PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                    No. 15-2127
                   _____________

                  MONICA RAAB,
                         Appellant

                          v.

     CITY OF OCEAN CITY, NEW JERSEY,
 a municipal corporation of the State of New Jersey;
     OCEAN CITY POLICE DEPARTMENT;
OFFICER JESSIE RUCH, in his official and individual
                      capacity;
    JOHN DOES (#1-25), Fictitious Designation
    ABC CORPS. (#1-25), Fictitious Designation
                  _____________

                    No. 15-2147
                   _____________

                  MONICA RAAB

                          v.

      CITY OF OCEAN CITY, NEW JERSEY,
  a municipal corporation of the State of New Jersey;
      OCEAN CITY POLICE DEPARTMENT;
 OFFICER JESSIE SCOTT RUCH, in his official and
                  individual capacity
     JOHN DOES (1-25), Fictitious Designation
     ABC Corps, (#1-25), Fictitious Designation

                    City of Ocean City,
                              Appellant
                   ____________

   On Appeal from the United States District Court
               for the District of New Jersey
                     (No. 1-11-cv-06818)
           District Judge: Hon. Robert B. Kugler

                  Argued: March 17, 2016
                      ____________

       Before: CHAGARES, RESTREPO and VAN
             ANTWERPEN,* Circuit Judges.

                  (Filed: August 15, 2016)

Paul R. Rizzo, Esq. [ARGUED]
Nicholas F. Pompelio, Esq.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis,
Lehrer & Flaum, P.C.
15 Mountain Boulevard
Warren, NJ 07059
      Attorneys for Appellant/Cross-Appellee Monica Raab

A. Michael Barker, Esq. [ARGUED]
Vanessa E. James, Esq.
Barker, Gelfand & James, P.C.
210 New Road
Linwood Greene, Suite 12
Linwood, NJ 08221
      Attorneys for Appellees/Cross-Appellants City of
Ocean City and Ocean City Police Department

Thomas B. Reynolds, Esq. [ARGUED]
John J. Bannan, Esq.
Reynolds & Horn, P.C.
750 Route 73 South, Suite 202A
Marlton, NJ 08053
       Attorneys for Appellee Jessie Ruch



*
  The Honorable Franklin Van Antwerpen participated in the
decision in this case, but died before the opinion was filed.
 This opinion is filed by a quorum of the court. See 28 U.S.C.
§ 46; Third Circuit I.O.P. 12.1(b).

                              2
                        ____________

                          OPINION
                        ____________

CHAGARES, Circuit Judge.

        Plaintiff Monica Raab and defendant City of Ocean
City, New Jersey (“Ocean City”) both appeal the District
Court’s denial of their motions for attorney’s fees. Raab
argues that she is a “prevailing plaintiff,” for purposes of
attorney’s fee eligibility under 42 U.S.C. § 1988, in her civil
suit against defendant Ocean City police officer Jessie Ruch.
At issue in Raab’s appeal is whether a settling plaintiff in a
civil rights action can be a “prevailing party” where the
district court sua sponte entered a dismissal order
incorporating and retaining jurisdiction over the settlement
agreement. For the reasons that follow, we hold that a
plaintiff can be a “prevailing party” in such circumstances.
Accordingly, we will reverse in part the District Court’s order
and remand for proceedings consistent with this opinion.

       At issue in Ocean City’s cross-appeal is whether the
District Court abused its discretion in denying attorney’s fees
to a prevailing defendant, when the District Court had
previously granted summary judgment in the defendant’s
favor. For the reasons that follow, we hold that the District
Court did not abuse its discretion, and we will affirm the
District Court’s denial of Ocean City’s motion for attorney’s
fees.

                               I.

       In November 2011, Raab filed a civil complaint
against police officer Ruch and his employer, Ocean City.
Raab asserted numerous federal claims pursuant to 42 U.S.C.
§ 1983, as well as similar state law causes of action, which all
stemmed from an incident in which Ruch detained Raab on
May 10, 2010.1 On that day, Ruch stopped his patrol car

1
  The causes of action alleged in Raab’s initial complaint
included federal and state claims of false arrest, excessive
force, unlawful search, unreasonable seizure, supervisory
                               3
outside of Raab’s residence to investigate a trailer that had
been parked on the street for about a month and had no
license plate. Ruch believed that the trailer was abandoned
and contacted police dispatch to request that it be towed.
Shortly thereafter, Raab went outside, spoke with Ruch, and
informed him that the trailer belonged to her brother-in-law
and that she would move the trailer into her driveway. Ruch
told her not to move the trailer, but she still tried. After Raab
was unsuccessful in her attempt to move the trailer, she went
inside her house to call her husband. She then returned to the
driveway and handed the phone to Ruch, who indicated that
the trailer would not be towed if it was moved before a tow
truck arrived. At that point, another man drove by the house
and offered to help move the trailer. With his help, the trailer
was moved into the driveway.

       Ruch then asked Raab for her name. The parties
dispute whether Raab provided her name, and they dispute
the resulting physical interaction. Raab alleges that she
responded “we are the Raabs,” but that Ruch then grabbed her
arm, handcuffed her, and threw her to the ground. Appendix
(“App.”) 51-52. She alleges that, while she was on the
ground, Ruch repeatedly pulled and twisted the handcuffs,
causing her arm to be pulled in different directions and her
head to hit the ground several times. Ruch disputes Raab’s
version of events. He claims that Raab refused to tell him her
name, cursed at him, and then pushed him with her forearm.
Ruch alleges that he then grabbed Raab by the arm, at which
point she started slapping his hand and subsequently fell to
the ground on her back. See App. 52. Ruch alleges that
Raab, while on the ground, started flailing her legs. 

that he believed Raab was having a “psychological
episode,” so he decided to detain her and call for his
supervisor. 

supervisor arrived, the supervisor
called an ambulance for Raab and told Ruch to remove the
handcuffs. Later that day, Raab went to her primary care
doctor, where she was diagnosed with various injuries.




liability, failure to train, negligent supervision, assault and
battery, and negligent infliction of emotional distress.

                               4
       Notably, approximately one month prior to the May 10
incident, Ruch had received a negative performance notice for
failing to detain a suspect in an unrelated incident. The
performance notice served as a “training tool” for Ruch, who
indicated that this performance notice was “in the back of
[his] mind” during the altercation with Raab. App. 7.

       Both Ruch and Ocean City filed motions for summary
judgment. The District Court granted in part and denied in
part Ruch’s motion for summary judgment. The surviving
claims against Ruch included federal and state claims for
excessive force, a state claim for assault and battery, and a
request for punitive damages. The District Court also granted
summary judgment in favor of Ocean City on all counts,
having found that Raab could not establish “‘both (1)
contemporaneous knowledge of the offending incident or
knowledge of a prior pattern of similar incidents; and (2)
circumstances under which the supervisor’s inaction could be
found to have communicated a message of approval to the
offending subordinate are present’” required to succeed on a
municipal liability claim. App. 68 (quoting Bonenberger v.
Plymouth Twp., 

, 25 (3d Cir. 1997)).
Specifically, “[n]o reasonable jury could find that because
Officer Ruch was previously told that he should have arrested
a domestic violence suspect when probable cause existed to
do so, his supervisors communicated a ‘message of approval’
to tackle citizens to the ground every time any suspect is
arrested.” App. 70.

       Raab and Ruch requested a settlement conference with
the Magistrate Judge to whom the case was referred for
certain pre-trial proceedings. At a November 25, 2014
settlement conference held by the Magistrate Judge, Raab and
Ruch agreed to resolve all outstanding claims for the total
sum of $150,000, exclusive of attorney’s fees and costs. The
parties agreed that the issue of attorney’s fees would be
determined later by the District Court. Shortly thereafter,
Raab filed her motion for attorney’s fees pursuant to 42
U.S.C. § 1988. Ocean City also filed a fee application with
the District Court.

       Prior to deciding Raab’s and Ocean City’s motions for
attorney’s fees, the District Court entered an Order of

                             5
Dismissal on January 21, 2015. The order dismissed the
action without costs and provided: “The terms of the
settlement agreement are incorporated herein by reference
and the Court shall retain jurisdiction over such agreement.”
App. 230. None of the parties objected to or appealed the
District Court’s dismissal order. The order did not include
the actual terms of the settlement, and the District Court later
indicated that it had not seen the settlement terms when it
issued the dismissal order. See App. 8. A few days later, the
parties filed a stipulation of dismissal with prejudice, which
simply stated that the parties have “stipulated and agreed that
the same be and it is hereby dismissed, with prejudice,
exclusive of the pending motions for attorney fees.” App.
231.2

       On April 6, 2015, the District Court denied both
Raab’s and Ocean City’s motions for attorney’s fees. The
District Court held that Raab was not a “prevailing party,” as
required by 42 U.S.C. § 1988. As to Ocean City, the District
Court held that, although Ocean City was a prevailing
defendant, the city had not demonstrated that Raab’s action
was frivolous, unreasonable, or without foundation to justify
the awarding of fees. Both Raab and Ocean City timely
appealed the denials of their fee applications.

                              II.3

       We review a district court’s denial of attorney’s fees
for abuse of discretion. P.N. v. Clementon Bd. of Educ., 

, 852 (3d Cir. 2006). “An abuse of discretion occurs
when a district court’s decision rests upon a clearly erroneous
finding of fact, an errant conclusion of law or an improper

2
   Raab’s counsel signed and dated the stipulation as of
January 20, 2015. Ruch’s counsel signed and dated the
stipulation as of January 23, 2015. The stipulation was filed
and entered with the District Court on February 2, 2015.
3
 The District Court had jurisdiction pursuant to 28 U.S.C. §§
1331 and 1343(a)(3), and we have jurisdiction pursuant to 28
U.S.C. § 1291 to review the final decision of the District
Court.

                               6
application of law to fact.” 

omitted).
However, if the fee application was denied based on the
district court’s conclusions on questions of law, our review is
plenary. 

first question before us is whether Raab is a
“prevailing party” in her action against Ruch. Under 42
U.S.C. § 1988(b), courts may, in their discretion, grant a
“reasonable attorney’s fee” to a “prevailing party” in certain
federal actions, including those proceeding under 42 U.S.C. §
1983.

       The District Court held that Raab was not a “prevailing
party,” and accordingly did not award attorney’s fees. In
reaching this holding, the District Court indicated that “a
party may only ‘prevail’ by obtaining either a judgment or a
court-ordered consent decree.” App. 5. The District Court
then determined that Raab had obtained neither:

      Plaintiff has not obtained a judgment on the
      merits; rather, Plaintiff and Officer Ruch
      entered into a private settlement agreement.
      Only “enforceable judgments on the merits and
      court-ordered consent decrees create the
      material alteration of the legal relationship of
      the parties necessary to permit an award of
      attorney’s fees.” Buckhannon [Bd. and Care
      Home, Inc. v. W. Va. Dep’t of Health & Human
      Res.], 532 U.S. [598, 604 (2001)] (internal
      citations omitted).            While “settlement
      agreements enforced through a consent decree
      may serve as the basis for an award of
      attorney’s fees,” 

not the situation that
      presents itself here, as no consent decree was
      entered to enforce the settlement agreement.

App. 7-8. We disagree.

       The Supreme Court has set forth some useful
guideposts for determining whether a plaintiff is a “prevailing
party” for purposes of fee-shifting statutes. In Buckhannon,

                               7
the Court distilled the following threshold inquiries under
section 1988: (1) whether there is a “‘material alteration of
the legal relationship of the parties,’” and (2) whether that
material alteration is “judicially 

(quoting Tex. State Teachers Ass’n v. Garland Indep.
Sch. Dist., 

, 792-93 (1989)). We have observed
generally that “[t]he Supreme Court has given a ‘generous
formulation’ to the term ‘prevailing party.’” Truesdell v.
Phila. Housing Auth., 

, 163 (3d Cir. 2002)
(quoting Hensley v. Eckerhart, 

, 433 (1983)); see
also Cnty. of Morris v. Nationalist Movement, 

,
535 (3d Cir. 2001) (holding that normally, a “prevailing
plaintiff should recover an award of attorney’s fees absent
special circumstances”).

                               A.

        Regarding the first inquiry, a plaintiff must “receive at
least some relief on the merits of his claim before he can be
said to prevail.” Hewitt v. Helms, 

, 760 (1987).
This “inquiry does not turn on the magnitude of the relief
obtained.” Farrar v. Hobby, 

, 114 (1992).
Indeed, the Court has held that even an award of nominal
damages will satisfy this test. 

(citing Farrar, 

). As we have noted, “when . . . a
material alteration in the legal relationship of the parties has
occurred, ‘the degree of the plaintiff’s overall success goes to
the reasonableness of the award . . . not to the availability of a
fee award vel non.’” 

(quoting Tex.
State Teachers 

).

        Although an award of relief may be issued by a court
following consideration of the merits, “[t]he fact that [a
plaintiff] prevailed through a settlement rather than through
litigation does not weaken her claim to fees. Nothing in the
language of § 1988 conditions the District Court’s power to
award fees on full litigation of the issues or on a judicial
determination that the plaintiff’s rights have been violated.”
Maher v. Gagne, 

, 129 (1980). We have
recognized, however, that “interim” relief — such a obtaining
a preliminary injunction to maintain the status quo — that is
not in some way merit-based will not confer prevailing party
status. See, e.g., John T. ex rel. Paul T. v. Del. Cnty.

                                8
Intermediate Unit, 

, 558 (3d Cir. 2003); J.O. v.
Orange Twp. Bd. of Ed., 

, 272-74 (3d Cir.
2002).

       This case involves the payment of $150,000 from
Ruch to Raab pursuant to a settlement agreement that effected
a final resolution of Raab’s case.        This indisputably
constituted a material alteration of the legal relationship
between Ruch and Raab.

                              B.

        Regarding the second inquiry, the material alteration
of the legal relationship between the parties requires a
“judicial imprimatur on the change.” 

; see also CRST Van Expedited v. E.E.O.C., 

, 1646 (2016) (“This change must be marked by judicial
imprimatur.” (quotation marks omitted)).          Key to this
determination is whether the change is enforceable or
“judicially sanctioned” by the court. See 

-05; 

; John 

; see also 

(acknowledging
that a party cannot be considered prevailing “unless there has
been an enforceable alteration of the legal relationship of the
parties” (quotation marks omitted) (Scalia, J., concurring)).
The Court in Buckhannon offered two “examples” meeting
this standard: “enforceable judgments on the merits” and
“settlement agreements enforced through a consent decree.”

However, the Court in Buckhannon determined
that “[a] defendant’s voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to achieve by
the lawsuit, lacks the necessary judicial imprimatur on the
change” between the legal relationship of the parties. 

       The District Court held that only a judgment or
consent decree — not the “private settlement agreement” the
parties entered into — could constitute the basis to permit
Raab to be a prevailing party. App. 7-8. While settlement
agreements reached “through negotiations out of court” alone
may lack the necessary judicial imprimatur, John 

, the facts of this case differ.


                              9
        A settling plaintiff may be entitled to attorney’s fees if
the district court has ancillary jurisdiction to enforce the terms
of a settlement agreement.            The Supreme Court has
recognized that generally, a federal district court does not
have jurisdiction to enforce a settlement agreement, even
though the original dispute may have been before the court.
Kokkonen v. Guardian Life Ins. Co. of Am., 

,
380-81 (1994). However, a district court will have ancillary
jurisdiction over a settlement agreement, permitting the court
to enforce the agreement, when “the terms of the settlement
agreement had been made part of the order of dismissal —
either by separate provision (such as a provision ‘retaining
jurisdiction’ over the settlement agreement) or by
incorporating the terms of the settlement agreement in the
order.” 

The Court in Buckhannon acknowledged,
as a result, that “federal jurisdiction to enforce a private
contractual settlement will often be lacking unless the terms
of the agreement are incorporated into the order of 

n.7. Accordingly, a district court’s retaining
ancillary jurisdiction over the settlement agreement or
incorporating the terms of the settlement agreement in the
order of dismissal confers the judicial imprimatur that is
required for a plaintiff to become a prevailing party under
section 1988. See 

(holding that
a settling plaintiff was a prevailing party when the court order
contained “mandatory language,” was entitled “Order,”
“b[ore] the signature of the District Court judge,” and gave
the plaintiff “the right to request judicial enforcement of the
settlement”).

        Turning to the case before us, we note that the District
Court’s dismissal order both explicitly incorporated the terms
of the settlement agreement and retained jurisdiction to
enforce the agreement. The order provided: “The terms of
the settlement agreement are incorporated herein by reference
and the Court shall retain jurisdiction over such agreement.”
App. 230. We therefore hold that the settlement agreement
had the necessary judicial imprimatur to confer prevailing
party status.

       Ruch urges us to disregard the explicit language
incorporating the settlement terms because the District Court
did not actually see the settlement agreement prior to issuing

                               10
its dismissal order. This argument is unavailing. Although it
may be a good practice for a district court to examine a
settlement agreement prior to incorporating its terms, Ruch
points to no case law requiring a district court to do so in
order to effectively retain jurisdiction over a settlement. In a
similar case, the Court of Appeals for the Second Circuit held
that a district court’s retention of jurisdiction over the
enforcement of a settlement provided “sufficient judicial
sanction to convey prevailing party status on plaintiffs,” even
though the district court had not “scrutinize[d] the
settlement’s fairness or conduct[ed] any review of the terms
of the Agreement before endorsing the stipulation dismissing
the suit.” Roberson v. Giuliani, 

, 80, 84 (2d Cir.
2003). The circumstances here are also vastly different from
those we considered in John T. There, we held that the
plaintiff’s relief was not “judicially sanctioned” when the
parties developed a mutual resolution “through negotiations
out of court,” and where there was no other form of judicial
sanction over the parties’ mutually agreed upon 

. But here, the operative order dismissing the
case contains explicit language incorporating the settlement
terms and retaining jurisdiction in the District Court —
providing the requisite “judicial sanction” over the settlement
agreement.4

       Ruch also urges us to ignore the plain language in the
District Court’s dismissal order stating that the settlement
terms were incorporated. Instead, Ruch argues that we should
defer to the District Court’s later interpretation of its
dismissal order. See Ruch Br. 16-17. In its order denying
attorney’s fees, the District Court noted that “the terms of the
settlement were not actually included” and that the court “did
not facilitate the settlement, has never seen the settlement
agreement, nor was it aware of any terms contained within the
agreement when the Order was issued.” App. 8. However,
the case relied on by Ruch — United States v. Spallone, 399

4
  We also note that, unlike in John T., the settlement occurred
with the help of an active magistrate judge in the federal
district courthouse in Camden, New Jersey. This likely gave
the District Court some assurance that the terms of the
agreement were appropriate to become part of a court order.

                              

, 423 (2d Cir. 2005) — concerns a district court’s
construction of an “ambiguity in his own words.” Here, the
dismissal order was unambiguous: by its own terms it
incorporated the settlement terms and retained jurisdiction.

        Ruch next argues that the retention of jurisdiction
clause is invalid because the parties did not consent to
ancillary jurisdiction over later enforcement of the settlement.
Ruch Br. 23-25 (citing Am. Disability Ass’n, Inc. v.
Chmielarz, 

, 1318 (11th Cir. 2002) (noting that
district court retained jurisdiction to enforce the settlement at
the request of the parties), and 

(noting that its holding that a settlement agreement was
judicially sanctioned was “strengthened” by clause in
settlement providing that it would not become effective if
order of discontinuance did not include a provision retaining
jurisdiction over enforcement)). However, neither of the
cases cited by Ruch hold that a district court can only retain
jurisdiction of the enforcement of a settlement if the parties
include a provision stating as such in their settlement
agreement or otherwise consent to the court’s jurisdiction.
We reject Ruch’s argument and hold that a district court may
sua sponte retain ancillary jurisdiction in the circumstances of
this case.5

5
  As discussed infra, Federal Rule of Civil Procedure 41(a)(2)
authorized the District Court to enter the dismissal order with
the provisions incorporating the settlement agreement and
retaining ancillary jurisdiction. Ruch, however, claims that
the District Court was “wholly without legal authority,” Ruch
Br. 32, to include these provisions because District of New
Jersey Local Civil Rule 41.1(b) “does not contain language
which would allow a trial judge to add conditions or terms to
the Order of Dismissal, such as the retention of jurisdiction
over the settlement language.” 

Rule 41.1(b)
provides:

              When a case has been settled,
              counsel shall promptly notify the
              Clerk and the Court, thereafter
              confirming the same in writing.
              Within 21 days of such
              notification, counsel shall file all
                               12
              papers necessary to terminate the
              case. Upon failure of counsel to
              do so, the Clerk shall prepare an
              order for submission to the Court
              dismissing the action, without
              costs, and without prejudice to the
              right to reopen the action within
              60 days upon good cause shown if
              the      settlement     is      not
              consummated.

L. Civ. R. 41.1(b) (D.N.J.).

        We reject Ruch’s argument for at least four reasons.
First, Ruch provides no case law to support his argument.
The District Court of New Jersey has instead confirmed that
the decision whether “to retain ancillary jurisdiction over the
settlement agreement is discretionary” in these circumstances.
Brass Smith, LLC v. RPI Indus., Inc., 

,
381 (D.N.J. 2011); see also 

is under no
obligation to retain jurisdiction over a settlement agreement,
but may do so if it chooses.”); Wright v. Prudential Ins. Co.
of Am., 

, 522 n.17 (D.N.J. 2003) (“The
exercise of [ancillary] jurisdiction to enforce its own order is
discretionary; the court [is] under no obligation to reserve
[jurisdiction] in the first place.”). Second, Local Rule 41.1(b)
does not, by its terms, restrict or modify the court’s authority
in any way. The rule merely supplements Federal Rule of
Civil Procedure 41(a), inter alia, to create a procedure for
attorneys to notify the court when a case settles “as soon as
possible so that the Court will not waste further effort on the
case and so that it can readjust its calendar.” Allyn Z. Lite,
N.J. Federal Practice Rules, Rule 41.1(b), cmt. 3 (2015).
Third, Ruch’s argument presumes that a local rule may
override the Federal Rules of Civil Procedure — which is not
possible. See Frazier v. Heebe, 

, 645-46 (1987);
see also 28 U.S.C. § 2071(a); N.J. L. Civ. R. 1.1 (noting that
the New Jersey Local Civil Rules “supplement the Federal
Rules of Civil Procedure . . . and are applicable in all
proceedings when not inconsistent therewith”). Fourth, we
note that Ruch did not object to the District Court’s dismissal
order, which was entered on January 21, 2015. Nor did he
                               13
        When case law does mention parties’ consent to
ancillary jurisdiction, it is often in the context of Federal Rule
of Civil Procedure 41(a)(1)(A)(ii) voluntary dismissals.
Under Rule 41(a)(1)(A)(ii), a plaintiff can dismiss an action
without a court order by filing “a stipulation of dismissal
signed by all parties who have appeared.” See State Nat’l Ins.
Co. v. Cnty. of Camden, -- F.3d --, --, 

, at
*5 (3d Cir. 2016). “‘[A]ny action by the district court after
the filing of [the Stipulation of Dismissal] can have no force
or effect because the matter has already been dismissed.’” 

original) (quoting SmallBizPros, Inc. v.
MacDonald, 

, 463 (5th Cir. 2010)). But here, as
the dismissal order was filed before the stipulated dismissal,
Rule 41(a)(1)(A)(ii) does not govern. Instead, as the Supreme
Court has indicated, district courts may retain jurisdiction
without the parties’ consent in Rule 41(a)(2) dismissal orders:

              When the dismissal is pursuant to
              Federal Rule of Civil Procedure
              41(a)(2), which specifies that the
              action “shall not be dismissed at
              the plaintiff’s instance save upon
              order of the court and upon such
              terms and conditions as the court
              deems proper,” the parties’
              compliance with the terms of the
              settlement contract (or the court’s
              “retention of jurisdiction” over the
              settlement contract) may, in the
              court’s discretion, be one of the
              terms set forth in the order. Even
              when, as occurred here, the
              dismissal is pursuant to Rule
              41(a)(1)(ii) (which does not by its
              terms empower a district court to
              attach conditions to the parties’
              stipulation of dismissal) we think
              the court is authorized to embody
              the settlement contract in its

file a motion to reconsider or appeal that order. See Raab
Reply Br. 13. Thus, no challenge to the dismissal order itself
is properly before us.
                               14
              dismissal order (or, what has the
              same effect, retain jurisdiction
              over the settlement contract) if the
              parties agree.

. The Supreme Court in
Kokkonen made clear that, for court dismissals made
pursuant to Federal Rule of Civil Procedure 41(a)(2), a
district court may, in its discretion, “attach conditions to the
parties’ stipulation of dismissal” — including the retention of
jurisdiction over the settlement agreement. 

absence of a settlement term providing the parties’ consent
does not render unenforceable the District Court’s retention
of jurisdiction in a dismissal order under Rule 41(a)(2).

                      *   *    *    *   *

        We conclude that Raab was a prevailing party under
section 1988. Therefore, we will reverse the District Court’s
order denying Raab attorney’s fees, and remand so that the
District Court can determine, within its discretion, the
appropriate amount of fees to which Raab’s counsel is
entitled.

                              IV.

       We turn to defendant Ocean City’s cross-appeal
challenging the District Court’s denial of its motion for
attorney’s fees. It is beyond dispute that Ocean City was a
“prevailing party,” as none of the claims asserted against the
city survived the District Court’s order granting Ocean City’s
motion for summary judgment.

       Although a prevailing party can be either a plaintiff or
a defendant, “the standard for awarding attorney’s fees to
prevailing defendants is more stringent than that for awarding
fees to prevailing plaintiffs.” Barnes Found. v. Twp. of
Lower Merion, 

, 157-58 (3d Cir. 2001). Even
when a defendant is a prevailing party in a section 1983
action, he may recover attorney’s fees “only if the District
Court finds that the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not brought
in subjective bad faith.” Hughes v. Rowe, 

, 14

                              15
(1980) (quotation marks omitted); accord CRST Van
Expedited, Inc. v. E.E.O.C., 

, 1646 (2016)
(“When a defendant is the prevailing party on a civil rights
claim, the Court has held, district courts may award attorney’s
fees if the plaintiff’s ‘claim was frivolous, unreasonable, or
groundless,’ or if ‘the plaintiff continued to litigate after it
clearly became so.’” (quoting Christiansburg Garment Co. v.
E.E.O.C., 

, 422 (1978))). Attorney’s fees for
prevailing defendants under this standard are “not routine, but
are to be only sparingly awarded.” Quiroga v. Hasbro, Inc.,

, 503 (3d Cir. 1991). “The fact that a plaintiff
may ultimately lose his case is not in itself a sufficient
justification for the assessment of fees.” 

. Even if a plaintiff’s allegations are ultimately “legally
insufficient to require a trial,” that alone is not enough to
render the plaintiff’s cause of action “groundless” or “without
foundation.” 

       On appeal, Ocean City contends that the District Court
did not use the proper analysis for deciding its fee application
and abused its discretion in denying its fee application.
Ocean City argues that the District Court failed to address
properly the argument that Raab’s claims lacked a factual

6
  In the Title VII context — where an analogous “frivolous,
unreasonable, or without foundation” standard is employed
— we have indicated that when determining whether an
award of counsel fees to a prevailing defendant is appropriate,
“courts should consider several factors including (1) whether
the plaintiff established a prima facie case; (2) whether the
defendant offered to settle; and (3) whether the trial court
dismissed the case prior to trial or held a full-blown trial on
the merits.” E.E.O.C. v. L.B. Foster Co., 

, 751
(3d Cir. 1997) (quotation marks omitted). Other factors that a
court may consider are “whether the question in issue was
one of first impression requiring judicial resolution,” and
whether “the controversy is based sufficiently upon a real
threat of injury to the plaintiff.” Barnes 

. “These considerations, however, are merely guidelines,
not strict rules; thus determinations regarding frivolity are to
be made on a case-by-case basis.” 

alteration marks omitted).

                              16
foundation, and claims that the District Court only focused on
“reasonableness” and whether the claims were “frivolous.”

       In denying Ocean City’s fee application, the District
Court explicitly held that Raab’s claims were not frivolous or
without foundation, and were reasonable. App. 6-7. The
District Court, accordingly, employed the correct legal
standard to evaluate Ocean City’s fee application. Nor did
the District Court abuse its discretion in holding that, at the
time Raab filed her complaint, it was not unreasonable for
Raab to allege inadequate training and supervision by Ocean
City. Deficient training or supervision may form the basis for
section 1983 liability against a municipality when “both (1)
contemporaneous knowledge of the offending incident or
knowledge of a prior pattern of similar incidents; and (2)
circumstances under which the supervisor’s inaction could be
found to have communicated a message of approval to the
offending subordinate are present.” 

(quotation marks omitted). In reaching its conclusion, the
District Court determined that Raab had undisputed evidence
that one month prior to Raab’s arrest, Ruch had been issued a
“Performance Notice” wherein “he was counseled by his
supervisors for his lack of assertiveness and inability to take
command in handling an unrelated incident.” App. 7. The
District Court noted that Ruch had admitted that this
counseling was “in the back of [his] mind” during the
altercation with Raab. 

omitted). The
court reasoned that such evidence made it “not unreasonable
for [Raab] to argue [municipal liability claims] based upon
these facts.” 

District Court noted that Ocean
City and Ruch made a joint settlement offer to Raab, which
“further supports the reasonableness of the claims asserted
against Ocean City.” App. 7 n.1; see E.E.O.C. v. L.B. Foster
Co., 

, 751 (3d Cir. 1997) (indicating that
whether “the defendant offered to settle” is a factor for
determining whether an award of attorney’s fees to a
prevailing defendant is appropriate).

       We hold that the District Court acted within its
discretion in finding that Raab’s claims were not frivolous,
unreasonable, or without foundation. The District Court’s
decision did not rest “upon a clearly erroneous finding of fact,
an errant conclusion of law or an improper application of law

                              17
to fact.” Clementon Bd. of 

(quotation
marks omitted). Therefore, we will affirm the District
Court’s denial of Ocean City’s motion for attorney’s fees.

                             V.

       For the foregoing reasons, we will reverse the District
Court’s order denying Raab’s motion for attorney’s fees and
will remand to the District Court for proceedings consistent
with this opinion. We will affirm, however, the District
Court’s order denying Ocean City’s motion for attorney’s
fees.




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