H.D v. - Greektown, LLC v. City of Detroit

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0496n.06

No. 15-1449

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 23, 2016
DEBORAH S. HUNT, Clerk
H.D.V. - GREEKTOWN, LLC; 415 EAST )
CONGRESS, LLC; and K AND P, )
INCORPORATED, d/b/a Deja Vu, d/b/a Zoo ) ON APPEAL FROM THE
Bar, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
Plaintiffs – Appellants, ) DISTRICT OF MICHIGAN
)
v. )
OPINION
)
CITY OF DETROIT, MICHIGAN, )
)
Defendant – Appellee, )
)
and )
)
MAJED DABISH, )
)
Defendant. )
)

Before: MOORE, GIBBONS, and DAVIS,* Circuit Judges.

ANDRE M. DAVIS, Senior Circuit Judge. This appeal arises from a First Amendment

action that concerned efforts by Appellee, the City of Detroit, Michigan (the “City”), to thwart

the sale and continuing operation of an adult entertainment nightclub in downtown Detroit.

After years of litigation, culminating in a previous appeal to this Court that effectively resolved

the merits issues, the district court entered a consent decree awarding $2.95 million in damages

*
The Honorable Andre M. Davis, Senior Circuit Judge for the United States Court of Appeals for the
Fourth Circuit, sitting by designation.
No. 15-1449, H.D.V. - Greektown, LLC v. City of Detroit

to Appellants H.D.V. - Greektown, LLC (“H.D.V.”); 415 East Congress, LLC (“415 E.

Congress”); and K and P, Incorporated (“K & P”). Appellants then sought over $1.5 million in

attorneys’ fees and costs. After concluding that Appellants could not recover certain fees, the

district court reduced the remaining requested fees by 60%. It declined to grant a fee

enhancement and also imposed a 3% cap on the fees incurred by Appellants’ counsel while

litigating the attorneys’ fees motion, ultimately awarding in fees and costs $385,401.12.

Appellants now challenge each of those decisions on appeal. They also ask us to assign

this case to a different district judge on remand. We agree with Appellants that the district court

did not adequately explain why a 60% reduction was appropriate. Moreover, the award of fees

for fees must be recalculated given our decision in The Northeast Ohio Coalition for the

Homeless v. Husted, Nos. 14-4083, 14-4084, 14-4132, 14-4133, 15-3295, 15-3296, 15-3380, 15-

3381, --- F.3d ---, 2016 WL 4073489 (6th Cir. Aug. 1, 2016) (published). In all other respects,

we discern no error or abuse of discretion. Accordingly, we AFFIRM IN PART, REVERSE

IN PART, and REMAND for further proceedings. Appellants’ request for reassignment on

remand is DENIED.

I. BACKGROUND

We described the lengthy background of this litigation in the earlier merits appeal. See

H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 613–16 (6th Cir. 2009). The relevant

facts for the purposes of the attorneys’ fees motion are as follows.

A. The 2003 Action

K & P has operated a topless nightclub in downtown Detroit since 1986, in a building

now owned by 415 E. Congress. In December 2002, H.D.V. entered a conditional agreement to

purchase the nightclub and applied for a transfer of K & P’s liquor license and topless activity

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permit. Hoping to frustrate the purchase, the City refused to consider the transfer applications,

asserting that the nightclub’s continuing use of topless female dancers had violated a condition of

land use known as “Condition 18,” which limited K & P to providing male-only adult

entertainment. In 2003, Appellants filed suit in the Eastern District of Michigan, asserting that

Condition 18 violated their First Amendment rights (the “2003 Action”). The parties eventually

settled the dispute and stipulated that Condition 18 was unenforceable. The parties also

stipulated that the dismissal of the 2003 Action was “without an award of costs or attorneys[’]

fees to any party.” R. 84-5 2d Am. Compl. Ex. A ¶ 10 (Page ID #2513). Accordingly, in

December 2003, the district court entered an order declaring that the City could not enforce

Condition 18 and stating that “all claims in this action are dismissed without prejudice and

without costs or an award of attorneys[’] fees to any party.” R. 84-6 2d Am. Compl. Ex. B, at 3

(Page ID #2517).

Despite the district court order, three years passed without any action on the transfer

applications by the City. The City Council had instead passed resolutions ostensibly designed to

make it more difficult for K & P to sell or operate its nightclub, including resolutions that

prohibited the transfer of licenses or permits for businesses that operated with a nonconforming

use. The City then issued K & P two zoning violation notices, both alleging that K & P had

expanded the nonconforming use of its nightclub. K & P appealed the notices to the Board of

Zoning Appeals (“BZA”) where, despite the 2003 court order, the City continued to assert that it

could enforce Condition 18. The BZA dismissed the first violation notice and unanimously ruled

in favor of K & P as to the second violation notice.

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B. The 2006 Action

Appellants filed their second suitthe operative one herein the Eastern District of

Michigan in March 2006 (the “2006 Action”). At the time, the City still had not acted on

Appellants’ transfer applications. In a sprawling, 109-page complaint that asserted 16 counts

over 291 paragraphs, Appellants brought facial and as-applied constitutional challenges to the

City’s zoning and sign ordinances.

Appellants amended the complaint in April 2008, explaining that the “amend[ment] does

not seek to add new counts, or new causes of action[], but rather seeks only to add additional

Plaintiffs,” namely, four Jane Roe Plaintiffs “who have performed at [K & P’s] club.” R. 46

Pls.’ Mot. Leave to File 1st Am. Compl. ¶ 3 (Page ID #1447). The Jane Roe Plaintiffs were

added as representatives of a putative class of similarly situated employees. Appellants amended

the complaint a second time on May 11, 2009, “to add additional facts to support a count that

already exists in the current complaint”the as applied challenge to the City’s zoning

ordinances. R. 81 Pls.’ Mot. Leave to File 2d Am. Compl. ¶ 4 (Page ID #2230). Specifically,

Appellants amended the complaint to include allegations that then-City Council member Monica

Conyers had solicited a $25,000 bribe from Appellants in exchange for her vote in favor of the

transfer applications. The amendments added 29 pages and 16 paragraphs to the operative

complaint but no additional causes of action.

In January 2007, Appellants filed a motion for partial summary judgment1 challenging

the City’s zoning ordinances.2 See H.D.V.-Greektown, LLC v. City of Detroit, No. 06-11282,

1
Appellants filed a motion for partial summary judgment in December 2006 that impermissibly exceeded
the district court’s page limits. The district court struck the motion and directed Appellants to refile it in accordance
with the local rules. For this reason, Appellants include the hours spent preparing three partial summary judgment
motions, even though only two motions were decided on the merits.

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2007 WL 2261418, at *1 (E.D. Mich. Aug. 6, 2007). The motion was largely successful. The

district court concluded that the zoning ordinances, which gave the City broad discretion to

regulate adult businesses, impermissibly imposed prior restraints on protected speech. It also

found that the zoning ordinances violated the First Amendment because they “provide[d] no

limitations of time upon the reviewing authorities to render an official approval or disapproval.”

Id. at *5. Rather than enjoin the City from enforcing the provisions, however, the district court

directed the City to revise the zoning ordinances to comply with the First Amendment.

In April 2007, Appellants filed another motion for partial summary judgment, this one

challenging the City’s sign ordinances. See H.D.V.-Greektown, LLC v. City of Detroit, No. 06-

11282, 2008 WL 441487, at *1 (E.D. Mich. Feb. 14, 2008), aff’d in part and rev’d in part,

568 F.3d 609 (6th Cir. 2009). This portion of the lawsuit arose after K & P sought approval from

the City in 2004 to erect a sign advertising the nightclub’s new name. The City had not acted on

the request for at least three years. Appellants also partially succeeded on this motion. The

district court concluded that the sign ordinances, though facially constitutional, were

unconstitutional as applied to Appellants because the City’s “multi-year delay in acting upon the

Plaintiffs’ sign permit applications ha[d] violated their fundamental right to engage in free

speech under the First Amendment.” Id. at *9. The district court ordered the City to allow

Appellants to erect signs as described in their sign permit applications.

Appellants appealed the unfavorable portions of the district court’s order on the second

motion for partial summary judgment, and, in June 2009, this Court effectively resolved the

merits dispute in their favor. H.D.V.-Greektown, LLC, 568 F.3d at 612–13. The Court

2
The partial motions for summary judgment were substantial filings, each totaling 148 pages with exhibits.

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concluded that, given the district court’s determination that the zoning ordinances were

unconstitutional, K & P was entitled to use its property for any lawful purpose. This Court also

modified the district court’s order so that K & P could erect signs that reflected the nightclub’s

most recent name change.

The parties settled the case on March 29, 2011, and Appellants voluntarily dismissed the

Jane Roe Plaintiffs from the action on August 9, 2011. On August 23, 2011, the district court

entered a consent decree awarding Appellants $2,950,000 in damages. The consent decree

allowed Appellants to request attorneys’ fees under 42 U.S.C. § 1988 and acknowledged that the

parties had stipulated that Appellants were prevailing parties for the purpose of any award of

attorneys’ fees.

C. Motion for Attorneys’ Fees

On October 3, 2011, Appellants submitted a 334-page motion seeking attorneys’ fees

under § 1988. What followed was a somewhat protracted streak of filings: The City responded

with a 210-page filing, Appellants then filed a 140-page reply and a 13-page supplement, and

finally, the City filed a supplemental affidavit. In total, Appellants sought $1,532,640.61 in fees

and costs.

On May 23, 2013, a magistrate judge issued a report and recommendation concluding

that the motion should be granted in part and denied in part. Using the lodestar method for

calculating attorneys’ fees, the magistrate judge first determined that the hourly rates for

Appellants’ counsel were reasonable given each attorney’s skill and experience and noted that

counsel’s hourly rate fell between the 75th and 95th percentile of civil rights lawyers with

comparable skills.

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The magistrate judge concluded, however, that the total number of claimed hours

expended was not reasonable. In making that determination, the magistrate judge explained that

he did not believe that First Amendment cases were intrinsically more difficult than other types

of complex litigation, and he rejected Appellants’ contention that the case was undesirable

because it involved the adult entertainment industry. The magistrate judge also believed that

Appellants were not entitled to certain fees. Specifically, he concluded that the district court’s

order from the 2003 Action foreclosed the award of attorneys’ fees or costs from that action.

Nor were Appellants, according to the magistrate judge, entitled to the $16,200 requested for

work related to counsels’ involvement in Councilwoman Conyers’s criminal prosecution for

bribery. The magistrate judge explained that “[t]he criminal case was a separate proceeding that

involved separate parties.” R. 162 R. & R. 8 (Page ID #5121).

After excluding the requested fees for the hours spent on the 2003 Action and the

criminal proceedings, the magistrate judge turned to the reasonableness of the remaining

requested fees. He noted that the parties had turned the attorneys’ fees motion into another

round of major litigation and that, given reasonable resistance to “extravagances,” the district

court had a duty to trim the excessive hours. Id. at 10–11 (Page ID #5123–24). The magistrate

judge targeted three particular requests that, in his opinion, required some trimming. First,

regarding the BZA proceedings, the magistrate judge concluded that Appellants were entitled to

reimbursement for the time spent defending the district court’s order from the 2003 Action. He

added, however, that the issue surrounding Condition 18 “was a relatively minor part of the BZA

proceedings” such that “[t]o ask for all fees related to the BZA proceedings [was] clearly

excessive.” Id. at 12 (Page ID #5125).

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Second, the magistrate judge concluded that Appellants were not entitled to recover for

the hours expended representing the Jane Roe Plaintiffs because they were voluntarily dismissed

from the 2006 Action before the district court entered the 2011 consent decree, and thus the Jane

Roe Plaintiffs “received no relief, including no monetary relief.” Id. The magistrate judge noted

that, although Appellants did have standing to assert declaratory relief claims on behalf of the

Jane Roe Plaintiffs, doing so should have required little to no extra work. Third, the magistrate

judge explained that counsel’s “level of experience seems inconsistent with the astonishingly

large number of hours claimed for researching the law and preparing pleadings.” Id. at 13 (Page

ID #5126). Ultimately, despite recognizing that “the level of counsel’s representation in this

hard-fought case was excellent,” the magistrate judge recommended reducing the fees by 60%.

Id. at 13–14 (Page ID #5126–27).

Appellants had sought a 10% fee enhancement given (1) the City’s obstructive tactics;

(2) the case’s unpopular subject matter, which resulted in widespread media attention; and

(3) counsel’s low rates compared to other experienced First Amendment attorneys. The

magistrate judge recommended denying the fee enhancement because (1) the time spent

litigating the case was already factored into the lodestar calculation; (2) media attention was

inherently beneficial to a lawyer’s practice, and criminal matters were not compensable under

§ 1988; and (3) counsel’s hourly rates fell between the 75th and 95th percentile of civil rights

lawyers with comparable experience.

Next, the magistrate judge recommended a 60% reduction in costs commensurate with

the 60% reduction in fees. He concluded that expert witness fees were not recoverable under

§ 1988 for 42 U.S.C. § 1983 actions and, finally, determined that the City was not entitled to a

15% reduction of the fee award based on its troubling financial condition.

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The magistrate judge recommended awarding Appellants $372,118.19 in fees and

$13,282.93 in costs, totaling $385,401.12. Appellants timely objected to the report and

recommendation, asserting many of the same arguments they now raise on appeal. On March

31, 2015,3 the district court adopted the magistrate judge’s report and recommendation in full,

overruled Appellants’ objections, and granted in part and denied in part Appellants’ motion for

attorneys’ fees. Appellants timely appealed.

II. ANALYSIS

A. The 60% Reduction in Fees and Costs

Appellants argue that the district court abused its discretion because it did not explain

why a 60% reduction of the requested attorneys’ fees and costs was appropriate. The City

responds that a reduction was necessary because, even as otherwise shaved from the original

request, the requested fees were unreasonable. It adds that 60%, specifically, was the appropriate

reduction because counsel for Appellants expended excessive hours and exercised questionable

billing judgment. We review the award of attorneys’ fees under § 1988 for an abuse of

discretion. Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 618 (6th Cir. 2013) (citing Reed v.

Rhodes, 179 F.3d 453, 469 n.2 (6th Cir. 1999)).

To resolve this dispute, we first examine the context within which Appellants may seek

fees. Section 1988 authorizes courts to award attorneys’ fees to prevailing parties in civil rights

actions. 42 U.S.C. § 1988(b). The aim of such fees is “to aid civil rights,” not attorneys, Binta

B. ex rel. S.A., 710 F.3d at 612 (citations omitted), and thus the primary concern is whether the

fee awarded under § 1988 is reasonable, Reed, 179 F.3d at 471; see also Farrar v. Hobby,

506 U.S. 103, 115 (1992) (“[F]ee awards under § 1988 were never intended to produce windfalls

3
The proceedings were delayed when the City filed for bankruptcy in 2013.

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to attorneys.” (quoting City of Riverside v. Rivera, 477 U.S. 561, 580 (1986) (plurality opinion))

(internal quotation marks omitted)).

A “reasonable” fee is one “sufficient to induce a capable attorney to undertake the

representation of a meritorious civil rights case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,

552 (2010). To determine whether a fee is reasonable, we apply the lodestar method, which

involves calculating “the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). We discern a

reasonable hourly rate by “look[ing] to the prevailing market rates in the relevant community.”

Perdue, 559 U.S. at 551 (citation and internal quotation marks omitted). Courts should exclude

hours that were not “reasonably expended,” and “[c]ounsel for the prevailing party should make

a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise

unnecessary.” Hensley, 461 U.S. at 434 (citation omitted).

On review, the district court’s decision is generally “entitled to substantial deference,

especially when the rationale for the award was predominantly fact-driven.” Binta B. ex rel.

S.A., 710 F.3d at 628 (quoting Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir.

2000)). Moreover, “the district court has discretion to adjust the award based on relevant

considerations peculiar to the subject litigation,” the most critical of which is “the degree of

success obtained.” Id. (citation and internal quotation marks omitted). This Court generally

“affirm[s] unless the [district] court’s ruling is based on an erroneous view of the law or on a

clearly erroneous assessment of the record.” Id. (quoting Isabel v. City of Memphis, 404 F.3d

404, 415 (6th Cir. 2005)).

To be sure, the discretion afforded to district courts is not absolute. Adcock-Ladd,

227 F.3d at 349. “[T]he district court must provide a clear and concise explanation of its reasons

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for the fee award.” Id. (quoting Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995)) (internal

quotation marks omitted). While “[t]here is no precise rule or formula for making [fee]

determinations,” Hensley, 461 U.S. at 436, “[i]t is essential that the judge provide a reasonably

specific explanation for all aspects of a fee determination,” Perdue, 559 U.S. at 558. Without a

reasonably specific explanation, “adequate appellate review is not feasible, and without such

review, widely disparate awards may be made, and awards may be influenced (or at least, may

appear to be influenced) by a judge’s subjective opinion regarding particular attorneys or the

importance of the case.” Id.

With these principles in mind, we agree with Appellants that the 60% reduction here

lacks a sufficient explanation by the district court. We have noted “the difficulty in assessing fee

applications with mathematical precision,” Binta B. ex rel. S.A., 710 F.3d at 639, but even so, a

district court must support a particular increase or reduction with some articulable calculation or

record evidence. The Supreme Court in Perdue, for instance, remanded in part because the

district court did not properly justify why it had increased the requested fees by 75% “rather than

[by] 50% or 25% or 10%.” 559 U.S. at 557. The district court in Perdue had reasoned, in part,

that the attorneys “had to make extraordinary outlays for expenses” and had waited an extended

period of time for reimbursement. Id. at 557–58. The Court rejected that justification as

inadequate, however, because the district court had not calculated what portion of the increase

was attributable to the delays; “[n]or did the court provide a calculation of the cost to counsel of

any extraordinary and unwarranted delay.” Id. at 558. The result, the Court explained, was that

the district court had increased the fees by an “essentially arbitrary” percentage. Id. at 557.

Similarly, in Binta B. ex rel. S.A., we vacated the district court’s 20% reduction because

the district court did not “demonstrate why [it had] settled on 20%, as opposed to 43.5% or 60%

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or 70%.” 710 F.3d at 640. The defendants in Binta B. ex rel. S.A. had sought a 43.5% reduction

of the fee award. Id. at 639. But the district court imposed a 20% reduction after “briefly and

summarily describ[ing]” the thirty-year history of the litigation and noting that the plaintiffs’

success was somewhat limited by their own efforts. Id. at 640. Given the complexity of the

case, we concluded that that “explanation was insufficient” and remanded with instructions to

“employ a methodology that permits meaningful appellate review.” Id. (citation and internal

quotation marks omitted).

Here, the explanation for imposing a 60% reduction similarly lacks the necessary

specificity. The district court first determined, in agreement with the magistrate judge, that the

hours spent on the 2003 Action and the criminal proceedings were not compensable. Excluding

the hours expended on the 2003 Action brought the requested award to roughly $1.05 million,

and Appellants had sought only $16,200 in fees for the criminal proceedings. At that point,

however, the district court commented that an additional 60% reduction was warranted because

counsel took an “indiscriminate approach” to the fee petition. R. 169 Order Adopting R. & R.,

Overruling Pls.’ Objs., & Granting in Part Pls.’ Mot. Att’y Fees & Costs (“Order Adopting R. &

R.”) 5 (Page ID #5218). The magistrate judge provided a more specific explanation. He noted

that Appellants sought fees for the criminal proceedings, the BZA proceedings (the bulk of

which were not reasonably expended on the 2006 Action), and representing the Jane Roe

Plaintiffs (whose inclusion in the proceedings required little additional work). The hours

expended on the criminal proceedings, however, were already excluded. Neither the district

court nor the magistrate judge determined what portion of the remaining fees were attributable to

the BZA proceedings and Jane Roe Plaintiffs. And at no point did either the district court or the

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magistrate judge assert that those hours were a majority or even a substantial amount of the

requested fees.

The district court also explained that Appellants are “extraordinarily profitable companies

whose access to the judicial and political processes is far greater than most citizens[’]” and that

this case has a “tangential relationship [to] compelling civil rights.” Id. at 4–5 (Page ID #5217–

18). These considerations are plainly inconsistent with § 1988(b). So long as Appellants have

prevailed in a qualifying civil rights action, they may be awarded attorneys’ fees for the hours

reasonably expended. Cf. Northcross v. Bd. of Educ. of Memphis City Sch., 611 F.2d 624, 636

(6th Cir. 1979) (explaining that, once the plaintiffs are determined to be the prevailing party,

“they are entitled to recover attorneys’ fees for all time reasonably spent on a matter.” (internal

quotation marks omitted)), abrogation on other grounds recognized by L & W Supply Corp. v.

Acuity, 475 F.3d 737, 739 & n.6 (6th Cir. 2007). This is so regardless of the prevailing party’s

own financial resources. See Lavin v. Husted, 764 F.3d 646, 650 (6th Cir. 2014) (“A plaintiff’s

ability to pay his or her attorney . . . is irrelevant to the fee inquiry.”). In addition, the magistrate

judge remarked that, in his view, the hours were excessive given that counsel was an experienced

First Amendment attorney. While we do not necessarily disagree, the magistrate judge did not

indicate how many hours would have been reasonable to expend given counsel’s experience and

the length of the litigation, and so we are unable to gauge the accuracy of his assessment.

A more specific explanation would have been helpful in light of the considerations that

suggest that a more substantial fee award would be appropriate here. Appellants succeeded in

having the City’s zoning ordinances declared facially unconstitutional. They prevailed in a case

fought over years of litigation and in the face of repeated attempts by the City to circumvent their

constitutional rights. The attempts were sometimes carried out legislatively through municipal

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ordinances and, at other times, were targeted directly at K & P’s nightclub through the City’s

refusal to consider Appellants’ sign permit and transfer applications. In other words, this case

involved thousands of hours of work spent defending fundamental constitutional rights and

enforcing prior court orders that had vindicated those rights, the very kinds of efforts that § 1988

aims to promote. See Binta B. ex rel. S.A., 710 F.3d at 612 (“[Section] 1988 plays a critical role

in ensuring that federal rights are adequately enforced, and attorneys have every right to be

compensated for any fees and expenses they reasonably incur.” (citation and internal quotation

marks omitted)).

The City argues that there was ample basis to conclude that the requested award was

excessive. That argument misses the point. Our concern is not whether the requested fee award

should be reduced but whether the reduction amount was appropriate and adequately explained.

The magistrate judge noted that the attorneys’ fees motion filings were voluminous, observed

that the number of claimed hours seemed extraordinary given counsel’s experience and level of

expertise, and explained that Appellants were not entitled to reimbursement for the hours

expended on ancillary proceedings or representing previously dismissed parties. Other than

noting that courts in other cases “have reduced the total fees or hours by amounts ranging from

40% to 77%” and saying that the district court “does not have an obligation to make [counsel]

millionaires,” however, the magistrate judge provided no rationale for why 60% was the

appropriate fee reduction. R. 162 R. & R. 13 (Page ID #5126). He gave similarly sparse

reasoning for reducing the requested costs by 60%. See id. at 17 (Page ID #5130) (“I have

recommended a reduction in the request for attorney[s’] fees by 60%, and a commensurate

reduction in the request for costs is appropriate.”). This reasoning is wholly inadequate. The

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district court, in adopting that recommendation, did nothing to explain why 60% was the

appropriate amount to account for those factors.

Accordingly, we conclude that the district court abused its discretion in reducing the

award for attorneys’ fees and costs by 60%, and we remand so that the district court can revisit,

in light of this opinion, whether a mere blanket percentage reduction in fees truly is appropriate,

and if so, by what measure, and ultimately to employ a methodology that permits meaningful

appellate review.

B. Jane Roe Plaintiffs

We now turn to Appellants’ other contentions. Appellants argue that they are entitled to

the full fees for representing the Jane Roe Plaintiffs. We disagree. The Jane Roe Plaintiffs were

voluntarily dismissed before the district court entered the consent decree, and they thus received

no monetary relief and were not considered prevailing parties to the action. Although neither

party disputes that Appellants have standing to assert facial constitutional challenges regarding

the City’s zoning ordinances on their employees’ behalf, see Clark v. City of Lakewood,

259 F.3d 996, 1011 (9th Cir. 2001), or that they have standing to assert declaratory relief claims

on behalf of their employees, adding the employees to the litigation as Jane Roe Plaintiffs should

not have been so onerous to warrant the award of the entirety of Appellants’ requested fees

attributable to that circumstance.

C. Ancillary Proceedings

1. The 2003 Action

Appellants argue that they are entitled to the fees from the 2003 Action because the

2006 Action was a continuation of that earlier litigation. Even if this is true, the parties

stipulated in the 2003 Action that there would be no award of attorneys’ fees. The district court

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memorialized that stipulation in its subsequent order: “By stipulation of the parties, all claims in

this action are dismissed without prejudice and without costs or an award of attorneys[’] fees to

any party.” R. 84-6 2d Am. Compl. Ex. B, at 3 (Page ID #2517). As the district court explained

during the fees proceedings below, “the placement of the phrase ‘without prejudice’ in that

sentence indicates that the substantive claims were dismissed without prejudice, but any claims

for costs or fees were dismissed with prejudice.” R. 169 Order Adopting R. & R. 7 (Page ID

#5220). Given their own stipulation, and the district court’s order, Appellants are not entitled to

fees related to the 2003 Action.

2. The Criminal Proceedings

Appellants argue that they are entitled to attorneys’ fees for the hours expended on

Councilwoman Conyers’s criminal prosecution because those allegations were the sole basis for

submitting the second amended complaint and because Appellants were required to participate in

the proceedings. The City, however, was neither a party to nor involved in the criminal

proceedings. To the extent that the bribes justified the filing of the second amended complaint,

the changes made were minimal, as Appellants added only factual allegations. Finally, as the

magistrate judge noted, the claimed hours related to the criminal proceedings included time spent

“[meeting] with reporters and review[ing] articles and television reports.” R. 162 R. & R. 8

(Page ID #5121). Fees incurred for such activity do not comport with § 1988’s purpose to

support civil rights litigation. We therefore conclude that Appellants are not entitled to fees

related to the criminal proceedings.

3. The BZA Proceedings

Appellants also argue that they are entitled to the full fees from the BZA proceedings.

The magistrate judge concluded that, to the extent that Appellants were entitled to fees for the

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City’s attempts to enforce Condition 18, those portions of the proceedings were “relatively

minor,” and the remaining time in the BZA proceedings was not reasonably expended on the

pending lawsuit. Id. at 12 (Page ID #5125). The district court agreed. We conclude that this

determination was not an abuse of discretion. The bulk of the proceedings were related to

zoning violations charging K & P with “increasing the number of dancers and the number of

days on which the entertainment was provided.” Id. Those allegations had nothing to do with

the constitutional challenges to the zoning and sign ordinances, which pertained to prior restraint

and the City’s refusal to resolve the permit applications in a timely manner. Although there is

some evidence that the City had attempted to enforce Condition 18 during the proceedings,

Appellants do not show that it was an issue substantial enough to justify an award of full feesa

burden that falls entirely on their shoulders. See Webb v. Bd. of Educ. of Dyer Cty., Tenn.,

471 U.S. 234, 242 (1985) (“[T]he party seeking an award of fees has the burden of submitting

‘evidence supporting the hours worked and rates claimed.’” (citation omitted)).

D. Fee Enhancement

Appellants requested a 10% fee enhancement, which was denied. We conclude that the

denial was not an abuse of discretion. Fee “enhancements may be awarded in ‘rare’ and

‘exceptional’ circumstances.” Perdue, 559 U.S. at 552 (citations omitted). Appellants bear the

burden of producing specific evidence that they are entitled to the fee enhancement. Id. at 553.

Here, Appellants present no viable arguments for why this is a rare or exceptional circumstance.

Nor do they present sufficient specific evidence demonstrating that they are entitled to a fee

enhancement. First, Appellants assert that their counsel bills below market rate, but those

concerns are already addressed through the lodestar method, which calculates fees based on the

prevailing market rate. Binta B. ex rel. S.A., 710 F.3d at 627 (citing Missouri v. Jenkins by

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Agyei, 491 U.S. 274, 285–86 (1989)). A fee enhancement may be appropriate when the

prevailing market rate fails to afford adequate compensation. See Perdue, 559 U.S. at 554–55

(“[A]n enhancement may be appropriate where the method used in determining the hourly rate

employed in the lodestar calculation does not adequately measure the attorney’s true market

value.”). Appellants have not shown that this is the case.

Second, Appellants argue that they obtained superior results. Although there are a few

circumstances in which superior results would justify a fee enhancement, the Supreme Court has

noted that those “circumstances are indeed ‘rare’ and ‘exceptional,’ and require specific evidence

that the lodestar fee would not have been ‘adequate to attract competent counsel.’” Id. at 554

(citation omitted). Appellants have not made that showing here. Finally, Appellants’ argue that

the case was undesirable because it involved an adult entertainment business, but they offer no

evidence that counsel representing adult entertainment businesses are subject to any undue

pressure on their ability to obtain clients or adequate compensation for their work in representing

them. As it is Appellants’ burden to produce specific evidence, this argument fails because they

do not substantiate it. Cf. Barnes v. City of Cincinnati, 401 F.3d 729, 746 (6th Cir. 2005)

(affirming a fee enhancement based, in part, on two affidavits from attorneys attesting that the

case was highly controversial).

For all these reasons, we conclude that Appellants have not shown that the district court

abused its discretion in declining to award a fee enhancement.

E. Limit on Fees for Fees

The magistrate judge recommended limiting the fees recoverable for litigating the

attorneys’ fees motion to 3% of the overall award, and the district court agreed. Appellants now

challenge that decision, and they also challenge the continuing validity of the case that had

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No. 15-1449, H.D.V. - Greektown, LLC v. City of Detroit

imposed the 3% cap rule, Coulter v. Tennessee, 805 F.2d 146 (6th Cir. 1986), abrogated by The

Ne. Ohio Coal. for the Homeless v. Husted, Nos. 14-4083, 14-4084, 14-4132, 14-4133, 15-3295,

15-3296, 15-3380, 15-3381, --- F.3d ---, 2016 WL 4073489 (6th Cir. Aug. 1, 2016) (published).

At the time, Coulter had permitted the district court to apply a 3% cap on the award of fees for

fees absent a finding of unusual circumstances. See id. at 151. But we have recently abrogated

Coulter, given the Supreme Court’s decision in Commissioner, Immigration and Naturalization

Service v. Jean, 496 U.S. 154 (1990). See Husted, 2016 WL 4073489, at *28. Our precedent

now dictates, consistent with Jean, that the award of fees for fees be determined under the

Hensley reasonableness standard. See id. at *25. In light of Husted, we vacate the district

court’s fee for fee determination, and we remand for recalculation of that portion of the award.

F. Reassignment on Remand

Finally, Appellants argue that the case should be assigned to a different judge on remand

because the district judge below was “disrespectful to, and derisive and disparaging of, the

Plaintiffs, their constitutional rights, and . . . their counsel.” Appellants’ Br. 56. “Although [the

Court] ha[s] the authority pursuant to 28 U.S.C. § 2106 to remand the case to a different district

court judge, ‘this is an extraordinary power and should rarely be invoked.’” Brown v. Crowley,

312 F.3d 782, 791 (6th Cir. 2002) (quoting Armco, Inc. v. United Steelworkers of Am., 280 F.3d

669, 683 (6th Cir. 2002)). We can discern nothing in the record regarding the district court’s

consideration of the request for attorney’s fees or in the subsequent order that would warrant

reassignment. Accordingly, we decline to assign the case to a different district judge on remand.

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III. CONCLUSION

For the reasons set forth above, we AFFIRM IN PART, REVERSE IN PART, and

REMAND for recalculation of the attorneys’ fees and costs. Appellants’ request for

reassignment on remand is DENIED.

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