McBurnie v. Prescott, City of, et al.

Filing 172

ORDER denying 141 Defendants' Motion for Attorney Fees; granting 168 Plaintiff's Motion to modify clerk's judgment on taxation of costs. Costs are taxed for the defendants in the modified amount of $8,714.39. Signed by Judge Frederick J Martone on 10/21/11.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert McBurnie,
Plaintiff,

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vs.

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City of Prescott, et al.,
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Defendants.
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No. CV-09-8139-PCT-FJM
ORDER

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The court has before it defendants’ motion for attorney’s fees (doc. 141) and

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memorandum in support (doc. 157), plaintiff’s response (doc. 167), and defendants’ reply

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(doc. 170). We also have before us plaintiff’s motion to modify clerk’s judgment on taxation

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of costs (doc. 168), defendants’ response (doc. 169), and plaintiff’s reply (doc. 171).

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Plaintiff filed this action against the City of Prescott and individual City employees

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asserting 13 claims related to his discharge, including wrongful discharge and retaliation in

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violation of state and federal law, breach of contract, intentional interference with contract,

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intentional and negligent infliction of emotional distress, and violations of his first

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amendment and equal protection rights under the United States Constitution. Plaintiff argued

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that his discharge was in retaliation for his complaining about Fair Labor Standards Act

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(FLSA) and workplace safety violations. Plaintiff also filed a separate claim for attorney’s

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fees related to a settlement of his FLSA wage claim. He succeeded on this claim only. The

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12 other claims were resolved in defendants’ favor on summary judgment, directed verdict,

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or jury verdict following a six-day trial.
Taxation of Costs

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The clerk of the court apportioned the taxation of costs, awarding defendants costs in

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the amount of $9,378.51 and plaintiff costs in the amount of $256.60. Plaintiff now asks us

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to modify the clerk’s judgment on taxation of costs to require each party to bear its own

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costs. He argues that the City should be awarded no costs because he prevailed on one small

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aspect of the case regarding attorney’s fees on the FLSA settlement.

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Under Rule 54(d)(1), Fed. R. Civ. P., costs are awarded to the prevailing party. We

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have discretion, however, to apportion or deny costs where there is a mixed judgment.

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Economics Lab., Inc. v. Donnolo, 612 F.2d 405, 411 (9th Cir. 1979) (“The district court has

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broad discretion in apportioning and taxing costs where, as here, neither party completely

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prevailed.”) (citation omitted). Defendants prevailed on 12 of the 13 claims. They are

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clearly the prevailing party. We conclude that the clerk of the court reasonably apportioned

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costs based on each parties’ relative success on the claims.

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Plaintiff also argues that even if we determine that apportionment is appropriate we

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should reduce the judgment by certain non-taxable amounts. We reject defendants’ argument

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that these claims were waived because they were not presented to the clerk for consideration.

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Our review indicates that each issue was raised, albeit broadly, in plaintiff’s objections to

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defendants’ bill of costs. See doc. 143.

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Plaintiff first argues that $652.12 in witness fees paid to defendant parties testifying

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in their own behalf are not recoverable and should be omitted from the taxation of costs. See

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LRCiv 54(e)(4). Defendants argue that they testified as fact witnesses, not party witnesses,

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after the individual defendants were dismissed from the case. But the individual defendants

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were not dismissed from the case until after the plaintiff’s close of evidence on defendants’

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motion for judgment as a matter of law. See Minute Entry (doc. 123). At the time the

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individual defendants were subpoenaed and paid witness fees, they were still defendants in

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the case. See Defendants’ Bill of Costs (doc. 140). We agree with plaintiff that witness fees

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paid to party defendants in the amount of $652.12 should be subtracted from the clerk’s
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judgment.

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Plaintiff also challenges the clerk’s taxation of costs for copies of plaintiff’s workers’

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compensation claims file obtained from the Industrial Commission in the amount of $531.25.

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Plaintiff argues that defendants made no showing that the records were necessarily obtained

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from a third-party records custodian or were admitted into evidence at trial. See LRCiv

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54.1(e)(5). A bill from the Industrial Commission is attached to defendants’ bill of costs,

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sufficiently establishing that these copies were obtained from a third-party custodian.

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Moreover, it is undisputed that portions of the file were admitted into evidence by both

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parties. Therefore, this cost was properly taxed to plaintiff.

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Finally, plaintiff challenges taxation of a $12.00 fee related to a subpoena for medical

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records, because the subpoena was issued after discovery had closed. We agree that costs

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related to out of time discovery are not taxable and accordingly reduce the taxable amount

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by $12.00.

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We therefore reduce the clerk’s taxation of costs by a total of $664.12, for a modified
cost award to defendants of $8,714.39.
Attorney’s Fees

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Defendants seek an award of attorney’s fees on a variety of legal theories, including

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42 U.S.C. § 1988, A.R.S. §§ 12-341, 12-341.01(A), (B), and (C), and Rules 11(a) and 41(a)

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and (d), Fed. R. Civ. P. They incorrectly argue that as the prevailing party they are entitled

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to fees under 42 U.S.C. § 1988 “unless special circumstances would render such an award

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unjust.” Memorandum at 4 (citing Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933,

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1937 (1983)). Defendants ignore the well-established rule that fee shifting to a prevailing

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defendant under § 1988 is available only “upon a finding that the plaintiff’s action was

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frivolous, unreasonable, or without foundation.” Christiansburg Garment Co. v. EEOC, 434

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U.S. 412, 421, 98 S. Ct. 694, 700 (1978). Defendants have made no showing that plaintiff’s

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federal claims meet this test.

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Defendants other purported bases for attorney’s fees are similarly inapplicable.

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A.R.S. § 12-341 is irrelevant because it provides for recovery of taxable costs, not attorney’s
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fees. Rules 11(a) and 41(a) and (d), Fed. R. Civ. P., provide no basis for an award of fees.

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A.R.S. § 12-341.01(A) and (B) relate to an award of attorney’s fees in an action arising out

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of contract. Although plaintiff originally asserted contract claims, these claims were an

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insignificant part of plaintiff’s action. Defendants make no effort to limit fees to the contract

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claims or otherwise attempt to support an award of fees under § 12-341.01(A). See

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Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985).

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Defendants abandon each of these bases for the recovery of fees by not responding

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to plaintiff’s objections, instead focusing solely on recovery of fees under A.R.S. § 12-

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341.01(C) in their reply. Section 12-341.01(C) provides for attorney’s fees only “upon clear

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and convincing evidence that the claim . . . constitutes harassment, is groundless and is not

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made in good faith.” Defendants contend that plaintiff’s claim that he was wrongfully

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discharged because he made workplace safety complaints to ADOSH were groundless and

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not made in good faith. They argue that plaintiff must have known that A.R.S. § 23-425 does

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not provide for a private cause of action. Not only is this an insufficient showing under § 12-

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341.01(C), but the argument was raised for the first time in defendants’ reply brief. We will

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not consider an argument raised for the first time in a reply. Gadda v. State Bar of Cal., 511

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F.3d 933, 937 n.2 (9th Cir. 2007).

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IT IS ORDERED GRANTING plaintiff’s motion to modify clerk’s judgment on

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taxation of costs (doc. 168). Costs are taxed for the defendants in the modified amount of

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$8,714.39.

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IT IS FURTHER ORDERED DENYING defendants’ motion for an award of
attorney’s fees (doc. 141).
DATED this 21st day of October, 2011.

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