Kennedy v. McCarty, IP 90-228-C.

• Decision Date: 16 October 1992
• Docket Number: No. IP 90-228-C.,IP 90-228-C.
• Parties: John F. KENNEDY, Plaintiff, v. William E. McCARTY, an individual, and the City of Franklin, Indiana, Defendants.
• Court: U.S. District Court — Southern District of Indiana

803 F. Supp. 1470

John F. KENNEDY, Plaintiff, v. William E. McCARTY, an individual, and the City of Franklin, Indiana, Defendants.

No. IP 90-228-C.

United States District Court, S.D. Indiana, Indianapolis Division.

October 16, 1992.

COPYRIGHT MATERIAL OMITTED

John Emry, Franklin, Ind., for plaintiff.

Roger A. Young, Young & Young, Franklin, Ind., for defendant City of Franklin.

Richard S. Ewing, Allison T. Frazier, Stewart & Irwin, Indianapolis, Ind., for defendant McCarty.

ENTRY DISCUSSING ORDER GRANTING DEFENDANTS' MOTION FOR ATTORNEY'S FEES UNDER 42 U.S.C. § 1988

TINDER, District Judge.

On March 7, 1990, Plaintiff Kennedy filed a twenty-seven page Complaint, which, among other things, purportedly sought to enforce a provision of § 1983. Plaintiff filed a twenty-eight page First Amended Jury Demand and Complaint for Damages and Attorney Fees on April 7, 1990. Plaintiff filed a Motion for Partial Summary Judgment on March 30, 1990. On July 27, 1990, Defendants filed a Motion for Summary Judgment of all claims. After an oral argument on the motions for summary judgment, Defendants filed an additional Motion for Partial Summary Judgment; this Motion made clear that Defendants sought judgment on Plaintiff's tort claims because Plaintiff failed to comply with the Indiana Tort Claims Act.

On November 25, 1991, this court entered a Judgment regarding the parties' cross-motions for summary judgment; the court found that Defendants were entitled to a judgment against Plaintiff's due process claim. 778 F.Supp. 1465. An Entry discussing the court's Judgment made plain that the court was skeptical of Plaintiff's motives for and approach to bringing his suit. (Nov. 21, 1991 Entry Cross-Mots. Summ.J. at 1, 3-4, 34-35.) On June 10, 1992, the court granted Defendant's Motion for Partial Summary Judgment regarding Plaintiff's State law claim for wrongful discharge. The lone remaining claim — whether Defendants violated Plaintiff's first amendment right to "free speech" — was tried before a jury on August 4, 1992. At the close of Plaintiff's case, Defendants moved for a directed verdict; the court took that motion under advisement. The jury returned a Verdict in favor of Defendant McCarty and a Verdict in favor of Defendant City of Franklin.

Before the court is Defendants' Motion for Attorney Fees. That Motion seeks over $20,000 in fees and costs Defendants expended to defend Plaintiff's suit.

Title 42, U.S.C. § 1988(b) provides that "in any action or proceeding to enforce a provision of 42 U.S.C. § 1983, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Prevailing plaintiffs and prevailing defendants may collect attorney's fees under § 1988. Unity Ventures v. County of Lake, 894 F.2d 250, 253 (7th Cir.1990). Although the language of § 1988 does not distinguish between "prevailing" plaintiff's and defendants regarding their ability to recover fees, "prevailing defendants have never been entitled to the same treatment under the statute as prevailing plaintiffs." Coates v. Bechtel, 811 F.2d 1045, 1048 (7th Cir.1987) (citing Vandenplas v. City of Muskego, 797 F.2d 425, 428-29 (7th Cir. 1986); Hershinow v. Bonamarte, 772 F.2d 394, 395 (7th Cir.1985)); Curry v. A.H. Robins Co., 775 F.2d 212, 219 (7th Cir. 1985). A prevailing plaintiff may be deemed a "prevailing party" if the plaintiff succeeds on any significant issue in the litigation which achieves some of the benefits sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). A prevailing defendant may not recover fees under § 1988 unless the district court finds that the plaintiff's action was "vexatious, frivolous, or brought to harass or embarrass the defendant," id. at 429 n. 2, 103 S.Ct. at 1937 n. 2, or if the action is "meritless in the sense that it is groundless or without foundation." Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980); Munson v. Milwaukee Bd. of School Directors, 969 F.2d 266, 269 (7th Cir.1992); Leffler v. Meer, 936 F.2d 981, 986 (7th Cir.1991); see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (same standard for fees under Title VII).

In the Seventh Circuit, a defendant moving for fees "must demonstrate 1 that the plaintiff brought her action in subjective bad faith, or 2 that `the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith' in order to collect attorney's fees." Unity Ventures, 894 F.2d at 253 (quoting Christiansburg, 434 U.S. at 421, 98 S.Ct. at 700) (emphasis added).¹ Other circuits have, with some minor linguistic variation, applied a similar standard to determine whether a defendant is a "prevailing party" under § 1988. See, e.g., Cobb v. Saturn Land Co., Inc., 966 F.2d 1334, 1338 (10th Cir.1992); United States v. State of Miss., 921 F.2d 604, 609 (5th Cir.1991) (under § 1988, defendants are entitled to attorney fees only when a plaintiff's underlying claim is frivolous, unreasonable, or groundless); Mackenzie v. City of Rockledge, 920 F.2d 1554, 1560 (11th Cir.1991); Davis v. City of Charleston, Mo., 917 F.2d 1502, 1505 (8th Cir.1990) (defendants must show that the evidence provided a basis for "well supported findings" that the suit is "frivolous, unfounded, and vexatiously pursued"); Mylett v. Jeane, 910 F.2d 296, 299 (5th Cir.1990) (fees may be awarded to defendant upon finding that the plaintiff's action was frivolous, unreasonable, "or without factual foundation or that the plaintiff continued to litigate after it clearly became so"); Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir.1988) (defendant cannot receive fees unless unsuccessful claim was frivolous, vexatious, or brought to harass or embarrass the defendant).

In Coates v. Bechtel, 811 F.2d 1045 (7th Cir.1987), the Seventh Circuit discussed the congressional policy behind different standards between plaintiffs and defendants for an award of fees. Congress intended § 1988 to provide an incentive to indigent plaintiffs to bring suit, id. at 1049; that purpose would be thwarted if plaintiffs faced the prospect of paying their opponent's fees in every case. Id.; Hershinow, 772 F.2d at 395. Thus, instead of taxing losing plaintiffs with costs in every case, § 1988 provides a mechanism for fee shifting only in certain situations. As the Seventh Circuit explained:

The Hughes standard was designed to strike a careful balance between the desire to encourage private litigants with valid claims to bring suit to vindicate civil rights and the need to deter frivolous actions brought primarily to harass the defendant without hope of success. As a result, district courts may grant attorney's fees under § 1988 to prevailing defendants "only in very circumscribed situations." Hershinow, 772 F.2d at 395. The Supreme Court has cautioned against post hoc reasoning which equates the plaintiff's failure to prevail with the conclusion that his action must have been unreasonable or without foundation. Christiansburg, 434 U.S. at 421-422 98 S.Ct. at 700-701. To avoid discouraging "all but the most airtight claims," the district court must evaluate whether the plaintiff's action was "frivolous, unreasonable, or without foundation" as of the time that the plaintiff filed suit, not with "hindsight logic" after judgment has been entered against him. Id. at 422 98 S.Ct. at 700. "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." Id. On the other hand, when a civil rights suit is lacking in any legal or factual basis, Tarkowski v. County of Lake, 775 F.2d 173 at 176 7th Cir.1985, an award of fees to the defendant is clearly appropriate to deter frivolous filings and to ensure that the ability of the courts to remedy civil rights violations is not restricted by dockets crowded with baseless litigation. See Hamilton v. Daley, 777 F.2d 1207, 1212 (7th Cir.1985).

Coates, 811 F.2d at 1050.²

Notwithstanding language creating a prevailing defendant's heavy burden, a recent decision by the Seventh Circuit affirming the district court's award of fees makes clear that a defendant may indeed recover fees. Munson, 969 F.2d at 269. Thus, the court will examine the different procedural stages of this matter to determine whether Plaintiff's claims stated at those stages warrant the award of fees Defendants seek under § 1988. This court is mindful of the Seventh Circuit's direction that a district court must "discuss the specific information that formed the basis for the plaintiff's suit, and ... explain why this information did not constitute adequate factual substance for the commencement of a nonfrivolous civil rights case." Coates, 811 F.2d at 1051 (quoting Hermes v. Hein, 742 F.2d 350, 357 (7th Cir.1984)); Munson v. Friske, 754 F.2d 683, 697 (7th Cir.1985).

There are two periods throughout the litigation where a plaintiff's claim may be determined frivolous. The initial question is whether, based upon the information available to the plaintiff at the time he initiated the lawsuit, the claim was frivolous, groundless, or unreasonable. Coates, 811 F.2d at 1051. The court must focus not on the facts ultimately determined, but on the plaintiff's version of the facts forming the basis for the suit. Id. at 1052 & n. 5. Even if the allegations initially reasonably state a claim, a plaintiff may be subject to a fee award if the plaintiff "continues to litigate after it becomes clear that his action lacks factual substance." Id. at 1053 (citing Hughes, 449 U.S. at 15, 101 S.Ct. at 179). Therefore, if plaintiff's discovery efforts (or lack thereof) fail to provide any factual support for otherwise reasonable allegations, then the court may award fees to the defendant if the plaintiff persists in prosecuting a claim...