Arneson et al v. Grebien et al
Filing
45
MEMORANDUM AND ORDER denying 41 Motion for Attorney Fees. So Ordered by Chief Judge Mary M. Lisi on 5/22/2013. (Duhamel, John)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
COLLEEN ARNESON
COLLEEN ARNESON
as parent and best friend of K.A.
JOANNE LIZOTTE
AMY-LYNN ZOLT
SHARON HIGGINS,
Plaintiffs
v.
C.A. No. 11–190-ML
DONALD GREBIEN, Mayor,
City of Pawtucket
WILLIAM D. MULHOLLAND, Superintendent of
Parks and Recreation Division
WILLIAM HOWE, Director of Public Works,
City of Pawtucket,
Defendants
MEMORANDUM AND ORDER
MARY M. LISI, Chief District Judge.
This is the second § 1983 action brought against Pawtucket
City officials (the “Defendants”) regarding the City’s policy to
allow all public and private schools in Pawtucket free access to
publicly owned and maintained fields and athletic facilities. As in
the previously litigated Rogers v. Mulholland, the Plaintiffs seek
injunctive and declaratory relief by asserting that the City is
“subsidizing religion by providing publicly owned athletic fields
and facilities to religious (Catholic) schools free of charge” in
violation of the First, Fifth and Fourteenth Amendments of the
United
States
Constitution,
as
1
well
as
the
Rhode
Island
Constitution. Rogers v. Mulholland, 858 F.Supp.2d 213 (1st Cir.
2012).
In
Rogers,
after
a
trial
without
a
jury,
this
Court
determined that the plaintiffs failed to carry their burden of
proving that the City offended Constitutional protections. The
Court entered judgment in favor of the defendants. Id. at 229.
In the instant case, the Plaintiffs1 sought to distinguish
their claims from those in Rogers by asserting that they challenged
the overall policy of granting free use of City fields to religious
schools,
whereas
Rogers
challenged
the
alleged
preferential
allocation of those facilities. Eighteen months after the instant
case was filed, the Court granted the Plaintiffs’ motion to dismiss
their complaint with prejudice and entered judgment on behalf of
the Defendants. The matter before the Court is the Defendants’
motion for attorneys’ fees resulting from the Plaintiffs’ continued
pursuit
of
their
claims
after
the
Court
upheld
the
City’s
permitting policy in Rogers.
I.
Factual Background and Procedural History
A. Rogers v. Mulholland
The factual circumstances from which this litigation arose
have been described in some detail in Rogers, in which Pawtucket
residents with children attending Pawtucket public schools sought
to enjoin the City from granting permits for the use of its
1
Only Colleen Arneson was a plaintiff in Rogers as well as the
instant case; the defendants in both cases are identical.
2
athletic fields and from granting allocation of use of those fields
that, according to the Plaintiffs, was exclusive, preferential, and
in
violation
of
Constitutional
protection.
See
Rogers
v.
Mulholland, 858 F.Supp.2d at 216-221. Therefore, only a brief
summary is provided herein.
Pawtucket, a city of approximately nine square miles with
approximately 70,000 residents has three public and two private2
high schools, three public junior high schools, and three private
elementary/junior high schools. Id. at 216. For the most part, the
public and private schools do not have athletic fields on their
grounds; the schools’ athletic teams share use of City-owned and
maintained fields. Id. In order to accommodate conflicting practice
and game schedules, particularly those related to the use of
football and soccer fields, the City issues use permits to both
public and private schools upon their requests. Id.
In 2011, the City budgeted approximately $40,000-$50,000 for
maintenance and upkeep of its athletic facilities. Id. at 217.
O’Brien Field, one of the City’s facilities that is particularly
sought after by both public and private school teams, had been
reconstructed in 2001; the cost to the City to maintain O’Brien
Field on an annual basis (exclusive of labor) is approximately
$9,000.
Id.
The
dispute
in
Rogers
concerned
primarily
the
2
The private
schools.
schools
at
issue
3
in
this
case
are
Catholic
permitting
of
O’Brien
Field
and
that
of
Field
McKinnon/Alves Soccer Complex. In essence, the
#
2
at
the
plaintiffs in
Rogers contended that the City granted field space to religious
schools at the expense of public schools, thus assisting and
endorsing the Catholic religion. Id. at 226.
By bringing a complaint against the City in this Court, the
Rogers plaintiffs sought to end the City’s allegedly discretionary
pro-sectarian field permitting policy (the “Policy”). Id. at 222.
The plaintiffs brought federal claims under the Establishment
Clause and for Equal Protection pursuant to the First, Fifth, and
Fourteenth Amendments to the United States Constitution, as well as
Freedom of Religion and Equal Protection claims under the Rhode
Island Constitution. Id.
Following a trial without a jury, this
Court determined that (1) the Rogers plaintiffs had standing, id.
at 222; (2) the Policy had a predominant secular purpose, id. at
226; (3) the Policy did not have the purpose and effect of
impermissibly aiding religion, id. at 227 ; (4) the Policy did not
excessively entangle government with religion, id.; and (5) a
reasonable observer would not perceive the Policy as an endorsement
or sponsorship of religion, id. at 228.
developed
argument
by
the
plaintiffs
In the absence of a
regarding
their
Equal
Protection claim, the Court deemed that issue waived. Id. at 228.
Judgment
was
entered
for
the
City
therefrom.
4
and
no
appeal
was
taken
B. This Case
On
May
Complaint
in
10,
this
2011,
the
Court,
Plaintiffs
noting
that
filed
the
the
three-count
action
“challenges
Pawtucket’s policy of providing free, subsidized use of City
fields/facilities to religious (Catholic) schools,” in contrast to
Rogers, which challenged “Pawtucket’s preferential allocation of
City fields/facilities to religious (Catholic) schools over public
schools.” Complaint ¶ 4 (emphases in original).
On July 25, 2011, the case was stayed pending the resolution
of Rogers, which had commenced on October 13, 2009. After this
Court rejected the plaintiffs’ claims in Rogers, the Court lifted
the stay and the parties in the instant case engaged in discovery
that frequently turned contentious.3
On September 24, 2012, the Defendants filed a motion for
summary judgment based on their contention that, for the reasons
identified in Rogers, “there is no basis to conclude that allowing
the Catholic Schools within the City free access to the athletic
fields violates the Establishment Clause.” Defs.’ Mot. Sum. Judg.
24 (Docket # 30). At the same time, the Defendants also moved to
stay any further discovery until their motion for summary judgment
had been decided, on the ground that the Plaintiffs’ pending
3
The Court notes that, although the Defendants repeatedly and,
for the most part, successfully, challenged the Plaintiffs’
discovery requests, they did not ask for sanctions in connection
with those requests.
5
discovery requests related to information that was immaterial and
irrelevant to the determination of whether the City’s policy
violates the Establishment Clause.” Defs.’ Mot. Stay at 2 (Docket
# 32).
On October 12, 2012, the Plaintiffs filed an objection (Docket
# 36) to the Defendants’ motion to stay, pointing out that their
own motion to compel certain documents and their request to depose
one of the Defendants were already pending. (Docket # 36). At an
October 18, 2012 hearing on the Defendants’ motion to stay, the
Plaintiffs requested a six week discovery extension and they
suggested4 that they could not defend their position fully against
the Defendants’ motion for summary judgment because the Plaintiffs
did not “have access to all documents and all information.” At the
conclusion of the hearing, the Defendants’ motion to stay was
granted and discovery was stayed (Text Order 10/18/12). The Court
suggested that the Plaintiffs comply with the requirements of Fed.
R. Civ. P. 56(d) if they wished to conduct further discovery
related to the issues raised in the Defendants’ motion for summary
judgment. The Plaintiffs, however, did not file a motion pursuant
to Rule 56(d).
4
Under Federal Rule 56(d), a nonmovant must show “by affidavit
or declaration that, for specified reasons, it cannot present facts
essential to justify its opposition” to a motion for summary
judgment. Fed. R. Civ. P. 56(d). No such submissions were made by
the Plaintiffs.
6
Instead, on November 5, 2012, the Plaintiffs filed, without
further
explanation,
a
one-sentence
motion
pursuant
to
Rule
41(a)(2) to dismiss this action “with prejudice, all parties
bearing their own costs and fees.” (Docket # 37). In response, the
Defendants requested that the Court dismiss the case with prejudice
“only upon a finding that the dismissal is an adjudication on the
merits, leaving open to Defendants the opportunity, if they so
choose, to recover attorneys’ fees.” Defs.’ Obj. at 1 (Docket #
38). Alternatively, the Defendants requested that the Court deny
the Plaintiffs’ motion to dismiss and rule on the Defendants’
pending motion for summary judgment. Id. In their supporting
memorandum, the Defendants noted that they had spent significant
time and resources litigating the case, the main issues of which
had since been resolved by Rogers. Id. at Page 4 of 6. The
Defendants
also
interpretation
expressed
of
Rogers,
concern
that,
“granting
under
dismissal
Plaintiffs’
without
an
adjudication on the merits would potentially leave Defendants
exposed to litigation from other Pawtucket citizens.” Id.
The Court conducted a hearing on the Plaintiffs’ motion to
dismiss the Complaint on December 4, 2012, after which it took the
matter under advisement. On January 23, 2013, the Court issued a
Memorandum and Order (“M&O”) in which it granted the Plaintiffs’
motion as to dismissal of the Complaint with prejudice. However,
the motion was denied with respect to the Plaintiffs’ request to
7
condition dismissal on the parties’ bearing their own costs and
fees. M&O at 3 (Docket # 39). The Court pointed out that the
Defendants
invested
significant
resources
in
responding
to
Plaintiff’s numerous requests for admissions, interrogatories, and
discovery, and to a frivolous motion for recusal. Id. The Court
further noted that “‘[a] voluntary dismissal with prejudice under
Fed. R. Civ. P. 41(a)(2) is a complete adjudication on the merits
of the dismissed claim.’” Id. (quoting United States v. Cunan, 156
F.3d 110, 114 (1st Cir. 1998)). Finally, the Court advised the
Plaintiffs that, if they found the conditions of the dismissal “‘to
be too onerous, they need not accept them’ and they are entitled to
withdraw the Rule 41(a)(2) motion and proceed with the action,” in
which case the Court would rule on Defendants’ motion for summary
judgment. M&O at 3 n.3 (quoting Mateo v. Empire Gas Co., Inc., 287
F.R.D.
124,
Plaintiffs
Civil
did
not
No.
11-1285
withdraw
(D.P.R.
their
motion
Nov.
9,
and
2012)).
they
raised
The
no
objection to the condition in the M&O. Judgment dismissing the
Complaint with prejudice was entered on January 31, 2013. (Docket
# 40). No appeal was taken therefrom.
On February 14, 2013, the Defendants filed a motion for
attorneys’ fees on the ground that the Plaintiffs’ pursuit of the
instant claim after this Court rendered the decision in Rogers and
the
attendant
crushing
discovery
requests
demonstrated
the
frivolousness of their suit and warranted the assessment of fees.
8
Defs.’
Mem.
Mot.
Attorneys’
Fees
at
2
(Docket
#
41-1).
The
accompanying affidavit of Defendants’ counsel requested $40,681 in
attorneys’
fees
incurred
by
the
Defendants
from
May
5,
2012
(Decision in Rogers) through February 6, 2013 (preparation related
to motion for attorneys’ fees). Following an order by this Court
directing the Defendants to address whether they may be considered
prevailing parties under § 1988 where the Court dismissed the
matter with prejudice pursuant to Fed. R. Civ. P. 41(a)(2), the
Defendants filed a supplemental memorandum on March 28, 2013
(Docket # 43), in which they acknowledged that the First Circuit
has not yet addressed the precise question of whether a defendant
is a “prevailing party” for the purpose of awarding attorneys’ fees
under §
1988,
where
the
claim
is
voluntarily
dismissed
with
prejudice under Rule 41(a)(2). Defs.’ Suppl. Mem. at Page 5 of 8.
On
April
1,
2013,5
the
Plaintiffs
filed
a
response
in
opposition to the Defendants’ motion for attorneys’ fees (Docket #
44). In their objection, the Plaintiffs argued that (1) dismissal
with prejudice before adjudication on the merits precludes the
Defendants from qualifying as a “prevailing party,” Pltfs.’ Mem. at
Page 3 of 12; and (2) Defendants are not entitled to attorneys’
fees because the Plaintiffs’ suit was not “frivolous, unreasonable,
5
Plaintiffs’ response to Defendants’ motion for attorneys’ fees
was due on March 4, 2013. The Plaintiffs provide no explanation for
the tardy response.
9
or groundless.” Id. at Page 8 of 12. The Plaintiffs also rejected
the Defendants’ contention that the Plaintiffs elected to dismiss
their claims to avoid an unfavorable ruling on summary judgment.
Id. at Page 12 of 12.6
II.
Standard of Review
Generally,
attorney's
fees
parties
under
to
the
civil
litigation
so-called
“American
bear
their
Rule.”
own
Torres-
Santiago v. Municipality of Adjuntas, 693 F.3d 230, 234 (1st Cir.
2012). However, Congress established an exception to the “American
Rule,”“‘[f]or private actions brought under 42 U.S.C. § 1983 and
other specified measures designed to secure civil rights.’” TorresSantiago v. Municipality of Adjuntas, 693 F.3d at 234 (quoting Sole
v. Wyner, 551 U.S. 74, 77, 127 S.Ct. 2188, 167 L.Ed.2d 1069
(2007)); see also, Richardson v. Miller, 279 F.3d 1, 3 (1st Cir.
2002)(noting that “[u]nder the Fees Act, 42 U.S.C. § 1988, the
district court may award reasonable attorney’s fees to a prevailing
party in a civil rights case brought under 42 U.S.C. § 1983.”). The
exception is intended to afford plaintiffs “‘effective access to
the judicial process’ for persons with civil rights grievances.”
6
In support of this position, the Plaintiffs’ Memorandum
features an affidavit by one of Plaintiffs’ counsel, in which he
asserts, for the first time, that he moved to dismiss the Complaint
with prejudice, and that he elected not to withdraw that motion,
solely because of personal reasons that precluded him from
representing his clients in an effective manner. Affidavit at ¶¶ 6,
12. The Court notes that Plaintiffs were also represented by cocounsel admitted pro hac vice.
10
Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d
40 (1983)(quoting H.R> Rep. No. 94-1558, p. 1 (1976)).
While “‘an award of fees in favor of a prevailing plaintiff in
a civil rights suit is the rule, ... fee-shifting in favor of a
prevailing
defendant
is
the
exception.’”
Torres-Santiago
v.
Municipality of Adjuntas, 693 F.3d at 234 (quoting Lamboy-Ortiz v.
Ortiz-Velez,
630
F.3d
228,
236
(1st
Cir.
2010)).
Thus,
“[p]revailing defendants in an action brought under 42 U.S.C. §
1983 may be granted attorneys' fees only ‘upon a finding that the
plaintiff's
action
was
frivolous,
unreasonable,
or
without
foundation, even though not brought in subjective bad faith.’”
Rossello-Gonzalez
v.
Acevedo-Vila,
483
F.3d
1,
5
(1st
Cir.
2007)(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); see also Hughes v. Rowe,
449 U.S. 5, 14-16, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (applying
the Christiansburg Garment Co. standard to a 42 U.S.C. § 1983
case)). As noted by the First Circuit, “[t]his standard is, by
design, a difficult one to meet.” Torres-Santiago v. Municipality
of Adjuntas, 693 F.3d at 234.
To determine whether the standard has been met, “‘the court
must assess the claim at the time the complaint was filed, and must
avoid the post-hoc reasoning that, because the plaintiff did not
ultimately
prevail,
the
claim
must
have
been
frivolous,
unreasonable or without foundation.’” Rossello-Gonzalez v. Acevedo-
11
Vila, 483 F.3d at 5 (quoting Tang v. Dep't of Elderly Affairs, 163
F.3d 7, 13 (1st Cir.1998)). However, “[e]ven if the Plaintiffs'
action was frivolous, it is within the discretion of the district
court to deny fees.” Rossello-Gonzalez v. Acevedo-Vila, 483 F.3d at
6; Tang v. Dep't of Elderly Affairs, 163 F.3d 7 at 15 (“[T]he
district court still retains discretion to deny or reduce fee
requests after considering all the nuances of a particular case.”).
Although the focus of the Court’s analysis in determining
whether to award attorneys’ fees to a prevailing defendant “must
focus primarily on the claims at the time that the complaint was
filed,” Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d at 241 (citing Tang
v. Dep't of Elderly Affairs, 163 F.3d at 13), “fees also may be
awarded
litigate
on
rare
after
occasions
[the
where
claims]
‘the
plaintiff
clearly
became
continued
to
[frivolous,
unreasonable, or groundless].’” Lamboy-Ortiz v. Ortiz-Velez, 630
F.3d at 241 (quoting Christiansburg Garment Co. v. EEOC, 434 U.S.
at 422, 98 S.Ct. 694 (emphasis added)). With respect to that
scenario, the First Circuit has cautioned against the danger of
hindsight in “assessing whether a claim ‘clearly’ became untenable
prior to the close of suit.” Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d
at 241 (“It would be all too easy to assume that, if a claim did
not prevail in the end, it must have become obvious to the
plaintiff at some earlier juncture (e.g., upon completion of
discovery) that the claim lacked support.”). Although a finding of
12
bad faith is not necessary to “‘justify an award of fees for the
continuation
of
a
clearly
untenable
claim,’”
id.
at
241-242
(quoting Christiansburg Garment, 434 U.S. at 421, 98 S.Ct. 694),
the Court must at least conclude that, “following the filing of the
claim, circumstances changed to such an extent that a reasonable
person could not help but conclude that the claim was no longer
viable.” Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d at 242.
III. Discussion
A. The Prevailing Party
Pursuant to 42 U.S.C. § 1988(b), the Court “in its discretion,
may allow the prevailing party [in an action to enforce a claim
under § 1983] ... a reasonable attorney’s fee as part of the
costs...” 42 U.S.C. § 1988(b). Based on the plain language of the
provision in Section 1988(b), the ability to obtain reasonable
attorneys’ fees is not limited to plaintiffs; rather, it allows for
the possibility that a defendant may obtain such fees, provided
that (1) it is the “prevailing party,” and (2) it meets the
standard set forth in Christiansburg (attorney’s fees may be
awarded to a prevailing defendant “[u]pon a finding that the
plaintiff’s
action
was
frivolous,
unreasonable,
or
without
foundation, even though not brought in subjective bad faith.”).
Christiansburg Garment, Co. v. EEOH, 434 U.S. at 421, 98 S.Ct. 694.
For the purpose of awarding attorney’s fees, parties are
considered to be “prevailing” if “‘they succeed on any significant
13
issue in litigation which achieves some of the benefit the parties
sought in bringing suit.’” De Jesus Nazario v. Morris Rodriguez,
554 F.3d 196, 199-100 (1st Cir. 2009)(quoting Hensley v. Eckerhart,
461 U.S. at 433, 103 S.Ct. 1933 (quoting Nadeau v. Helgemoe, 581
F.2d
275,
278–79
(1st
Cir.1978))
(internal
quotation
marks
omitted). In other words, a plaintiff is a prevailing party when
the “‘actual relief on the merits of his claim materially alters
the legal relationship between the parties by modifying defendant's
behavior.’” De Jesus Nazario v. Morris Rodriguez, 554 F.3d at 199200)(quoting Farrar v. Hobby, 506 U.S. 103, 111–12, 113 S.Ct. 566,
121 L.Ed.2d 494 (1992); see also Sole v. Wyner, 551 U.S. 74, 83,
127 S.Ct. 2188, 2194, 167 L.Ed.2d 1069 (2007) (“The touchstone of
the prevailing party inquiry ... ‘is the material alteration of the
legal relationship of the parties in a manner which Congress sought
to promote in the fee statute.’”)(citation omitted). To prevail
means that a party has effected a court-ordered material change of
the parties’ legal relationship. Buckhannon Bd. & Care Home v. W.
Va. Dep’t of Health and Human Res., 532 U.S. 598, 604, 121 S.Ct.
1835, 149 L.Ed.2d 855 (2001).
B.
Adjudication on the Merits
It is well-established law in this Circuit that “‘a voluntary
dismissal with prejudice under Fed. R. Civ. P. 41(a)(2) is a
complete adjudication on the merits of the dismissed claim.’”
United States v. Cunan, 156 F.3d at 114 (quoting Harrison v. Edison
14
Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir.1991)).
Thus, a judgment dismissing a “previous suit ‘with prejudice’ bars
a later suit on the same cause of action.” United States v. Cunan,
156 F.3d 110, 114 (quoting Lawlor v. Nation Screen Serv. Corp., 349
U.S. 322, 327, 75 S.Ct. 865, 99 L.Ed. 1122 (1955)); American
Cyanamid Co. v. Capuano, 381 F.3d 6, 17 (1st Cir. 2004).
Courts
which
have
addressed
the
question
of
whether
a
defendant can be considered to be the “prevailing party” for the
purpose of awarding attorneys’ fees under Section 1988 where the
plaintiff voluntarily dismisses the claim, have come to different
conclusions. In Dean v. Riser, the Fifth Circuit Court of Appeals
concluded that a defendant qualifies as a prevailing party when a
civil
rights
plaintiff
withdraws
the
claim,
provided
“the
plaintiff’s case was voluntarily dismissed to avoid judgment on the
merits” and the defendant establishes that “the plaintiff’s suit
was frivolous, groundless or without merit.” Dean v. Riser, 240
F.3d 505, 511 (5th Cir. 2001).
In Szabo Food Service v. Canteen Corp., the Seventh Circuit of
Appeals rejected the defendant’s request for fees under Section
1988 because a “dismissal without prejudice under Rule 41(a)(1)(i)
does not decide the case on the merits.” Szabo Food Service v.
Canteen
Corp.,
823
F.2d
1073,
1076
(7th.
Cir.
1987),
cert.
dismissed 485 U.S. 901, 108 S.Ct. 1101, 99 L.Ed.2d 229 (1988). The
Szabo court noted, however, that “[a] dismissal under Rule 41(a) is
15
unlike a dismissal with prejudice under Rule 41(b), which enables
the defendant to say that he has “prevailed,” id. at 1076-1077, and
the court suggested that “[s]urrender by the plaintiff” would
support a defendant’s request for attorney’s fees. Id. at 1077.
In Marquart v. Lodge 837, Int’l Ass’n of Machinists, the
Eighth Circuit Court of Appeals concluded that the defendant in a
case was not a prevailing party where the plaintiff “voluntarily
withdrew
her
complaint
with
prejudice
prior
to
a
judicial
determination on the merits” and there was “not a scintilla of
evidence that [the plaintiff] voluntarily withdrew her complaint to
escape
a
disfavorable
judicial
determination
on
the
merits.”
Marquart v. Lodge 837, Int’l Ass’n of Machinists, 26 F.3d 842, 851852 (8th Cir. 1994).
In Roane v. City of Mansfield, the Sixth Circuit Court of
Appeals denied the defendants’ request for attorney’s fees pursuant
to
Section
voluntarily
1988
after
dismissed
the
plaintiff
his
appeal
in
with
a
civil
rights
case
prejudice
under
Rule
41(a)(2). Roane v. City of Mansfield, 229 F.3d 1153, 2000 WL
1276745
at
*2
(6th
Cir.
Aug.
28,
2000)(“Defendants
are
not
prevailing parties under § 1988 inasmuch as Defendants did not
receive a favorable judicial determination on the merits ... and we
are not persuaded that this was a ‘truly egregious case[ ] of
misconduct’ in any event.”).
The First Circuit Court of Appeals has not yet addressed the
16
precise issue of whether a defendant is considered a prevailing
party for the purpose of seeking attorney’s fees under Section
1988, where the plaintiffs’ claim has been voluntarily dismissed
with prejudice under Rule 41(a)(2). In Maine Sch. Admin. Dist. No.
35 v. Mr. and Mrs. R., the plaintiff school district dismissed its
complaint against the defendant parents under Rule 41(a)(1). The
defendants sought attorneys’ fees and costs pursuant to the feeshifting provision of IDEA [Individuals with Disabilities Education
Act]; the district court denied their request on the ground that
they were not prevailing parties. Maine Sch. Admin. Dist. No. 35 v.
Mr. and Mrs. R., 321 F.3d 9, 13 (1st Cir.
2003). The First Circuit
disagreed, concluding that the parents were prevailing parties,
noting that they “were haled into court as defendants and won a
clear-cut victory on the sole issue in the case.” Id. at 16.
Specifically, “[t]he School District commenced a civil action and
the appellants successfully defended against it (i.e., the School
District did not receive any of the relief that it sought and,
eventually, threw in the towel.” Id. at 15. The Court noted that,
although “a purely technical or de minimis victory cannot confer
prevailing status,” a plaintiff prevails when actual relief on the
merits of a party’s claim “materially alter[s] the litigants’ legal
relationship by modifying one party’s behavior in a way that
directly benefits the other.” Id. at 14-15 (citing Farrar v. Hobby,
506 U.S. 103, 111-112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)).
17
C. This Case
After the Defendants’ motion for summary judgment had been
fully briefed7 by the parties, the Plaintiffs filed a motion to
dismiss, voluntarily, their Complaint with prejudice under Rule
41(a)(2), “all parties bearing their own Costs and fees.” The
Defendants agreed to the dismissal with prejudice “only upon a
finding that the dismissal is an adjudication on the merits,
leaving open to Defendants the opportunity, if they so choose, to
recover attorneys’ fees.”
Def.’s Obj. at Page 1 of 6 (Docket #
38). In the alternative, the Defendants asked the Court to deny the
Plaintiffs’ motion to dismiss the Complaint and to rule on the
Defendants’ motion for summary judgment.
The Court’s January 23, 2013 M&O indicated to the Plaintiffs
that (1) a voluntary dismissal with prejudice under Fed. R. Civ. P.
41(a)(2) is a complete adjudication on the merits of the dismissed
claim; and (2) the Plaintiffs could withdraw the Rule 41(a)(2)
motion and proceed with the action if they found the denial of
their request to condition dismissal on the parties’ bearing their
own costs and fees too onerous. The Plaintiffs elected not to
withdraw their Rule 41(a)(2) motion.
As a result of the Plaintiffs’ voluntary dismissal under Rule
7
Although the Plaintiffs claimed to need additional discovery,
they never followed through by complying with the Rule 56(d)
requirements. See supra, Section I. B.
18
41(a)(2) - which constitutes a decision on the merits in this
Circuit - the Defendants have succeeded in securing a court-ordered
“material alteration of the legal relationship of the parties,” see
Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health and Human
Res., 532 U.S. at 604. The Plaintiffs are now precluded from
challenging the City’s practice of allowing private schools in the
City free access to fields and athletic facilities.
As such, the
Defendants are “prevailing parties” for the purpose of seeking
attorney’s fees under Section 1988. However, the analysis does not
end there.
D. Defendants’ Claims for Attorneys’ Fees
The Defendants “may be granted attorneys' fees only ‘upon a
finding that the plaintiff's action was frivolous, unreasonable, or
without foundation, even though not brought in subjective bad
faith.’” Rossello-Gonzalez v. Acevedo-Vila, 483 F.3d at 5 (quoting
Christiansburg
Defendants
only
Garment,
request
434
U.S.
at
attorneys’
421.
fees
In
this
incurred
case,
the
through
the
Plaintiffs’ continuing pursuit of their claims after this Court
rendered the decision in Rogers.
The Defendants assert that Rogers, in effect, resolved the
“main issues at the core of this case.” Def.’s Obj. to Pltfs.’Mot.
Dismiss Page 4 of 6 (Docket # 38). In response, the Plaintiffs
maintain that Rogers “dealt solely with the issue of preferential
allocations of fields,” whereas their claims in the present case
19
relate to alleged “subsidies” provided by the City to religious
schools. Defs.’ Obj. Page 11 of 12 (Docket # 44).
In Rogers, the plaintiffs sought “injunctive and declaratory
relief against preferential allocation of permits for the use of
publicly owned athletic fields to private, religious schools.”
Amended Complaint ¶ 1, Rogers v. Mulholland, C.A. No. 09-493,
(Docket # 32)(emphasis added). The claims were brought by Pawtucket
residents and tax payers whose children were former or current
students at Pawtucket public schools. The plaintiffs in Rogers took
exception to the alleged preference given to religious schools in
the issuance of use permits for publicly owned athletic fields
and/or facilities. In other words, the plaintiffs alleged that,
because the City granted “exclusive or preferential” use of those
facilities to private religious schools, public schools (and the
plaintiffs’ children) were disadvantaged as a consequence.
In this litigation, the Plaintiffs are Pawtucket homeowners
and taxpayers.8
The Plaintiffs challenge the City’s “half-century
policy of subsidizing religion by providing publicly owned athletic
fields and facilities to religious (Catholic) schools free of
charge.” Complaint ¶ 1 (Docket # 1)(emphasis added). Specifically,
the Plaintiffs assert, inter alia, that the City uses municipal tax
funds to maintain and repair its athletic facilities. Id. at ¶ 16-
8
Only one plaintiff in the current litigation was also a
plaintiff in the Rogers litigation.
20
18. The Plaintiffs further allege that the City permits the use of
those facilities to Catholic schools in Pawtucket free of charge.
Id. at ¶ 25, 29. According to the Complaint, the majority of
students in those schools reside outside of Pawtucket. Id. at ¶ 20.
The Plaintiffs voice their concerns that, by waiving all fees for
Catholic schools, the Defendants have deprived the City of hundreds
of thousands of dollars in revenue, thus contributing to the City’s
considerable budget deficit. Id. at 53.
In both Rogers and the present case, the respective complaints
allege violations of the First, Fifth, and Fourteenth Amendments of
the
United
States
Constitution
as
well
as
the
Rhode
Island
Constitution. Both complaints arise from the City’s policy to
permit both public and private schools to use City-owned athletic
fields and facilities without charge. However, while the challenge
in Rogers was limited to the manner in which actual use of the
fields was regulated by issuing permits to the schools, the current
litigation concerns the broader question of whether the City’s
practice of permitting the use of its taxpayer supported facilities
to
religious
schools
without
charge
offends
constitutional
protections. To that extent, while the claims are similar in both
facts and law, they are not identical.
The Plaintiffs also contend that the "reasonableness of a
plaintiff’s claim must be assessed as of the time suit was filed."
Defs.’ Obj. Page 10 of 12 (Docket # 44). However, while the Court’s
21
analysis “must focus primarily on the claims at the time that the
complaint was filed,” Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d at 241242 (citing Tang, 163 F.3d at 13), the Supreme Court established in
Christansburg Garment that “fees also may be awarded on rare
occasions where ‘the plaintiff continued to litigate after [the
claims] clearly became [frivolous, unreasonable, or groundless].’”
Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d at 241. On those “rare
occasions,” the Court “must at a minimum find that, following the
filing of the claim, circumstances changed to such an extent that
a reasonable person could not help but conclude that the claim was
no longer viable.” Id. at 241-242 (quoting Christiansburg Garment,
434 U.S. at 422).
This is a close case. On one hand, it is apparent that the
Plaintiffs, in purporting to protect the City’s budget, engaged the
Defendants in litigation that forced the City to incur tens of
thousands of dollars in attorney’s fees, which only added to the
City’s
documented
budgetary
woes.9
Moreover,
the
Plaintiffs
continued to pursue this action even after the Rogers decision cast
some doubt on their ability to prevail with their similar, albeit
not identical, claims. Following an often contentious discovery
period and after the Defendants’ motion for summary judgment had
been fully briefed, the Plaintiffs elected to abandon their claims
9
According to the Defendants, the City has no insurance coverage on
this matter; its costs of defense are born entirely by the City.
Defs.’ Obj. to Pltfs.’ Mot. Dismiss Page 4 of 6 n. 1 (Docket # 38).
22
by voluntarily dismissing the Complaint with prejudice.
Nevertheless, the Plaintiffs’ concern that the City had, for
many years, expended taxpayer dollars to maintain and repair
athletic facilities that, in significant part, benefitted privately
funded
religious
schools
without
any
contribution
from
those
schools, cannot be characterized as entirely groundless and/or
frivolous. And, although this Court determined in Rogers that the
City’s manner of allocating permits for using the City’s athletic
facilities
to
Constitutional
public
and
protections,
private
the
schools
claims
in
did
the
not
offend
present
case,
although similar, are not completely identical with those raised in
Rogers.
Because the case was dismissed voluntarily prior to trial
and prior to a determination of the Defendants’ motion for summary
judgment
-
possibility
although
remained
the
dismissal
that
decisive
is
“on
the
merits”
facts
had
not
yet
-
the
been
considered by this Court. See Christiansburg Garment, 434 U.S. at
422 (“Even when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely reasonable
ground for bringing suit.”).
In sum, while the continuing pursuit of the Plaintiffs’
claims, particularly in light of Rogers, appears to have been illadvised, the Court is of the opinion that it does not meet the
extremely high standard imposed on prevailing defendants who seek
a fee award under Section 1988. See, e.g. Tang v. State of R.I.,
23
Dept. of Elderly Affairs, 163 F.3d at 13 (noting that a court “must
avoid the post-hoc reasoning that, because the plaintiff did not
ultimately
prevail,
the
claim
unreasonable
or
without
Municipality
of
Adjuntas,
“fee-shifting
in
favor
must
have
foundation.”);
of
693
a
F.3d
at
prevailing
been
frivolous,
Torres-Santiago
234
(noting
defendant
is
v.
that
the
exception.”).
Conclusion
For the reasons stated herein, the Defendants’ motion for
attorney’s fees is DENIED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
May 22, 2013
24
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