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Consolidated Paving, Inc., An v. County of Peoria

March 7, 2013


The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED Friday, 08 March, 2013 11:59:55 AM Clerk, U.S. District Court, ILCD


This matter is before the Court on Plaintiff's Motion for Fees and Costs (Doc. 45). Defendants filed a Response in opposition (Doc. 47). For the reasons stated below, Plaintiff's Motion is taken under advisement pending further briefing by both parties.


Plaintiff filed the present case seeking "declaratory, injunctive, and further relief," challenging Peoria County ordinances governing the use of paving materials. (Doc. 1). Plaintiff's Amended Complaint concerns the ordinance as amended on April 8, 2010, requiring that asphalt paving material be produced at a plant certified by the Illinois Department of Transportation (IDOT) and that asphalt paving material meet all IDOT specifications. (Doc. 14 at 7). Failure to comply would result in penalties including fines and construction permit denials. (See Doc. 14 at 7). On the same date as Plaintiff filed its Amended Complaint, it also filed motions for both a temporary restraining order and a preliminary injunction.

On April 20, 2010, the Court granted Plaintiff's Motion for Preliminary Injunction and found Plaintiff's Motion for Temporary Restraining Order moot. (Minute Entry, Apr. 20, 2010; see also Doc. 21). In granting the preliminary injunction, the Court found that Plaintiff had a substantial likelihood of success on the merits. (Doc. 21 at 2). The challenged ordinance required all asphalt plants producing asphalt in the unincorporated areas of Peoria County to be certified by IDOT; however, the Court found that IDOT does not certify plants and thus compliance with that component of the ordinance was impossible. (Doc. 21 at 2). Further, the Court found that Plaintiff was likely to succeed on the merits because the meaning of the ordinance requirement that the asphalt plants meet all IDOT specifications was unclear. (Doc. 21 at 2). Thus, the Court determined that the ordinance would likely be found unconstitutionally vague and would constitute a taking of property without due process. (Doc. 21 at 2).

The Court also found that Plaintiff had no adequate remedy at law: if the injunction were not granted, Plaintiff would have been forced to violate the law and suffer sanctions and extreme loss of business or go out of business entirely, causing irreparable harm from enforcement of the ordinance. (Doc. 21 at 2). The Court enjoined Defendant from enforcing the challenged sections of the Peoria County Code until further order of the Court. (Doc. 21).

On September 9, 2010, Peoria County adopted amendments to the ordinance, replacing the existing language of the provisions challenged by Plaintiff. (See Doc. 26-1). In particular, the definition of contractor was narrowed such that Plaintiff would no longer be regulated by the ordinance, the provision requiring the nonexistent IDOT certification was changed to instead require IDOT approval, and the potentially vague language was amended. (See Doc. 26-1; Doc. 26 at 3-6). As a result, the Court granted Defendant's Motion to Dissolve Preliminary Injunction on July 18, 2011. (Doc. 32). The Court determined that the September 9, 2010, amendments rendered the preliminary injunction of the April 8, 2010, ordinance moot, and that Plaintiff could no longer satisfy the requirements for a preliminary injunction. (Doc. 32 at 4-5). In the same Order, the Court denied Plaintiff's Petition for Fees, in part because it was "premature in view of the continuation of the litigation to definitely resolve the controversy." (Doc. 32 at 7).

On October 24, 2011, Defendant filed a Motion for Judgment on the Pleadings, arguing that Plaintiff's Amended Complaint was moot. (Doc. 36). The Court agreed that the case was moot, and consequently dismissed the Amended Complaint for lack of subject-matter jurisdiction. (Doc. 44). In reaching this conclusion, the Court explained that the provisions of the ordinance "that constituted the source of this controversy have been replaced" and there was no indication Defendant would re-enact the challenged provisions. (Doc. 44 at 9-10).


Plaintiff seeks attorneys' fees and costs pursuant to 42 U.S.C. § 1988, in the amount of $88,917.35. Under 42 U.S.C. § 1988, a court, "in its discretion, may allow the prevailing party" in certain enforcement actions, including actions under 42 U.S.C. § 1983, "a reasonable attorney's fee." 42 U.S.C. § 1988(b). Defendant, in its Response, argues Plaintiff is not entitled to fees for two primary reasons. First, Defendant argues Plaintiff's Petition was untimely, as it was not filed within two weeks of the date the preliminary injunction was ordered. Second, Defendant argues Plaintiff is not a "prevailing party" under 42 U.S.C. § 1988, so is not entitled to fees.

I. Timeliness

Federal Rule of Civil Procedure 54 provides that "[u]nless a statute or a court order provides otherwise" a motion for attorneys' fees must be filed "no later than 14 days after the entry of judgment." Fed. R. Civ. P. 54(d)(2)(B). Defendant argues the word "judgment" in Rule 54(d)(2)(B) means "a decree and any order from which an appeal lies," as defined in Rule 54(a). Because an order granting a preliminary injunction is an order from which an appeal lies, Defendant concludes that it was a judgment for purposes of Rule 54(d)(2)(B), and Plaintiff would have to have filed its Petition for Fees within fourteen days of the Order granting Plaintiff a preliminary injunction. (Doc. 47 at 5). Because it was not, Defendant argues that it was not timely. (Doc. 47 at 5).

A logical reading of Rule 54, and the implications of attorneys' fees precedent, lead to the conclusion that Plaintiff's Petition was not untimely. The Seventh Circuit has noted "the need for flexibility and good sense in interpreting time limits on attorney's fee petitions." Smith v. Vill. of Maywood, 970 F.2d 397, 399 (7th Cir. 1992). Though Defendant's reading may not be frivolous, good sense dictates that it cannot be the correct meaning. "It simply makes little sense to require the submission of petitions for attorney's fees before the legal work is done." Id. at 399-400. Further, an attorneys' fees petition filed immediately after a preliminary injunction would be premature, as this Court determined when denying Plaintiff's previous Petition. (Doc. 32 at 7). This is particularly true because if a plaintiff is awarded a preliminary injunction, but a final decision on the merits denies permanent injunctive relief, that party is not a "prevailing party" for purposes of ยง 1988. Sole v. Wyner, 551 U.S. 74, 78 (2007). In dicta, the Court noted in reference to a preliminary injunction that "[i]ts tentative character, in view of the continuation of the litigation to definitively resolve the controversy, would have made a fee request at the initial stage premature." Id. at 84. In Seventh Circuit cases discussing attorneys' fees awards following a preliminary injunction, the discussion is focused on whether the court is permitted to award an interim fee-there is no indication that the final fee award must be completed at that time. ...

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