753 F.2d 219 (2nd Cir. 1985), 442, Santiago v. Victim Services Agency of Metropolitan Assistance Corp.

Docket Nº442, 443, Dockets 84-7558, 84-7560.
Citation753 F.2d 219
Party Name40 Fed.R.Serv.2d 1368 Denise SANTIAGO and Terry L. Birmingham, Plaintiffs-Appellants, and Gabe Kaimowitz, Esq., Appellant and Attorney for Plaintiffs-Appellants, v. VICTIM SERVICES AGENCY of the METROPOLITAN ASSISTANCE CORP., Lucy Friedman, Director, John Blackmore, Kevin Byrne, Carole Peters, Karen Morello, and Lana S. Flame, individually and in t
Case DateJanuary 11, 1985
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 219

753 F.2d 219 (2nd Cir. 1985)

40 Fed.R.Serv.2d 1368

Denise SANTIAGO and Terry L. Birmingham, Plaintiffs-Appellants,

and

Gabe Kaimowitz, Esq., Appellant and Attorney for Plaintiffs-Appellants,

v.

VICTIM SERVICES AGENCY of the METROPOLITAN ASSISTANCE CORP.,

Lucy Friedman, Director, John Blackmore, Kevin Byrne, Carole

Peters, Karen Morello, and Lana S. Flame, individually and

in their official capacities, Defendants-Appellees.

Nos. 442, 443, Dockets 84-7558, 84-7560.

United States Court of Appeals, Second Circuit

January 11, 1985

Argued Nov. 26, 1984.

Page 220

Robert L. Becker, New York City (Jorge Batista and Puerto Rican Legal Defense and Education Fund, Inc., New York City, on the brief), for plaintiffs-appellants Santiago and Birmingham.

Richard Emery, New York Civil Liberties Union, New York City, for appellant Kaimowitz.

Karen Berger Morello and Lana S. Flame, New York City, submitted a brief for defendants-appellees.

Before TIMBERS, VAN GRAAFEILAND and PIERCE, Circuit Judges.

TIMBERS, Circuit Judge:

The sole question presented by these appeals is whether the district court had jurisdiction to award attorney's fees to appellees after appellants had filed a notice of dismissal of the action pursuant to Fed.R.Civ.P. 41(a)(1)(i) and before appellees had served an answer or a motion for summary judgment. We hold that the district court did not have jurisdiction to award attorney's fees.

The appeals are from two orders entered in the Southern District of New York: one by Henry F. Werker, District Judge, entered February 7, 1984, awarding, pursuant to 42 U.S.C. Sec. 1988 (1982), a total of $19,352.45 in attorney's fees and disbursements against appellants and their counsel; and the other by Kevin T. Duffy, District Judge, entered May 24, 1984, denying appellants' motions for reconsideration of the earlier order. For the reasons stated below, we reverse.

I.

Appellants Santiago and Birmingham are two former employees of appellee Victim Services Agency (VSA), an agency of the Metropolitan Assistance Corporation which provides services to crime victims in New York City. Appellant Kaimowitz is an attorney for the Puerto Rican Legal Defense Fund and was the attorney for Santiago and Birmingham in the district court. Santiago and Birmingham were terminated from their employment with VSA in January 1983. They commenced this action on May 2, 1983 against VSA and several employees of the agency, alleging that their terminations were racially motivated and violated the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. Secs. 1981, 1983 and 1985 (1982). Their complaint also alleged various pendent state law claims, including defamation and intentional infliction of emotional distress.

On May 2, 1983, simultaneously with the commencement of the action, Santiago and Birmingham moved by order to show cause for a preliminary injunction to obtain reinstatement to their former positions. Argument of counsel was heard on May 6, 1983. An evidentiary hearing was held on June 3 and 8, 1983. At the conclusion of the hearing on June 8, the court announced its decision from the bench, denying the motion for a preliminary injunction and granting appellees' motion for leave to submit an application for attorney's fees. A written opinion followed on June 13, 1983, in which the court concluded that "the plaintiffs have failed to show sufficiently serious questions going to the merits to make them a fair ground for litigation."

On June 20, 1983, Santiago and Birmingham filed with the clerk of the court a notice of voluntary dismissal, dated June 16, 1983, pursuant to Fed.R.Civ.P.

Page 221

41(a)(1)(i). 1 Despite the dismissal, appellees moved two months later, on August 16, 1983, for an award of attorney's fees. That motion was granted on February 7, 1984, more than seven months after the action had been dismissed. The court awarded appellees $19,252.45 against attorney Kaimowitz and $50 each against Santiago and Birmingham.

Kaimowitz filed a motion for reconsideration and an evidentiary hearing pursuant to Rule 59(e) on February 14, 1984. Santiago and Birmingham filed a similar motion three days later. Judge Werker subsequently became ill and died on May 10, 1984. On May 24, 1984, Judge Duffy, who had entered two orders granting appellees' motions for adjournments during Judge Werker's illness, confirmed Judge Werker's award in a memorandum endorsement. These appeals followed.

II.

Under 42 U.S.C. Sec. 1988 (1982), prevailing parties in civil rights actions, including defendants, may be awarded reasonable attorney's fees in the discretion of the district court. That discretion is not unfettered. A prevailing defendant who seeks attorney's fees must demonstrate that the plaintiff's claim was "frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). 2 This burden is placed on the defendant because the plaintiff in a civil rights action is "the chosen instrument of Congress to vindicate" a policy of the highest national priority. Id. at 418. However, we do not reach the issues here of whether VSA was a prevailing party and whether the district court abused its discretion under the relevant standard because we hold, under Fed.R.Civ.P. 41(a)(1)(i), that the court lacked jurisdiction to make the award.

Under Rule 41(a)(1)(i), a plaintiff, with certain exceptions inapplicable here, may dismiss the action by filing a notice of dismissal at any time before the defendant has filed an answer or a motion for summary judgment. Such dismissal requires no approval or action by the court. It is within the unfettered power of the plaintiff. Thorp v. Scarne, 599 F.2d 1169, 1176 (2 Cir.1979). Once the plaintiff has dismissed the action under the rule, the court loses all jurisdiction over the action. In re International Business Machines Corp., 687 F.2d 591, 598, 600-03 (2 Cir.1982). A subsequent order granting attorney's fees is a nullity....

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37 practice notes
  • 213 P.3d 367 (Ariz.App. Div. 1 2009), 1 CA-CV 08-0534, Vicari v. Lake Havasu City
    • United States
    • Arizona Court of Appeals of Arizona
    • August 4, 2009
    ...v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1055-57 (2nd Cir.1995) (citing Cooter and overruling Santiago v. Victim Servs. Agency, 753 F.2d 219, 223 (2nd Cir.1985), which held that voluntary dismissal under FR 41(a)(1) deprived court of jurisdiction to award statutory attorneys' fee......
  • 76 F.3d 762 (6th Cir. 1996), 94-1558, Brown v. Local 58, Intern. Broth. of Elec. Workers, AFL-CIO
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • February 26, 1996
    ...renders a subsequent request for attorneys' fees "a nullity." Santiago v. Victim Servs. Agency of the Metro. Assistance Corp., 753 F.2d 219, 221 (2d Cir.1985); Williams v. Ezell, 531 F.2d 1261, 1264 (5th The Supreme Court, however, recently made clear that it disapproved of the ap......
  • 793 F.2d 58 (2nd Cir. 1986), 252, Nemaizer v. Baker
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • June 5, 1986
    ...Fed.R.Civ.P. 41(a)(1)(i) merely by filing a notice of dismissal. Santiago v. Victim Services Agency of the Metropolitan Assistance Corp., 753 F.2d 219, 221 (2d Cir.1985). The defendant's motion to dismiss did not take the case out of the Rule, id. at 222, whose policy of encouraging "v......
  • 200 B.R. 972 (Bkrtcy.S.D.N.Y. 1996), 96 B 40502, In re 20/20 Sport, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Second Circuit
    • October 1, 1996
    ...requires no approval or action by the court. FED.R. OF CIV.P. 41(a)(1); Santiago v. Victim Serv. Agency of the Metro. Assistance Corp., 753 F.2d 219, 221 (2d Cir.1985). The effect of such voluntary dismissal without prejudice "is to render the proceedings a nullity and leave the partie......
  • Request a trial to view additional results
37 cases
  • 213 P.3d 367 (Ariz.App. Div. 1 2009), 1 CA-CV 08-0534, Vicari v. Lake Havasu City
    • United States
    • Arizona Court of Appeals of Arizona
    • August 4, 2009
    ...v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1055-57 (2nd Cir.1995) (citing Cooter and overruling Santiago v. Victim Servs. Agency, 753 F.2d 219, 223 (2nd Cir.1985), which held that voluntary dismissal under FR 41(a)(1) deprived court of jurisdiction to award statutory attorneys' fee......
  • 76 F.3d 762 (6th Cir. 1996), 94-1558, Brown v. Local 58, Intern. Broth. of Elec. Workers, AFL-CIO
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • February 26, 1996
    ...renders a subsequent request for attorneys' fees "a nullity." Santiago v. Victim Servs. Agency of the Metro. Assistance Corp., 753 F.2d 219, 221 (2d Cir.1985); Williams v. Ezell, 531 F.2d 1261, 1264 (5th The Supreme Court, however, recently made clear that it disapproved of the ap......
  • 793 F.2d 58 (2nd Cir. 1986), 252, Nemaizer v. Baker
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • June 5, 1986
    ...Fed.R.Civ.P. 41(a)(1)(i) merely by filing a notice of dismissal. Santiago v. Victim Services Agency of the Metropolitan Assistance Corp., 753 F.2d 219, 221 (2d Cir.1985). The defendant's motion to dismiss did not take the case out of the Rule, id. at 222, whose policy of encouraging "v......
  • 200 B.R. 972 (Bkrtcy.S.D.N.Y. 1996), 96 B 40502, In re 20/20 Sport, Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts Second Circuit
    • October 1, 1996
    ...requires no approval or action by the court. FED.R. OF CIV.P. 41(a)(1); Santiago v. Victim Serv. Agency of the Metro. Assistance Corp., 753 F.2d 219, 221 (2d Cir.1985). The effect of such voluntary dismissal without prejudice "is to render the proceedings a nullity and leave the partie......
  • Request a trial to view additional results