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)
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 This motion was withdrawn pursuant to plaintiff’s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?