2:12-cv-00290
D. Nev.Apr 16, 2014Background
- Plaintiff Sujanie Gamage, a former UNLV Ph.D. candidate, sued UNLV and her dissertation supervisor under 42 U.S.C. § 1983 and related state-law theories after being expelled for plagiarism; summary judgment was entered for defendants on all counts.
- The Bach Law Firm (plaintiff's counsel) has a history of bringing nearly identical "students’ rights" suits against UNLV and related institutions, several of which were dismissed or affirmed against the firm on appeal.
- Judge Navarro found Gamage received notice and multiple hearing opportunities, admitted to some plagiarism in deposition and university records, and that UNLV provided more process than constitutionally required; Eleventh Amendment and other legal barriers also applied.
- UNLV moved for attorney’s fees under 42 U.S.C. § 1988(b), 28 U.S.C. § 1927, and Nevada law, arguing the suit was frivolous and that counsel acted recklessly/bad faith.
- The magistrate judge recommended awarding fees in part: holding the plaintiff liable under § 1988(b), imposing sanctions on The Bach Law Firm and Jason Bach under § 1927, and fixing a lodestar-based fee award of $39,962.50 (with related interest/costs adjustments).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to fees under 42 U.S.C. § 1988(b) (prevailing defendant) | Gamage argued surviving a motion to dismiss and disputed facts show claims were not frivolous | UNLV argued claims were unreasonable, contradicted by binding Ninth Circuit authority and plaintiff’s admissions | Court: Gamage’s action was frivolous/meritless; award fees under §1988(b) against Gamage |
| Sanctions under 28 U.S.C. § 1927 against counsel | Bach Firm denied reckless misstatements or bad faith, contending claims were reasonable | UNLV showed repeated prior adverse rulings (including Ninth Circuit criticism) and counsel failed to cite controlling adverse authority, continuing meritless litigation | Court: Counsel acted recklessly and in bad faith; §1927 sanctions against The Bach Law Firm and Jason Bach (jointly/severally) |
| Temporal scope / amount of fee award (but-for cutoff) | Plaintiff argued earlier filings and briefing show non-frivolousness; contested offer-of-judgment timing | UNLV sought fees from post-offer period and/or after discovery showed claims meritless; proposed lodestar figures | Court: Fees attributable to continuation after discovery (two weeks post-deposition); awarded $39,962.50 (lodestar) using January 1, 2013 cutoff (practical period beginning Jan 18, 2013) |
| Costs and statutory interest / offer-of-judgment penalties (Nevada law & Fed. R. Civ. P. 54/68) | Gamage disputed service and reasonableness of offer timing | UNLV sought taxed costs (already awarded by clerk), interest on costs, and interest/fees under Nevada offer-of-judgment rule | Court: Costs already taxed by clerk (denied as moot); awarded interest on taxed costs and awarded interest on the judgment under Nevada offer-of-judgment rules; declined to award additional attorney’s fees based solely on the offer date |
Key Cases Cited
- Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) (prevailing defendant may recover fees only where plaintiff’s action was unreasonable, frivolous, or meritless)
- United States v. Blodgett, 709 F.2d 608 (9th Cir. 1983) (§1927 requires recklessness or bad faith by counsel)
- Fox v. Vice, 131 S. Ct. 2205 (2011) (but-for test for fee recovery: prevailing defendant recovers only fees incurred because of frivolous claims)
- In re Girardi, 611 F.3d 1027 (9th Cir. 2010) (reckless continuation of meritless claims can support §1927 sanctions)
- Krainski v. Nevada, 616 F.3d 963 (9th Cir. 2010) (Eleventh Amendment bars certain suits against state university system; binding precedent relevant to similar claims)
- Goss v. Lopez, 419 U.S. 565 (1975) (students at public institutions have certain procedural due process rights)