MAC R. McCOY, District Judge.
Pending before the Court is Plaintiff-Appellee's Corrected Application for Statutory Attorney Fees filed on July 26, 2018. (
Plaintiff originally filed a Complaint on November 4, 2016, alleging a violation of 42 U.S.C. § 1983. (
Defendants filed a Motion to Dismiss on February 28, 2017, asserting the existence of probable cause, qualified immunity, failure to state a claim, and lack of excessive force. (
Defendants thereafter filed a Notice of Appeal as to the Order denying their Motion to Dismiss. (
In accordance with that standard, the Eleventh Circuit held that the District Court properly denied the Motion to Dismiss, concluding that at the Rule 12(b)(6) stage, Defendants are not entitled to qualified immunity. (Id. at 16-17). Specifically, the Eleventh Circuit found that Plaintiff sufficiently pled the requisite elements of each claim with facts that, if true, would prove that Defendants did not even have arguable probable cause as required to rely on a qualified immunity defense. (Id. at 11). The Eleventh Circuit therefore affirmed the denial of Defendants' Motion to Dismiss. (Id. at 12). The Eleventh Circuit noted, however, that because the case was only at the Rule 12(b)(6) stage, evidence could emerge that would allow Defendants to rely on qualified immunity at trial or negate an element of a claim. (See id. at 11-12, 14, 16).
Having received this favorable decision on appeal, Plaintiff now seeks statutory attorney's fees incurred during the appeal. (
As previously noted, Plaintiff brought this suit under 42 U.S.C. § 1983 and seeks fees pursuant to 42 U.S.C. § 1988. Section 1988(b) provides that "[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, . . . 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." By the statute's terms, courts may award attorney's fees to a party only if it has "`prevailed' within the meaning of § 1988." Hanrahan v. Hampton, 446 U.S. 754, 755-56 (1980).
To be a prevailing party, a party need not necessarily obtain a favorable final judgment following a full trial on the merits because the party may have "prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." Id. at 756-57. The party must, however, have "established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal." Id. at 757. Accordingly, interim award of attorney's fees should be awarded "only when a party has prevailed on the merits of at least some of his claims." Id. at 758.
In seeking attorney's fees, Plaintiff argues that because she won the appeal, she is the prevailing party. (
In response, Defendants argue that Plaintiff's "argument is flawed because she is not yet a prevailing party as that term is defined." (
The Undersigned concludes that Plaintiff's Motion should be denied because she has yet to establish any "entitlement to some relief on the merits of [her] claims." Hanrahan, 446 U.S. at 757. Indeed, in its opinion, the Eleventh Circuit reiterated that it decided the case based upon the Rule 12(b)(6) standard and that evidence may emerge during the course of discovery that could affect a ruling on the substance of the claims. (See
This case is similar to cases in which courts have held that despite winning a favorable judgment in an interlocutory appeal, the party was not a prevailing party in terms of 42 U.S.C. § 1988. In Hanrahan v. Hampton, the Seventh Circuit awarded attorney's fees to the plaintiffs holding that the plaintiffs "had prevailed with respect to the appeal in this case" because the Court reversed the judgment directing verdicts against them and the denial of a motion to discover the identity of an informant and directed the district court to consider allowing further discovery. 446 U.S. at 758. On appeal, however, the Supreme Court reversed the award of attorney's fees, holding that although the plaintiffs prevailed on the matters appealed, "they were not . . . `prevailing' parties in the sense intended by 42 U.S.C. § 1988." Id. at 756. Rather, the appellate findings only entitled the plaintiffs to a trial of their cause. Id. at 758. The Supreme Court noted that while evidentiary and procedural rulings "may affect the disposition on the merits," they are "themselves not matters on which a party could `prevail' for purposes of shifting his counsel fees to the opposing party under § 1988." Id. at 759 (citing Bly v. McLeod, 605 F.2d 134, 137 (4th Cir. 1979)).
Similarly, in Ellis v. Wright, the defendant challenged the district court's finding that the defendant was not entitled to qualified immunity on appeal. 293 F. App'x 634, 634 (11th Cir. 2008). The Eleventh Circuit affirmed the district court's decision but denied the plaintiff's motion for attorney's fees. Id. at n.4. The Eleventh Circuit held that the plaintiff was not a prevailing party under 42 U.S.C. § 1988 because the plaintiff had "only succeeded on an interlocutory appeal, which will allow her suit to proceed to an adjudication of the merits." Id. (citing Hanrahan, 446 U.S. at 758).
The instant case is similar to Hanrahan because while the Eleventh Circuit's holding that Defendants are not entitled to qualified immunity at the Rule 12(b)(6) stage "may affect the disposition of the merits," it does not mean that Plaintiff is a prevailing party. See Hanrahan, 446 U.S. at 759. Indeed, the Eleventh Circuit's decision merely permits Plaintiff to pursue a trial against these Defendants on the merits of the claims. (See
Moreover, this case mirrors Ellis because both cases specifically consider whether an appeal holding that a defendant is not entitled to qualified immunity qualifies the plaintiff as a prevailing party. See Ellis, 293 F. App'x at 634. In Ellis, the Eleventh Circuit held that this type of appeal merely secures the right to proceed to an adjudication on the merits. Id. at n.4. Although the Eleventh Circuit assumed Plaintiff's allegations as true, this was only due to the Rule 12(b)(6) posture of the case. (
Accordingly, the Undersigned concludes that as there has been no adjudication on the merits of the claims, Plaintiff is not a prevailing party and thereby not entitled to attorney's fees. The Undersigned, therefore, recommends that the Motion be denied without prejudice.
The Undersigned concludes that Plaintiff is not a prevailing party as defined within the meaning of 42 U.S.C. § 1988. Rather, Plaintiff obtained a favorable ruling that will permit her to pursue adjudication on the merits against Defendants. See Ellis, 293 F. App'x at 634 n.4. Plaintiff may, nonetheless, fail to prove liability going forward. Plaintiff cannot, therefore, be defined as a prevailing party under 42 U.S.C. § 1988 because there has been no establishment of her entitlement to relief on the merits of her claims. See Hanrahan, 446 U.S. at 758. Accordingly, Plaintiff is not entitled to attorney's fees pursuant to 42 U.S.C. § 1988. The Undersigned, therefore, recommends that the Motion be denied without prejudice.
Respectfully recommended in Chambers in Ft. Myers, Florida on November 15, 2018.