McDonald v. Wise et al

Filing 42

ORDER Re: 36 Motion for Attorney Fees by Judge John L. Kane on 07/01/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-2996-JLK
WAYNE McDONALD,
Plaintiff,
v.
AMBER MILLER, in her official capacity as the Mayor’s Press Secretary and in her
individual capacity,
MICHAEL HANCOCK, in his official capacity as Mayor and in his individual capacity,
and
CITY AND COUNTY OF DENVER,
Defendants.
________________________________________________________________________
ORDER RE ATTORNEY FEES
________________________________________________________________________
Kane, J.
Plaintiff’s claims against Defendants were dismissed in a written Order issued May
13, 2013 (Doc. 22). Plaintiff commenced an appeal of that Order the same day, which
appeal is pending. The matter is before me now on Defendants’ Motion for Attorney Fees
(Doc. 36). Plaintiff has filed a Response to the Motion (Doc. 40). Finding a Reply
unnecessary under the circumstances, I issue the following rulings:
1. Defendants’ request for an award of fees under the federal private attorneys
general statute, 42 U.S.C. § 1988, is DENIED. The overarching intent and purpose of §
1988 is to provide an incentive for individuals to seek and obtain vindication of injuries to
their civil rights. By allowing fee awards to prevailing parties only, the statute already
operates as a disincentive to frivolous lawsuits and frivolous claims. To take the further

step of shifting a defendant’s fees to plaintiff simply because he does not prevail on the
merits of his claim undermines the purpose of § 1988 and should be reserved for the most
egregious of cases. While fee awards to prevailing defendants are not precluded under §
1988, none is warranted in this case.
2. Colorado state law is less forgiving, however, and Plaintiff appears to concede the
applicability of C.R.S. § 13-17-201. Section 13-17-201 provides for an award of
reasonable attorney fees “in all” tort actions dismissed before trial under Rule 12(b) and is
not discretionary. Having reviewed the parties submissions and finding the hourly rate
and time expended by counsel in this case to be reasonable, I GRANT Defendants’ Motion
and ORDER attorney fees payable by Plaintiff to Defendants in the amount of $5,949.50.
The fee award SHALL BE HELD IN ABATEMENT, however, during the pendency of
Plaintiff’s appeal or until otherwise ordered by the Court.
Dated this 1st day of July, 2013, at Denver, Colorado.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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