Affidavit Establishes Reasonableness

Salvin v. American National Insurance Co., 2007 U.S. Dist. LEXIS 27172 (Apr. 11)

After determining the appropriateness of attorney’s fees as a sanction pursuant to 28 U.S.C. 1927, the Eastern District of Virginia addressed the reasonableness of the requested fees. The court found the request reasonable in part because it was supported by an affidavit from an attorney unaffiliated with the attorney requesting fees. The court rejected the contention that the amount requested was unreasonable because far greater than opposing counsel’s expenditures, because the attorney requesting fees worked harder and better than opposing counsel. Thus, opposing counsel’s time spent “has no bearing on how much time was reasonable for the defense attorneys to expend on the case.”   

Fees For Improper Removal

Schoenfeld v. Keiber, 2007 U.S. Dist. LEXIS 26375 (Apr. 10)

Attorney’s fees may be awarded to a plaintiff for fees incurred as a result of an improper removal, 28 U.S.C. 1447(c). However, the Supreme Court recently limited such awards to circumstances where “the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132 (2005). Applying that standard, the Western District of Missouri found fees appropriate where the alleged basis of removal had been explicitly rejected by “binding Eighth Circuit authority.” Additionally, defendant “failed to show that a state forum was inadequate.”

Defendant’s Section 1988 Fees Award Against Pro Se Plaintiff

Lance v. Sandy City Corp., 2007 U.S. Dist. LEXIS 27015 (Apr. 10)

Prevailing defendants are entitled to attorney’s fees under 42 U.S.C. 1988 if the plaintiff files a claim in bad faith or continues to litigate after it becomes clear that the suit is groundless. Here, the District Court for the District of Utah declined to award fees against a pro se plaintiff even though it appeared that the standard was met. The court acknowledged that the standard for awarding fees pursuant to section 1999 “applies to pro se parties.” However, here it was “unclear to the Court whether Plaintiff currently understands the implications of the Court’s prior rulings.” The Court did put Plaintiff on notice that substantially similar filings would result in attorney’s fees. 

Enhancement of Lodestar Exceptional

Combs v. Shelter Mutual Insurance, 2007 U.S. Dist. LEXIS 26953 (Apr. 10)

The Eastern District of Oklahoma awarded attorney’s fees to plaintiff pursuant to Oklahoma law.  But the court awarded only the lodestar, rejecting plaintiff’s request for a 33% enhancement based on “complexity of issues, and success achieved.”  The court noted that upward adjustments to the lodestar are “rare and exceptional” and that the factors cited by plaintiff – complexity and success – are reflected in the lodestar. 

Mistaken Assumption Does Not Support Defendant’s Fees Under Section 1988

Crump-Richmond v. Arambula, 2007 U.S. Dist. LEXIS 26463 (Apr. 10)

Plaintiff sued a school district and a police officer after she was handcuffed, allegedly for no reason, in the school parking lot. After winning on summary judgment, the school district moved for attorney’s fees. Prevailing defendants are eligible for a fee award pursuant to 42 U.S.C. 1988 only if the suit was frivolous or vexatious. Here, plaintiff made the reasonable assumption that the officer’s actions may have reflected the district’s policies or training. Though during discovery plaintiff was unable to find any evidence to support this notion, according to the District Court for Nevada, that “does not make the original assumption frivolous. It was merely mistaken, and not sufficient grounds to grant an award of fees.”    

Rule 38 Fee Request Requires Separate Motion

Hunt v. Lamb, 2007 U.S.App. LEXIS 7965 (Apr. 4)

After affirming a decision below in what it considered a meritless appeal, the Tenth Circuit addressed appellees’ request for attorney’s fees pursuant to Rule 38 of the Federal Rules of Appellate Procedure. Noting that fees pursuant to Rule 38 are discretionary, the Court declined even to address the propriety of such fees here, because “the Rule 38 request was not filed in a separate motion.”

Light Criminal Sentence Does Not Merit Fees

U.S.v. Sriram, 2007 U.S. App. LEXIS 8168 (Apr.9)

The defendant, who pleaded guilty of health care fraud and tax fraud, was sentenced to probation and restitution. When the government appealed, the defendant cross-appealed for attorney’s fees, pursuant to 18 U.S.C. 3006A (the Hyde Amendment), maintaining that he was the prevailing party and the government engaged in vexatious conduct. The Seventh Circuit called his claim frivolous. Although the statute authorizes attorney’s fees for a prevailing criminal defendant, “a defendant who is convicted and sentenced is not the prevailing party even if the sentence is light.” 

CAFRA Fee Award Not Governed by EAJA

U.S. v. $23,400 in U.S. Currency, 2007 U.S.Dist. LEXIS 26042 (Apr. 9)

The defended won a verdict in a forfeiture action brought by the government, and then sought attorney’s fees pursuant to the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), which provides for reasonable fees for a person who prevails “in any civil proceeding to forfeit property under any provision of federal law.”  28 U.S.C. 2465 (b)(1)(A).  The government argued that fees should nevertheless be calculated under the Equal Access to Justice Act (EAJA). The Western District of North Carolina disagreed, rejecting the invitation to “create an entirely new standard for the determination of attorney fees in forfeiture cases.” 

Fees For Defendants Under ADA

Wilson v. Norbeck, 2007 U.S. Dist. LEXIS 26144 (Apr. 9)

Under the Americans With Disabilities Act (“ADA”), 42 U.S.C. 12205, prevailing defendants may receive attorney’s fees only if the suit was frivolous. Here, the District Court for the Eastern District of California found that two of plaintiff’s eleven claims were frivolous. That, however, did not justify a fee award, since any award would be de minimus and it would be impossible to segregate defense counsel’s work defending against those claims from its work defending against the reasonable claims. 

Victory On One Issue Suffices For "IDEA" Fee Award

Van Duyn v. Baker School District, 2007 U.S. App. LEXIS 7606 (Apr. 7)

In this action under the Individuals with Disabilities Education Act ("IDEA"), an autistic child prevailed on only one of eleven issues at the administrative hearing: The administrative law judge ruled that he was entitled to an additional five hours of math instruction per week. Although plaintiff's other claims were rejected, the Ninth Circuit held that the extent of math instruction was a "significant issue" making plaintiff a prevailing party entitled to an award of attorney's fees. However, the district court was correct to deny fees to plaintiff's mother, as fees are inappropriate for parent attorneys who represent their children in IDEA proceedings.