United States District Court, D. Arizona
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 ...