Bach v. Idaho State Board of Medicine et al

Filing 272

MEMORANDUM DECISION AND ORDER granting 254 Motion for Attorney Fees; granting 256 Motion for Attorney Fees; granting 257 Motion for Attorney Fees; granting 258 Motion for Attorney Fees; granting 259 Motion for Attorney Fees; granting 260 Motion for Attorney Fees; granting 263 Motion for Service. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CINDY LEE BACH, deceased, and JOHN N.
BACH, widower;
Case No. 4:CV 10-548-BLW
Plaintiffs,
MEMORANDUM DECISION AND
ORDER

v.
IDAHO STATE BOARD OF MEDICINE,
et al,
Defendants.

INTRODUCTION
The Court has before it six motions for attorney fees and a motion for service. The
motions are fully briefed and at issue. For the reasons set forth below, the Court will grant each
motion.
ANALYSIS
Motions for Attorney Fees
In an earlier decision, the Court granted defendants’ motions to dismiss and entered a
Judgment dismissing this case. Six of the defendants now seek their attorney fees under 42
U.S.C. § 1988(b). That statute authorizes “the court, in its discretion, [to] allow the prevailing
party . . . a reasonable attorney’s fee as part of the costs.” Id. A district court may award

Memorandum Decision & Order - 1

attorney fees to a prevailing defendant only where the action brought is found to be
unreasonable, frivolous, meritless or vexatious. Christiansburg Garment Co. v. EEOC, 434 U.S.
412, 421 (1978).
The six movants are all prevailing parties, and the action filed against them was
unreasonable and frivolous. Despite being given two opportunities to file a sufficient complaint,
plaintiff Bach failed to allege even the most basic elements of a § 1983 claim. His complaint
contained no facts showing that defendants acted under color of state law or were guilty of
deliberate indifference. While Bach complained that defendants were responsible for his wife’s
death, he sued some defendants who – under his own recitation of the facts – had nothing
whatsoever to do with her death. Other defendants were swept into the suit by absurd allegations
of a conspiracy or by conduct that clearly did not rise to the level of a constitutional violation.
After separately evaluating the six motions, the Court finds that each should be granted
and an award of attorney fees made under § 1988(b). The Court finds that the hourly rate for
each of the counsel is reasonable.1 The hours spent on the case also appear reasonable. The
Court will note that one associate with the Powers Tolman firm spent 343 hours and incurred
fees of $48,034, representing more than half of the total bill of $83,560.50 submitted by the three
attorneys and paralegal from that firm who worked on the case. This total bill is more than
double that of any other defendant, and the total time spent by the one associate is at least three
times the time spent by most counsel in the case. However, this is explained by the fact that
counsel represented a number of defendants, many of whom had to file separate motions to

1

Some of the fee requests included requests for paralegal time. The fees incurred by
paralegals may be included in an attorney fee award under § 1988(b). See Perez v. Cate, 632
F.3d 553, 557 (9th Cir. 2011).
Memorandum Decision & Order - 2

dismiss because of their unique factual circumstances. Given that, the Court finds the fee
request to be reasonable. The Court further finds that the costs requested are proper and
reasonable.
Accordingly, the Court will grant each of the motions for fees and costs.
Motion for Service of Order of Withdrawal
On February 27, 2012, the Court issued an Order allowing plaintiff’s counsel to
withdraw. The Order directed counsel to serve copies of the Order on plaintiff Bach. Counsel
attempted to serve Bach by certified mail but Bach never claimed his mail. Accordingly, counsel
seeks to serve Bach by regular mail pursuant to Rule 5(2)(C). The Court finds good cause for
such service and will grant the motion.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for service of order of
withdrawal (docket no. 263) is GRANTED.
IT IS FURTHER ORDERED, that the motions for attorney fees (docket nos. 254, 256,
257, 258, 259, & 260) are GRANTED.
IT IS FURTHER ORDERED, that the following attorney fee and costs be awarded to the
following parties as against the plaintiff:
Fee & Cost Award
Party

Attorney Fee Awarded

Costs Awarded

Defendants Dr. Horrocks &
Teton Valley Health Care
Board

$83,560.50

$1,968.15

Teton County defendants

$32,284.50

Memorandum Decision & Order - 3

Fee & Cost Award
Dr. Neumann

$19,047.00

Dr. Tryka & Western
Wyoming Pathology

$9,761.50

Dr. Wolfe

$19,933

State Board of Medicine &
Steve Wright

$14,757.50

DATED: September 26, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

Memorandum Decision & Order - 4

$944.99