F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 23 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
DENNIS DILL,
Plaintiff-Appellant and
Cross-Appellee,
v. Nos. 98-6162, 98-6186
CITY OF EDMOND, OKLAHOMA and (D.C. No. 95-CV-95)
BILL VETTER, in his individual capacity, (W.D. Okla.)
Defendants-Appellees and
Cross-Appellants.
and
TERRY GREGG, in his official and
individual capacities; DAVID PRESTON,
in his official and individual capacities;
and BEN DAVES, in his official and
individual capacities,
Defendants-Appellees.
ORDER AND JUDGMENT*
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Before BALDOCK, McKAY, and KELLY, Circuit Judges.**
The only issue in this appeal is the district court’s award of attorney’s fees.
Plaintiff Dennis Dill challenges the district court’s award of $30,246 in attorney’s fees to
Defendant Terry Gregg and $23,635.50 in attorney’s fees to Defendants David Preston
and Ben Daves. Defendants City of Edmond, Oklahoma and Bill Vetter challenge the
district court’s award of $23,500 in attorney’s fees to Plaintiff. Our jurisdiction arises
under 28 U.S.C. § 1291. We review the district court’s award of attorney’s fees for abuse
of discretion. Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995). Applying this
standard, we vacate in part and affirm in part. As discussed below, we must vacate a
portion of the award because we reversed several of the district court’s substantive
decisions in the underlying case of Dill v. City of Edmond, F.3d , 1998 WL 546131
(10th Cir. 1998).
I. Background
Plaintiff Dennis Dill, a police officer employed by the City of Edmond, Oklahoma,
brought suit against Defendants pursuant to 42 U.S.C. § 1983, alleging that Defendants
violated his First Amendment free speech and Fourteenth Amendment due process rights.
Plaintiff also brought several pendent state law claims. The district court bifurcated the
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
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case for trial because Plaintiff failed to make a timely jury demand for his claims against
Defendants Terry Gregg, Bill Vetter and the City of Edmond. On November 2, 1995, the
district court dismissed Plaintiff’s First Amendment claim against the city, Gregg and
Vetter.
In December 1996, the claims against Defendants Ben Daves and David Preston
were tried before a jury, while the claims against Gregg, Vetter and the city were tried
before the court. Ultimately, the court determined that Plaintiff should prevail against
Vetter and the City of Edmond on the procedural due process claim and against the City
of Edmond on the breach of contract claim. The court awarded nominal damages of one
dollar on each claim. Defendants prevailed on Plaintiff’s remaining claims before the
court and the jury. The parties appealed.
On August 28, 1998, we reversed the district court’s dismissal of the First
Amendment claim against the city, Vetter and Gregg, reversed the district court’s award
of only nominal damages, and reversed the district court’s denial of qualified immunity to
Vetter on the procedural due process claim. We affirmed the district court in all other
respects. Keeping these results in mind, we turn to the issue of attorney’s fees.
II. Analysis
Title 42 U.S.C. § 1988(b) authorizes the award of reasonable attorney’s fees to
prevailing parties in 42 U.S.C. § 1983 actions. However, a prevailing defendant may
only recover attorney’s fees if the plaintiff’s claim was “frivolous, unreasonable, or
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without foundation, even if not brought in subjective bad faith.” Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 421 (1978). In this case, the district court concluded that the
claims against Daves, Preston and Gregg fell within the ambit of Christiansburg, entitling
them to attorney’s fees. The district court also concluded that Plaintiff, as a prevailing
party, was entitled to attorney’s fees against Vetter and the city. We address the district
court’s awards in turn.
A. Daves & Preston’s Attorney’s Fees
The district court awarded Defendants Daves and Preston attorney’s fees in the
amount of $23,635.50. As defendants in a civil rights case, Daves and Preston were only
entitled to such an award if the claims against them were “frivolous, unreasonable, or
groundless, or . . . the plaintiff continued to litigate after [the claims] clearly became so.”
Christiansburg, 434 U.S. at 422. An award is not justified, however, just because the
plaintiff “ultimately lost his case.” Id. at 421. To allow an award of attorney’s fees
simply because the plaintiff did not prevail “would substantially add to the risk inhering
in most litigation and would undercut the efforts of Congress to promote vigorous
enforcement” of the civil rights laws. Id. at 422. Although bad faith on the part of the
plaintiff is not required, its presence strengthens the basis for awarding attorney’s fees.
Id. The award of attorney’s fees to prevailing defendants is committed to the sound
discretion of the trial court. Simons v. Southwest Petro-Chem, Inc., 28 F.3d 1029, 1033
(10th Cir. 1994).
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Plaintiff brought a procedural due process claim and state claims for tortious
interference with business relations and civil conspiracy against Daves and Preston. The
district court granted Daves and Preston judgment as a matter of law on all three claims,
which we upheld in Dill v. City of Edmond, F.3d , 1998 WL 546131 (10th Cir.
1998). After reviewing the record, we conclude that the claims against Daves and
Preston were not warranted in fact or law. As the district court aptly stated, the claims
against these two defendants were grounded in:
baseless allegations and insinuations of conspiracy and wrongdoing . . . .
[T]he court is not saying that merely because plaintiff did not prevail his
claims must be frivolous. . . . Plaintiff should have realized by the time of
trial he would need to come forward with more than mere speculation . . . .
Having failed to come forward with credible, non-speculative evidence,
plaintiff, and not these defendants, should bear the cost of risk associated
with bringing these unsubstantiated claims to trial.
As we noted in our August 28, 1998, opinion, Plaintiff presented no evidence implicating
Preston in wrongdoing. As to Daves, Plaintiff alleged that by changing his duty schedule
to require him to work weekends, Daves violated Plaintiff’s procedural due process rights
and participated in a conspiracy against him. This claim is simply unsupported by the
law. De minimus property interests such as this do not trigger due process protection.
See Pitts v. Board of Educ. of U.S.D. 305, 869 F.2d 555, 556 (10th Cir. 1989).
Furthermore, Plaintiff’s motive for adding Daves and Preston as defendants, more
than a year and a half after filing the original complaint, is questionable. In the original
complaint, Plaintiff failed to make a jury demand. When amending the complaint to add
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Preston and Daves, Plaintiff included a jury demand and filed a Fed. R. Civ. P. 39 motion
requesting a jury trial of all claims against all Defendants.1 Defendants argue that the
amended complaint constituted an unsuccessful attempt to “bootstrap” the jury demand to
all the defendants. After reviewing the record, Defendants’ characterization of Plaintiff’s
strategy seems likely and supports the award of attorney’s fees. See Towerridge, Inc. v.
T.A.O., Inc., 111 F.3d 758, 768 (10th Cir. 1997) (bad faith in bringing an action warrants
award of attorney’s fees).
When we consider Plaintiff’s conduct in light of the scant factual and legal support
for the claims against Daves and Preston, we find that the district court did not abuse its
discretion in awarding attorney’s fees. Although we recognize the stringent nature of the
standard for prevailing defendants, the claims against Daves and Preston present the rare
circumstances justifying the award of attorney’s fees to civil rights defendants.
B. Gregg’s Attorney’s Fees
After granting judgment in Gregg’s favor on Plaintiff’s claims against him, the
district court awarded Gregg, as a prevailing party under 42 U.S.C. § 1988(b), $30,246 in
attorney’s fees. The district court concluded that Plaintiff’s claims against Gregg were
“frivolous, unreasonable or groundless” within the meaning of Christiansburg, 434 U.S.
1
The district court denied the Rule 39 motion, bifurcated the case and conducted
both a jury and bench trial. In the order granting attorney’s fees, the district court stated
that Plaintiff’s strategy was “especially lamentable [because] . . . the addition of the
unsuccessful claims against Preston and Daves prolonged and complicated the case by
requiring bifurcation.”
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at 422. Plaintiff now argues that the district court abused its discretion in applying
Christianburg and awarding Gregg attorney’s fees.
We need not reach the issue of whether Plaintiff’s claims against Gregg fall within
the Christianburg standard because we are not yet certain that Defendant qualifies as a
prevailing party under 42 U.S.C. § 1988(b). In our August 28, 1998, opinion, we
reversed the district court’s dismissal of the First Amendment claim against Gregg and
remanded for further proceedings. Dill v. City of Edmond, F.3d , 1998 WL 546131
(10th Cir. 1998). Thus, the First Amendment claim against Gregg remains. Therefore, the
attorney’s fee award must be vacated pending resolution of this claim.
C. Plaintiff’s Attorney’s Fees
The district court awarded Plaintiff $23,500 in attorney’s fees against Vetter and
the city. In Dill v. City of Edmond, F.3d , 1998 WL 546131 (10th Cir. 1998), we
altered the district court’s decisions regarding Plaintiff’s claims against these two
Defendants. Specifically, we reversed the judgment against Vetter on the procedural due
process claim, concluding that he was entitled to qualified immunity. We also reversed
the district court’s dismissal of the First Amendment claim against Vetter and the city.
Finally, we concluded that the district court erred in awarding only nominal damages
against the city. These actions impact the award of attorney’s fees to Plaintiff.
Therefore, we must vacate the award and remand the issue for further consideration upon
the resolution of the remaining portion of this lawsuit.
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AFFIRMED IN PART, VACATED IN PART AND REMANDED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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