KISNER v. DEFAZIO et al

Filing 371

ORDER denying 334 Motion for Attorney Fees; granting 343 Motion for Clarification. Signed by Judge Donetta W. Ambrose on 6/7/10. (slh)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA W ILLIAM I. KISNER, Plaintiff, vs. PETER R. DEFAZIO, et al., Defendants. ) ) ) ) ) ) ) ) )

Civil Action No. 7-788

AMBROSE, District Judge MEMORANDUM ORDER In this civil rights action, a jury entered a verdict in Defendant's favor. Defendant Mullen has filed a Motion for Attorney Fees and costs (Docket No. 334), in which the other Defendants join. Defendant Mullen has also filed a Motion to Clarify Motion for Attorney Fees (Docket No. 343), in which Defendant Mullen seeks to clarify that the Motion for Attorney Fees is brought against William I. Kisner, Adrian Roe, Adrian N. Roe, P.C., Eric Springer, Charles Watkins, and Barnes, Dulac & Watkins formerly Watkins, Dulac & Roe. The Motion for Clarification (Docket No. 343) is granted. W ith regard to the Motion for Attorney Fees, under 42 U.S.C. § 1988, "[i]f the prevailing party is the defendant, attorney's fees may be awarded if the plaintiff's complaint was frivolous, unreasonable, or groundless, or if the plaintiff continued to litigate after it was found so." Brown v. Borough of Chambersburg, 903 F.2d 274, 277 (3d Cir. 1990). Similarly, under 28 U.S.C. § 1927, a defendant may be awarded fees if the action was frivolous from the start, and plaintiff pursued litig ation despite legal or factual infirmities. Deyo v. St. Luke's Hosp. & Health Network, No. 63712, 2010 U.S. Dist. LEXIS 39014, at *4 (E.D. Pa. Apr. 16, 2010). Here, Defendants claim entitlement to fees, on the basis that the litigation was frivolous, vexatious, and improperly or in bad faith pursued and multiplied. I have carefully considered each of Defendants' contentions, and find that no such award is warranted in this case.

AND NOW, this 7th day of June, 2010, the Motion for Clarification (Docket No. 343) is granted and the Motion for Attorney Fees (Docket No. 334) is hereby DENIED.

BY THE COURT: /s/ Donetta W. Ambrose Donetta W. Ambrose United States District Judge

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