DA Osguthorpe Family Partnership v. ASC Utah et al

Filing 41

MEMORANDUM DECISION- granting 20 Motion to Dismiss ; granting 26 Motion to Dismiss and sets the Motion for Fees Under 42 U.S.C. § 1988 (Doc. #22) for hearing onWednesday, May 18, 2011 at 2:00. Signed by Judge David Sam on 5/4/11. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
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D. A. OSGUTHORPE FAMILY
PARTNERSHIP, a Utah limited
partnership,
Plaintiff,

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Case No. 2:11CV147 DS

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vs.
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ASC UTAH, INC., a Maine corporation;
WOLF MOUNTAIN RESORTS, L.C., a
Utah limited liability company; the
THIRD DISTRICT COURT, an agency
of the Judicial Branch of government of
the State of Utah; and HONORABLE
ROBERT K. HILDER, in his capacity as
a Judge of the Third Judicial District
Court in and for the state of Utah

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MEMORANDUM
DECISION

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Defendant.
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I. INTRODUCTION

On February 23, 2011, this Court conducted a hearing on Plaintiff’s Motion for
Temporary Restraining Order, Preliminary Injunction, Order Compelling Arbitration and Stay of
All State Court Proceedings Pending Arbitration. Plaintiff filed the motion after the state trial
court and the Utah Supreme Court denied its motions to compel arbitration and to stay the state
trial that was scheduled for March 8, 2011. At the February 23 hearing this Court denied
Plaintiff’s motion, determining that the Rooker-Feldman doctrine applies. The Court determined

that it did not have subject matter jurisdiction because Plaintiff is seeking review of a state court
judgment. The Court also found that jurisdiction is improper under the Younger doctrine and the
general principles of abstention. Defendants have filed Motions to Dismiss the complaint, and
the Court, based on its determinations at the February 23 hearing, agrees that the complaint
should be dismissed. Defendant ASC Utah has also moved for fees under 42 U.S.C. § 1988, on
grounds that Plaintiff’s action “was frivolous and vexatious.”1

II. ANALYSIS

Plaintiff does not argue that the complaint should not be dismissed, but simply states that
because the Court lacks subject matter jurisdiction, the dismissal must be without prejudice. As
the 7th Circuit has stated, “the right disposition, when the Rooker-Feldman doctrine applies, is an
order under Fed.R.Civ.P. 12(b)(1) dismissing the suit for lack of subject-matter jurisdiction.”2
This means that although the plaintiff cannot re-file in federal court, the dismissal is without
prejudice on the merits, which may be reviewed in state court to the extent the state’s law of
preclusion permits.3 ASC Utah agrees that a dismissal on jurisdictional grounds is without
prejudice with respect to grounds unrelated to the basis of the dismissal disposition.4

1

ASC Utah, Inc. Fee Motion (Docket #22), at 2.

2

Frederiksen v. City of Lockport, 384 F.3d 437, 439 (7th Cir. 2004)

3

See Frederiksen at 438, citing T.W. v. Brophy, 124 F.3d 898, 898 (7th Cir. 1997).

4

See Good v. Kroshowsahi, 296 Fed.Appx 676 (10th Cir. 2008)(“even a dismissal without
prejudice will have a preclusive effect on the [dispositive jurisdictional] issue in a future action”)
citing Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (emphasis added in Good).
2

The only question remaining is whether Defendant ASC Utah is entitled to reasonable
attorney’s fees under 42 U.S.C. § 1988. That section allows fees to be awarded to the party who
prevails against claims brought under civil rights statutes such as §1983: “the court, in its
discretion may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.”5 A
defendant may recover attorney’s fees, however, “only where the suit was vexatious, frivolous, or
brought to harass or embarrass the defendant.”6 Defendant ASC argues that the instant suit is
both frivolous and vexatious.
Plaintiff initially cited a 9th Circuit case for the proposition that the Court, having
determined that Rooker-Feldman applies, has no subject matter jurisdiction to determine whether
Plaintiff’s section 1983 claims are frivolous or vexatious and so has no subject matter
jurisdiction to award fees under section 1988.7 The Tenth Circuit, however, has held that a
federal court has subject matter jurisdiction over a request for attorneys fees even in the absence
of subject matter jurisdiction over the underlying claim.8 ASC points out that this is both logical
and fair. A plaintiff who files a frivolous suit for the purposes of delay has burdened both the
court and the defendants with a vexatious suit, whether the suit is dismissed on the merits or
whether the case cannot even proceed to that step. So the reasons for granting fees under § 1988
would be met.

5

42 U.S.C. § 1988(b).

6

Hensley v. Eckerhart, 461 U.S. 424, 429, n. 2 (1983).

7

Elwood v. Drescher, 456 F.3d 943, 948 (9th Cir. 2006).

Olsen v. Aebersold, 149 Fed.Appx. 750, 2005 WL 2093012, *1 (10th Cir. Aug. 31, 2005),
citing U.S. ex. rel. Gryberg v. Praxair, Inc., 389 F.3d 1038, 1056-59 (10th Cir. 2004).
8

3

Since this Court clearly has the power to award fees, the only remaining question is
whether the standard for the award of fees to a defendant under § 1988 has been met. Because
the standard of vexatious, frivolous, or brought to harass or embarrass the defendant is a
demanding one, the Court requests that the parties present oral argument on this issue.

III. CONCLUSION

For the foregoing reasons, the Court hereby grants Defendants’ Motions to Dismiss (Doc.
#20 and #26) and sets the Motion for Fees Under 42 U.S.C. § 1988 (Doc. #22) for hearing on
Wednesday, May 18, 2011 at 2:00.

DATED this 4th day of May, 2011.

BY THE COURT:

DAVID SAM
SENIOR JUDGE
U.S. DISTRICT COURT

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