United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
AARON POLSTER UNITED STATE DISTRICT JUDGE.
above-captioned case is before the Court on
“Defendants' Motion to Be Declared
‘Prevailing Parties' and for an Award of Reasonable
Attorneys' Fees, Nontaxable Expenses, and Taxable Costs,
and for Submission of Evidence of Same.” Doc #: 85
[hereinafter “Motion for Expenses”].
the filing of the Amended Complaint on April 5, 2016, the
above-captioned case included five named defendants: Cuyahoga
County, S. Mirolovich, M. Elhalaby, C. Clack, and S. Hester.
Doc #: 21. Each defendant was ultimately dismissed:
• On June 13, 2017, North voluntarily dismissed Hester
and Elhalaby without prejudice. Doc ##: 73, 74.
• On July 19, 2017, the Court granted summary judgment
in favor of Mirolovich. Doc ##: 78, 79.
• On August 14, 2017, the Court granted summary judgment
in favor of Cuyahoga County and Clack. Doc ##: 83, 84.
August 28, Defendants Cuyahoga County, Elhalaby, Clack, and
Hester (collectively, “County Defendants”) filed
the instant Motion for Expenses pursuant to Federal Rule of
Civil Procedure 54(d), 42 U.S.C. § 1988, and 28 U.S.C.
the United States, the prevailing litigant is ordinarily not
entitled to collect a reasonable attorneys' fee from the
loser.” Alyeska Pipeline Serv. Co. v. Wilderness
Soc'y, 421 U.S. 240, 247 (1975). 42 U.S.C. 1988(b)
is an exception to this general rule, which provides (as to
§ 1983 and certain other statutes), “the court, in
its discretion, may allow the prevailing party . . . a
reasonable attorney's fee as part of the costs.” A
party reaches prevailing party status by obtaining a judgment
on the merits or a court-ordered consent decree.
Buckhannon Board and Care Home, Inc. v. West Virginia
Dep't of Health and Human Resources, 532 U.S. 598,
603-04 (2001). While district courts traditionally award
attorney's fees to prevailing plaintiffs in all but
special circumstances, attorneys' fees may be awarded to
prevailing defendants only upon a finding that the
plaintiff's action was “frivolous, unreasonable, or
without foundation, even though not brought in subjective bad
faith.” Smith v. Smythe-Cramer Co., 754 F.2d
180, 182-83 (6th Cir. 1985) (citing Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).
“Yet because ‘[a]n award of attorney's fees
against a losing plaintiff in a civil rights action is an
extreme sanction, ' it ‘must be limited to truly
egregious cases of misconduct.'” Lowery v.
Jefferson Cty. Bd. of Educ., 586 F.3d 427, 437 (6th Cir.
2009) (quoting Jones v. Continental Corp., 789 F.2d
1225, 1232 (6th Cir. 1986); see Serrano v. Cintas
Corp., 699 F.3d 884, 905 (6th Cir. 2012) (finding that
losing numerous motions, failing to respond properly to
discovery requests, refusal to produce information, and
withdrawal of claims for lack of merit did not constitute
egregious and unreasonable conduct).
contrast to 42 U.S.C. § 1988, which shifts attorneys
fees to the losing party, 28 U.S.C. § 1927
provides that any attorney “who so multiplies
the proceedings in any case unreasonably and vexatiously may
be required by the court to satisfy personally the excess
costs, expenses, and attorney's fees reasonably incurred
because of such conduct.” “Sanctions are
warranted when an attorney objectively ‘falls short of
the obligations owed by a member of the bar to the court and
which, as a result, causes additional expense to the opposing
party.'” Red Carpet Studios Div. of Source
Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir.
2006) (quoting In re Ruben, 825 F.2d 977, 984 (6th
Cir. 1987)). The purpose of such sanctions “is to deter
dilatory litigation practices and to punish aggressive
tactics that far exceed zealous advocacy, ” and these
sanctions may be appropriate when an attorney
“intentionally abuses the judicial process or knowingly
disregards the risk that his actions will needlessly multiply
proceedings.” Id. While a finding of
“subjective bad faith” is not required, the
conduct must have been something “more than negligence
or incompetence.” Id.
”[u]nless a federal statute, these rules, or a court
order provides otherwise, costs--other than attorney's
fees--should be allowed to the prevailing party.”
Fed.R.Civ.P. 54(d)(1). “[T]he decision whether to award
costs ultimately lies within the sound discretion of the
district court.” Marx v. Gen. Revenue Corp.,
568 U.S. 371, 377 (2013). Recovery pursuant to Rule 54(d) is
limited to certain enumerated categories of costs.
See 28 U.S.C. § 1920 (listing appropriate items
of cost); see also In re Cardizem CD Antitrust
Litig., 481 F.3d 355, 359 (6th Cir. 2007) (“[T]he
discretion that Rule 54(d)(1) gives courts . . . is
discretion to decline requests for costs, not discretion to
award costs that § 1920 fails to enumerate.”);
see also 10-54 Moore's Federal Practice - Civil
§ 54.103 (2017).