Plaintiffs' Response to Defendants' Motion to Defer Award of Attorneys' Fees

    IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., 

PLAINTIFFS, 

VS. CA 75-297-P 

CITY OF MOBILE, ALABAMA, et al., 

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DEFENDANTS 

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION 

TO DEFER AWARD OF ATTORNEYS' FEES 
  

Come now the Plaintiffs and show unto the Court the following: 

1. The Plaintiffs are now a "prevailing party" and entitled 

to an award of attorneys' fees. 

2. The Plaintiffs will suffer irreparable harm by the delay 

of the award of fees in that interest at the statutory rate of 6% 

will not accrue on a judgment that is not entered. 

3. The Defendants' motion seeks to avoid the normal procedure 

of entry of judgment and the posting of a supersedeas bond. 

4. The Plaintiffs' witnesses for the hearing on attorneys’ 

fees with the exception of the attorneys in this action, all 

reside more than one hundred miles from the Biace of hearing. 

5. Because the Defendants have filed no responsive pleading, 

Plaintiffs are without knowledge of the issues, facts, or theories 

in controversy. This proceeding for attorneys' fees can be handled 

much less expensively if Defendants will make such specification 

of the issues in controversy. 

WHEREFORE, the Plaintiffs pray: 

A. That the Court deny the motion to defer the award of fees; 

B. That the court require the Defendants specify the issues 

they wish to controvert as to said fees; 

C. That the Court allow the Plaintiffs sufficient notice of 

a hearing on the motion for attorneys' fees (if the Court grants 

the Defendants' alternative motion) so that Plaintiffs may take 

 



  

depositions of out-of-town witnesses. 

Submitted by 

  

Edward Still 
601 Title Building 
Birmingham, AL 35203 
205/323-3434 

James U. Blacksher 

Larry Menefee 
Crawford Blacksher, Figures & Brown 
1407 Davis Ave. 
Mobile, AL 36603 

Jack Greenberg 
Charles Williams, III 
Suite 2030 
10 Columbus Circle 

New York, N.Y. 10019 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
  

I, the undersigned attorney, do hereby certify that, prior 
to or immediately after filing a copy of the foregoing with the 
Court, I mailed or delivered a copy of the foregoing to the 
following: 

Mr. Charles A. Arendall Mr. S.. R. Sheppard 
Mr. David Bagwell Legal Department 
P.O. Box 123 City of Mobile 
Mobile, AL 36601 Mobile, AL 36602 

Z 
Date: Decenber 2 1976. IY 
  

Edward Still/ 

 



  

IN THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

  

WILEY L. BOLDEN, et al., z 

Plaintiffs, 

vs. : CIVIL ACTION NO. 75-297-P 

CITY OF MOBILE, et al., 

Defendants. 

MOTION TO DEFER AWARD OF 

COSTS AND ATTORNEYS' FEES 
  

COME NOW Defendants herein, through undersigned counsel, 

and move the Court to defer the award of costs and attorneys’ 

fees to Plaintiffs until all appeals in this matter are exhausted, 

for the following reasons: 

l. Attorneys' fees and costs can be awarded only to 

a prevailing party. The judgment in favor of Plaintiffs has 

been appealed by Defendants to the United States Court of Appeals 

for the Fifth Circuit, which appeal is now pending. 

2 Should the judgment be reversed on appeal, the 

time and expense spent on a determination of costs and attor- 

neys' fees at this time would be wasted effort and a needless 

burden on both the parties and this Court. 

3% Plaintiffs will suffer no harm from deferral of 

the award of costs and attorneys' fees since such amount, even 

if awarded now, would normally not be collectible unless and 

until affirmed on appeal. Furthermore, should Plaintiffs pre- 

vail on appeal, this Court can then consider the award of costs 

and attorneys' fees when the case is remanded for enforcement 

"of the order. 

ALTERNATIVE MOTION 
  

Should the Court deny the motion of Defendants to defer 

the award of costs and attorneys' fees, Defendants move that 

 



  

these issues be considered at a hearing, as specified in this 

Court's order of October 21, 1976, and that such hearing be 

conducted by the testimony of witnesses present in court rather 

than by affidavit. 

0 | 
Respectfully submitted this [7 day of December, 1976. 

bg Lo” 
( a 4 ara ; of 23 
a / Cr litany ALA 
  

C. B. ARENDALL, JR] 
30th Floor, First \National Bank 

Building 
Mobile, Alabama 36602 
Attorney for Defendants 

OF COUNSEL: 

HAND, ARENDALL, BEDSOLE, 
GREAVES & JOHNSTON 

- 7 rr 
4 5 [] \ ft / 
A 
  ‘S. R. SHEPPARD C53 
City Hall 
Mobile, Alabama 36602 
Attorney for Defendants 

OF COUNSEL: 

LEGAL DEPARTMENT OF THE 

CITY OF MOBILE 

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have on the 7 aay of 

December, 1976, served a copy of the foregoing Motion to 

Defer Award of Costs and Attorneys' Fees on counsel for all 

parties to this proceeding, by mailing a copy of the same by 

United States mail, properly addressed and first class postage 

prepaid. 

  

 



  

IN THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

  

WILEY L. BOLDEN, et al., 

Plaintiffs, 

VS. : CIVIL ACTION NO. 75-297-P 

CITY OF MOBILE, et al., 

Defendants. 

MOTION TO DEFER AWARD OF 

COSTS AND ATTORNEYS' FEES 
  

COME NOW Defendants herein, through undersigned counsel, 

and move the Court to defer the award of costs and attorneys’ 

fees to Plaintiffs until all appeals in this matter are exhausted [4 

for the following reasons: 

1. Attorneys' fees and costs can be awarded only to 

a prevailing party. The judgment in favor of Plaintiffs has 

been appealed by Defendants to the United States Court of Appeals 

for the Fifth Circuit, which appeal is now pending. 

2 Should the judgment be reversed on appeal, the 

time and expense spent on a determination of costs and attor- 

neys' fees at this time would be wasted effort and a needless 

burden on both the parties and this Court. 

3. Plaintiffs will suffer no harm from deferral of 

the award of costs and attorneys' fees since such amount, even 

if awarded now, would normally not be collectible unless and 

until affirmed on appeal. Furthermore, should Plaintiffs pre- 

vail on appeal, this Court can then consider the award Of costs 

and attorneys' fees when the case is remanded for enforcement 

Of the order. 

ALTERNATIVE MOTION 
  

Should the Court deny the motion of Defendants to defer 

the award of costs and attorneys' fees, Defendants move that 

 



  

these issues be considered at a hearing, as specified in this 

Court's order of October 21, 1976, and that such hearing be 

conducted by the testimony of witnesses Present in court rather 

than by affidavit. 

oy Respectfully submitted this [7 day of December, 1976. 

oe a a, < Al l od: 

C. B. ARENDALL, JR] 
30th Floor, First \National Bank 

Building 
Mobile, Alabama 36602 
Attorney for Defendants 

  

OF COUNSEL: 

HAND, ARENDALL, BEDSOLE, 

GREAVES & JOHNSTON 

Lf nid 
S. R. SHEPPARD 3A 
City Hall 
Mobile, Alabama 36602 
Attorney for Defendants 

  

OF COUNSEL: 

LEGAL DEPARTMENT OF THE 
CITY OF MOBILF 

CERTIFICATE OF SERVICE 
  

5 4 My I do hereby certify that I have on the / ~day of Y Y £/ Y 

December, 1976, served a copy of the foregoing Motion to 

Defer Award of Costs and Attorneys' Fees on counsel for all 

parties to this proceeding, by mailing a copy of the same by 

United States mail, properly addressed and first class postage 

prepaid.