Virden et al v. Crawford County, Arkansas et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
REBECKA VIRDEN; SAMANTHA ROWLETT;
and NINA PRATER, on their own behalf and
on behalf of their minor children 	PLAINTIFFS
V. 	CASE NO. 2:23-CV-2071
CRAWFORD COUNTY, ARKANSAS; COUNTY
JUDGE CHRIS KEITH in his official capacity
only; QUORUM COURT MEMBERS ROBERT
KEVIN ARNOLD, LONNIE MYERS, MORGAN R.
MORGAN, BRAD MARTIN, MARK SHAFFER,
LONNIE JENNINGS, TIA WOODRUFF, JASON
COX, CRAIG WAHLMEIER, MITCH CAROLAN,
ROGER ATWELL, JAYSON PEPPAS, and JEFF
BEAUCHAMP in their official capacities only;
LIBRARY BOARD MEMBERS KEITH PIGG,
TAMMARA HAMBY, KALEIN SCHAPER, KAYLA
RICH, and ROBBY DYER in their official capacities
only; and LIBRARY DIRECTOR CHARLENE
McDONNOUGH in her official capacity only 	DEFENDANTS
MEMORANDUM OPINION AND ORDER
Before the Court are:
• 	Plaintiffs’ Motion to Amend the Judgment (Doc. 114) and Brief (Doc. 115) in
support, Defendants’ Response (Doc. 118) in opposition, Plaintiffs’ Reply (Doc.
121), and separate Defendant Charlene McDonnough’s Response (Doc. 130) to
Plaintiffs’ Motion;
• 	Separate Defendant McDonnough’s Motion to Strike Ms. McDonnough from
Defendants’ Response to Plaintiffs’ Motion to Amend the Judgment (Doc. 128);
• 	Separate Defendant McDonnough’s Motion to Disgorge PPGMR’s Fees and for
PPGMR to Indemnify the Crawford County Library System (Doc. 136) and Brief
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(Doc. 137) in support, PPGMR’s Response (Doc. 141) in opposition, separate
Defendant McDonnough’s Reply (Doc. 145), and PPGMR’s Surreply (Doc. 148);
• 	Plaintiffs’ Motion for Costs & Attorney Fees (Doc. 107) and Brief (Doc. 108) in
support, Defendants’ Response (Doc. 127) in opposition, Separate Defendant
McDonnough’s Response (Doc. 129), and Plaintiffs’ Reply (Doc. 138);
• 	Plaintiffs’ Supplemental Motion for Attorney Fees (Doc. 116) and Brief (Doc. 117)
in support;
• 	Plaintiffs’ Second Supplemental Motion for Attorney Fees (Doc. 123) and Brief
(Doc. 124) in support;
• 	Plaintiffs’ Third Supplemental Motion for Attorney Fees (Doc. 139) and Brief (Doc.
140) in support, and Defendants’ Response (Doc. 142) in opposition; and
• 	PPGMR Law, PLLC’s (“PPGMR”) Motion to Withdraw as Counsel of Record (Doc.
135).
For the reasons given below, Plaintiffs’ Motion to Amend (Doc. 114) and Separate
Defendant McDonnough’s Motions to Strike (Doc. 128) and Disgorge (Doc. 136), are all
DENIED; Plaintiffs’ Motion for Costs & Attorney Fees (Doc. 107) is GRANTED; Plaintiffs’
Supplemental (Doc. 116), Second Supplemental (Doc. 123), and Third Supplemental
(Doc. 139) Motions for Attorney Fees are all DENIED; and PPGMR’s Motion to Withdraw
(Doc. 135) is DENIED.
I. 	BACKGROUND
In May 2023, Plaintiffs brought this lawsuit under 42 U.S.C. § 1983 against
Crawford County, Arkansas and various official-capacity Defendants. They claimed that
the Crawford County Library System, under pressure from various County officials, had
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removed books containing LGBTQ themes from their original sections and had placed
them in a new section called the “social section.” Plaintiffs argued that this policy violated
the First Amendment to the United States Constitution, and they sought injunctive relief
ordering the social section’s dissolution. 	On September 30, 2024, this Court entered
Judgment in Plaintiffs’ favor. See Doc. 106. In its accompanying Opinion and Order, the
Court found on summary judgment that the social-section policy was a textbook example
of viewpoint discrimination which violated the First Amendment. See Doc. 105, pp. 5–10.
Following the entry of Judgment, Plaintiffs moved for an award of attorney fees
and costs as the prevailing parties in this action.1 	But instead of the relatively
straightforward briefing which fee motions typically entail, this matter quickly spiraled out
of control, spawning a bevy of related motions from Defendants and Plaintiffs, including
motions between Defendants who were taking opposing, or at least inconsistent,
positions. 	The issue which has driven this unusually convoluted post-judgment motion
practice is the question of whence the funds for payment of attorney fees will come.
Apparently the County is considering having the library system pay some portion of any
attorney fee award entered in this case, which Plaintiffs find objectionable. 	Therefore
Plaintiffs have moved for an amendment to the judgment prohibiting Defendants from
using library funds to pay any fee award. Separate Defendant Library Director Charlene
McDonnough also opposes the use of library funds for this purpose, and has made
numerous filings reflecting that position. Ms. McDonnough has also asked this Court to
disgorge the fees of PPGMR, the law firm which represented Defendants throughout this
1 Upon the filing of Plaintiffs’ initial Motion for Attorney Fees, this matter was transferred
to the undersigned, in light of the Honorable P.K. Holmes, III’s retirement from the bench.
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lawsuit. 	The conflict between Ms. McDonnough on the one hand and PPGMR and the
other Defendants on the other hand eventually led PPGMR to move to withdraw as
counsel for Defendants in this case. 	Meanwhile, Plaintiffs filed three supplemental
motions for additional attorney fees incurred or arising from this post-judgment motion
practice. All of these motions have now been fully briefed and are ripe for decision.
II. 	DISCUSSION
The Court will first take up Plaintiffs’ Motion to Amend the Judgment (Doc. 114).
Then the Court will address the two motions filed by separate Defendant McDonnough
(Docs. 128, 136). Next the Court will decide all four fee motions filed by Plaintiffs (Docs.
107, 116, 123, 139). 	Finally, the Court will rule on PPGMR’s Motion to Withdraw (Doc.
135).
A. 	Plaintiffs’ Motion to Amend the Judgment (Doc. 114)
This Court’s September 30, 2024 Judgment awarded Plaintiffs the following
injunctive relief against Defendants:
Defendants are . . . ORDERED to immediately dissolve the “social” or
“social issues” sections in the Crawford County Library System and to move
the materials contained therein to appropriate sections in general circulation
without consideration of whether they approve or agree with the viewpoints
expressed in such materials, and without consideration of whether the
viewpoints expressed in such materials are unpopular or controversial.
Defendants are further ORDERED to refrain from coercing Crawford County
Library System staff into acting inconsistently with this injunction.
(Doc. 106, p. 1). 	This final sentence regarding coercion was necessary because the
record 	on 	summary 	judgment 	contained 	“uncontroverted 	evidence 	that 	during 	a
December 2022 Quorum Court meeting shortly before the creation of the social section,
at least one member of the Quorum Court threatened to withhold appropriations from the
Library,” along with a Quorum Court member’s deposition testimony that “he and
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‘probably all of’ the Quorum Court’s members wanted to defund the Library if its director
did not find a way to satisfy constituents’ concerns about books that were subsequently
moved to the social section.” See Doc. 105, p. 3. The Court explained in its Opinion and
Order on summary judgment that this “would support injunctive relief against members of
the Quorum Court prohibiting them from conditioning funding on the social section’s
creation or maintenance,” because although “[l]egislative bodies have ‘wide latitude to
attach conditions to the receipt’ of funding in order to further their policy objections, . . .
they ‘may not “induce” the recipient “to engage in activities that would themselves be
unconstitutional.”’ 	See id. at 4 (quoting U.S. v. Am. Library Assoc., Inc., 539 U.S. 194,
203 (2003) (internally quoting South Dakota v. Dole, 483 U.S. 203, 206 (1987)).
Plaintiffs now argue that if the funds for attorney fees were paid from the Library
system’s coffers, then that would violate this Court’s injunction as well as Arkansas
statutory law regarding county library appropriations. See Doc. 115, ¶¶ 2, 5. Therefore,
Plaintiffs ask that the Court add the following sentence to its award of injunctive relief:
“Defendants are further ORDERED that none of the monies for the fees, expenses, or
other costs of this lawsuit (or any subsequent proceedings) come, directly or indirectly,
from Crawford County Library System funds or the System’s anticipated, normal income.”
See Doc. 114, p. 4.
As for whether paying attorney fees from library funds would violate Arkansas
law—that question is beyond the scope of this Court’s authority to decide here. Plaintiffs’
Motion was brought under Rule 59(e) of the Federal Rules of Civil Procedure, which
permits motions to alter or amend a judgment to be filed within 28 days of its entry. “Rule
59(e) motions serve a limited function of correcting manifest errors of law or fact or to
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present newly discovered evidence. 	Such motions cannot be used to introduce new
evidence, tender new legal theories, or raise arguments which could have been offered
or raised prior to entry of judgment.” 	Innovative Home Health Care, Inc. v. P.T.-O.T.
Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (internal quotation marks
and citations omitted). Rule 59(e) “was not intended to apply” to “issues wholly collateral
to the judgment in the main cause of action.” Buchanan v. Stanships, Inc., 485 U.S. 265,
268–69 (1988). The question whether Arkansas law permits library funds to be used for
payment of litigation expenses was irrelevant to the claims and injunctive relief in this
case, which all arose from the First Amendment to the United States Constitution, not
Arkansas statutory law.
As for whether using library funds to pay for litigation expenses would violate this
Court’s previous injunction—it would only violate the injunction if it were done, or
threatened to be done, in order to “coerc[e] Crawford County Library System staff into
acting inconsistently with” this Court’s order to “dissolve the ‘social’ or ‘social issues’
sections in the Crawford County Library System and to move the materials contained
therein to appropriate sections in general circulation” without consideration of whether the
viewpoints expressed therein were agreeable or unpopular. 	See Doc. 160, p. 1. 	But
Plaintiffs have not presented this Court with any evidence that the County’s recent
discussions around possibly paying litigation expenses from library funds have involved
threats or coercion for library staff to recreate the social section or to adopt some similar
policy.
It is unsurprising, then, that Plaintiffs are not asking for the injunction to be enforced
on its own terms but rather for its language to be amended—and expanded. But this is
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not proper under Rule 59(e), because the First Amendment implications for funding or
defunding public libraries were already argued and addressed in this Court’s September
30, 2024 Opinion and Order. 	The Plaintiffs presented evidence that the County had
threatened to withhold funds from the library system, and this Court carefully analyzed
judicial precedent establishing that while there is no First Amendment right to fund
libraries in general or to provide “universal coverage” of all different viewpoints in libraries,
public actors may not condition access to such funds on recipients’ willingness to engage
in viewpoint discrimination. See Doc. 105, pp. 3–4, 9. Thus the Court’s Judgment went
as far as it was permitted to go on this point, and no further. Plaintiffs may not use Rule
59(e) to tender new legal theories or to seek injunctive relief that they could have sought
before judgment was entered. Therefore, Plaintiffs’ Motion to Amend the Judgment (Doc.
114) will be DENIED.
B. 	Separate Defendant Library Director Charlene McDonnough’s Motions
to Strike (Doc. 128) and to Disgorge (Doc. 136)
The 	Motion 	to Amend 	the 	Judgment 	that 	was 	discussed 	in 	the 	preceding
subsection was opposed by Defendants, who filed a Response in opposition at Doc. 118.
Subsequently, separate Defendant McDonnough moved under Rule 12(f) of the Federal
Rules of Civil Procedure for her name to be stricken from the names of the Defendants
appearing in that oppositional Response. Ms. McDonnough then filed her own separate
Response to Plaintiffs’ Motion to Amend at Doc. 130, in which she argued that Plaintiffs’
Motion should be granted.
The Court has noted Ms. McDonnough’s withdrawal of support from the other
Defendants’ Response (Doc. 118), and included Ms. McDonnough’s separately-filed
Response (Doc. 130) in the materials it considered when ruling on Plaintiffs’ Motion to
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Amend. 	However, as a technical matter, Ms. McDonnough’s Motion to Strike will be
DENIED, because Rule 12(f) does not authorize the relief requested therein. Rule 12(f)
only authorizes courts to strike material “from a pleading”; and “pleadings” are defined in
Rule 7(a) as being expressly limited to complaints, answers to complaints, answers to
counterclaims 	designated 	as 	counterclaims, 	answers 	to 	crossclaims, 	third-party
complaints, answers to third-party complaints, and court-ordered replies to answers.
Briefs filed in response to motions are not pleadings, as they do not appear in that list.
The Court turns now to Ms. McDonnough’s Motion to Disgorge (Doc. 136). In this
Motion, Ms. McDonnough argues that the disagreement between herself and the other
Defendants as to whether library funds should be used to pay litigation expenses creates
a conflict of interest for PPGMR (which had represented all Defendants in this matter up
through Judgment). 	She further alleges that PPGMR “apparently knew that the County
always reserved the right to take library money,” and that accordingly this conflict of
interest existed throughout the pendency of this matter. See Doc. 137, ¶ 4. She cites an
Arkansas case for the proposition that:
[A]n 	attorney 	must 	not 	represent 	opposed 	interests; 	and 	the 	usual
consequence has been that he is debarred from receiving any fee from
either, no matter how successful his labors. Nor will the court hear him urge,
or let him prove, that in fact the conflict of his loyalties has had no influence
upon his conduct; the prohibition is absolute and the consequence is a
forfeiture of all pay.
Crawford & Lewis v. Boatmen’s Trust Co. of Ark., Inc., 338 Ark. 679, 686 (1999) (quoting
Silbiger v. Prudence Bonds Corp., 180 F.2d 917, 920–21 (2d Cir. 1950) (Hand, J.)). Thus
Ms. McDonnough asks this Court to order PPGMR “to disgorge its fees and use those
disgorged fees to indemnify the [library system] from any monies it may have to pay as a
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result of the instant case,” including the fees for the attorney who Ms. McDonnough hired
to represent her in this post-judgment motion practice. See Doc. 127, ¶ 8.
The Court lacks authority to provide the requested relief in this procedural posture.
PPGMR is not a party to this case, nor is its relationship with the Defendants—contractual,
fiduciary, or otherwise—the subject of any of the claims or defenses in this matter. In her
reply, Ms. McDonnough characterizes her request, for the first time, as one for restitution
to remedy unjust enrichment. 	See Doc. 145, ¶ 23. 	In essence, Ms. McDonnough is
attempting to assert a state-law claim in this federal case, against a non-party, and
through post-judgment motion practice rather than in a proper pleading such as a third-
party complaint, see Fed. R. Civ. P. 7(a), 14(a)(1), long after the deadline to add parties
or amend pleadings has passed, see Doc. 31, § 4. 	Ms. McDonnough’s Motion to
Disgorge is DENIED, and the Court makes no findings as to whether PPGMR’s
relationship with the Defendants it represented in this matter was ever characterized by
any conflict of interest.
C. 	Plaintiffs’ Motions for Attorney Fees (Docs. 107, 116, 123, 139)
42 U.S.C. § 1988 states that, in a § 1983 action, “the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable attorney’s fee as
part of the costs.” 	The Supreme Court has made clear that, in the absence of special
circumstances, “a district court not merely ‘may’ but must award fees to the prevailing
plaintiff.” 	Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 760–61 (1989)
(emphasis in original). This near-mandatory awarding of fees under § 1988 is to ensure
“‘effective access to the judicial process’ for persons with civil rights grievances,” and
thereby fulfill § 1983’s purpose. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting
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H.R. Rep. No. 94–1558, p. 1 (1976)). “Accordingly, a prevailing plaintiff should ordinarily
recover an attorney’s fee unless special circumstances would render such an award
unjust.” 	Id. 	(internal quotations and citations omitted). 	By providing a mechanism by
which attorneys who take on civil rights claims can recover their fees should they prevail,
Congress has incentivized the bar to take these cases in the first place.
“[A] plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters
the legal relationship between the parties by modifying the defendant's behavior in a way
that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111–12 (1992). Here,
Plaintiffs are the prevailing party, and Defendants do not challenge that. 	Rather,
Defendants argue the amount requested is unreasonable.
To calculate a reasonable fee award, courts look to the “lodestar” amount, i.e., “the
number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate.” Hensley, 461 U.S. at 433. When making this determination, courts may consider
the twelve factors identified in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th
Cir. 1974).2 But often, these factors “are subsumed within the initial calculation of hours
reasonably expended at a reasonable hourly rate.” Hensley, 461 U.S. at 434 n.9.
As noted in Section I of this Opinion and Order, Plaintiffs have filed four separate
fee Motions: one immediately following the entry of Judgment in this matter, and then
2 “The twelve factors are: (1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion
of employment by the attorney due to acceptance of the case; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature
and length of the professional relationship with the client; and (12) awards in similar
cases.” Hensley, 461 U.S. at 430 n.3 (1983) (citing Johnson, 488 F.2d at 717–19).
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three supplemental Motions for additional attorney fees incurred or arising from the
voluminous post-judgment motion practice which followed. The Court will deal first with
Plaintiffs’ initial fee Motion, and then with the three supplemental Motions.
Plaintiffs’ initial fee Motion asks the Court to award fees based on the following
rates and hours:
Requested Fees
Biller Requested
Hourly Rate
Hours
Billed
Billed
Amount
Brian Meadors
(attorney) $325 	278.8 	$90,610.00
Terrence Cain
(attorney) $325 	54.67 	$17,767.75
Total 	333.47 	$108,377.75
Defendants 	make 	four 	challenges 	to 	this 	fee 	request. 	First, 	they 	challenge 	the
reasonableness of the requested hourly rate. 	Then, they argue that there are three
separate categories of excessively billed time.
First, regarding the reasonableness of the requested rate, Defendants argue that
$325 is too high, and that reasonable rates would instead be $300 for Brian Meadors and
$275 for Terrence Cain. 	In support of this position, Defendants argue that neither of
Plaintiffs’ attorneys is a full-time litigator or partner at a law firm, and that neither has “vast
experience in First Amendment litigation.” 	See Doc. 127, p. 2. 	It is certainly true that
neither attorney is currently employed at a law firm, but of course this is not the only way
to obtain litigation experience and subject-matter expertise. Terrence Cain is a tenured
law professor who teaches courses on, among other things, constitutional law and federal
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civil rights litigation. See Doc. 107-2, ¶ 3. He has also served as lead appellate counsel
in at least 73 cases over the last 22 years. See id. at ¶ 5. And although Brian Meadors
is currently general counsel for a corporation, he has extensive litigation experience
including more than 20 jury trials and 60 bench trials taken to verdict. See Doc. 107-3, p.
5. 	He also has been published twice on First Amendment issues, and was counsel of
record in a previous lawsuit involving a library and the First Amendment. 	See id. at
¶¶ 4.2.1, 4.8. 	Both of these men have the quantity and quality of experience and
expertise that would justify charging a premium market rate for their services in this
matter, and one certainly cannot dispute that they obtained outstanding results for the
clients here: summary judgment and complete injunctive relief in their favor.
Although $325 is likely higher than the premium market rate for litigators in
Crawford County, Arkansas, this Court has nevertheless found that to be an appropriate
rate in situations where plaintiffs had to search outside their geographic area to find
counsel 	with 	significant 	subject-matter 	expertise 	and 	experience 	litigating 	First
Amendment issues. 	See, e.g., Human Rights Defense Center v. Baxter Cnty., Ark., 2023
WL 7404236, at *8–*9 (W.D. Ark. Oct. 30, 2023) (Brooks, J.); see also Snider v. City of
Cape Girardeau, 752 F.3d 1149, 1159–60 (8th Cir. 2014) (“In a case where the plaintiff
does not use local counsel, the district court is not limited to the local hourly rate, if the
plaintiff has shown that, in spite of his diligent, good faith efforts, he was unable to find
local counsel able and willing to take the case.”). Likewise, the Court finds so here.
As for the number of hours billed, Defendants contend that Plaintiffs should not be
awarded attorney fees for three categories of billed time: (1) 7.8 of the 10.8 hours that Mr.
Meadors billed for assisting Dr. Daniel N. Joudrey with the composition of his expert
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report; (2) 10.3 hours that Plaintiffs’ counsel billed for work involving a related but separate
lawsuit: Fayetteville Public Library et al. v. Crawford Cnty., Ark. et al., Case No. 5:23-cv-
5086 (W.D. Ark.) (“the Act 372 case”); and (3) 36.31 hours that Plaintiffs’ counsel billed
for work on pre-judgment filings that were unsuccessful. 	Regarding the time billed for
expert assistance, the Court finds that this figure to be reasonable and not excessive,
especially considering that Dr. Joudrey’s opinions were eventually the target of an
unsuccessful (Doc.102) Motion to Exclude (Doc. 60) under Federal Rule of Evidence 702
and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
As for time spent on the Act 372 case, Professor Cain billed 5.0 hours for traveling
to and attending the Act 372 preliminary injunction hearing, and Mr. Meadors billed 5.3
hours for things like reviewing filings and orders in that case and meeting with counsel in
that case. 	The Court finds that these hours are also reasonable and not excessive,
because the Act 372 case—which was litigated in this Court before the undersigned—
was closely related to the instant matter. Both were cases involving libraries and the First
Amendment, in which Crawford County was a defendant and in which Crawford County
was represented by PPGMR. It was reasonable and prudent for Plaintiffs’ counsel in the
instant case to monitor and stay abreast of developments in the Act 372 case so as to be
aware of any implications that one might have for the other.
And as for time spent drafting filings that were ultimately unsuccessful, the general
rule is that such fees are recoverable so long as the issues on which the plaintiff lost are
related to those on which the plaintiff won. See Jenkins by Jenkins v. State of Mo., 127
F.3d 709, 716. 	“If the plaintiff has won excellent results, he is entitled to a fully
compensatory fee award, which will normally include time spent on related matters on
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which he did not win.” Id. Here, all of Plaintiffs’ unsuccessful pre-judgment filings were
related to the issues on which Plaintiffs ultimately won; and, as already noted, Plaintiffs’
victory was essentially complete, in that they received full injunctive relief on summary
judgment. The Court has reviewed all hours billed and submitted for review by Plaintiffs’
counsel in this matter, and finds them to be reasonable, not excessive, and fully
compensable.
Plaintiffs’ initial fee Motion also seeks to recover $4,600.56 in costs. Defendants
“take no issue with Plaintiffs’ bill of costs,” (Doc. 127, p. 8), and neither does the Court.
Therefore, Plaintiffs’ initial fee Motion will be GRANTED in full, and Plaintiffs will be
awarded $108,377.75 in attorney fees and $4,600.56 in costs, for a total of $112,978.31.
However, Plaintiffs’ three supplemental fee Motions fare less well. 	Plaintiffs’ first
(Doc. 116) and second (Doc. 123) supplemental fee Motions seek to recover fees for time
spent drafting materials in support of their unsuccessful post-judgment Motion to Amend
the Judgment (Doc. 114), which was denied in Subsection II.A. 	The Eighth Circuit
provides the following guidance for such requests:
When plaintiff initially prevails and obtains injunctive relief in [§ 1983]
litigation, some types of post-judgment activities are generally compensable
as necessary adjuncts to the initial litigation, whereas other types of
activities 	are 	more 	like 	a 	new, 	separate 	lawsuit 	and 	require 	a 	fee
determination independent of the underlying case. 	Reasonable fees for
defending the injunction from attack are compensable, but a prevailing party
who 	aggressively 	seeks 	a 	greater 	victory 	and 	fails 	is 	entitled 	to 	a
proportionally lesser fee award than a prevailing party who merely defends
his victory, even if the defense is less than completely successful. 	Work
that is more like a new, separate lawsuit requires a fresh determination of
entitled to fees.
El-Tabech v. Clarke, 616 F.3d 834, 841–42 (8th Cir. 2010) (internal quotation marks,
citations, and alterations omitted).
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As the Court explained in its discussion above en route to denying Plaintiffs’ Motion
to Amend, Plaintiffs’ Motion was “not asking for the injunction to be enforced on its own
terms but rather for its language to be amended—and expanded.” Supra, p. 6. As such,
the Motion was not “defending the injunction from attack,” but rather was “aggressively
seek[ing] a greater victory and fail[ed].” 	El-Tabech, 616 F.3d at 841–42. 	Therefore,
Plaintiffs are not entitled to recover their attorney fees for that post-judgment motion
practice, so their first (Doc. 116) and second (Doc. 123) supplemental fee Motions will be
DENIED.
Finally, Plaintiffs’ third supplemental fee Motion (Doc. 140) makes three separate
requests: (1) an attorney fee award for 10.0 hours that Mr. Meadors spent working on
Plaintiffs’ Reply in support of their initial fee Motion and on their third supplemental fee
Motion; (2) for a “fee enhancement” of pre-judgment interest to compensate for the delay
in payment that the post-judgment motion practice caused; and (3) for post-judgment
interest 	to 	begin 	running 	from 	the 	date 	that 	the 	original 	Judgment 	was 	entered
(September 30, 2024, see Doc. 106), rather than from today’s date when the Amended
Judgment will be entered awarding Plaintiffs attorney fees.
The Court will deny Plaintiffs’ first request because Mr. Meadors’s affidavit in
support of this Motion does not itemize the time spent on the separate tasks for which he
seeks compensation, which prevents this Court from determining whether the time spent
for each task was reasonable. The Court will deny Plaintiffs’ second request because the
delay in an award of attorney fees in this matter was due in no small part to Plaintiffs’
unsuccessful post-judgment motion practice, which turned what should have been a fairly
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straightforward attorney-fee ruling into the complicated morass that has occupied this
entire Opinion and Order.
Plaintiffs’ third request requires a bit more discussion. 	Generally, “[i]nterest shall
be allowed on any money judgment in a civil case recovered in a district court,” and “[s]uch
interest shall be calculated from the date of the entry of the judgment.” 	28 U.S.C.
§ 1961(a). Plaintiffs cite the case of Jenkins by Agyei v. State of Missouri for the following
proposition:
If a judgment is rendered that does not mention the right to attorneys’ fees,
and the prevailing party is unconditionally entitled to such fees by statutory
right, interest will accrue from the date of judgment. 	If, however, judgment
is rendered without mention of attorneys’ fees, and the allowance of fees is
within the discretion of the court, interest will accrue only from the date the
court recognizes the right to such fees in a judgment. . . . [I]nterest accrues
from the date that the party becomes unconditionally entitled to fees, even if
those fees are not yet quantified. . . . [I]nterest on an attorney fee award . . .
runs from the date of the judgment establishing the right to the award, not
the date of the judgment establishing its quantum.
931 F.2d 1273, 1275–76 (8th Cir. 1991) (quoting Copper Liquor, Inc. v. Adolph Coors Co.,
701 F.2d 542, 545 (5th Cir. 1983)).
Plaintiffs contend that “[i]n a successful § 1983 case like this one, Plaintiffs’
attorney’s fee award is not discretionary, and this is confirmed by Jenkins, supra, which
computed post-judgment interest from the time of judgment, not fee quantification.” (Doc.
140, ¶ 8). This is not correct. 	First, and most importantly, the relevant statute explicitly
states that in a § 1983 action, “the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C.
§ 1988 (emphasis added). 	Now it is certainly true that, as this Court noted above, the
Supreme Court has clarified that, absent special circumstances, “a district court not
merely ‘may’ but must award fees to the prevailing plaintiff.” 	Indep. Fed’n of Flight
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Attendants v. Zipes, 491 U.S. 754, 760–61 (1989) (emphasis in original). 	And indeed,
that prompted this very Opinion and Order to refer above to an award of fees here as
“near-mandatory.” But the critical words here are “near” and “special circumstances.” To
quote the Supreme Court again: “a prevailing plaintiff [in a § 1983 case] should ordinarily
recover an attorney’s fee unless special circumstances would render such an award
unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting S. Rep. No. 94–1011,
p. 4 (1976)) (internal quotations and citations omitted). 	In other words, a district court’s
discretion is cabined here, but it is not nonexistent; the Court must still determine, in its
discretion, whether special circumstances exist which would make an award of fees
unjust. As such, post-judgment interest properly runs not from the date when Judgment
was entered in Plaintiffs’ favor which did not mention any right to attorney fees, but rather
from the date when a judgment is entered recognizing the right to such fees, regardless
of whether it quantifies those fees. And that date is today.
Jenkins by Agyei does not differ in this regard. The Eighth Circuit ultimately held
in that case that the prevailing “class is entitled to post-judgment interest on its attorneys’
fees accruing from the February 24, 1986, order declaring the class’s entitlement to those
fees.” 	931 F.2d at 1277. 	Therefore, Plaintiffs’ third supplemental fee Motion will be
DENIED.
D. 	PPGMR’s Motion to Withdraw (Doc. 135)
The Court turns finally to PPGMR’s Motion to Withdraw as Counsel of Record
(Doc. 135). 	PPGMR states that it should be permitted to withdraw as counsel because
“irreconcilable 	differences 	have 	arisen between 	Defendants 	which 	have materially
impacted PPGMR’s ability to represent Defendants in this case.” 	Id. at ¶ 1. 	Those
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differences, of course, have already been extensively discussed above in Subsections
II.A and II.B of this Opinion and Order. PPGMR further states that it “has given notice to
Defendants and their counsel of PPGMR’s intent to withdraw,” and “requests that the
Crawford County Library Board Defendants be given ample time to retain new counsel.”
Id. 	On the same day that PPGMR filed its Motion to Withdraw, Gentry C. Wahlmeier
entered his appearance as counsel for all Defendants in this matter except Ms.
McConnough and Library Board Members Keith Pigg, Tammara Hamby, Kalein Schaper,
Kayla Rich, and Robby Dyer. See Doc. 133. Also that same day, the Court granted Ms.
McDonnough’s Motion to Substitute Attorney, permitting attorney Joshua W. Bugeja to
replace PPGMR as counsel of record for Ms. McDonnough in this matter. See Doc. 134.
However, to date no new attorney has entered his or her appearance for Defendants Pigg,
Hamby, Schaper, Rich and Dyer (“the Library Board Defendants”).
It seems likely to the Court that PPGMR’s Motion is now moot, given that this
Opinion and Order resolves all other pending motions and no further motion practice is
anticipated. But if the Court is mistaken on the latter point and more filings in fact loom
on the horizon, then the Court is unpersuaded that the Library Board Defendants would
not be prejudiced by granting PPGMR’s Motion, given that no attorney has entered any
appearance for them in the more than four months that have passed since PPGMR filed
its Motion. 	Therefore, PPGMR’s Motion to Withdraw will be DENIED, but without
prejudice to refiling if PPGMR believes circumstances warrant it.
III. 	CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Amend (Doc. 114) and
Separate Defendant McDonnough’s Motions to Strike (Doc. 128) and Disgorge (Doc.
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136), are all DENIED; Plaintiffs’ Motion for Costs & Attorney Fees (Doc. 107) is
GRANTED; Plaintiffs’ Supplemental (Doc. 116), Second Supplemental (Doc. 123), and
Third Supplemental (Doc. 139) Motions for Attorney Fees are all DENIED; and PPGMR’s
Motion to Withdraw (Doc. 135) is DENIED.
IT IS FURTHER ORDERED that Defendants shall reimburse Plaintiffs their
reasonable attorney fees in the total amount of $108,377.75 and costs in the amount of
$4,600.56, for a total award of $112,978.31. An Amended Judgment reflecting this award
will be filed contemporaneously with this Opinion and Order.
IT IS SO ORDERED this 16 th day of April, 2025.
________________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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