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Salley v. Truckee Meadows Water Authority

United States District Court, District of Nevada

March 27, 2015

TRUDY J. SALLEY, Plaintiff,


ROBERT C. JONES United States District Judge

Pending before the Court is Defendants’ Motion for Attorneys’ Fees (ECF No. 64) pursuant to 42 U.S.C. Section 1988 and 42 U.S.C. Section 2000e-5(k). Plaintiff has filed a Response (ECF No. 67) and Defendants submitted a Reply (ECF No. 68). For the reasons contained herein, the Motion is GRANTED in part and DENIED in part.


On January 30, 2012, Plaintiff, a white American-born female, filed her original complaint in state court alleging various constitutional and state tort claims against Defendant Truckee Meadows Water Authority[1] (“TMWA”), her ex-employer, and Defendant Narala, her TMWA supervisor. (Pet. for Removal, ECF No. 1). Plaintiff alleged that she was treated hostilely by Narala because she was subjected to “excessive scrutiny, frequent erroneous accusation, yelling, rudeness, ostracism, demotion, transfer, alteration of job duties, negative performance evaluations, unwarranted discipline, ” and other work-related frustrations. (Compl. ¶ 11, ECF No. 1-1).

Defendants removed the case to federal court, and on September 12, 2012, moved to dismiss the complaint, contending that each of Plaintiff’s five causes of action failed as a matter of law. (Sept. 12, 2012 Mot. to Dismiss, ECF No. 16). Plaintiff did not file a response to the motion. (Apr. 26, 2013 Order 2, ECF No. 35). Instead, on November 29, 2012, Plaintiff filed her first amended complaint (“FAC”), without approval from the Court. (Id.). The untimely FAC simply restated the allegedly deficient allegations, though it purported to add a sixth claim under Title VII for discrimination and retaliation. (Id.). As such, the FAC was insufficient to constitute a substantive amendment that would moot the first motion to dismiss. (Id.). Shortly thereafter, Defendants filed a second motion to dismiss along with a motion to strike the untimely FAC.

While that motion was pending, the parties engaged in an Early Neutral Evaluation Conference before Magistrate Judge Valerie P. Cooke on April 19, 2013. The parties conferred, but they were unable to negotiate a settlement. (ECF No. 34). On April 26, 2013, the Court issued an Order granting Defendants’ first motion to dismiss as to Plaintiff’s original five claims. (Apr. 26, 2013 Order 4, ECF No. 35). As to the Title VII claim, in an effort to give Plaintiff the benefit of the doubt, the Court granted her a retroactive extension and applied Defendants’ second motion to dismiss against that claim. (Id.). Nevertheless, the Court dismissed the sixth claim, finding that Plaintiff failed to properly allege exhaustion of administrative remedies. Yet in an effort to give Plaintiff a final opportunity to prosecute her case, the Court granted leave to amend to add the necessary allegations related to exhaustion. The Court clearly and unambiguously ordered that if Plaintiff desired to file another amended complaint, she had to do so within fourteen days of the Order’s entry. (Id.). Plaintiff made no filing, and the deadline expired on May 10, 2013. (Id.).

Defendants waited an additional three weeks for Plaintiff to amend her complaint before filing a third motion to dismiss on May 29, 2013, requesting that Plaintiff’s FAC be dismissed with prejudice for failure to comply with the Court’s Order. (May 29, 2013 Mot. to Dismiss, ECF No. 26). A week later, Plaintiff made two untimely filings: a request for enlargement of time and the second amended complaint (“SAC”). (See ECF Nos. 37, 38). Plaintiff’s counsel attempted to justify the delay by stating that he “failed to calendar [the May 10th] date” and that he could not “recreate an explanation for why it was not calendared, ” but requested that the Court forgive it as a “professional courtesy.” (Oct. 30, 2013 Order 3, ECF No. 48). Defendants then moved to strike the proposed SAC. (ECF No. 41). On October 30, 2013, the Court granted Defendants’ motion to strike and denied as moot the motion to dismiss, explaining that Plaintiff’s missing the deadline was not based on excusable neglect and, additionally, Plaintiff had ignored an explicit order regarding the amendment date. (Oct. 30, 2013 Order 3–5). In that Order, the Court recognized that Defendants had been “needlessly forced to expend resources by repeatedly filing motions on matters that Plaintiff should have resolved long ago.” (Id. at 6).

On November 13, 2013, Defendants filed a motion for attorneys’ fees. After the matter was fully briefed by both sides, Plaintiff’s counsel, Jeffrey Dickerson, was suspended from practice by the Nevada Supreme Court. Finding that it would be “seemingly necessary” to hold a hearing on the issue of attorneys’ fees, the Court denied Defendants’ motion without prejudice and granted Plaintiff sixty days to either associate substitute counsel or inform the Court that she would be proceeding pro se. That Order was entered on July 23, 2014. Plaintiff failed to do either within the sixty days given her. Rather, Defendants renewed their motion for attorneys’ fees on January 6, 2015 after which Plaintiff contacted substitute counsel on January 23, 2015. (ECF No. 65). Plaintiff’s substitute counsel then filed an unopposed motion for an extension of time to respond to Defendants’ renewed motion. The response to the present motion was filed on February 6, 2015 and Defendants’ replied on February 12, 2015.


The present motion seeks $39, 618.75 in attorneys’ fees. Defendants argue that they are entitled to attorneys’ fees pursuant to 42 U.S.C. Section 1988 and 42 U.S.C. Section 2000e-5(k) because (1) Plaintiff’s complaint was meritless from the outset; and (2) Plaintiff continued to litigate this case even after it was clear that her claims were baseless, engaging in long, unnecessarily protracted litigation. (Renewed Mot. Att’ys’ Fees 9–11, ECF No. 64). Plaintiff responds that the Court’s finding of implausibility does not mean the claims were meritless and that Defendants’ requested fees are unreasonable. (Pl.’s Resp. 2–3, ECF No. 67).

This case presents an interesting question regarding fees. As previously indicated in at least one Order, Defendants have been forced to needlessly expend resources in defending against Plaintiff’s claims because of irresponsible and reckless pleading practices. (Oct. 30, 2013 Order 6). Therefore, the Court finds that some award of fees is appropriate here. See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1107 (9th Cir. 2002). The question, though, is whether the fees may be awarded under the statutes cited by Defendants, which would obligate Plaintiff herself to pay the incurred expenses, or whether the fees should be assessed as sanctions against Plaintiff’s prior counsel, Attorney Dickerson.

A. Fees under Section 1988 and Section 2000e-5

Under 42 U.S.C. Section 1988, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” Likewise, in a Title VII action, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .” 42 U.S.C. § 2000e-5(k). While successful plaintiffs in civil rights actions are awarded attorneys’ fees as a matter of course, prevailing defendants are awarded fees only in “exceptional cases, ” lest plaintiffs with legitimate claims be deterred from filing suit. Harris v. Maricopa Cnty. Superior Court, 631 F.3d 963, 968 (9th Cir. 2011). Accordingly, a prevailing defendant in a civil rights case is awarded attorneys’ fees only if the court finds that the plaintiff’s action 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, 421 (1978).

“A case may be deemed frivolous only when the result is obvious or the arguments of error are wholly without merit.” Gibson v. Office of Att’y Gen., State of California, 561 F.3d 920, 929 (9th Cir. 2009). Whether an action is frivolous, unreasonable, or groundless must be determined on a claim by claim basis. See Christiansburg Garment Co., 434 U.S. at 422. ...

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