Fox v. Vice

KING, Circuit Judge, specially

concurring:

I concur in the judgment affirming the

district court’s dismissal of the suit and in panel’s decision not to extend the rea-

soning in Zeidman to added

amendment. Pearce, Ann Law Offices

Deborah Orleans, LA, Pearce, New Deborah Hart, Hart, Earl Randall Broussard & In December brought a suit in Charles, L.L.C., LA, Lake for Fox. Louisiana state court against Vice and the Vinton, Town alleging the above-stated Plauche, Christopher Ieyoub, Paul claiming facts and federal and state causes Nieset, L.L.C., Charles, LA, Smith & Lake of action. In January the case was for Vice. removed to federal In Aрril court. Miller, Joseph Stamey, John Mark Bath Vice was tried guilty and found of extor- Firm, Natchitoches, LA, Stamey Law for tion in state criminal court for the anony- Town of Vinton. Meanwhile, mous letter. discovery in the

civil produced case par- evidence of Vice’s ticipation in the filing of the police false report. In September the defen- dants brought a motion judgment the pleadings and for summary judgment. REAVLEY, Before CLEMENT and motion, In their they argued that Fox’s SOUTHWICK, Judges. Circuit claims had no basis in federal law. In his response motion, to the Fox admitted that REAVLEY, Judge: Circuit he had failed to properly present any fed- This is an appeal from the district eral cause of action. Specifically, Fox stat- granting court’s order Defendants-Appel- ed: lees fees and costs after the correctly Defendants argue that Fox Appellant dismissal of Fox’s federal claims. presents no valid claim pursuant to 42 argues that thе district court erred § U.S.C. toAs the extortion let-

because prevailing par- were not ter, it was sent anonymously. Vice did ties, and because Fox still maintains state- not act under “color of law” concerning against law Appellees. For the fol- the extortion letter. reasons, lowing we AFFIRM. As to the fabricated basketball game

incident, Fox cannot deprivation show a I. BACKGROUND right, of a privilege or immunity secured by the United States Constitution and Fox’s causes of action stem from two its Although laws. Cary Vice and acted place incidents that took in 2005 after Fox under “color of law” they whenever con- Appellee and Vice each announced his can- spired to fabricate the game basketball didacy police to be chief in the Town of incident and file a police false report, Vinton, Louisiana. The first event took Fox was not prevented from running for place in January, when incumbent Vice election. Nor is the defamation Fox “anonymous” sent Fox an letter in which suffered aas result of this fabrication attempted Vice to blackmail Fox into not deprivation of a property right. running for office. The second event took light admissions, of Fox’s own the dis- place at a high local school basketball trict court dismissed Fox’s federal claims game February, party when a third prejudice with and remanded the remain- uttering and, accused Fox of a racial slur ing state-law claims to state court. Vice, instigation filed a false police report regarding alleged Fox’s ut- The defendants moved for attorneys’ terance. pursuant § to 42 U.S.C. states, part, This section any proceeding relevant "[i]n action or to enforce a and Rule 54. See Dean v. Riser.8 The to Federal Rule of Civil pursuant

costs 54,2 arguing that Fox’s federal Procedure granted Ap that the court record shows frivolous, unreasonable claims were pellees’ judgment plead motion for on the The district court without foundation. § ings and dismissed Fox’s 1983 claims motion, appeals. and ‍​‌​‌​​​​‌​‌‌​​​​‌‌​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​‌‌‌​‌‍Fox now granted after prejudice with Fox conceded he to state a claim. All had failed federal II. ANALYSIS things being equal, Ap this makes other review a district court’s award We pellees prevailing parties. See Buckhan fees under U.S.C. Home, Inc. v. Va. non Bd. & Care W. for abuse of discretion. Merced v. Kass Res.;9 Dep’t Health & Human Sheets v. of findings reviеw of fact for clear on.3 We U.S.A.;10 Corp., Anthony Yamaha Motors conclusions of law de novo. error and County Hosp.11 v. Marion Gen. City Dearmore v. Garland.4 of argues Appellees prevail are not properly court to For the district ing parties voluntarily because Fox dis in a award a defendant fees points missed his federal claims. Fox (1) action, § 1983 the court must find Dean, our decision where we held that (2) prevailing party, a and the defendant is plaintiff voluntarily when a dismisses his frivolous, that the are un action, § claims in a 1983 the defendant is reasonable, or without foundation. Rowe;5 Hattiesburg “prevailing party” v. v. not a for Hughes Stover simply Pub. Dist.6 An award of costs Sch. purposes can “unless defendant dem requires a determination that the defen plaintiff onstrate that withdrew to prevailing party.7 dant was a a judgment avoid disfavorable on the meri ts.”12 Appellees prevailing

1. Whether are parties Fox did nоt file a motion to volun We address first whether are tarily dismiss his federal claims before § prevailing parties purposes of 1988 ..., court, 54(d)(1). provision ... 1983 seclionf] of See Fed.R.Civ.P. discretion, may prevailing in its allow the States, 505, (5th Cir.2001). party, a other than the United reason- 8. 240 F.3d 508 attorney’s part able fee as of the costs....” 1988(b). § 598, 603-04, 1835, 42 U.S.C. 9. 532 U.S. (2001) (judgment 149 L.Ed.2d 855 states, part, in relevant This section altering legal relationship on the merits of statute, rules, "[u]nless a federal these or a parties рrevailing party). a establishes otherwise, provides court order costs—other attorney's than fees—should be allowed to the 533, (5th Cir.1990) (dismiss- 10. 891 F.2d 539 54(d)(1). prevailing party.” Fed.R.Civ.P. prejudice judgment al with is tantamount merits, rendering prevail- on the defendants (5th Cir.2009). ing parties purposes for costs under Rule (5th Cir.2008). 4. 519 F.3d (5th Cir.1980) 11. 617 F.2d 1169-70 (dismissal prejudice adju- of claims with is an 5, 14, 173, 178, S.Ct. 449 U.S. purposes dication of res merits (1980) (citing Christiansburg L.Ed.2d 163 judicata, making prevailing par- defendant a EEOC, 412, 421, Garment Co. v. ty) 694, 700, (1978)). S.Ct. 54 L.Ed.2d 648 Dean, (5th Cir.2008). 6. 549 F.3d 12. See 240 F.3d at 511. Rather, responded.13 Fox al-

fendants Whether Fox’s 1983 claims are unreasonable, frivolous, or without proceed for more than lowed the case months in court foundation eighteen federal discovery through considerable before he We next look to the merit of Fox’s claims. determining When whether a challenged legal sufficiency was on the frivolous, unreasonable, claim is or without point, claims. At that Fox was his federal foundation, a district court should consider their lack of forced to concede merit (1) whether the established a pri and shifted focus to his state claims. (2) case, ma facie whether the defendant Therefore, any decision Fox made to aban- (3) settle, offered to whether “merely don his federal claims did not court held a full trial. Myers City forum,” preferred his or a ] indicate! making West Monroe.16 In these determi change the law or decisive facts.14 nations, a court must “resist the under Rather, it represented recognition that temptation standable engage in post Fox’s federal claims should never have reasoning by that, hoc concluding because Moreover, brought. been without decisive did not ultimately prevail, his by Appellees, action Fox’s baseless federal action must have been unreasonable or Instead, without foundation.”17 a court would proceeded have to trial. He “ must ask whether ‘the case is so lacking chose to dismiss the federal claims because arguable in merit as to be groundless or argument sup- he could manufacture no to without foundation rather than whether port challenged. them when he was To ”18 the claim was ultimately successful.’ deny fees under these would circumstances Looking factor, to the first the dis purpose defeat the recognizing ever trict court correctly concluded that Fox “prevailing parties,” fendants as which is “ any prima failed to establish faciе federal ‘protect to defendants from burdensome claim. Contrary to Fox’s assertions on litigation having no or factual ba- appeal, the dismissal of Fox’s federal con ”15 sis.’ stitutional claims is not based evidentia ry hurdles that hold, therefore, he faced at the end of We that Appellees are Rather, discovery. Fox’s claims are “prevailing parties” purposes for of Rule groundless because the alleged offenses as 54 and 1988. Cоmplaint in his have no redress in the Constitution or laws of the United States.19 Stover, 41(a) See Fed.R.Civ.P. (allowing (quoting 549 F.3d at 997-98 Jones Univ., opposing party (5th dismiss claims before v. Tex. Tech files an- summary judgment). swer or motion for 1981)). Cir. Dean, (stating poten- See 240 F.3d at 510 attempts argue appellate 19. Fox in his brief tially grounds voluntarily dropping valid provided through that the evidence discovery claims). federal actually provided grounds federal for relief pursuant §to 1983. Because Fox abandoned (quoting Christiansburg, 15. Id. at 510 court, arguments these at the district we will U.S. at at not consider them now. See v. Tex. Martinez Justice, Dep’t Criminal (5th Cir.2000). (5th Cir.2002) (noting general rule that Christiansburg, timely "failure to U.S. raise an issue in district (emphasis original). S.Ct. at 700 appeal”). court waives that issue on prevail Appellees letter to 3. Whether must nature of Vice’s anonymous The the entire case to be awarded over constitutionally-pro- lack of Fox and the po- stemming from the falsе tected harm alternative, argues of which report were circumstances In the Fox even

lice meritless, Appel- if his federal claims are litiga- the outset of Fox was aware from attorneys’ are not entitled to fees and lees produced evidence Consequently, tion. no prevail costs because did not change the discovery process could in the Fox Specifically, over the entire action. Complaint. in Fox’s undеrlying deficiencies points to the fact that the district court factor, Looking to the second the district Fox’s state claims that were remanded finding clearly alleged err on the same facts. court did not based in settlement engage Appellees did speaking of whether a defendant When pre- The evidence with Fox. negotiations Supreme entitled to that all parties shows “suit,”20 “action,”21 ‍​‌​‌​​​​‌​‌‌​​​​‌‌​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​‌‌‌​‌‍both sented Court describes a an were one- and both a “claim” and an “action”22as the attempts settlement documented proper quanta determining frivolity, sided, asserting the settlement with Fox guidance with little as to which is the final points Appellees evidence demands. No appears determinant. There also to be no settlement offers. making their own precedent Fifth on whether a de- Circuit points billing statements While prevail fendant must over an entire suit showing charges Appellees’ from counsel may before defendant seek possible for discussions of settlement and fees or whether success on an individual Fox, mediation with these statements Indeed, claim is sufficient. other circuits error in the dis- alone do not show clear appear split to be on the issue.23 finding. They only trict court’s show that Having reviewed the other cir demands, not Appellees considered Fox’s holdings, agree majority cuits’ we with the they replied with their own. of cirсuits that a defendant does not have factor, it is undis- Regarding the third an entire in order to prevail over suit § attorneys’ recover fees for frivolous 1983 that Fox’s federal claims were all puted agree claims. with the Ninth and We dismissed without trial. that “it ‘under Eleventh Circuits would conclusion, establishing In all the factors intent of Congress plain mine the allow a frivolous case have been satisfied. Ac- prosecute tiffs to frivolous claims without cordingly, we hold the district cоurt did consequences merely because those claims ” in finding Appel- not abuse its discretion joined’ were with additional non-frivolous attorneys’ a rule also make a lees entitled to fees. claims.24 Such would 424, (1st Cir.1993); Co., Eckerhart, 461 U.S. 429 n. 56 Hensley Curry 20. v. v. A.H. Robins 1933, 2, 212, 2, (7th Cir.1985); 103 S.Ct 1937 n. 76 L.Ed.2d 40 775 F.2d 220-21 Lotz (1983). Realty Dep't Co. v. United States Hous. & of 929, (4th Cir.1983) Dev., 717 F.2d 931 Urban 14, at 101 S.Ct. at Hughes, 606, 616- HCA, Inc., 423 F.3d with Balmer v. (6th Cir.2005); Kelly, v. Colombrito Christiansburg, 434 U.S. at (2d Cir.1985). at 700. S.Ct. (quot- 452 F.3d at 1064 Corp., Tutor-Saliba Corp. City Compare Hai- Tutor-Saliba of Quintana, Cir.2006); (9th ing The courts 414 F.3d ley, 452 F.3d (11th Jenne, addressed situ- in Tutor-Saliba Quintana Quintana v. Cir.2005); were 455- ations where the non-frivolous claims Hickey, Ward v. attorneys’ defendant’s entitlement to also noted in the second order that “defen- “depend upon not the district re- court’s dant’s request attorney’s [sic] fees re- view of the merits of a only lates to proceedings before this claims, upon but how a chose to Finally, court.” the court noted that “De- draft his complaint.”25 fendant’s do appear [sic] to request attorney’s fеes related to the defense of though even a defendant the state law claims remanded for decision prevail need not on all claims in a suit to to the Louisiana state court.” Because the fees, attorneys’ be entitled to a defendant district specifically court restricted its attorneys’ is entitled to fees for work attorneys’ award of distinctly which can be fees to the plain proceedings traced to a it, tiffs frivolous before claims.26 Inasmuch as a and because the court found that non-frivolous claim in the same suit can be did not seek attorneys’ fees for the basis for the work of a defendant’s claims, the defense of the state law we do attorney, the court must consider the in not find its award of fees an terrelated nature the frivolous and non- abuse of discretion.

frivolous claims to determine the appropri recognize ate fee.27 We is no “[t]here III. CONCLUSION

precise rule or making formula for these determinations,” and much should be left The district court’s order granting Ap- equitable to the district court’s discretion.28 pellees attorneys’ fees is AFFIRMED. Nevertheless, “we are confident that the district court will be able properly to SOUTHWICK, LESLIE H. Circuit

weigh and assess the amount attorney’s Judge, dissenting: exclusively fees attributable plain to [a frivolous ... tiffs] claim[s].”29 The majority ably has identified the rel- evant facts and discussed issues that awarding Appellees its order at arise with claims for torneys’ My the district court fees. noted that disagreement narrow, “the focus of both defendants but it has conse- plaintiffs § was 1983 claim.” The quence court in this case. ultimately brought unsuccessful. ‍​‌​‌​​​​‌​‌‌​​​​‌‌​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​‌‌‌​‌‍See Tutor-Saliba tiff also presumably unrelated and 1064; Quintana, Corp., 452 F.3d at 414 F.3d non-frivolous claims in the same suit. See 10, at Hensley, we hold that the ultimate 461 U.S. at 435 & n. 103 S.Ct. at success of a disposi non-frivolous claim is not 1940 & n. 10. tive of whether the defendant is entitled to claim, on a particu 434-35, frivolous Hensley, 461 U.S. at 103 S.Ct. Cf. larly remaining when long (noting plaintiff claims are no at 1940 may that a not seek er jurisdiction. under the federal court's See fees for work on unsuccessful claims that are 351, Medford, (11th claims).

Head v. plaintiff's § 62 F.3d not related to the 356 Cir. 1995) (defendants potentially entitled to attor neys' Ward, rights fees on frivolous civil 27. See (noting 996 F.2d at 455-56 when supplemental ju district court declines may a district deny court not fees “because risdiсtion over state-law claims and dismisses calculation would be difficult” or use interre- them). grounds lation of grant any claims as "not to fees”). Corp., 25. Tutor-Saliba 452 F.3d at 1064. Our holding Hensley, Hensley, 461 U.S. at reinforced dicta in 103 S.Ct. at Supreme where the Court stated that a defen- may attorneys' dant recover fees incurred in responding Quintana, plain- to a frivolous claim a when 414 F.3d at 1312. arise out of the transaction and agree majority I that we should same are with prosecution so interrelated that their or that the con- finding plaintiff affirm on the proof defense entails or denial of essential it clear that long tinued too after became at ly the same facts.” Id. 624-25. attor- there was no federal case. So some The Dis- neys’ fees should be reimbursed. Magistrate Judge I find the in erred usually a properly trict stated that Court using this standard from a debt collection party seeking attorneys’ fees must allocate creditor, allowing statute for fees to a then separately the successful the fees between applying equivalently plaintiffs it That claims and the unsuccessful. was ‍​‌​‌​​​​‌​‌‌​​​​‌‌​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​‌‌‌​‌‍in rights Congress defendants civil cases. done here because the claims were found plaintiffs wanted of limited financial means point to be too interrelated. It is at that bring meritorious suits and recover depart reasoning that I from the we are their while permitting also affirming. defendants to reсover fees when the action “frivolous, unreasonable, ground was or quoted by Magistrate The standard or, less,” clear, initially even if not Judge precedent was taken from a litigate continued to the case after applied a Texas statute that allowed attor- its frivolousness was clear. Christians neys’ fees: EEOC, 412, burg Garment Co. court require The district did not 422, 694, (1978). 98 S.Ct. 54 L.Ed.2d 648 segregate File-Steele its fees into those exist, likely No such limitation would nor fees incurred fоr successful claims and mentioned, in was one Varco or Flint. those incurred for unsuccessful claims. We have held that “the standard for Instead, segre- the court found that no awarding attorneys’ fees differs if a defen- gation required was because the claims dant rather than a prevails.” arose out of the same transaction and Dist., Indep. White v. South Park Sch. prosecu- were so interrelated that their (5th Cir.1982). in-We proof tion or defense entailed or denial apply rigorous stead a “more standard for essentially the same facts. awarding attorney’s prevailing fees to Bldgs. U.S. Varco Pruden v. Reid & Riser, fendants.” Dean v. Co., Gary Strickland (5th Cir.2001) (citing Christiansburg, (5th Cir.1998). The relevant Texas statute U.S. in payment Vareo authorized of fees for demanding This framework stems from the collection of a debt. Tex. Civ. Prac. Congress’s admonition that in (Vernon 1986). 38.001 Rem.Code Ann. rights civil occupy unique actions The court an explanation found оf that fee protected vindicating rights role Varco, statute a state decision. Dean, in enumerated Section 1983. See (citing F.3d Flint & Assocs. v. Int 240 F.3d at 507. a Viewing rights civil Steel, Inc., Pipe ercont'l & S.W.2d plaintiff “private attorney a general,” as denied)). (Tex.App.-Dallas The writ permit we do not awards of fees Flint court stated that the recoverable a against rights plaintiff civil absent a necessary fees were those for the “vexatious, showing that his suit was frivo- claim for which the statute authorized fees. lous, or оtherwise without merit.” Id. at Flint, 739 S.W.2d at 624. fees permitted legal were also services claims, precedent “rendered connection with all In the debt collection the recovery cited, if attorney Magistrate Judge even fees is not we to declined re- claims, they quire plaintiff segregate authorized for if the to the [some the] work support summary, done in of its successful claims In when work done on a from its unsuccessful ones because the successful and unsuccessful interrelated, confusingly interrelated as not to claims is not work on each was so re- Varco, quiring attorneys’ at 919. fees be divisible. The awarded be artificially segregated not to that avoids an unfair majority here does refer same Quite caselaw, differently, discount. legal using it in- but is the standard used terrelatedness as the reason not seg- Magistrate Judge deciding the after regate fees awarded to a defendant legal that the wоrk on the various claims an inequitable causes windfall. See disentangled. could not be As I will ex Stenson, 886, 898-94, Blum v. my plain, view that was error and it (1984) 79 L.Ed.2d 891 affected the manner in which the facts (Section produce 1988 should not wind- analyzed. were attorneys). falls to The approach Vareo is sensible when case, present the appears it that al- being plain- fees are awarded to most all the discovery defendant’s and fac- A plaintiffs may perform tiffs. сounsel tual analysis would necessary have been legal support services that successful and even if no federal claims brought. had been legal unsuccessful it theories. When is Generally, the same witnesses would be factually impossible to allocate the ser- deposed, the same produced, documents vices, requiring a defendant to reimburse disputes the same factual resolved. them all will plaintiff assure a is re- Only legal the work solely allocable or covering necessary bring what was dominantly to the dismissed federal claims suit, a payment plaintiff to which the was unnecessary. Any entitled. artificial discount because of may the interrelated services lead to less The suit will proceed now in state court. than total fee reimbursement. In such a If the state to which a case such as this is case, approach of the Texas debt col- remanded has a fee-shifting statutе similar lection statute makes sense because the to Section and if the state claims allowing interests are the a plaintiff frivolous, prove the defendant can then same— recover, fully to including attorneys’ fees. recover the fees overlapping for the work performed in Only federal court. then will hand, On the other when defendant it be known highly that the interrelated successfully has fended off some but not legal groundless services were аll on frivolous, all claims as there is still one or claims. If the plaintiff prevails, all then he more claims for which the defendant has necessary recovers is work not been found any attorneys’ to deserve succeed, plus, such fees as in- were too fees. plaintiff may The well—it has terrelated to allocate with the dismissed bring been resolved—be entitled to those Finally, federal claims. if los- long claims. So the plaintiffs as remain- es but at least thе claims are not found to frivolous, ing claims are not found to be no groundless, be no one any receives fee reimbursement to the defendant for the reimbursement. permissible those claims is if even prevail. Consequent- does not If there is no fee-shifting statute for the ly, when some claims are dismissed as operates state law claims that similarly to not, frivolous and others are allowing Section approach then this still recovery defendant full of his fees because avoids a specif- windfall. When there is no the services for the authority fees, various claims are too ic for awarding party each gives interrelated too much. bears its own. only We would be enforc- Cassim, Appellee, to Denise ing in advance the state’s refusal shift Jennifer fees. reject Accordingly, Magis- I would Management Educational Credit Judge’s of the stan- application

trate Vareo Corporatiоn, Appellant. majority to this case. The refers to dard Magistrate Judge’s part another No. 08-6476. par- in which she that both decision stated Appeals, United States Court throughout litigation focused on the

ties Sixth Circuit. finding federal claim. That does not affect my any fee for view services Vice’s Argued: Oct. necessary that was ‍​‌​‌​​​​‌​‌‌​​​​‌‌​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​‌‌​‌‌‌​‌‍also for the counsel Decided and Filed: Feb. recoverable, claims is not no matter state might what the focus of counsel have been.

Therefore, I find an abuse of discretion

by the district court. See Merced v. Kas- (5th Cir.2009).

son, The required pay fees Fox should be solely applicable

are those to his federal

claims. The defendant is entitled to be

paid legal necessary for the services

remove the action and now to address the

remand, any uniquely as well as services

arising from the work to have the If

Section 1983 claims dismissed. those

cannot be segregated from the other it appear

then would the defendant’s fee If suspect.

records are that much can be made,

shown but no other can division be

then I would end the award there.

Requiring all interrelated fees to be re- right

imbursed intrudes on the of a civil

right’s plaintiff bring a non-frivolous having pay attorneys’

claim without

to the defense even when the case is un-

successful.

I respectfully dissent. CASSIM,

In re Jennifer Denise Debtor.

Case Details

Case Name: Fox v. Vice

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 20, 2010

Citation: 594 F.3d 423

Docket Number: 08-31135

Court Abbreviation: 5th Cir.