Page 4

2006 U.S. Dist. LEXIS 74303, *

The Court also concludes that the requested
attorney fee award must be further reduced for
the amounts Plaintiff seeks for expert witness
fees. Plaintiff seeks $ 2,000.00. in fees that it
paid to James Foulds, a planning expert. Plain-
tiff contends that it is entitled to such expert
witness fees under 42 U.S.C. § 1988(b). That
subsection, however, provides that in "award-
ing an attorney's fee under subsection (b) of
this section in any action or proceeding to
enforce a provision of section 1981 or 198la
of this title, the court, in its discretion, may
include expert fees as part of the attorney's
fee." 42 U.S.C. § 1988(c) (emphasis added).
Thus, by its terms, subsection (b) only autho-
rizes discretionary expert fees in actions to en-
force a provision of 42 U.S.C. § 1981 or §
1981a. In this action, Plaintiff asserted only a
claim under RLUIPA - it did not assert any
claims seeking to enforce any provisions of §
1981 or § 1981a. Plaintiff is therefore not en-
titled to the claimed expert fees because they
are not authorized [*9] by the governing sta-
tute. Ramos Padro v. Commonwealth of Puerto
Rico, 100 F. Supp. 2d 99, 109 (D. Puerto Rico
2000).

Accordingly, Plaintiff's requested attorney
award will also be reduced by $ 2,000 for the
amount sought by Plaintiff for Mr. Fould's'ex-
pert witness fees. The total of Plaintiff's attor-
ney fee award is therefore $ 21,982.70.

CONCLUSION & ORDER

For the reasons set forth above, Plaintiff's
Motion for Attorney Fees [Docket Entry Nos.
28 & 32] is hereby GRANTED IN PART AND
DENIED IN PART. Plaintiff's Motion is DE-
NIED in that: 1) the full amount of attorney
fees requested by Plaintiff is not granted and 2)
Plaintiffs request for expert witness fees is de-
nied. Plaintiffs Motion is GRANTED in that
Plaintiff is awarded $ 21,982.70 in attorney
fees as a prevailing party in this action.

IT IS SO ORDERED.
S/Sean F. Cox

United States District Judge
Dated: October 12, 2006



2006 U.S. Dist. LEXIS 74303, *

that he undertook this representation on behalf
of a non-profit client that presumably has li-
mited resources.

Nevertheless, it is still the burden of the
party seeking compensation to provide "evi-
dence supporting the hours worked and rates
claimed." Hensley, 461 U.S. at 433. The court
is then required to examine the claimed hours
and exclude those hours that were not "reason-
ably expended." In determining the number of
hours reasonably expended, the Court should
give the Plaintiff credit only for the [*6] hours
of legal services reasonably supportive of
Plaintiffs RLUIPA claim. See e.g, Hughes v.
Repko, 578 F.2d 483, 487 (3d Cir. 1978).

Defendant concedes that Mr. Starr's hourly
rate of $ 150.00 per hour is a reasonable rate
based on the prevailing market. (Defs.' Resp. at
5). Even so, Defendant asserts that if the Court
is inclined to award attorney fees, the amount
requested should be reduced by the Court be-

cause several of the tasks billed for were not
reasonably incurred in this litigation. Although
in its Response Brief the Township challenged
the reasonableness of the work performed by
Plaintiffs counsel, asserting that many of the
submitted entries on the billing statements "are
somewhat cryptic" (Defs.' Resp. at 16), the
Township did not challenge any specific time
entries.

Plaintiff requests a total of $ 26,382.70 in
attorney fees. The Court agrees that the fees
requested by Plaintiff should be reduced be-
cause Plaintiff has not met that burden with re-
spect to a few of the entries in the submitted
billing statements. Specifically, the Court con-
cludes that, based upon the descriptions of the
work performed, the entries from the following
dates do not appear [*7] to have been reason-
ably incurred in pursing Plaintiff's RLUIPA
claims:

Entry Date: Amount:
1/31/05 450.00
2/24/05 450.00
412/05 450.00
4/19/05 300.00
1/7/06 300.00
Total $ 1,950.00

The above entries appear to relate to legal
services unrelated to pursing Plaintiff's RLUI-
PA claim (i.e., services relating to review of the
Open Meetings Act, research relating to tax law
and tax exemptions for charitable non-profit
corporations, services related to certificate of
occupancy, and research relating to property
tax issues.)

In addition, the Court concludes that Plain-
tiff is not entitled to fees relating to preparation
of the preliminary injunction motion because
Plaintiff was not a prevailing party with respect

to that motion. The November 12, 2005 billing
entry, in the amount of $ 900.00, represents
fees incurred in drafting the complaint and fees
incurred in drafting the preliminary injunction
motion. The Court will therefore deduct
one-half of the claimed amount for that entry, $
450.00.

Accordingly, the Court concludes that
Plaintiff's requested attorney fee award of $
26,382.70 should be reduced by $ 2,400.00.

C. Plaintiff Is Not Entitled [*8] To Expert
Fees Under 42 U.S.C. § 1988(c).



EXHIBIT 17



Ng » + 8
@ LexisNexis

Page 1

20 of 53 DOCUMENTS

NEW LIFE MINISTRIES, PLAINTIFF, v. CHARTER TOWNSHIP
OF MT. MORRIS, DEFENDANT.

Case No. 05-74339

UNITED STATES DISTRICT COURT FOR THE EASTERN DIS-
TRICT OF MICHIGAN, SOUTHERN DIVISION

2006 U.S. Dist. LEXIS 74303

October 12, 2006, Decided

PRIOR HISTORY: New Life Ministries v.
Charter Twp. of Mt. Morris, 2006 U.S. Dist.
LEXIS 63848 ( E.D. Mich., Sept. 7, 2006)

COUNSEL: [*1] For New Life Ministries,
Plaintiff: H. James Star, East Lansing, MI.

For Mt. Morris Charter Township, Defendant:
Steven P. Jamarino, Flimt, MI.

JUDGES: Honorable Sean F. Cox, United
States District Judge.

OPINION BY: Sean F. Cox
OPINION

OPINION & ORDER GRANTING IN
PART AND DENYING IN PART PLAIN-
TIFF'S MOTION FOR ATTORNEY FEES

On November 14, 2005, Plaintiff, New Life
Ministries, filed this action against Defendant,
Charter Township of Mt. Morris ("the Town-
ship"), alleging that the Township's zoning or-
dinance violates The Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. §

2000cc ("RLUIPA"). In an Opinion & Order
issued on September 7, 2006, the Court granted
Plaintiff's Motion for Summary Judgment. The
matter is currently before the Court on Plain-
tiffs Motion for Attorney Fees. The parties
have fully briefed the issues and the Court be-
lieves that oral argument would not signifi-
cantly aid the decisional process. See Local
Rule 7.1(e)(2), U.S. District Court, Eastern
District of Michigan. For the reasons set forth
below,

Plaintiffs motion shall be granted in part
and denied in part.

BACKGROUND

The factual background of this matter [*2]
is fully set forth in the Court's September 7,
2006 Opinion & Order Granting Plaintiff's Mo-
tion for Summary. Following the Court's ruling,
Plaintiff filed a motion for attorney fees, pur-
suant to 42 U.S.C. § 1988, seeking $ 26,382.50
in attorney fees. The fees sought by Plaintiff
consist of: 1) attorney fees representing the
work of Plaintiff's counsel, H. James Starr; and
2) "consultation fees" paid to James Foulds

aq

ee



Page 2

2006 U.S. Dist. LEXIS 74303, *

who Plaintiff contends was a planning expert in
the case.

As to the work performed by Mr. Starr,
Plaintiff submitted time records showing the
work performed, and amounts billed, for vari-
ous legal services performed between January
7, 2005, and August 31, 2006. Mr. Starr
charges Plaintiff an hourly rate of $ 150.00 per
hour.

The records submitted by Plaintiff indicate
that James Folds was paid a $ 1000.00 "retainer
fee" on January 31, 2005, and that he was paid
a "consultation fee" of $ 1,000.00 on January
12, 2006.

ANALYSIS

Plaintiff seeks an attorney fee award under
42 U.S.C. § 1988, which provides that in ac-
tions or proceeding to enforce provisions of
certain enumerated statutes, including RLUI-
PA, "the court, in [*3] its discretion, may al-
low a reasonable attorney's fee as part of the
costs." 42 U.S.C. § 1988(b). The statute further
provides that in "awarding an attorney's fee
under subsection (b) of this section in any ac-
tion or proceeding to enforce a provision of
section 1981 or 1981a of this title, the court, in
its discretion, may include expert fees as part of
the attorney's fee." 42 U.S.C. § 1988(c).

A. Plaintiff Is Entitled To An Attorney Fee
Award Under 42 U.S.C. § 1988(b).

Although § 1988's provision that "the court,
in its discretion, may allow" an attorney fee
award to the prevailing party "has a permissive
ring to it, the Supreme Court has read it as
mandatory where the plaintiff prevails and spe-
cial circumstances are absent." Deja Vu of
Nashville, Inc. v. The Metropolitan Govern-
ment of Nashville, 421 F.3d 417, 419-20 (6th
Cir. 2005).

Here, there is no dispute that Plaintiff is the
prevailing party in this action with respect to its
RLUIPA claim, the only claim asserted in

Plaintiff's complaint. ' Thus, it is the Town-
ship's burden to. "make a strong showing that
‘special circumstance's [*4] warrant a denial
of fees." Id. at 422. The Township, however,
has not shown that any special circumstances
warrant a denial of attorney fees in this case.
Accordingly, the Court concludes that Plaintiff
is entitled to an award of attorney fees under §
1988(b) as a prevailing plaintiff.

1 As Defendant notes, however, Plain-
tiff was not a prevailing party with re-
spect to its motion for preliminary in-
junction, which was denied by this
Court. Thus, as will be discussed later,
the Court concludes that Plaintiff is not
entitled to attorney fees incurred in
bringing that motion.

B. The Court Concludes That Plaintiffs’
Requested Attorney Fee Award Must Be Re-
duced.

In Hensley, the Supreme Court determined
that the most useful starting point for deter-
mining the amount of a reasonable fee is the
"lodestar" approach - the number of hours rea-
sonably expended multiplied by a reasonable
hourly rate. Hensley v. Eckerhart, 461 U.S.
424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40
(1983).

In determining [*5] the reasonableness of
the hours claimed, a trial court can consider
various factors, including: the time and labor
required; the novelty and difficulty of the ques-
tions presented; the experience, reputation and
ability of the attorney; and the results obtained.
Isabel v. City of Memphis, 404 F.3d 404, 415
(6th Cir. 2005). The most critical factor, how-
ever, is the degree of success obtained. Jd. at
416.

Here, Plaintiff received all the relief that it
sought in its complaint. Thus, an excellent re-
sult was achieved for Plaintiff. Moreover, the
Court notes that Plaintiff's counsel took on this
unique case in a developing area of the law and