Kidiavayi v. Leonard et al

Filing 78

ORDER denying 63 Motion for Attorney Fees; denying 74 Motion for Attorney Fees. Signed by Judge Kent J. Dawson on 6/14/17. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STANLEY KIDIAVAYI,

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Plaintiff,
v.

Case No. 2:16-cv-01202-KJD-NJK
ORDER

UNIVERSITY OF NEVADA, DR.
BRUCE LEONARD, personally, DOES IX, inclusive and ROE Corporations I-X,
inclusive,

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Defendants.
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Presently before the Court are Defendants’ Motions for Attorney’s Fees and Costs (#63/74).
Plaintiff filed a response in opposition (#67/75) to which Defendants replied (#69/76).
On March 29, 2017 the Court granted Defendant’s motion to dismiss Plaintiff’s federal

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claims because the statute of limitations had expired, denied Plaintiff’s motion to amend as futile,

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and declined to exercise supplemental jurisdiction over the remaining state claims, and remanded.

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Now, Defendants have moved for an award of attorney’s fees and costs as a prevailing party under 42

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U.S.C. § 1988 and 28 U.S.C. § 1927.

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42 U.S.C. § 1988

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As a general rule, “a district court may in its discretion award attorney’s fees to a prevailing

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defendant...upon a finding that the plaintiff’s action was frivolous, unreasonable, or without

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foundation, even though it was not brought in subjective bad faith.” Christiansburg Garment Co. v.

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E.E.O.C., 434 U.S. 412, 421 (1978) (Title VII); see also Hughes v. Rowe, 449 U.S. 5, 14-16 (1980)

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(42 U.S.C. § 1983). By frivolous, the court means that the litigation must be “meritless in the sense

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that it is groundless or without foundation.” Hughes, 449 U.S. at 14; see also Dooley v. Reiss, 736

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F.2d 1392, 1396 (9th Cir. 1984). In other words, litigation is frivolous if the result is obvious or the

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arguments are wholly without merit. See Glanzman v. Uniroyal, Inc., 892 F.2d 58, 61 (9th Cir.

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1989).

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“A defendant stands in a different equitable position from that of a prevailing plaintiff.
Nevertheless, Congress intended to protect defendants from ‘litigation having no legal or factual

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basis.’” Mitchell v. Los Angeles Ct. Superintendent of Schools, 805 F.2d 844, 847 (9th Cir. 1986)

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(quoting Christiansburg, 434 U.S. at 420) (emphasis added). “Only in exceptional cases did Congress

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intend that defendants be awarded attorney’s fees.” Id. at 848.

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This is not an exceptional case. Although the Court ultimately determined that the claim was

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time barred, Plaintiff has grounds for appeal based on his argument that the claim should have been

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tolled during NERC’s review. There is nothing indicating that the Plaintiff’s claim for discrimination

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was without merit, groundless or without foundation. Also, depositions indicated that there were

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concerns regarding the grading process with a different student of a different sex, race, and gender to

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that of the Plaintiff. See Deposition Transcripts of Mr. Festus Ebonka (#40-1). Furthermore,

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Defendants made changes to the policy to help avoid any discriminatory practices, including a policy

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to not review a student’s photo before being admitted into the program. See Deposition Transcript of

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Dr. Juanita Fain (#40-2). Defendants have failed to meet their burden to establish that Plaintiff’s

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action was frivolous, unreasonable or without foundation. Therefore, the Court declines to award

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attorney’s fees pursuant to 42 U.S.C. § 1988.

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28 U.S.C. § 1927

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Pursuant to 28 U.S.C. § 1927, “[a]ny attorney...who so multiplies the proceedings in any case

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unreasonably and vexatiously may be required by the court to satisfy personally the excess costs,

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expenses, and attorneys’ fees reasonably incurred because of such conduct.” See also In re Girardi,

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611 F.3d 1027, 1060-61 (9th Cir. 2010). The imposition of sanctions under § 1927 requires a finding

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that counsel acted “recklessly or in bad faith.” United States v. Blodgett, 709 F.2d 608, 610 (9th Cir.

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1983) (citing Barnd v. City of Tacoma, 664 F.2d 1339, 1343 (9th Cir. 1982)). Defendants have failed

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to meet their burden in establishing that Plaintiff’s counsel acted recklessly or in bad faith. Therefore,

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the Court declines to award attorney’s fees pursuant to 28 U.S.C. § 1927.

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Accordingly, IT IS HEREBY ORDERED that Defendants’ Motions for Attorney’s Fees and
Costs (#63/74) are DENIED.
DATED this 14th day of June 2017.

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Kent J. Dawson
United States District Judge

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