Kushner v. Buhta

Background

Jordan S. Kushner brought fourteen claims concerning his removal from a University of Minnesota Law School lecture, his later arrest, and a trespass warning that barred him from certain University facilities for one year. The defendants were University employees. The University voluntarily lifted the remaining term of the trespass warning before the parties filed a stipulation confirming its removal. The court adopted that stipulation and denied Kushner’s request for an injunction as moot.

The case later proceeded through discovery and summary judgment. On April 18, 2018, the court granted defendants’ summary-judgment motion and dismissed Kushner’s Complaint with prejudice. The Clerk later taxed $3,549.15 in costs against Kushner and in favor of defendants.

Attorney’s-fee motion

Kushner sought $30,058.80 in attorney’s fees and $418.60 in costs under 42 U.S.C. § 1988. He argued that he was a winning party because the lawsuit led to the removal of the trespass warning and the court adopted the parties’ stipulation. Defendants argued that the motion was late and that Kushner was not a winning party.

The court excused Kushner’s six-day filing delay. It found that the delay caused no prejudice, did not disrupt the proceedings, resulted from an inadvertent error, and was not made in bad faith.

The court nevertheless denied the fee motion. Under § 1988, a party generally must obtain relief on the merits that materially changes the legal relationship between the parties to qualify as a winning party. The court found that the University voluntarily lifted the trespass warning before the stipulation was filed. The court’s order adopting the stipulation merely confirmed the warning’s removal; it did not itself change the parties’ legal relationship. The court also found that Kushner did not obtain a judgment on the merits, a court-ordered consent decree, or a preliminary injunction. Because the court had granted summary judgment to defendants, including on the due-process claim related to the trespass warning, defendants—not Kushner—were the winning parties.

Costs and request for a stay

Kushner objected to the Clerk’s assessment of $3,549.15 in costs and argued that he should not have to pay them because he had partially prevailed regarding the trespass warning. He alternatively requested a stay of the costs while an appeal was pending.

The court overruled the objections. It held that defendants were the prevailing parties under Federal Rule of Civil Procedure 54(d), and noted that the assessed costs were incurred for discovery and summary judgment in 2017, not for the stipulation concerning the trespass warning.

The court also declined to stay the costs. It found that judicial efficiency favored assessing costs while the case was still fresh, and that Kushner had not made a strong showing that he would succeed on appeal. The court also found that he had not submitted evidence showing that he could not pay the award and rejected his arguments about vindictive prosecution and a possible chilling effect on civil-rights lawyers.

Disposition

The court denied Jordan S. Kushner’s Motion for Attorney’s Fees and overruled his Objections to the Bill of Costs.