [italics added]. Hutto v. Finney, 437 U.S. 678, 700, 98 S.Ct. 2565, 2578, 57 L.Ed.2d 522 (1978), citing and quoting from S.Rep.No.94-1011, p. 5 (1976).

In Morrison v. Ayoob, 627 F.2d 669, 672-673 (3rd Cir. 1980), the Court of Appeals said:

    The doctrine of judicial immunity is a
  common-law rule, and the Supreme Court has
  indicated that Congress may abolish the doctrine
  when it sees fit. See Pierson v. Ray, 386 U.S. 547,
  554-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288
  (1967). We believe that Congress has done so in §
  1988.

Then the Court briefly discussed the legislative history of § 1988.

Just as the Court of Appeals for the Third Circuit held that Congress intended to abrogate judicial immunity under § 1988, our own Court of Appeals in the appeal of the instant case held that Congress also intended the abrogation of any immunity possessed by the officials of the Village of Westmont. This court is controlled by this holding and it is the law of the case inasmuch as the defendants' application for writ of certiorari has recently been denied by the United States Supreme Court.

It was the ordinances of the Village of Westmont that were held to violate plaintiff's civil rights and, in the opinion of the court, it is the Village of Westmont which is therefore responsible for the award of attorneys' fees and costs. See Hutto v. Finney, supra, 437 U.S., at 700, 98 S.Ct. at 2578; Boe v. Colello, 447 F. Supp. 607, 611 (S.D.N.Y. 1978); Jordan v. Wokle, 464 F. Supp. 173, 174 (E.D.Wis. 1979).

In view of the foregoing, the court determines that the Village of Westmont is the village entity responsible for the award of attorneys' fees and costs.

The court also determines that the plaintiff is entitled to attorneys' fees for work done on appeal. Davis v. Murphy, 587 F.2d 362, 364-65 (7th Cir. 1978); Hutto v. Finney, supra, 437 U.S. at 699-700, 98 S.Ct. at 2578; Love v. Mayor, 620 F.2d 235, 237 (10th Cir. 1980).

The court has also been ordered to determine the proper amount of attorneys' fees. For reasons set forth below, the court has determined that the hours claimed by counsel are not a rational reflection of the services that were necessary to perform.

In fashioning an hourly rate it is proper for the court to take into account the novelty and difficulty of the issues as well as other factors. This was a simple case. Nothing was complicated and the issues were simple and clear-cut. The only problem was the interpretation of the term "prevailing party" in the statute (42 U.S.C. § 1988) which allows the court in civil rights cases, in the exercise of its discretion, to grant a reasonable attorney's fee as part of the costs to the "prevailing party". This case presented no novel questions for which there was no direct precedent. The complaint contained issues which plaintiff knew or should have known would be controlled by readily-available, published decisions of other courts.

There was no discovery and there was no trial. There was merely a hearing, held November 2, 1979 on defendants' motion to dismiss, followed by one other hearing, held the ...


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