Clark et al v. Shawnee, Kansas, City of, No. 5:2015cv04965 - Document 160 (D. Kan. 2017)

Court Description: MEMORANDUM AND ORDER denying 147 Motion for Attorney Fees; denying 156 Motion for Additional Findings. Signed by U.S. District Senior Judge Sam A. Crow on 2/22/17. Mailed to pro se parties Eric Clark, Jonathan Clark by regular mail. (msb)

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Clark et al v. Shawnee, Kansas, City of Doc. 160 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS JONATHAN CLARK and ERI C S. CLARK, Plaint iffs, vs. Case No. 15- 4965- SAC THE CI TY OF SHAWNEE, KANSAS, Defendant . MEMORANDUM AND ORDER Upon t he court grant ing t he defendant ’s m ot ion for sum m ary j udgm ent , ( Dk. 140) , t he clerk ent ered on January 5, 2017, j udgm ent for t he defendant Cit y of Shawnee, Kansas ( “ Cit y” ) and against t he plaint iffs, Jonat han Clark and Eric S. Clark, in t his civil right s act ion. ( Dk. 141) . The Cit y filed a m ot ion for at t orney fees on January 19, 2017 ( Dk. 147) , and t he plaint iffs filed a m ot ion for addit ional findings ( Dk. 156) . This order addresses t hese t wo pending m ot ions in reverse order. M OTI ON FOR AD D I TI ON AL FI LI N GS ( D k . 1 5 6 ) . Cit ing Fed. R. Civ. P. 52( b) , t he plaint iffs m ove t he court t o m ake t wo addit ional findings of fact . The first request ed finding is t hat t he Cit y’s regulat ion “ appears calculat ed t o incit e m em bers of t he responsible law- abiding public t o obt ain a license t o carry concealed weapons and t o incit e t he public t o view concealed carry of weapons as being a noble defense wit hout any t endency t o secret advant ages.” ( Dk. 156- 1, p. 1) . The second request ed finding is t hat “ t he evidence before t he court showed t hat carrying of all visible firearm s in all vehicles, including rifles m ount ed in t he back window of pickup t rucks on one’s own privat e est at e, present a level of concern t hat such conduct m ay creat e unt oward and unseem ly circum st ances t hat go beyond self- defense.” I d. The plaint iffs’ m ot ion and m em orandum fail t o provide any legal or fact ual support for t heir request . ( Dk. 156- 1) . The plaint iffs’ m ot ion does not address t he st andards governing relief under Fed. R. Civ. P. 52( b) . See May v. Kansas, 2013 WL 6669093 at * 1 ( D. Kan. Dec. 18, 2013) ( “ ’A m ot ion m ade pursuant t o Rule 52( b) will only be grant ed when t he m oving part y can show eit her m anifest errors of law or fact , or newly discovered evidence; it is not an opport unit y for part ies t o relit igat e old issues or t o advance new t heories.’ Myers v. Dolgencorp, I nc., 2006 WL 839458, * 1 ( D. Kan. 2006) ( cit ing 9A Charles Alan Wright & Art hur R. Miller, Federal Pract ice and Procedure § 2582 ( 2d ed.1995) ” ) . The defendant opposes t he m ot ion as legally and fact ually deficient . I n reply, t he plaint iffs offer for t he first t im e t heir argum ent s. “ The general rule in t his circuit is t hat a part y waives issues and argum ent s raised for t he first t im e in a reply brief.” See Reedy v. Werholt z, 660 F.3d 1270, 1274 ( 10t h Cir. 2011) . The plaint iffs have waived t heir argum ent s, and t heir m ot ion is sum m arily denied for failing t o provide any legal or fact ual basis in support of t he relief request ed. D EFEN D AN T’S M OTI ON FOR ATTORN EY FEES ( D k . 1 4 7 ) 2 The defendant Cit y filed t his m ot ion wit h a support ing m em orandum on January 19, 2017, which was wit hin t he required 14 days of t he clerk’s ent ry of j udgm ent for t he Cit y and against t he plaint iffs. ( Dks. 147 and 148) . The Cit y’s m ot ion seeks at t orneys’ fees pursuant t o Fed. R. Civ. P. 54( d) ( 2) and 42 U.S.C. § 1988 and pursuant t o t he j udgm ent ent ered upon t he court ’s sum m ary j udgm ent decision. The defendant ’s m ot ion com plies wit h Rule 54( d) ( 2) ( B) . The next day, t he Cit y prom pt ly filed an am ended m em orandum t hat explained: AMENDMENT: This Mem orandum in Support has been am ended t o include t im e records t hat were inadvert ent ly om it t ed from t he original Mem orandum in Support , as well as t o include a St at em ent of Consult at ion. The rem ainder of t his Mem orandum has not been alt ered, except t o include t he t ot al am ount request ed and t he assert ion t hat t he t im e ent ries are reasonable, necessary, and at t ached. ( Dk. 150, p. 1) . The plaint iffs challenge t he t im eliness and propriet y of t his am ended m em orandum . The defendant ’s am ended filing was not unt im ely. The court ’s local rule except s a Rule 54( d) ( 2) m ovant from D. Kan. Rule 7.1( a) and perm it s t he support ing m em orandum t o be filed lat er t han t he m ot ion. D. Kan. Rule 54( e) . The addit ional t im e cont em plat ed by t his local rule gives t he m ovant t he opport unit y t o support it s filing wit h t im e records, affidavit s and evidence. The Cit y’s am ended filing here included t he counsels’ t im e records and brought t he Cit y’s briefing int o com pliance wit h t he court ’s rules. The delayed filing did not arguably prej udice t he plaint iffs 3 in filing t heir response on January 24, 2017. The Cit y’s am ended m em orandum com plies wit h t he let t er and spirit of D. Kan. Rule 54( e) . Under 42 U.S.C. § 1988( b) , a court m ay award at t orney fees t o t he prevailing part y in a civil right s case, including a case brought under 42 U.S.C. § 1983. See Fox v. Vice, 563 U.S. 826, 832- 33 ( 2011) . When t he prevailing part y is t he defendant , t he Suprem e Court has applied a st andard t hat is consist ent wit h t he “ ’quit e different equit able considerat ions’ at st ake.” Fox, 563 U.S. at 833 ( quot ing Christ iansburg Garm ent Co. v. EEOC, 434 U.S. 412, 419 ( 1978) ) . Because “ Congress sought ‘t o prot ect defendant s from burdensom e lit igat ion having no legal or fact ual basis,’” t he Court held t hat “ ’upon a finding t hat t he plaint iff’s act ion was frivolous, unreasonable, or wit hout foundat ion,’” an at t orney fee award for a defendant was aut horized. I d. ( quot ing Christ iansburg, 434 U.S. at 420- 21) ; see also Hensley v. Eckerhart , 461 U.S. 424, 429 n.2 ( 1983) ( not ing t hat defendant s are ent it led t o fees under § 1988 “ only where t he suit was vexat ious, frivolous, or brought t o harass or em barrass t he defendant ” ) . I n Christ ianburg, t he Court em phasized: Hence, a plaint iff should not be assessed his opponent ’s at t orney’s fees unless a court finds t hat his claim was frivolous, unreasonable or groundless or t hat t he plaint iff cont inued t o lit igat e aft er it clearly becam e so. And, needless t o say, if a plaint iff is found t o have brought or cont inued such a claim in bad fait h, t here will be an even st ronger basis for charging him wit h t he at t orney’s fees incurred by t he defense. 4 434 U.S. at 422. “ These st andards are m eant t o det er t he filing of frivolous lawsuit s wit hout discouraging t he plaint iffs from pursuing m erit orious ones.” Hughes v. Unified School Dist . No. 330, 872 F. Supp. 882, 889 ( D. Kan. 1994) ( cit ing Eichm an v. Linden & Sons, I nc., 752 F.2d 1246, 1248 ( 7t h Cir. 1985) ) . “ A frivolous suit is one ‘based on an indisput ably m erit less legal t heory, . . . or whose fact ual cont ent ions are clearly baseless.” Thorpe v. Ancell, 367 Fed. Appx. 914, 919 ( 10t h Cir. Feb. 26, 2010) ( quot ing Neit zke v. William s, 490 U.S. 319, 327 ( 1989) ) . This does not m ean t hat a defendant ’s fee award requires a finding t hat t he suit was “ ’brought in subj ect ive bad fait h.’” Thorpe, 367 Fed. Appx. at 919 ( quot ing Christ iansburg, 434 U.S. at 421) . “ ’A defendant can recover if t he plaint iff violat es t his st andard at any point during t he lit igat ion, not j ust as it s incept ion.’” Thorpe, 367 Fed. Appx. at 919 ( quot ing Galen v. Count y of Los Angeles, 477 F.3d 652, 666 ( 9t h Cir. 2007) ) . I n Fox, t he Suprem e Court recognized fee awards for only t hose frivolous claim s: Analogous principles indicat e t hat a defendant m ay deserve fees even if not all t he plaint iff's claim s were frivolous. I n t his cont ext , § 1988 serves t o relieve a defendant of expenses at t ribut able t o frivolous charges. The plaint iff act ed wrongly in leveling such allegat ions, and t he court m ay shift t o him t he reasonable cost s t hat t hose claim s im posed on his adversary. See Christ iansburg, 434 U.S., at 420–421, 98 S.Ct . 694. That rem ains t rue when t he plaint iff's suit also includes non- frivolous claim s. The defendant , of course, is not ent it led t o any fees arising from t hese non- frivolous charges. See ibid. But t he presence of reasonable allegat ions in a suit does not im m unize t he plaint iff against paying for t he fees t hat his frivolous claim s im posed. 5 Fox v. Vice, 563 U.S. at 834. As t he Tent h Circuit has observed, “ [ t ] his is a difficult st andard t o m eet , t o t he point t hat rarely will a case be sufficient ly frivolous t o j ust ify im posing at t orney fees on t he plaint iff.” Mit chell v. Cit y of Moore, Oklahom a, 218 F.3d 1190, 1203 ( 10t h Cir. 2000) ( cit ing Claj on Product ion Corp. v. Pet era, 70 F.3d 1566, 1581 ( 10t h Cir. 1995) ) ; see Ut ah Anim al Right s Coalit ion v. Salt Lake Count y, 566 F.3d 1236, 1245 ( 10t h Cir. 2009) ( “ This is a high bar for a prevailing defendant t o m eet .” ) ; E.E.O.C. v. TriCore Reference Laborat ories, 493 Fed. Appx. 955, 961, 2012 WL 3518580 ( 10t h Cir. Aug. 16, 2012) ( “ Only in t he rare case will t his difficult st andard be m et .” ) . “ The dism issal of claim s at t he sum m ary j udgm ent st age does not aut om at ically m eet t his st ringent st andard.” Mit chell, 218 F.3d at 1203 ( cit ing Jane L. v. Bangert er, 61 F.3d 1505, 1513 ( 10t h Cir. 1995) ) . “ I n det erm ining if a claim is frivolous, unreasonable, or wit hout foundat ion, a dist rict court m ust not use post hoc reasoning t o conclude t hat because t he plaint iff did not prevail fees are warrant ed.” E.E.O.C. v. TriCore Reference, 493 Fed. Appx. at 961. The Tent h Circuit has said t hat a “ dist rict court should consider t he pro se plaint iff’s abilit y t o recognize t he obj ect ive m erit of his or her claim .” Houst on v. Nort on, 215 F.3d 1172, 1175 ( 10t h Cir. 2000) . I n his discussion of Tent h Circuit precedent , Judge Lungst rum not ed t he Tent h Circuit ’s holding in Thorpe: 6 On t he ot her hand, in Thorpe v. Ancell, at t orney’s fees were awarded t o defendant s where t he dist rict court concluded t hat plaint iffs’ claim s were not only frivolous, but also t he fact ual allegat ions in t heir com plaint were fant ast ic” and im properly “ concoct ed” t o be publicized in j udicial proceedings. 367 F. App'x 914, 924. The plaint iffs had played “ fast and loose” wit h t he record in support ing t heir argum ent s t o t he point t hat t heir assert ions were cont radict ed by t he undisput ed fact s. I d. Furt herm ore, t he plaint iffs refused t o concede t heir claim s were frivolous but , inst ead, filed pages of docum ent s irrelevant t o t he case in an at t em pt t o discredit t he defendant s. I d. Awarding fees in such a case, according t o t he dist rict court , provided som e com pensat ion t o defendant s for cost s incurred in defending t he suit and also det erred plaint iffs from filing “ pat ent ly frivolous and groundless suit s.” I d. McGregor v. Shane’s Bail Bonds, 2010 WL 4622184, at * 2 ( D. Kan. Nov. 4, 2010) . I n deciding whet her t he plaint iffs’ claim s were frivolous, unreasonable or groundless, t he court m ust review t heir m erit s in light of it s rulings while keeping in m ind t he plaint iffs’ abilit y t o recognize t he obj ect ive m erit of t heir claim s. The defendant Cit y argues t he m ost obvious of t he groundless claim s is Eric Clark’s Second Am endm ent claim . The dist rict court event ually grant ed sum m ary j udgm ent for t he Cit y and found t hat Eric Clark did not have st anding t o bring his claim . ( Dk. 140, pp. 5- 14) . The defendant Cit y filed a m ot ion t o dism iss early in t his case which challenged Eric Clark’s st anding. ( Dk. 6) . The court denied t he Cit y’s m ot ion, because t he com plaint facially alleged “ an act ual inj ury- in- fact for Eric Clark” and because t he defendant had failed “ t o present a t im ely and m erit orious argum ent for dism issal based on st anding.” ( Dk. 16, p. 8) . Lat er, t he dist rict court denied t he plaint iffs’ m ot ion for sum m ary j udgm ent on st anding and not ed t hat t he 7 defendant s had “ sum m arily briefed” t his issue in t heir m ot ion t o dism iss. ( Dk. 26, p. 3) . I n t hat order, t he dist rict court also laid out for t he part ies t he cont rolling legal analyses and point ed out t he serious fact ual and legal hurdles t hat faced Eric Clark. I n t he part ies’ subsequent cross m ot ions for sum m ary j udgm ent , t hey fully present ed t heir legal argum ent s along wit h Eric Clark’s t est im ony explaining his alleged inj uries and t he assert ed chilling im pact from t he challenged ordinance. Eric Clark present ed a unique st anding t heory arguing t hat “ he act ually experienced ‘a credible im m inent t hreat ’ of arrest during t he relevant period and t hat t his rest rained him from exercising his Second Am endm ent right .” ( Dk. 140, p. 10) . The court addressed t his t heory at lengt h and concluded t hat t he fact s did not support a sufficient im m inent t hreat for st anding. While Eric Clark’s st anding t heory becam e m ost apparent and underst andable at t his st age in t he lit igat ion, as did it s lack of legal and fact ual m erit , t he court concludes t his claim does not warrant a fee award. This is not one of t hose “ rare cases” in which a pro se plaint iff would necessarily recognize t he fallacies in his st anding t heory. For t hat m at t er, t he defendant ’s briefing of t his issue failed t o address Eric Clark’s part icular st anding t heory. ( Dk. 140, p. 11) . The court does not find t hat Eric Clark’s present at ion of t his st anding claim shows t hat he necessarily underst ood his t heory t o be indisput ably m erit less and his fact ual allegat ions t o be clearly insufficient and baseless. Thus, t he court concludes t hat t he grant ing of at t orney's fees is not warrant ed on Eric Clark’s claim . 8 The court reaches t he sam e conclusion as t o t he m erit s of t he plaint iffs’ Second Am endm ent challenge t o t he m unicipal ordinance. The defendant is right t hat t he plaint iffs pushed t he bounds of reasonableness in fashioning som e of t heir facial challenges and in arguing t he ordinance’s im pact on firearm possession in t he hom e. Nonet heless, t he plaint iffs’ claim s present ed subst ant ive legal issues surrounding unset t led const it ut ional quest ions t hat required serious analysis t o decide t hem . The court rej ect s t he defendant ’s posit ion t hat t he plaint iffs’ Second Am endm ent claim s were frivolous and unreasonable. Finally, t he defendant point s t o t he plaint iffs having act ed in bad fait h during t he lit igat ion of t his case. The plaint iffs filed excessive pleadings and repeat edly advanced unreasonable argum ent s in challenging t he defendant ’s counsel’s digit al signat ure on discovery request s. Such conduct would have been wort hy grounds for a sanct ions m ot ion during discovery. This circum st ance, however, in t his court ’s discret ion, is not so weight y as t o t ransform t his int o a rare case j ust ifying an award of defendant ’s at t orney’s fees. I n reaching t his decision, t he court carefully reviewed t he claim s and evidence cont ained in t he record, as well as t he part ies’ argum ent s, and is convinced t hat at t orney's fees should not be awarded against t he Clarks. I T I S THEREFORE ORDERED t hat t he plaint iffs’ m ot ion for addit ional filings ( Dk. 156) is denied; 9 I T I S FURTHER ORDERED t hat t he defendant Cit y’s m ot ion for at t orney fees ( Dk. 147) is denied. Dat ed t his 22 nd day of February, 2017, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 10

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