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Dubric v. A Cab, LLC

United States District Court, D. Nevada

April 13, 2017

A CAB, LLC et al., Defendants.



         This Title VII employment discrimination case was tried to jury verdict on February 24, 2017. Now pending before the Court is Defendants' Motion for Attorney Fees. (ECF No. 96.) For the reasons given herein, the Court grants the motion in part.


         Plaintiff Jasminka Dubric (“Dubric”) began working for Defendant A Cab, LLC (“A Cab”) in June 2013. Dubric alleged that from the beginning of her employment until May 26, 2015, Defendant Creighton J. Nady (“Nady”) “made comments about Plaintiff's appearance and body” and hugged and touched her without permission. (Compl. ¶ 10, ECF No. 1.) Dubric alleged that in February 2015, Nady “grabbed her face and forcefully kissed her on the mouth, ” (Id. at ¶ 12; Dubric Dep. 49:1-50:16, ECF No. 40-2), and that on May 26, 2015, Nady grabbed Dubric's arm, pulled her toward him, and attempted to kiss her on the lips; however, Nady ended up kissing only Dubric's cheek after she turned her head and pulled away, (Compl. ¶ 13; Dubric Dep. 88:10-89:18). On or about May 27, 2015, A Cab demoted Dubric from road supervisor to taxi cab driver, and Dubric resigned. (Compl. ¶¶ 14-15.)

         On November 6, 2015, Dubric filed this suit making three claims solely against A Cab: (1) sexual harassment-hostile work environment in violation of Title VII; (2) sexual harassment-quid pro quo in violation of Title VII; and (3) retaliation in violation of Title VII; and two claims against both A Cab and Nady: (1) intentional infliction of emotional distress; and (2) battery. In addition, Nady asserted a counterclaim against Dubric for defamation. On December 8, 2016, the Court denied Defendants' motion seeking defensive summary judgment on Dubric's claims and offensive summary judgment on Nady's counterclaim. (Order, ECF No. 42.)

         At trial, following Dubric's case-in-chief, the Court partially granted Defendants' Rule 50 motion for judgment as a matter of law. The Court dismissed Dubric's Title VII claims of hostile work environment and retaliation. However, the Court declined to dismiss the claims of quid pro quo sexual harassment, intentional infliction of emotional distress, and battery. At the close of evidence, the Court further narrowed Dubric's claims, granting judgment in favor of A Cab-but not Nady-on the state law claims of intentional infliction of emotional distress and battery.

         On February 24, 2017, the jury found against Dubric on all remaining claims. The jury also found against Nady on his counterclaim for defamation.

         A Cab and Nady have now filed a motion for attorneys' fees under Section 706(k) of Title VII. (ECF No. 96.) Defendants seek recovery of $143, 905.50 in fees to be distributed as follows: $86, 397.50 to Rodriguez Law Offices, P.C. (“RLO”), $18, 080.00 to Kamer Zucker Abbott (“KZA”), and $39, 428.00 to Mace J. Yampolsky, Ltd. (“MJY”). (Mot. Att'y Fees 4, ECF No. 96.) These figures represent the total fees incurred in defense counsel's litigation of the case.


         In a Title VII case, “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) (citations and punctuation omitted). Whether an action is frivolous, unreasonable, or without foundation must be determined on a claim-by-claim basis, see Christiansburg, 434 U.S. at 422, and only those fees incurred in defending against the frivolous, unreasonable, or groundless claims are recoverable. Harris, 631 F.3d at 971.

         “The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.” Hughes v. Rowe, 449 U.S. 5, 14 (1980). Accordingly, courts must avoid engaging in “post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation.” Christiansburg, 434 U.S. at 421-22.

         III. ANALYSIS

         It will be helpful first to set the stage by clearing away some clutter. First, it is Title VII that authorizes an award of attorneys' fees in this case. Therefore, any claims outside the umbrella of Title VII cannot support an award of attorneys' fees. Accordingly, any fees incurred in defending the claims of intentional infliction of emotional distress and battery or, of course, in pursuing the counterclaim of defamation cannot be awarded here. Second, as a technical matter, Dubric asserted her Title VII claims against A Cab only, and not Nady. Therefore, although the instant motion is brought by both Defendants, attorneys' fees may only ...

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