Joseph et al vs. Las Vegas Metropolitan Police et al

Filing 147

ORDER Denying 140 Motion for Attorney Fees filed by Defendants. Signed by Judge Howard D. McKibben on 8/16/2013. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RONALD NEAL JOSEPH, SR. and JANE )
PITRE JOSEPH
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Plaintiffs,
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vs.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT and SARA BRADSHAW,
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Defendants.
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2:09-CV-00966-HDM-LRL
ORDER

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Before the court is the defendants’ Motion for Attorney’s
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Fees. ECF No. 140. Plaintiffs have responded, ECF No. 130.

The

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defendants argue that they are entitled to attorney’s fees under 42
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U.S.C. § 1988 and that the plaintiffs’ attorney should be
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personally liable for fees under 28 U.S.C. § 1927.
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A prevailing defendant in a § 1983 case may be entitled to
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“reasonable attorney’s fees” under

42 U.S.C. § 1988 only “upon a

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finding that the plaintiff's action was frivolous, unreasonable, or
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without foundation, even though not brought in subjective bad
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faith.” Christainsburg Garment Co. v. EEOC, 434 U.S. 412, 421
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(1978); see also Elks Nat’l Foundation v. Weber, 942 F.2d 1480 (9

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Cir. 1991) (attorney’s fees may be awarded against unsuccessful

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plaintiffs “only if the action is meritless in the sense it is

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groundless or without foundation”).

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The Ninth Circuit has held that “a district court must avoid

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post-hoc reasoning concluding that, because a plaintiff did not

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ultimately prevail, his action must have been unreasonable or

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without foundation.” Tutor-Salbia Corp. v. City of Hailey, 452 F.3d

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1055, 1060 (9th Cir. 2006); see also Jensen v. City of San Jose,

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806 F.2d 899, 901 (9th Cir. 1986) (there is a “middle ground where

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failing claims–non-frivolous and made in good faith–are not

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entitled to attorney’s fees”).

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Under 28 U.S.C. § 1927, if an attorney “unreasonably and

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vexatiously” multiplies the proceedings the court may require them

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to “satisfy personally the excess costs, expenses, and attorney’s

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fees reasonably incurred because of such conduct.” In the Ninth

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Circuit, the “imposition of sanctions under § 1927 requires a

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finding that counsel acted recklessly or in bad faith.” U.S. v.

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Blodgett, 709 F.2d 608, 610 (9th Cir. 1983) (quotations omitted).

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Further, “sanctions should not be assessed lightly or without a

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fair notice and an opportunity for a hearing on the record” Id. at

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610 (citing Roadway Express, Inc. V. Piper, 447 U.S. 752 (1980));

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see also Munoz v. California Dept. Of Corrections, 182 F.3d 926

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(9th Cir. 1999).

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On May 29, 2009 the plaintiffs filed their complaint. ECF No.

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1. On April 6, 2010 the Magistrate Judge issued a discovery plan

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and scheduling order. The discovery deadline was January 31, 2011.

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ECF No. 23.
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On July 13, 2010, approximately two and a half weeks before

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the close of discovery, the defendants filed an emergency motion to

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compel discovery. ECF No. 24, 8:6-17:12. On August 13, 2010, the

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Magistrate Judge granted the defendants’ motion to compel. ECF No.

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29. On August 27, 2010 the plaintiffs filed a motion for

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reconsideration of the Magistrate Judge’s order to compel, ECF No.

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31, which was denied on September 7, 2010. ECF No. 37.

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filed a memorandum for $2,280 in attorney’s fees and costs

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associated with the motion to compel that was granted by the

Defendants

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Magistrate Judge on November 1, 2010. ECF No. 51. On May 27, 2011,

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defendants filed a motion for the court to enforce judgment of the

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sanctions. ECF No. 102. On June 21, 2011, this court ordered the

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plaintiffs to pay the sanctions on or before the court entered a

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final judgment in the matter. ECF No. 111.

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On October 7, 2010, the plaintiffs filed a motion for a

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emergency protective order stating the plaintiffs did not have the

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financial means to travel to Las Vegas for depositions on October

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22, 2010 and that one of the plaintiffs was medically unable to

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travel. ECF No. 41, ¶ 3. The Magistrate Judge denied the motion

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finding the plaintiffs did not provide evidence to support their

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assertions of financial hardship and medical inability to travel.

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ECF No. 47. The plaintiffs moved to reconsider the Magistrate

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Judge’s order. ECF No. 48. At a hearing on the plaintiffs’ motion

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for a protective order, this Court vacated the scheduled

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depositions and directed the defendants to file a certificate of

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costs associated with the depositions at the close of the case. ECF

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No. 50. Further, the court ordered that both plaintiffs were

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required to appear for video depositions no later than November 23,
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2010 and that the plaintiffs should bear the costs of the

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depositions. ECF No. 50.

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On September 14, 2010, the plaintiffs filed a motion to

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compel. ECF No. 36. The plaintiffs alleged the defendants provided

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incomplete responses to the plaintiffs’ interrogatories and

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requested the court to order the defendants to provide “non-

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evasive” responses to their interrogatories. See Mem. Filed in

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Support at 8, ECF No. 36. Defendants responded claiming that

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“plaintiffs served discovery responses that exceeded the bounds of

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permissible discovery.” Order, 2:3-5, ECF No. 56. On December 10,

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2010, the Magistrate Judge granted the plaintiff’s motion in part

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and denied it in part. ECF No. 56. The Magistrate Judge ordered

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that the defendants respond more fully to three of the plaintiffs’

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requests. ECF No. 56, 4:19-21; 5:24-26; 9:4. The court also found

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that certain discovery the plaintiffs requested was not relevant or

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did not exist. ECF No. 56, 6:8; 6:23. The Magistrate Judge further

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ordered that the parties work together to draft and submit an

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appropriate protective order for any sensitive or private

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information by December 30, 2010. ECF No. 56, 8:6; 11:19; 12:22;

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13:9. On December 27, 2010 the plaintiffs filed a motion for

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reconsideration of the Magistrate Judge’s ruling on the motion to

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compel. ECF No. 59. On February 3, 2011 this court affirmed the

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Magistrate Judge’s order, with minor revisions. Order, ECF No. 74.

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While the above issues concerning the plaintiffs’ motion to

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compel were ongoing, the parties began drafting a protective order

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in accordance with the court’s order. On December 30, 2010 the

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plaintiffs sent the defendants an e-mail regarding the over breadth

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of the defendant’s proposed order.
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Defs.’ Resp. 2:19-23, ECF No.

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88. The defendants replied they were out of town and

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able to respond until January 3, 2011. That day, December 30, the

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plaintiffs submitted the motion for entry of a protective order.

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ECF No. 60. On January 27, 2011, the Magistrate Judge denied the

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plaintiffs’ motion and ordered the defendants to submit their

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proposed protective order.

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the proposed order, ECF No. 71, and the Magistrate Judge entered

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the order on February 2, 2011. ECF No. 72. Plaintiffs filed a

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motion for reconsideration. ECF No. 77. This court affirmed the

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wouldn’t be

ECF No. 70. The defendant’s submitted

Magistrate Judge’s order on March 1, 2011. ECF No. 89.
On March 1, 2011 the plaintiffs filed a motion to extend time

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for discovery and to impose sanctions on the defendant for the

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defendant’s failure to comply with discovery requests. ECF No. 88.

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The Magistrate Judge denied the motion on April 25, 2011. ECF No.

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99. The plaintiffs filed a motion for reconsideration which was

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denied. ECF No. 106.

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The defendants filed a motion for attorneys fees, ECF No. 121,

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which the court denied without prejudice to renew pending the

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plaintiffs’ Ninth Circuit appeal. ECF No. 133. After the Ninth

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Circuit affirmed the courts ruling on the defendants’ motion for

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summary judgment, ECF No. 138, the defendants filed their motion to

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renew. ECF No. 143.

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While the defendants prevailed on their motion for summary

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judgment, the Court is not persuaded the lawsuit was “frivolous,

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unreasonable, or without foundation.”Christainsburg Garment Co.,

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434 U.S. at 421 justifying an award of fees under 42 U.S.C. § 1988.

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To the extent the plaintiff filed motions that were frivolous
or vexatious the court has previously awarded sanctions and costs
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against the plaintiffs.

Accordingly, no additional fees or

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sanctions will be imposed.

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The defendants motion for attorneys fees is denied.

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IT IS SO ORDERED.

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DATED: This 16th day of August, 2013.

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____________________________
UNITED STATES DISTRICT JUDGE

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