United States District Court, W.D. Louisiana, Lafayette Division
DANA L. BROUSSARD
LAFAYETTE CONSOLIDATED GOVERNMENT, ET AL
REPORT AND RECOMMENDATION
PATRICK J. HANNA, Magistrate Judge.
Currently pending before the Court are the defendants' motions to tax costs and for attorney fees [Rec. Docs. 40, 42], which motions were referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C.§636 and the standing orders of this Court. The motions are opposed. [Rec. Docs. 45-46]. Oral argument was heard on the motions on January 27, 2015. For the following reasons, it is recommended that the motions be granted in part and denied in part.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Cpl. Dana L. Broussard brought claims under 42 U.S.C. §§1983 and 1988, Title VII, and the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution in a complaint for money damages. Louisiana state law claims were also asserted. [Rec. Doc. 1]. Named as defendants were Lafayette City-Parish Consolidated Government; Lafayette Police Department through the Lafayette City-Parish Consolidated Government; Lester Joseph "Joey" Durel, Jr. in his capacity as President of the Lafayette City-Parish Consolidated Government; Dee Edward Stanley, individually and in his capacity as Chief Administrative Officer of the Lafayette City-Parish Consolidated Government; James P. "Jim" Craft, individually and in his capacity as Chief of the Lafayette Police Department; George "Jackie" Alfred, individually and in his capacity as Patrol Division Commander of the Lafayette Police Department; Captain Cornell Montgomery, individually and in his capacity as a Captain in the Lafayette Police Department; Major Terry Head, individually and in his capacity as a Major in the Lafayette Police Department; Lieutenant Richard "Ricky" Rees, individually and in his capacity as a Lieutenant in the Lafayette Police Department; Sergeant Mike Brown, individually and in his capacity as a Sergeant in the Lafayette Police Department; and, Ray Domingue, individually and in his capacity as Human Resources Manager of the Lafayette City-Parish Consolidated Government. [Rec. Doc. 1, pp. 1-9].
On April 4, 2014, the defendants filed Motions to Dismiss pursuant to Rule 12(b)(5) and 12(b)(6) and Alternatively for Summary Judgment. [Rec. Docs. 6, 7]. In a Report and Recommendation on August 12, 2014, considering only the Rule 12(b)(6) motions, it was the recommendation of the undersigned that all of the plaintiff's claims based on the Fourth, Fifth, and Fourteenth Amendments be dismissed. It was also recommended that Plaintiff's §1983 claims against Defendants Durel, Stanley, Craft, Domingue, Alfred, Montgomery, Head, Rees and Brown, in their official capacities be dismissed based on redundancy and that the claims against the Lafayette City Police Department be dismissed based on the fact that the department lacks the legal capacity to be sued. The §1983 individual capacity claims against Defendants Durel, Stanley, Alfred, Head, Rees, and Domingue were recommended for dismissal as well. Plaintiff's Title VII claims were recommended for dismissal, along with the remaining state law claims asserted in the Complaint, and the undersigned recommended dismissal of Plaintiff's claims of entitlement to recovery of punitive damages against the municipal defendant. With those recommendations, the undersigned proposed that Dana Broussard's claims would be reduced to §1983 claims for compensatory damages against the Lafayette City-Parish Consolidated Government, and individual capacity claims for compensatory and punitive damages against Chief Craft, Cornell Montgomery and Mike Brown based on alleged violations of Plaintiff's First Amendment free speech rights which resulted in adverse employment actions. [Rec. Doc. 31]. Without objection, the district court adopted the report and recommendation as its judgment. [Rec. Doc. 32].
The undersigned was subsequently charged to address the remaining claims of the plaintiff in the context of the defendants' alternative summary judgment motions and the assertion of the qualified immunity defense. The alternative motions provided evidence from which the validity of the claims against the remaining officer defendants and the municipal entity could be determined, and, on the more expanded consideration of the record allowed by the summary judgment rules, it was the recommendation of the undersigned that the alternative motions for summary judgment be granted and that the remainder of the plaintiff's claims be dismissed with prejudice. Objections were lodged by the plaintiff, to which the defendants responded, and on December 3, 2014, the district court adopted the report and recommendation as its judgment. [Rec. Doc. 39]. These motions followed.
THE APPLICABLE LEGAL STANDARDS AND DISCUSSION
In the motions before the court, Defendants seek to recover their reasonable costs and attorney's fees as prevailing party defendants.
With regard to costs, the defendants seek recovery of copying, printing, and filing costs incurred in defense of this case pursuant to provisions of Fed. R. C. P. 54 and 28 U.S.C. §1920. Defendant Brown seeks recovery of $110.40 and the other defendants collectively seek $115.75. These costs are allowed to the prevailing party pursuant to Fed. R. C. P. 54(d), which provides that costs other than attorney's fees should be allowed to the prevailing party. In the context of Rule 54, a prevailing defendant is one who defeats the litigation and obtains a denial of relief. See Power Mosfet Technologies, L.L.C. v. Siemens AG, 378 F.3d 1396 (Fed.Cir.2004) (prevailing party is one who "wins completely on every claim at issue", and thus party who "had all claims against it dismissed with prejudice" so qualifies).
It is uncontested that the defendants are prevailing parties, and the plaintiff has acknowledged that the costs described by the defendants "appear to be allowed unto Defendants by 28 U.S.C. 1920(3), (5)." [Rec. Doc. 45, p. 15-16]. The undersigned agrees. Thus, it is the recommendation of the undersigned that the motions be granted as to the petition for costs other than attorney's fees as itemized by the moving parties.
The defendants also seek to recover attorney fees as the prevailing parties pursuant to 42 U.S.C.§1988 and/or 28 U.S.C. §1927. Brown seeks recovery of $11, 055.00, and the other defendants collectively seek to recover $10, 178.00. In an action to enforce a provision of §1983, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs. 42 U.S.C. §1988. In an action to recover under Title VII, "the court, in its discretion, may allow the prevailing party...a reasonable attorney's fee." 42 U.S.C. 2000e-5(k). The analysis for attorney's fees is the same for both §1983 and Title VII actions. Hensley v. Eckerhart, 461 U.S. 424, 433 n.7, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40(1983).
The first step in determining whether attorney fees may properly be awarded is to identify the party seeking the fees as plaintiff or defendant. Plaintiffs prevailing under §1988 are entitled to attorney's fees "unless special circumstances would render an award unjust." United States v. Mississippi, 921 F.2d 604, 609 (5th Cir. 1991). Prevailing defendants, however, are entitled to attorney fees only when a plaintiff's underlying claim is frivolous, unreasonable, or groundless. See Merced v. Kasson, 577 F.3d 578, 595 (5th Cir. 2009); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 964, 966, 19 L.Ed.2d 1263(1968). In United States v. Mississippi , the Fifth Circuit outlined three factors a district court should consider in determining whether a suit is frivolous, declaring that the district court should consider whether (1) the plaintiffs established a prima facie case, (2) the defendant offered to settle, and (3) the court dismissed the case or held a full trial. United States v. Mississippi 921 F.2d at 609. In Walker v. City of Bogalusa, 168 F.3d 237, 240(5th Cir. 1999), the Fifth Circuit clarified that an action is considered frivolous "if it is so lacking in arguable merit as to be groundless or without foundation....'"
The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees." Hughes v. Rowe, 449 U.S. 5, 15 (1980). In making its determination, the court must "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." Offord v. Parker, 456 F.Appx. 472, 474 (5th Cir. 2012) ( quoting Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978)). "Instead, a court must ask whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful." Id.
In making the recommendations relative to the defendants' Rule 12(b)(6) motion, it was the finding of the undersigned and ultimately the district judge that the plaintiff had failed to make out legally cognizable §1983 claims, plausible on the face of the pleadings, predicated on violations of the Fourth, Fifth, and Fourteenth Amendments. A similar finding was made with regard to the plaintiff's Title VII claim. Other claims were recommended for dismissal based on the finding(s) that those claims were redundant, or lacked factual bases, or had no legal basis of whatsoever kind. For the reasons set out in the Report and Recommendation, later conformed to Judgment without objection from Plaintiff, some of those claims could be classified as frivolous, unreasonable or groundless by the standard set out above. However, not all of Plaintiff's claims were so characterized, and some survived the Rule 12(b)(6) analysis. Therefore, the undersigned cannot find that all of Plaintiff's claims were frivolous, unreasonable or groundless at their inception. The Court did find Plaintiff's factual allegations of adverse employment action in the context of her First Amendment claims warranted consideration in light of Supreme Court cases addressing the issue in the context of Title VII claims. Although the Court ultimately determined that plaintiff's remaining allegations did not rise to the level of First Amendment constitutional violations, and even though the plaintiff's surviving §1983 claims were ultimately denied and dismissed by summary ...