United States District Court, D. Nevada
M. Navarro, United States District Judge
before the Court is the Motion for Attorney's Fees, (ECF
No. 68), filed by Defendants State Bar of Nevada and State
Bar of Nevada Board of Governors (collectively
“Defendants”). Plaintiff David Lee Phillips
(“Plaintiff”) did not file a Response. For the
reasons set forth herein, Defendants' Motion for
Attorney's Fees is DENIED.
February 26, 2016, Plaintiff filed his Complaint before this
Court, alleging various claims of civil rights violations
against Defendants. (Compl., ECF No. 1). Attached to the
Complaint, Plaintiff included a “Certificate of
Service, ” purporting to have effectuated service by
mail. On June 3, 2016, Defendants filed a Motion to Dismiss
pursuant to Rule 12(b)(5) of the Federal Rules of Civil
Procedure (“FRCP”), asserting that Plaintiff
failed to provide sufficient service of process. In response,
Plaintiff argued, inter alia, that Defendants waived
any objection to improper service by appearing before the
Court and demonstrating an intent to defend against the suit.
(See Resp. to MTD, ECF No. 45). On March 16, 2017,
the Court granted Defendants' Motion to Dismiss and
dismissed the case without prejudice. (ECF No. 66).
Attorney's Fees under 42 U.S.C. § 1988
assert that they are entitled to $22, 960.00 in
attorney's fees pursuant to 42 U.S.C. § 1988. (Mot.
Atty. Fees 4:4-5:11, ECF No. 68). Under § 1988, a court
in its discretion may award reasonable attorney's fees to
the prevailing party. Braunstein v. Arizona Dep't of
Transp., 683 F.3d 1177, 1187 (9th Cir. 2012). If the
prevailing party is a defendant, the Court may only award
fees in “exceptional circumstances” where the
plaintiff's claims are “frivolous, unreasonable, or
their Motion, Defendants argue that “exceptional
circumstances” warrant the Court imposing
attorney's fees against Plaintiff. (Mot. Atty. Fees
5:5-11). In making this argument, however, Defendants fail to
address the threshold requirement that they be a prevailing
party. The Supreme Court has held that a party may be
accorded “prevailing party” status only when that
party obtains judicial relief “creat[ing a]
‘material alteration of the legal relationship of the
parties.' ” Buckhannon Bd. & Care Home,
Inc. v. W.Va. Dep't of Health & Human Res., 532
U.S. 598, 604 (2001) (quoting Tex. State Teachers Assn.
v. Garland Indep. School Dist., 489 U.S. 782 (1989)). In
the Ninth Circuit, a dismissal without prejudice does not
constitute a material alteration in litigants' legal
relationship. See Oscar v. Alaska Dep't of Educ.
& Early Dev., 541 F.3d 978, 982 (9th Cir. 2008).
Accordingly, Defendants are not a prevailing party for the
purpose of attorney's fees.
Attorney's Fees under 28 U.S.C. § 1927
also argue that they are entitled to an award of
attorney's fees under 28 U.S.C. § 1927. (Mot. Atty.
Fees 5:12-6:17). According to Defendants, such sanctions are
warranted because Plaintiff frivolously caused unnecessary
motion work and improperly attempted to conduct discovery.
(See id.). An award of sanctions under 28 U.S.C.
§ 1927 requires a finding of bad faith, which “is
present when an attorney knowingly or recklessly raises a
frivolous argument, or argues a meritorious claim for the
purpose of harassing an opponent.” W. Coast Theater
Corp. v. City of Portland, 897 F.2d 1519, 1528 (9th Cir.
1990); see also Barber v. Miller, 146 F.3d 707, 711
(9th Cir. 1998).
initial matter, the Court notes that sanctions under §
1927 apply to individual attorneys, as opposed to law firms
or parties. See F.T.C. v. Alaska Land Leasing, Inc.,
799 F.2d 507, 510 (9th Cir. 1986). Defendants' Motion,
however, refers only to Plaintiff's collective conduct
throughout the proceedings. As Plaintiff has been represented
by multiple attorneys throughout this matter, the Court finds
Defendants' Motion too vague to support a finding of
sanctions. Furthermore, the Court does not find sanctions
appropriate based on Plaintiff's failure to properly
serve Defendants. While Plaintiff erroneously attempted to
argue that Defendants waived their objections to improper
service, the Court does not find Plaintiff's argument so
knowingly or recklessly frivolous as to give rise to a
finding of bad faith. See Miller, 146 F.3d at 711.
Moreover, while Plaintiff filed a number of unsuccessful
motions throughout this matter, the Court denied these
motions largely on procedural grounds due to the pending
service issue. As the Court did not reach the merits of these
motions, the Court cannot say that these filings constitute
bad faith. The Court therefore declines to issue
attorney's fees under § 1927.
IS HEREBY ORDERED that Defendants' Motion for
Attorney's Fees, ...