United States District Court, D. Nevada
SERGIO MOMOX-CASELIS, individually and as Guardian Ad Litem for Maria Momox-Caselis, and SERGIO MOMOX-CASELIS and KRISTIN WOODS, as Co-Special Administrators of the estate of M.M., Plaintiffs
v.
MAIRA JUAREZ-PAEZ, et al., Defendants
ORDER GRANTING MOTION FOR ATTORNEY'S FEES AND
DENYING MOTION TO RETAX COSTS [ECF NOS. 141, 154]
ANDREW
P. GORDON, UNITED STATES DISTRICT JUDGE.
After
obtaining summary judgment in their favor, the County
defendants moved for an award of a portion of the
attorney's fees they incurred, under 18 U.S.C. §
1988 and Federal Rule of Civil Procedure 54(d). ECF No. 141.
The plaintiffs opposed that motion and moved to re-tax the
costs that were entered against them by the clerk of court.
ECF No. 154. The attorney's fees the defendants request
are reasonable and recoverable under the relevant rules. The
taxable costs awarded against the plaintiffs are likewise
reasonable and proper. Therefore I will award those fees and
costs.
I.
ATTORNEY'S FEES
The
standard American rule of fee recovery recognizes that
"each party must bear its own attorney's fees in the
absence of a rule, statute, or contract authorizing an
award" of fees.[1] Under 42 U.S.C. § 1988(b), a district
court may award attorney's fees to the prevailing party
in a § 1983 case. But "[a]ttorneys' fees in
civil rights cases should only be awarded to a defendant in
exceptional circumstances."[2] A defendant "may
recover attorney's fees only if the plaintiffs action was
'frivolous, unreasonable, or without
foundation.'"[3] An action becomes frivolous when the
result appears obvious or arguments are wholly without merit,
and a defendant can recover if the plaintiff violates this
standard at any point during the litigation, not just at the
inception.[4]
The
defendants request $22, 268.00 as the attorney's fees
they incurred for work related to their motion for summary
judgment and defending against the plaintiffs' motions
for partial summary judgment and to amend. They argue that
after the May 20, 2017 deposition of Maria Juarez-Paez, the
plaintiffs "knew all they needed to know about the
Juarezes' backgrounds, training, licensing, foster home
and care of M.M., the circumstances of and preceding
M.M.'s death, [the defendants'] supervision of that
foster home and dealings with the Juarezes and, as such,
Plaintiffs were on notice that they could not establish their
claims."[5] Thus, the defendants contend, from that
point the claims were unreasonable, frivolous, and without
merit. ECF No. 141 at 9-10.
While I
cannot say that the plaintiffs' claims were frivolous
from the beginning, it should have been clear to the
plaintiffs and their counsel by the end of discovery that
they could not establish their claims. My order granting
summary judgment points out the many legal and factual
deficiencies with those claims. See ECF No. 137. By
the time of summary judgment, the plaintiffs had little if
any evidence to support any of their claims. With regard to
count one (the § 1983 claim against Clark County), the
plaintiffs argued that the propriety of M.M.'s removal
was "hotly disputed, " but did not point to
evidence in the record to show a dispute of fact, identify
applicable law, or explain how their rights were violated.
And they tried, unsuccessfully, to amend this claim at the
last minute to assert a different constitutional amendment.
For
count two, the plaintiffs had some evidence to support their
due process claim, but none of it raised a genuine dispute of
fact for trial. And, the plaintiffs failed to point to
clearly established law that would have put the defendants on
notice that their conduct was unlawful, which would have
negated the defendants' qualified immunity. See
Franceschi v. Schwartz, 57 F.3d 828, 832 (9th Cir. 1995)
(holding that awarding fees to the defendants was justified
because they were entitled to immunity); Morse v. North
Coast Opportunities, Inc., 118 F.3d 1338, 1343 (9th Cir.
1997)), (awarding fees to defendants for claims that were
barred by statute).
The
plaintiffs had no evidence to support count three, which
alleged the defendants failed to properly train foster care
workers. See ECF No. 137 at 16. Similarly, the
plaintiffs had no evidence to support many of their naked
allegations in counts four and six that the defendants were
negligent and violated their statutory duty of reasonable
judgment and care. Id. at 16-21.
Winning
a summary judgment motion does not, standing alone, justify
an award of attorney's fees. But where, as here, the
plaintiffs conducted lengthy discovery and still had no
evidence or legal arguments to justify their claims, I am
compelled to find that by the close of discovery the
plaintiffs and their counsel were on notice that their claims
were unreasonable, frivolous, and without merit. The facts
underlying this lawsuit are tragic. But that does not permit
the litigants and their counsel to proceed with baseless
claims. An award of attorney's fees is justified in this
case.
Turning
to the fee request, when determining a reasonable fee award
under a fee-shifting statute such as § 1988, 1
"must first calculate the lodestar by multiplying the
number of hours reasonably expended ... by [the] reasonable
hourly rate."[6] The lodestar here is $22, 268.00, based
upon 117.2 hours worked at a rate of $190 per hour. Based on
my years as a practicing attorney in this district, and more
recently as a judge reviewing attorney fee requests, the
defendants' lawyer's hourly rate of $190 is low for
lawyers of her qualifications in this market. And the hours
she billed were reasonable for the tasks performed.
I next
considered the factors set forth in Brunzell v. Golden
Gate National Bank, 455 P.2d 31, 33 (Nev. 1969),
[7]
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th
Cir. 1975), [8] and Local Rule 54-14(b). The
defendants' lawyer is a skilled professional with
significant experience. This case involved difficult legal
and emotional issues, including the impact of underlying
administrative proceedings and multiple claims and theories
against multiple defendants. The briefs addressed those
issues and were supported by numerous exhibits. The tasks
performed by the defendants' lawyer were appropriate to
the demands of the case. And the result confirms her efforts
as the defendants' motion for summary judgment was
granted. The fees likely would have been lower if the
plaintiffs had not named so many unnecessary defendants. And
the fees would have been higher had the defendants sought to
recover for work performed earlier in the case. The
Brunzell and Kerr factors confirm the
lodestar amount. I award the defendants $22, 268.00 in
attorney's fees.
The
plaintiffs contend they should not have to pay fees and costs
because that would cause them financial ruin. ECF No. 144 at
6-7. They offer no evidence of their financial status other
than counsel's unsupported allegations that they
"barely make[] enough to get by" and that their
economic struggles are why M.M. was removed from the family
home in the first place. Id.; see also ECF
No. 154 at 3. The plaintiffs' counsel is well aware of
the need to provide proof of indigency in order to avoid
paying fees and costs, as I and other judges have pointed
this out to her in prior cases. See, e.g., Amezcua v
Jordan Transport, Inc., 2017 WL 1293994 at *3 and
n.3. And, the defendants note that the Plaintiffs are likely
not indigent because they received $101, 000 from
co-defendants Maira and Joaquin Juarez-Paez. ECF Nos. 92 at
7, 95, and 100. The plaintiffs have failed to demonstrate
that they cannot afford to pay fees and costs, so that is not
a valid basis to deny the defendants' fee request.
II.
TAXABLE COSTS
"Unless
a federal statute, these rules, or a court order provides
otherwise, costs . . . should be allowed to the prevailing
party." Fed.R.Civ.P. 54(d)(1); see also LR
54-1(a) ("Unless the court orders otherwise, the
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