Yu v. Idaho State University et al

Filing 201

MEMORANDUM DECISION AND ORDER ON DEFENDANT'S MOTION FOR ATTORNEY FEES. IT IS HEREBY ORDERED that Defendant's Motion for Attorney Fees (Dkt. 186 ) is GRANTED IN PART AND DENIED IN PART. Defendant is awarded $24,820.80, as descri bed herein. A Judgment in favor of Defendant shall be entered separately. In addition to the awarded attorney fees, the Judgment will also reference and include the amount of costs awarded, $5,774.73 (Dkt. 200 ), based on Defendant's Bill of Costs (Dkt. 187 ). The total amount will be $30,595.53. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kt)

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UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
JUN YU,

Case No.: 4:15-cv-00430-REB

Plaintiff,
vs.
IDAHO STATE UNIVERSITY,

MEMORANDUM DECISION AND
ORDER ON DEFENDANT’S
MOTION FOR ATTORNEY FEES
(DKT. 186)

Defendant.

Now pending is Defendant’s Motion for Attorney Fees (Dkt. 186).1 Having reviewed the
briefing and supporting filings, and otherwise being fully advised, the Court enters the following
Decision and Order.
I. BACKGROUND
After Idaho State University (“ISU”) dismissed Plaintiff Jun Yu (“Yu”) from its doctoral
program in clinical psychology, Yu sued ISU, alleging claims for discrimination, deprivation of
constitutional rights, and negligent infliction of emotional distress. Compl. (Dkt. 1). Yu later
amended his Complaint to add 15 additional claims, including various claims sounding in
contract law. FAC (Dkt. 41). All of Yu’s claims except his Title VI discrimination claim were
dismissed on summary judgment because ISU established that it was immune from suit under the
Eleventh Amendment as to the dismissed claims (Dkt. 63). Yu’s motion for reconsideration of

1

Yu filed a Notice of Appeal on June 29, 2020. Such appeal remains pending. Although
filing a notice of appeal divests the district court of jurisdiction over aspects of the case involved
in the appeal, the district court nonetheless retains the power to award attorneys’ fees after a
notice of appeal from a decision on the merits has been filed. See Estate of Conners by Meredith
v. O’Connor, 6 F.3d 656 (9th Cir. 1993); Masalosalo by Masalosalo v. Stonewall Ins. Co., 718
F.2d 955 (9th Cir. 1983).

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the summary judgment decision was denied (Dkt. 72).
After a bench trial (Dkts. 171–174), the Court issued its Trial Decision, with Findings of
Fact and Conclusions of Law (Dkt. 181) (the “Trial Decision”). The decision set forth the
Court’s assessment of the evidence in the case and its bearing on Yu’s discrimination claim, the
only claim at issue during trial. The Court ruled that Yu had not established that ISU had
engaged in unlawful intentional discrimination against him. Accordingly, the Court held that
ISU was entitled to judgment in its favor. That Judgment was entered on June 1, 2020 (Dkt.
182).
II. LEGAL STANDARDS
Federal Rule of Civil Procedure 54 governs the award of attorney fees. If a basis exists
for an award of attorney fees, the Court must calculate a reasonable fee award. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). Generally, the “lodestar figure” is used, which multiplies
the number of hours reasonably expended on the litigation by a reasonable hourly rate. Id.; see
also Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 977 (9th Cir. 2008). “Although in most
cases, the lodestar figure is presumptively a reasonable fee award, the district court may, if
circumstances warrant, adjust the lodestar to account for other factors which are not subsumed
within it.” Id. (quoting Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1147–48 (9th Cir.
2001)).
“In any action or proceeding to enforce a provision of … [42 U.S.C. § ] 1983 …, the
court, in its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs…” However, a prevailing civil rights defendant (other than the
federal government) is entitled to a fee award “only where the action brought is found to be
unreasonable, frivolous, meritless or vexatious.” Edgerly v. City & County of San Francisco,

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599 F.3d 946, 962 (9th Cir. 2010). “[A] defendant may deserve fees even if not all the plaintiff’s
claims were frivolous”; “the presence of reasonable allegations in a suit does not immunize the
plaintiff against paying for the fees that his frivolous claims imposed.” Fox v. Vice, 563 U.S.
826, 834 (2011). Under 42 U.S.C. § 1988, a prevailing defendant may “recover reasonable
attorney’s fees incurred because of, but only because of, a frivolous claim.” Id. at 836. Stated
differently, a defendant’s recovery of fees is limited to “only the portion of his fees that he would
not have paid but for the frivolous claim.” Id. “A case may be deemed frivolous only when the
“result is obvious or the . . . arguments of error are wholly without merit.” Karam v. City of
Burbank, 352 F.3d 1188, 1195 (9th Cir. 2003) (internal quotation marks omitted; omission in
original).
III. DISCUSSION
1. ISU’s Motion for Attorney Fees Is Granted in Part.
A. Prosecution of the non-Title VI claims was frivolous because of Eleventh
Amendment immunity.
ISU seeks an award of $120,723.26 in attorney fees under 42 U.S.C. § 1988(b), as the
prevailing party in this action to enforce a provision of 42 U.S.C. § 1983. ISU calculated the
amount of requested fees using a two-step process. First, ISU identifies amounts billed totaling
$128,429.00 between the date of its Answer first raising Eleventh Amendment immunity and the
date this Court issued its Memorandum Decision and Order on Plaintiff’s Motion for
Reconsideration of the decision dismissing 17 of 18 of Yu’s claims on Eleventh Amendment
immunity grounds. Second, it discounted the subtotal from the first step by 1/18th,2 on the

2

ISU rounded the resulting percentage to the nearest whole number, which under its
calculation was in Yu’s favor. Thus, ISU seeks 94% of its fees from the noted period, after
having applied a 6% discount. 1/18 is equal to the repeating decimal 94.4.

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grounds that one of Yu’s 18 claims was not dismissed on Eleventh Amendment immunity
grounds.
Yu does not challenge ISU’s requested rates of $150 per hour (lead counsel), $125 per
hour (associate counsel), and $70 per hour (paralegal). Yu does argue that the claims in this case
were so interrelated that one cannot accurately determine which billed time entries relate solely
to the claims dismissed under the Eleventh Amendment. He proposes that any award should be
reduced by 96% of what ISU seeks, but he does not articulate how he arrived at that proportion.
More fundamentally, however, Yu argues that ISU is not entitled to any award of fees at
all, contending that none of his claims was unreasonable, frivolous, meritless, or vexatious. Yu
argues that it was not frivolous to pursue his 17 non-Title VI claims in the first instance because
he presented the novel argument that Congress had abrogated Eleventh Amendment immunity to
all claims brought in a Title VI case, rather than only the specific Title VI claims. He also cites
Rule 11 of the Federal Rules of Civil Procedure, which requires an attorney to certify that “to the
best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances … the claims, defenses, and other legal contentions are warranted by existing
law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for
establishing new law.”3 F.R.C.P. 11(b)(2).
In its decision on dispositive motions, this Court dismissed 17 of Yu’s claims on
Eleventh Amendment immunity grounds. In doing so, this Court applied United States Supreme
Court precedent holding, inter alia, that “[e]ach claim must be examined separately to see if it is

3

The signature of Yu’s counsel on the filings related to these claims certifies counsel’s
belief that the claims and legal contentions are not frivolous, but the Court must examine the
issue on its own in this setting. The issue is not whether Yu raised his claims and arguments in
good faith, it is whether the claims and arguments themselves were frivolous or not.

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barred by the Eleventh Amendment” and that statutory abrogation of Eleventh Amendment
immunity requires Congress to “unequivocally express[] its intent to abrogate the immunity.”
Mem. Decision and Order Re Def.’s Renewed MSJ 12 (Dkt. 63). Thereafter, the Court discussed
the statute, 42 U.S.C. § 200d-7, and the ruling in Alexander v. Sandoval, 532 U.S. 275 (2001), on
which Yu’s argument relied, ultimately concluding that neither offered any support to the
position Yu put forth. The Court concluded that the “common sense reading of the plain
language” of the statute speaks only to abrogation of Eleventh Amendment immunity to Title VI
claims and that the Alexander case relied upon by Yu “says nothing at all about the subject.”
Def.’s Reply ISO Mot. for Att’y Fees 2 (Dkt. 197) (quoting Dkt. 63 at 14).
For purposes of deciding ISU’s instant motion, the backdrop of the language of the
statute and the inapplicability of Alexander is particularly stark. In other words, there is nothing
in the applicable law that would support a claim that Eleventh Amendment immunity does not
attach to the claims that were dismissed by the Court. Under Karam, the “result is obvious” that
such claims would be dismissed, given that the claims were raised against a party entitled to
Eleventh Amendment immunity.4 Yu’s arguments that Congress had abrogated Eleventh
Amendment immunity as to any and all claims brought in Title VI cases were novel, but they do
not surmount the fact that they were nonetheless unreasonable and frivolous because they were
so plainly refuted by existing law and they did not articulate a cogent justification to change
existing law. Moreover, Yu’s argument now that his position on summary judgment was not
unreasonable because he was arguing for a change to existing law is at odds with his previously
4

Yu named ISU and “John/Jane Does I through X, whose true identities are presently
unknown” in his First Amended Complaint, but he never amended to name any Doe Defendants
and such defendants were dismissed by an Order dated October 24, 2018 (Dkt. 135). The
Court’s analysis of this issue relies on the fact that the only real defendant involved in the case
was ISU.

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framed argument that he was urging an application of existing law rather than a proposed change
thereto.
Yu also argues now that it was not frivolous to seek reconsideration of the dismissal of 17
of his claims on Eleventh Amendment immunity grounds because, applying the motion for
reconsideration standard, reconsideration was necessary to prevent manifest injustice and that
there had been an intervening change in the law. His arguments drew upon a Memorandum
Decision and Order in a separate proceeding within the District of Idaho also involving claims
against ISU. See Duffin v. ISU, 4:16-cv-00209-BLW Dkt. 36 (D. Idaho Dec. 21, 2017). In
Duffin, ISU was found to have waived its sovereign immunity defense because it “initially chose
to defend the claims on the merits in federal court by engaging in discovery, stipulating to extend
deadlines, and waiting until the dispositive motion deadline to assert Eleventh Amendment
immunity.” This, the court concluded, was “a tactical attempt to deny [Plaintiff] his day in
Court.”
Yu’s motion for reconsideration was flawed, however, because it inaccurately described
Duffin as an intervening change in law. As set out in this Court’s decision on Yu’s request for
reconsideration (Dkt. 72), a “decision of a federal district court judge is not binding precedent in
either a different judicial district, the same judicial district, or even upon the same judge in a
different case.” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore et al.,
Moore’s Federal Practice § 134.02[1][d], pp. 134–26 (3d ed. 2011)). Moreover, as also
described in the decision denying reconsideration, there are key factual distinctions between
Duffin and this case, including that in Duffin the entire case would have been dismissed had the
court found ISU entitled to Eleventh Amendment immunity, so ISU’s failure to seek such
dismissal early in the case meant that the parties had engaged in costly and potentially

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unnecessary discovery. But in this case, ISU’s Renewed Motion for Summary Judgment
expressly distinguished the Title VI claim from the non-Title VI claims: “ISU Is Immune From
Liability On All Of Plaintiff’s Claims Other Than That Brought Under Title VI.” (Dkt. 55 at 6
(emphasis added).) Thus, even an early invocation of Eleventh Amendment immunity in this
case would not have avoided discovery.
Yu’s other argument for reconsideration was that this Court should have retained
supplemental jurisdiction over his state law claims. But the Court had already dismissed Yu’s
state law claims as barred by Eleventh Amendment immunity. Yu’s only arguments for
reconsidering that holding were frivolous, in that the subsequent argument for retaining
jurisdiction – which would only apply if the decision on Eleventh Amendment immunity were
reconsidered – was also frivolous.
Thus, the Court is persuaded that ISU has shown that Yu’s prosecution of his 17 claims
that were dismissed on Eleventh Amendment immunity grounds was frivolous. ISU is,
therefore, entitled to its reasonable fees spent in defending those claims, under 42 U.S.C. § 1988.
B. Calculating an award of reasonable attorney fees.
The Court concludes that neither party proposed an appropriate method for calculating
reasonable fees. Yu proposes that the requested fee by reduced by 96%, but he does not explain
how he arrived at that number or why he thinks it would be reasonable. ISU, which bears the
burden to establish reasonableness, proposes that 94% of all of its billed time from case inception
until the Order on Reconsideration be awarded, on the basis that the 17 dismissed claims (of 18
total claims) were frivolously prosecuted. ISU says that it is only seeking fees from October 8,
2015 – when it filed its Answer and put Yu on notice of its Eleventh Amendment immunity
defense – through the date of the Order on Reconsideration. However, ISU’s billing timesheets,

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which are exhibits to the affidavit of counsel submitted with the motion, indicate that over 10
hours were billed prior to October 8, 2015 and this time was included in the total amount
calculated.
More fundamentally, the Court is not persuaded that 94% of counsel’s efforts prior to the
Order on Reconsideration were directly and solely related to the 17 dismissed claims.
Additionally, even if somehow 94% of billable time did relate to such claims, expending so
much time is not reasonable on claims which ISU argues otherwise were inevitably destined for
dismissal on Eleventh Amendment immunity grounds.5 In short, the Court rejects ISU’s
proposal to award fees on a pro rata basis based on the number of claims raised.
Further, the billable time entries are generally not descriptive enough to differentiate time
spent on the Title VI claim from time spent on the 17 dismissed claims, so an item-by-time task
assessment would not be a fruitful exercise. Even so, the Court also finds that an approach that
awards ISU fees related only to preparing and arguing its motion for summary judgment and its
opposition to Yu’s motion for reconsideration would not adequately award ISU for the time it
spent defending Yu’s frivolous claims.
Instead, in the exercise of its discretion and based upon a consideration of all of the
evidence and argument relating to ISU’s request for an award of fees, the Court rules that ISU is
entitled to an award in the amount of 20% of the total fees incurred from December 1, 2015

5

This calls to mind the very issue that arose in Duffin – if ISU delayed seeking dismissal
of claims to which immunity under the Eleventh Amendment applied, it would not be reasonable
to award fees for such dilatory conduct. But, as discussed supra, this case differs from Duffin in
that here the case – with concomitant discovery – would necessarily proceed regardless of when
the 17 claims were dismissed.

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through May 1, 2018.6 ISU’s filed materials show that the grand total of fees charged during this
time period is $124,104. Twenty percent of this total results in a fee award of $24,820.80. In
finding this to be a reasonable fee, the Court finds also that the requested rates of $150 per hour
for lead counsel, $125 per hour for associate counsel, and $70 per hour for paralegal time, are
each more than reasonable, based upon the Court’s knowledge of prevailing fees for lawyers and
paralegals of comparable skill and experience. Further, the Court finds that an award of 20% of
the total fees charged applies the lodestar method for attorney fee calculation as closely as is
possible on the facts of this case. That is, the Court finds that 20% of the total time billed is an
accurate, even if potentially conservative, estimate of the time actually and necessarily incurred
in defending the 17 frivolous claims.
IV. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s Motion for
Attorney Fees (Dkt. 186) is GRANTED IN PART AND DENIED IN PART. Defendant is
awarded $24,820.80, as described herein. A Judgment in favor of Defendant shall be entered
separately. In addition to the awarded attorney fees, the Judgment will also reference and
include the amount of costs awarded, $5,774.73 (Dkt. 200), based on Defendant’s Bill of Costs
(Dkt. 187). The total amount will be $30,595.53.
DATED: March 26, 2021

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
6

There is no award, however, for any percentage of the fees represented in the $4,325
invoice that contains time prior to October 8, 2015 because ISU said it is not seeking
compensation for fees incurred prior to the date it filed its Answer.

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