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Nieman v. Milam

United States District Court, N.D. Texas, Dallas Division

May 11, 2018

JASON NIEMAN, Plaintiff,
v.
MICHAEL MILAM, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REBECCA RUTHERFORD UNITED STATE MAGISTRATE JUDGE

         Before the Court is a “Motion for § 1988 Attorney's Fees” [ECF No. 289], filed by the City of Dallas (the “City”), John McKinney, Dwaine Helton, Michael Milam, and Jessica Merrell (together “Movants”). For the reasons stated, the Motion should be DENIED.

         BACKGROUND[1]

         After more than three years of litigating this civil action alleging various state and federal claims against multiple governmental and private entities, all of Plaintiff's claims against the several defendants have been dismissed. See Orders [ECF Nos. 146, 151, 152, 153, 157, 170, 203, 204, 269, 283, 285, 286]. The sole remaining issue for determination in this action is Movants' counterclaim for attorneys' fees under 42 U.S.C. § 1988. See Counterclaim [ECF No. 69].

         In response to a Court Order, Movants have briefed the issues pertaining to their claim for attorneys' fees under Section 1988. Succinctly stated, Movants contend they are entitled to an award of attorneys' fees because all of Plaintiff's claims against them were frivolous, unreasonable, or groundless from their inception, and because Plaintiff vexatiously litigated those claims even after it should have been clear to Plaintiff that his claims were without merit. Plaintiff opposes Movants' fee request on grounds that attorneys' fees are not available to defendants under 42 U.S.C. § 1988 and because he prosecuted non-frivolous claims in this lawsuit in good faith. Movants object that Plaintiff's opposition merely perpetuates a narrative that the Court has rejected, and that, despite his post-hoc rationalizations for his conduct, Plaintiff has failed to refute that his claims against Movants were frivolous from their inception. By their Motion, Movants seek $93, 590 in attorneys' fees and costs. The Motion is ripe for determination.

         LEGAL STANDARDS

         “[T]he court, in its discretion, may allow the prevailing party, other than the United States, reasonable attorney's fee as part of the costs” in cases brought under Section 1983. 42 U.S.C. § 1988(b). “Prevailing parties” under Section 1988 are those parties that “succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). “Although attorney's fees for prevailing plaintiffs are almost always awarded, attorney's fees for defendants are only awarded ‘upon a finding that that the plaintiff's action was frivolous, unreasonable, or without foundation.'” DeRamus v. City of Alexandria, 675 Fed.Appx. 408, 412 (5th Cir. 2017) (quoting Fox v. Vice, 563 U.S. 826, 833 (2011); Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978)). Indeed, “attorneys' fees for prevailing defendants are presumptively unavailable unless a showing is made that the underlying civil rights suit was vexatious, frivolous, or otherwise without merit.” Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001); see also Tutton v. Garland Indep. Sch. Dist., 733 F.Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). “The ‘stringent standard applicable to defendants is intended to ensure that plaintiffs with uncertain but arguably meritorious claims are not altogether deterred from initiating litigation by the threat of incurring onerous legal fees should their claims fail.'” Myers v. City of West Monroe, 211 F.3d 289, 292 n. 1 (5th Cir. 2000) (quoting Aller v. New York Bd. of Elections, 586 F.Supp. 603, 605 (S.D.N.Y. 1984)).

         In determining whether an action was frivolous, the Court must determine “whether the case was so lacking in merit that it was groundless, rather than whether the claim was ultimately successful.” United States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991). The fact that claims are dismissed before trial is not sufficient by itself to support a finding of frivolity. Myers v. City of West Monroe, 211 F.3d 289, 293 (5th Cir. 2000). Courts are generally reluctant to award fees to a prevailing defendant unless the plaintiff “refused to acknowledge clear precedent or asserted a claim which was based knowingly on a nonexistent interest.” Pisharodi v. Valley Baptist Med. Ctr., 393 F.Supp.2d 561, 577-78 (S.D. Tex. 2005).

         ANALYSIS

         Attorneys' Fees Award to Movants as Defendants Having obtained dismissal of all of Plaintiff's claims against them, Movants are deemed to be prevailing parties in this litigation. As defendants in the litigation, Movants are entitled to recover reasonable attorneys' fees only if they show Plaintiff's claims against them were frivolous, unreasonable, or without foundation. 42 U.S.C. § 1988; Christiansburg Garment Co., 434 U.S. at 421. To the extent Plaintiff argues Movants' request for fees is without merit because Section 1988 does not create an independent cause of action, the Court has already considered, and rejected that argument. See Order Accepting [ECF No. 151] (accepting, over Plaintiff's objection, the Findings, Conclusions, and Recommendation of the Magistrate Judge to deny Plaintiff's Motion to Dismiss Defendants' Counterclaim under Section 1988). As the Court previously held, Movants' counterclaim is a proper procedural vehicle for asserting Movants' claim for attorneys' fees. See Findings, Conclusions, and Recommendation of the Magistrate Judge [ECF No. 117].

         Timeliness of Motion Plaintiff objects that Movants' fee request is untimely because it was filed almost eight months after the Court entered judgment in favor of Defendants Helton, Milam, and Merrell, on April 3, 2017. See Judgment [ECF No. 270]. That judgment, however, was not a final judgment, as it did not dispose of all the claims-including Movants' counterclaim under Section 1988. Indeed, Plaintiff tacitly acknowledged the April 3, 2017, judgment was not final when he filed his motion seeking “an express order of this Court authorizing and/or confirming Plaintiff's rights to immediately file an appeal of all dispositive orders and related discovery rulings issued (or not issued) in this matter.” See Mot. [ECF No. 271]. Movants filed their motion in accordance with the deadline established by the Court, as extended with permission of the Court.

         Frivolous Nature of Plaintiff's Claims The Court has considered the full record in this case and the entire history of this litigation. Plaintiff's claims against Movants were disposed of by various procedural vehicles-some much earlier in the litigation than others. Although Movants ultimately prevailed against Plaintiff's claims, the Court does not find that Plaintiff “refused to acknowledge clear precedent or asserted a claim which was based knowingly on a nonexistent interest.” Movants argue that Plaintiff's claims against the City-specifically the Dallas Police Department (“DPD”) and the Dallas Fire-Rescue Department (“DFR”) -were legally frivolous, and that Plaintiff abandoned these frivolous claims only after the City was forced to expend resources to respond to Plaintiff's Complaint. See Mot. for Fees 2-3. According to Movants, had Plaintiff performed even minimal pre-suit legal research, he would have known that neither the DPD nor DFR are jural entities that can be sued. Id. Instead, the City was forced to file a motion to dismiss [ECF No. 12] with respect to Plaintiff's claims against the DPD and DFR. Plaintiff filed an Amended Complaint omitting the DPD and DFR as defendants, after the City filed its motion to dismiss. See Am. Compl. 1-2 [ECF No. 16].

         Although it is well-established that police departments and other agencies of Texas municipalities are not jural entities subject to suit, see, e.g., Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir. 1991), Plaintiff's voluntary dismissal of his claims against the DPD and DFR does not automatically subject him to attorneys' fees. Anderson v. Harrison Cty., Miss., 639 Fed.Appx. 1010, 1017 (5th Cir. 2016). Plaintiff has represented himself in this matter since the inception of the case. Even licensed attorneys sometimes make the mistake of naming the police department as a defendant. Plaintiff's conduct in initially bringing claims against the DPD and DFR and then dismissing those entities after the City filed its motion to dismiss does not establish that his claims against Movants were frivolous or wholly without merit. See Dean, 240 F.3d at 511.

         Furthermore, Plaintiff's conduct in naming the DPD and DFR as defendants was not vexatious-especially in view of the fact that Plaintiff promptly amended his complaint when the legal deficiency of his claims against those entities was brought to his attention. See Rios v. Blackwelder, 2017 WL 467072, at * (S.D. Tex. Feb. 3, 2017) (declining to award fees to prevailing defendant under Section 1988 where Plaintiff ...


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