Ninth Circuit Panel Makes it More Difficult for Public Agencies to Recover Attorneys Fees Expended in Defending Unmeritorious Civil Rights and Employment Discrimination Lawsuits

February 14, 2011, by Meyers Nave

A three judge panel of the Ninth Circuit Court of Appeals issued an opinion which will make it more difficult for local governments to recover attorneys fees they expend defending against unmeritorious civil rights and employment discrimination lawsuits. The law has long been clear that while a plaintiff who prevails in such a lawsuit will almost always recover his or her attorneys fees, a prevailing defendant is only entitled to recover attorneys fees if the court finds the plaintiff’s claims were “unreasonable, frivolous, meritless or vexatious.” The new case, Fabbrini v. City of Dunsmuir, 2011 slip. op. 2317 (9th Cir 2011) addresses a defendant’s right to recover fees when a complaint contains both claims for which attorneys fees are available and non-frivolous claims for which fees are not recoverable.

In an earlier case, Tutor-Saliba Corp. v. City of Hailey 452 F.3d 1055 (9th Cir 2006), the Ninth Circuit had rejected an argument that the mere presence of some non-frivolous claims barred a defendant from recovering fees expended in defending the frivolous claims at least where there is a clear basis to determine what work was performed for what claims. However, the court left open the question of what to do “where frivolous claims are combined with non-frivolous claims and the claims are not sufficiently distinct.” Id. at 1064, fn. 4. In Fabbrini, the court appears to have held that those fees are not recoverable.

In Fabbrini, the plaintiff pursued state and federal law civil rights claims all of which were eventually dismissed. Even though the federal claims were dismissed, there was no finding that they were frivolous. The district court awarded the defendant the attorneys fees it incurred in prosecuting an anti-SLAPP motion to dismiss the state law based claims. In addition to those fees, the district court had also awarded approximately $ 8,000.00 for work that was performed that was related to the arguably non-frivolous federal claims but was also “inextricably intertwined with” the work that was performed defending the state law claims for which fees were available. The district court was following a long line of decisions holding that a plaintiff who prevails on claim for which fees are available can also recover fees for work preformed on claims where fees are not available if the claims are sufficiently intertwined such that “the time spent on the claims could not reasonably be divided” See, Armstrong v. Davis, 318 F.3d 965, 975 (9th Cir. 2003). Thus, for example, if a plaintiff were to pursue four civil rights claims but only prevail as to one, he or she could still recover fees for all of the time spent conducting discovery that would be relevant to all four claims. In Fabbrini, the court held this principle does not work in reverse.

In rejecting the award of the additional fees, the court adopted a per se rule that where there are non-frivolous federal civil rights claims present, attorneys fees cannot be awarded to a prevailing defendant unless the fees are “exclusively attributable” to the claims for which fees are available. For example, if a plaintiff includes four clearly frivolous claims with one arguably non-frivolous claim, Fabrinni gives rise to an argument that any discovery, investigative work or motion practice incurred defending against the frivolous claims is not recoverable if the work can also be related to the one non-frivolous claim. Thus the presence of a single non-frivolous claim can be used to defeat or severely limit a fees motion brought by a prevailing defendant even where the majority of the plaintiff’s case is clearly frivolous.

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