Ness v. City of Bloomington

Background

Sally Ness sued the City of Bloomington, two Bloomington police officers, and the Hennepin County Attorney under 42 U.S.C. § 1983. She challenged a Minnesota harassment statute and a Bloomington ordinance that prohibited photographing or recording children in City parks. She alleged that these laws violated the First and Fourteenth Amendments and sought declaratory relief, an injunction, and nominal damages.

The district court initially dismissed all of Ness’s claims and denied her motion for summary judgment. On appeal, the Eighth Circuit affirmed most of that decision but reversed as to Ness’s claim that the City ordinance was unconstitutional as applied to her photography and recording of matters related to a public controversy at Smith Park. The appellate court did not decide whether the ordinance was unconstitutional on its face. Ness received no damages, and her claims against the other defendants did not succeed.

Attorney’s Fees and Costs

Ness sought $89,534.81 from the City for attorney’s fees and non-taxable costs. Her attorneys’ records showed $163,131.50 in district-court fees, plus $6,902 for preparing the fee motion and $1,067.06 in costs. The City did not challenge the attorneys’ hourly rates, which ranged from $300 to $615, or the $235 rates for two paralegals.

The court used the “lodestar” method, which starts with the reasonable hours worked multiplied by reasonable hourly rates. It found the requested hourly rates reasonable. However, it excluded 43 of the 44 billing entries challenged by the City. The excluded entries totaled $39,490 and included work performed before the ordinance existed or was referenced, work devoted to unsuccessful claims, and excessive or redundant work. This left a lodestar of $123,641.50 for district-court litigation.

The court then reduced that amount by 60% because Ness had only limited success. She succeeded against the City only on the ordinance’s application to her particular recording and photography, did not receive damages, and did not obtain a ruling invalidating the ordinance on its face. The court therefore awarded 40% of the remaining lodestar, or $49,456.60, for district-court litigation.

The court also reduced the requested $6,902 for preparing the fee motion to $3,500, finding that the work could have been performed by an attorney or paralegal with less skill and experience. It awarded $1,067.06 in non-taxable costs, which the City did not oppose.

Disposition

Judge Montgomery granted in part and denied in part Ness’s Motion for Attorney Fees and Non-taxable Costs. The court awarded $52,956.60 in attorney’s fees and $1,067.06 in costs. It also granted Ness’s request for post-judgment interest, calculated under 28 U.S.C. § 1961(a), on the total judgment of $54,023.66. The order directed that judgment be entered accordingly.