Downs v. Nevada Taxicab Authority et al

Filing 47

ORDER Denying 40 Motion for Attorney Fees. Signed by Judge James C. Mahan on 12/9/11. (Copies have been distributed pursuant to the NEF - ASB)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 2:11-CV-453 JCM (PAL) JIMMY DOWNS, Plaintiff, v. 12 NEVADA TAXICAB AUTHORITY, et al., 13 Defendants. 14 15 ORDER 16 Presently before the court is the State of Nevada’s motion for attorneys fees. (Doc. 40). 17 Plaintiff Jimmy Downs has filed a response (doc. 41), the state has filed a reply (doc. 44), and 18 Downs has filed a sur-reply (doc. 45). 19 Background 20 This action was commenced by plaintiff on March 25, 2011, wherein he filed a complaint 21 against “M Ferriolo” and “Nevada Taxicab Authority” alleging violations of his constitutional rights 22 pursuant to 42 U.S.C. § 1983. See doc. 1. On May 9, 2011, the state filed a motion to dismiss on 23 behalf of the Taxicab Authority. See doc. 8. This motion was withdrawn pursuant to plaintiff’s 24 filing a first amended complaint. See doc. 18. The first amended complaint, filed June 1, 2011, 25 named as defendants “Michael Ferriolo in his individual and official capacity;” “State of Nevada, 26 Nevada Taxicab Authority, an agency of the State of Nevada;” and “Does 1 to 50.” See doc. 13. 27 28 James C. Mahan U.S. District Judge 1 On September 7, 2011, the state filed a second motion to dismiss. See doc. 28. That motion 2 argued that the State of Nevada and Mr. Ferriolo (in his official capacity) should be dismissed from 3 the suit pursuant to the doctrine of sovereign immunity. Additionally, the motion argued that Mr. 4 Ferriolo (in his individual capacity) should be dismissed pursuant to the doctrine of qualified 5 immunity. This court granted the motion on sovereign immunity grounds, but denied the motion as 6 to Mr. Ferriolo’s qualified immunity argument. 7 The state now moves for attorneys’ fees, arguing that it is black letter law that a sovereign 8 cannot be sued for § 1983 violations in federal court. The state argues that any such attempt to do 9 so is legally frivolous, and thus this court should enter an award of attorneys’ fees pursuant to 42 10 U.S.C. § 1988(b). 11 Discussion 12 A prevailing party in a § 1983 case may move for reasonable attorneys’ fees as part of its 13 costs. 42 U.S.C. § 1988(b). A prevailing defendant may recover reasonably attorneys’ fees “‘in 14 exceptional circumstances’” in which the plaintiff's claims are “‘frivolous, unreasonable or without 15 foundation.’” Harris v. Maricopa Co. Sup. Ct., 631 F.3d 963, 971 (9th Cir. 2011) (quoting Barry v. 16 Fowler, 902 F.2d 770, 773 (9th Cir. 1990)). “Only fees ‘attributable exclusively to plaintiff’s 17 frivolous claims,’ are recoverable by a defendant.” Id. (quoting Tutor-Saliba Corp. v. City of Hailey, 18 452 F.3d 1055, 1064 (9th Cir. 2006)). “A defendant must demonstrate that the work for which it 19 asserts that it is entitled to fees would not have been performed but for the inclusion of the frivolous 20 claims in the complaint.” Id. at 972. Where a defendant fails to shoulder this burden, “it is not 21 entitled to the fees in question.” Id. 22 Section 1983 claims against states are legally frivolous. See Jackson v. Arizona, 885 F.2d 23 639, 641 (9th Cir. 1989), superseded by statute on other grounds as stated in, Lopez v. Smith, 203 24 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 25 As argued in the state’s second motion to dismiss, and stated by this court’s order granting 26 the motion, it is black letter law that sovereigns cannot be sued in federal court, as states are not 27 persons for purposes of § 1983. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 28 James C. Mahan U.S. District Judge -2- 1 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Doe v. Lawrence Livermore 2 Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997). 3 However, to be awarded fees, a defendant must show that the fees sought are traceable to the 4 defense of the legally frivolous claims. See Harris, 631 F.3d at 971. The state’s motion fails to 5 persuade the court that the $14,250 dollars in attorneys’ fees it seeks is fully traceable to defending 6 against the inclusion of the state and a state official in this suit. The motion to dismiss was 7 successful in dismissing the legally frivolous claims against the state and Mr. Ferriolo in his official 8 capacity. The motion was denied, however, with regards to dismissing Mr. Ferriolo as an individual 9 on the basis of qualified immunity. 10 Thus, the legal efforts expended by the state in the motion were not “attributable exclusively 11 to plaintiff’s frivolous claims.” See id. Though plaintiff’s inclusion of the state and Mr. Ferriolo as 12 an official of the state may be legally frivolous, his suit is not. Plaintiff prevailed in defending the 13 complaint as against Mr. Ferriolo as an individual and the suit continues to proceed as against Mr. 14 Ferriolo. As such, this court cannot find that the 47.5 hours expended in the litigation were wholly 15 attributable to defending against legally frivolous claims, as it is unclear what portion of those hours 16 were expended in defense of the still viable claims brought against Mr. Ferriolo as an individual. 17 Put another way, the defendant has not carried its burden of establishing that its attorneys 18 would not have performed the work involved but for the need to defend against the frivolous claims. 19 See id. at 972. For example, the hours spent reviewing and researching the complaint, drafting an 20 answer, preparing for and engaging in discovery, preparing the motion, and discussing the incident 21 were not the sole result of the legally frivolous inclusion of the state and Mr. Ferriolo as an official. 22 Rather, an as yet undetermined portion of this time would have still been expended in defense of the 23 claims against Mr. Ferriolo as an individual. 24 ... 25 ... 26 ... 27 ... 28 James C. Mahan U.S. District Judge -3- 1 Accordingly, 2 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the state’s motion for 3 4 attorney’s fees (doc. 40) be, and the same hereby is, DENIED. DATED December 9, 2011. 5 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -4-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?