Gagnon et al v. State of Nevada et al
Filing
139
ORDER granting in part and denying in part ECF No. 110 Motion for Attorney Fees; directing Clerk to enter amended judgment in favor of defendants and against Gagnon in the amount of $7,841.47; granting ECF No. 136 Motion to Withdraw as Attorney; and directing Clerk to mail copy of order to Plaintiff at address indicated in attached order (mailed 5/24/16). Signed by Judge Jennifer A. Dorsey on 5/23/16. (Copies have been distributed pursuant to the NEF - JC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Jean Gagnon,
2:13-cv-00528-JAD-PAL
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Plaintiff
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Order Granting in Part and Denying in
Part Motion for Attorney’s Fees and
Granting Motion to Withdraw as
Attorney
v.
State of Nevada, et al.,
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Defendants
[ECF Nos. 110, 136]
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Jean Gagnon sued the State of Nevada and its divisions: the Nevada Highway Patrol (“NHP”
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and the Department of Public Safety (“DPS”) and NHP Officers Perry and Sanchez for a handful of
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claims under § 1983 and Nevada state law. After the first round of dismissals, Gagnon filed an
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amended complaint asserting three claims for relief, and defendants again moved for judgment on
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the pleadings. I granted judgment in favor of the defendants on Gagnon’s First Amendment
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retaliation claim because it was insufficiently plead, dismissed Gagnon’s federal conspiracy claim
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with prejudice, and struck Gagnon’s due-process claim. Defendants now move for attorney’s fees
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under 42 U.S.C. § 1988(b). I find that defendants are entitled to a partial award of attorney’s fees
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under § 1988(b), award them $7,841.47 in fees, and grant Gagnon’s counsel’s motion to withdraw.1
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Background
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Gagnon’s original complaint contained claims for First Amendment retaliation, “citizens[’]”
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Fourth Amendment violations by NHP, civil-conspiracy claims under both state law and 42 U.S.C. §
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1985, a claim for slander or defamation, a §1983 claim for failure to train, and claims for trespass,
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fraud, unjust enrichment, and RICO violations.2
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Defendants promptly responded with a motion for judgment on the pleadings. In response,
Gagnon abandoned—and conceded to—the dismissal of his Fourth Amendment, federal conspiracy,
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I find these matters suitable for disposition without oral argument. L.R. 78-1.
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ECF No. 1.
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and trespass claims.3 I then dismissed with prejudice Gagnon’s claims for slander/defamation, fraud,
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unjust enrichment, § 1983 failure to train, and RICO violations.4 I dismissed Gagnon’s First
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Amendment retaliation and state civil-conspiracy claims without prejudice and with leave to amend.5
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But despite having leave to amend for the limited purpose of repleading these two claims, Gagnon
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filed an amended complaint repleading his First Amendment retaliation claim, reanimating his
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federal civil-conspiracy claim, and adding a new due-process claim.6
Defendants again moved for judgment on the pleadings,7 arguing that Gagnon’s First
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Amendment claim still failed as plead and pointed out that Gagnon was never given leave to refile
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his abandoned federal civil-conspiracy claim or leave to assert a new due-process claim.8 Gagnon
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opposed the motion9 and—two months later (and three months after the deadline to amend pleadings
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expired)—Gagnon filed a motion for leave to file a second-amended complaint.10 Gagnon’s
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proposed second-amended complaint contains the same three claims as his first-amended complaint
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but includes additional facts, purportedly to bolster his First Amendment retaliation claim.11
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I found that Gagnon’s retaliation claim was still deficiently plead because he failed to allege
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that he had made a protected statement that attracted the retaliation.12 I denied Gagnon’s request for
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leave to amend his retaliation claim a second time because he did not demonstrate that he could
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ECF No. 75-1 at 20:12–22.
Id. at 20:37–41.
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Id.
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ECF No. 45.
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ECF No. 75.
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Id.
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ECF No. 85.
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ECF No. 94.
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ECF No. 94-1.
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ECF No. 107 at 7–9.
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plead a protected communication even if he were given another chance to do so.13 I then dismissed
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Gagnon’s federal civil-conspiracy claim because it was unauthorized and it failed as a matter of law
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because § 1985 only applies to federal officers.14 Finally, I struck Gagnon’s new due-process claim
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because he lacked leave to add it.15
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Discussion
A.
Defendants are entitled to a partial award of attorney’s fees under § 1988(b).
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The American Rule recognizes that each party in litigation must bear its own attorney’s fees
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in the absence of a rule, statute, or contract authorizing an award of fees.16 Section 42 USC §
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1988(b) is a fee-shifting statute. It allows district courts to award attorney’s fees to the prevailing
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party in § 1983 cases. But attorney’s fees in civil-rights cases should only be awarded to a defendant
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in exceptional circumstances.17 A defendant may only recover attorney’s fees if the plaintiff’s action
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was “frivolous, unreasonable, or without foundation.”18 An action becomes frivolous when the result
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appears obvious or arguments are wholly without merit, and a defendant can recover if the plaintiff
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violates this standard at any point during the litigation, not just at the inception.19
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Defendants request $64,315.50 ($132.83 x 473.50 hours) in fees for defending this suit since
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its inception.20 Defendants contend that Gagnon’s claims were frivolous and vexatious from the
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outset.
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I decline to award defendants the full amount of attorney’s fees for defending this lawsuit.
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Id. at 10–12.
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Id. at 12–13.
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Id. at 14–15.
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MRO Commc’n Inc. v. Tel. & Co., 197 F.3d 1276, 1281 (9th Cir. 1999).
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Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990).
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Id. (internal citations omitted).
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Christianberg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978).
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ECF No. 110 at 13.
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Though Gagnon did not ultimately prevail, his claims did not become frivolous or unreasonable until
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after the first round of dismissals. For example, in response to defendants’ first motion for judgment
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on the pleadings, Gagnon conceded and abandoned four of his claims. And Gagnon had leave to file
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an amended complaint and to replead his First Amendment retaliation claim, so I decline to award
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defendants fees for defending that claim. But I find that defendants are entitled to attorney’s fees for
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defending Gagnon’s amended federal civil-conspiracy claim and his due-process claim because (1)
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these claims were frivolous when filed because they were filed without leave of court and (2)
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Gagnon continued to defend them even after defendants pointed out that he had expressly abandoned
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one of them and lacked leave to add either claim.
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I find that defendants’ fee calculations are reasonable. “The starting point for determining a
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reasonable fee is the ‘lodestar’ figure, which is the number of hours reasonably expended multiplied
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by a reasonable hourly rate.”21 Defendants’ hourly rate of $135.83 is reasonable in light of the
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complexity of this case, the attorneys’ experience, and the customary litigation fees for defending
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similar claims in this community. I also find that the hours expended are reasonable. Defendants
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submit an attorney declaration and detailed summary of the work performed in this case. The 10-
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page summary shows that defendants’ attorneys spent 40.6 hours preparing their second motion for
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judgment on the pleadings and 35.5 hours reviewing Gagnon’s opposition and preparing their reply,
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for a total of 76.10 hours.22 However, some of those hours were dedicated to defending Gagnon’s
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First Amendment retaliation claim, filed with leave of court, so they are not entitled to recoup all of
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these fees. Because defendants are entitled to recover fees for defending two out of the three claims
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in Gagnon’s amended complaint, I reduce these hours by one third. Defendants are therefore entitled
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to fees for 57.73 hours or $7,841.47.
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B.
Motion to withdraw as attorney
Gagnon’s counsel moves to withdraw as counsel.23 Counsel attaches an affidavit stating that
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Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992)
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ECF No. 110-2.
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ECF No. 136.
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this case has become increasingly complex and cost prohibitive for a solo practitioner and that
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Gagnon is already interviewing other attorneys, presumably to represent him on appeal. Because
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final judgment has been entered, I find that Gagnon will not be prejudiced by counsel’s withdrawal,
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so I grant counsel’s motion.
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Conclusion
Accordingly, with good cause appearing and no reason to delay, IT IS HEREBY ORDERED
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that defendants’ motion for attorney’s fees [ECF No. 110] is GRANTED in part and DENIED
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in part; defendants are awarded fees of $7,841.47.
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The Clerk of Court is directed to enter an amended judgment in favor of defendants and
against Gagnon in the amount of $7,841.47.
IT IS FURTHER ORDERED that plaintiff’s counsel’s motion to withdraw as attorney
[ECF No. 136] is GRANTED.
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The Clerk of Court is directed to mail a copy of this order to:
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Jean Gagnon
8315 Browns Mountain Court
Las Vegas, Nevada 89131
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Dated this 23rd day of May, 2016.
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_________________________________
Jennifer A. Dorsey
United States District Judge
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