Kardell v. Lane County et al

Filing 99

ORDER: Defendants' Motion for Attorney Fees 85 is Denied. Plaintiff's Motion for fees incurred in drafting surreply is denied. Signed on 1/13/2015 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARC KARDELL,
Plaintiff,
v.

Case No. 6:13-cv-736-MC
ORDER

LANE COUNTY, LIANE RICHARDSON,
and ALEX GARDNER,
Defendants.
_____________________________
MCSHANE, Judge:
After my order granting defendants’ motions for summary judgment, defendants Liane
Richardson and Lane County moved for an award of attorney’s fees. Plaintiff Marc Kardell
claimed defendants retaliated against him after he spoke out on various department practices and
policies. Ultimately, I concluded Kardell failed to demonstrate he spoke as a private citizen on
matters of public concern.

1 – OPINION AND ORDER

Unlike prevailing plaintiffs in civil rights cases, prevailing defendants in civil rights
actions are not automatically awarded attorney’s fees. In fact, prevailing defendants in civil
rights cases are only entitled to attorney’s fees in “exceptional circumstances,” and only when a
plaintiff’s claims are “frivolous, unreasonable or groundless.” Harris v. Maricopa Co. Superior
Court, 631 F.3d 963, 971 (9th Cir. 2011) (internal citations omitted). Good public policy reasons
justify the different burdens for fees. Most significantly, awarding attorney’s as a matter of
course to prevailing defendants in civil rights actions would greatly increase the risk to plaintiffs
bringing such cases, thereby frustrating Congress’s efforts promoting the “vigorous
enforcement” of such statutes. Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam) (quoting
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)).
Although I concluded Kardell failed to establish a genuine issue of material fact that he
spoke as a private citizen on matters of public concern, his claims were neither frivolous nor
groundless. Whether speech concerns a matter of public concern is “purely a question of law,”
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009), and the law in this area is one of emerging
jurisprudence, a fact most recently highlighted last year by the Supreme Court, Lane v. Franks,
134 S. Ct. 2369, 2376-83. As I stated at oral argument, this case presented fairly close questions.
Complicating matters in this case is the fact that Liane Richardson was ultimately terminated for
cause by the Lane County Board of Commissioners. Richardson’s termination, and other events
involving both the Board and Kardell’s own department, were certainly newsworthy (as
evidenced by numerous newspaper articles Kardell submitted in opposition to summary
judgment).
Kardell ultimately identified specific speech in support of his claims. Kardell did not rely
merely on newspaper articles or the public interest surrounding Richardson’s management of
2 – OPINION AND ORDER

Lane County during the time in question. Kardell’s arguments that his speech did not relate to
mere interoffice personnel disputes, and did not occur as part of his normal job duties were not
frivolous. That defendants prevailed at summary judgment does not automatically render
Kardell’s arguments frivolous. Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.
1994).
Defendants’ motion for fees (ECF No. 85) is DENIED. Plaintiff’s motion for fees
incurred in drafting the surreply is DENIED.
IT IS SO ORDERED.

DATED this 13th day of January, 2015.

/s/ Michael J. McShane
Michael McShane
United States District Judge

3 – OPINION AND ORDER