RUSSO v. CITY OF ATLANTIC CITY et al

Filing 75

MEMORANDUM ORDER denying 72 Motion for Attorney Fees. Signed by Judge Renee Marie Bumb on 2/21/2017. (tf, )

[Dkt. No. 72]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
RICK RUSSO,
Plaintiff,

Civil No. 13-3911 (RMB/AMD)
MEMORANDUM ORDER

v.
CITY OF ATLANTIC CITY, et al.,
Defendants.

This matter comes before the Court upon Defendants’ City of
Atlantic City and Anthony Cox (the “Defendants”) motion for
attorneys’ fees pursuant to 42 U.S.C. § 1988.1

Because the Court

writes only for the parties, it will set forth only a brief
background of the case.
Plaintiff Rick Russo (the “Plaintiff”), filed an employment
retaliation suit against his employer, Defendant City of Atlantic
City and one of his supervisors, Defendant Anthony Cox.

Plaintiff

based his First Amendment retaliation claim based on three
instances of alleged protected speech: (1) his approval of a
citation on a property in which Defendant Cox had an ownership

Defendants failed to comply with Local Rule 54.2 which sets
forth the manner and procedure for applications for the award of
fees. Because this Court denies the motion on substantive
grounds, the Court does not address this procedural deficiency.
See Barton v. Mid-Atl. Flooring Ventures Inc., Civ. No. 13-4592
(RMB/AMD), 2014 WL 6885976, at *2-4 (D.N.J. Dec. 4, 2014).
1

1

interest; (2) his request for an opinion from the International
Property Maintenance Code Council in connection with an exemption
Defendant Cox granted to the property; and (3) a grievance he
submitted regarding his out-of-title status.

Upon Defendants’

motion for summary judgment, the Court ruled that these three
actions of alleged protected speech were performed by Plaintiff in
his employment capacity as a Supervising Field Representative for
Defendant City of Atlantic City, and the grievances were likewise
related to employment matters as opposed to matters of public
concern.

Accordingly, Plaintiff could not meet his burden of

establishing that he engaged in protected speech in order to
succeed on his First Amendment retaliation claim.

Further, the

Court held that Plaintiff did not produce any evidence that the
alleged adverse actions taken against him were retaliatory.
In support of their motion for fees, Defendants contend that
they made Plaintiff aware of the legal deficiencies of his First
Amendment claim by a letter dated May 6, 2015.

More specifically,

Defendants aver that because Plaintiff was made aware of the
groundless claims against both Defendants, and Plaintiff refused to
dismiss the Complaint (at least the First Amendment claim), they
are entitled to fees and costs under section 1988.
Plaintiff counters that regardless of whether the First
Amendment Claim was dismissed after counsel for Defendants sent the
letter of May 6, 2015, Plaintiff was still permitted to, and
obligated to, pursue discovery of the Defendant Anthony Cox and

2

deposition of a witness, Mr. Stinsman, for purposes of prosecuting
his CEPA claims which are currently pending in New Jersey State
Court. Pl.’s Opp. to Defs.’ Mot. 4 [Dkt. No. 74].

Plaintiff

further responds that the May 6, 2015, letter was “only received a
day or two” prior to the May 12, 2015, deposition of Anthony Cox,
id., and the deposition of Mr. Stinsman was taken after Cox’s
deposition and before Defendants filed their motion for summary
judgment.

Finally, Plaintiff argues that the facts regarding

CEPA’s claim, which this Court did not rule on, and Plaintiff’s
First Amendment claims, which this Court dismissed, overlap.

So,

even assuming the First Amendment claim was frivolous, Plaintiff
claims the same discovery would have been necessary.

It is well settled that under 42 U.S.C. § 1988, a court
may, in its discretion, award attorneys’ fees to a prevailing
party.

Id.

Therefore, “a prevailing defendant may request the

reimbursement of legal fees incurred in order to defend an
action under [42 U.S.C. § 1983].”

Boehler v. Middletown

Township, CIV. No. 88-4009 (CSF), 1991 WL 49748 (D.N.J. Mar. 27,
1991).

Under Section 1988, attorneys’ fees and costs may be

awarded to a prevailing defendant when the court finds that the
plaintiff’s claim is “frivolous, unreasonable, or groundless, or
that the plaintiff continued to litigate after it clearly became
so.”

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422

(1978); see also Fox v. Vice, 563 U.S. 826, at 832-33 (2011)

3

(discussing Christiansburg and Section 1988); Brown v. Borough
of Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990) (relying upon
Christiansburg).
Fees should not be awarded, however, where the plaintiff
presents reasonably debatable evidence of a constitutional
See Brown, 903 F.2d at 278 (“We are not confronted

violation.

with a case where the evidence is reasonably debatable as to
whether plaintiff’s claim rises to the level of a fourteenth
amendment violation”).

Instead, as Defendants point out, “cases

where findings of ‘frivolity’ have been sustained typically have
been decided in the defendant’s favor on a motion for summary
judgment . . . .

In these cases, the plaintiffs did not

introduce any evidence to support their claims.”

E.E.O.C. v.

L.B. Foster Co., 123 F.3d 746, 751 (3d. Cir. 1997) (quoting
Sullivan v. School Bd., 773 F.2d 1182, 1189 (11th Cir. 1985)).
Factors that should be considered in determining whether an
award of attorneys’ fees is appropriate include “(1) whether the
plaintiff established a prima facie case; (2) whether the
defendant offered to settle; and (3) whether the trial court
dismissed the case prior to trial or held a full-blown trial on
the merits.”

Id. at 751; see also id. (“These factors are,

however, guideposts, not hard and fast rules.”).
Certainly, the following factors weigh in favor of an award
of fees:

Plaintiff failed to establish a prima facie case;
4

Plaintiff’s First Amendment claim was dismissed at the summary
judgment stage; and there were discussions of settlement.
Several facts favor awarding no fees.

First, the

deposition of Cox was relevant discovery and played a role, in
part, on this Court’s decision to grant summary judgment.

Thus,

although Defendants advised Plaintiff of their position that the
First Amendment claims being pursued were legally insufficient
prior to Cox’s deposition, it cannot be said that Plaintiff’s
decision to move forward with Cox’s deposition was a frivolous
one.

Perhaps after Cox’s deposition, Plaintiff should have

conceded the First Amendment claims, rather than litigating it
through the summary judgment stage.
prudent thing to do.

That would have been the

Second, a review of Plaintiff’s opposition

papers does not disclose any bad faith arguments, just weak
arguments that did not carry the day.

Finally, the Court is

persuaded by Plaintiff’s contention, one that Defendants do not
really dispute, that the discovery would have gone forward as to
Plaintiff’s CEPA claim anyway.

Whether the pursuit of the CEPA

claim is frivolous or not is for the State Court to decide.
At the end of the day, the Court finds that the more
reasonable and prudent course of action on the part of the
Plaintiff would have been to dismiss the First Amendment claims
against Defendants.

That Plaintiff failed to do so is

unfortunate, but not frivolous.
5

Accordingly, for these reasons, Defendants’ motion for
attorneys’ fees will be denied.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: February 21, 2017

6