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Arnaudo v. County of Yavapai

United States District Court, D. Arizona

February 15, 2019

Krista Ann Arnaudo, Plaintiff,
v.
County of Yavapai, et al., Defendants. Date Atty Description Hours Rate Amount

          ORDER

          HONORABLE DIANE J. HUMETEWA UNITED STATES 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).

         I. BACKGROUND

         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).[1] Prior to filing her Complaint, Plaintiff notified Yavapai County of her intention to file suit regarding her August 18, 2015 arrest. Arizona County Insurance Pool (“ACIP”) warned Plaintiff's counsel several times that because Plaintiff plead guilty to the August 18, 2015 resisting arrest charge, her claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005). (Docs. 48-1, 48-2). Plaintiff ignored these warnings and on July 6, 2016, Plaintiff filed this action in Yavapai County Superior Court naming Yavapai County and Yavapai County Sheriff's Deputies Jeff Long and M. Barton. Plaintiff's Complaint contained two counts: Count I included 42 U.S.C. § 1983 (“Section 1983”) claims for violations of her Fourth and Fourteenth Amendment rights to be free from unlawful arrest, wrongful incarceration, unlawful use of force, and malicious prosecution; Count II included Arizona state tort law claims for assault, battery, false arrest, wrongful incarceration, and malicious prosecution. (Doc. 1-1). Defendants subsequently removed the action to this Court. (Id.)

         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).

         II. DISCUSSION

         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).

         A. Rule 11 Sanctions [2]

         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.

         B. Section 1983 Fees

          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).[3] Under Section 1988 jurisprudence, a prevailing defendant is treated differently than a prevailing plaintiff in that fees are not awarded simply because the defendant succeeds. See Patton v. Cnty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988). The Ninth Circuit has repeatedly recognized that attorneys' fees in civil rights cases “should only be awarded to a defendant in exceptional cases.” Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990); see also Herb ...


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