OCEAN CITY — Attorneys for the group of Boardwalk street performers who prevailed in their federal case against Ocean City’s busker ordinance filed a motion to recover fees and costs totaling over $175,000.
While a group of Boardwalk street performers were awarded just nominal damages following their victory over Ocean City in a federal suit challenging the busker ordinance, the real impact on the town’s wallet could be felt in the award of attorney fees and other costs associated with litigating the case. The town also had to pay its own legal fees to represent its position in court.
Late last year, a federal judge awarded $200 in damages to one plaintiff who was issued a civil citation in that amount for singing on the Boardwalk and $100 to each of the eight remaining plaintiffs named in the case.
The combined nominal damages awarded to the plaintiffs came to just around $1,000, but the real financial impact of the federal suit for the town could come in the form of legal fees and other costs associated with defending the suit. The plaintiffs’ attorneys this week filed a motion seeking $175,490 in costs and fees associated with presenting and ultimately prevailing in the case.
The motion itemizes the expenses incurred by the plaintiffs’ two attorneys in terms of billable hours, travel and other expenses during the lengthy litigation of the case. For example, the main attorney in the case is seeking $117,510, representing 391 hours at $300 per hour, while another attorney on the case is seeking $49,280, representing 246 hours at $200 per hour. The motion also seeks another $8,700 in incidental costs associated with the suit, bringing the total to $175,490.
One interesting element to come out of the motion filed on Tuesday was the street performers’ attorneys took on the case essentially pro bono, meaning they only stood to get paid if the plaintiffs were successful in challenging the constitutionality of Ocean City’s street performer ordinance.
“In lieu of being charged for legal services, the plaintiffs agreed that counsel could pursue attorneys’ fees and expenses if it was legally sound to do so,” the motion reads. “The attorneys’ fees in this case were entirely contingent on plaintiffs being a prevailing party in this case. And, the contingent nature of this arrangement justifies the fees sought herein, if not more.”
The motion for attorney fees and other costs filed this week points out the street performer plaintiffs prevailed on the most salient points in their federal case against the town over the busker ordinance.
“In the instant litigation, the plaintiffs enjoyed a high degree of success, substantiating full compensation for their attorneys,” the motion reads. “Plaintiffs essentially secured all the practical results that they prayed for in their complaint: freedom to perform on the Boardwalk without fear of arrest or citation, a judicial declaration confirming the violation of Plaintiffs’ constitutional rights, and an award of compensatory and nominal damages vindicating those important rights.”
The motion also points out the amount of time and effort expended by the plaintiffs’ attorneys in successfully presenting and ultimately prevailing in the case as reason for awarding the requested fees and costs.
“Plaintiffs presented this common legal theory in filing their complaint and amending it, defending against defendant’s motions to dismiss and for summary judgment, and in pursuing settlement,” the motion reads. “And all of their claims arose out of the same set of facts. It would be imprudent as well as impossible for this court to segregate out successful claims from unsuccessful claims. All of the work of counsel furthered the singular goal.”
The case was first filed in 2015 and challenged many of the provisions on the town’s latest attempt to regulate busking along the famed promenade. The plaintiffs were successful in arguing the town’s street performer ordinance violated their First Amendment rights to free speech. As a result, most of the provisions in the town’s ordinance have been struck down.
In simplest terms, the court’s ruling essentially pulls most of the teeth from the town’s street performer ordinance including the pre-registration requirement, the limitations on spaces utilized by buskers other than North Division Street and Dorchester Street where vehicle access points for emergency vehicles are located and the ban on any performances before 10 a.m.
The town won on a few points, including the section of the ordinance that keeps important access points open for emergency vehicles such as police, fire, EMS and the Beach Patrol, for example. The motion filed this week points out the complexity of the case as a reason for awarding the requested fees and other costs.
“This case was no run of the mill litigation,” the motion for damages reads. “It involved a lengthy and cumbersome municipal ordinance that violated the First Amendment rights of plaintiffs in a myriad of ways, all of which had to be analyzed and briefed. The intersecting nature of the laws and facts at issue in this case greatly enhanced the difficulty of bringing this litigation.”