Higher Taste, Inc. v. City of Tacoma, No. 11-36046 (9th Cir. 2013)
Annotate this CaseHigher Taste sued the Park district under 42 U.S.C. 1983, requesting a declaration that Resolution 40-05 violated its rights under the First and Fourteenth Amendments and an injunction barring the resolution's enforcement. The district court granted Higher Taste's motion for a preliminary injunction, expressly ruling that Higher Taste had demonstrated a likelihood of success on the merits. The parties later executed a written settlement agreement. Higher Taste then moved for attorney's fees under 42 U.S.C. 1988(b), which permitted an award to the "prevailing party" in certain civil rights actions, including those brought under 42 U.S.C. 1983. The district court denied the motion. The court reversed and concluded that, because Higher Taste was a prevailing party within the meaning of section 1988, it should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust. On remand, the district court should determine in the first instance whether such special circumstances exist.
Court Description: Civil Rights/Attorney’s Fees. The panel reversed the district court’s denial of a motion for attorney’s fees brought pursuant to 42 U.S.C. § 1988(b), after determining that the district court’s preliminary injunction in plaintiff’s favor and the parties’ subsequent settlement agreement conferred prevailing party status on plaintiff for purposes of an attorney’s fee award. Plaintiff Higher Taste, Inc., brought the underlying suit under 42 U.S.C. § 1983 seeking to continue to sell message-bearing T-shirts on public walkways in front of and leading to the entrance of the Tacoma Zoo. The panel held that the district court’s preliminary injunction ruling, which was based on a finding that Higher Taste was likely to succeed on the merits of its First Amendment claim, was sufficiently on the merits to satisfy the “judicial imprimatur” requirement for prevailing party status. The panel further held that the parties’ subsequent settlement agreement, which allowed Higher Taste to continue selling t-shirts on the public walkway, was sufficiently enduring to satisfy the “material alteration of the parties’ legal relationship” requirement. The panel remanded for the district court to determine in the first instance whether special circumstances existed that would render an attorney’s fee award unjust and if such circumstances did not exist, to calculate the reasonable fee that Higher Taste is entitled to recover.
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