United States District Court, D. Nevada
M NAVARRO, DISTRICT JUDGE
before the Court is the Motion for Attorney Fees and Costs,
(ECF No. 61), filed by Defendants AP Express Worldwide, LLC,
AP Express, LLC, Jeffery Pont, and World Pack USA
(collectively, “Defendants”). Plaintiff Michael
Foley (“Plaintiff”) filed a Response, (ECF No.
62), and Defendants filed a Reply, (ECF No. 64).
pending before the Court is Plaintiff's Motion for Relief
from Judgment, (ECF No. 63), regarding the Court's Order,
(ECF No. 58), declaring him a vexatious litigant. Defendants
filed a Response, (ECF No. 66), and Plaintiff did not file a
reasons discussed below, Defendants' Motion for Attorney
Fees and Costs is GRANTED in part and
DENIED in part. Plaintiff's Motion for
Relief from Judgment is DENIED.
case arises from allegations of a conspiracy to interfere
with Plaintiff's custody over his children. According to
Plaintiff, Defendants engaged in manipulative tactics-
including filing fake child abuse allegations against
Plaintiff-to deprive Plaintiff of his custodial rights.
(See Am. Compl. ¶ 9, ECF No. 44).
first Complaint, (ECF No. 6), alleged that the Court had
diversity and federal question jurisdiction over the case.
(Compl. 1:24-26). The Court dismissed the Complaint for lack
of subject matter jurisdiction because Plaintiff failed to
allege the citizenship of Defendants Patricia Foley
(“Foley”) and World Pack USA (the “LLC
Defendant”). (See First Order to Dismiss
3:1-4:18, ECF No. 35). Plaintiff then filed the Amended
Complaint, which alleged that Foley was a citizen of Mexico,
and the Court had diversity jurisdiction. (Am. Compl.
1:24-26). The Court again dismissed the Amended Complaint for
lack of subject matter jurisdiction because Plaintiff again
failed to properly allege the citizenship of the LLC
Defendant. (Second Order to Dismiss (“Order”)
3:17-4:22, ECF No. 58). The Order also deemed Plaintiff a
vexatious litigant and subjected his future complaints before
the Court to pre-screening. (Id. 4:24-8:2).
now move for an award of $190.11 in costs under Federal Rule
of Civil Procedure 54(d)(1) and $50, 072.50 in attorney fees
under 28 U.S.C. § 1927 and 42 U.S.C. § 1988. (Mot.
Fees 6:1-15:10, ECF No. 61). Plaintiff seeks relief from the
portion of the Court's Order declaring him a vexatious
litigant. (Mot. Relief, 3:5-26, ECF No. 63).
Motion for Attorney Fees
statute, a court may impose attorney fee liability on a party
“admitted to conduct cases in any court of the United
States . . . who so multiplies the proceedings in any case
unreasonably and vexatiously” such that “excess
costs, expenses, and attorneys' fees” were
“reasonably incurred because of such conduct.” 28
U.S.C. § 1927. “Recklessness or bad faith is
required to support a fee award under § 1927.”
Cline v. Ind. Maint. Eng. & Contracting Co., 200
F.3d 1223, 1236 (9th Cir. 2000). “Bad faith is present
when an attorney knowingly or recklessly raises a frivolous
argument, or argues a meritorious claim for the purpose of
harassing an opponent.” Estate of Blas v.
Winkler, 792 F.2d 858, 860 (9th Cir. 1986). Notably,
commencing a lawsuit by filing a complaint “may be
sanctioned pursuant to Rule 11 or a court's inherent
power, but it may not be sanctioned pursuant to §
1927.” Moore v. Keegan Mgmt. Co., 78 F.3d 431,
435 (9th Cir. 1995).
party brings a claim under federal civil rights laws, the
court may award the prevailing party reasonable attorney fees
under 42 U.S.C. § 1988. See 42 U.S.C. §
1988(b). The defendant may be entitled to a fee award under
§ 1988, “but only where the action brought is
found to be unreasonable, frivolous, meritless, or
vexatious.” Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 421 (1978).
Motion for Relief from Judgment
Rule 60(b), a court may relieve a party from a final
judgment, order or proceeding only in the following
circumstances: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence; (3) fraud;
(4) a void judgment; (5) a satisfied or discharged judgment;
or (6) any other reason justifying relief from the judgment.
Backlund v. Barnhart, 778 F.2d 1386, 1387 (9th Cir.
1985). “Relief under Rule 60(b)(6) must be requested
within a reasonable time, and is available only under