Contine v. Credio et al

Filing 13

ORDER: Granting Defendants' Application for Attorneys' Fees (Doc. 11 ). IT IS FURTHER ORDERED awarding Defendants reasonable attorneys' fees in the amount of $4,541.10. Signed by Magistrate Judge Eileen S Willett on 09/03/2015. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Zachary Contine,

No. CV-15-00813-PHX-ESW
Plaintiff,

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v.

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ORDER

Ronald Credio, et al.,

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Defendants.

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The Court has considered Defendants’ Application for Attorneys’ Fees (Doc. 11),

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Affidavit of Kirsten Story (Doc. 11-1), and Statement of Consultation (Doc. 11-2). No

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response or objection has been filed to the Application. The matter is deemed submitted

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for decision.1

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LRCiv 7.2(i) provides that if counsel does not serve and file a timely responsive

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memorandum to a motion, such non-compliance may be deemed a consent to the granting

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of the pending motion, and the Court may summarily dispose of the motion. Therefore,

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the Court may summarily dispose of Defendants’ Application for Attorneys’ Fees.

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In addition, the Court recognizes that the standard by which the Court awards

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attorneys’ fees under 42 U.S.C. § 1988 applies differently to prevailing defendants than

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to prevailing plaintiffs. A district court may award attorneys’ fees pursuant to 42 U.S.C.

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(Doc. 8).

The parties have consented to the exercise of Magistrate Judge jurisdiction

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§ 1988 to a prevailing civil rights defendant if the court finds that the plaintiff’s action

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was “unreasonable, frivolous, meritless, or vexatious.” Vernon v. Los Angeles, 27 F.3d

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1385, 1402 (9th Cir. 1994); Galen v. Los Angeles, 477 F.3d 652, 666 (9th Cir. 2007). An

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action is considered “meritless” if it is “groundless or without foundation.”

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Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). A finding of bad faith

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is not a necessary prerequisite to deeming an action “vexatious.” Id. Simply because a

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plaintiff does not prevail, however, does not automatically render his case unreasonable

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or without foundation. Id.

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With these criteria in mind, the Court in its discretion found that Defendants are

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entitled to an award of reasonable attorneys’ fees in this case. (Doc. 10 at 2). Plaintiff’s

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action was unreasonable and without merit. Plaintiff previously had litigated his current

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claim in Maricopa County Superior Court (Case No. CV 2013-001618). Final judgment

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had been entered against Plaintiff in favor of the State of Arizona and Arizona

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Department of Corrections on June 25, 2014. The named Defendants in this case are

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parties in privity with the Arizona Department of Corrections for purposes of claim and

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issue preclusion. Plaintiff’s claims against Defendants were barred as a matter of law.

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See Corbett v. Manor Care of Am., Inc., 146 P.3d 1027, 1039 (Ariz. Ct. App. 2006). To

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re-litigate the case in district court was unreasonable. In addition, the Court has found

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that Plaintiff failed to state a claim as a matter of law.

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In determining reasonable attorneys’ fees, the Court finds that Defendants are the

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prevailing party. They have prevailed on all claims raised. The factor analysis set forth

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in Defendants’ Application is adopted by the Court as well-reasoned and supported by

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the record. The Court finds that Defendants’ attorneys’ fees of $4,541.10 are reasonable

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in this case.

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Conclusion

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IT IS ORDERED granting Defendants’ Application for Attorneys’ Fees (Doc.
11).

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IT IS FURTHER ORDERED awarding Defendants reasonable attorneys’ fees in
the amount of $4,541.10.
Dated this 3rd day of September, 2015.

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Honorable Eileen S. Willett
United States Magistrate Judge

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