Clark et al v. Shawnee, Kansas, City of

Filing 160

MEMORANDUM AND ORDER denying 147 Motion for Attorney Fees; denying 156 Motion for Additional Findings. Signed by U.S. District Senior Judge Sam A. Crow on 2/22/17. Mailed to pro se parties Eric Clark, Jonathan Clark by regular mail. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JONATHAN CLARK
and ERIC S. CLARK,
Plaintiffs,
vs.

Case No. 15-4965-SAC

THE CITY OF SHAWNEE, KANSAS,
Defendant.
MEMORANDUM AND ORDER
Upon the court granting the defendant’s motion for summary
judgment, (Dk. 140), the clerk entered on January 5, 2017, judgment for
the defendant City of Shawnee, Kansas (“City”) and against the plaintiffs,
Jonathan Clark and Eric S. Clark, in this civil rights action. (Dk. 141). The
City filed a motion for attorney fees on January 19, 2017 (Dk. 147), and the
plaintiffs filed a motion for additional findings (Dk. 156). This order
addresses these two pending motions in reverse order.
MOTION FOR ADDITIONAL FILINGS (Dk. 156).
Citing Fed. R. Civ. P. 52(b), the plaintiffs move the court to
make two additional findings of fact. The first requested finding is that the
City’s regulation “appears calculated to incite members of the responsible
law-abiding public to obtain a license to carry concealed weapons and to
incite the public to view concealed carry of weapons as being a noble
defense without any tendency to secret advantages.” (Dk. 156-1, p. 1). The

second requested finding is that “the evidence before the court showed that
carrying of all visible firearms in all vehicles, including rifles mounted in the
back window of pickup trucks on one’s own private estate, present a level of
concern that such conduct may create untoward and unseemly
circumstances that go beyond self-defense.” Id. The plaintiffs’ motion and
memorandum fail to provide any legal or factual support for their request.
(Dk. 156-1). The plaintiffs’ motion does not address the standards governing
relief under Fed. R. Civ. P. 52(b). See May v. Kansas, 2013 WL 6669093 at
*1 (D. Kan. Dec. 18, 2013)(“’A motion made pursuant to Rule 52(b) will only
be granted when the moving party can show either manifest errors of law or
fact, or newly discovered evidence; it is not an opportunity for parties to
relitigate old issues or to advance new theories.’ Myers v. Dolgencorp, Inc.,
2006 WL 839458, *1 (D. Kan. 2006)(citing 9A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2582 (2d ed.1995)”). The
defendant opposes the motion as legally and factually deficient. In reply, the
plaintiffs offer for the first time their arguments. “The general rule in this
circuit is that a party waives issues and arguments raised for the first time in
a reply brief.” See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011).
The plaintiffs have waived their arguments, and their motion is summarily
denied for failing to provide any legal or factual basis in support of the relief
requested.
DEFENDANT’S MOTION FOR ATTORNEY FEES (Dk. 147)
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The defendant City filed this motion with a supporting
memorandum on January 19, 2017, which was within the required 14 days
of the clerk’s entry of judgment for the City and against the plaintiffs. (Dks.
147 and 148). The City’s motion seeks attorneys’ fees pursuant to Fed. R.
Civ. P. 54(d)(2) and 42 U.S.C. § 1988 and pursuant to the judgment entered
upon the court’s summary judgment decision. The defendant’s motion
complies with Rule 54(d)(2)(B).
The next day, the City promptly filed an amended memorandum
that explained:
AMENDMENT: This Memorandum in Support has been amended to
include time records that were inadvertently omitted from the original
Memorandum in Support, as well as to include a Statement of
Consultation. The remainder of this Memorandum has not been
altered, except to include the total amount requested and the
assertion that the time entries are reasonable, necessary, and
attached.
(Dk. 150, p. 1). The plaintiffs challenge the timeliness and propriety of this
amended memorandum. The defendant’s amended filing was not untimely.
The court’s local rule excepts a Rule 54(d)(2) movant from D. Kan. Rule
7.1(a) and permits the supporting memorandum to be filed later than the
motion. D. Kan. Rule 54(e). The additional time contemplated by this local
rule gives the movant the opportunity to support its filing with time records,
affidavits and evidence. The City’s amended filing here included the
counsels’ time records and brought the City’s briefing into compliance with
the court’s rules. The delayed filing did not arguably prejudice the plaintiffs
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in filing their response on January 24, 2017. The City’s amended
memorandum complies with the letter and spirit of D. Kan. Rule 54(e).
Under 42 U.S.C. § 1988(b), a court may award attorney fees to
the prevailing party in a civil rights case, including a case brought under 42
U.S.C. § 1983. See Fox v. Vice, 563 U.S. 826, 832-33 (2011). When the
prevailing party is the defendant, the Supreme Court has applied a standard
that is consistent with the “’quite different equitable considerations’ at
stake.” Fox, 563 U.S. at 833 (quoting Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 419 (1978)). Because “Congress sought ‘to protect
defendants from burdensome litigation having no legal or factual basis,’” the
Court held that “’upon a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation,’” an attorney fee award for a defendant
was authorized. Id. (quoting Christiansburg, 434 U.S. at 420-21); see also
Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983) (noting that defendants
are entitled to fees under § 1988 “only where the suit was vexatious,
frivolous, or brought to harass or embarrass the defendant”). In
Christianburg, the Court emphasized:
Hence, a plaintiff should not be assessed his opponent’s attorney’s
fees unless a court finds that his claim was frivolous, unreasonable or
groundless or that the plaintiff continued to litigate after it clearly
became so. And, needless to say, if a plaintiff is found to have brought
or continued such a claim in bad faith, there will be an even stronger
basis for charging him with the attorney’s fees incurred by the
defense.

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434 U.S. at 422. “These standards are meant to deter the filing of frivolous
lawsuits without discouraging the plaintiffs from pursuing meritorious ones.”
Hughes v. Unified School Dist. No. 330, 872 F. Supp. 882, 889 (D. Kan.
1994) (citing Eichman v. Linden & Sons, Inc., 752 F.2d 1246, 1248 (7th Cir.
1985)).
“A frivolous suit is one ‘based on an indisputably meritless legal
theory, . . . or whose factual contentions are clearly baseless.” Thorpe v.
Ancell, 367 Fed. Appx. 914, 919 (10th Cir. Feb. 26, 2010) (quoting Neitzke
v. Williams, 490 U.S. 319, 327 (1989)). This does not mean that a
defendant’s fee award requires a finding that the suit was “’brought in
subjective bad faith.’” Thorpe, 367 Fed. Appx. at 919 (quoting
Christiansburg, 434 U.S. at 421). “’A defendant can recover if the plaintiff
violates this standard at any point during the litigation, not just as its
inception.’” Thorpe, 367 Fed. Appx. at 919 (quoting Galen v. County of Los
Angeles, 477 F.3d 652, 666 (9th Cir. 2007)). In Fox, the Supreme Court
recognized fee awards for only those frivolous claims:
Analogous principles indicate that a defendant may deserve fees
even if not all the plaintiff's claims were frivolous. In this context, §
1988 serves to relieve a defendant of expenses attributable to
frivolous charges. The plaintiff acted wrongly in leveling such
allegations, and the court may shift to him the reasonable costs that
those claims imposed on his adversary. See Christiansburg, 434 U.S.,
at 420–421, 98 S.Ct. 694. That remains true when the plaintiff's suit
also includes non-frivolous claims. The defendant, of course, is not
entitled to any fees arising from these non-frivolous charges. See ibid.
But the presence of reasonable allegations in a suit does not immunize
the plaintiff against paying for the fees that his frivolous claims
imposed.
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Fox v. Vice, 563 U.S. at 834.
As the Tenth Circuit has observed, “[t]his is a difficult standard
to meet, to the point that rarely will a case be sufficiently frivolous to justify
imposing attorney fees on the plaintiff.” Mitchell v. City of Moore, Oklahoma,
218 F.3d 1190, 1203 (10th Cir. 2000) (citing Clajon Production Corp. v.
Petera, 70 F.3d 1566, 1581 (10th Cir. 1995)); see Utah Animal Rights
Coalition v. Salt Lake County, 566 F.3d 1236, 1245 (10th Cir. 2009) (“This is
a high bar for a prevailing defendant to meet.”); E.E.O.C. v. TriCore
Reference Laboratories, 493 Fed. Appx. 955, 961, 2012 WL 3518580 (10th
Cir. Aug. 16, 2012)(“Only in the rare case will this difficult standard be
met.”). “The dismissal of claims at the summary judgment stage does not
automatically meet this stringent standard.” Mitchell, 218 F.3d at 1203
(citing Jane L. v. Bangerter, 61 F.3d 1505, 1513 (10th Cir. 1995)). “In
determining if a claim is frivolous, unreasonable, or without foundation, a
district court must not use post hoc reasoning to conclude that because the
plaintiff did not prevail fees are warranted.” E.E.O.C. v. TriCore Reference,
493 Fed. Appx. at 961. The Tenth Circuit has said that a “district court
should consider the pro se plaintiff’s ability to recognize the objective merit
of his or her claim.” Houston v. Norton, 215 F.3d 1172, 1175 (10th Cir.
2000). In his discussion of Tenth Circuit precedent, Judge Lungstrum noted
the Tenth Circuit’s holding in Thorpe:

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On the other hand, in Thorpe v. Ancell, attorney’s fees were awarded
to defendants where the district court concluded that plaintiffs’ claims
were not only frivolous, but also the factual allegations in their
complaint were fantastic” and improperly “concocted” to be publicized
in judicial proceedings. 367 F. App'x 914, 924. The plaintiffs had
played “fast and loose” with the record in supporting their arguments
to the point that their assertions were contradicted by the undisputed
facts. Id. Furthermore, the plaintiffs refused to concede their claims
were frivolous but, instead, filed pages of documents irrelevant to the
case in an attempt to discredit the defendants. Id. Awarding fees in
such a case, according to the district court, provided some
compensation to defendants for costs incurred in defending the suit
and also deterred plaintiffs from filing “patently frivolous and
groundless suits.” Id.
McGregor v. Shane’s Bail Bonds, 2010 WL 4622184, at *2 (D. Kan. Nov. 4,
2010).
In deciding whether the plaintiffs’ claims were frivolous,
unreasonable or groundless, the court must review their merits in light of its
rulings while keeping in mind the plaintiffs’ ability to recognize the objective
merit of their claims. The defendant City argues the most obvious of the
groundless claims is Eric Clark’s Second Amendment claim. The district court
eventually granted summary judgment for the City and found that Eric Clark
did not have standing to bring his claim. (Dk. 140, pp. 5-14). The defendant
City filed a motion to dismiss early in this case which challenged Eric Clark’s
standing. (Dk. 6). The court denied the City’s motion, because the complaint
facially alleged “an actual injury-in-fact for Eric Clark” and because the
defendant had failed “to present a timely and meritorious argument for
dismissal based on standing.” (Dk. 16, p. 8). Later, the district court denied
the plaintiffs’ motion for summary judgment on standing and noted that the
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defendants had “summarily briefed” this issue in their motion to dismiss.
(Dk. 26, p. 3). In that order, the district court also laid out for the parties
the controlling legal analyses and pointed out the serious factual and legal
hurdles that faced Eric Clark. In the parties’ subsequent cross motions for
summary judgment, they fully presented their legal arguments along with
Eric Clark’s testimony explaining his alleged injuries and the asserted chilling
impact from the challenged ordinance. Eric Clark presented a unique
standing theory arguing that “he actually experienced ‘a credible imminent
threat’ of arrest during the relevant period and that this restrained him from
exercising his Second Amendment right.” (Dk. 140, p. 10). The court
addressed this theory at length and concluded that the facts did not support
a sufficient imminent threat for standing. While Eric Clark’s standing theory
became most apparent and understandable at this stage in the litigation, as
did its lack of legal and factual merit, the court concludes this claim does not
warrant a fee award. This is not one of those “rare cases” in which a pro se
plaintiff would necessarily recognize the fallacies in his standing theory. For
that matter, the defendant’s briefing of this issue failed to address Eric
Clark’s particular standing theory. (Dk. 140, p. 11). The court does not find
that Eric Clark’s presentation of this standing claim shows that he
necessarily understood his theory to be indisputably meritless and his factual
allegations to be clearly insufficient and baseless. Thus, the court concludes
that the granting of attorney's fees is not warranted on Eric Clark’s claim.
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The court reaches the same conclusion as to the merits of the
plaintiffs’ Second Amendment challenge to the municipal ordinance. The
defendant is right that the plaintiffs pushed the bounds of reasonableness in
fashioning some of their facial challenges and in arguing the ordinance’s
impact on firearm possession in the home. Nonetheless, the plaintiffs’ claims
presented substantive legal issues surrounding unsettled constitutional
questions that required serious analysis to decide them. The court rejects
the defendant’s position that the plaintiffs’ Second Amendment claims were
frivolous and unreasonable. Finally, the defendant points to the plaintiffs
having acted in bad faith during the litigation of this case. The plaintiffs filed
excessive pleadings and repeatedly advanced unreasonable arguments in
challenging the defendant’s counsel’s digital signature on discovery requests.
Such conduct would have been worthy grounds for a sanctions motion
during discovery. This circumstance, however, in this court’s discretion, is
not so weighty as to transform this into a rare case justifying an award of
defendant’s attorney’s fees. In reaching this decision, the court carefully
reviewed the claims and evidence contained in the record, as well as the
parties’ arguments, and is convinced that attorney's fees should not be
awarded against the Clarks.
IT IS THEREFORE ORDERED that the plaintiffs’ motion for
additional filings (Dk. 156) is denied;

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IT IS FURTHER ORDERED that the defendant City’s motion for
attorney fees (Dk. 147) is denied.
Dated this 22nd day of February, 2017, Topeka, Kansas.
s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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