United States District Court, D. Hawaii
DONNA GARCIA, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR HER MINOR CHILDREN, J. L. AND G. L., Plaintiff,
CITY AND COUNTY OF HONOLULU, et al., Defendants.
FINDINGS AND RECOMMENDATION TO DENY DEFENDANTS'
MOTION FOR ATTORNEYS' FEES
S.C. Chang, United States Magistrate Judge.
November 30, 2018, Defendants April Daniels, Arlynn Orpilla,
Bonnie McKewen, Harold Uehara, Timothy Slovak, Mikel
Frederick, Robert A. Cravalho, Darrien Thornley, Gary
Daniels, Thomas Nitta, Leonard Nishimura, Benjamin
Moszkowicz, Alan Rodrigues, Keith Vegas, Brian Blackwell,
Brandon Lau, and Ryan Hironaka (collectively
“Defendants”) filed Defendants [sic] Motion for
Attorneys' Fees (“Motion”). The Court finds
the Motion suitable for disposition without a hearing
pursuant to Rule 7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawaii.
Defendants have not shown that they are entitled to their
attorneys' fees. Attorneys' fees may be awarded to a
prevailing defendant where the plaintiff's claims are
found to be frivolous. The Defendants prevailed on their
motions to dismiss. However, this Court cannot find that the
Plaintiff's claims were frivolous just because the
Plaintiff did not establish a prima facie case and
Plaintiff's claims were time-barred due to a Second
Circuit case. Moreover, the District Court ruled on the
Defendants' motions to dismiss and made no finding of
frivolousness. After reviewing the parties' submissions,
records, and relevant law, the Court FINDS and RECOMMENDS
that the Motion be DENIED.
Donna Garcia, individually and as guardian ad litem for her
minor children, J.L. and G.L. (“Plaintiff”),
filed a Complaint on March 15, 2018 alleging a 42 U.S.C.
§ 1983 violation of her Fourteenth Amendment rights
under the U.S. Constitution, intentional infliction of
emotional distress, and negligence. The Complaint names the
City and County of Honolulu (“Defendant
Honolulu”), twenty-one Honolulu Police Department
(“HPD”) officers (“Officer
Defendants”), and John and/or Jane Does 1-10 as
defendants. The claims arise from Plaintiff's allegations
of domestic abuse by her ex-husband, Defendant Ronald J.
Lombardi, an HPD officer.
in May 2018, the majority of the defendants filed motions to
dismiss. On May 4, 2018, Defendant Honolulu filed a Motion to
Dismiss (“Defendant Honolulu's Motion”). On
May 14, 2018, Defendant Robert A. Cravalho filed a Motion to
Dismiss (“Defendant Cravalho's Motion”). On
June 19, 2018, Defendant Benjamin Moszkowicz filed a Motion
to Dismiss (“Defendant Moszkowicz's Motion”).
On July 31, 2018, the remaining Officer Defendants, with the
exception of Defendant Ronald J. Lombardi, filed a Motion to
Dismiss (“Officer Defendants' Motion”). In
response, on October 11, 2018, the Plaintiff filed an Omnibus
Memorandum in Opposition to Defendant Honolulu's,
Defendant Robert A. Cravalho's and Defendant Benjamin
Moskowicz's Motions to Dismiss Complaint Filed on March
15, 2018. On October 15, 2018, the Plaintiff filed her
Memorandum in Opposition to Officer Defendants' Motion to
Dismiss Complaint Filed on March 15, 2018. On October 18,
2018, Defendant Honolulu filed its reply. Defendants Cravalho
and Moszkowicz filed their reply on that same day. On October
22, 2018, the remaining Officer Defendants, except for
Defendant Lombardi, filed their reply. The hearing on
defendants' motions was held on November 9, 2018 at 11:00
a.m. before U.S. District Court Judge Alan C. Kay.
November 16, 2018, Judge Kay issued an Order Granting
Defendants' Motions to Dismiss (“Order”).
Judge Kay (1) “grant[ed] with prejudice the Officer
Defendants' Motion as to all claims except those asserted
against Officers Arakawa, Hee, and Lee in their individual
capacities, which were dismissed without prejudice;”
(2) “grant[ed] with prejudice Defendant Cravalho's
Motion and Defendant Moszkowicz's Motion as to all
claims;” and (3) “grant[ed] without prejudice
Defendant Honolulu's Motion as to all claims.” ECF
No. 64. The instant Motion followed shortly thereafter.
Defendants argue that they are entitled to an award of
attorneys' fees under 42 U.S.C. § 1988 because the
Plaintiff's claims were frivolous, unreasonable and
without foundation. The Plaintiff's Complaint alleges a
42 U.S.C. § 1983 violation. Under Section 1988,
“[i]n any action or proceeding to enforce a provision
of section[ ] . . . 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 . .
.” To be considered a “prevailing party, ”
a party must “succeed ‘on any significant issue
in litigation which achieves some of the benefit [the
parties] sought in bringing suit.'” LSO, Ltd.
v. Stroh, 205 F.3d 1146, 1160 (9th Cir. 2000) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). In
this case, the Defendants were the prevailing parties. The
Order granted the Defendants' motions to dismiss and
dismissed all claims against them.
purpose of § 1988 is to ensure ‘effective access
to the judicial process' for persons with civil rights
grievances.” Hensley, 461 U.S. at 429 (1983)
(quoting H.R. Rep. No. 94-1558, p. 1 (1976)).
“Accordingly, a prevailing plaintiff ‘should
ordinarily recover an attorney's fee unless special
circumstances would render such an award unjust.'”
Hensley, 461 U.S. at 429 (quoting S. Rep. No.
94-1011, p. 4 (1976)) (citations omitted). On the other hand,
a strict standard is applied when awarding attorneys'
fees to a prevailing defendant. Miller v. Los Angeles
County Bd. of Educ., 827 F.2d 617, 619 (9th Cir. 1987).
A prevailing defendant has “the burden of establishing
entitlement to an attorneys fees award[.]” Harris
v. Maricopa County Superior Court, 631 F.3d 963, 971
(9th Cir. 2011) (citations omitted). A prevailing defendant
should only be awarded attorneys' fees in civil rights
cases under “exceptional circumstances”
and “may recover attorneys' fees only if the
plaintiff's action was ‘frivolous, unreasonable
or without foundation.'” Barry v.
Fowler, 902 F.2d 770, 773 (9th Cir. 1990) (citations
omitted) (emphasis added).
case may be deemed frivolous only when the ‘result is
obvious or the . . . arguments of error are wholly without
merit.'” Gibson v. Office of Atty. Gen., State
of California, 561 F.3d 920, 929 (9th Cir. 2009)
(quoting Karam v. City of Burbank, 352 F.3d 1188,
1195 (9th Cir. 2003)) (citations omitted). A District
Court's award of attorneys' fees pursuant to 42
U.S.C. § 1988 is reviewed for abuse of discretion.
Edgerly v. City & Cty. of San Francisco, 599
F.3d 946, 962 (9th Cir. 2010) (citing LSO, Ltd. v.
Stroh, 205 F.3d 1146, 1160 (9th Cir. 2000)). “A
district court may award attorneys' fees to a prevailing
defendant ‘only where the action brought is found to be
unreasonable, frivolous, meritless, or vexatious.'”
Edgerly, 599 F.3d at 962 (quoting Patton v.
County of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988);
Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421 (1978)). This strict standard serves to uphold
“Congress' policy of promoting vigorous prosecution
of civil rights violations under . . . § 1983.”
Miller v. Los Angeles County Bd. of Educ., 827 F.2d
617, 619 (9th Cir. 1987) (citations omitted).
on the submissions and records in this case, this Court
cannot find that the Plaintiff's case was frivolous,
unreasonable, or without foundation. The Defendants argue
that the Plaintiff's claims were frivolous because the
District Court granted the Defendants' motion to dismiss
with prejudice, there was no legal or factual basis to the
Plaintiff's claims, and the Plaintiff failed to even
assert the basic elements of her claim. These arguments do
not rise to the level of exceptional circumstances that
warrant the award of attorneys' fees.
the District Court granted the Defendants' motions to
dismiss with prejudice, this Court cannot find that the
Plaintiff's action was frivolous on this fact alone. A
dismissal with prejudice does not within itself mean that the
Defendants are entitled to attorneys' fees. See Maag
v. Wessler, 993 F.2d 718, 721 (9th Cir. 1993) (quoting
Hughes v. Rowe, 449 U.S. 5, 14 (1980) (per curiam)
(“‘the fact that Plaintiff may ultimately lose
his [civil rights] case is not in itself a sufficient
justification for the assessment of fees.'”);
Berry v. E.I. Dupont de Nemours and Co., 635 F.Supp.
262, 266 (D. Del. 1986) (“[a]lthough a defendant has
prevailed in a civil rights case, and a plaintiff has not met
its prima facie burden, it does not necessarily follow that
attorney's fees should be awarded to the
defendant”); Hudson v. Western Airlines, Inc.,
851 F.2d 261, 267 (9th Cir. 1988) (the fact that the
plaintiff does not prevail is not enough to justify an award
of fees to a prevailing defendant); Forsberg v. Pac.
Northwest Bell Tel. Co., 840 F.2d 1409, 1422 (9th Cir.
1988) (affirming district court's denial of
attorneys' fees to prevailing defendant where summary
judgment granted as to all claims); Galen v. County
of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007)
(that a plaintiff loses at summary judgment does not render
his or her case per se frivolous, unreasonable, or without
foundation). The Supreme Court has cautioned that:
it is important that the 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 . . .
Decisive facts may not emerge until discovery or trial. The
law may change or clarify in the midst of litigation. Even
when the ...