DIANE J. HUMETEWA, District Judge.
Before this Court are Defendants' Motion for Bill of Costs (Doc. 47) and Motion for Attorneys' Fees (Doc. 48). Plaintiff filed Responses to both Motions (Docs. 50, 51), to which Defendants filed Replies (Docs. 53, 54).
This case stems from an August 18, 2015, incident where Plaintiff was arrested for aggravated assault on a police officer, resisting arrest, failure to comply with a lawful order, and disorderly conduct. (Doc. 45 at 7).
Defendants then promptly moved to dismiss Plaintiff's Complaint on all counts. (Doc. 4). As Defendants warned, the Court granted Defendants' Motion to Dismiss on Section 1983 claims against Defendants Long and Barton for wrongful arrest, wrongful incarceration, and malicious prosecution based on Heck. (Doc. 7 at 6). The Court further dismissed all Section 1983 claims against Yavapai County on the basis that Plaintiff did not allege any conduct by Yavapai County to render it liable. (Id. at 5-6). Additionally, the Court dismissed all state law claims, Count II, because Plaintiff failed to comply with the notice of claim statute. (Doc. 7 at 5-8). The only claims that survived Defendants' Motion to Dismiss were Plaintiff's Section 1983 excessive use of force claims against Defendants Barton and Long. (Doc. 7 at 8).
On May 3, 2017, Defendants again explained to Plaintiff that surviving claim of excessive use of force claim against Defendants Barton and Long was barred by Heck and Smith. (Doc. 48-5 at 2-4). On June 16, 2017, Defendants made an offer of judgment, which Plaintiff did not accept. (Doc. 23). Prior to filing their Motion for Summary Judgment on Plaintiff's only surviving claim of excessive force against Defendants Barton and Long, Defendants again sent Plaintiff a letter explaining why her claims were barred by Heck. (Doc. 48-3 at 2-4). Plaintiff again ignored Defendants' warnings and on October 30, 2017, Defendants filed a Motion for Summary Judgment. (Doc. 34). On May 18, 2018, the Court granted summary judgment in favor of Defendant Barton finding that his actions were objectively reasonable and thus he is entitled to qualified immunity and granted summary judgment in favor of Defendant Long because "Plaintiff's excessive force claim against Defendant Long [was] barred by Heck." (Doc. 45).
Defendants move this Court for an award of attorneys' fees and costs pursuant to Rule 54(d) and Local Rule 54.2. Specifically, Plaintiff seeks to recover $68,932.00 in attorneys' fees, $3,200.00 in expert witness costs, and $1,527.94 in costs. (Docs. 47, 48, 48-7, 48-8 at 3, 48-9 at 1). Defendants seek such recovery against Plaintiff pursuant to Rule 11 sanctions or, in the alternative, pursuant to Section 1993 prevailing party status. (Doc. 48).
Rule 11(c)(1)(A) provides that "sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b)." This rule also provides a mandatory 21-day safe harbor provision, during which the movant must serve its Rule 11 motion on the opposing party and allow the opposing party 21 days to retract the offending paper, claim, defense, contention, allegation, or denial before filing a motion for sanctions with the Court. Id; see also Sneller v. City of Bainbridge Island, 606 F.3d 636, 639 (9th Cir. 2010). Here, Defendants failed to comply with the 21-day safe harbor provision and their request for sanctions was not "made separately from other motions or requests" because Defendants' Motion also included a request for fees pursuant to Section 1983.
Where a party fails to serve the opposing party with the sanctions motion 21 days before filing the motion in court, the court should not award a Rule 11 sanction. See Retail Flooring Dealers of Am., Inc. v. Beaulieu of Am., LLC, 339 F.3d 1146, 1150 (9th Cir. 2003) (reversing award of Rule 11 sanction where moving party "failed to comply with Rule 11's `safe harbor' provision" by serving the motion after the complaint was dismissed); Huminski v. Heretia, 2011 WL 2910536, at *3 (D. Ariz. 2011) (denying a motion for Rule 11 sanctions because it was not served on the opposing party 21 days before it was filed with the Court and thus denied the opposing party an opportunity to correct the issue). Alerting the opposing party to a deficiency that needs correcting in an informal manner is not sufficient; the moving party must "follow the procedure required by Rule 11" by serving the opposing party with an actual motion. Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998) ("It would . . . wrench both the language and purpose of the amendment to the Rule to permit an informal warning to substitute for service of a motion.").
As Plaintiff points out, and Defendants concede, Defendants have failed to comply with Rule 11's 21-day safe harbor provision. (Docs. 50, 53). Defendants argue that although they did not strictly comply with the 21-day safe harbor provision, they notified Plaintiff on several occasions that they intended to seek attorneys' fees. (Doc. 53 at 4-6). However, Defendants' informal notices do not satisfy Rule 11's strict requirement that a motion be served on the opposing party. See Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 789 (9th Cir. 2001) (holding that "although a defendant had given informal warnings to the plaintiffs threatening to seek Rule 11 sanctions, these warnings did not satisfy the strict requirement that a motion be served on the opposing party twenty-one days prior to filing"); Barber, 146 F.3d at 710 (denying motion for sanctions because, despite multiple warnings as to deficiency of plaintiff's claim, Rule 11 requires prior service of the motion on plaintiff); Matsumaru v. Sato, 521 F.Supp.2d 1013, 1015 (D. Ariz. 2007) (holding informal notice of intent to seek Rule 11 sanctions does not satisfy Rule 11's strict requirement that a motion be served on the opposing party). Defendants failed to comply with Rule 11's 21-day safe harbor provision; therefore, the Court will deny Defendants' Motion for Sanctions.
In lieu of awarding fees pursuant to Rule 11, Defendants assert that they are entitled to attorneys' fees pursuant to 42 U.S.C. § 1988 ("Section 1988"), which provides that in an action to enforce 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).
In determining whether to award attorneys' fees to a prevailing defendant of a Section 1983 claim, a court must evaluate whether the action was "frivolous, unreasonable or without foundation" at the time the complaint was filed. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006). An action is frivolous "when the result appears obvious or the arguments are wholly without merit." Galen v. Cnty. of L.A., 477 F.3d 652, 666 (9th Cir. 2007). In determining an action's frivolity, a court should neither rely on hindsight logic nor focus on whether the claim was or was not ultimately successful. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978). Even if "evidence to support a [somewhat tenuous] theory failed to materialize, and summary judgment was properly granted in favor of the defendants," a court may deny attorneys' fees where originating circumstances furnish some basis for the claim. Karam v. City of Burbank, 352 F.3d 1188, 1196 (9th Cir. 2003). "Under this standard, an unsuccessful plaintiff who acted in good faith is generally not at risk of having to pay the other side's attorney's fees." Akiak Native Cmty. v. U.S. EPA, 625 F.3d 1162, 1166 (9th Cir. 2010).
The Ninth Circuit recognizes that a district court has significant discretion in awarding attorneys' fees to a prevailing defendant. See Thomas v. City of Tacoma, 410 F.3d 644, 651 (9th Cir. 2005). "[A]lthough a finding of frivolity [is] a prerequisite to an award of attorney's fees, `notwithstanding such a finding, the district court still retains discretion to deny or reduce fee requests after considering all the nuances of a particular case.'" Id. (quoting Tang v. R.I., Dep't of Elderly Affairs, 163 F.3d 7, 15 (1st Cir. 1998)). A court must exercise such discretion "expressly in order to avoid discouraging civil rights plaintiffs from bringing suits, and thus `undercut [ting] the efforts of Congress to promote the vigorous enforcement of' the civil rights laws." Harris v. Maricopa Cnty. Super. Ct., 631 F.3d 963, 971 (9th Cir. 2011) (quoting Christiansburg, 434 U.S. at 422) (alteration in original).
Defendants aver that Plaintiff proceeded with this litigation despite Defendants repeated warnings that Plaintiff's claims were barred by the holdings in Smith and Heck. (Doc. 48 at 10-11). Plaintiff, on the other hand, argues that "it is inappropriate and, perhaps, an abuse of discretion" to award attorneys' fees because in the Court's Order granting Summary Judgment in favor of Defendants, the Court performed an in-depth analysis of the facts, which suggested that "reasonable minds could have reached a different conclusion." (Doc. 50 at 6-7).
Here, the Court did not address the merits of Plaintiff's claims against Defendant Yavapai County or the state law claims against all Defendants contained in Count II of the Complaint; thus, the Court will not impose a fee award for those claims. (Doc. 7); see Hogan v. Robinson, 2007 WL 3239267, at *3 (E.D. Cal. Nov. 1, 2007) (holding that "[u]ltimately, the standard for awarding a prevailing defendant attorneys' fees pursuant to 42 U.S.C. § 1988 is high" and because the court did not address the merits of the claims, the court would not impose an award of fees defendant). Additionally, as the Court determined that Plaintiff's excessive use of force claim against Defendant Barton was barred by qualified immunity, not by the holdings in Smith and Heck, the Defendant has not proven that Plaintiff's excessive use of force claim was frivolous. See Peck v. Hinchey, 2014 WL 3721195, at *4 (D. Ariz. July 28, 2014) (holding "even after a court adjudicates summary judgment in favor of the defendant, the defendant still carries the burden of establishing that the action was frivolous.").
The Court, however, finds that Plaintiff's continued litigation of its Section 1983 claims against Defendants Long and Barton, which were barred by the holding in Smith and Heck, was frivolous. Plaintiff's claims barred by Smith and Heck are: (1) all of Plaintiff's claims against Defendant Long in Count I of the Complaint and (2) Plaintiff's claims for wrongful arrest, wrongful incarceration, and malicious prosecution against Defendant Barton contained in Count I of the Complaint. Plaintiff knew from the onset of that this litigation that her Section 1983 claims were barred by the holding in Smith and Heck, and she was reminded of this throughout the litigation, yet she chose to continue without offering any evidence as to why her claims had merit and were distinguishable from Smith and Heck. See Tutor-Saliba Corp., 452 F.3d at 1061.
As Defendants are only entitled to an award of fees for Plaintiff's frivolous claims, the Court must determine which fees Defendants incurred in connection with the claims barred by Smith and Heck. See Harris v. Maricopa County Superior Court, 631 F.3d 963, 971 (9th Cir. 2011) (finding a "defendant is entitled only to `the amount of attorneys fees attributable exclusively to' a plaintiff's frivolous claims.") (alteration in original); Galen v. County of Los Angeles, 477 F.3d 652, 668 (9th Cir. 2007) (holding that defendant is only entitled to fees for the claims the court found were frivolous); Tutor-Saliba Corp., 452 F.3d at 1064 (holding "the district court was in a position properly to weigh and assess the amount of fees attributable to [plaintiff's] frivolous claims[;]" thus, the district court did not err in only "awarding defendants fees for defending against [plaintiff's] frivolous constitutional claims.").
Here, Defendants' counsel submitted detailed billing records, an affidavit setting forth their experience and background, and their billing rates and practices. (Docs. 48-8, 48-9, 48-10, 48-11, 48-12, 48-13). The affidavit, however, fails to adequately separate out what percentage of fees were incurred on each claim. See Harris v. Maricopa Cnty. Superior Court, 631 F.3d 963, 968 (9th Cir. 2011) (finding defendants had not met their burden of showing that "only fees attributable exclusively to plaintiff's frivolous claims" are being sought) (internal quotations omitted); Tutor-Saliba Corp., 452 F.3d at 1065; Downs, 2011 WL 6148622, at *2 (finding "the defendant has not carried its burden of establishing that its attorneys would not have performed the work involved but for the need to defend against the frivolous claims."). The Harris Court aptly noted the difficulties this Court faces:
Harris, 631 F.3d at 971-72.
Defendants failed to adequately separate out what percentage of fees were incurred defending against each claim for each Defendant; therefore, the Court had to review Defendants' forty-six pages of billing records to identify the billing entries that were attributable exclusively to Plaintiff's frivolous claims. See Harris, 631 F.3d at 971 ("[P]ro-rata allocation of general fees between claims for which a fee award is appropriate and claims for which such an award is not appropriate, based solely on the number of claims, is impermissible . . ."); Ooley v. Citrus Heights Police Dept., 2012 WL 3993756, at *4 (E.D. Cal. Sept. 11, 2012), aff'd, 603 Fed. Appx. 628 (9th Cir. 2015) (reviewing defendant's billing records to determine what time was expended exclusively in connection with Plaintiff's frivolous civil rights claim). The Court identified
(Docs. 48-8, 48-9, 48-10, 48-11, 48-12, 48-13). The Court—which was forced to review Defendants' billing records because Defendants failed to show that the fees sought were
Now that the Court has determined which attorneys' fees are recoverable, the Court must determine whether the hourly rate and number of hours billed was reasonable. See Wilson v. Yavapai County Sheriff's Office, 2012 WL 3108843, at *4 (D. Ariz. July 31, 2012) ("Accordingly, the Court finds that Defendants are entitled to their attorneys' fees in defending Plaintiff's frivolous claims in this case and must now determine whether or not the claimed fees are reasonable."). The Court finds, and Plaintiff does not dispute, that Defendants' hourly billing rate was reasonable, and the number of hours expended that were attributable to Plaintiff's frivolous claims were appropriate and reasonable based upon the nature of the matter. See Wilson, 2012 WL 3108843, at *4. Therefore, the Court will award Defendants' $5,755.00 in attorneys' fees, which are attributable exclusively to Plaintiff's frivolous claims against Defendants Long and Barton.
While attorneys' fees should rarely be awarded to a prevailing defendant in a civil rights case, "there is a strong presumption in favor of awarding costs to the prevailing party." Miles v. State of Cal., 320 F.3d 986, 988 (9th Cir. 2003). Thus, the Court must specify the reasons for denying costs. Id. The Ninth Circuit has laid out several factors to consider in deciding whether to deny costs to a prevailing party: "the losing party's limited financial resources, misconduct on the part of the prevailing party, . . . the importance and complexity of the issues, the merit of the plaintiff's case, even if the plaintiff loses, and the chilling effect on future civil rights litigants of imposing high costs." Save Our Valley v. Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003).
Here, Defendants are requesting an award of taxable costs in the amount of $1,527.94
