Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Schlenvogt v. Marshall


September 15, 2008


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Presently before the Court is Defendants' Motion for Attorney's Fees.*fn1 Plaintiff did not file an opposition to this motion, but instead filed a "Motion to Strike Defendants' Motion for Attorney's Fees."*fn2 For the following reasons, Defendants' Motion is denied and Plaintiff's Motion to Strike is denied.


The Court has previously set forth a factual background for this action in its Order and Amended Findings and Recommendations entered March 14, 2008 and adopted March 31, 2008. Those Orders are incorporated by reference and need not be reproduced herein.

The Magistrate Judge assigned to this case found that all of Plaintiff's claims failed and that amendment would not cure the deficiencies in Plaintiff's complaint. Accordingly, the Magistrate Judge recommended that the case be dismissed with prejudice. This Court adopted those findings and recommendations in full and judgment was entered in favor of Defendants.

Defendants then moved for attorney's fees pursuant to 42 U.S.C. § 1988, as Plaintiff's complaint alleged violations of 42 U.S.C. § 1983. Plaintiff did not file an opposition to this motion, but instead filed a "Motion to Strike Defendants' Motion for Attorney's Fees."


1. Motion to Strike

At the outset, this Court notes that Plaintiff's Motion to Strike Defendants' Motion for Attorney's Fees is technically improper. Federal Rule of Civil Procedure 12(f) makes clear that a motion to strike applies only to pleadings. A motion for attorney's fees is not a pleading and, as such, not subject to a motion to strike. Accordingly, Plaintiff's Motion to Strike is denied.

However, because Plaintiff is a pro se litigant, the Court will consider any valid arguments raised in the Motion to Strike that relate to the Motion for Attorney's Fees.

2. Motion for Attorney's Fees

Defendants request attorneys' fees in the amount of $35,791.00 pursuant to 42 U.S.C. § 1988, which allows district courts to award such fees to parties that prevail in actions brought under 42 U.S.C. § 1983.*fn3 Section 1988 states in pertinent part, "In any action or proceeding to enforce a provision of ... section ... 1983 ... the court, in its discretion may allow the prevailing party ... a reasonable attorney's fee as part of the costs...." 42 U.S.C. § 1988(b).

"42 U.S.C. § 1988's authorization of an award of attorneys' fees applies differently to prevailing defendants than to prevailing plaintiffs. Plaintiffs prevailing in a civil rights action should ordinarily recover an attorneys' fee unless special circumstances would render such an award unjust, but a defendant should be awarded fees not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious."

Mayer v. Wedgewood Neighborhood Coal., 707 F.2d 1020, 1021 (9th Cir. 1983) (internal citations and quotations omitted). Since Defendants bring this Motion for fees, the pressing issue is whether Plaintiff's claims rose to the level of "unreasonable, frivolous, meritless, or vexatious."

The United States Supreme Court elaborated on this standard in Christiansburg Garment Co. v. Equal Employment Opportunity Commission:

[T]he term "meritless" is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and ... the term "vexatious" in no way implies that the plaintiff's subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney's fees to a prevailing defendant ... upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith. 434 U.S. 412, (1978) (addressed Title VII claims, but standard later applied to § 1983 claims in Hughes v. Rowe, 449 U.S. 5, 14-15 (1980)). Furthermore, "[a]n action becomes frivolous when the result appears obvious or the arguments are wholly without merit." Galen v. County of Los Angeles, 477 F.3d 652, 666 (9th Cir. 2007) (citing Christianburg, 434 U.S. at 422; Hughes, 449 U.S. at 14-15).

Further, in the case of pro se plaintiffs, "[c]courts should be cautious when considering an award to a prevailing defendant where the lawsuit was initiated by a party with limited financial resources or one who is appearing pro se." Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d 1023, 1028 (E.D.C.A. 2007)(citing Miller v. Los Angeles County Bd. Of Educ., 827 F.2d 617, 619 (9th Cir. 1987)). "In addition, pro se plaintiffs cannot simply be assumed to have the same ability as a plaintiff represented by counsel to recognize the objective merit (or lack of merit) of a claim." Miller, 827 F.2d at 620 (citing Hughes, 449 U.S. at 15). By way of example, the Ninth Circuit has indicated that repeated attempts by a pro se plaintiff to bring claims previously found to be frivolous would weigh in favor of awarding attorney's fees to the prevailing defendant. Id.

Defendants argue that Plaintiff's case was frivolous because this Court determined that Plaintiff lacked standing to prosecute his § 1983 claim. However, this Court's finding "does not render his case per se frivolous, unreasonable, or without foundation." Galen, 477 F.3d at 667. Indeed, the Supreme Court has cautioned against relying on such reasoning. "[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success." Christianburg, 434 U.S. at 421-422.

This Court does not find that the outcome of the case was "obvious" simply because the Court rendered a decision in Defendants' favor. The end result was that Plaintiff lacked standing, but the only way to reach that conclusion was for the parties to litigate the issue.

Based upon the foregoing, this Court will not issue an award of attorney's fees against Plaintiff.*fn4


Based on the foregoing, Plaintiff's Motion to Strike Motion for Attorney's Fees is DENIED and Defendants' Motion for Attorney's Fees is also DENIED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.