North v. Cuyahoga County, et al
Opinion and Order denying 85 defendants' Motion for costs/expenses (Motion to Be Declared Prevailing Parties and for an Award of Reasonable Attorneys Fees, Nontaxable Expenses, and Taxable Costs, and for Submission of Evidence of Same) Judge Dan A. Polster 9/5/2017(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CUYAHOGA COUNTY, et al.,
CASE NO. 1:15-cv-01124-DAP
JUDGE DAN AARON POLSTER
OPINION AND ORDER
The above-captioned case is before the Court on “Defendants’ Motion to Be Declared
‘Prevailing Parties’ and for an Award of Reasonable Attorneys’ Fees, Nontaxable Expenses, and
Taxable Costs, and for Submission of Evidence of Same.” Doc #: 85 [hereinafter “Motion for
With the filing of the Amended Complaint on April 5, 2016, the above-captioned case
included five named defendants: Cuyahoga County, S. Mirolovich, M. Elhalaby, C. Clack, and S.
Hester. Doc #: 21. Each defendant was ultimately dismissed:
On June 13, 2017, North voluntarily dismissed Hester and Elhalaby without
prejudice. Doc ##: 73, 74.
On July 19, 2017, the Court granted summary judgment in favor of Mirolovich.
Doc ##: 78, 79.
On August 14, 2017, the Court granted summary judgment in favor of Cuyahoga
County and Clack. Doc ##: 83, 84.
On August 28, Defendants Cuyahoga County, Elhalaby, Clack, and Hester (collectively,
“County Defendants”) filed the instant Motion for Expenses pursuant to Federal Rule of Civil
Procedure 54(d), 42 U.S.C. § 1988, and 28 U.S.C. § 1927.
II. Legal Standards
“In the United States, the prevailing litigant is ordinarily not entitled to collect a
reasonable attorneys’ fee from the loser.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421
U.S. 240, 247 (1975). 42 U.S.C. 1988(b) is an exception to this general rule, which provides (as
to § 1983 and certain other statutes), “the court, in its discretion, may allow the prevailing party .
. . a reasonable attorney’s fee as part of the costs.” A party reaches prevailing party status by
obtaining a judgment on the merits or a court-ordered consent decree. Buckhannon Board and
Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598, 603–04
(2001). While district courts traditionally award attorney’s fees to prevailing plaintiffs in all but
special circumstances, attorneys’ fees may be awarded to prevailing defendants only upon a
finding that the plaintiff’s action was “frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.” Smith v. Smythe-Cramer Co., 754 F.2d 180, 182–83
(6th Cir. 1985) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). “Yet
because ‘[a]n award of attorney’s fees against a losing plaintiff in a civil rights action is an
extreme sanction,’ it ‘must be limited to truly egregious cases of misconduct.’” Lowery v.
Jefferson Cty. Bd. of Educ., 586 F.3d 427, 437 (6th Cir. 2009) (quoting Jones v. Continental
Corp., 789 F.2d 1225, 1232 (6th Cir. 1986); see Serrano v. Cintas Corp., 699 F.3d 884, 905 (6th
Cir. 2012) (finding that losing numerous motions, failing to respond properly to discovery
requests, refusal to produce information, and withdrawal of claims for lack of merit did not
constitute egregious and unreasonable conduct).
In contrast to 42 U.S.C. § 1988, which shifts attorneys fees to the losing party, 28 U.S.C.
§ 1927 provides that any attorney “who so multiplies the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and
attorney’s fees reasonably incurred because of such conduct.” “Sanctions are warranted when an
attorney objectively ‘falls short of the obligations owed by a member of the bar to the court and
which, as a result, causes additional expense to the opposing party.’” Red Carpet Studios Div. of
Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006) (quoting In re Ruben, 825
F.2d 977, 984 (6th Cir. 1987)). The purpose of such sanctions “is to deter dilatory litigation
practices and to punish aggressive tactics that far exceed zealous advocacy,” and these sanctions
may be appropriate when an attorney “intentionally abuses the judicial process or knowingly
disregards the risk that his actions will needlessly multiply proceedings.” Id. While a finding of
“subjective bad faith” is not required, the conduct must have been something “more than
negligence or incompetence.” Id.
Finally,”[u]nless a federal statute, these rules, or a court order provides otherwise,
costs--other than attorney’s fees--should be allowed to the prevailing party.” Fed. R. Civ. P.
54(d)(1). “[T]he decision whether to award costs ultimately lies within the sound discretion of
the district court.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 377 (2013). Recovery pursuant
to Rule 54(d) is limited to certain enumerated categories of costs. See 28 U.S.C. § 1920 (listing
appropriate items of cost); see also In re Cardizem CD Antitrust Litig., 481 F.3d 355, 359 (6th
Cir. 2007) (“[T]he discretion that Rule 54(d)(1) gives courts . . . is discretion to decline requests
for costs, not discretion to award costs that § 1920 fails to enumerate.”); see also 10-54 Moore's
Federal Practice - Civil § 54.103 (2017).
A. Attorneys’ Fees
Setting aside the question of whether all the County Defendants are prevailing parties,1
the Court considers whether North’s suit was “frivolous and meritless,” as County Defendants
suggest. Mot. for Expenses 5. Defendants further claim “It should have been patently obvious to
Plaintiff’s counsel that the facts alleged did not as a matter of law, provide a basis for any of
Plaintiff’s claims.” Mot. for Expenses 6. Such allegations misrepresent the litigation of the
Ultimately, the Court did grant summary judgment in favor of the County Defendants,
primarily on the basis of statute of limitations. Op. and Order 25, Doc #: 83. However, despite
this final decision in the defendants’ favor, North and his attorneys were not unreasonable in
their pursuit of the case. The statute of limitations issue included highly contested questions both
of law and fact, and the Court in fact denied—on three separate, prior occasions—defendants’
motions to dismiss the case on the basis of statute of limitations. Doc ##: 9, 29, 40.
The Court also found that North’s claims failed on the merits, noting that “Plaintiff’s
It is not immediately obvious whether the voluntarily dismissed defendants—Elhalaby
and Hester—should be considered prevailing parties within the meaning of 42 U.S.C. § 1988.
claims fail to demonstrate a constitutional violation or willful, wanton, reckless, and negligent
disregard.” Op. and Order 25–26. This conclusion was not forgone from the beginning,
however. In addressing Clack, Hester, and Elhalaby’s Motion to Dismiss, the Court observed,
By accusing North of lying about his arm, Clack, Hester, and Elhalaby
explicitly acknowledged North’s claim of medical symptoms and rejected
providing him medical care. North further alleges that over an hour passed
between the moment he suffered a stroke and the time he received medical
care. EMS was called only after “someone called a supervisor, who instructed
Defendants Mirolovich and/or Clack and/or Elhalaby and/or Hester . . . to get
Plaintiff Cameron North emergency medical treatment.” Am. Compl. ¶¶
52–53. From these allegations, a finder of fact could infer that Clack, Hester,
and Elhalaby knew of the serious risk of delaying medical assistance,
disregarded that risk, and consequently had a sufficiently culpable state of
mind . . . .
Order Den. Mot. to Dismiss 7–8, Doc #: 40. As it turned out, the facts available at summary
judgment actually bore substantial resemblance to the facts alleged in the Amended Complaint,
with the notable and important exception of not identifying which personnel may have accused
North of lying and without identifying which personnel may have let North wait an hour before
calling for emergency medical service. Op. and Order 12 (summarizing the events immediately
following North’s stroke).
Simply, North suffered a debilitating stroke while under the care of Cuyahoga County
Correctional Center’s and its medical personnel. The Court found, on motions for summary
judgment, that neither of the two remaining, named, individual defendants acted with more than
mere negligence during the statutorily limited time period. Negligence is, of course, insufficient.
However, a failure to demonstrate timely recklessness (or intentional misconduct) does not here
lead to the conclusion that “North’s claims were nothing more than an attempt to harass the
County and its employees for performing their duties.” Mot. for Expenses 6.
Accordingly, the Court finds that North’s claims were not frivolous and that North’s
pursuit of his claims was certainly not the sort of “egregious” misconduct required to support
sanctions against such a plaintiff, personally. Furthermore, the Court finds that North’s claims
did not lack a plausible basis, so as to warrant sanctions against North’s attorney, and that there is
no evidence that North’s attorneys exceeded the bounds of zealous, but professional, advocacy in
this case.2 Attorneys’ fees are denied.
The County Defendants also move for taxable costs, pursuant to Rule 54(d). Generally,
the burden for recovery of such costs is not high—in fact, “Rule 54(d) creates a presumption in
favor of awarding costs to the prevailing party.” Hunter v. Gen. Motors Corp., 161 F. App’x
502, 503 (6th Cir. 2005). Importantly, this rule is not without exceptions, which may or may not
be relevant, here. See White & White, Inc. v. Am. Hosp. Supply Corp., 786 F.2d 728, 730 (6th
Cir. 1986) (identifying several exceptions to the presumption in favor of awarding costs); see
also Amherst Exempted Vill. Sch. Dist. Bd. of Educ. v. Calabrese, No. 1:07 CV 920, 2008 WL
2810244, at *17–18 (N.D. Ohio July 21, 2008) (adopted report and recommendation) (discussing
effect of voluntary dismissal with prejudice on “prevailing party” status).
Here, however, insofar as the County Defendants seek costs pursuant to Rule 54(d)(1), it
is not entirely clear what the County Defendants are actually asking the Court to rule on at this
time. The County Defendants have not requested the Clerk tax costs, have filed no bill of costs,
and have not even given the Court an indication of which of § 1920’s six categories of costs
Nothing in this order has any effect on the Court’s prior Order, Doc #: 70, requiring
Plaintiff to assume the costs of a specific second deposition.
might apply, or why. Moreover, the four County Defendants do not discuss at all which of them
qualify as “prevailing parties” under Rule 54(d), or why.3 In fact, while the County Defendants
mention Rule 54(d) on the first page of their Motion for Expenses, Rule 54(d) is discussed
nowhere in their Memorandum in Support of the Motion for Expenses. Thus, as there are no
submitted costs to evaluate and no arguments about the law, it would be difficult for North to
oppose the motion for costs, just as it is now impossible for the Court to meaningfully evaluate
the merits of the County Defendants’ request.
Therefore, the Court denies County Defendants’ Motion for costs pursuant to Rule
For the reasons set forth above, the Motion for Expenses, Doc #: 85, is DENIED.
IT IS SO ORDERED.
/s/ Dan A. Polster Sept. 5, 2017
DAN AARON POLSTER
UNITED STATE DISTRICT JUDGE
Although the four County Defendants move as a collective group and refer to themselves
as a collective group, the analysis of their situations may be different: most notably because two
defendants were voluntarily dismissed without prejudice and two were granted summary
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