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Seals v. McBee

United States District Court, E.D. Louisiana

December 4, 2018

TRAVIS SEALS, ET AL.
v.
BRANDON MCBEE, ET AL.

         SECTION "H" (3)

          REPORT AND RECOMMENDATION

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.

         The District Court referred the determination of the amount of reasonable attorneys' fees and costs to the undersigned Magistrate Judge. [Doc. # 93]. Now before the Court is the Motion to Tax Costs and Attorney's Fees [Doc. #86] filed by plaintiffs Travis Seals and Ali Bergeron. The motion is opposed. [Doc. #88]. Having reviewed the pleadings and the case law, the Court rules as follows.

         I. Background

         The underlying facts are for the most part unimportant here. In short, plaintiffs Travis Seal and Ali Bergeron challenged as unconstitutional Louisiana Revised Statute §14:122, which criminalizes “the use of violence, force, or threats” on any public officer or employee with the intent to influence the officer's conduct in relation to his position. Plaintiffs argued that the statute unconstitutionally infringes their free speech rights under the First Amendment because “threats” include both “true” threats, i.e., those of violence to a police officer in the course and scope of his duties, and lawful threats, i.e., threats to sue a police officer or challenge an incumbent politician for his seat. The District Court agreed and enjoined Louisiana from enforcing Section 14:122 as it relates to “threats.” Seals v. McBee, Civ. A. No. 16-14837, 2017 WL 3252673 (E.D. La. July 31, 2017). The Fifth Circuit recently affirmed the District Court's opinion and denied rehearing en banc. Seals v. McBee, 898 F.3d 587 (5th Cir. 2018), reh'g en banc denied, ___F.3d ___, No. 17-30667, 2018 WL 5659735 (5th Cir. 2018).

         II. Law and Analysis

         A. Entitlement to Fees and Who is Responsible for the Payment

         The only party to oppose plaintiffs' motion for fees is the Attorney General of Louisiana, who argues that he alone should not be responsible for the fees and costs incurred by plaintiffs. No. party seriously contends that plaintiffs are entitled to their fees and costs here. The Attorney General merely argues that the fees and costs should be apportioned among all defendants. For their part, plaintiffs do not care either way who pays the fees and costs as long as they are paid.

         The Court rejects the Attorney General's argument - mainly because it is foreclosed by the District Court. In its referral to this Court, the District Court held:

This Court agrees that the Attorney General should be solely responsible for the attorney's fees and costs that Plaintiffs incurred in their challenge of the constitutionality of § 14:122. The Attorney General intervened in this action to specifically defend the constitutionality of the statute. Indeed, it was the only party to oppose Plaintiffs' Motion for Partial Summary Judgment seeking a holding that the statute was unconstitutional. Defendants at all times maintained that they relied on the statute in a good faith belief in its constitutionality but never sought to defend such. Further, the constitutionality of § 14:122 is the only issue that has been litigated thus far in this litigation, and Plaintiffs' allegations against Defendants remain pending.
Accordingly, Plaintiffs are entitled to an award of attorney's fees and costs pursuant to 42 U.S.C. § 1988 to be assessed solely against the Intervenor Attorney General.

[Doc. #93 at p. 2] (footnotes omitted).

         The issue of who is responsible for the payment of plaintiffs' fees and costs has thus been removed from the ambit of this Court's recommendation.

         B. The ...


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