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Kushner v. Buhta

United States District Court, D. Minnesota

March 29, 2019

Jordan S. Kushner, Plaintiff,
Lieutenant Troy Buhta, Officer Ashlee Lange, Officer Kathleen Temple, Sergeant Kristin Tyra, Linda Lokensgard, Eric W. Kaler, Defendants.





         This matter is before the Court on the Motion for Attorney's Fees [Doc. No. 143] and Objections to the Bill of Costs (“Objections”) [Doc. No. 168] filed by Plaintiff Jordan S. Kushner. For the reasons set forth below, the motion is denied and the objections are overruled.

         I. DISCUSSION

         In his Complaint, Kushner asserted fourteen claims, including several tort claims and claims brought under 42 U.S.C. § 1983 for violations of his constitutional rights. (See Compl. [Doc. No. 1].) The claims related to Kushner's removal from a November 2015 University of Minnesota Law School lecture, his subsequent arrest, and the issuance of a trespass warning. Defendants are employees of the University of Minnesota (“the University”). (See Id. ¶¶ 16-97.) The trespass warning prohibited Kushner from entering any University facilities or properties located on the west bank of the Minneapolis campus for a one-year period. (See Id. ¶¶ 2, 4, 68-69, 76, 86, 90-96.) While Kushner initially sought injunctive relief with respect to the trespass warning, (see Pl.'s Mot. for Prelim. Inj. [Doc. No. 13]), the University ultimately vacated it prior to its expiration, and the parties filed a stipulation concerning the terminated trespass warning in September 2016. (Stip. at 2 [Doc. No. 32].) The Court issued an Order adopting the parties' stipulation and denying as moot Plaintiff's motion for injunctive relief (the “Order Adopting the Stipulation”). (Sept. 28, 2016 [Doc. No. 35].)

         The case proceeded through discovery to summary judgment. On April 18, 2018, the Court granted Defendants' Motion for Summary Judgment and dismissed Kushner's Complaint with prejudice. (Sealed Summ. J. Order [Doc. No. 140].) On May 8, 2018, Defendants filed a Bill of Costs [Doc. No. 142], to which Kushner objected [Doc. No. 148]. The following day, May 9, 2018, Kushner filed the instant motion, seeking attorney's fees.

         The Clerk of Court entered a Cost Judgment [Doc. No. 167] on October 19, 2018, taxing $3, 549.15 in costs against Kushner and in favor of Defendants. Kushner sought review of the Clerk's action in his Objections, presently before the Court, and Defendants filed a response [Doc. No. 169].

         In his Motion for Attorney's Fees, Kushner acknowledges that his motion was filed six days after the filing deadline, but asks that the Court consider it on grounds of excusable neglect. (Pl.'s Mem. Supp. Mot. for Atty's Fees at 1-2 (“Pl.'s Atty's Fees Mem.”) [Doc. No. 144].) He argues that he is entitled to attorney's fees as the prevailing party for the portion of legal representation that resulted in the termination of the trespass warning. (Id. at 3-6.) He contends that the only reason the University agreed to lift the trespass warning was due to this lawsuit. (Id.) Kushner asserts that he prevailed in this regard because the Court ordered a change in the parties' relationship by approving the parties' stipulation to remove the trespass warning. (Id.) Pursuant to 42 U.S.C. § 1988, he seeks $30, 058.80 in attorney's fees and $418.60 costs. (Id.)

         Similarly, in his Objections to the Bill of Costs, Kushner argues that he was the prevailing party in this litigation and should not be taxed with costs. (Objs. at 1-2.) In the alternative, he requests that the Court stay costs pending appeal. (Id. at 6-9.)

         Defendants oppose Kushner's fee petition and his Objections to the Bill of Costs. They assert that the Court need not consider the merits of the fee petition because it was untimely filed and Kushner fails to demonstrate excusable neglect. (Def.'s Opp'n to Atty's Fees at 2-4 [Doc. No. 157].) If the Court considers the merits of Kushner's fee petition, Defendants argue that he was not a prevailing party, as the University voluntarily lifted the trespass warning. (Id. at 6-7.) Moreover, Defendants contend that the Court ultimately dismissed the due process claim on which Kushner based his claim for injunctive relief. (Id. at 7.) Finally, Defendants argue that even if Kushner were a prevailing party entitled to attorney's fees, he is not entitled to any reimbursement for his own time working on the case, and many of his billing entries are too vague to assess their validity. (Id. at 7- 8.)

         With respect to Kushner's Objections to the Bill of Costs, Defendants argue that Kushner was not the prevailing party and the costs in question bear no relationship to the stipulation to terminate the trespass warning. (Defs.' Resp. to Objs. at 2-3 [Doc. No. 169].) Defendants also oppose Plaintiff's request in the alternative for a stay, arguing that it is procedurally improper and substantively unsupported. (Id. at 7-8.)


         A. ...

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