section 1988 fees in Indiana

2008Section 1988 fees may be awarded where the plaintiff prevails “on a wholly statutory, non-civil-rights claim pendent to a substantial constitutional claim,” Maher v. Gagne, 448 U.S. 122, 132 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980), as long as the non-fee claim arises out of a “common nucleus of operative fact,” id. at 132 n. 15, 100 S.Ct. 2570 .

2008Section 1988 fees may be awarded where the plaintiff prevails “on a wholly statutory, non-civil-rights claim pendent to a substantial constitutional claim,” Maher v. Gagne, 448 U.S. 122, 132 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980), as long as the non-fee claim arises out of a “common nucleus of operative fact,” id. at 132 n. 15, 100 S.Ct. 2570 .

2008Id. [T]he extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney’s fees under 42 U.S.C. § 1988 .

2008Id. [T]he extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees under 42 U.S.C. § 1988 .

2008Jaffee v. Redmond, 142 F.3d 409 , 412 (7th Cir.1998).

2007Jaffee v. Redmond, 142 F.3d 409 , 413 (7th Cir.1998) (citing Hensley, 461 U.S. at 433 , 103 S.Ct. 1933 ).

1993In Harlan Sprague Dawley L, 583 N.E.2d 214 , the petitioner claimed it had suffered a violation of Indiana's "ascertainable standards" rule of administrative law, see Podgor v. Indiana University (1978), 178 Ind.App. 245 , 381 N.E.2d 1274 , trans. denied, and in turn, a violation of § 1983.

1992In Harlan Sprague Dawley, Inc. v. Indiana Dep’t of State Revenue (1991), Ind.Tax, 583 N.E.2d 214 , this court held it had subject matter jurisdiction to entertain HSD’s § 1983 claim.

1992The following passage from Oldham v. Ehrlich (8th Cir. 1990), 617 F.2d 163 , eloquently analyzes the application of such statutes where the plaintiff is represented by a nonprofit legal organization: "Although a court may consider a large number of factors in arriving at a reasonable attorney's fee under 42 U.S.C. § 1988 (citation omitted), we conclude it is inappropriate to consider that the prevailing plaintiff's attorney was working for a legal aid organization.

1981In Oldham v. Ehrlich (8th Cir., 1980) 617 F.2d 163 the court stated: “Although a court may consider a large number of factors in arriving at a reasonable attorney’s fee under 42 U.S.C. § 1988 , e. g., Zoll v. Eastern Allamakee Community School District, 588 F.2d 246 , 252 & n. 11 (8th Cir. 1978), we conclude it is inappropriate to consider that the prevailing plaintiff’s attorney was working for a legal aid organization.

2016Turner Corp., 963 N.E.2d at 460 .

2008In In re Estate of Inlow, 735 N.E.2d 240 (Ind.Ct.App.2000), we held that the law firm representing the personal representative of an estate was not entitled to fees incurred in preparing and defending the fee petition.

2008Commissioner, INS v. Jean, 496 U.S. 154, 161-62 , 110 S.Ct. 2316 , 110 L.Ed.2d 134 (1990) (citing with approval Gagne v. Maher, 594 F.2d 336 , 343-44 (2nd Cir.1979) (holding that trial court’s denial of attorney fees for time spent in obtaining them would “dilute” the value of a fees award by forcing attorneys into extensive uncompensated litigation in order to gain any fees under Section 1988), aff'd on other grounds by 448 U.S. 122 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980)).

2008Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t of Health and Human Res., 532 U.S. 598, 603 , 121 S.Ct. 1835 , 149 L.Ed.2d 855 (2001). “[Enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Id. at 604 . 2 Finally, a section 1988 award of attorney fees does not necessarily require that the plaintiff succeed on a constitutional claim.

2008Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t of Health and Human Res., 532 U.S. 598, 603 , 121 S.Ct. 1835 , 149 L.Ed.2d 855 (2001). “[Enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration of the legal relationship of the parties’ necessary to permit an award of attorney’s fees.” Id. at 604 . 2 Finally, a section 1988 award of attorney fees does not necessarily require that the plaintiff succeed on a constitutional claim.

2008See, e.g., Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 411 (7th Cir.1999) (upholding district court’s award of fees for preparation of fee request under Fair Labor Standards Act); Kurowski v. Krajewski, 848 F.2d 767, 777 (7th Cir.1988) (affirming award for "time spent pursuing requests for fees” in claim for attorney fees under 42 U.S.C. § 1988 )[J Walton, 825 N.E.2d at 825 n. 2. 9 .

2008Commissioner, INS v. Jean, 496 U.S. 154, 161-62 , 110 S.Ct. 2316 , 110 L.Ed.2d 134 (1990) (citing with approval Gagne v. Maher, 594 F.2d 336 , 343-44 (2nd Cir.1979) (holding that trial court’s denial of attorney fees for time spent in obtaining them would “dilute” the value of a fees award by forcing attorneys into extensive uncompensated litigation in order to gain any fees under Section 1988), aff'd on other grounds by 448 U.S. 122 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980)).

2008Commissioner, INS v. Jean, 496 U.S. 154, 161-62 , 110 S.Ct. 2316 , 110 L.Ed.2d 134 (1990) (citing with approval Gagne v. Maher, 594 F.2d 336 , 343-44 (2nd Cir.1979) (holding that trial court’s denial of attorney fees for time spent in obtaining them would “dilute” the value of a fees award by forcing attorneys into extensive uncompensated litigation in order to gain any fees under Section 1988), aff'd on other grounds by 448 U.S. 122 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980)).

2007We further note that the calculation of what constitutes a “reasonable” fee under Section 1988 is “not conditioned upon and need not be proportionate to an award of money damages.” City of Riverside v. Rivera, 477 U.S. 561, 576 , 106 S.Ct. 2686, 2695 , 91 L.Ed.2d 466 (1986) (plurality opinion).

2007We further note that the calculation of what constitutes a “reasonable” fee under Section 1988 is “not conditioned upon and need not be proportionate to an award of money damages.” City of Riverside v. Rivera, 477 U.S. 561, 576 , 106 S.Ct. 2686, 2695 , 91 L.Ed.2d 466 (1986) (plurality opinion).

2007Id. at 544 (citing Maher v. Gagne, 448 U.S. 122, 132 , 100 S.Ct. 2570 , 65 L.Ed.2d 653 (1980)).

2007As explained by the Third District of this court in City of Gary v. Redmond, 489 N.E.2d 543 (Ind.Ct.App.1986), the United States Supreme Court has concluded that an award of attorney fees under Section 1988 does not necessarily require a plaintiffs success under one of the enumerated sections or titles found in Section 1988.

2007In Tioga, Medicaid providers that filed suit against the State were awarded attorney fees pursuant to 42 U.S.C. § 1988 , which allows a “prevailing party” to be awarded attorney fees. 622 N.E.2d at 937 .

2007Dist., 489 U.S. at 792 , 109 S.Ct. 1486 ). 5 In the present case, the Parents initially argue that they are entitled to recover attorney fees upon two grounds: first, they claim that they “prevailed” upon both their due process claim and their state constitutional claim; alternatively, they argue that even if they did prevail only upon their state law claim, they are still entitled to recovery of attorney fees under Section 1988 because the relevant case law requires only that their federal claim be “substantial” and arise out of a common nucleus of operative facts with their successful state

2007Dist., 489 U.S. at 792 , 109 S.Ct. 1486 ). 5 In the present case, the Parents initially argue that they are entitled to recover attorney fees upon two grounds: first, they claim that they “prevailed” upon both their due process claim and their state constitutional claim; alternatively, they argue that even if they did prevail only upon their state law claim, they are still entitled to recovery of attorney fees under Section 1988 because the relevant case law requires only that their federal claim be “substantial” and arise out of a common nucleus of operative facts with their successful state

2005See, e.g., Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 411 (7th Cir.1999) (upholding district court's award of fees for preparation of fee request under Fair Labor Standards Act); Kurowski v. Krajewski, 848 F.2d 767, 777 (Tth Cir.1988) (affirming award for "time spent pursuing requests for fees" in claim for attorney fees under 42 U.S.C. § 1988 ), cert. denied, 488 U.S. 926 , 109 S.Ct. 309 , 102 L.Ed.2d 328 .

2005See, e.g., Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 411 (7th Cir.1999) (upholding district court's award of fees for preparation of fee request under Fair Labor Standards Act); Kurowski v. Krajewski, 848 F.2d 767, 777 (Tth Cir.1988) (affirming award for "time spent pursuing requests for fees" in claim for attorney fees under 42 U.S.C. § 1988 ), cert. denied, 488 U.S. 926 , 109 S.Ct. 309 , 102 L.Ed.2d 328 .