United States District Court, D. Nevada
ORDER GRANTING IN PART AND DENYING IN PART THE
DEFENDANTS' MOTION FOR ATTORNEY'S FEES AND JOINDER
(ECF NOS. 103, 106)
P. GORDON, UNITED STATES DISTRICT JUDGE.
Nye County, Anthony DeMeo, Mary Huggins, and Ed Howard move
for attorney's fees against plaintiff Daryal Taylor under
42 U.S.C. § 1988 and against Taylor's attorneys
under Nevada Revised Statutes § 18.010(2)(b) and §
7.085. These defendants argue that this case was frivolous
from the outset and was maintained long after it became
apparent that it was frivolous. Defendant David Boruchowitz
joined in the motion. ECF No. 106. Taylor and his attorneys
oppose, arguing the case was not frivolous, an award of fees
would discourage civil rights litigants from bringing cases
under 42 U.S.C. § 1983, and an award of fees against
counsel would discourage attorneys from representing civil
the lawsuit was not entirely frivolous from the outset, it
became so after both experts opined that the video showed
Taylor's vehicle slowing down. Thus, I will award some
fees against Taylor for maintaining a frivolous lawsuit.
However, I deny the defendants' motion for a fee award
against Taylor's counsel because the statute the
defendants rely upon does not apply in this context.
Fees Against Taylor under § 1988
1988 provides that the court “may” award
reasonable attorney's fees to the prevailing party in a
§ 1983 civil suit. A prevailing defendant may recover
fees where “the plaintiff's claim was frivolous,
unreasonable, or groundless if the plaintiff continued to
litigate after it clearly became so.” CRST Van
Expedited, Inc. v. E.E.O.C., 136 S.Ct. 1642, 1646 (2016)
(quotation omitted). “A defendant need not show that
every claim in a complaint is frivolous to qualify for
fees.” Fox v. Vice, 563 U.S. 826, 835 (2011).
However, the defendant may receive “only the portion of
his fees that he would not have paid but for the frivolous
claim.” Id. at 836. The question thus is
“whether the costs would have been incurred in the
absence of the frivolous allegation.” Id. at
defendants argue the complaint was overbroad from the
inception, including several defendants who were not capable
of being sued, defendants who were entitled to absolute
immunity, and defendants who had no involvement in the
criminal prosecution of Taylor. Taylor does not specifically
respond to this point or explain why his claims against these
defendants were not frivolous from the outset. However, the
defendants do not demonstrate what legal fees were incurred
in relation to these claims. Any such fees would be minimal
considering that there was no significant motion practice
related to them and the parties stipulated to their
defendants argue that the claims against the other defendants
were frivolous because most of Taylor's claims were
barred by the statute of limitations and Taylor and his
counsel knew that the allegation Boruchowitz fabricated his
testimony was false. The defendants assert this became
apparent after both experts in the case opined that the video
showed Taylor's patrol car slowing down in front of
Irene's Casino, just as Boruchowitz had testified.
not find the lawsuit was entirely frivolous from the outset.
As to the defendants' argument that most of the claims
were untimely, that is an affirmative defense that must be
raised and I did not wholly adopt the defendants'
position on which claims were time-barred. See ECF
No. 96. As to the merits, as I stated in my summary judgment
order, the video “is subject to interpretation . . .
.” Id. at 9. Viewed through the eyes of one
who believes he has been wrongly accused, the Irene's
Casino video may not be as clear as the defendants assert.
once both experts in the case (including Taylor's expert)
opined that the video showed the patrol car slowing down,
Taylor had no reasonable basis to continue to claim that
Boruchowitz fabricated his testimony at the preliminary
hearing or at trial. Additionally, the allegation that
Boruchowitz attempted to hide the video from the jury was
frivolous from the outset. A review of the state court trial
recording would have shown there was no factual basis for
that claim. Taylor was at his own trial (as was one of his
attorneys, Conrad Claus) and thus would have known before he
ever filed this suit that this particular allegation was
I find a limited award of fees against Taylor under §
1988 is warranted. Because Taylor should have dismissed his
claims once his own expert refuted the factual basis for
them, I consider fees running from the date of the
expert's report: December 1, 2015. ECF No. 76-42.
customary method of determining a reasonable fee is the
lodestar method. Tutor-Saliba Corp. v. City of
Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006). I calculate
the lodestar “by multiplying the number of hours
reasonably expended on the litigation by a reasonable hourly
rate.” Id. The lodestar is a presumptively
reasonable fee award. Id.
assess whether it is necessary to adjust the lodestar figure
upward or downward based on a variety of factors.
Id. at 1065 (citing Kerr v. Screen Extras Guild,
Inc., 526 F.2d 67, 70 (9th Cir. 1975)). I am also guided
by the factors set forth in Local Rule 54-14, which requires
a motion for attorney's fees to include:
(1) A reasonable itemization and description of the work
(2) An itemization of all costs sought to be charged as part
of the fee award and not otherwise taxable under LR ...