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Romberg v. Nichols

filed*fn*: February 24, 1995.

MICHAEL ROMBERG; DEBRA ROMBERG, PLAINTIFFS-APPELLANTS,
v.
ROBERT NICHOLS; DENNIS LAZZARI; HUGH LLOYD; BENITO JURADO; THOMAS LAING; ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-83-8448-RG. Richard A. Gadbois, Jr., District Judge, Presiding.

Before: J. Clifford Wallace, Chief Judge; David R. Thompson and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge O'Scannlain.

Author: O'scannlain

O'SCANNLAIN, Circuit Judge:

When a jury returns a plaintiff's verdict in a civil rights case in the amount of one dollar, must the court also award the plaintiff attorney's fees?

I

In late December 1983, Michael and Debra Romberg filed suit under 42 U.S.C. § 1983 against several Los Angeles sheriff's deputies and against the County of Los Angeles itself. The Rombergs alleged, among other things, that the deputies had violated their constitutional rights by not obtaining a search warrant before entering their home in response to a call about a domestic disturbance in 1982.*fn1 The Rombergs sought $2 million in general punitive damages, along with attorney fees and costs. After trial, a jury found in favor of the Rombergs, but only awarded $1 to each of them. In his closing argument, Stephen Yagman, the Rombergs' attorney, informed the jury that, in his view, his clients were entitled to damages "'in some sum like one dollar.'"*fn2

The Rombergs, asserting their status as prevailing parties under 42 U.S.C. § 1988, sought an award of attorney's fees in the amount of $45,000. The district court granted the Rombergs' motion, but only in the amount of $5,000.

The deputies appealed, arguing that even the reduced award was unmerited. This court found that it was "unable to review the order as written," and vacated and remanded. Romberg v. Nichols, No. 87-6724 at 1 (9th Cir. Aug. 16, 1988). In response, the district court issued a more detailed order, this time awarding the Rombergs attorney's fees in the amount of $29,137.50. Romberg v. Nichols, No. 83-8448 (C.D. Cal. Jan. 20, 1989).

The deputies appealed once again, arguing that the Supreme Court's decision in Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782 (1989), issued after the district court's order, precluded any award of fees to the Rombergs. This court again vacated the district court's order and remanded for a specific determination of whether Texas State Teachers in fact precluded the Rombergs from recovering fees. Romberg v. Nichols, Nos. 89-55202 & 89-5218 (9th Cir. May 25, 1990) [904 F.2d 41 (Table)]. The district court summarily rejected this contention, reinstating the $29,137.50 award. Romberg v. Nichols, No. 83-8448 (C.D. Cal. Aug 17, 1990).

The deputies appealed once again, but this time the Rombergs cross-appealed, insisting the district court's order was unjustifiably low. We affirmed the award. Romberg v. Nichols, 953 F.2d 1152 (9th Cir.), as amended, 970 F.2d 512 (1992). The Rombergs sought Supreme Court review. The Court granted certiorari and remanded the case for reconsideration in light of the Court's recent opinion in Farrar v. Hobby, 113 S. Ct. 566 (1992). We, in turn, once again vacated the award of fees and remanded for reconsideration. Romberg v. Nichols, 993 F.2d 1453 (1993).

On remand, the district court, applying the principles articulated in Farrar, denied the Rombergs' fee request altogether, from which order the Rombergs now appeal.

II

It is undisputed that the Rombergs are "prevailing parties" in this suit. As Farrar established, even a plaintiff who wins only nominal damages is a prevailing party under section 1988. Farrar, 113 S. Ct. at 573. The Rombergs' status as prevailing party does not necessarily entitle them to attorney's fees, however. Indeed, as the Court emphatically explained, "in some circumstances, even a plaintiff who formally 'prevails' under § 1988 should receive no attorney's fees at all." Id. at 575. Rather, "the most critical factor in determining the reasonableness of a fee award is the degree of success obtained." Id. at 574 (internal quotation and citation omitted).

In light of the new Farrar standard, we must now conclude that the Rombergs are a perfect example of plaintiffs who "should receive no attorney's fees at all." As in Farrar, the Rombergs requested a substantial sum, but received only one dollar each; although they prevailed, the Rombergs did not succeed. "When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for ...


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