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BIONIC AUTO PARTS & SALES, INC. v. FAHNER

July 10, 1984

BIONIC AUTO PARTS & SALES, INC., ET AL., PLAINTIFFS,
v.
TYRONE L. FAHNER, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Bionic Auto Parts & Sales, Inc. and other similarly situated plaintiffs originally sued the Illinois Attorney General, the Illinois Secretary of State, the Cook County State's Attorney and the Chicago Superintendent of Police ("Superintendent") under 42 U.S.C. § 1983, seeking injunctive and declaratory relief against enforcement of the Illinois Vehicle Code, Ill.Rev.Stat. ch. 95 1/2 (the "Code") and Rule 5-401A promulgated under the Code. This Court on July 6, 1981 granted a preliminary injunction, 518 F. Supp. 582, and on December 28, 1981 entered its final order permanently enjoining defendants from enforcing Code § 5-401(e) and Paragraphs 1.G and 5 of Rule 5-401A.*fn1

While the case was on appeal, the Illinois General Assembly passed Public Law 82-984, which restricted searches previously allowed by the Code. Consequently our Court of Appeals vacated most aspects of the injunction. It did however uphold the injunction as to Rule 5-401A ¶ 1.G in its application to sole proprietorships.*fn2 721 F.2d 1072 (7th Cir. 1983).

On March 7, 1984 plaintiffs filed their 42 U.S.C. § 1988 ("Section 1988") petition for attorneys' fees and expenses, covering work done both here and in the Court of Appeals. Defendants resisted any such award, contending:

    1. Plaintiffs and defendants had jointly agreed to
  waive all attorneys' fees and expenses.

2. Plaintiffs were not "prevailing parties."

After a hearing on the first issue, this Court found no agreement had been entered into. It then asked the parties to address the timeliness of plaintiffs' petition.*fn3 For the reasons stated in this memorandum opinion and order, this Court finds plaintiffs' petition timely.

White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982) held the stringent ten-day timetable of Fed.R.Civ.P. ("Rule") 59(e) did not govern Section 1988 fee applications. It then went on to say (id. at 454, 102 S.Ct. at 1167, footnotes omitted):

  Section 1988 authorizes the award of attorney's fees
  "in [the] discretion" of the court. We believe that
  this discretion will support a denial of fees in
  cases in which a postjudgment motion unfairly
  surprises or prejudices the affected party. Moreover,
  the district courts remain free to adopt local rules
  establishing timeliness standards for the filing of
  claims for attorney's fees. And of course the
  district courts generally can avoid piecemeal appeals
  by promptly hearing and deciding claims to attorney's
  fees. Such practice normally will permit appeals from
  fee awards to be considered together with any appeal
  from a final judgment on the merits.

And shortly after White our Court of Appeals put the matter this way in Gautreaux v. CHA, 690 F.2d 601, 612 (7th Cir. 1982) (citations omitted):

  Absent a fixed time limitation, the only constraint
  on when the plaintiffs file for attorneys' fees under
  Rule 54(d) of the Federal Rules is laches. . . . A
  laches claim must demonstrate both undue delay

  and prejudice to the non-delaying party.

Here Superintendent claims "unfair [] surprise [] or prejudice []" (the language in White) because plaintiffs' late filing:

    (a) makes it more difficult to challenge
  plaintiffs' billing hours for work ...

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