Smith v. Chandler, City of et al

Filing 195

ORDER: IT IS ORDERED that Plaintiff's Motion for New Trial is DENIED (Doc. 189 ). Defendants' Motion for Attorneys' Fees and Non-Taxable Costs is GRANTED IN PART, in the amount of $95,258.00 in attorneys' fees and $17,975.00 in non-taxable costs (Doc. 188 ) [see attached Order for details]. Signed by Senior Judge Frederick J Martone on 8/9/17.(MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brandon Smith,

No. CV-12-02391-PHX-FJM

Plaintiff,

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v.

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ORDER

City of Chandler, et al.,

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Defendants.

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The Court has before it Plaintiff's Motion for New Trial (Doc. 189), and

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Defendants' Response (Doc. 190), to which no Reply has been filed. Also before the

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Court is Defendants' Motion for Attorneys' Fees and Non-Taxable costs (Doc. 188),

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Plaintiff's Response (Doc. 191), and Defendants' Reply (Doc. 192).

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I.

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Plaintiff's motion for new trial is much the same as his response to Defendants'

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Renewed Motion for Judgment as a Matter of Law. Plaintiff contends that his attempted

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suicide was foreseeable and therefore could not have been a supervening cause of his

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injuries. But while foreseeability is a necessary condition for proximate causation, it is

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not a sufficient condition. As we carefully outlined in our Order of April 27, 2017 (Doc.

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179), there was neither contention nor evidence that Defendants' conduct caused the pre-

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existing, underlying mental condition that itself caused the suicide attempt. This is a

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requirement of Arizona law. Although Plaintiff contends that we are incorrect that he

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failed to address the relevant Arizona cases, Motion at 2, it is painfully plain that we were

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quite correct in asserting that he failed to address the three relevant cases. Order of April

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27, 2017 at 2. At all events, Plaintiff's failure to file a Reply to the Defendants' Response

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speaks volumes. The motion will be denied for all the reasons stated in our Order of

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April 27, 2017 (Doc. 179).

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II.

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Defendants contend that they are entitled to fees and costs under A.R.S. §13-420

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for having prevailed on the state law negligence claim. Defendants concede that they are

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not entitled to fees and costs for having prevailed on the federal claim. At an earlier stage

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of this proceeding, we granted fees on the state claim and rejected the arguments Plaintiff

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makes here. Order of November 25, 2014 (Doc. 68). Plaintiff does not contest the

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amount of fees and costs sought but does contend that justification within the meaning of

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the statute is not present, that §13-420 does not apply to this case, that it nevertheless

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conflicts with another Arizona statute, and that federal preemption precludes a fee award

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here. We need not repeat what we said the last time. It is sufficient to state that

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justification is established by the jury's finding against Plaintiff on the federal claim of

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excessive force, that §13-420 does apply, that it does not conflict with another Arizona

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statute and that while federal preemption would bar a state from adopting a fee award

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regime on the federal claim that differed from that imposed by 42 U.S.C. §1988, it does

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not bar a state from adopting its own fee regime on state claims. Indeed, a state could

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choose to not create a state cause of action, let alone set forth its own conditions for fee

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shifting on the state claim it does create.

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Plaintiff makes no attempt to separate fees incurred on the federal claim from

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those incurred on the state claim. This would be difficult but not impossible. A rough

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approximation would be reasonable. We know, for example, that the state negligence

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claim is broader than the federal excessive force claim. It extends to conduct other than

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the use of the bean bag. We know, also, that Defendants could have, but did not, assert

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as a basis for summary judgment on the state claim that the attempted suicide was a

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supervening cause that broke the chain of proximate causation. See Motion for Summary

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Judgment at 15 (Doc. 35); Motion in Limine No. 4 (Doc. 88). This would have removed

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the state claim early in the proceedings so that it would not become the tail that wags the

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dog. At bottom, this was always predominantly a federal excessive force claim.

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Plaintiff, too, could have avoided the risk of fees by asserting only the federal

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claim. He may have asserted the state negligence claim simply because negligence is

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easier to prove than a violation of a federal Constitutional right. Or, he may have

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concluded that being impecunious, a fee award would constitute no practical risk.

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Nevertheless, at this stage of the proceedings, we are not comfortable awarding

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fees under state law for the entire case where, as here, the federal claim (for which fees

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are not awarded) predominates. Based upon our involvement in this case, including the

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trial, we think a fair and reasonable allocation of fees is 75% federal and 25% state. The

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motion will be granted in part in the amount of $95,258.00 in attorneys’ fees and

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$17,975.00 in non-taxable costs, which constitute 25% of the fees and costs sought.

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III.
Accordingly, it is ORDERED as follows:

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1. Plaintiff's Motion for New Trial is DENIED (Doc. 189).

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2.

Defendants' Motion for Attorneys' Fees and Non-Taxable Costs is

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GRANTED IN PART, in the amount of $95,258.00 in attorneys’ fees and $17,975.00 in

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non-taxable costs (Doc. 188).

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Dated this 9th day of August, 2017.

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