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Clark v. City of Shawnee

United States District Court, D. Kansas

February 22, 2017



          Sam A. Crow, U.S. District Senior Judge

         Upon the court granting the defendant's motion for summary judgment, (Dk. 140), the clerk entered on January 5, 2017, judgment for the defendant City of Shawnee, Kansas (“City”) and against the plaintiffs, Jonathan Clark and Eric S. Clark, in this civil rights action. (Dk. 141). The City filed a motion for attorney fees on January 19, 2017 (Dk. 147), and the plaintiffs filed a motion for additional findings (Dk. 156). This order addresses these two pending motions in reverse order.


         Citing Fed.R.Civ.P. 52(b), the plaintiffs move the court to make two additional findings of fact. The first requested finding is that the City's regulation “appears calculated to incite members of the responsible law-abiding public to obtain a license to carry concealed weapons and to incite the public to view concealed carry of weapons as being a noble defense without any tendency to secret advantages.” (Dk. 156-1, p. 1). The second requested finding is that “the evidence before the court showed that carrying of all visible firearms in all vehicles, including rifles mounted in the back window of pickup trucks on one's own private estate, present a level of concern that such conduct may create untoward and unseemly circumstances that go beyond self-defense.” Id. The plaintiffs' motion and memorandum fail to provide any legal or factual support for their request. (Dk. 156-1). The plaintiffs' motion does not address the standards governing relief under Fed.R.Civ.P. 52(b). See May v. Kansas, 2013 WL 6669093 at *1 (D. Kan. Dec. 18, 2013)(“'A motion made pursuant to Rule 52(b) will only be granted when the moving party can show either manifest errors of law or fact, or newly discovered evidence; it is not an opportunity for parties to relitigate old issues or to advance new theories.' Myers v. Dolgencorp, Inc., 2006 WL 839458, *1 (D. Kan. 2006)(citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2582 (2d ed.1995)”). The defendant opposes the motion as legally and factually deficient. In reply, the plaintiffs offer for the first time their arguments. “The general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.” See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011). The plaintiffs have waived their arguments, and their motion is summarily denied for failing to provide any legal or factual basis in support of the relief requested.


         The defendant City filed this motion with a supporting memorandum on January 19, 2017, which was within the required 14 days of the clerk's entry of judgment for the City and against the plaintiffs. (Dks. 147 and 148). The City's motion seeks attorneys' fees pursuant to Fed.R.Civ.P. 54(d)(2) and 42 U.S.C. § 1988 and pursuant to the judgment entered upon the court's summary judgment decision. The defendant's motion complies with Rule 54(d)(2)(B).

         The next day, the City promptly filed an amended memorandum that explained:

AMENDMENT: This Memorandum in Support has been amended to include time records that were inadvertently omitted from the original Memorandum in Support, as well as to include a Statement of Consultation. The remainder of this Memorandum has not been altered, except to include the total amount requested and the assertion that the time entries are reasonable, necessary, and attached.

         (Dk. 150, p. 1). The plaintiffs challenge the timeliness and propriety of this amended memorandum. The defendant's amended filing was not untimely. The court's local rule excepts a Rule 54(d)(2) movant from D. Kan. Rule 7.1(a) and permits the supporting memorandum to be filed later than the motion. D. Kan. Rule 54(e). The additional time contemplated by this local rule gives the movant the opportunity to support its filing with time records, affidavits and evidence. The City's amended filing here included the counsels' time records and brought the City's briefing into compliance with the court's rules. The delayed filing did not arguably prejudice the plaintiffs in filing their response on January 24, 2017. The City's amended memorandum complies with the letter and spirit of D. Kan. Rule 54(e).

         Under 42 U.S.C. § 1988(b), a court may award attorney fees to the prevailing party in a civil rights case, including a case brought under 42 U.S.C. § 1983. See Fox v. Vice, 563 U.S. 826, 832-33 (2011). When the prevailing party is the defendant, the Supreme Court has applied a standard that is consistent with the “'quite different equitable considerations' at stake.” Fox, 563 U.S. at 833 (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 419 (1978)). Because “Congress sought ‘to protect defendants from burdensome litigation having no legal or factual basis, '” the Court held that “'upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, '” an attorney fee award for a defendant was authorized. Id. (quoting Christiansburg, 434 U.S. at 420-21); see also Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983) (noting that defendants are entitled to fees under § 1988 “only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant”).

         In Christianburg, the Court emphasized:

Hence, a plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable or groundless or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney's fees incurred by the defense.

434 U.S. at 422. “These standards are meant to deter the filing of frivolous lawsuits without discouraging the plaintiffs from pursuing meritorious ones.” Hughes v. Unified School Dist. No. 330, 872 F.Supp. 882, 889 (D. Kan. 1994) (citing Eichman v. Linden & Sons, Inc., 752 F.2d 1246, 1248 (7th Cir. 1985)).

         “A frivolous suit is one ‘based on an indisputably meritless legal theory, . . . or whose factual contentions are clearly baseless.” Thorpe v. Ancell, 367 Fed.Appx. 914, 919 (10th Cir. Feb. 26, 2010) (quoting Neitzkev. Williams, 490 U.S. 319, 327 (1989)). This does not mean that a defendant's fee award requires a finding that the suit was “'brought in subjective bad faith.'” Thorpe, 367 Fed.Appx. at 919 (quoting Christiansburg, 434 U.S. at 421). “'A defendant can recover if the plaintiff violates this standard at any point during the litigation, not just as its inception.'” Thorpe, 367 ...

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